             Certiorari granted by Supreme Court, June 23, 2014
                 Affirmed by Supreme Court, January 13, 2015



                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 12-4956


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

LARRY WHITFIELD,

                 Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., District Judge. (3:09-cr-00009-RJC-DCK-1)


Submitted:   November 27, 2013              Decided:    December 10, 2013


Before WILKINSON, NIEMEYER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Henderson   Hill,  Executive   Director,  Joshua   B.  Carpenter,
Appellate Counsel, Asheville, North Carolina; Erin K. Taylor,
Kevin A. Tate, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant.          Anne M.
Tompkins, United States Attorney, William M. Miller, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Larry          Whitfield       appeals          from        the     amended      criminal

judgment       imposed          following      our       remand         of     his    case    to     the

district    court          for    resentencing           for      his    forced       accompaniment

conviction under 18 U.S.C. § 2113(e) (2012).                                   See United States

v.   Whitfield,           695    F.3d     288,     311      (4th        Cir.    2012).         At   the

resentencing hearing, Whitfield challenged the district court’s

application          of     U.S.        Sentencing          Guidelines          Manual        (“USSG”)

§ 2A1.1     (2009).               The     district          court        rejected       Whitfield’s

argument, concluding that his conduct caused the death of the

victim, Mary Parnell.                   The court imposed a 264-month sentence

for Whitfield’s § 2113(e) conviction.

            On appeal, Whitfield first contends that the district

court erred by miscalculating his Guidelines range.                                       We review

Whitfield’s       sentence            under    a    deferential              abuse-of-discretion

standard.       Gall v. United States, 552 U.S. 38, 41 (2007).                                      This

review     requires          consideration             of      both      the     procedural         and

substantive reasonableness of the sentence.                                    Id. at 51; United

States    v.     Lynn,          592     F.3d   572,         575    (4th        Cir.    2010).         In

determining procedural reasonableness, we consider whether the

district       court       properly        calculated            the     defendant’s         advisory

Guidelines      range,           considered        the      18    U.S.C.        § 3553(a)       (2012)

factors,       and        sufficiently         explained           the       selected        sentence.

Gall, 552 U.S. at 51.


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           In     assessing    whether     a    district      court    properly

calculated the Guidelines range, “including application of any

sentencing enhancements, we review the district court’s legal

conclusions de novo and its factual findings for clear error.”

United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009).

“[S]entencing judges may find facts relevant to determining a

Guidelines range by a preponderance of the evidence, so long as

that Guidelines sentence is treated as advisory and falls within

the   statutory    maximum    authorized       [by   the   jury's     verdict].”

United States v. Alvarado Perez, 609 F.3d 609, 614 (4th Cir.

2010) (internal quotation marks omitted).

           The district court in this case determined Whitfield’s

Guidelines range by first applying USSG § 2B3.1, which provides

the offense level for robbery.        Section 2B3.1(c) directs a court

to apply a cross-reference to USSG § 2A1.1 “[i]f a victim was

killed under circumstances that would constitute murder under 18

U.S.C. § 1111.”      The definition of first-degree murder includes

killings   “committed    in    the   perpetration      of,    or    attempt   to

perpetrate, any . . . burglary, or robbery.”                 18 U.S.C. § 1111

(2012); see also United States v. Williams, 342 F.3d 350, 356

(4th Cir. 2003).

           In support of his contention that the district court

miscalculated the applicable Guidelines range, Whitfield argues

that the court should not have applied USSG § 2B3.1’s cross-


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reference to the felony murder provision in USSG § 2A1.1.                                 He

asserts that the district court applied an improper causation

standard in determining that he caused Parnell’s death.

            At    resentencing,         the      district        court   found      by    a

preponderance of the evidence presented at trial, including the

testimony of the Government’s expert witnesses, that Parnell’s

death was caused by Whitfield’s conduct.                        We cannot say, after

careful   review       of   the    record,       that    this    finding     is    clearly

erroneous or that the district court committed legal error in

assessing      the     evidence.         Therefore,         Whitfield’s        causation

argument entitles him to no relief.

            Whitfield       alternatively          asserts        that   the      district

court   erred    in    concluding       that     the     forced    accompaniment,         as

opposed   to     his   mere   presence,          caused    Parnell’s     death.          The

Guidelines,       however,         do    not       require        that     the      forced

accompaniment directly cause the death; instead, USSG § 2A1.1 is

applicable because Parnell’s death occurred during the course of

Whitfield’s      attempted        robbery.         See    USSG     § 2A1.1       cmt.    n.1

(noting provision’s applicability “when death results from the

commission of certain felonies”).                   We therefore conclude that




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the district court did not err in applying the cross-reference

to USSG § 2A1.1 for Whitfield’s forced accompaniment conviction. ∗

                  Whitfield      next    contends         that   the    district       court

violated his Fifth and Sixth Amendment rights by resentencing

him on acquitted conduct.                 As Whitfield acknowledges, however,

this argument is foreclosed by our decision in United States v.

Young, 609 F.3d 348, 356 (4th Cir. 2010).

                  Finally, Whitfield argues that his 264-month sentence

exceeds the statutory maximum.                  In United States v. Turner, 389

F.3d       111,    121    (4th   Cir.   2004),      we    interpreted     § 2113(e)      “to

permit       a    maximum     sentence    of       life    imprisonment”       for    forced

accompaniment            convictions.      We       therefore     conclude      that    this

argument lacks merit.

                  Accordingly, we affirm the district court’s judgment.

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




       ∗
       Because we conclude that the district court did not err in
resentencing Whitfield, we reject his arguments that he should
be resentenced on his other convictions and that he should be
resentenced by a different district court judge.




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