US v. James Morrow

Filing 920090427

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4429

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)

Submitted:

March 18, 2009

Decided:

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

imprisonment,

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

parties,

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

conviction[.]" (2007).

Sentencing

Guidelines

Manual

§ 3C1.1

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

investigation

or

prosecution

of

the

offense

of

conviction."

USSG § 3C1.1, comment (n.1). meaning of § 3C1.1

Obstructive conduct within the but is not limited to,

includes,

"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

explicitly

these

findings.

argues

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

misunderstood

his

behavior.

In

the

presentence

report,

the

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

based

officer's recommendation, the district court implicitly adopted the findings in the presentence report responsive to the

objection. reference

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

preponderance

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

essentially

because

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.

AFFIRMED 4