United States v. Lovin , 395 F. App'x 12 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4604
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVEN RAY LOVIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (7:06-cr-00045-BO-3)
Argued: March 25, 2010 Decided: September 8, 2010
Before TRAXLER, Chief Judge, and GREGORY and SHEDD, Circuit
Judges.
Affirmed by unpublished opinion. Chief Judge Traxler wrote the
majority opinion, in which Judge Gregory joined. Judge Shedd
wrote a dissenting opinion.
ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina, for Appellant. Anne
Margaret Hayes, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee. ON BRIEF: George E. B. Holding,
United States Attorney, Banumathi Rangarajan, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
TRAXLER, Chief Judge:
Steven Lovin pleaded guilty to a RICO conspiracy charge,
see 18 U.S.C.A. § 1962(d) (West 2000), and a charge of
conspiring to commit an offense against the United States, see
18 U.S.C.A. § 371 (West 2000), and was sentenced to 144 months’
imprisonment. Lovin appeals, challenging the sentence imposed
by the district court. We find no reversible error and
accordingly affirm the sentence. 1
I.
A joint federal and state investigation (known as
“Operation Tarnished Badge”) uncovered widespread corruption and
criminal conduct among members of the Sheriff’s Office of
Robeson County, North Carolina, who conspired to use their
positions as law enforcement officers for personal financial
gain and to increase their power and influence within the
department and the community. The criminal acts engaged in by
the members of the conspiracy included arson, assault,
extortion, and unlawful searches and seizures.
1
Shortly before oral argument was held in this case, the
government filed an unopposed motion to remove the case from the
argument calendar and to remand to the district court for re-
sentencing. We previously denied that portion of the motion
seeking to remove the case from the oral argument calendar, and
we now deny the motion to remand.
3
As a result of the investigation, Appellant Steve Lovin, a
detective in the Sheriff’s Office, entered into a plea agreement
under which he pleaded guilty to the RICO conspiracy charge and
the charge of conspiring to defraud the United States. The
charges were based, inter alia, on actions that Lovin and his
partner and co-defendant James Hunt took while conducting
traffic stops on Interstate 95. Lovin and Hunt used racial
profiling to target Hispanics they believed might be
transporting illegal drugs and currency, and they skimmed off
for themselves a portion of the currency seized during these
stops. 2 Over the course of six traffic stops, Lovin and Hunt
kept $150,000 for themselves. At the time of his plea, Lovin
had $40,000 hidden in a secret compartment he had installed in
his house.
Lovin’s advisory sentencing range as calculated by the
district court was 70-87 months’ imprisonment. The district
court varied upward and sentenced Lovin to 144 months on the
RICO conspiracy charge and a concurrent 60 months on the § 371
charge. Lovin appealed, challenging the district court’s
2
Under the Department of Justice’s Equitable Sharing
Program, the federal government may share the funds seized in
drug cases with the local law enforcement agency that seized the
funds. See 21 U.S.C.A. § 881(e)(1)(A) (West 1999 & Supp. 2010);
In re U.S. Currency, $844,520.00, 136 F.3d 581, 583 (8th Cir.
1998) (per curiam).
4
calculation of the Guidelines sentencing range and the
reasonableness of the sentence imposed by the district court.
In its brief to this court, the government contended that the
appeal waiver contained in Lovin’s plea agreement barred all of
the issues raised by Lovin save his challenge to the
reasonableness of the 144-month sentence.
Shortly before oral argument was scheduled to take place,
the government filed an unopposed motion to remove the case from
the argument calendar and to vacate and remand for resentencing.
The government argued that under recent case law from this
court, it was clear that the sentence was procedurally
unreasonable because the district court failed to sufficiently
explain its decision to vary so significantly from the
Guidelines’ advisory sentencing range. The government therefore
requested that this court vacate the sentence and remand for a
full resentencing. We denied the motion to remove the case from
the oral argument calendar and heard argument as originally
scheduled.
The government’s concession of error “does not end our
inquiry, . . . as we are not at liberty to vacate and remand for
resentencing on the Government’s concession of error alone.”
United States v. Rodriguez, 433 F.3d 411, 414 n.6 (4th Cir.
