                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4604


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

STEVEN RAY LOVIN,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (7:06-cr-00045-BO-3)


Argued:   March 25, 2010                    Decided:   September 8, 2010


Before TRAXLER,     Chief   Judge,   and   GREGORY   and   SHEDD,   Circuit
Judges.


Affirmed by unpublished opinion. Chief Judge Traxler wrote the
majority opinion, in which Judge Gregory joined.   Judge Shedd
wrote a dissenting opinion.


ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina, for Appellant.        Anne
Margaret Hayes, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.  ON BRIEF: George E. B. Holding,
United States Attorney, Banumathi Rangarajan, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
TRAXLER, Chief Judge:

       Steven Lovin pleaded guilty to a RICO conspiracy charge,

see    18        U.S.C.A.     §   1962(d)         (West      2000),     and   a    charge    of

conspiring to commit an offense against the United States, see

18 U.S.C.A. § 371 (West 2000), and was sentenced to 144 months’

imprisonment.           Lovin appeals, challenging the sentence imposed

by    the        district     court.         We    find      no    reversible      error    and

accordingly affirm the sentence. 1



                                                  I.

       A     joint      federal        and        state      investigation         (known    as

“Operation Tarnished Badge”) uncovered widespread corruption and

criminal          conduct     among    members         of    the    Sheriff’s      Office    of

Robeson      County,         North    Carolina,        who    conspired       to    use   their

positions         as   law    enforcement         officers        for   personal    financial

gain       and    to   increase       their       power     and    influence       within   the

department and the community.                      The criminal acts engaged in by

the    members         of     the      conspiracy           included      arson,     assault,

extortion, and unlawful searches and seizures.


       1
       Shortly before oral argument was held in this case, the
government filed an unopposed motion to remove the case from the
argument calendar and to remand to the district court for re-
sentencing.   We previously denied that portion of the motion
seeking to remove the case from the oral argument calendar, and
we now deny the motion to remand.



                                                  3
     As a result of the investigation, Appellant Steve Lovin, a

detective in the Sheriff’s Office, entered into a plea agreement

under which he pleaded guilty to the RICO conspiracy charge and

the charge of conspiring to defraud the United States.                       The

charges were based, inter alia, on actions that Lovin and his

partner     and    co-defendant    James    Hunt    took    while   conducting

traffic stops on Interstate 95.              Lovin and Hunt used racial

profiling     to      target    Hispanics    they     believed      might     be

transporting illegal drugs and currency, and they skimmed off

for themselves a portion of the currency seized during these

stops. 2    Over the course of six traffic stops, Lovin and Hunt

kept $150,000 for themselves.           At the time of his plea, Lovin

had $40,000 hidden in a secret compartment he had installed in

his house.

     Lovin’s      advisory     sentencing   range   as     calculated   by   the

district court was 70-87 months’ imprisonment.                   The district

court varied upward and sentenced Lovin to 144 months on the

RICO conspiracy charge and a concurrent 60 months on the § 371

charge.       Lovin    appealed,    challenging     the     district    court’s


     2
        Under the Department of Justice’s Equitable Sharing
Program, the federal government may share the funds seized in
drug cases with the local law enforcement agency that seized the
funds. See 21 U.S.C.A. § 881(e)(1)(A) (West 1999 & Supp. 2010);
In re U.S. Currency, $844,520.00, 136 F.3d 581, 583 (8th Cir.
1998) (per curiam).



                                       4
calculation         of    the     Guidelines          sentencing          range     and   the

reasonableness of the sentence imposed by the district court.

In its brief to this court, the government contended that the

appeal waiver contained in Lovin’s plea agreement barred all of

the   issues        raised      by     Lovin        save    his     challenge        to    the

reasonableness of the 144-month sentence.

      Shortly before oral argument was scheduled to take place,

the government filed an unopposed motion to remove the case from

the argument calendar and to vacate and remand for resentencing.

The   government         argued      that    under    recent       case    law    from    this

court,      it     was    clear       that     the     sentence      was      procedurally

unreasonable because the district court failed to sufficiently

explain      its     decision        to      vary    so     significantly          from   the

Guidelines’ advisory sentencing range.                      The government therefore

requested that this court vacate the sentence and remand for a

full resentencing.           We denied the motion to remove the case from

the   oral       argument    calendar        and    heard    argument       as    originally

scheduled.

      The    government’s         concession         of    error    “does    not    end    our

inquiry, . . . as we are not at liberty to vacate and remand for

resentencing        on   the    Government’s         concession      of     error    alone.”

United States v. Rodriguez, 433 F.3d 411, 414 n.6 (4th Cir.

