US v. Andre Whitfield

Filing 920081201

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4335

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANDRE D. WHITFIELD, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:07-cr-00300-HEH-1)

Submitted:

November 18, 2008

Decided:

December 1, 2008

Before WILKINSON and Senior Circuit Judge.

MICHAEL,

Circuit

Judges,

and

HAMILTON,

Affirmed by unpublished per curiam opinion.

Steven P. Hanna, Richmond, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Stephen W. Miller, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Andre D. Whitfield was convicted of: two counts of using a communication facility to facilitate a drug offense; possession with of intent to distribute base; cocaine of base; a attempted in

distribution

cocaine

possession

firearm

furtherance of a drug trafficking crime; and possession of a firearm by a person previously convicted of domestic violence. He received a 192-month sentence. convictions, arguing that the Whitfield now appeals his court erred when it

district

rejected his Batson v. Kentucky, 476 U.S. 79 (1986), challenge to the Government's peremptory strikes of three black jurors. We affirm. Under Batson, the use of a peremptory challenge for a racially Clause. findings discriminatory Id. as to purpose offends the Equal Protection

We give "great deference" to the trial court's whether a Batson violation occurred, and we

review the court's findings for clear error. 57 F.3d 417, 421 (4th Cir. 1995). A claim: three-step process is used to

Jones v. Plaster,

analyze

a

Batson

First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the 2

defendant has carried his burden of proving purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 358-59 (1991) (citations omitted). When conducting this analysis, "the decisive question

[is] whether counsel's race-neutral explanation . . . should be believed." At Id. at 365. the second step, both age and occupation are

legitimate, race-neutral reasons to strike a juror.

Smulls v.

Roper, 535 F.3d 853, 867 (8th Cir. 2008) (occupation); United States v. Grimmond, 137 F.3d 823, 834 (4th Cir. 1998) (age); United States v. Miller, 939 F.2d 605, 609 (9th Cir. 1991). Here, the prosecutor stated that she struck a black female juror because jurors she who was were twenty-two, twenty-five and or the prosecutor The wanted only cited

older.

prosecutor

occupation as the reason she struck two black males: she wanted no teachers, social workers, or nurses on the jury. One of the

struck jurors was a teacher, and the other was a social worker. By articulating race-neutral its reasons at for the the strikes, step of the the

Government analysis.

satisfied

burden

second

At determine strike is

the

third the

step,

the

trial

court's

duty reason

is for

to a v.

whether "a

Government's for

race-neutral

pretext

discrimination."

United

States

Farrior, 535 F.3d 210, 221 (4th Cir. 2008).

The defendant must

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"show both that [the Government's stated reasons for a strike] were merely pretextual and that race was the real reason for the strike." 1994). relevant United States v. McMillon, 14 F.3d 948, 953 (4th Cir. In making this showing, the "`defendant may rely on all circumstances to raise an inference of purposeful

discrimination.'" Cir. 2008)

Golphin v. Branker, 519 F.3d 168, 179 (4th Miller-El v. Dretke, 545 U.S. 231, 240

(quoting

(2005)). Here, Whitfield did not challenge the Government's

race-neutral explanation for striking the young female juror. The failure to argue pretext after the challenged strike has been explained constitutes a waiver of the initial Batson

objection. 1023, 1027

See Davis v. Baltimore Gas & Elec. Co., 160 F.3d (4th Cir. 1998). Even if there was no waiver,

Whitfield did not identify a similarly situated venire member of a different race who was not peremptorily challenged, see

Golphin, 519 F.3d at 179-80, or otherwise establish that race was the real reason for the strike. Similarly, he failed to

meet his burden with respect to the two male jurors. Because the district court did not clearly err in

rejecting Whitfield's Batson challenge, we affirm.

We dispense

with oral argument because the facts and legal contentions are

4

adequately

presented

in

the

materials

before

the

court

and

argument would not aid the decisional process. AFFIRMED

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