2006); accord United States v. Robinson, 460 F.3d 550, 558 n.7
(4th Cir. 2006) (“Our judicial obligations compel us to examine
5
independently the errors confessed.” (internal quotation marks
and alteration omitted)). After reviewing the briefs and the
transcript of the proceedings below and considering the
arguments of the parties, we find no error in the sentencing and
we therefore affirm. 3
II.
Lovin raises several challenges to the district court’s
calculation of his advisory Guidelines sentencing range and the
court’s ultimate determination of the appropriate sentence.
A.
Lovin first contends that the district court erred by
applying an obstruction-of-justice enhancement that was premised
3
At oral argument, the government explicitly waived its
prior reliance on the appeal waiver contained in Lovin’s plea
agreement, and this court does not sua sponte enforce such
waivers. See, e.g., United States v. Brock, 211 F.3d 88, 90 n.1
(4th Cir. 2000); United States v. Metzger, 3 F.3d 756, 757-58
(4th Cir. 1993). Moreover, the plea agreement permitted Lovin
“to appeal from a sentence in excess of the applicable advisory
Guideline range that is established at sentencing,” J.A. 145,
but did not expressly prohibit Lovin from challenging issues
“that relate to the establishment of the . . . Guideline range,”
United States v. Cohen, 459 F.3d 490, 493 (4th Cir. 2006).
Under these circumstances, we do not believe the plea agreement
forecloses Lovin’s challenges to the Guidelines calculations
underlying the district court’s sentence. See, e.g., United
States v. Harvey, 791 F.2d 294, 303 (4th Cir. 1986) (“Having
concluded that the disputed provision was ambiguous in the
respect found dispositive by the district court, we further
conclude that under the plea bargaining principles above stated
the provision must be read against the Government.”).
6
on Lovin’s pre-plea contacting of several witnesses in violation
of the terms of his pre-trial supervision. We find no error.
Under the Sentencing Guidelines, a two-level enhancement
for obstruction of justice may be applied if the 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.” U.S.S.G. § 3C1.1 (2007). “[T]hreatening,
intimidating, or otherwise unlawfully influencing a co-
defendant, witness, or juror, directly or indirectly, or
attempting to do so,” qualifies for the enhancement. Id. cmt.
n.4(a). When applying the enhancement, the district court
adopted the rulings and findings made at an earlier hearing in
which the government sought to revoke Lovin’s pre-trial
supervision based on Lovin’s contacts with the witnesses, and
the court also adopted the factual findings set out in the PSR
regarding the contacts.
The evidence presented at the earlier hearing established
that Lovin contacted various witnesses, but the evidence did not
establish that Lovin threatened, intimidated, or attempted to
influence those witnesses, as required by § 3C1.1. And at
sentencing, Lovin presented evidence showing that while he
contacted some potential witnesses (Michael Britt, Herman
Madden, and Mark Locklear), he did not attempt to improperly
7
influence them. Nonetheless, the facts set forth in the PSR
established that Lovin had contacted co-defendant Hunt and told
him “not to cooperate with investigators in the instant
offense,” J.A. 254, and that Lovin had likewise attempted to
influence the cooperation of Paul Locklear and James Dallas
Jacobs. Lovin did not object to those portions of the PSR, nor
did he present at sentencing any evidence countering those
factual determinations. Under these circumstances, the district
court’s adoption of those uncontroverted portions of the PSR
provides a sufficient factual basis to support the enhancement
for obstruction of justice. See Fed. R. Crim. P. 32(i)(3)(A)
(noting that sentencing court “may accept any undisputed portion
of the presentence report as a finding of fact”).
B.
Lovin also challenges the district court’s refusal to
reduce the offense level for Lovin’s acceptance of
responsibility. Again we find no error.
The Guidelines authorize an offense-level reduction for a
defendant who “clearly demonstrates acceptance of responsibility
for his offense.” U.S.S.G. § 3E1.1(a). Conduct that results in
an obstruction-of-justice enhancement, however, “ordinarily
indicates that the defendant has not accepted responsibility for
his criminal conduct.” Id. cmt. n.4 (emphasis added).
