                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4592


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MARVIN ALEXANDER SUTTON, JR.,

                Defendant – Appellant.



                            No. 08-4756


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LAVAR JAVIER FIELDS,

                Defendant – Appellant.



Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh.     James C. Dever III,
District Judge. (5:07-cr-00130-D-2; 5:07-cr-00130-D-1)


Submitted:   October 20, 2010             Decided:   November 19, 2010


Before MOTZ, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina,
Bridgett Britt Aguirre, Fuquay-Varina, North Carolina, for
Appellants.    George E. B. Holding, United States Attorney,
Michael G. James, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            Marvin Alexander Sutton, Jr., pled guilty without a

plea    agreement   to    one    count   of   conspiracy,       in   violation    of

18 U.S.C. § 371 (2006), and one count of aiding and abetting

bank robbery, in violation of 18 U.S.C. §§ 2, 2113(a) (2006).

After imposing an upward departure, the district court sentenced

Sutton to concurrent sentences of 60 months’ imprisonment on the

conspiracy count and 72 months’ imprisonment on the bank robbery

count.    Lavar Javier Fields pled guilty without a plea agreement

to one count of conspiracy, in violation of 18 U.S.C. § 371, and

two counts of aiding and abetting bank robbery, in violation of

18 U.S.C. §§ 2, 2113(a).            After imposing an upward departure,

the district court sentenced Fields to concurrent sentences of

60 months’ imprisonment on the conspiracy count and 90 months’

imprisonment on each of the bank robbery counts.                       Sutton and

Fields timely appeal and challenge their sentences.                  We affirm.

            We   review    a    district     court’s    sentence,     including    a

departure     sentence,    for    reasonableness        under    a   “deferential

abuse-of-discretion” standard.             Gall v. United States, 552 U.S.

38, 41, 51 (2007).        In conducting this review, we first examine

the sentence for “significant procedural error, such as 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

                                         3
based    on     clearly         erroneous    facts,        or    failing     to    adequately

explain the chosen sentence.”                      Id. 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.        In reviewing a sentence

outside the advisory Guidelines range, we consider whether the

district      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 [G]uideline[s] range.”                               United

States v. Perez-Pena, 453 F.3d 236, 241 (4th Cir. 2006).

              Fields       challenges       the    district        court’s        decision    to

adopt the recommendation of his presentence report (“PSR”) and

calculate his Guidelines range for the bank robbery counts using

U.S.    Sentencing        Guidelines        Manual    (“USSG”)       § 2B3.1       (Robbery),

rather than USSG § 2B2.1 (Burglary of a Residence or a Structure

Other    than      a    Residence)      (2007).        Fields,      however,        failed    to

object in writing to his PSR’s use of USSG § 2B3.1 to calculate

his offense level within the fourteen-day time frame prescribed

by Fed. R. Crim. P. 32(f)(1).                      Accordingly, our review is for

plain error.             See United States v. Olano, 507 U.S. 725, 731

(1993) (quoting with approval Yakus v. United States, 321 U.S.

414, 444 (1944) (“No procedural principle is more familiar to

this Court than that a . . . right may be forfeited in criminal

as well as civil cases by the failure to make timely assertion

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of the right before a tribunal having jurisdiction to determine

it.”)).         To prevail under this standard, Fields must show that

plain      error      by   the        district       court    affected       his        substantial

rights.         See Puckett v. United States, 129 S. Ct. 1423, 1429

(2009).         Even if Fields makes this showing, however, correction

of the error is within our discretion, which we do not exercise

unless the error “seriously affects the fairness, integrity or

public      reputation           of    judicial          proceedings.”            Id.     (internal

quotation marks and alteration omitted).

                Where, as here, the statute under which a defendant is

convicted proscribes a variety of conduct that may fall under

several         Sentencing            Guidelines, 1        the      district        court      must

“determine which of the referenced [G]uideline sections is most

appropriate” for the offense of conviction.                                USSG § 1B1.2, cmt.

n.1.       To     accomplish           this,       the     court        “should    compare     the

[G]uideline texts with the charged misconduct, rather than the

statute     (which         may    outlaw       a     variety       of    conduct        implicating

several [G]uidelines) or the actual conduct (which may include

factors         not   elements          of     the       indicted        offense).”         United

States v. Lambert, 994 F.2d 1088, 1092 (4th Cir. 1993).




       1
       The Statutory Index to the Guidelines lists USSG §§ 2B1.1,
2B2.1, 2B3.1, and 2B3.2 as potentially applicable to a violation
of 18 U.S.C. § 2113(a). See USSG App. A.



