US v. Henry Hayes, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:12-cr-00177-CCE-1 Copies to all parties and the district court/agency. [999207775].. [13-4135]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4135

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HENRY MORRIS HAYES, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:12-cr-00177-CCE-1)

Submitted:

September 13, 2013

Decided:

October 3, 2013

Before AGEE, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jorgelina E. Araneda, ARANEDA LAW FIRM, P.C., Raleigh, North
Carolina, for Appellant.
Ripley Rand, United States Attorney,
Frank
J.
Chut,
Jr.,
Assistant
United
States
Attorney,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Henry

Morris

Hayes

pled

guilty

to

two

counts

of

embezzlement by a bank officer, in violation of 18 U.S.C. § 656
(2006), and was sentenced to twenty-seven months in prison.
appeal, Hayes argues that the district court erred by:

On
(1)

enhancing his offense level two levels under U.S. Sentencing
Guidelines Manual (“USSG”) § 3B1.3 (2011), because the district
court determined that Hayes abused a position of trust; and (2)
refusing to grant him a downward departure sentence based on his
alleged

“extraordinary

acceptance

of

responsibility.”

We

affirm.
We

find

no

clear

error

in

the

district

court’s

decision to enhance Hayes’ offense level under USSG § 3B1.3.
See United States v. Ebersole, 411 F.3d 517, 535-36 (4th Cir.
2005) (providing standard).

Rather, the record reveals that

Hayes’ business banker position aided his crimes and provided
him with authority beyond “an ordinary bank teller.”

USSG §

3B1.3 cmt. n.1 (2011).
Moreover, we decline to review the district court’s
denial of Hayes’ motion for a downward departure because the
district court gave no indication that it did not understand its
authority to depart downward.

See United States v. Brewer, 520

F.3d 367, 371 (4th Cir. 2008) (“We lack the authority to review
a sentencing court’s denial of a downward departure unless the
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court failed to understand its authority to do so.”).
the

district

court

explicitly

acknowledged

the

In fact,

reasons

Hayes

believed he was entitled to a departure sentence and, although
the district court stated it took these reasons into account, it
explained

that

it

believed

a

sentence

at

the

top

of

Hayes’

Guidelines range was more appropriate because of the nature and
circumstances
clearly

of

the

understood

offense.
its

Because

authority

to

the

district

court

depart

from

Hayes’

Guidelines range, but nonetheless rejected Hayes’ request that
it impose a lesser sentence, we will not disturb the district
court’s refusal to impose a departure sentence.
Accordingly, we affirm the district court’s judgment.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED

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