UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4235

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES W. RICHARD,

Defendant - Appellant.

Appeal from the United States District Court for the Northern 

District of West Virginia, at Wheeling. Frederick P. Stamp, 

Jr., Senior District Judge. (5:12-cr-00038-FPS-JES-1)

Submitted: December 10, 2013 Decided: January 10, 2014

Before KING, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Sandra Baughn Jelovsek, LAW OFFICE OF SANDRA BAUGHN JELOVSEK, 

Johnson City, Tennessee, for Appellant. William J. Ihlenfeld, 

II, United States Attorney, Stephen L. Vogrin, Randolph J. 

Bernard, Assistant United States Attorneys, Wheeling, West 

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

James W. Richard appeals his sentence after pleading 

guilty to one count of mailing threatening communications in 

violation of 18 U.S.C. § 876(a) (2012). On appeal, Richard 

contends that the district court erred by applying a two-level 

enhancement to his base offense level under U.S. Sentencing 

Guidelines Manual § 2A6.1(b)(3) (2012) “when there was no 

protective order in effect at the time he mailed the threatening 

communication for which he was convicted.” Appellant’s Br. at 

1. We affirm. 

“A federal court of appeals normally will not correct 

a legal error made in criminal trial court proceedings unless 

the defendant first brought the error to the trial court’s 

attention.” Henderson v. United States, 133 S. Ct. 1121, 1124 

(2013) (citing United States v. Olano, 507 U.S. 725, 731 

(1993)). Federal Rule of Criminal Procedure 52(b) creates an 

exception to the normal rule, providing “[a] plain error that 

affects substantial rights may be considered even though it was 

not brought to the court’s attention.” Fed. R. Crim. P. 52(b).

Because Richard did not object to the enhancement 

under USSG § 2A6.1(b)(3) in the district court, we review this 

issue for plain error. See United States v. Carthorne, 726 F.3d 

503, 509 (4th Cir. 2013). To establish plain error, Richard 

must show: (1) that an error was made; (2) that the error was 
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plain; and (3) that the error affected his substantial rights. 

See id. at 510 (citing Henderson, 133 S. Ct. at 1126; Olano, 507 

U.S. at 732-35). If he makes this showing, the decision to 

correct the error remains within our discretion, and we will 

exercise that discretion only if the error would result in a 

miscarriage of justice or would otherwise seriously affect the 

fairness, integrity, or public reputation of judicial 

proceedings. Id. (citations and quotation marks omitted).

We have reviewed the record and the parties’ briefs, 

and we conclude that Richard has not made the requisite showing. 

When applying USSG § 2A6.1(b)(3), a district court considers not 

only conduct in the offense of conviction but also relevant 

conduct under USSG § 1B1.3. See USSG § 1B1.1 cmt. n.1(H); 

United States v. Brock, 211 F.3d 88, 91 n.2 (4th Cir. 2000). 

Moreover, even when prior conduct does not constitute “relevant 

conduct” under USSG § 1B1.3, a district court is directed to 

consider such prior conduct when applying USSG § 2A6.1(b)(3) if 

it is “substantially and directly connected to the offense.” 

USSG § 2A6.1 cmt. n.1; see United States v. Worrell, 313 F.3d 

867, 876-78 (4th Cir. 2002). Applying these standards to the 

facts of this case, we conclude that the district court did not 

plainly err by considering the conduct alleged in the count that 

was dismissed when applying USSG § 2A6.1(b)(3). 
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We therefore 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