United States v. Ricky Wyatt, Jr.

Court Case Details
Court Case Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4046


UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.


RICKY TIMOTHY WYATT, JR., a/k/a Knuckles,

Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:13-cr-00107-HEH-1)


Submitted: July 30, 2014

Decided: August 4, 2014


Before KING and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Jeffrey L. Everhart, RICE and EVERHART, Richmond, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Angela
Mastandrea-Miller, Assistant United States Attorney, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Ricky Timothy Wyatt, Jr., appeals from his 112-month

sentence imposed pursuant to his convictions for possession of a

firearm by a convicted felon and five counts of production of

counterfeit Federal Reserve notes. On appeal, he challenges his

four-level role enhancement under U.S. Sentencing Guidelines

Manual § 3B1.1 (2012) and the district court’s imposition of a

variance sentence (the advisory Guidelines range was 78 to 97

months). We affirm.

Wyatt first argues that the leadership enhancement was

inappropriate because the district court failed to consider the

seven factors listed in the commentary and ignored the

conflicting evidence at trial when determining the number of

people involved. We

review a defendant’s sentence for

procedural and substantive reasonableness under an abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 51

(2007). Miscalculation of the Guidelines range is a significant

procedural error. Id. The district court’s determination that

a defendant is an organizer or leader in the offense is a

factual finding reviewed for clear error. United States v.

Thorson, 633 F.3d 312, 317 (4th Cir. 2011). Reversal for clear

error is warranted only where we are left with the “definite and

firm conviction that a mistake has been committed.” United

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States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal

quotation marks omitted).

A defendant qualifies for a four-level adjustment if

he “was an organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive.”

USSG § 3B1.1(a). Factors that distinguish an organizational or

leadership role from lesser roles include:

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 cmt. n.4. The enhancement “is appropriate where

the evidence demonstrates that the defendant controlled the

activities of

other participants or exercised management

responsibility.” United States v. Llamas, 599 F.3d 381, 390

(4th Cir. 2010) (internal quotation marks omitted).

In this case, we conclude that the district court did

not clearly err when it determined that Wyatt was an organizer

or leader of the enterprise. At sentencing, an FBI agent

testified and described how Wyatt controlled the activities of

several individuals, distributing funds to them, recruiting

them, and organizing them to assist with his counterfeiting

scheme that continued over at least a two month period and

involved over $20,000 of counterfeit funds. Wyatt used his

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apartment as the place for printing and then he either cut the

money up there or traveled with other members of the enterprise

to different places for cutting and distribution of the funds

that he controlled.

The district court cited “Boone,” Dataniel Peterkin,

“Zoe,” LaQuain Roberson, and Janay Fisher as members of the

organization. The court accepted the Agent’s testimony that

Boone regularly moved counterfeit funds for Wyatt, and he also

traveled on at least one occasion to give counterfeit funds to

another gang member. Peterkin assisted with production, was

recruited by Wyatt for further involvement, and traveled with

Boone to deliver counterfeit funds. Zoe was also present for

production, and he moved the counterfeit money, as well.

Roberson received $6000 to distribute for a profit (with a cut

going back to Wyatt), and he urged his wife to cover up the

crime. Based on the Agent’s testimony, the district court did

not clearly err in finding that Wyatt’s organization included

these four persons.

Moreover, even considering the trial testimony, the

district court did not clearly err in determining that Wyatt

exercised control and management over these members of the

organization by directing their actions and requiring a cut of

the profits. While the trial testimony was not as probative on

this issue as the Agent’s testimony, Wyatt’s leadership role was

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not an issue or element at trial. In any event, the trial and

sentencing hearing testimony are not in direct conflict, and

even if they were, the court would be free to reject portions of

the trial testimony in favor of the Agent’s information.

Moreover, while the court’s reasoning was not extensive, the

court heard lengthy argument on the issue and clarified several

points, clearly demonstrating that the court understood the

factors involved in the role enhancement determination.

