US v. Arthur Vick

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for abeyance (Local Rule 12(d)) [999062408-2] Originating case number: 5:11-cr-00352-BR-1 Copies to all parties and the district court/agency. [999134005]. [12-4646]

Appeal: 12-4646

Doc: 47

Filed: 06/20/2013

Pg: 1 of 6

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4646

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ARTHUR TRACY VICK,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
W. Earl Britt, Senior
District Judge. (5:11-cr-00352-BR-1)

Submitted:

May 30, 2013

Decided:

June 20, 2013

Before NIEMEYER, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Harold M. Vaught, Norwalk, California, for Appellant. Jennifer
P. May-Parker, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 12-4646

Doc: 47

Filed: 06/20/2013

Pg: 2 of 6

PER CURIAM:
Arthur Tracy Vick pled guilty, pursuant to a written
plea agreement, to one count of conspiracy to commit Hobbs Act
robbery in violation of 18 U.S.C. § 1951 (2006).

On appeal,

counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that there are no meritorious issues
for

appeal

but

questioning

Vick’s sentence.
alleging

that

the

district

review

deferential
States,

a

court

U.S.

reasonableness

of

38,

erred

when

it

applied

a

“under

a

Finding no error, we affirm. *
sentence

abuse-of-discretion

552

procedural

Vick has filed a pro se supplemental brief

sentencing enhancement.
We

the

41,

for

reasonableness

standard.”

51

(2007).

Gall

This

v.

review

United
entails

appellate consideration of both the procedural and substantive
reasonableness of the sentence.
procedural

reasonableness,

court

properly

range,

gave

appropriate

calculated

the

consider

In determining

whether

the

defendant’s

an

opportunity

considered

the

parties

sentence,

we

Id. at 51.

18

the

advisory
to

district
Guidelines

argue

U.S.C.

for

an

§ 3553(a)

factors, selected a sentence based on clearly erroneous facts,
and sufficiently explained the selected sentence.
*

Id. at 49-51.

We deny Vick’s motion to place this appeal in abeyance
pending the Supreme Court’s decision in No. 11-9335, Alleyne v.
United States.

2

Appeal: 12-4646

Doc: 47

Filed: 06/20/2013

First,
application
firearm.

of

Vick
a

“The

Pg: 3 of 6

challenges

sentencing

[G]overnment

the

enhancement
bears

the

district
for

court’s

possession

burden

of

of

proving

a

the

facts necessary to establish the applicability of [a sentencing]
enhancement
States

v.

by

the

Garnett,

preponderance
243

F.3d

of

824,

the

828

evidence.”

(4th

Cir.

United

2001).

We

“review factual findings for clear error, and legal conclusions
de novo.”
2012).

United States v. Davis, 679 F.3d 177, 182 (4th Cir.

Clear error occurs when the court “is left with the

definite and firm conviction that a mistake has been committed.”
United

States

v.

Harvey,

532

F.3d

326,

336

(4th

Cir.

2008)

(internal quotation marks omitted).
Vick contends that the district court erred because
there was no evidence that he knew a firearm was present during
the planned robbery.

In the event that a defendant is charged

with jointly undertaken criminal activity, such as a conspiracy,
United
(2011)

States

Sentencing

directs

the

Guidelines

district

(USSG)

court

to

§ 1B1.3(a)(1)(B)
apply

offense

characteristics on the basis of “all reasonably foreseeable acts
and omissions of others in furtherance of the jointly undertaken
criminal activity.”

Upon review of the record, we conclude that

it was reasonably foreseeable to Vick that a firearm would be
used to carry out the robbery and therefore the district court
did not err.
3

Appeal: 12-4646

Doc: 47

Filed: 06/20/2013

Vick
determination
reasonably
firearm

also
that

argues
use

foreseeable

charge

had

that

of

a

when

been

Pg: 4 of 6

the

district

firearm
the

substantive

dismissed,

Jersey, 530 U.S. 466 (2000).

during

violated

court’s
the

factual

robbery

possession
Apprendi

was

of

v.

a

New

We conclude that this contention

is without merit because the district court’s fact finding did
not

expose

Vick

to

a

sentence

greater

than

the

statutory

maximum.
Next, Vick contends that the district court erred when
it refused to apply a sentencing adjustment reflecting his minor
role in the offense.

Whether the court should decrease the

defendant’s offense level for a mitigating role in the offense
is

governed

by

USSG

§ 3B1.2.

The

adjustment

applies

to

a

defendant who is “substantially less culpable than the average
participant,”
minimal.”

“but

USSG

§

whose

role

3B1.2(b),

could

cmt.

not

n.3(A)

&

be

described

n.5.

While

as
the

determination whether the defendant played a minor role hinges
in

part

on

a

comparison

of

his

conduct

with

that

of

his

co-defendants, the “critical inquiry is . . . not just whether
the defendant has done fewer bad acts than his co-defendants,
but whether the defendant’s conduct is material or essential to
committing the offense.”
646

(4th

Cir.

2001)

United States v. Pratt, 239 F.3d 640,
(noting

that

court

must

measure

the

defendant’s individual acts and relative culpability against the
4

Appeal: 12-4646

Doc: 47

Filed: 06/20/2013

Pg: 5 of 6

elements of the offense) (citations omitted).

The defendant has

the burden of showing by a preponderance of the evidence that he
played a minor role in the offense.

United States v. Akinkoye,

185 F.3d 192, 202 (4th Cir. 1999).

Upon review of the record,

we conclude that the district court did not err.
Lastly, Vick argues that the district court should not
have granted the Government’s motion for an upward departure on
the basis that his criminal history category understated his
actual criminal history.

A district court may depart upward

from the applicable Guidelines range if “reliable information
indicates

that

substantially
defendant’s

the

defendant’s

under-represents
criminal

history

criminal
the

or

category

seriousness

the

defendant will commit other crimes.”

history

of

the

likelihood

that

the

USSG § 4A1.3(a)(1), p.s.;

see United States v. Whorley, 550 F.3d 326, 341 (4th Cir. 2008)
(noting that an under-representative criminal history category
is an encouraged basis for departure).
departure

sentence

is

appropriate

in

To determine whether a
such

circumstances,

the

Guidelines state that a court may consider prior sentences not
used in the criminal history calculation, prior sentences of
“substantially

more

than

one

year”

for

independent

crimes

committed at different times, prior similar misconduct resolved
by civil or administrative adjudication, charges pending at the
time of the offense, or prior, similar conduct that did not
5

Appeal: 12-4646

Doc: 47

Filed: 06/20/2013

result in a conviction.

Pg: 6 of 6

USSG § 4A1.3(a)(2), p.s.

We conclude

that the district court had sufficient grounds to warrant the
upward departure.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment.

This court

requires that counsel inform Vick, in writing, of the right to
petition

the

Supreme

Court

of

the

United

States

for

further

review.

If Vick requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel
may

move

in

representation.

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Vick.
Accordingly,

we

dispense

with

oral

argument

because

the facts and legal contentions are adequately presented in the
material

before

this

court

and

argument

will

not

aid

the

decisional process.

AFFIRMED

6