United States of America v. Arthur Tracy Vick

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4646
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ARTHUR TRACY VICK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:11-cr-00352-BR-1)
Submitted: May 30, 2013 Decided: June 20, 2013
Before NIEMEYER, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Harold M. Vaught, Norwalk, California, for Appellant. Jennifer
P. May-Parker, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Arthur Tracy Vick pled guilty, pursuant to a written
plea agreement, to one count of conspiracy to commit Hobbs Act
robbery in violation of 18 U.S.C. § 1951 (2006). On appeal,
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that there are no meritorious issues
for appeal but questioning the procedural reasonableness of
Vick’s sentence. Vick has filed a pro se supplemental brief
alleging that the district court erred when it applied a
sentencing enhancement. Finding no error, we affirm.*
We review a sentence for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41, 51 (2007). This review entails
appellate consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In determining
procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Guidelines
range, gave the parties an opportunity to argue for an
appropriate sentence, considered the 18 U.S.C. § 3553(a)
factors, selected a sentence based on clearly erroneous facts,
and sufficiently explained the selected sentence. Id. at 49-51.
* We deny Vick’s motion to place this appeal in abeyance
pending the Supreme Court’s decision in No. 11-9335, Alleyne v.
United States.

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First, Vick challenges the district court’s
application of a sentencing enhancement for possession of a
firearm. “The [G]overnment bears the burden of proving the
facts necessary to establish the applicability of [a sentencing]
enhancement by the preponderance of the evidence.” United
States v. Garnett, 243 F.3d 824, 828 (4th Cir. 2001). We
“review factual findings for clear error, and legal conclusions
de novo.” United States v. Davis, 679 F.3d 177, 182 (4th Cir.
2012). Clear error occurs when the court “is left with the
definite and firm conviction that a mistake has been committed.”
United States v. Harvey, 532 F.3d 326, 336 (4th Cir. 2008)
(internal quotation marks omitted).
Vick contends that the district court erred because
there was no evidence that he knew a firearm was present during
the planned robbery. In the event that a defendant is charged
with jointly undertaken criminal activity, such as a conspiracy,
United States Sentencing Guidelines (USSG) § 1B1.3(a)(1)(B)
(2011) directs the district court to apply offense
characteristics on the basis of “all reasonably foreseeable acts
and omissions of others in furtherance of the jointly undertaken
criminal activity.” Upon review of the record, we conclude that
it was reasonably foreseeable to Vick that a firearm would be
used to carry out the robbery and therefore the district court
did not err.

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Vick also argues that the district court’s factual
determination that use of a firearm during the robbery was
reasonably foreseeable when the substantive possession of a
firearm charge had been dismissed, violated Apprendi v. New
Jersey, 530 U.S. 466 (2000). We conclude that this contention
is without merit because the district court’s fact finding did
not expose Vick to a sentence greater than the statutory
maximum.
Next, Vick contends that the district court erred when
it refused to apply a sentencing adjustment reflecting his minor
role in the offense. Whether the court should decrease the
defendant’s offense level for a mitigating role in the offense
is governed by USSG § 3B1.2. The adjustment applies to a
defendant who is “substantially less culpable than the average
participant,” “but whose role could not be described as
minimal.” USSG § 3B1.2(b), cmt. n.3(A) & n.5. While the
determination whether the defendant played a minor role hinges
in part on a comparison of his conduct with that of his
co-defendants, the “critical inquiry is . . . not just whether
the defendant has done fewer bad acts than his co-defendants,
but whether the defendant’s conduct is material or essential to
committing the offense.” United States v. Pratt, 239 F.3d 640,
646 (4th Cir. 2001) (noting that court must measure the
defendant’s individual acts and relative culpability against the

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elements of the offense) (citations omitted). The defendant has
the burden of showing by a preponderance of the evidence that he
played a minor role in the offense. United States v. Akinkoye,
185 F.3d 192, 202 (4th Cir. 1999). Upon review of the record,
we conclude that the district court did not err.
Lastly, Vick argues that the district court should not
have granted the Government’s motion for an upward departure on
the basis that his criminal history category understated his
actual criminal history. A district court may depart upward
from the applicable Guidelines range if “reliable information
indicates that the defendant’s criminal history category
substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” USSG § 4A1.3(a)(1), p.s.;
see United States v. Whorley, 550 F.3d 326, 341 (4th Cir. 2008)
(noting that an under-representative criminal history category
is an encouraged basis for departure). To determine whether a
departure sentence is appropriate in such circumstances, the
Guidelines state that a court may consider prior sentences not
used in the criminal history calculation, prior sentences of
“substantially more than one year” for independent crimes
committed at different times, prior similar misconduct resolved
by civil or administrative adjudication, charges pending at the
time of the offense, or prior, similar conduct that did not

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result in a conviction. USSG § 4A1.3(a)(2), p.s. We conclude
that the district court had sufficient grounds to warrant the
upward departure.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Vick, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Vick requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Vick.
Accordingly, we dispense with oral argument because
the facts and legal contentions are adequately presented in the
material before this court and argument will not aid the
decisional process.
AFFIRMED

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