UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4592

UNITED STATES OF AMERICA, 

Plaintiff – Appellee, 

v. 

MARVIN ALEXANDER SUTTON, JR., 

Defendant – Appellant. 

No. 08-4756

UNITED STATES OF AMERICA,

Plaintiff – Appellee, 

v. 

LAVAR JAVIER FIELDS, 

Defendant – Appellant. 

Appeals from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Dever III, 

District Judge. (5:07-cr-00130-D-2; 5:07-cr-00130-D-1) 

Submitted: October 20, 2010 Decided: November 19, 2010

Before MOTZ, KING, and AGEE, Circuit Judges. 
2

Affirmed by unpublished per curiam opinion. 

Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, 

Bridgett Britt Aguirre, Fuquay-Varina, North Carolina, for 

Appellants. George E. B. Holding, United States Attorney, 

Michael G. James, Assistant United States Attorney, Raleigh, 

North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Marvin Alexander Sutton, Jr., pled guilty without a 

plea agreement to one count of conspiracy, in violation of 

18 U.S.C. § 371 (2006), and one count of aiding and abetting 

bank robbery, in violation of 18 U.S.C. §§ 2, 2113(a) (2006). 

After imposing an upward departure, the district court sentenced 

Sutton to concurrent sentences of 60 months’ imprisonment on the 

conspiracy count and 72 months’ imprisonment on the bank robbery 

count. Lavar Javier Fields pled guilty without a plea agreement

to one count of conspiracy, in violation of 18 U.S.C. § 371, and 

two counts of aiding and abetting bank robbery, in violation of 

18 U.S.C. §§ 2, 2113(a). After imposing an upward departure, 

the district court sentenced Fields to concurrent sentences of 

60 months’ imprisonment on the conspiracy count and 90 months’ 

imprisonment on each of the bank robbery counts. Sutton and 

Fields timely appeal and challenge their sentences. We affirm. 

We review a district court’s sentence, including a 

departure sentence, for reasonableness under a “deferential 

abuse-of-discretion” standard. Gall v. United States, 552 U.S. 

38, 41, 51 (2007). In conducting this review, we first examine 

the sentence for “significant procedural error, such as failing 

to calculate (or improperly calculating) the Guidelines range, 

treating the Guidelines as mandatory, failing to consider the

[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence 
4

based on clearly erroneous facts, or failing to adequately 

explain the chosen sentence.” Id. at 51. If there are no 

significant procedural errors, we then consider the substantive 

reasonableness of the sentence, “tak[ing] into account the 

totality of the circumstances.” Id. In reviewing a sentence 

outside the advisory Guidelines range, we consider whether the 

district court acted reasonably “both with respect to its 

decision to impose such a sentence and with respect to the 

extent of the divergence from the [G]uideline[s] range.” United 

States v. Perez-Pena, 453 F.3d 236, 241 (4th Cir. 2006). 

Fields challenges the district court’s decision to 

adopt the recommendation of his presentence report (“PSR”) and 

calculate his Guidelines range for the bank robbery counts using 

U.S. Sentencing Guidelines Manual (“USSG”) § 2B3.1 (Robbery), 

rather than USSG § 2B2.1 (Burglary of a Residence or a Structure 

Other than a Residence) (2007). Fields, however, failed to 

object in writing to his PSR’s use of USSG § 2B3.1 to calculate 

his offense level within the fourteen-day time frame prescribed

by Fed. R. Crim. P. 32(f)(1). Accordingly, our review is for 

plain error. See United States v. Olano, 507 U.S. 725, 731 

(1993) (quoting with approval Yakus v. United States, 321 U.S. 

414, 444 (1944) (“No procedural principle is more familiar to 

this Court than that a . . . right may be forfeited in criminal 

as well as civil cases by the failure to make timely assertion 
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of the right before a tribunal having jurisdiction to determine 

it.”)). To prevail under this standard, Fields must show that 

plain error by the district court affected his substantial 

rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 

(2009). Even if Fields makes this showing, however, correction 

of the error is within our discretion, which we do not exercise 

unless the error “seriously affects the fairness, integrity or 

public reputation of judicial proceedings.” Id. (internal 

quotation marks and alteration omitted). 