                                                     5
              Here,     the    indictment       charged      Fields        and    his     co-

defendants       with      breaking     into    and      stealing      United          States

currency from automated teller machines containing “money in the

care, custody[,] and control of Lumbee Guaranty Bank, a bank

whose       deposits    were     then    insured       by    the      Federal      Deposit

Insurance Corporation,” in violation of 18 U.S.C. § 2113(a).

Section 2B3.1(b)(1) of the Guidelines permits an enhancement for

the taking of property of a financial institution; USSG § 2B2.1,

by contrast, does not address harm to a financial institution.

Compare      USSG    § 2B3.1(b)(1)       (“If   the      property     of    a    financial

institution . . . was taken, or if the taking of such property

was an object of the offense, increase by 2 levels.”) with USSG

§ 2B2.1 (addressing burglary of a residence or a structure other

than    a    residence).         Because    the     object     of     the     Defendants’

robberies      was     the    property     of   a     financial       institution,         we

conclude the Guideline that most closely fits the offenses is

USSG § 2B3.1.          See United States v. Smith, 320 F.3d 647, 656-57

(6th    Cir.    2003)        (holding    that     USSG      § 2B3.1     was      the     most

appropriate Guideline where the object of extortion was bank

robbery); see also United States v. Alexander, 48 F.3d 1477,

1491 (9th Cir. 1995) (stating that the Sentencing Commission

sought with USSG § 2B3.1(b)(1) to punish robberies of financial

institutions        more     severely    because      “these    entities         typically

keep large amounts of readily available cash, and are therefore

                                            6
particularly       attractive      robbery      targets”).            Accordingly,    the

district    court     did    not     plainly     err       in   calculating      Fields’s

offense level under USSG § 2B3.1.

            Both Sutton and Fields challenge the district court’s

decision     to    upwardly       depart    from     their       advisory      Guidelines

ranges based on additional, uncharged robberies and attempted

robberies.    Under the Guidelines,

     [a district] court may depart upward to reflect the
     actual seriousness of the offense based on conduct (1)
     underlying a charge dismissed as part of a plea
     agreement in the case, or underlying a potential
     charge not pursued in the case as part of a plea
     agreement or for any other reason; and (2) that did
     not enter into the determination of the applicable
     [G]uideline[s] range.

USSG § 5K2.21, p.s.          This Guideline requires only “some degree”

of connection between charged and uncharged offenses, and even a

“remote    connection”       will     suffice        to    support      the    departure.

United    States     v.    Newsom,    508   F.3d      731,      735   (5th    Cir.   2007)

(collecting cases and aligning with circuits interpreting that

section as requiring only a remote relationship).                            After review

of the record, we conclude that Sutton’s and Fields’s challenge

is without merit.           The offense conduct to which they pleaded

guilty involved the early morning robberies of automated teller

machines (“ATMs”) in Food Lion grocery stores in Fayetteville,

North     Carolina.          The     undisputed           testimony     at     sentencing

implicated        Sutton    and    Fields       in   five       other   robberies     and


                                            7
attempted robberies of ATMs in Food Lion grocery stores in North

Carolina and Virginia. 2          The modus operandi of the uncharged

offenses – early morning entry into the Food Lion through the

removal of a glass pane – was the same as was utilized in the

charged    robberies.        Additionally,     the   charged    and   uncharged

offenses occurred in temporal and geographic proximity, and the

uncharged       robberies,     like   the    charged    robberies,        involved

thousands of dollars per robbery.             We therefore conclude there

was a sufficient connection between the uncharged and charged

offenses and that the district court did not err in relying on

USSG § 5K2.21, p.s., as the basis for its departures.

            Finally, Fields challenges the extent of the district

court’s upward departure on the bank robbery counts.                      However,

given     Fields’s    participation     in    five     additional     uncharged

robberies and attempted robberies involving significant sums of

money     and    damage   to    property,    the     extent    of   the     upward

departure, which led to a sentence only nineteen months longer


     2
        Sutton and Fields suggest that their involvement in the
additional, uncharged robberies and attempted robberies was not
sufficiently proved. Facts deemed relevant to a departure from
a Guidelines sentencing range, however, need only be proved by a
preponderance of the evidence. See United States v. Grubbs, 585
F.3d 793, 799 (4th Cir. 2009), cert. denied, 130 S. Ct. 1923
(2010).     After review of the record, we conclude that the
district court did not clearly err in finding Sutton’s and
Fields’s    participation in   the  uncharged   offenses   by  a
preponderance of the evidence.



                                        8
than   the   top    of    the    original   advisory      Guidelines    range,   was

reasonable.     We therefore affirm the district court’s judgments.

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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