UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 16-4166
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSHUA N. WRIGHT,
Defendant - Appellant.
No. 16-4180
TRAMAINE STANDBERRY,
Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:15-cr-00102-HEH-1; 3:15-cr- 00102-HEH-2)
Submitted: September 1, 2020 Decided: September 2, 2020 Before AGEE and QUATTLEBAUM, Circuit Judges, and Thomas S. KLEEH, United States District Judge for the Northern District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
Mark Diamond, Richmond, Virginia; Joseph R. Winston, LAW OFFICES OF JOSEPH R. WINSTON, Richmond, Virginia, for Appellants. Dana J. Boente, United States Attorney, Richard D. Cooke, Stephen E. Anthony, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2 PER CURIAM:
Joshua Nathaniel Wright and Tramaine Tre’quan Standberry were convicted of
interference with commerce by robbery (“Hobbs Act robbery”), in violation of 18 U.S.C.
§ 1951 (2018), and brandishing a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(a)(ii) (2018). On appeal, Wright and Standberry *
contend (1) that Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c)(3)
(2018); (2) that the district court erred by instructing the jury that Hobbs Act robbery is a
crime of violence under § 924(c); (3) that the district court abused its discretion by finding
by a preponderance of the evidence that they had committed two robberies of which they
had not been convicted, and varying upwardly in each of their sentences to reflect that
conduct; (4) that the district court clearly erred by finding they had committed an abduction
within the meaning of the Sentencing Guidelines; (5) that the district court clearly erred in
refusing to grant Wright a sentence reduction for acceptance of responsibility; and (6) that
Wright’s 276-month upward variant sentence is substantively unreasonable. For the
following reasons, we affirm.
Wright and Standberry first argue that Hobbs Act robbery is not a crime of violence
under 18 U.S.C. § 924(c)(3) and thus cannot serve as a predicate offense for their 18 U.S.C.
§ 924(c)(1)(A) convictions. This argument is foreclosed by our decision in United States
v. Mathis, 932 F.3d 242, 266 (4th Cir. 2019).
* We deny Standberry’s motion to file a pro se supplemental brief.
3 Wright and Standberry next argue that the district court erred by instructing the jury
that Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c)(3). “We review a
district court’s decision to give a particular jury instruction for abuse of discretion” and
“whether a jury instruction incorrectly stated the law de novo.” United States v. Miltier,
882 F.3d 81, 89 (4th Cir.), cert. denied, 139 S. Ct. 130 (2018). We “must determine
whether the instructions construed as a whole, and in light of the whole record, adequately
informed the jury of the controlling legal principles without misleading or confusing the
jury to the prejudice of the objecting party.” Id. at 89 (internal quotation marks omitted).
We have reviewed the record and the relevant legal authorities and conclude the district
court did not abuse its discretion in instructing the jury.
Third, both Wright and Standberry argue the district court erred by varying
upwardly to account for robberies of which the jury had acquitted them or for which they
had not been charged. A sentencing court is free to consider acquitted or uncharged
conduct in calculating a defendant’s Guidelines range. See United States v. Lawing, 703
F.3d 229, 241 (4th Cir. 2012). Acknowledging this fact, Wright and Standberry argue that
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), the sentencing court can only
consider such conduct under a reasonable doubt standard, rather than under the
preponderance standard established in Lawing, or must at least use a higher standard of
proof when imposing a significant upward variance. However, we have continually held
that “a sentencing court may consider uncharged and acquitted conduct in determining a
sentence, as long as that conduct is proven by a preponderance of the evidence.” United
States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009); see also United States v. Slager, 912
4 F.3d 224, 233 (4th Cir.) (“When sentencing courts engage in fact finding, preponderance
of the evidence is the appropriate standard of proof.” (internal quotation marks omitted)),
cert. denied, 139 S. Ct. 2679 (2019). Accordingly, we conclude that “[t]his argument is
too creative for the law as it stands.” United States v. Benkahla, 530 F.3d 300, 312 (4th
Cir. 2008).
Fourth, both Wright and Standberry argue that the district court improperly applied
a four-level enhancement for abduction under the Sentencing Guidelines. See U.S.
Sentencing Guidelines Manual § 2B3.1(b)(4)(A) (2018). The Government bears the
burden to prove by a preponderance of the evidence that a sentencing enhancement applies.
