US v. Mario Baker

Filing 920090807

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4941

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. MARIO NATHANIEL BAKER, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:08-cr-00088-REP-1)

Submitted:

July 15, 2009

Decided:

August 7, 2009

Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

W. Barry Montgomery, KALBAUGH, PFUND & MESSERSMITH, Richmond, Virginia, for Appellant. Peter S. Duffey, Assistant United States Attorney, Michael Jagels, Special Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Mario Nathaniel Baker appeals his jury conviction and 185-month sentence for two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006); one count of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841 (2006); and one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2006). Baker asserts that the

district court erred when it: (i) denied his motion to sever a 2007 firearm possession count from his trial on the remaining counts; (ii) denied his Fed. R. Crim. P. 29 motion for judgment of acquittal in his on all counts; because range and the (iii) sentenced court and to him to

185 months calculated

prison

district

allegedly his 18

Guidelines sentence

incorrectly fails

because the

within-Guidelines

allegedly

serve

U.S.C. § 3553(a) (2006) factors.

Finding no error, we affirm.

The joinder of multiple offenses is proper under Fed. R. Crim. P. 8(a) if the offenses are: (1) of the same or similar character; (2) based on the same act or transaction; or (3) part of a common 733, scheme 736 or (4th plan. Cir. See 1976). United Even is be States if v. Foutz, are the the

540 F.2d properly defendant joinder.

offenses if by

joined,

however, that

severance he would

appropriate prejudiced

establishes

See Fed. R. Crim. P. 14(a). 2

A defendant moving to

sever

multiple

counts

in

an

indictment

has

the

burden

of

demonstrating a "strong showing of prejudice," however, and "it is not enough to simply show that joinder makes for a more difficult defense. better chance of The fact that a separate trial might offer a acquittal is not a sufficient ground for

severance."

United States v. Goldman, 750 F.2d 1221, 1225 (4th A district court's

Cir. 1984) (internal citations omitted).

decision to deny a motion to sever should only be overturned upon a "showing States v. of clear prejudice 52 F.3d or 509, abuse 514 of (4th discretion." Cir. 1995)

United

Acker,

(citation omitted). Baker has failed to meet the demanding burden of

demonstrating a "strong showing" that he was prejudiced by the joinder of his 2007 firearm possession count. This is

especially true since the district court clearly instructed the jury to keep the evidence pertaining to each offense separate when considering Baker's guilt. See United States v. Cardwell,

433 F.3d 378, 388 (4th Cir. 2005) (finding no prejudice based on joinder of separate charges where the district court instructed the jury that there were two distinct offenses and the evidence supporting one offense should be considered separate from

evidence supporting the other offense); United States v. Silva, 745 F.2d 840, 844 (4th Cir. 1984) (recognizing that a limiting instruction will avoid the prejudicial effect that the denial of 3

a motion for severance may have).

We conclude that the district

court did not abuse its discretion in denying Baker's motion to sever. We also find that the district court did not err in denying Baker's Rule 29 motion for judgment of acquittal on all counts. novo. 2005). This court reviews the denial of a Rule 29 motion de See United States v. Alerre, 430 F.3d 681, 693 (4th Cir. When a Rule 29 motion was based on a claim of

insufficient evidence, the jury's verdict must be sustained "if there is substantial evidence, taking the view most favorable to the Government, to support it." United States v. Abu Ali,

528 F.3d 210, 244 (4th Cir. 2008) (internal quotation marks and citations omitted), cert. denied, 129 S. Ct. 1312 (2009). This

court "ha[s] defined `substantial evidence' as evidence that a reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." Alerre, 430 F.3d at 693 (internal

quotation marks and citations omitted). This court "must consider circumstantial as well as direct evidence, and allow the government the benefit of all reasonable inferences from the facts proven to those sought to be established." United States v. Tresvant, 677 F.2d 1018, 1021 This court may not weigh See

(4th Cir. 1982) (citations omitted).

the evidence or review the credibility of the witnesses. 4

United States v. Allen, 491 F.3d 178, 185 (4th Cir. 2007). the the evidence jury "supports which different, reasonable to

If

interpretations, United

decides

interpretation

believe."

