US v. James Morrow
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff Appellee, v. JAMES WEBSTER MORROW, Defendant Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:07-cr-00336FL-1)
March 18, 2009
April 27, 2009
Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Banumathi Rangarajan, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: James Webster Morrow pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924 (2006). In sentencing Morrow, the district
court overruled his objection to a two-level enhancement for obstruction of justice and adopted the presentence report
without change. months'
The district court sentenced Morrow to seventy which fell within Morrow's advisory
guidelines range. that the district
Morrow timely noted his appeal and argues court erred in enhancing his sentence for
obstruction of justice. arguments of the
After considering the record and the we reject Morrow's arguments and
affirm the judgment of the district court. The sentencing guidelines provide for a two-level
enhancement if a "defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and . . . the obstructive conduct related to U.S. . . . the defendant's offense of
Obstructive conduct that occurs prior to the start of the investigation of the offense may be covered "if the conduct was purposefully calculated, 2 and likely, to thwart the
USSG § 3C1.1, comment (n.1). meaning of § 3C1.1
Obstructive conduct within the but is not limited to,
"threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror" and "threatening the victim of the offense in an attempt to prevent the victim from
reporting the conduct constituting the offense of conviction." USSG § 3C1.1, comment (n.4(a), (k)). Morrow argues that Application Note 1 to § 3C1.1
required the district court to find that his conduct both "was purposefully calculated" and "likely" to thwart the
investigation or prosecution of his offense of conviction in order to enhance his sentence for obstruction of justice, and that the district state court misapplied § 3C1.1 Morrow by failing that to this
failure by the district court was an error of law requiring de novo review by this court as opposed to review for clear error. See United States v. Kiulin, 360 F.3d 456, 460 (4th Cir. 2004); United States v. Williams, 152 F.3d 294, 302 (4th Cir. 1998). Morrow never challenged the findings in the
presentence report that he threatened to kill a witness and the witness' girlfriend if they reported to the police that Morrow had a firearm. intentionally Rather, Morrow simply claimed that he did not threaten the witness 3 and that the witness
probation officer, in response to Morrow's objection, referenced the examples of obstructive conduct in Application Notes 4(a) and 4(k) to § 3C1.1 and reiterated the facts from Morrow's
offense that fell within these examples. objection to the presentence report
By overruling Morrow's on the probation
officer's recommendation, the district court implicitly adopted the findings in the presentence report responsive to the
Williams, 152 F.3d at 301. the text of an Application
The court need not Note in making those
findings, and Morrow's first claim, therefore, is without merit. Morrow insufficient next argues to prove that by a the record contains of the
evidence that he purposefully calculated any threat in order to thwart the investigation claims that of the all instant of his offense. conduct Morrow was not
obstructive, none of his conduct was.
Our review of the record
leads us to conclude that this claim is without merit. Accordingly, we affirm the judgment of the district court. We dispense with oral argument as the facts and legal
contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
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