United States v. Steffen, 741 F.3d 411, 414 (4th Cir. 2013). “In assessing whether a
sentencing court properly applied the Guidelines, we review the court’s factual findings
for clear error and its legal conclusions de novo.” United States v. Osborne, 514 F.3d 377,
387 (4th Cir. 2008) (internal quotation marks omitted). Clear error occurs when we are
“left with the definite and firm conviction that a mistake has been committed.” United
States v. Harvey, 532 F.3d 326, 337 (4th Cir. 2008) (internal quotation marks omitted).
A victim is “abducted” if he is “forced to accompany an offender to a different
location.” USSG § 1B1.1 cmt. n.1(A). We have adopted a “flexible, case by case approach
to determining when movement to a different location has occurred,” Osborne, 514 F.3d
at 390 (internal quotation marks omitted). In addition, the Supreme Court has held that
accompaniment “must constitute movement that would normally be described as from one
place to another, even if only from one spot within a room or outdoors to a different one,”
but does not require movement across “large distances.” Whitfield v. United States, 574
5 U.S.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 16-4166
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSHUA N. WRIGHT,
Defendant - Appellant.
No. 16-4180
TRAMAINE STANDBERRY,
Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:15-cr-00102-HEH-1; 3:15-cr- 00102-HEH-2)
Submitted: September 1, 2020 Decided: September 2, 2020 Before AGEE and QUATTLEBAUM, Circuit Judges, and Thomas S. KLEEH, United States District Judge for the Northern District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
Mark Diamond, Richmond, Virginia; Joseph R. Winston, LAW OFFICES OF JOSEPH R. WINSTON, Richmond, Virginia, for Appellants. Dana J. Boente, United States Attorney, Richard D. Cooke, Stephen E. Anthony, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2 PER CURIAM:
Joshua Nathaniel Wright and Tramaine Tre’quan Standberry were convicted of
interference with commerce by robbery (“Hobbs Act robbery”), in violation of 18 U.S.C.
§ 1951 (2018), and brandishing a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(a)(ii) (2018). On appeal, Wright and Standberry *
contend (1) that Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c)(3)
(2018); (2) that the district court erred by instructing the jury that Hobbs Act robbery is a
crime of violence under § 924(c); (3) that the district court abused its discretion by finding
by a preponderance of the evidence that they had committed two robberies of which they
had not been convicted, and varying upwardly in each of their sentences to reflect that
conduct; (4) that the district court clearly erred by finding they had committed an abduction
within the meaning of the Sentencing Guidelines; (5) that the district court clearly erred in
refusing to grant Wright a sentence reduction for acceptance of responsibility; and (6) that
Wright’s 276-month upward variant sentence is substantively unreasonable. For the
following reasons, we affirm.
Wright and Standberry first argue that Hobbs Act robbery is not a crime of violence
under 18 U.S.C. § 924(c)(3) and thus cannot serve as a predicate offense for their 18 U.S.C.
§ 924(c)(1)(A) convictions. This argument is foreclosed by our decision in United States
v. Mathis, 932 F.3d 242, 266 (4th Cir. 2019).
* We deny Standberry’s motion to file a pro se supplemental brief.
3 Wright and Standberry next argue that the district court erred by instructing the jury
that Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c)(3). “We review a
district court’s decision to give a particular jury instruction for abuse of discretion” and
“whether a jury instruction incorrectly stated the law de novo.” United States v. Miltier,
882 F.3d 81, 89 (4th Cir.), cert. denied, 139 S. Ct. 130 (2018). We “must determine
whether the instructions construed as a whole, and in light of the whole record, adequately
informed the jury of the controlling legal principles without misleading or confusing the
jury to the prejudice of the objecting party.” Id. at 89 (internal quotation marks omitted).
We have reviewed the record and the relevant legal authorities and conclude the district
court did not abuse its discretion in instructing the jury.
Third, both Wright and Standberry argue the district court erred by varying
upwardly to account for robberies of which the jury had acquitted them or for which they
had not been charged. A sentencing court is free to consider acquitted or uncharged
conduct in calculating a defendant’s Guidelines range. See United States v. Lawing, 703
F.3d 229, 241 (4th Cir. 2012). Acknowledging this fact, Wright and Standberry argue that
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), the sentencing court can only
consider such conduct under a reasonable doubt standard, rather than under the
preponderance standard established in Lawing, or must at least use a higher standard of
proof when imposing a significant upward variance. However, we have continually held
that “a sentencing court may consider uncharged and acquitted conduct in determining a
sentence, as long as that conduct is proven by a preponderance of the evidence.” United
States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009); see also United States v. Slager, 912
4 F.3d 224, 233 (4th Cir.) (“When sentencing courts engage in fact finding, preponderance
of the evidence is the appropriate standard of proof.” (internal quotation marks omitted)),
cert. denied, 139 S. Ct. 2679 (2019). Accordingly, we conclude that “[t]his argument is
too creative for the law as it stands.” United States v. Benkahla, 530 F.3d 300, 312 (4th
Cir. 2008).