States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994) (citations omitted). A defendant challenging the sufficiency of the

evidence faces a heavy burden.

See United States v. Beidler, We have reviewed the

110 F.3d 1064, 1067 (4th Cir. 1997).

record in this case and conclude that the Government produced sufficient evidence for a reasonable jury to conclude that Baker committed the crimes with which he was charged. Accordingly, we

find that the district court did not err in denying Baker's Rule 29 motion for judgment of acquittal. Last, Baker argues that the district court incorrectly calculated his Guidelines range when it included a 1988 felony conviction in his criminal history calculation because that

conviction occurred more than fifteen years before the offenses in the indictment and a prison term exceeding one year and one month was not imposed. Baker also summarily asserts that,

although his sentence was a within-Guidelines sentence, it was greater than necessary to achieve the § 3553(a) objectives. reject both assertions. After United States v. Booker, 543 U.S. 220 (2005), this court reviews a sentence for reasonableness, and "whether inside, just outside, or significantly outside the Guidelines 5 We

range,"

this

court

applies

a

"deferential

abuse-of-discretion

standard." 591 (2007).

Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, This court first must "ensure that the district 128 S. Ct. at

court committed no significant procedural error." 597.

Only if the sentence is procedurally reasonable can this

court evaluate the substantive reasonableness of the sentence, again using the abuse of discretion standard of review. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). In any determining whether the district court court looks committed to any Id.;

significant

procedural

error,

this

failure in the calculation (or the improper calculation) of the Guidelines range, the treatment of the Guidelines as mandatory, the failure to consider the § 3553(a) factors, the selection of a sentence using clearly erroneous facts, and any failure to adequately explain the chosen sentence, including any deviation from the advisory Guidelines range. Gall, 128 S. Ct. at 597.

We may apply a presumption of reasonableness on appeal to a within-Guidelines sentence. Rita v. United States, 551 U.S.

338, 127 S. Ct. 2456, 2462 (2007); see also Nelson v. United States, 129 S. of an Ct. 890, 892 (2009) (emphasizing a that the

presumption sentence is

reasonableness appellate

accorded

within-Guidelines rather than a

court

presumption

presumption enjoyed by a sentencing court).

Even if this court

would have imposed a different sentence, this fact alone will 6

not justify vacatur of the sentence. 526 F.3d 155, 162 (4th Cir. 2008). Although the conviction

United States v. Evans,

about

which

Baker

complains

occurred more than fifteen years prior to his current offenses, because he was sentenced in 1997 for probation revocation, the conviction is deemed to have occurred within fifteen years of his 2007 and 2008 offenses. ("USSG") § 4A1.2(k) (2007). U.S. Sentencing Guidelines Manual Moreover, although Baker's original

prison term for the 1988 conviction did not exceed one year and one month, Baker received a two-year sentence upon revocation of his probation in 1997, thereby bringing the prison term within the purview of USSG § 4A1.2(e)(1) (2007). that Baker's 1988 conviction was Accordingly, we find counted by the

properly

district court in determining Baker's criminal history category. We also find that the district court's imposition of a 185-month sentence is reasonable and should not be disturbed. At sentencing, the district to the court considered and rejected report.

Baker's

objections

presentence

investigation

Moreover, Baker does not deny that his sentence is within the Guidelines range calculated by the district court and within statutory mandates, or that the district court considered the § 3553(a) factors. Rather, Baker only summarily asserts that a

lesser sentence would have been more appropriate because his criminal history consisted only of convictions for drug crimes, 7

rather than for crimes of violence or crimes involving firearms. Such a summary assertion is insufficient to defeat the

presumption of reasonableness that this court accords a district court's within-Guidelines sentence on appeal. at 2462. Based on the foregoing, we affirm the district court's judgment. legal before We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional Rita, 127 S. Ct.

contentions the court

would

process. AFFIRMED

8