2006); accord United States v. Robinson, 460 F.3d 550, 558 n.7

(4th Cir. 2006)          (“Our judicial obligations compel us to examine

                                               5
independently the errors confessed.” (internal quotation marks

and alteration omitted)).        After reviewing the briefs and the

transcript   of   the    proceedings      below     and   considering     the

arguments of the parties, we find no error in the sentencing and

we therefore affirm. 3



                                   II.

     Lovin   raises   several    challenges    to   the   district   court’s

calculation of his advisory Guidelines sentencing range and the

court’s ultimate determination of the appropriate sentence.

                                    A.

     Lovin   first    contends   that    the   district   court   erred   by

applying an obstruction-of-justice enhancement that was premised

     3
       At oral argument, the government explicitly waived its
prior reliance on the appeal waiver contained in Lovin’s plea
agreement, and this court does not sua sponte enforce such
waivers. See, e.g., United States v. Brock, 211 F.3d 88, 90 n.1
(4th Cir. 2000); United States v. Metzger, 3 F.3d 756, 757-58
(4th Cir. 1993).   Moreover, the plea agreement permitted Lovin
“to appeal from a sentence in excess of the applicable advisory
Guideline range that is established at sentencing,” J.A. 145,
but did not expressly prohibit Lovin from challenging issues
“that relate to the establishment of the . . . Guideline range,”
United States v. Cohen, 459 F.3d 490, 493 (4th Cir. 2006).
Under these circumstances, we do not believe the plea agreement
forecloses Lovin’s challenges to the Guidelines calculations
underlying the district court’s sentence.      See, e.g., United
States v. Harvey, 791 F.2d 294, 303 (4th Cir. 1986) (“Having
concluded that the disputed provision was ambiguous in the
respect found dispositive by the district court, we further
conclude that under the plea bargaining principles above stated
the provision must be read against the Government.”).



                                    6
on Lovin’s pre-plea contacting of several witnesses in violation

of the terms of his pre-trial supervision.                        We find no error.

       Under    the     Sentencing       Guidelines,         a   two-level             enhancement

for   obstruction        of    justice      may       be   applied         if    the     defendant

“willfully obstructed or impeded, or attempted to obstruct or

impede,    the     administration           of       justice     with       respect       to     the

investigation, prosecution, or sentencing of the instant offense

of    conviction.”            U.S.S.G.    §      3C1.1      (2007).             “[T]hreatening,

intimidating,          or     otherwise        unlawfully             influencing          a     co-

defendant,       witness,       or      juror,        directly        or        indirectly,      or

attempting to do so,” qualifies for the enhancement.                                     Id. cmt.

n.4(a).         When    applying      the      enhancement,           the       district       court

adopted the rulings and findings made at an earlier hearing in

which     the     government         sought          to    revoke      Lovin’s          pre-trial

supervision based on Lovin’s contacts with the witnesses, and

the court also adopted the factual findings set out in the PSR

regarding the contacts.

       The evidence presented at the earlier hearing established

that Lovin contacted various witnesses, but the evidence did not

establish that Lovin threatened, intimidated, or attempted to

influence       those    witnesses,       as     required        by    §    3C1.1.         And    at

sentencing,       Lovin       presented       evidence       showing            that    while    he

contacted       some        potential     witnesses          (Michael           Britt,      Herman

Madden, and Mark Locklear), he did not attempt to improperly

                                                 7
influence them.           Nonetheless, the facts set forth in the PSR

established that Lovin had contacted co-defendant Hunt and told

him   “not     to    cooperate     with         investigators          in    the     instant

offense,” J.A. 254, and that Lovin had likewise attempted to

influence     the   cooperation        of   Paul       Locklear     and      James    Dallas

Jacobs.      Lovin did not object to those portions of the PSR, nor

did   he   present       at   sentencing        any    evidence     countering         those

factual determinations.          Under these circumstances, the district

court’s adoption of those uncontroverted portions of the PSR

provides a sufficient factual basis to support the enhancement

for obstruction of justice.                 See Fed. R. Crim. P. 32(i)(3)(A)

(noting that sentencing court “may accept any undisputed portion

of the presentence report as a finding of fact”).

                                            B.

      Lovin    also       challenges    the       district       court’s      refusal     to

reduce      the     offense      level           for     Lovin’s        acceptance        of

responsibility.          Again we find no error.

      The Guidelines authorize an offense-level reduction for a

defendant who “clearly demonstrates acceptance of responsibility

for his offense.”          U.S.S.G. § 3E1.1(a).            Conduct that results in

an    obstruction-of-justice           enhancement,             however,       “ordinarily

indicates that the defendant has not accepted responsibility for

his   criminal      conduct.”           Id.       cmt.    n.4      (emphasis         added).

