                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4046


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

RICKY TIMOTHY WYATT, JR., a/k/a Knuckles,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:13-cr-00107-HEH-1)


Submitted:   July 30, 2014                  Decided:   August 4, 2014


Before KING and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Jeffrey L. Everhart, RICE and EVERHART, Richmond, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Angela
Mastandrea-Miller, Assistant United States Attorney, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Ricky Timothy Wyatt, Jr., appeals from his 112-month

sentence imposed pursuant to his convictions for possession of a

firearm by a convicted felon and five counts of production of

counterfeit Federal Reserve notes.                     On appeal, he challenges his

four-level      role   enhancement           under       U.S.    Sentencing        Guidelines

Manual § 3B1.1 (2012) and the district court’s imposition of a

variance sentence (the advisory Guidelines range was 78 to 97

months).     We affirm.

             Wyatt first argues that the leadership enhancement was

inappropriate because the district court failed to consider the

seven     factors      listed         in   the     commentary          and     ignored      the

conflicting evidence at trial when determining the number of

people     involved.          We       review      a     defendant’s          sentence      for

procedural      and    substantive         reasonableness             under   an    abuse     of

discretion standard.              Gall v. United States, 552 U.S. 38, 51

(2007).    Miscalculation of the Guidelines range is a significant

procedural error.           Id.       The district court’s determination that

a   defendant    is    an    organizer        or    leader       in    the    offense    is    a

factual    finding     reviewed        for    clear      error.         United     States     v.

Thorson, 633 F.3d 312, 317 (4th Cir. 2011).                            Reversal for clear

error is warranted only where we are left with the “definite and

firm    conviction     that       a   mistake      has    been    committed.”           United



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States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal

quotation marks omitted).

               A defendant qualifies for a four-level adjustment if

he    “was   an    organizer      or     leader      of     a       criminal      activity       that

involved five or more participants or was otherwise extensive.”

USSG § 3B1.1(a).              Factors that distinguish an organizational or

leadership role from lesser roles include:

       the exercise of decision making authority, the nature
       of participation in the commission of the offense, the
       recruitment of accomplices, the claimed right to a
       larger share of the fruits of the crime, the degree of
       participation in planning or organizing the offense,
       the nature and scope of the illegal activity, and the
       degree of control and authority exercised over others.

USSG § 3B1.1 cmt. n.4.                  The enhancement “is appropriate where

the    evidence         demonstrates      that      the     defendant            controlled      the

activities         of     other    participants             or       exercised           management

responsibility.”              United States v. Llamas, 599 F.3d 381, 390

(4th Cir. 2010) (internal quotation marks omitted).

               In this case, we conclude that the district court did

not clearly err when it determined that Wyatt was an organizer

or    leader      of    the    enterprise.           At     sentencing,           an     FBI   agent

testified and described how Wyatt controlled the activities of

several      individuals,         distributing            funds       to    them,        recruiting

them,    and      organizing      them    to     assist         with       his    counterfeiting

scheme    that     continued       over    at       least       a    two    month      period    and

involved     over       $20,000    of    counterfeit            funds.           Wyatt    used   his

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apartment as the place for printing and then he either cut the

money up there or traveled with other members of the enterprise

to different places for cutting and distribution of the funds

that he controlled.

            The district court cited “Boone,” Dataniel Peterkin,

“Zoe,”   LaQuain      Roberson,    and   Janay   Fisher    as   members      of   the

organization.         The court accepted the Agent’s testimony that

Boone regularly moved counterfeit funds for Wyatt, and he also

traveled on at least one occasion to give counterfeit funds to

another gang member.           Peterkin assisted with production, was

recruited by Wyatt for further involvement, and traveled with

Boone to deliver counterfeit funds.               Zoe was also present for

production,     and    he    moved    the    counterfeit       money,   as    well.

Roberson received $6000 to distribute for a profit (with a cut

going back to Wyatt), and he urged his wife to cover up the

crime.   Based on the Agent’s testimony, the district court did

not clearly err in finding that Wyatt’s organization included

these four persons.

            Moreover,       even   considering   the    trial    testimony,       the

district court did not clearly err in determining that Wyatt

exercised   control      and   management     over     these    members      of   the

organization by directing their actions and requiring a cut of

the profits.     While the trial testimony was not as probative on

this issue as the Agent’s testimony, Wyatt’s leadership role was

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not an issue or element at trial.                    In any event, the trial and

sentencing hearing testimony are not in direct conflict, and

even if they were, the court would be free to reject portions of

the     trial   testimony     in    favor       of    the     Agent’s   information.

