USCA4 Appeal: 21-4295 Doc: 50 Filed: 11/10/2022 Pg: 1 of 7

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4295

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

HERBERT ANTHONY SLOAN, a/k/a Kool Breeze,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge (7:19−cr−00150−D−1)

Submitted: October 3, 2022 Decided: November 10, 2022

Before WILKINSON and WYNN, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Anne Margaret Hayes, Cary, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, Lucy Partain Brown, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, For Appellee.

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PER CURIAM:

Herbert Anthony Sloan pleaded guilty to a felon in possession charge under

(g)(1) and was sentenced to 120 months in prison. On appeal, he argues that

the district court erred by applying an obstruction of justice sentence enhancement pursuant

to U.S.S.G. § 3C1.1, and a sentence enhancement for possession of a firearm during the

commission of another felony pursuant to U.S.S.G. § 2k2.1(b)(6)(B). Because the district

court did not err in applying these enhancements and because any error would otherwise

be harmless, we affirm. We also deny Sloan’s motion to file a supplemental brief raising,

for the first time, a challenge to his base offense level.

I.

On July 13, 2019, a woman called the 911 operator in Wilmington, North Carolina,

indicating that there was a man with a gun at her mother’s residence who was not allowing

her mother to leave. 1 J.A. 37. This man, later identified as Sloan, wanted to see the

daughter, but instead entered the house and the mother’s bedroom after not finding her.

J.A. 41–43. Sloan shut the mother’s bedroom door behind him, pulled up his shirt, and told

the mother that he had a gun. J.A. 43. He then showed her the gun in his lap and asked

where the daughter’s bedroom was. J.A. 41–43. Sloan went to the bedroom, then returned

to the mother’s room and again showed her his gun. J.A. 43–44. He stood at the door in a

way that made the mother feel as if she could not get past him to leave. J.A. 44. During this

1 The district court referred to the victims involved in this case as “the mother” and “the daughter” to preserve anonymity. We continue that convention on appeal.

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incident, the mother was sending text messages to the daughter, stating that Sloan was at

her residence, that “[i]t was not good over here,” and that she was apprehensive about his

weapon. J.A. 127–28.

After Sloan was located and detained, the mother texted the daughter that “if he

brought a gun i[]n twice he was going to use it…I have a feeling it was going to be me or

you and the way he was talking is going to be me[.]” J.A. 129–31. He was charged in state

court with possession of a firearm by a felon, possession of marijuana, carrying a concealed

weapon, and second-degree kidnapping. J.A. 110. On August 12, 2019, Sloan called the

daughter from jail and said that the police “had no choice but to lock [him] up because

somebody called and said [he] had a gun to their f’ing baby head and to their mama head.

Who the ‘f’ did that?” J.A. 70. Sloan said he wanted the daughter to “[g]et the bullshit off

[him]” and “[g]et [him] out of this because you the only one that can get [him] out of this.”

J.A. 50. The daughter’s impression of this call was that Sloan wanted her to get the charges

dropped. J.A. 74.

Sloan was charged federally in September 2019 on one count of being a felon in

possession of a firearm in violation of

(g)(1), to which he later pleaded

guilty. J.A. 13, 26. The presentence investigation report (PSR) calculated Sloan’s base

offense level at 24 due to prior controlled substance offenses. J.A. 161. Sloan’s counsel

objected to a four-level sentence enhancement for use of a firearm in connection with

another felony offense under U.S.S.G. § 2K2.1(b)(6)(B) and a two-level sentence

enhancement for obstruction of justice under U.S.S.G. § 3C1.1. J.A. 164–65.

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The district court sentenced Sloan to the statutory maximum of 120 months,

overruling these objections. J.A. 87, 93, 99. The court identified the applicable felony for

the § 2K2.1(b)(6)(B) enhancement as North Carolina second-degree kidnapping, which

required the confinement of an individual for the “purpose of…terrorizing a person so

confined.” J.A. 86 (citing N.C. Gen. Stat § 14–39(a)(3)). The district court “absolutely”

found that the record, including the text messages, showed by a preponderance of the

evidence that Sloan intended to terrorize the mother when he trapped her in her bedroom

and pulled out his gun. J.A. 86. As for the obstruction of justice enhancement, the court

found by a preponderance of the evidence that Sloan’s conduct during the August 12 phone

call was a “willful…attempt to obstruct the administration of justice with respect to [an]

investigation [or] prosecution” as he was asking the victims to change their story regarding

“his possession of a weapon and how he used the weapon that night in connection with

terrorizing the mother.” J.A. 92–93. After considering the

(a) factors and

Sloan’s criminal history, the court sentenced him to the statutory maximum. J.A. 99. It then

noted that it would have “impose[d] the same sentence as an alternative variance sentence”

because “this is the sentence sufficient but not greater than necessary with respect to

[Sloan] in light of the entire record.” J.A. 101.

