UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 16-4166


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

JOSHUA N. WRIGHT,

                   Defendant - Appellant.



                                     No. 16-4180


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

TRAMAINE STANDBERRY,

                   Defendant - Appellant.




Appeals from the United States District Court for the Eastern District of Virginia, at
Richmond. Henry E. Hudson, Senior District Judge. (3:15-cr-00102-HEH-1; 3:15-cr-
00102-HEH-2)


Submitted: September 1, 2020                              Decided: September 2, 2020
Before AGEE and QUATTLEBAUM, Circuit Judges, and Thomas S. KLEEH, United
States District Judge for the Northern District of West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


Mark Diamond, Richmond, Virginia; Joseph R. Winston, LAW OFFICES OF JOSEPH R.
WINSTON, Richmond, Virginia, for Appellants. Dana J. Boente, United States Attorney,
Richard D. Cooke, Stephen E. Anthony, Assistant United States Attorneys, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Joshua Nathaniel Wright and Tramaine Tre’quan Standberry were convicted of

interference with commerce by robbery (“Hobbs Act robbery”), in violation of 18 U.S.C.

§ 1951 (2018), and brandishing a firearm during and in relation to a crime of violence, in

violation of 18 U.S.C. § 924(c)(1)(a)(ii) (2018). On appeal, Wright and Standberry *

contend (1) that Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c)(3)

(2018); (2) that the district court erred by instructing the jury that Hobbs Act robbery is a

crime of violence under § 924(c); (3) that the district court abused its discretion by finding

by a preponderance of the evidence that they had committed two robberies of which they

had not been convicted, and varying upwardly in each of their sentences to reflect that

conduct; (4) that the district court clearly erred by finding they had committed an abduction

within the meaning of the Sentencing Guidelines; (5) that the district court clearly erred in

refusing to grant Wright a sentence reduction for acceptance of responsibility; and (6) that

Wright’s 276-month upward variant sentence is substantively unreasonable. For the

following reasons, we affirm.

       Wright and Standberry first argue that Hobbs Act robbery is not a crime of violence

under 18 U.S.C. § 924(c)(3) and thus cannot serve as a predicate offense for their 18 U.S.C.

§ 924(c)(1)(A) convictions. This argument is foreclosed by our decision in United States

v. Mathis, 

, 266 (4th Cir. 2019).




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

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       Wright and Standberry next argue that the district court erred by instructing the jury

that Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c)(3). “We review a

district court’s decision to give a particular jury instruction for abuse of discretion” and

“whether a jury instruction incorrectly stated the law de novo.” United States v. Miltier,

, 89 (4th Cir.), cert. denied, 

(2018). We “must determine

whether the instructions construed as a whole, and in light of the whole record, adequately

informed the jury of the controlling legal principles without misleading or confusing the

jury to the prejudice of the objecting party.”

(internal quotation marks omitted).

We have reviewed the record and the relevant legal authorities and conclude the district

court did not abuse its discretion in instructing the jury.

       Third, both Wright and Standberry argue the district court erred by varying

upwardly to account for robberies of which the jury had acquitted them or for which they

had not been charged. A sentencing court is free to consider acquitted or uncharged

conduct in calculating a defendant’s Guidelines range. See United States v. Lawing, 

, 241 (4th Cir. 2012). Acknowledging this fact, Wright and Standberry argue that

in light of Apprendi v. New Jersey, 

(2000), the sentencing court can only

consider such conduct under a reasonable doubt standard, rather than under the

preponderance standard established in Lawing, or must at least use a higher standard of

proof when imposing a significant upward variance. However, we have continually held

that “a sentencing court may consider uncharged and acquitted conduct in determining a

sentence, as long as that conduct is proven by a preponderance of the evidence.” United

States v. Grubbs, 

, 799 (4th Cir. 2009); see also United States v. Slager, 912

                                               

, 233 (4th Cir.) (“When sentencing courts engage in fact finding, preponderance

of the evidence is the appropriate standard of proof.” (internal quotation marks omitted)),

cert. denied, 

(2019). Accordingly, we conclude that “[t]his argument is

too creative for the law as it stands.” United States v. Benkahla, 

, 312 (4th

Cir. 2008).

