US v. James McGowan
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:13-cr-00905-TMC-1 Copies to all parties and the district court/agency. [999700180].. [15-4134]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4134
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES MCGOWAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Timothy M. Cain, District Judge.
(6:13-cr-00905-TMC-1)
Submitted:
October 29, 2015
Decided:
November 17, 2015
Before DUNCAN, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher R. Antley, DEVLIN & PARKINSON, P.A., Greenville,
South Carolina, for Appellant. Carrie Fisher Sherard, Assistant
United
States
Attorney,
Greenville,
South
Carolina,
for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
James McGowan appeals from his convictions and 192-month
sentence following a jury trial.
The jury found him guilty of
armed bank robbery, conspiracy to use a firearm in furtherance
of a crime of violence, and brandishing a firearm during a crime
of violence.
pursuant
On appeal, McGowan’s counsel has filed a brief
to
Anders
v.
California,
386
U.S.
738
(1967),
concluding that there are no meritorious issues for appeal but
questioning whether the district court should have dismissed the
superseding
indictment
was erroneous.
and
whether
the
leadership
enhancement
The Government has declined to file a brief.
McGowan has filed a pro se supplemental brief, raising several
additional issues.
After careful consideration of the entire
record, we affirm.
I.
McGowan first contends that that both of his indictments
were improper because the Government misrepresented facts to the
grand jury.
However, by failing to challenge the indictment in
the district court in a timely manner under Fed. R. Crim. P.
12(b)(3), McGowan has waived his right to raise these issues on
appeal.
See United States v. Vernon, 723 F.3d 1234, 1261 (11th
Cir. 2013) (holding that, absent good cause, untimely challenge
to indictment is waived).
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II.
McGowan next contends that the district court plainly erred
in
admitting
a
firearm
expert’s
testimony
regarding
his
determination that the item one of the robbers is holding in the
bank video pictures was possibly a firearm.
However, McGowan
failed to object to the testimony below, and thus, as counsel
concedes, this claim is reviewed for plain error.
We conclude
that the testimony of other witnesses that one or both of the
robbers carried a firearm rendered any error in the expert’s
identification harmless.
III.
McGowan
enhanced
next
avers
under
U.S.
§ 2B3.1(b)(4)(B) (2013).
two-offense-level
that
to
facilitate
escape.”
sentence
Sentencing
was
improperly
Guidelines
Manual
Section 2B1.3(b)(4)(B) provides for a
increase
restrained
his
facilitate
The
when
any
commission
term
person
of
the
“physically
“was
physically
offense
or
to
restrained,”
is
defined in Application Note 1(K) to § 1B1.1 as “the forcible
restraint of the victim such as by being tied, bound, or locked
up,” whereas the background commentary to § 2B3.1 states more
definitely
that
the
physically
restrained
enhancement
by
being
applies
tied,
when
bound,
a
victim
“was
or
locked
up.”
However, the § 1B1.1 definition is not limited to the examples
given.
See United States v. Stokley, 881 F.2d 114, 116 (4th
3
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Cir. 1989).
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In fact, we view the enhancement “broadly, applying
it when the defendant points the gun at the victim, thereby
restricting
the
victim’s
movements
and
ensuring
compliance with the desires of the defendant.”
the
victim’s
United States v.
Dimache, 665 F.3d 603, 606-07 (4th Cir. 2011).
Here, the robbers pushed a bank teller down towards the
floor and grabbed a customer and told her to “get down” in front
of the counter.
one
gun
and
In addition, the robbers brandished at least
threatened
to
shoot,
essentially
restraining
everyone in the bank from leaving or preventing them from taking
other
action.
Accordingly,
this
enhancement
was
properly
applied.
IV.
McGowan challenges the district court’s two-offense-level
enhancement under USSG § 3C1.1 for being an “organizer” of the
criminal
activity.
Our
review
of
the
district
court’s
assessment of a leadership role enhancement is for clear error.
See United States v. Thorson, 633 F.3d 312, 317 (4th Cir. 2011).
The
Guidelines
defendant
supervisor
is
in
participants.
provide
found
a
to
for
be
a
an
conspiracy
USSG
§
two-level
organizer,
that
3B1.1(c).
adjustment
leader,
involves
In
less
determining
where
the
manager,
than
whether
or
five
the
defendant exercised control over at least one other participant,
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see United States v. Rashwan, 328 F.3d 160, 166 (4th Cir. 2003),
the court should consider:
the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.
USSG § 3B1.1(c) cmt. n.4.
The district court found an accomplice’s testimony to be
credible, and that witness stated at trial that, at several key
points during the crime, he followed McGowan’s directions and
decisions.
Moreover, McGowan was the point of contact for the
two others involved in the crime and the glue holding the three
together.
district
On the basis of this evidence, we conclude that the
court
did
not
commit
clear
error
in
imposing
the
leadership enhancement.
V.
Finally, McGowan claims that the Government improperly had
various investigators do separate analyses on the cell phones
involved.
McGowan also asserts that one witness testified to
preparing a map that he did not prepare.
provided
different
no
or
specifics
how
the
as
to
how
multiple
the
However, McGowan has
analyses
investigators
or
maps
prejudiced
are
him.
Moreover, the reports and maps were not objected to at trial.
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Accordingly, we conclude that McGowan suffered no prejudice from
any error.
VI.
In
accordance
with
Anders,
we
have
reviewed
the
entire
record in this case for meritorious issues and have found none.
Accordingly, we affirm McGowan’s convictions and sentence.
This
court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further
filed,
review.
but
If
counsel
the
client
believes
requests
that
such
that
a
a
petition
petition
would
be
be
frivolous, then counsel may move in this court for leave to
withdraw from representation.
Counsel’s motion must state that
a copy thereof was served on the client.
AFFIRMED
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