Nonetheless, in “extraordinary cases,” an acceptance-of-
8
responsibility reduction may be appropriate even in the face of
an obstruction-of-justice enhancement. Id. We have just
affirmed the district court’s application of an obstruction-of-
justice enhancement, and Lovin has not established that his is
an extraordinary case. Under these circumstances, we cannot say
the district court clearly erred in denying Lovin an acceptance-
of-responsibility adjustment. See United States v. Miller, 77
F.3d 71, 74 (4th Cir. 1996) (“The district court’s decision
whether to grant a two-level reduction for acceptance of
responsibility is a factual determination that we review for
clear error.”).
C.
Lovin also challenges the district court’s decision to
apply a four-level role-in-the-offense enhancement. See
U.S.S.G. § 3B1.1. We find no error.
The district court had before it at sentencing the PSR,
which recommended a three-level enhancement based on Lovin’s
alleged role as a manager or supervisor in the offense. See
U.S.S.G. § 3B1.1(b) (“If the defendant was a manager or
supervisor (but not an organizer or leader) and the criminal
activity involved five or more participants or was otherwise
extensive, increase by 3 levels.”). As support for the position
that Lovin was a manager or supervisor, the PSR relied on
information from Hunt and the investigators on the case. The
9
PSR stated: “According to Hunt, Lovin determined when and how
they would steal money from highway seizures. Lovin also
instructed Hunt how to spend the stolen money to conceal the
true source of the funds and to evade detection by other law
enforcement agencies.” J.A. 253. The PSR also stated that:
“According to investigators, Lovin directed the activities of
James Hunt by instructing and directing when and how they would
steal money from highway seizures.” J.A. 254.
Lovin objected to the role-in-the-offense enhancement. In
opposition to the information set out in the PSR, Lovin
submitted his own affidavit contradicting the PSR’s description
of his relationship with Hunt, and counsel for Lovin submitted
oral argument against any such enhancement. During these
discussions at the sentencing hearing, the district court
informed the parties that it was considering an enhancement of
four levels rather than three. See U.S.S.G. § 3B1.1(a) (“If the
defendant was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive,
increase by 4 levels.”). After some digression, the court
addressed the subject of Lovin’s role in the offense when
Lovin’s attorney informed the court that Lovin had nothing
further to present on the legal issue and the court stated that
an increase of four levels was proven to be appropriate.
10
On appeal, Lovin contends that the district court failed to
make the factual findings necessary to support the role-in-the-
offense enhancement. See Fed. R. Crim. P. 32(i)(3)(B)
(providing that at sentencing, the district court “must -- for
any disputed portion of the presentence report or other
controverted matter -- rule on the dispute or determine that a
ruling is unnecessary”); United States v. Llamas, 599 F.3d 381,
388 (4th Cir. 2010) (“[A] sentencing court must provide a
sufficient explanation of its rationale in making factual
findings to support its calculation of a defendant’s Guidelines
range.” (internal quotation marks omitted)). We disagree.
Although the court did not at the hearing articulate the
basis for its decision to apply the four-level enhancement, in
its formal written judgment the court indicated clearly that it
adopted the findings in the PSR with the addition of an extra
point because Lovin was an organizer or leader. Obviously
implicit in this acceptance of the information in the PSR was
the court’s decision to credit the information provided by Hunt
and the investigators over the affidavit of Lovin. Under these
circumstances, the court’s subsequent adoption of the PSR was a
proper means of resolving the disputed factual issues underlying
the § 3B1.1 enhancement. See United States v. Walker, 29 F.3d
908, 911 (4th Cir. 1994) (explaining that the district court may
satisfy its obligation to resolve sentencing disputes by
11
adopting the findings in the PSR: “Simply adopting the PSR’s
findings in toto is sufficient when the context of the ruling
makes clear that the district court intended by the adoption to
rule on each of the alleged factual inaccuracies.” (internal
quotation marks and alteration omitted)). The only remaining
question, then, is whether the facts set forth in the PSR and
accepted by the district court are sufficient to support the
four-level enhancement applied by the court.
To determine whether a defendant can be considered a leader
or organizer, 4 rather than merely a manager or supervisor subject
to a lesser enhancement, the Guidelines instruct sentencing
courts to 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.
