UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4152

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KENNETH MARQUISE RUFF, a/k/a Red Hot,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:17-cr-00134-FDW-DSC-67)

Submitted: November 27, 2019 Decided: December 20, 2019

Before GREGORY, Chief Judge, and MOTZ and RICHARDSON, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James W. Kilbourne, Jr., DUNGAN, KILBOURNE & STAHL, PA, Asheville, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Kenneth Marquise Ruff appeals the 63-month sentence imposed after he pled guilty

without a plea agreement to conspiracy to participate in racketeering activity (RICO), in

violation of

(d), 1963(2) (2012). Ruff asserts that the district court erred

in calculating his Sentencing Guidelines range. According to Ruff, the court should not

have enhanced his criminal history score under U.S. Sentencing Guidelines Manual

(USSG) § 4A1.1(d) (2018), because he argues that, absent an overt act indicating that a

RICO conspiracy is ongoing, the district court should not have assumed he was “under a

criminal justice sentence” during the RICO conspiracy. Ruff also assigns error to the

court’s decision to increase his base offense level under: (1) USSG § 3C1.1 (2018), for

obstruction of justice; and (2) USSG § 3B1.1(c) (2018), for his aggravating role in the

conspiracy to which he pled guilty. Finding no error, we affirm.

In reviewing whether a sentencing court properly calculated a Guidelines range,

including its application of a sentencing enhancement, we review the district court’s legal

conclusions de novo and its factual findings for clear error. United States v. Fluker,

(4th Cir. 2018). Thus, whether a defendant obstructed justice warranting an

offense level increase under USSG § 3C1.1 is a finding of fact that this court reviews for

clear error. See United States v. Andrews,

(4th Cir. 2015). We also

review for clear error a district court’s finding that a defendant committed an offense while

under a criminal justice sentence, see United States v. Brooks,

(4th

Cir. 2008), and that a defendant was a manager or supervisor of criminal activity, see

United States v. Steffen,

(4th Cir. 2013). This court will find clear error

2 only if it is “left with the definite and firm conviction that a mistake has been committed.”

United States v. Cox,

(4th Cir. 2014) (internal quotation marks omitted).

We have reviewed the record and have considered the parties’ arguments and discern no

clear error in the district court’s decision to adopt the Guidelines range as calculated in

Ruff’s presentence report.

We thus 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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