Nonetheless,        in     “extraordinary             cases,”     an        acceptance-of-

                                            8
responsibility reduction may be appropriate even in the face of

an   obstruction-of-justice                enhancement.           Id.      We    have     just

affirmed the district court’s application of an obstruction-of-

justice enhancement, and Lovin has not established that his is

an extraordinary case.               Under these circumstances, we cannot say

the district court clearly erred in denying Lovin an acceptance-

of-responsibility adjustment.                    See United States v. Miller, 77

F.3d    71,    74    (4th     Cir.    1996)      (“The    district      court’s       decision

whether       to    grant      a    two-level         reduction    for     acceptance      of

responsibility is a factual determination that we review for

clear error.”).

                                                 C.

       Lovin       also   challenges        the       district    court’s       decision    to

apply     a     four-level          role-in-the-offense           enhancement.             See

U.S.S.G. § 3B1.1.             We find no error.

       The district court had before it at sentencing the PSR,

which    recommended          a    three-level        enhancement       based    on    Lovin’s

alleged role as a manager or supervisor in the offense.                                    See

U.S.S.G.       §    3B1.1(b)        (“If    the       defendant    was     a    manager     or

supervisor (but not an organizer or leader) and the criminal

activity involved five or more participants or was otherwise

extensive, increase by 3 levels.”).                      As support for the position

that    Lovin       was   a    manager      or    supervisor,      the    PSR     relied    on

information from Hunt and the investigators on the case.                                   The

                                                 9
PSR stated:        “According to Hunt, Lovin determined when and how

they   would     steal       money    from       highway    seizures.           Lovin    also

instructed Hunt how to spend the stolen money to conceal the

true source of the funds and to evade detection by other law

enforcement agencies.”               J.A. 253.           The PSR also stated that:

“According to investigators, Lovin directed the activities of

James Hunt by instructing and directing when and how they would

steal money from highway seizures.”                  J.A. 254.

       Lovin objected to the role-in-the-offense enhancement.                              In

opposition       to    the    information          set     out    in    the    PSR,      Lovin

submitted his own affidavit contradicting the PSR’s description

of his relationship with Hunt, and counsel for Lovin submitted

oral   argument        against       any    such     enhancement.             During    these

discussions       at    the    sentencing          hearing,       the    district        court

informed the parties that it was considering an enhancement of

four levels rather than three.                   See U.S.S.G. § 3B1.1(a) (“If the

defendant was an organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive,

increase    by    4    levels.”).           After    some    digression,         the    court

addressed    the       subject    of       Lovin’s    role       in    the    offense    when

Lovin’s    attorney      informed          the    court    that       Lovin    had     nothing

further to present on the legal issue and the court stated that

an increase of four levels was proven to be appropriate.



                                             10
        On appeal, Lovin contends that the district court failed to

make the factual findings necessary to support the role-in-the-

offense      enhancement.           See     Fed.    R.    Crim.     P.     32(i)(3)(B)

(providing that at sentencing, the district court “must -- for

any     disputed     portion    of        the    presentence      report    or    other

controverted matter -- rule on the dispute or determine that a

ruling is unnecessary”); United States v. Llamas, 599 F.3d 381,

388   (4th    Cir.    2010)    (“[A]       sentencing     court     must    provide    a

sufficient     explanation      of        its    rationale     in   making       factual

findings to support its calculation of a defendant’s Guidelines

range.” (internal quotation marks omitted)).                   We disagree.

      Although the court did not at the hearing articulate the

basis for its decision to apply the four-level enhancement, in

its formal written judgment the court indicated clearly that it

adopted the findings in the PSR with the addition of an extra

point    because     Lovin    was    an    organizer      or   leader.       Obviously

implicit in this acceptance of the information in the PSR was

the court’s decision to credit the information provided by Hunt

and the investigators over the affidavit of Lovin.                         Under these

circumstances, the court’s subsequent adoption of the PSR was a

proper means of resolving the disputed factual issues underlying

the § 3B1.1 enhancement.             See United States v. Walker, 29 F.3d

908, 911 (4th Cir. 1994) (explaining that the district court may

satisfy      its   obligation        to     resolve      sentencing      disputes     by

                                            11
adopting the findings in the PSR:               “Simply adopting the PSR’s

findings in toto is sufficient when the context of the ruling

makes clear that the district court intended by the adoption to

rule on each of the alleged factual inaccuracies.” (internal

quotation marks and alteration omitted)).                The only remaining

question, then, is whether the facts set forth in the PSR and

accepted by the district court are sufficient to support the

four-level enhancement applied by the court.

