                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 16-4460


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

KEVIN WARD,

                     Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. James C. Dever III, Chief District Judge. (4:15-cr-00067-D-1)


Submitted: April 28, 2017                                          Decided: May 4, 2017


Before MOTZ, TRAXLER, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Wes J. Camden, Caitlin M. Poe, WARD & SMITH, PA, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, United States Attorney, Jennifer P. May-Parker, First
Assistant United States Attorney, Phillip A. Rubin, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Kevin Ward pleaded guilty pursuant to a plea agreement to one count of making

false claims against the United States, in violation of 18 U.S.C. § 287 (2012). On appeal,

Ward challenges the district court’s finding that he was an organizer or leader of the

offense that involved five or more persons and the substantive reasonableness of his

above-Sentencing Guidelines sentence. * Finding no reversible error, we affirm.

       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. Cameron, 573 F.3d

179, 184, 186 (4th Cir. 2009). To qualify for the four-level enhancement, a defendant

must have been “an organizer or leader of a criminal activity that involved five or more

participants or was otherwise extensive.”         U.S. Sentencing Guidelines Manual

§ 3B1.1(a). Factors that distinguish an organizational or leadership role from lesser roles

include exercising decision-making authority, the nature of participation in the offense,

recruiting accomplices, claiming a larger share of the criminal proceeds, planning or

organizing the offense, the nature and scope of illegal activity, and the degree of control

and authority 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). “Leadership over only one


       *
          We decline to consider whether Ward’s appeal waiver bars his claim that the
district court erred in finding that he was an organizer or leader of the offense.


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other participant is sufficient as long as there is some control exercised.” United States v.

Rashwan, 328 F.3d 160, 166 (4th Cir. 2003). The facts establishing the enhancement

must be supported by a preponderance of the evidence. See United States v. Harvey, 532

F.3d 326, 337 (4th Cir. 2008). After reviewing the record, we conclude that the district

court did not clearly err in finding that Ward was eligible for the four-level increase.

       “[A]ny sentence, within or outside of the Guidelines range, as a result of a

departure or of a variance, must be reviewed by appellate courts for reasonableness

pursuant to an abuse of discretion standard.” United States v. Diosdado-Star, 630 F.3d

359, 365 (4th Cir. 2010); see also Gall v. United States, 552 U.S. 38, 51 (2007); Rita v.

United States, 551 U.S. 338, 350 (2007). “Substantive reasonableness examines the

totality of the circumstances to see whether the sentencing court abused its discretion in

concluding that the sentence it chose satisfied the standards set forth in § 3553(a).”

United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2012). “[A]n appellate

court must defer to the trial court and can reverse a sentence only if it is unreasonable,

even if the sentence would not have been the choice of the appellate court.” United

States v. Evans, 526 F.3d 155, 160 (4th Cir. 2008). We conclude that the district court

did not abuse its discretion by imposing an above-Guidelines sentence.

       Accordingly, we affirm the conviction and sentence.          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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