The remaining question, then, is whether Fisher was a

member of the organization as she was the fifth person cited by

the district court. The district court relied on the Agent’s

testimony that Fisher counted money on one occasion. However,

when Fisher counted the money, contrary to the district court’s

statements, she was presumably unaware of the counterfeiting, as

Wyatt was attempting to use her for quality control.

Nevertheless, once Fisher became aware of the counterfeiting,

she was present when money was being printed and distributed in

her home. Moreover, Fisher followed Wyatt’s instructions to

remove evidence from their home and testify falsely at the grand

jury. Accordingly, while Fisher’s money counting did not

constitute participation in the counterfeiting organization,

Fisher was, in fact, a member of the organization. Accordingly,

given that there were at least five members of the organization

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that was led and organized by Wyatt, the district court did not

clearly err in applying the role enhancement.

Wyatt next contends that the district court erred by

imposing an upward departure based upon a perceived

under-representation of Wyatt’s criminal history under USSG

§ 4A1.3. Wyatt asserts that his criminal history was not

substantially under-represented. However, the district court

actually imposed a variance sentence as opposed to a departure.

The court calculated a Guidelines range of 78 to 97 months and

then noted that this range was advisory. The court then

considered the § 3553 factors and determined that the Guidelines

range was insufficient to fulfill the objectives of sentencing.

Thus, while the court eventually determined that a more

appropriate Guidelines range would have been 92 to 115 months,

which was based on a Criminal History Category IV, the court

clearly just utilized this range as a tool in determining the

correct amount of variance.

When a district court imposes a sentence that falls

outside of the applicable Guidelines range, we consider “whether

the sentencing court acted reasonably both with respect to its

decision to impose such a sentence and with respect to the

extent of the divergence from the sentencing range.” United

States v. Hernandez–Villanueva, 473 F.3d 118, 123 (4th Cir.

2007). In conducting this review, we “must give due deference

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to the district court’s decision that the § 3553(a) factors, on

a whole, justify the extent of the variance.” Gall, 552 U.S.

at 51. “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. Carter, 564 F.3d

325, 330 (4th Cir. 2009) (internal quotation marks omitted).

Wyatt has preserved the challenge to this aspect of his sentence

“[b]y drawing arguments from § 3553 for a sentence different

than the one ultimately imposed.” United States v. Lynn, 592

F.3d 572, 578 (4th Cir. 2010). If the district court abused its

discretion, we will “reverse unless . . . the error was

harmless.” Id. at 576.

In this case, the court’s reasoning demonstrated that

it listened to and considered the arguments of counsel in

general and had reviewed the PSR and considered the Guidelines

range. Moreover, the district court considered the § 3553

factors in detail and specifically stated that it was motivated

by Wyatt’s leadership role in a violent and criminal gang; the

nature of his criminal history (including rape and abduction);

the fact that he was involved in gang activity just days after

his parole was completed; and the fact that his previous

sentence did not deter him. As Wyatt’s only argument—that

Criminal History Category III appropriately stated his criminal

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history—is irrelevant to the district court’s discussion of the

§ 3553 factors, we conclude that the court did not commit

procedural error.

Moreover, as the court considered and relied on

factors relevant and appropriate to sentencing, we find that the

sentence imposed upon Wyatt is substantively reasonable, in

light of “the totality of the circumstances.” Gall, 552 U.S. at

51. Because there is a range of permissible outcomes for any

given case, an appellate court must resist the temptation to

“pick and choose” among possible sentences and rather must

“defer to the district court's judgment so long as it falls

within the realm of these rationally available choices.”

United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007);

see also United States v. Carter, 538 F.3d 784, 790 (7th Cir.

2008) (noting substantive reasonableness “contemplates a range,

not a point”).

Based on the foregoing, we affirm Wyatt’s sentence.

We deny Wyatt’s motion to file a pro se supplemental brief. We

dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

AFFIRMED

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