Filed: Apr. 04, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4225 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RAMONE HAISON ETHRIDGE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:10-cr-00206-BO-2) Submitted: March 20, 2013 Decided: April 4, 2013 Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opi
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4225 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RAMONE HAISON ETHRIDGE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:10-cr-00206-BO-2) Submitted: March 20, 2013 Decided: April 4, 2013 Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opin..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4225
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAMONE HAISON ETHRIDGE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:10-cr-00206-BO-2)
Submitted: March 20, 2013 Decided: April 4, 2013
Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK, Chapel
Hill, North Carolina, for Appellant. Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Yvonne V.
Watford-McKinney, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ramone Haison Ethridge was convicted after a jury
trial of aiding and abetting the possession of stolen firearms,
in violation of 18 U.S.C. §§ 2, 922(j), 924(a)(2) (2006).
The district court calculated Ethridge’s advisory Guidelines
range under the U.S. Sentencing Guidelines Manual (“USSG”)
(2010) at forty-one to fifty-one months’ imprisonment, imposed
an upward variance, and sentenced Ethridge to 120 months’
imprisonment. On appeal, Ethridge challenges this sentence as
procedurally and substantively unreasonable. We affirm.
We review the district court’s sentence, “whether
inside, just outside, or significantly outside the Guidelines
range,” under a “deferential abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 41 (2007). This standard of
review involves two steps; under the first, we examine the
sentence for significant procedural errors, and under the
second, we review the substance of the sentence. United States
v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007) (examining Gall,
552 U.S. at 50-51). Significant procedural errors include
“failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence — including an explanation for any
2
deviation from the Guidelines range.” Gall, 552 U.S. at 51.
If there are no significant procedural errors, we then consider
the substantive reasonableness of the sentence, “tak[ing] into
account the totality of the circumstances.” Id.
When the district court imposes a variant sentence, we
consider “whether the . . . 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). Such a sentence is unreasonable if the
district court “relie[d] on improper factors in imposing a
sentence outside the properly calculated advisory sentencing
range.” Id.
Ethridge argues that his sentence is procedurally
unreasonable because the district court erred in applying the
enhancements under USSG § 3C1.1 for obstruction of justice and
USSG § 3C1.2 for reckless endangerment during flight in
calculating his Guidelines range. In assessing challenges to
the district court’s application of the Guidelines, we review
the court’s factual findings for clear error and its legal
conclusions de novo. United States v. Alvarado Perez, 609 F.3d
609, 612 (4th Cir. 2010).
Section 3C1.1 of the Guidelines provides for a two-
level enhancement to a defendant’s offense level if the
3
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 and any relevant conduct.
USSG § 3C1.1. Obstructive conduct within the meaning of § 3C1.1
includes “committing, suborning, or attempting to suborn
perjury.” Id., cmt. n.4(B). Subornation of perjury consists of
three elements: the suborner (1) “should have known or believed
or have had good reason to believe that the testimony given
would be false”; (2) “should have known or believed that the
witness would testify willfully and corruptly, and with
knowledge of the falsity”; and (3) “should have knowingly and
willfully induced or procured the witness to give such false
testimony.” Petite v. United States, 262 F.2d 788, 794
(4th Cir. 1959) (internal quotation marks omitted), vacated on
other grounds,
361 U.S. 529 (1960); see also United States v.
Heater,
63 F.3d 311, 320 (4th Cir. 1995) (“Subornation of
perjury consists of procuring or instigating another to commit
the crime of perjury.”).
After review of the record and the parties’ briefs, we
conclude that the district court did not err in applying the
two-level enhancement under USSG § 3C1.1. The trial testimony
the district court credited established that Ethridge attempted
4
to suborn perjury by knowingly urging his co-defendant to
testify falsely at trial concerning a material matter — the
circumstances underlying the offense — with the intent to
deceive the jury.
We also reject Ethridge’s appellate challenge to the
district court’s application of the two-level enhancement under
USSG § 3C1.2. That section of the Guidelines directs a district
court to increase a defendant’s offense level by two levels
“[i]f the defendant recklessly created a substantial risk of
death or serious bodily injury to another person in the course
of fleeing from a law enforcement officer.” USSG § 3C1.2.
Under this section, a defendant “is accountable for [his] own
conduct and for conduct that [he] aided or abetted, counseled,
commanded, induced, procured, or willfully caused.” Id., cmt.
n.5. Because Application Note 5 to USSG § 3C1.2 “limits the
defendant’s responsibility for the actions of another,” this
court has held that “some form of direct or active
participation” on the part of the defendant is necessary for the
enhancement to apply when the reckless flight is the result of
another person’s action. United States v. Chong, 285 F.3d 343,
346 (4th Cir. 2002) (internal quotation marks omitted). Here,
the record establishes that Ethridge actively aided or abetted
his co-defendant’s reckless flight from the police.
5
Ethridge also argues that his sentence is otherwise
procedurally unreasonable because the grounds on which the
variance was based were adequately accounted for in the
Guidelines range and because the district court premised its
variance decision on an erroneous computation of his criminal
history category. Ethridge further challenges as unreasonable
the extent of the upward variance. We reject these arguments.
At sentencing — after ruling on Ethridge’s objections
to the presentence report, calculating his Guidelines range,
giving him the opportunity to allocute, and hearing argument
from counsel — the district court concluded that an upward
variance under 18 U.S.C. § 3553(a) to 120 months’ imprisonment
was necessary to achieve the purposes of sentencing. In
reaching this conclusion, the court properly considered
Ethridge’s history and characteristics and the need for the
sentence to afford adequate deterrence and to protect the
public, 18 U.S.C. § 3553(a)(1), (2)(B)-(C), making note of his
multiple prior convictions for breaking and entering, the
lenient punishments he received for these offenses, the
escalating nature of his larcenies, and the fact that he was on
probation when he committed the aiding and abetting offense.
The court also properly considered the need for the sentence to
promote respect for the law, 18 U.S.C. § 3553(a)(2)(A), making
note of Ethridge’s false testimony at trial and efforts to
6
persuade his co-defendant to testify falsely. * The district
court’s consideration of the relevant 18 U.S.C. § 3553(a)
factors and articulation of its reasons for varying from the
Guidelines range support our decision to defer to its
determination as to the extent of the variance. See United
States v. Diosdado-Star, 630 F.3d 359, 366-67 (4th Cir.)
(affirming substantive reasonableness of variance sentence six
years greater than Guidelines range because sentence was based
on the district court’s examination of the § 3553(a) factors),
cert. denied,
131 S. Ct. 2946 (2011); see also United States v.
Angle,
598 F.3d 352, 359 (7th Cir. 2010) (“All that matters is
that the sentence imposed be reasonable in relation to the
‘package’ of reasons given by the court.”).
We therefore affirm the district court’s judgment.
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
*
We find no merit to Ethridge’s assertion that the district
court premised its decision to vary upwardly on an erroneous
computation of his criminal history category.
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