United States v. Sexton ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4174
MARVIN EUGENE SEXTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert J. Staker, Senior District Judge.
(CR-96-30)
Submitted: April 21, 1998
Decided: May 5, 1998
Before HAMILTON and WILLIAMS, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Sean Eskovitz, WILLIAMS & CONNOLLY, Washington, D.C., for
Appellant. Rebecca A. Betts, United States Attorney, Ray M. Shep-
ard, Assistant United States Attorney, Huntington, West Virginia, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Marvin Eugene Sexton pled guilty to being an accessory after the
fact in a bank robbery, see 18 U.S.C. § 3 (1994), and was sentenced
to a term of fifty-seven months imprisonment. Sexton appeals his sen-
tence, alleging that the district court plainly erred in enhancing his
sentence under USSG § 2B3.1* for an offense involving a theft
exceeding $10,000, discharge of a firearm, and bodily injury to a vic-
tim. Sexton further contends that his attorney was ineffective in fail-
ing to object to the enhancements and he has moved to strike portions
of the government's sealed brief on the ground that it refers to materi-
als not presented to the district court. He has also moved for expe-
dited oral argument, and for leave to file a supplemental appendix.
For the reasons explained below, we affirm Sexton's sentence. We
deny his motion to strike a portion of the government's brief, but
grant leave to file the supplemental appendix. We deny the motion to
expedite oral argument as moot.
On November 13, 1995, Sexton helped Charles Waldo, Jr., hot-
wire a Ford Ranger pickup truck which was parked in a supermarket
parking lot in Huntington, West Virginia. Sexton then drove the truck,
with Waldo following in his van, to a restaurant. Waldo parked the
van behind the restaurant, joined Sexton in the truck, and instructed
him to drive to a mall. While Sexton waited in the truck, Waldo
entered the mall and robbed a bank of over $27,000. He then returned
to the truck and Sexton drove away. A deputy sheriff spotted the
truck, which had been reported stolen, and followed it into a Taco
Bell parking lot. When Sexton noticed the deputy's vehicle, he
changed direction and attempted to leave the parking lot. A police
officer responding to a call for assistance blocked Sexton's way, but
Sexton drove the truck around the police car while Waldo began fir-
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*U.S. Sentencing Guidelines Manual (1995).
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ing at the officer from the passenger window. A chase ensued, during
which Waldo continued firing at the police car. One of his shots shat-
tered the windshield of the deputy's car. The deputy received minor
cuts on his face and scratches on the corneas of both eyes. Sexton
finally pulled off the road and he and Waldo fled. Waldo was cap-
tured immediately. Sexton was picked up later but released because
Waldo had not identified him as the accomplice. In January 1996,
Sexton was identified as the driver of the truck, a fact Waldo then
confirmed. Sexton later pled guilty to being an accessory after the fact
to the bank robbery.
In calculating Sexton's sentence, the probation officer applied
USSG § 2X3.1 (Accessory After the Fact). This guideline calls for
use of the guideline for the underlying offense, reduced by six levels,
and enhancements for any specific offense characteristics "that were
known, or reasonably should have been known, by the defendant."
USSG § 2X3.1, comment. (n.1). Accordingly, the probation officer
applied USSG § 2B3.1 (Robbery). He recommended a seven-level
enhancement for discharge of a firearm, see USSG § 2B3.1(b)(2)(A),
a two-level enhancement for bodily injury to a victim under subsec-
tion (b)(3)(A), and a one-level enhancement for a loss over $10,000
under subsection (b)(6)(A). Sexton made no objection to the presen-
tence report. However, the district court found that he had obstructed
justice and added another two offense levels. See USSG § 3C1.1. Sex-
ton was sentenced to a term of fifty-seven months, the low end of the
guideline range.
On appeal, Sexton first argues that the district court plainly erred
in making the three enhancements under USSG § 2B3.1 without (1)
finding that Sexton knew or reasonably should have known how
much money Waldo had stolen, knew or should have known that
Waldo was armed or that Waldo would injure anyone, and (2) receiv-
ing evidence to support the enhancements. Because Sexton failed to
contest the enhancements at sentencing, we review for plain error. See
Fed. R. Crim. P. 52(b); United States v. Olano , 507 U.S. 725, 731-32
(1993). Sexton must show that an error occurred, that the error was
plain, and that the error affected his substantial rights. See Olano, 507
U.S. at 732; United States v. Hastings, 134 F.3d 235, 239 (4th Cir.
1998). Moreover, even if he makes the required showing, we should
not exercise our discretion to correct the error unless it "`seriously
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affect[s] the fairness, integrity or public reputation of judicial pro-
ceedings.'" Olano, 507 U.S. at 732 (quoting United States v. Young,
470 U.S. 1, 15 (1985)).
Here, the alleged error is a failure to make factual findings con-
cerning enhancements which were undisputed at sentencing. Ques-
tions of fact which could have been resolved by the district court had
objection been made at sentencing can never constitute plain error.
See United States v. Vital, 68 F.3d 114, 119 (5th Cir. 1995). A finding
of plain error in this case would necessitate resolution of a factual
issue which is not plain or obvious. Factual determinations are not the
province of the appeals court. Consequently, we find that the district
court did not plainly err in accepting the undisputed recommendations
in the presentence report.
Sexton claims that his attorney was ineffective in not objecting to
the enhancements. In response, the government has suggested possi-
ble explanations for the attorney's failure to object. It is well estab-
lished, however, that a claim of ineffective assistance of counsel
should be raised in a motion under 28 U.S.C.A. § 2255 (West 1994
& Supp. 1998), in the district court and not on direct appeal, unless
it "conclusively appears" from the record that the attorney did not pro-
vide effective representation. United States v. DeFusco, 949 F.2d 114,
120-21 (4th Cir. 1991). Because the record does not establish conclu-
sively that Sexton received ineffective assistance, we will not address
the issue.
Accordingly, we affirm the sentence imposed. We deny Sexton's
motion to strike portions of the government's sealed brief, but grant
his motion to file a supplemental appendix. The motion to expedite
oral argument is denied as moot. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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