Where, as here, the statute under which a defendant is 

convicted proscribes a variety of conduct that may fall under 

several Sentencing Guidelines,1

 1 The Statutory Index to the Guidelines lists USSG §§ 2B1.1, 

2B2.1, 2B3.1, and 2B3.2 as potentially applicable to a violation 

of 18 U.S.C. § 2113(a). See USSG App. A. 

the district court must 

“determine which of the referenced [G]uideline sections is most 

appropriate” for the offense of conviction. USSG § 1B1.2, cmt. 

n.1. To accomplish this, the court “should compare the 

[G]uideline texts with the charged misconduct, rather than the 

statute (which may outlaw a variety of conduct implicating 

several [G]uidelines) or the actual conduct (which may include 

factors not elements of the indicted offense).” United 

States v. Lambert, 994 F.2d 1088, 1092 (4th Cir. 1993). 
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Here, the indictment charged Fields and his codefendants with breaking into and stealing United States 

currency from automated teller machines containing “money in the 

care, custody[,] and control of Lumbee Guaranty Bank, a bank 

whose deposits were then insured by the Federal Deposit 

Insurance Corporation,” in violation of 18 U.S.C. § 2113(a). 

Section 2B3.1(b)(1) of the Guidelines permits an enhancement for 

the taking of property of a financial institution; USSG § 2B2.1, 

by contrast, does not address harm to a financial institution. 

Compare USSG § 2B3.1(b)(1) (“If the property of a financial 

institution . . . was taken, or if the taking of such property 

was an object of the offense, increase by 2 levels.”) with USSG 

§ 2B2.1 (addressing burglary of a residence or a structure other 

than a residence). Because the object of the Defendants’ 

robberies was the property of a financial institution, we 

conclude the Guideline that most closely fits the offenses is 

USSG § 2B3.1. See United States v. Smith, 320 F.3d 647, 656-57 

(6th Cir. 2003) (holding that USSG § 2B3.1 was the most 

appropriate Guideline where the object of extortion was bank 

robbery); see also United States v. Alexander, 48 F.3d 1477, 

1491 (9th Cir. 1995) (stating that the Sentencing Commission 

sought with USSG § 2B3.1(b)(1) to punish robberies of financial 

institutions more severely because “these entities typically 

keep large amounts of readily available cash, and are therefore 
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particularly attractive robbery targets”). Accordingly, the 

district court did not plainly err in calculating Fields’s 

offense level under USSG § 2B3.1. 

Both Sutton and Fields challenge the district court’s 

decision to upwardly depart from their advisory Guidelines 

ranges based on additional, uncharged robberies and attempted 

robberies. Under the Guidelines, 

[a district] court may depart upward to reflect the 

actual seriousness of the offense based on conduct (1) 

underlying a charge dismissed as part of a plea 

agreement in the case, or underlying a potential 

charge not pursued in the case as part of a plea 

agreement or for any other reason; and (2) that did 

not enter into the determination of the applicable 

[G]uideline[s] range. 

USSG § 5K2.21, p.s. This Guideline requires only “some degree” 

of connection between charged and uncharged offenses, and even a 

“remote connection” will suffice to support the departure. 

United States v. Newsom, 508 F.3d 731, 735 (5th Cir. 2007) 

(collecting cases and aligning with circuits interpreting that 

section as requiring only a remote relationship). After review 

of the record, we conclude that Sutton’s and Fields’s challenge 

is without merit. The offense conduct to which they pleaded 

guilty involved the early morning robberies of automated teller 

machines (“ATMs”) in Food Lion grocery stores in Fayetteville, 

North Carolina. The undisputed testimony at sentencing 

implicated Sutton and Fields in five other robberies and
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attempted robberies of ATMs in Food Lion grocery stores in North 

Carolina and Virginia.2

Finally, Fields challenges the extent of the district 

court’s upward departure on the bank robbery counts. However, 

given Fields’s participation in five additional uncharged 

robberies and attempted robberies involving significant sums of 

money and damage to property, the extent of the upward 

departure, which led to a sentence only nineteen months longer 

 The modus operandi of the uncharged 

offenses – early morning entry into the Food Lion through the 

removal of a glass pane – was the same as was utilized in the 

charged robberies. Additionally, the charged and uncharged 

offenses occurred in temporal and geographic proximity, and the 

uncharged robberies, like the charged robberies, involved 

thousands of dollars per robbery. We therefore conclude there 

was a sufficient connection between the uncharged and charged 

offenses and that the district court did not err in relying on 

USSG § 5K2.21, p.s., as the basis for its departures. 

 2 Sutton and Fields suggest that their involvement in the 

additional, uncharged robberies and attempted robberies was not 

sufficiently proved. Facts deemed relevant to a departure from 

a Guidelines sentencing range, however, need only be proved by a 

preponderance of the evidence. See United States v. Grubbs, 585 

F.3d 793, 799 (4th Cir. 2009), cert. denied, 130 S. Ct. 1923 

(2010). After review of the record, we conclude that the 

district court did not clearly err in finding Sutton’s and 

Fields’s participation in the uncharged offenses by a 

preponderance of the evidence. 
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than the top of the original advisory Guidelines range, was 

reasonable. We therefore affirm the district court’s judgments. 

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process. 

AFFIRMED