### UNPUBLISHED



# UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT



#  U NITED S TATES OFA MERICA ,

Plaintiff-Appellee,

v. No. 02-4232



# 

D EREK L AVINCENT R EID , Defendant-Appellant. 

# 

Appeal from the United States District Court for the Middle District of North Carolina, at Durham.

William L. Osteen, District Judge.

(CR-01-202)

Submitted: October 31, 2002

Decided: November 26, 2002

Before WILKINS and LUTTIG, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

COUNSEL

Robert L. McClellan, IVEY, MCCLELLAN, GATTON & TALCOTT, L.L.P., Greensboro, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Robert A. J. Lang, AssistantUnited States Attorney, Winston-Salem, North Carolina, for Appellee.Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

OPINION

PER CURIAM:

Derek Lavincent Reid appeals his conviction following a jury trialof one count of obstruction of commerce with threat or violence during a robbery in violation of 18 U.S.C. § 1951 (2000) and one count of carrying and using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (2000), and sentence to 120 months in prison for Count 1 and eighty-four months in prison for Count 3, to run consecutively, and three years of supervised release. We affirm.

First, Reid argues the district court’s questions to Reid during his testimony called into question his credibility and indicated a disbeliefin the veracity of his testimony. Generally, a trial judge’s interrogation of witnesses is reviewed for abuse of discretion. United States v. Wilson , 135 F.3d 291, 307 (4th Cir. 1998). Reid, however, made no objections to the judge’s questioning. Rule 614(c) of the Federal Rules of Criminal Procedure allows objections to interrogation by thecourt to be made "at the time [of the questions] or at the next available opportunity when the jury is not present." Therefore, we limit our review to plain error. United States v. Olano , 507 U.S. 725, 732-34 (1993). Reid is not entitled to relief on this claim unless he shows: (1)error; (2) that the error is plain; and (3) that the error affects substantial rights. Id. at 732. Even then, this Court "refrain[s] from intervening unless the error ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’" Godwin , 272 F.2d at 679 (quoting Olano , 507 U.S. at 736). We have reviewed the record and find no plain error.

Second, Reid argues the district court erred when it applied a twolevel enhancement for obstruction of justice under USSG § 3C1.1. Section 3C1.1 allows a two-level increase when a defendant willfullyobstructs or impedes the administration of justice during the investi2 U NITED S TATES v. R EIDgation, prosecution or sentencing of an offense. The district court’s factual findings concerning sentencing factors are reviewed for clear error, and legal determinations are reviewed de novo. United States v. France , 164 F.3d 203, 209 (4th Cir. 1998). We have reviewed the record and conclude the district court did not err when it applied the enhancement based on a finding of perjury during Reid’s testimony.

Finally, Reid argues the district court erred when it departed upward. Reid argues the district court applied an upward departure based on his reputation and that this consideration is impermissible. The district court, however, departed upward based on the inadequacy of Reid’s criminal history category and the likelihood that he would commit other crimes under U.S. Sentencing Guidelines Manual § 4A1.3 (2001). Assuming, without deciding, that the court’s consideration of reputation was improperly included in its calculus, therecord nonetheless amply supports the court’s finding even if that factor is excluded.

The court’s ultimate decision to depart is reviewed for abuse of discretion, but its underlying factual findings are reviewed for clear error and, if the departure is based on a misinterpretation of the guideline, that underlying ruling is reviewed de novo. United States v. Rybicki
, 96 F.3d 754, 758 (4th Cir. 1996). We have reviewed the record and conclude the district court did not abuse its discretion when it departed upward based on the inadequacy of Reid’s criminal history category and the likelihood that he would commit other crimes.

We therefore affirm Reid’s conviction and sentence. We dispensewith 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 3 U NITED S TATES v. R EID