                                            Filed:   December 22, 2008

                  UNITED STATES COURT OF APPEALS

                      FOR THE FOURTH CIRCUIT


                            No. 07-4812
                        (5:06-cr-00299-FL)


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

GEORGE EUGENE POWELL, JR.,

                Defendant - Appellant.



                             O R D E R


     The court amends its opinion filed December 16, 2008, as

follows:

     On page 4, the footnote number is changed from “*” to “1,” and

the citation in that footnote, line 4, is corrected to read “466

F.3d.”

     On page 8, footnote 2 is added.



                                         For the Court - By Direction



                                            /s/ Patricia S. Connor
                                                    Clerk
                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-4812


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

GEORGE EUGENE POWELL, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.  Louise W. Flanagan,
Chief District Judge. (5:06-cr-00299-FL)


Argued:   October 30, 2008                 Decided:   December 16, 2008


Before WILKINSON, Circuit Judge, Samuel G. WILSON, United States
District Judge for the Western District of Virginia, sitting by
designation, and Henry E. HUDSON, United States District Judge
for the Eastern District of Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: James B. Craven, III, Durham, North Carolina, for
Appellant. Jennifer P. May-Parker, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.    ON BRIEF:
George E. B. Holding, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       This case presents the narrow question of whether the U.S.

Sentencing       Guidelines         (“U.S.S.G.”        or     “Guidelines”)           permit   a

sentencing court to award a third-level reduction for acceptance

of responsibility when a defendant’s offense level qualifies for

such reduction only after an upward departure.                                  Although this

appears    to    be       the   first    time     this      issue       has    been    formally

addressed    by       a    reviewing    court,     we       are    of    the       opinion   that

Section     1B1.1          of     the   Guidelines          clearly           delineates     the

methodology for computing a defendant’s advisory guidelines, and

specifies       that       eligibility      for    a     third-level           reduction     for

acceptance       of       responsibility      turns      on       whether      a    defendant’s

offense level exceeds 16 prior to departure or variance.

       Pursuant to a written plea agreement, George Eugene Powell,

Jr. (“Powell”) entered a plea of guilty to a single count of

bank    larceny.            The    underlying      plea       agreement            specifically

provided that a three-level sentencing reduction was warranted

pursuant    to    U.S.S.G.         Manual    Section        3E1.1       for    acceptance      of

responsibility.             Following acceptance of Powell’s plea, a U.S.

Probation Officer prepared a pre-sentence investigation report.

Relying on U.S.S.G. § 2B1.1(a)(2), pertaining to burglaries of

nonresidential            structures,       the   probation          officer         calculated

Powell’s base offense level at 12.                     Despite the language of the

plea agreement, Powell received only a two-level reduction for
                               2
acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a),

because his base offense level was less than 16.                            The resulting

total offense level was 10.                    Powell’s criminal history category

was VI, which yielded a guidelines range of 24 to 30 months of

imprisonment.

       Based      on    Powell’s        numerous     uncounted      prior     convictions,

some   of    a    similar     nature          to   the   charge   of    conviction,         and

contending that Powell’s criminal history category inadequately

represented his criminal history and likelihood that he would

commit      other       crimes,     the       government      moved     for     an     upward

departure.        Powell opposed the motion.

       At the sentencing hearing, the court adopted the probation

officer’s        calculation       of    Powell’s        guidelines,    finding       a    base

offense level of 12, with a two-point reduction for acceptance

of responsibility, and a total offense level of 10.                                    Powell

offered no objection to the court’s preliminary findings.

       The court next considered the government’s motion for an

upward      departure,       and        ultimately       departed      upward    by       eight

offense levels to a final offense level of 18.                          This resulted in

a guidelines range of 57 to 71 months of imprisonment.                                     The

court imposed a 71-month sentence.                        Powell does not challenge

the upward departure on appeal.

       Following the upward departure, Powell urged the court to

revisit     his        entitlement       to    an    additional     reduction         in    his
                                                3
offense level for acceptance of responsibility pursuant to the

plea agreement.        The government, however, declined the court’s

invitation     to    seek     an     additional           level    for      acceptance        of

responsibility.        The     government         articulated           two    grounds      for

opposing a third-level reduction.                     First, under the methodology

set forth in the Guidelines, the calculation of acceptance of

responsibility       precedes        the     court’s         consideration            of     any

departure motions.          And second, the additional reduction was not

appropriate under the facts of this case. 1

      Powell’s      counsel       stressed       to    the      court       that   the     plea

agreement      clearly        contemplated            a      third-level           reduction.

Following the government’s refusal to move for such reduction,

the court imposed a 71-month sentence without further comment.

At no time did Powell seek specific enforcement of the plea

agreement or request leave of court to withdraw his plea of

guilty.   This appeal followed.

      Powell   frames       the    issue     on       appeal      as    a    single      issue:

“[w]as the District Court in error in not allowing an additional

one   level    reduction       for    acceptance           of     responsibility           under


      1
       Although neither side raised the issue, we note that a
third-level adjustment for acceptance of responsibility can only
be granted upon formal motion by the government at the time of
sentencing. United States v. Chase, 466 F.3d 310, 315 (4th Cir.
2006).