       Fourth, both Wright and Standberry argue that the district court improperly applied

a four-level enhancement for abduction under the Sentencing Guidelines.          See U.S.

Sentencing Guidelines Manual § 2B3.1(b)(4)(A) (2018). The Government bears the

burden to prove by a preponderance of the evidence that a sentencing enhancement applies.

United States v. Steffen, 

, 414 (4th Cir. 2013). “In assessing whether a

sentencing court properly applied the Guidelines, we review the court’s factual findings

for clear error and its legal conclusions de novo.” United States v. Osborne, 

,

387 (4th Cir. 2008) (internal quotation marks omitted). Clear error occurs when we are

“left with the definite and firm conviction that a mistake has been committed.” United

States v. Harvey, 

, 337 (4th Cir. 2008) (internal quotation marks omitted).

       A victim is “abducted” if he is “forced to accompany an offender to a different

location.” USSG § 1B1.1 cmt. n.1(A). We have adopted a “flexible, case by case approach

to determining when movement to a different location has occurred,” 

(internal quotation marks omitted). In addition, the Supreme Court has held that

accompaniment “must constitute movement that would normally be described as from one

place to another, even if only from one spot within a room or outdoors to a different one,”

but does not require movement across “large distances.” Whitfield v. United States, 574

                                            

, 268 (2015); see also 

(explaining that “movement

within the confines of a single building can constitute movement to a different location”

(internal quotation marks omitted)). “[E]ven a temporary abduction can constitute an

abduction for purposes of the [S]entencing [G]uidelines.” United States v. Nale, 

, 1003 (4th Cir. 1996). We have reviewed the record and relevant legal authorities

and conclude the district court did not clearly err in finding that Wright and Standberry

abducted the store employees within the meaning of the Sentencing Guidelines.

       Fifth, Wright challenges the district court’s decision not to grant him a two-level

reduction for acceptance of responsibility.       “We review a district court’s decision

concerning an acceptance-of-responsibility adjustment for clear error” and accord “great

deference to the district court's decision because the sentencing judge is in a unique position

to evaluate a defendant's acceptance of responsibility.” United States v. Dugger, 

, 239 (4th Cir. 2007) (brackets and internal quotation marks omitted); see USSG

§ 3E1.1 cmt. n.5 (same).      To qualify for the two-level acceptance of responsibility

reduction, “a defendant must prove to the court by a preponderance of the evidence that he

has clearly recognized and affirmatively accepted personal responsibility for his criminal

conduct.” United States v. Bolton, 

, 914 (4th Cir. 2017) (internal quotation

marks omitted). “This adjustment is not intended to apply to a defendant who puts the

government to its burden of proof at trial by denying the essential factual elements of guilt,

is convicted, and only then admits guilt and expresses remorse.” USSG § 3E1.1, cmt. n.2.

However, “[i]n rare situations,” including “where a defendant goes to trial to assert and

preserve issues that do not relate to factual guilt,” such as a “constitutional challenge to

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statute,” the “defendant may clearly demonstrate an acceptance of responsibility for his

criminal conduct.”

the record on this point and conclude that the

district court did not clearly err in finding Wright had not clearly accepted responsibility

for the robbery for which he was convicted.

       Finally, Wright argues his sentence is unreasonable because it is longer than he

would have received had the court applied a career offender enhancement under the

Guidelines. We review criminal sentences for reasonableness “under a deferential abuse-

of-discretion standard.” United States v. Lynn, 

, 216 (4th Cir.) (internal

quotation marks omitted), cert. denied, 

(2019). In evaluating a sentencing

court’s calculation of the advisory Guidelines range, “[w]e review the district court’s

factual findings for clear error and legal conclusions de novo.” United States v. White, 

, 674 (4th Cir.), cert. denied, 

(2017). We have reviewed the record

on this point and find that Wright’s sentence is procedurally and substantively reasonable.

       Accordingly, we affirm the judgments of the district court. 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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