                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 13-4235


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES W. RICHARD,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:12-cr-00038-FPS-JES-1)


Submitted:   December 10, 2013             Decided:   January 10, 2014


Before KING, FLOYD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Sandra Baughn Jelovsek, LAW OFFICE OF SANDRA BAUGHN JELOVSEK,
Johnson City, Tennessee, for Appellant. William J. Ihlenfeld,
II, United States Attorney, Stephen L. Vogrin, Randolph J.
Bernard, Assistant United States Attorneys, Wheeling, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            James W. Richard appeals his sentence after pleading

guilty to one count of mailing threatening communications in

violation    of    18    U.S.C.       § 876(a)      (2012).        On    appeal,    Richard

contends that the district court erred by applying a two-level

enhancement       to    his    base    offense       level    under      U.S.    Sentencing

Guidelines    Manual          § 2A6.1(b)(3)         (2012)     “when      there    was    no

protective order in effect at the time he mailed the threatening

communication for which he was convicted.”                          Appellant’s Br. at

1.    We affirm.

            “A federal court of appeals normally will not correct

a legal error made in criminal trial court proceedings unless

the   defendant        first    brought       the    error    to    the    trial    court’s

attention.”       Henderson v. United States, 133 S. Ct. 1121, 1124

(2013)    (citing       United    States       v.     Olano,       507    U.S.    725,   731

(1993)).     Federal Rule of Criminal Procedure 52(b) creates an

exception to the normal rule, providing “[a] plain error that

affects substantial rights may be considered even though it was

not brought to the court’s attention.”                   Fed. R. Crim. P. 52(b).

            Because       Richard       did    not    object       to    the    enhancement

under USSG § 2A6.1(b)(3) in the district court, we review this

issue for plain error.            See United States v. Carthorne, 726 F.3d

503, 509 (4th Cir. 2013).                 To establish plain error, Richard

must show:        (1) that an error was made; (2) that the error was

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plain; and (3) that the error affected his substantial rights.

See id. at 510 (citing Henderson, 133 S. Ct. at 1126; Olano, 507

U.S. at 732-35).          If he makes this showing, the decision to

correct the error remains within our discretion, and we will

exercise that discretion only if the error would result in a

miscarriage of justice or would otherwise seriously affect the

fairness,      integrity,       or      public    reputation      of     judicial

proceedings.      Id. (citations and quotation marks omitted).

            We have reviewed the record and the parties’ briefs,

and we conclude that Richard has not made the requisite showing.

When applying USSG § 2A6.1(b)(3), a district court considers not

only   conduct    in   the    offense    of   conviction   but    also   relevant

conduct   under    USSG      § 1B1.3.     See    USSG   § 1B1.1   cmt.    n.1(H);

United States v. Brock, 211 F.3d 88, 91 n.2 (4th Cir. 2000).

Moreover, even when prior conduct does not constitute “relevant

conduct” under USSG § 1B1.3, a district court is directed to

consider such prior conduct when applying USSG § 2A6.1(b)(3) if

it is “substantially and directly connected to the offense.”

USSG § 2A6.1 cmt. n.1; see United States v. Worrell, 313 F.3d

867, 876-78 (4th Cir. 2002).              Applying these standards to the

facts of this case, we conclude that the district court did not

plainly err by considering the conduct alleged in the count that

was dismissed when applying USSG § 2A6.1(b)(3).



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           We therefore 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




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