U.S.S.G. § 3B1.1 cmt. n.4. The facts set forth in the PSR and
adopted by the district court -- that Lovin made the decisions
about when and how the money would be stolen, and that Lovin
4
The leader-organizer enhancement applies if the “criminal
activity . . . involved five or more participants or was
otherwise extensive.” U.S.S.G. § 3B1.1(a). Lovin does not
dispute that the criminal activity at issue here involved five
or more participants or was otherwise extensive.
12
instructed Hunt about how to conceal the source of the stolen
funds and evade detection -- reflect several of these factors,
showing that Lovin was the leader of this criminal activity.
With regard to the traffic stops, there was little left for Hunt
to do except follow Lovin’s instructions. After the thefts, it
was again Lovin who was telling Hunt what to do to avoid being
caught. While not all of the factors listed in the Guidelines
are present in this case, there is no such requirement in the
Guidelines, nor do the Guidelines demand, that any particular
weight be given to any particular factor. See, e.g., United
States v. Wasz, 450 F.3d 720, 729 (7th Cir. 2006) (“No one of
these factors is considered a prerequisite to the enhancement,
and, at the same time, the factors are not necessarily entitled
to equal weight.”).
The evidence set forth in the PSR permitted the district
court to conclude that Lovin bore the primary responsibility for
the operation of the traffic stops by controlling Hunt’s actions
with regard to these stops, and that Lovin’s greater culpability
warranted a leadership enhancement. See Llamas, 599 F.3d at 390(“[T]he aggravating role adjustment is appropriate where the
evidence demonstrates that the defendant controlled the
activities of other participants . . . .” (internal quotation
marks omitted)); United States v. Sierra, 188 F.3d 798, 804 (7th
Cir. 1999) (explaining that the Guideline factors “must be
13
weighed by the district court in light of the Guidelines’ intent
to punish with greater severity leaders and organizers of
criminal activity”); United States v. Moore, 29 F.3d 175, 179
(4th Cir. 1994) (“These roles in the offense provisions were
designed to permit sentencing judges to make individualized
distinctions among defendants engaged in a criminal
enterprise.”). The question of a defendant’s role in the
offense is an inherently factual one, and, given the facts of
this case, we cannot say that the district court clearly erred
by concluding that a four-level enhancement was warranted. See
United States v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009)
(“The court’s ruling regarding a role adjustment is a factual
determination reviewed for clear error.”).
D.
When imposing sentence, the district court must consider
the advisory Guideline range and the arguments of the parties in
light of the factors set forth in 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2010), and the court must select what it believes
to be the appropriate sentence based on an “individualized
assessment” of the facts of the case. Gall v. United States,
552 U.S. 38, 50 (2007). “Regardless of whether the district
court imposes an above, below, or within-Guidelines sentence, it
must place on the record an individualized assessment based on
the particular facts of the case before it.” United States v.
14
Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation
marks omitted).
Lovin contends that the district court failed to
sufficiently explain the reasoning behind the sentence it
selected, particularly given the extent of the variance between
advisory sentencing range of 70-87 months and the 144-month
sentence actually imposed by the district court. 5 See, e.g.,
Gall, 552 U.S. at 50 (“We find it uncontroversial that a major
departure should be supported by a more significant
justification than a minor one.”). We disagree.
The district court did not state in open court that it had
considered the § 3553(a) factors. Nonetheless, the statements
made by the district court during the sentencing hearing and the
“Statement of Reasons” filed along with the judgment of
conviction make it clear that the court did consider the §
3553(a) factors. And in its Statement of Reasons, the court
indicated that the above-Guidelines sentence was warranted by
consideration of four of the § 3553(a) factors -- the nature and
5
Lovin also contends that the district court erred by
failing to move incrementally through successively higher
offense levels when departing from the advisory Guideline range.
See U.S.S.G. § 4A1.3(a)(4)(B) (2007); United States v. Dalton,
477 F.3d 195, 199 (4th Cir. 2007). Because Lovin did not have a
category VI criminal history and the departure was not premised
on a determination that Lovin’s criminal history score under-
represented the seriousness of his history, § 4A1.3(a)(4)(B) and
Dalton are inapplicable, and Lovin’s challenge is without merit.