Fourth, both Wright and Standberry argue that the district court improperly applied
a four-level enhancement for abduction under the Sentencing Guidelines. See U.S.
Sentencing Guidelines Manual § 2B3.1(b)(4)(A) (2018). The Government bears the
burden to prove by a preponderance of the evidence that a sentencing enhancement applies.
United States v. Steffen, 741 F.3d 411, 414 (4th Cir. 2013). “In assessing whether a
sentencing court properly applied the Guidelines, we review the court’s factual findings
for clear error and its legal conclusions de novo.” United States v. Osborne, 514 F.3d 377,
387 (4th Cir. 2008) (internal quotation marks omitted). Clear error occurs when we are
“left with the definite and firm conviction that a mistake has been committed.” United
States v. Harvey, 532 F.3d 326, 337 (4th Cir. 2008) (internal quotation marks omitted).
A victim is “abducted” if he is “forced to accompany an offender to a different
location.” USSG § 1B1.1 cmt. n.1(A). We have adopted a “flexible, case by case approach
to determining when movement to a different location has occurred,” Osborne, 514 F.3d
at 390 (internal quotation marks omitted). In addition, the Supreme Court has held that
accompaniment “must constitute movement that would normally be described as from one
place to another, even if only from one spot within a room or outdoors to a different one,”
but does not require movement across “large distances.” Whitfield v. United States, 574
5 U.S. 265, 268 (2015); see also Osborne, 514 F.3d at 388 (explaining that “movement
within the confines of a single building can constitute movement to a different location”
(internal quotation marks omitted)). “[E]ven a temporary abduction can constitute an
abduction for purposes of the [S]entencing [G]uidelines.” United States v. Nale, 101 F.3d
1000, 1003 (4th Cir. 1996). We have reviewed the record and relevant legal authorities
and conclude the district court did not clearly err in finding that Wright and Standberry
abducted the store employees within the meaning of the Sentencing Guidelines.
Fifth, Wright challenges the district court’s decision not to grant him a two-level
reduction for acceptance of responsibility. “We review a district court’s decision
concerning an acceptance-of-responsibility adjustment for clear error” and accord “great
deference to the district court's decision because the sentencing judge is in a unique position
to evaluate a defendant's acceptance of responsibility.” United States v. Dugger, 485 F.3d
236, 239 (4th Cir. 2007) (brackets and internal quotation marks omitted); see USSG
§ 3E1.1 cmt. n.5 (same). To qualify for the two-level acceptance of responsibility
reduction, “a defendant must prove to the court by a preponderance of the evidence that he
has clearly recognized and affirmatively accepted personal responsibility for his criminal
conduct.” United States v. Bolton, 858 F.3d 905, 914 (4th Cir. 2017) (internal quotation
marks omitted). “This adjustment is not intended to apply to a defendant who puts the
government to its burden of proof at trial by denying the essential factual elements of guilt,
is convicted, and only then admits guilt and expresses remorse.” USSG § 3E1.1, cmt. n.2.
However, “[i]n rare situations,” including “where a defendant goes to trial to assert and
preserve issues that do not relate to factual guilt,” such as a “constitutional challenge to
6 statute,” the “defendant may clearly demonstrate an acceptance of responsibility for his
criminal conduct.” Id. We have reviewed the record on this point and conclude that the
district court did not clearly err in finding Wright had not clearly accepted responsibility
for the robbery for which he was convicted.
Finally, Wright argues his sentence is unreasonable because it is longer than he
would have received had the court applied a career offender enhancement under the
Guidelines. We review criminal sentences for reasonableness “under a deferential abuse-
of-discretion standard.” United States v. Lynn, 912 F.3d 212, 216 (4th Cir.) (internal
quotation marks omitted), cert. denied, 140 S. Ct. 86 (2019). In evaluating a sentencing
court’s calculation of the advisory Guidelines range, “[w]e review the district court’s
factual findings for clear error and legal conclusions de novo.” United States v. White, 850
F.3d 667, 674 (4th Cir.), cert. denied, 137 S. Ct. 2252 (2017). We have reviewed the record
on this point and find that Wright’s sentence is procedurally and substantively reasonable.
Accordingly, we affirm the judgments of the district court. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED