                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4459


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RICHARD ARMAND PINDLE, a/k/a P,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:08-cr-00287-LO-1)


Submitted:   October 18, 2010            Decided:   November 19, 2010


Before NIEMEYER, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John Iweanoge, II, IWEANOGE LAW CENTER, Washington, D.C., for
Appellant. Neil H. MacBride, United States Attorney, Justin K.
Gelfand, Special Assistant United States Attorney, Michael E.
Rich, Assistant United States Attorney, Alexandria, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Richard Armand Pindle was indicted on seven counts of

Hobbs Act robbery, 18 U.S.C. § 1951 (2006) (Counts One-Seven),

seven counts of using and carrying a firearm during a crime of

violence,    18   U.S.C.    §     924(c)(1)(A)(ii)      (2006)       (Counts    Eight-

Fourteen),    and    one    count    of    possession     of     a   firearm     by   a

convicted felon, 18 U.S.C. § 922(g)(1) (2006) (Count Fifteen).

Counts One-Fourteen related to a series of convenience store

robberies that occurred in Northern Virginia during April, May,

and August 2006.          The jury found Pindle guilty on Counts Seven

and   Fourteen,     which    related      to    the   August    20    robbery    of   a

Vocelli’s Pizza delivery man.                  The district court declared a

mistrial on the remaining counts because the jury was unable to

reach a verdict on those counts.                Pindle waived a jury trial on

Count Fifteen, and the district court found him guilty on that

count.

            Pindle was sentenced to 144 months on Count Seven,

eighty-four months on Count Fourteen, and seventy-eight months

on Count Fifteen.         The sentences on Counts Seven and Fifteen run

concurrently,       and     the     sentence      on    Count        Fourteen     runs

consecutively to the concurrent sentence.                      Pindle appeals his

convictions and sentence.




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                                                I

              Pindle       first        contends          that    the        evidence       was

insufficient to convict him of the three offenses.                                    A jury’s

verdict “must be sustained if there is substantial evidence,

taking the view most favorable to the Government, to support

it.”     Glasser       v.    United       States,         315    U.S.    60,     80    (1942).

“Substantial        evidence       is    that       evidence     which       a   ‘reasonable

finder   of    fact       could    accept       as    adequate      and      sufficient      to

support a conclusion of a defendant’s guilt beyond a reasonable

doubt.’”      United States v. Cardwell, 433 F.3d 378, 390 (4th Cir.

2005) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th

Cir. 1996) (en banc)).             We review both direct and circumstantial

evidence      and    permit       the    “[G]overnment           the    benefit        of   all

reasonable inferences from the facts proven to those sought to

be established.”          United States v. Tresvant, 677 F.2d 1018, 1021

(4th Cir. 1982).          We do not review the credibility of witnesses,

and we assume the factfinder resolved all contradictions in the

testimony in favor of the Government.                      United States v. Sun, 278

F.3d 302, 313 (4th Cir. 2002).

              Hobbs Act Robbery.               “The Hobbs Act prohibits robbery

. . . that ‘in any way or degree obstructs, delays, or affects

commerce      or    the     movement      of        any   article       or   commodity       in

commerce.’”         United States v. Williams, 342 F.3d 350, 353 (4th

Cir. 2003) (quoting 18 U.S.C. § 1951(a)).                         Thus, to prove Hobbs

                                                3
Act    robbery,    the    Government      must    establish       that        a    robbery

occurred and that it affected interstate commerce.                      Id.

             We hold that the evidence was sufficient to convict

Pindle of Hobbs Act robbery.             Raja Anwar testified that he had

four pizzas to deliver to a condominium in Woodbridge, Virginia.

No    one   answered     when   he    knocked    on    the    door,    and        he   began

walking to his car to call the customer.                   Two men rushed towards

him.    Both men wore gloves, and at least one wore a black mask

and was armed.           One of the men demanded both the pizza and

Anwar’s money.         Anwar turned over a green pizza bag containing

the four boxes of pizza and about $200.                      The other robber took

Anwar’s car keys.           After the robbers fled, Anwar called the

police.

             Officer     Marshall     Daniel     and   Yoda,     his    K-9       partner,

arrived     at   the   scene    and    conducted       a     track.      Officer        Jay

Gutschmidt searched the area where the track ended.                          He found a

Vocelli’s Pizza receipt and walked to a nearby dumpster, where

he found Vocelli’s Pizza boxes and a green Vocelli’s Pizza bag.

Anwar informed officers that he had often delivered pizzas to a

nearby apartment.         The police then went to that address, where

they found Pindle, who pretended to be asleep.                        During a search

of the apartment, officers recovered clothing similar to that

worn by the robbers, Anwar’s keys, fresh pizza, a mask, and

gloves.     Gutschmidt recovered a gun from a rain gutter above the

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apartment’s     balcony.      During   a   post-arrest       interview,    Pindle

admitted that the gun belonged to his father and that he had

taken it to the apartment on a previous occasion.

           Nikolas Goodson testified that he, Pindle, McGee Menka

and others were in the apartment on August 20.                 Pindle produced

a .38 caliber handgun and told the others that he had robbed 7-

Elevens and gas stations.           Goodson saw Pindle and another man

leave the apartment and return with pizza.               Pindle subsequently

left with the pizza boxes and returned without them.                    When the

police knocked at the door, Pindle began hiding various items,

including the gun, a mask, and gloves.           Goodson saw Pindle place

the gun on the roof above the apartment’s balcony.