15
circumstances of the offense, see 18 U.S.C.A. § 3553(a)(1), the
need for the sentence to reflect the seriousness of the offense
and to promote respect for the law, see id. § 3553(a)(2)(A), the
need to provide adequate deterrence, see id. § 3553(a)(2)(B),
and the need to protect the public, see id. § 3553(a)(2)(C).
Although the district court did not address each individual
issue at the moment that it formally announced its sentence, the
statements made by the district court throughout the sentencing
hearing clearly revealed the basis for the court’s sentence.
The court repeatedly noted the seriousness of Lovin’s offenses,
and the court made it clear that it found Lovin’s crimes to be
particularly egregious because he used the power of his badge to
commit the crimes. See J.A. 201 (“[T]he entire police power of
the state has been corrupted and . . . used for criminal
purpose.”). The court noted that Lovin and Hunt preyed on those
who “had no voice” because they were in the country illegally,
J.A. 224, and the court rightly expressed its outrage that Lovin
had perjured himself in the trials of the victims of Lovin’s
cash-skimming scheme. The court’s statements clearly bear on
the § 3553(a) factors that the court believed required an above-
Guidelines sentence, and the statements reflect an
individualized assessment by the court of the particular facts
of Lovin’s case. If the district court had made these
statements contemporaneously with the court’s pronouncement of
16
sentence, there could be no doubt about the sufficiency of the
court’s explanation. See United States v. Engle, 592 F.3d 495,
500 (4th Cir. 2010) (“[T]he court’s explanation must . . . be
sufficient to satisfy the appellate court that the district
court has considered the parties’ arguments and has a reasoned
basis for exercising its own legal decisionmaking authority.”
(internal quotation marks and alterations omitted)). That the
statements were instead made throughout the course of the
hearing does not change that conclusion. Between the statements
made at the hearing and the conclusions reached in the formal
judgment, the reasons for the court’s sentence are quite clear.
Accordingly, we reject Lovin’s claim that the district court
failed to adequately explain the basis for the above-Guidelines
sentence that it imposed.
To the extent that Lovin’s brief can be understood as
challenging the substantive reasonableness of the sentence
imposed by the district court, the challenge fails. Given the
nature of Lovin’s conduct and the extent to which his crimes
brought disrepute to legal system, we cannot say that the
district court abused its discretion by imposing a sentence of
144 months. See United States v. Pauley, 511 F.3d 468, 473-74
(4th Cir. 2007) (“Substantive reasonableness review entails
taking into account the totality of the circumstances, including
the extent of any variance from the Guidelines range. . . . In
17
reviewing the substantive reasonableness of the sentence, we may
consider the extent of the deviation, but we must give due
deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance. Even
if we would have reached a different sentencing result on our
own, this fact alone is insufficient to justify reversal of the
district court.” (internal quotation marks and citation
omitted)).
III.
Accordingly, for the foregoing reasons, we hereby affirm
Lovin’s sentence.
AFFIRMED
18
SHEDD, Circuit Judge, dissenting:
As the majority notes, before oral argument the government
filed an unopposed motion to remand for resentencing. The
government asserted that the district court “did not follow the
procedures outlined in [United States v. Carter, 564 F.3d 325(4th Cir. 2009)],” and it observed that “[o]n remand, the
parties should be permitted to address any objections they wish
to assert regarding the defendant’s sentencing guidelines
calculations.” At oral argument, the government reiterated this
position, and Lovin agreed.
The majority is correct that we are not bound by a party’s
concession of error. However, under the specific circumstances
of this case, the interests of justice are best-served by
granting the government’s well-reasoned, good-faith concession
of error and remanding to give the district court the
opportunity to resentence Lovin in a manner in which the parties
have confidence. See generally Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 571-72 (1980) (noting that “[t]o work
effectively, it is important that society’s criminal process
satisfy the appearance of justice” (quotation marks and citation
omitted)).
Because I would grant the government’s unopposed motion to
remand, I dissent from the majority’s decision to affirm the
sentence.
19