United States of America v. Larry Robert Jackson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4440
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY ROBERT JACKSON,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:08-cr-00132-1)
Submitted: April 30, 2010 Decided: June 7, 2010
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, David R. Bungard,
Assistant Federal Public Defender, Jonathan D. Byrne, Appellate
Counsel, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, R. Booth Goodwin II, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Larry Robert Jackson pleaded guilty to one count of
wire fraud, in violation of 18 U.S.C. § 1343 (2006). The
district court sentenced Jackson to twenty-four months in prison
and ordered him to pay restitution of $29,078. Jackson appeals,
raising two issues. First, he claims the district court erred
by imposing a two-level sentencing enhancement for obstruction
of justice; second, he argues that $2400 of the $29,078 in
restitution should not have been awarded. We affirm.
This case revolved around a fraudulent business
transaction. Jackson, a West Virginia resident, agreed to trade
four bulldozers to Industrial Buckets, a Mexican company, for an
excavator and $36,500. Jackson received the excavator, which he
then traded to a man named Jeff Cooley for a used excavator and
$17,500. Jackson, however, never owned or possessed the four
bulldozers he promised to Industrial Buckets. Subsequently,
Cooley purchased the Industrial Buckets excavator for $45,000,
some $11,000 less than Industrial Buckets claimed the machine
was worth.
In the course of the investigation, West Virginia
State Police Sergeant T.C. Bledsoe interviewed Jackson. The
same evening as the interview, Jackson threatened to commit
suicide and was taken to the hospital. In a hospital waiting
room, Jackson told Christy Stanley, an emergency medical

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technician, “Before I go to the state pen and be charged with
these charges, I will shoot Sergeant Bledsoe in the head and
kill him, and then I’ll shoot myself and I won’t even have to
go.” Based on this threat, the probation officer recommended in
the presentence report a two-level adjustment for obstruction of
justice under U.S. Sentencing Guidelines Manual § 3C1.1 (2008).
The probation officer also recommended restitution of $20,778 to
Jeff Cooley and $16,900 to Industrial Buckets. Industrial
Buckets’ claimed loss of $16,900 included $11,000 that
Industrial Buckets said it lost when it resold the excavator to
Cooley, as well as $2400 for shipping the excavator to Jackson,
$2000 in travel expenses, and $1500 for lost work hours.
At sentencing, the Government called Stanley as a
witness, and she testified about the above threat to Bledsoe.
Over Jackson’s objection, the district court applied the
adjustment for obstruction of justice. The district court also
ordered total restitution of $29,078, reducing Industrial
Buckets claim from $16,900 to $8300. The district court arrived
at $8300 by denying Industrial Buckets’ $11,000 resale loss, but
awarding the company $2400 in shipping costs, which reflected

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the amount it would have cost the company to return the
excavator to Mexico.*
The sentencing guidelines provide for a two-level
adjustment to a defendant’s offense level 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, and . . . the obstructive conduct related to (i)
the defendant’s offense of conviction and any relevant conduct;
or (ii) a closely related offense.” USSG § 3C1.1. 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, directly or
indirectly, or attempting to do so.” Id., cmt. n.4(a). Whether
a defendant obstructed justice is a factual question reviewed
for clear error. United States v. Kiulin, 360 F.3d 456, 460
(4th Cir. 2004). This deferential standard of review requires
reversal only if the court is “‘left with the definite and firm
conviction that a mistake has been committed.’” United States
v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (quoting
Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)).
* The district court assumed the return freight would have
been the same as the cost to have the excavator shipped to West
Virginia.

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On appeal, Jackson argues that the district court
erred by imposing the obstruction of justice adjustment because
Stanley’s uncorroborated testimony was insufficient evidence
that Jackson made the threat. Jackson further argues that, even
if he did make the threat, it did not warrant the adjustment
given his fragile mental state at the time it was allegedly
made. We have reviewed the facts of this case and find the
district court did not clearly err in imposing the sentencing
enhancement. The district court found Stanley’s testimony
credible, and this court defers to the district court’s
credibility determinations. United States v. Abu Ali, 528 F.3d
210, 232 (4th Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009).
The record thus reflects that Jackson made a threat to kill
Bledsoe and that Jackson made the threat to a person who would
likely convey it to Bledsoe. Accordingly, there was sufficient
evidence to support the conclusion that Jackson attempted to
impede the investigation and prosecution of his offense.
A district court's order of restitution is reviewed
for abuse of discretion. United States v. Henoud, 81 F.3d 484,
487 (4th Cir. 1996). By definition, a court abuses its
discretion when it makes an error of law. EEOC v. Navy Fed.
Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). Under the
Victim and Witness Protection Act (“VWPA”), the district court
may order a defendant to pay restitution to any victim of an

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offense of conviction. See 18 U.S.C.A. § 3663(a)(1)(A) (West
Supp. 2009); United States v. Blake, 81 F.3d 498, 506 (4th Cir.
1996) (authority of district court to order restitution is
limited to terms of VWPA). The district court’s restitution
order shall require the defendant to return the victim’s
property or pay the victim for the property’s loss in value.
See 18 U.S.C. § 3663A(b)(1) (2006).
Jackson argues that the district court erred in
awarding Industrial Buckets $2400 because the company did not
actually transport its excavator back to Mexico. We find the
district court did not abuse its discretion in ordering the
$2400 in restitution. Industrial Buckets essentially had two
choices: reclaim the excavator from West Virginia or resell it.
The district court assessed Jackson $2400, the cost of
reclaiming the excavator, because Industrial Buckets’ decision
to sell it at a loss may have been influenced by business
considerations not directly attributable to Jackson’s crime. We
find no abuse of discretion.
Accordingly, we affirm the sentence. We dispense with
oral argument because 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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