Moreover, while the court’s reasoning was not extensive, the

court heard lengthy argument on the issue and clarified several

points,    clearly   demonstrating          that      the    court   understood    the

factors involved in the role enhancement determination.

            The remaining question, then, is whether Fisher was a

member of the organization as she was the fifth person cited by

the district court.         The district court relied on the Agent’s

testimony that Fisher counted money on one occasion.                         However,

when Fisher counted the money, contrary to the district court’s

statements, she was presumably unaware of the counterfeiting, as

Wyatt     was    attempting        to    use     her        for   quality    control.

Nevertheless, once Fisher became aware of the counterfeiting,

she was present when money was being printed and distributed in

her home.       Moreover, Fisher followed Wyatt’s instructions to

remove evidence from their home and testify falsely at the grand

jury.      Accordingly,     while        Fisher’s       money     counting   did   not

constitute      participation       in    the    counterfeiting         organization,

Fisher was, in fact, a member of the organization.                       Accordingly,

given that there were at least five members of the organization



                                           5
that was led and organized by Wyatt, the district court did not

clearly err in applying the role enhancement.

              Wyatt next contends that the district court erred by

imposing        an     upward         departure          based    upon      a     perceived

under-representation            of    Wyatt’s       criminal      history       under     USSG

§ 4A1.3.         Wyatt      asserts     that       his    criminal      history    was     not

substantially         under-represented.             However,     the     district       court

actually imposed a variance sentence as opposed to a departure.

The court calculated a Guidelines range of 78 to 97 months and

then    noted     that      this     range   was     advisory.           The    court     then

considered the § 3553 factors and determined that the Guidelines

range was insufficient to fulfill the objectives of sentencing.

Thus,    while        the     court    eventually          determined      that     a     more

appropriate Guidelines range would have been 92 to 115 months,

which was based on a Criminal History Category IV, the court

clearly just utilized this range as a tool in determining the

correct amount of variance.

              When a district court imposes a sentence that falls

outside of the applicable Guidelines range, we consider “whether

the sentencing 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 sentencing range.”                                    United

States   v.     Hernandez–Villanueva,              473    F.3d   118,     123     (4th    Cir.

2007).     In conducting this review, we “must give due deference

                                               6
to the district court’s decision that the § 3553(a) factors, on

a whole, justify the extent of the variance.”                          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).

Wyatt has preserved the challenge to this aspect of his sentence

“[b]y drawing arguments from § 3553 for a sentence different

than the one ultimately imposed.”                  United States v. Lynn, 592

F.3d 572, 578 (4th Cir. 2010).              If the district court abused its

discretion,       we    will   “reverse     unless     .    .    .     the    error    was

harmless.”       Id. at 576.

            In this case, the court’s reasoning demonstrated that

it    listened    to     and   considered     the    arguments         of    counsel    in

general and had reviewed the PSR and considered the Guidelines

range.     Moreover,       the    district     court       considered        the   § 3553

factors in detail and specifically stated that it was motivated

by Wyatt’s leadership role in a violent and criminal gang; the

nature of his criminal history (including rape and abduction);

the fact that he was involved in gang activity just days after

his    parole     was    completed;   and      the   fact       that    his    previous

sentence   did     not    deter   him.        As   Wyatt’s      only    argument—that

Criminal History Category III appropriately stated his criminal

                                          7
history—is irrelevant to the district court’s discussion of the

§ 3553    factors,      we     conclude     that   the    court    did    not    commit

procedural error.

               Moreover,      as   the     court   considered       and    relied     on

factors relevant and appropriate to sentencing, we find that the

sentence    imposed       upon     Wyatt    is   substantively      reasonable,       in

light of “the totality of the circumstances.”                     Gall, 552 U.S. at

51.     Because there is a range of permissible outcomes for any

given case, an appellate court must resist the temptation to

“pick    and     choose”      among   possible     sentences      and     rather    must

“defer to the district court's judgment so long as it falls

within     the    realm       of   these    rationally      available       choices.”

United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007);

see also United States v. Carter, 538 F.3d 784, 790 (7th Cir.

2008) (noting substantive reasonableness “contemplates a range,

not a point”).

               Based on the foregoing, we affirm Wyatt’s sentence.

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