United States v. Morrow , 323 F. App'x 262 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4429
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES WEBSTER MORROW,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:07-cr-00336–FL-1)
Submitted: March 18, 2009 Decided: April 27, 2009
Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Banumathi Rangarajan, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Webster Morrow pled guilty to one count of being
a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924 (2006). In sentencing Morrow, the district
court overruled his objection to a two-level enhancement for
obstruction of justice and adopted the presentence report
without change. The district court sentenced Morrow to seventy
months’ imprisonment, which fell within Morrow’s advisory
guidelines range. Morrow timely noted his appeal and argues
that the district court erred in enhancing his sentence for
obstruction of justice. After considering the record and the
arguments of the parties, we reject Morrow’s arguments and
affirm the judgment of the district court.
The sentencing guidelines provide for a two-level
enhancement if a “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, and . . . the obstructive
conduct related to . . . the defendant’s offense of
conviction[.]” U.S. Sentencing Guidelines Manual § 3C1.1
(2007).
Obstructive conduct that occurs prior to the start of
the investigation of the offense may be covered “if the conduct
was purposefully calculated, and likely, to thwart the
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investigation or prosecution of the offense of conviction.”
USSG § 3C1.1, comment (n.1). Obstructive conduct within the
meaning of § 3C1.1 includes, but is not limited to,
“threatening, intimidating, or otherwise unlawfully influencing
a co-defendant, witness, or juror” and “threatening the victim
of the offense in an attempt to prevent the victim from
reporting the conduct constituting the offense of conviction.”
USSG § 3C1.1, comment (n.4(a), (k)).
Morrow argues that Application Note 1 to § 3C1.1
required the district court to find that his conduct both “was
purposefully calculated” and “likely” to thwart the
investigation or prosecution of his offense of conviction in
order to enhance his sentence for obstruction of justice, and
that the district court misapplied § 3C1.1 by failing to
explicitly state these findings. Morrow argues that this
failure by the district court was an error of law requiring de
novo review by this court as opposed to review for clear error.
See United States v. Kiulin, 360 F.3d 456, 460 (4th Cir. 2004);
United States v. Williams, 152 F.3d 294, 302 (4th Cir. 1998).
Morrow never challenged the findings in the
presentence report that he threatened to kill a witness and the
witness’ girlfriend if they reported to the police that Morrow
had a firearm. Rather, Morrow simply claimed that he did not
intentionally threaten the witness and that the witness
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misunderstood his behavior. In the presentence report, the
probation officer, in response to Morrow’s objection, referenced
the examples of obstructive conduct in Application Notes 4(a)
and 4(k) to § 3C1.1 and reiterated the facts from Morrow’s
offense that fell within these examples. By overruling Morrow’s
objection to the presentence report based on the probation
officer’s recommendation, the district court implicitly adopted
the findings in the presentence report responsive to the
objection. Williams, 152 F.3d at 301. The court need not
reference the text of an Application Note in making those
findings, and Morrow’s first claim, therefore, is without merit.
Morrow next argues that the record contains
insufficient evidence to prove by a preponderance of the
evidence that he purposefully calculated any threat in order to
thwart the investigation of the instant offense. Morrow
essentially claims that because all of his conduct was not
obstructive, none of his conduct was. Our review of the record
leads us to conclude that this claim is without merit.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument as 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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