         To determine whether a defendant can be considered a leader

or organizer, 4 rather than merely a manager or supervisor subject

to   a       lesser   enhancement,   the    Guidelines   instruct   sentencing

courts to consider

         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.

U.S.S.G. § 3B1.1 cmt. n.4.           The facts set forth in the PSR and

adopted by the district court -- that Lovin made the decisions

about when and how the money would be stolen, and that Lovin


         4
       The leader-organizer enhancement applies if the “criminal
activity . . . involved five or more participants or was
otherwise extensive.”    U.S.S.G. § 3B1.1(a).    Lovin does not
dispute that the criminal activity at issue here involved five
or more participants or was otherwise extensive.




                                           12
instructed Hunt about how to conceal the source of the stolen

funds and evade detection -- reflect several of these factors,

showing that Lovin was the leader of this criminal activity.

With regard to the traffic stops, there was little left for Hunt

to do except follow Lovin’s instructions.            After the thefts, it

was again Lovin who was telling Hunt what to do to avoid being

caught.    While not all of the factors listed in the Guidelines

are present in this case, there is no such requirement in the

Guidelines, nor do the Guidelines demand, that any particular

weight be given to any particular factor.                 See, e.g., United

States v. Wasz, 450 F.3d 720, 729 (7th Cir. 2006) (“No one of

these factors is considered a prerequisite to the enhancement,

and, at the same time, the factors are not necessarily entitled

to equal weight.”).

       The evidence set forth in the PSR permitted the district

court to conclude that Lovin bore the primary responsibility for

the operation of the traffic stops by controlling Hunt’s actions

with regard to these stops, and that Lovin’s greater culpability

warranted a leadership enhancement.           See Llamas, 599 F.3d at 390

(“[T]he    aggravating   role    adjustment    is   appropriate     where   the

evidence    demonstrates     that      the    defendant     controlled      the

activities of other participants . . . .” (internal quotation

marks omitted)); United States v. Sierra, 188 F.3d 798, 804 (7th

Cir.   1999)   (explaining      that   the   Guideline    factors   “must   be

                                       13
weighed by the district court in light of the Guidelines’ intent

to    punish      with     greater    severity      leaders       and     organizers     of

criminal activity”); United States v. Moore, 29 F.3d 175, 179

(4th Cir. 1994) (“These roles in the offense provisions were

designed     to      permit      sentencing   judges       to     make    individualized

distinctions          among        defendants       engaged         in     a      criminal

enterprise.”).             The    question    of    a   defendant’s        role    in   the

offense is an inherently factual one, and, given the facts of

this case, we cannot say that the district court clearly erred

by concluding that a four-level enhancement was warranted.                              See

United States v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009)

(“The court’s ruling regarding a role adjustment is a factual

determination reviewed for clear error.”).

                                             D.

       When imposing sentence, the district court must consider

the advisory Guideline range and the arguments of the parties in

light of the factors set forth in 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2010), and the court must select what it believes

to    be   the    appropriate        sentence      based     on   an     “individualized

assessment” of the facts of the case.                      Gall v. United States,

552   U.S.     38,    50   (2007).    “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.

                                             14
Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation

marks omitted).

     Lovin     contends        that     the      district        court        failed     to

sufficiently    explain        the    reasoning         behind    the     sentence       it

selected, particularly given the extent of the variance between

advisory    sentencing    range       of     70-87    months     and    the    144-month

sentence actually imposed by the district court. 5                            See, e.g.,

Gall, 552 U.S. at 50 (“We find it uncontroversial that a major

departure     should      be     supported           by    a     more      significant

justification than a minor one.”).               We disagree.

     The district court did not state in open court that it had

considered the § 3553(a) factors.                    Nonetheless, the statements

made by the district court during the sentencing hearing and the

“Statement     of   Reasons”         filed      along     with   the      judgment       of

conviction   make   it    clear       that    the    court     did     consider    the    §

3553(a) factors.         And in its Statement of Reasons, the court

indicated that the above-Guidelines sentence was warranted by

consideration of four of the § 3553(a) factors -- the nature and

     5
       Lovin also contends that the district court erred by
failing to move incrementally through successively higher
offense levels when departing from the advisory Guideline range.
See U.S.S.G. § 4A1.3(a)(4)(B) (2007); United States v. Dalton,
477 F.3d 195, 199 (4th Cir. 2007). Because Lovin did not have a
category VI criminal history and the departure was not premised
on a determination that Lovin’s criminal history score under-
represented the seriousness of his history, § 4A1.3(a)(4)(B) and
Dalton are inapplicable, and Lovin’s challenge is without merit.