           This    evidence    establishes    beyond     a    reasonable    doubt

that   Pindle     committed   the   robbery.      This,       coupled     with   a

stipulation that Vocelli’s Pizza is a “business[] that engaged

in and that affected interstate commerce, and that the robbery

. . . obstructed, delayed, or affected interstate commerce,” was

sufficient to convict Pindle of Hobbs Act robbery.

           Firearms Offenses. In order to prove a violation of 18

U.S.C. § 924(c), the Government must prove that the Defendant

(1) used or carried a firearm (2) during and in relation to a

crime of violence.         United States v. Nelson, 484 F.3d 257, 260

(4th Cir. 2007).       To prove a violation of 18 U.S.C. § 922(g),

the Government must prove that the Defendant: (1) was previously

                                       5
convicted of a crime punishable by imprisonment of more than one

year; (2) knowingly possessed, transported, shipped, or received

the firearm; and (3) the possession was in or affected commerce.

United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en

banc).

              The evidence was sufficient to convict Pindle of the

§ 924(c) offense.          A firearm was used to effect the robbery of

Anwar.        Further, the jury could readily infer from Goodson’s

testimony and Pindle’s admission that the gun was his father’s

that it was Pindle who used the firearm during the robbery.

              The evidence also was sufficient to convict Pindle of

violating § 922(g).          It was stipulated at trial that Pindle was

a   convicted     felon    and    that   the      gun   was    not    manufactured   in

Virginia.       Further, Pindle admitted that he had possessed the

gun.

                                          II

              Pindle      next    contends         that       the     district   court

erroneously      refused     to   give   a       proffered     jury    instruction   on

identification.         We review “the district court’s decision to

give     or    refuse   to   give    a    jury      instruction        for   abuse   of

discretion.”       United States v. Passaro, 577 F.3d 207, 221 (4th

Cir. 2009), cert. denied, 130 S. Ct. 1551 (2010).                         In Passaro,

we wrote:



                                             6
       A district court commits reversible error in refusing
       to provide a proffered jury instruction only when the
       instruction (1) was correct; (2) was not substantially
       covered by the court’s charge to the jury; and
       (3) dealt with some point in the trial so important,
       that   failure  to   give  the  requested  instruction
       seriously impaired the defendant’s ability to conduct
       his defense. . . . Moreover, we do not view a single
       instruction in isolation; rather we consider whether
       taken as a whole and in the context of the entire
       charge the instructions accurately and fairly state
       the controlling law.

Id. (internal quotation marks and citations omitted).

            We conclude that the district court did not abuse its

discretion in refusing to give the proposed instruction because

the instruction was not correct.               The instruction was predicated

on there having been eyewitness identification of Pindle as the

robber, and there was no such identification.



                                         III

            Finally, Pindle argues that the district court erred

in    imposing    a    variant   sentence.        We   review   a   sentence   for

reasonableness,         applying    an       abuse-of-discretion       standard.

Gall v. United States, 552 U.S. 38, 51 (2007); see also United

States v. Seay, 553 F.3d 732, 742 (4th Cir.), cert. denied, 130

S. Ct. 127 (2009).          In conducting our review, we first examine

the    sentence       for   “significant       procedural   error,”    including

“failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider


                                         7
the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence — including an explanation for any deviation from the

Guidelines      range.”        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).

               Counts Seven and Fifteen were grouped.                      The offense

level for the group was 20, Pindle’s criminal history category

was V, and his advisory Guidelines range for those counts was

63-78 months.        He was also subject to a consecutive eighty-four-

month sentence pursuant to his conviction on Count Fourteen.

Both parties submitted positions on sentencing.                           Pindle asked

for   a   sentence     below    his    Guidelines      range.        The    Government

requested an upward departure “based upon conduct represented by

those     offenses     upon    which   the      jury   was    unable      to   reach   a

verdict.”

               Following argument at sentencing, the district court

found     by   a    preponderance      of    the    evidence       that    Pindle   had

committed the other robberies charged in the indictment.                            The

court based this finding on the following: the similarities,

including the description of the robber, among the robberies;

                                            8
the identification by three robbery victims of Pindle’s voice as

that of the perpetrator; and the fact that the same firearm was

discharged during three of the robberies.

            The court found, in light of its determination that

Pindle had committed the other robberies, that a sentence within

the   advisory      Guidelines      range      was       inappropriate.           The   court

stated that Pindle was “an extremely dangerous person . . . [who

had] consistently carried a firearm since [he was seventeen]

despite     convictions       for       doing       so     and    being      offered         the

opportunity      for    Probation’s       support.”              Pindle   was      educated,

employable and able to control his alcohol and marijuana use.

Nonetheless, he had committed the series of robberies during

which two people were shot.               The court granted the Government’s

motion    for    upward    departure,       moved        incrementally         through       the

Guidelines       and   determined        that       offense       level     27,     criminal

history category V, resulting in a Guidelines range of 120-150

months,    was    appropriate.          The     court      sentenced      Pindle        to    an

aggregate sentence of 228 months.

            We    conclude       that    the    sentence          is   procedurally          and

substantively       reasonable.         Pindle’s         advisory      Guidelines       range

was     correctly      calculated.            The    district          court      considered

Pindle’s    argument      that    certain       § 3553(c)         factors      warranted       a

sentence below that range.                However, the court concluded that

other    sentencing       factors    necessitated           a     sentence     above     that

                                            9
range.   Finally, the court adequately explained its reason for

imposing the variant sentence.



                                 IV

          We accordingly affirm.      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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