II.

Sloan appeals the district court’s determination as to the two sentence

enhancements. This court reviews a sentence imposed by the district court for

reasonableness under a deferential abuse-of-discretion standard. Gall v. United States,

(2007). In reviewing the district court’s application of the Guidelines and its

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imposition of a sentencing enhancement, “we review [its] legal conclusions de novo and

its factual findings for clear error.” United States v. Layton,

(4th Cir.

2009). We will “find clear error only if, on the entire evidence, [we are] left with the

definite and firm conviction that a mistake has been committed.” United States v. Manigan,

(4th Cir. 2010) (internal quotation marks omitted) (alteration in

original). Facts supporting a Guidelines enhancement must be proven by a preponderance

of the evidence. United States v. Andrews,

(4th Cir. 2015).

The district court did not err in adopting the four-level sentence enhancement for

use of a firearm in connection with another felony offense. See U.S.S.G. § 2K2.1(b)(6)(B).

The district court determined that Sloan’s actions constituted felonious second-degree

kidnapping under North Carolina law, which is confinement of someone “for the purpose

of…terrorizing a person so confined.”

(a)(3). Terrorizing a person

is “putting that person in some high degree of fear, or a state of intense fright or

apprehension.” State v. Moore,

, 745,

(1986) (internal

quotation marks omitted). Such an intent may be inferred from the evidence.

The record

amply supports the court’s finding that Sloan had the requisite intent to terrorize. The text

messages and other evidence show that Sloan confined the mother to her own room and

pulled out his weapon to convey the implicit threat that “it was going to be [the mother] or

[the daughter].” J.A. 131. As the district court found, Sloane “pull[ed] out a gun to get what

he want[ed], to wit, the daughter.” J.A. 81. This shows an intent to terrorize by a

preponderance of the evidence, and any argument to the contrary is unavailing.

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The district court also did not err in adopting the two-level sentence enhancement

for obstruction of justice. Such an enhancement is appropriate when “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” and “the obstructive conduct related to…the defendant’s offense of

conviction” or “a closely related offense.” USSG § 3C1.1. “[O]bstructive conduct can vary

widely in nature, degree of planning, and seriousness,” but may include “threatening,

intimidating, or otherwise unlawfully influencing a…witness…, directly or indirectly, or

attempting to do so.” Id. cmt. n 3, n. 4(A). The record supports the district court’s finding

that Sloan’s conduct was obstructive. The August 12 phone call attempted to get the

witnesses to change their story regarding Sloan’s use of his gun. As the daughter stated,

this conveyed the impression that he wanted her to drop charges. Thus, the two-level

enhancement was proper.

Moreover, any error made by the district court is harmless. A Guidelines error is

harmless– and, thus, does not warrant reversal– if “(1) the district court would have reached

the same result even if it had decided the [G]uidelines issue the other way, and (2) the

sentence would be reasonable even if the [G]uidelines issue had been decided in the

defendant’s favor.” United States v. Mills,

(4th Cir. 2019) (internal

quotation marks omitted) (alteration in original). The district court explicitly stated that

even had it erred in overruling Sloan’s enhancement objections, it still would have imposed

a variance sentence of 120 months because it was the sentence “sufficient but not greater

than necessary with respect to [Sloan] in light of the entire record.” J.A. 101. Our view of

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the record confirms that the variance sentence would be substantively reasonable, as the

district court fully discussed the circumstances relating to Sloan’s offense, and properly

weighed mitigating and aggravating evidence. See Mills,

.

III.

After the opening, response, and reply briefs all had been filed, Sloan moved to file

a supplemental brief raising, for the first time, a challenge to his base offense level. He

argues that under this court’s decision in United States v. Campbell,

(4th Cir.

2022), his prior North Carolina drug convictions do not qualify as “controlled substance

offenses” under the Sentencing Guidelines, and thus the PSR erroneously calculated his

base offense level at 24. We deny this motion. It is a blackletter rule of appellate procedure

that “contentions not raised in the argument section of the opening brief are abandoned.”

United States v. Al-Hamdi,

, 571 n.8 (4th Cir. 2004). This court issued

Campbell on January 7, 2022, a full six weeks before Sloan filed his opening brief in this

case. Because Sloan “fail[ed] to preserve the issue in [his] opening brief,” he abandoned it,

and “[n]o subsequent filing can revive it.” Hensley ex rel. North Carolina v. Price,

, 580 n.5 (4th Cir. 2017). We decline to deviate from this rule here.

IV.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED

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