                                           15
circumstances of the offense, see 18 U.S.C.A. § 3553(a)(1), the

need for the sentence to reflect the seriousness of the offense

and to promote respect for the law, see id. § 3553(a)(2)(A), the

need to provide adequate deterrence, see id. § 3553(a)(2)(B),

and the need to protect the public, see id. § 3553(a)(2)(C).

      Although the district court did not address each individual

issue at the moment that it formally announced its sentence, the

statements made by the district court throughout the sentencing

hearing clearly revealed the basis for the court’s sentence.

The court repeatedly noted the seriousness of Lovin’s offenses,

and the court made it clear that it found Lovin’s crimes to be

particularly egregious because he used the power of his badge to

commit the crimes.           See J.A. 201 (“[T]he entire police power of

the   state     has   been    corrupted    and   .    .   .   used    for   criminal

purpose.”).      The court noted that Lovin and Hunt preyed on those

who “had no voice” because they were in the country illegally,

J.A. 224, and the court rightly expressed its outrage that Lovin

had perjured himself in the trials of the victims of Lovin’s

cash-skimming scheme.              The court’s statements clearly bear on

the § 3553(a) factors that the court believed required an above-

Guidelines       sentence,          and   the        statements       reflect     an

individualized assessment by the court of the particular facts

of    Lovin’s    case.        If    the   district     court    had    made     these

statements contemporaneously with the court’s pronouncement of

                                          16
sentence, there could be no doubt about the sufficiency of the

court’s explanation.             See United States v. Engle, 592 F.3d 495,

500 (4th Cir. 2010) (“[T]he court’s explanation must . . . be

sufficient     to    satisfy      the     appellate   court      that    the    district

court has considered the parties’ arguments and has a reasoned

basis for exercising its own legal decisionmaking authority.”

(internal quotation marks and alterations omitted)).                            That the

statements        were    instead    made    throughout       the      course    of    the

hearing does not change that conclusion.                   Between the statements

made at the hearing and the conclusions reached in the formal

judgment, the reasons for the court’s sentence are quite clear.

Accordingly, we reject Lovin’s claim that the district court

failed to adequately explain the basis for the above-Guidelines

sentence that it imposed.

       To   the    extent    that    Lovin’s      brief    can   be     understood     as

challenging        the    substantive       reasonableness        of    the     sentence

imposed by the district court, the challenge fails.                            Given the

nature of Lovin’s conduct and the extent to which his crimes

brought     disrepute       to    legal    system,    we   cannot       say     that   the

district court abused its discretion by imposing a sentence of

144 months.         See United States v. Pauley, 511 F.3d 468, 473-74

(4th    Cir.      2007)    (“Substantive         reasonableness        review    entails

taking into account the totality of the circumstances, including

the extent of any variance from the Guidelines range. . . .                            In

                                            17
reviewing the substantive reasonableness of the sentence, we may

consider   the   extent   of   the   deviation,   but   we   must   give    due

deference to the district court’s decision that the § 3553(a)

factors, on a whole, justify the extent of the variance.                   Even

if we would have reached a different sentencing result on our

own, this fact alone is insufficient to justify reversal of the

district     court.”   (internal      quotation    marks     and    citation

omitted)).



                                     III.

     Accordingly, for the foregoing reasons, we hereby affirm

Lovin’s sentence.

                                                                    AFFIRMED




                                      18
SHEDD, Circuit Judge, dissenting:

       As the majority notes, before oral argument the government

filed    an     unopposed      motion     to    remand    for     resentencing.       The

government asserted that the district court “did not follow the

procedures outlined in [United States v. Carter, 564 F.3d 325

(4th    Cir.     2009)],”      and   it      observed     that    “[o]n     remand,   the

parties should be permitted to address any objections they wish

to     assert     regarding      the      defendant’s          sentencing    guidelines

calculations.”          At oral argument, the government reiterated this

position, and Lovin agreed.

       The majority is correct that we are not bound by a party’s

concession of error.            However, under the specific circumstances

of   this      case,    the    interests       of     justice    are    best-served    by

granting the government’s well-reasoned, good-faith concession

of     error     and    remanding       to      give     the     district    court    the

opportunity to resentence Lovin in a manner in which the parties

have confidence.              See generally Richmond Newspapers, Inc. v.

Virginia, 448 U.S. 555, 571-72 (1980) (noting that “[t]o work

effectively,       it    is    important       that    society’s       criminal   process

satisfy the appearance of justice” (quotation marks and citation

omitted)).

       Because I would grant the government’s unopposed motion to

remand, I dissent from the majority’s decision to affirm the

sentence.

                                               19