                                             4
Section    3E1.1(b),    Federal      Sentencing         Guidelines?”            Candidly

conceding    an     absence    of   authority      supporting        his    position,

Powell argues that the district court erred in failing to award

his     requested     third-level        reduction         for       acceptance      of

responsibility following the upward departure.                   He contends that

even though his initially calculated adjusted offense level was

less than 16, his total offense level exceeded 16 following the

upward departure.       At that point, in his view, the court should

have reduced his offense level by a third point for acceptance

of    responsibility,    as    dictated      by   the    plea    agreement.         The

methodology urged by Powell is contrary to the Guidelines and

all interpretive cases.

       Section 1B1.1 of the Guidelines specifically directs the

order in which its provisions are to be applied.                     Application of

the    appropriate     adjustment      for   acceptance         of   responsibility

occurs prior to any consideration of departures.                           U.S.S.G. §

1B1.1(e)(i).        Under the prescribed order of calculation, the

sentencing   guidelines       range,    including       application        of    offense

level adjustments under U.S.S.G. § 1B1.1(b),(c), and (d), should

be    completed   before      the   determination        of   whether      an     upward

departure is appropriate.            Because Powell’s offense level was

not 16 or more at that juncture, he did not meet the requirement

for a third-level reduction under U.S.S.G. § 3E1.1(b).


                                         5
       Powell      draws       the     Court’s     attention       to    an     unpublished

decision of this Court, United States v. Schellenberger, 246

Fed.    Appx.          830    (4th     Cir.     2007).       Powell’s          reliance    on

Schellenberger,              however,     is      misplaced.             The     court      in

Schellenberger           did    not     address     the    sequence       of     guidelines

calculations.                Powell    simply     points    out     the       computational

process employed by the sentencing court in Schellenberger.                                 “A

presentence             investigation            report      (“PSR”)            established

Schellenberger’s base offense level at 17, and added 29 levels

to account for various sentencing factors.                          Three points were

then subtracted for acceptance of responsibility.                              This yielded

a total offense level of 43.”                    Id. at 832.       The trial court in

Schellenberger            appropriately         enhanced     the    defendant’s           base

offense level for specific offense characteristics outlined in

Chapter 2 of the Guidelines and adjustments related to victim,

role, and obstruction of justice from parts A, B, and C of

Chapter      3,    before       deducting       three    levels    for    acceptance       of

responsibility.              This faithfully tracks the general application

principles delineated in § 1B1.1 of the Guidelines.                             The product

of     the    trial          court’s      calculation       in     Schellenberger           is

appropriately referred to as an adjusted offense level, which

precedes any determination of whether a departure is warranted.

       This       Court       has     repeatedly    counseled       trial        courts     in

sentencing         a     defendant       to     first      properly       calculate       the
                                                6
sentencing     range     recommended          by        the     Guidelines,      next     to

determine      whether       an      upward        or     downward          departure     is

appropriate, and lastly, to decide whether a sentence within

that range, and within statutory limits, serves the factors set

forth in 18 U.S.C. § 3553(a).                 See United States v. Moreland,

437    F.3d   424,     432    (4th    Cir.     2006).              That     procedure    was

meticulously followed by the trial court in the immediate case

at hand.

       Although   he    neither      framed        it    as    a   separate     issue    for

appeal nor raised it in the district court, Powell argues that

the government breached the plea agreement by failing to move

for    the    additional      level     of     reduction           for      acceptance   of

responsibility.        On close examination, the plea agreement does

not obligate the government to move for a three-level reduction

for acceptance of responsibility.                       The plea agreement stated

that   “[a]   downward       adjustment       of    3    levels       for   acceptance   of

responsibility is warranted under U.S.S.G. §3E1.1.”                             (J.A., at

20.)     Agreement     notwithstanding,            the        court   was    powerless    to

award the third level under U.S.S.G. § 3E1.1(b) when the base

offense level was 12.             Therefore, even if the United States had

moved for a third-level reduction, the trial court lacked the

power to grant the request.              Consequently, this element of the

plea agreement was unenforceable.                  In any event, Powell did not

seek in the district court, and does not seek here, to withdraw
                               7
his   guilty   plea,   but   instead       requests   that   we   vacate   the

judgment and remand to the district court for resentencing “with

an applicable advisory Guideline range of 51–63 months.”              We are

not at liberty to direct the district court to sentence within

an inapplicable guideline range. 2

      Finding no error in calculating the sentencing guidelines,

the district court’s judgment is, therefore,

                                                                    AFFIRMED.




      2
       Even if we were to determine that Powell has properly
raised the issue that the government breached its plea agreement
by declining to move the district court for an additional
reduction for acceptance of responsibility, our review would be
for plain error because he failed to raise this issue in the
district court.   United States v. McQueen, 108 F.3d 64, 65-66
(4th Cir. 1997).




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