UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4828
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
VIC F. HENSON, a/k/a Vic F. Gray,
Defendant - Appellant.
No. 11-4830
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TODD C. SNEAD,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:10-cr-00124-MOC-6; 3:10-cr-00124-MOC-3)
Submitted: February 28, 2012 Decided: March 8, 2012
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Carol Ann Bauer, Morganton, North Carolina; Steven T. Meier,
MEIER LAW, Charlotte, North Carolina, for Appellants. Kurt
William Meyers, Assistant United States Attorney, Charlotte,
North Carolina, Amy Elizabeth Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Vic F. Henson and Todd C. Snead were both named, along
with nine co-defendants, in a thirty-count indictment. Henson
pled guilty, pursuant to a written plea agreement, to one count
of conspiracy to commit mortgage fraud, in violation of 18
U.S.C. § 371 (2006), referencing 18 U.S.C. §§ 371, 1014, 1341,
1343, 1344 (2006), and one count of conspiracy to bribe a bank,
in violation of 18 U.S.C. § 371, referencing 18 U.S.C. § 215
(2006). Snead pled guilty, pursuant to a written plea
agreement, to one count of conspiracy to commit mortgage fraud,
in violation of 18 U.S.C. § 371, referencing 18 U.S.C. §§ 1014,
1341, 1343, 1344; one count of bank fraud, in violation of 18
U.S.C. § 1344; and one count of money laundering conspiracy, in
violation of 18 U.S.C. § 1956 (2006). The district court
sentenced Henson to twenty-seven months in prison and Snead to
fifty-one months. Henson and Snead timely appealed.
On appeal, counsel for Henson and Snead submitted a
consolidated brief in accordance with Anders v. California, 386
U.S. 738 (1967), certifying that there are no meritorious issues
for appeal, but questioning: (1) whether the Government
committed prosecutorial misconduct in declining to move for a
downward departure for Henson based on substantial assistance
pursuant to U.S. Sentencing Guidelines Manual (USSG) § 5k1.1
(2010), and (2) whether the district court erred in increasing
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Snead’s offense level by two levels for abuse of a position of
trust pursuant to USSG § 3B1.3. Although both Henson and Snead
were informed of their right to file pro se supplemental briefs,
neither has done so. The Government declined to respond.
The filing of a motion for sentence reduction based on
substantial assistance provided by a defendant is within the
Government’s sole discretion. See Fed. R. Crim. P. 35(b); USSG
§ 5K1.1. However, a court may remedy the Government’s refusal
to move for a reduction of sentence if (1) the Government has
obligated itself to move for a reduction under the terms of the
plea agreement, United States v. Conner, 930 F.2d 1073, 1076
(4th Cir. 1991), or (2) the Government’s refusal to move for a
reduction “was based on an unconstitutional motive” or “was not
rationally related to any legitimate Government end[.]” Wade v.
United States, 504 U.S. 181, 185-86 (1992); United States v.
Butler, 272 F.3d 683, 686 (4th Cir. 2001). If the defendant
cannot show a breach of his plea agreement or an
unconstitutional motive, “a claim that a defendant merely
provided substantial assistance will not entitle a defendant to
a remedy or even to discovery or an evidentiary hearing. Nor
would additional but generalized allegations of improper
motive.” Wade, 504 U.S. at 186.
Here, the plea agreement gave the Government full
discretion to decide whether Henson’s assistance was substantial
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and warranted a § 5K1.1 motion. Moreover, Henson does not argue
that the Government’s refusal to move for a downward departure
was based on an unconstitutional motive. Instead, at
sentencing, Henson admitted that she provided no assistance that
would warrant such a departure. Therefore, Henson’s claim of
prosecutorial misconduct is without merit. See United States v.
Scheetz, 293 F.3d 175, 185 (4th Cir. 2002).
The district court’s factual determination that a
defendant abused a position of public or private trust is
reviewed for clear error. United States v. Caplinger, 339 F.3d
226, 235 (4th Cir. 2003). Section 3B1.3 of the Guidelines, the
provision applied to Snead, directs that a defendant’s offense
level may be increased by two levels “[i]f the defendant abused
a position of public or private trust, or used a special skill,
in a manner that significantly facilitated the commission or
concealment of the offense.” USSG § 3B1.3. The “central
purpose” of the enhancement “is to penalize defendants who take
advantage of a position that provides them with the freedom to
commit a difficult-to-detect wrong.” United States v. Brack,
651 F.3d 388, 393 (4th Cir. 2011) (internal quotation marks and
alteration omitted). Whether a defendant occupied a position of
trust must be viewed from the perspective of the victim. United
States v. Abdelshafi, 592 F.3d 602, 611 (4th Cir. 2010). Our
review of the record leads us to conclude that Snead’s position
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as a banking mortgage consultant and his abuse of that position
warranted the USSG § 2B1.3 enhancement.
In accordance with Anders, we have examined the entire
record for potentially meritorious issues and have found none.
We affirm the judgment of the district court. This court
requires that counsel inform Henson and Snead, in writing, of
their right to petition the Supreme Court of the United States
for further review. If Henson or Snead requests that a petition
be filed, but counsel believes that such a petition would be
frivolous, then counsel may move to withdraw. Counsel’s motion
must state that a copy thereof was served on his or her client.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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