US v. Davin Stewart

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:96-cr-00115-DCN-2 Copies to all parties and the district court/agency. [998507577] [10-4631, 10-4633]

Case: 10-4631

Document: 50

Date Filed: 01/21/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4631

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVIN JEROME STEWART,
Defendant - Appellant.

No. 10-4633

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVIN JEROME STEWART,
Defendant - Appellant.

Appeals from the United States District Court for the District
of South Carolina, at Charleston.
David C. Norton, Chief
District Judge. (2:96-cr-00115-DCN-2; 2:09-cr-00295-DCN-1)

Submitted:

December 22, 2010

Decided:

January 21, 2011

Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Case: 10-4631

Document: 50

Date Filed: 01/21/2011

Page: 2

Affirmed by unpublished per curiam opinion.

Mary
Gordon
Baker,
Assistant
Federal
Public
Defender,
Charleston, South Carolina, for Appellant.
Alston Calhoun
Badger, Jr., Assistant United States Attorney, Charleston, South
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Page: 3

PER CURIAM:
In these consolidated appeals, Appellant Davin Jerome
Stewart appeals the judgment of conviction entered after a jury
trial

and

the

amended

judgment

revoking

supervised

release.

Stewart was convicted of one count of bank robbery and aiding
and abetting such conduct, in violation of 18 U.S.C. §§ 2113(a),
(d), and 2 (2006), one count of using and carrying a firearm
during and in relation to a crime of violence, in violation of
18 U.S.C. § 924(c)(1)(A)(ii) (2006), and one count of being a
felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2006).

He was sentenced to a total of

171 months’ imprisonment for the three convictions.

Based on

the convictions, the district court revoked Stewart’s supervised
release and sentenced him to an additional thirty month term to
run consecutive to the underlying sentences.

Stewart’s counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), certifying there are no meritorious issues for appeal
but raising for the court’s consideration whether the evidence
was

sufficient

to

support

sentences were reasonable.

the

convictions

and

The Government

We affirm.

“A
evidence

the

Stewart was given the opportunity to

file a pro se supplemental brief but declined.
did not file a brief.

whether

defendant

to

support

challenging

his

conviction
3

the

sufficiency

bears

a

heavy

of

the

burden.”

Case: 10-4631

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Page: 4

United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)
(internal quotation marks omitted).

A jury’s verdict “must be

sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.”

Glasser v. United

States, 315 U.S. 60, 80 (1942); see United States v. Perkins,
470 F.3d 150, 160 (4th Cir. 2006).
“evidence

that

a

reasonable

finder

Substantial evidence is
of

fact

could

accept

as

adequate and sufficient to support a conclusion of a defendant’s
United States v. Alerre, 430

guilt beyond a reasonable doubt.”
F.3d

681,

omitted).

693

(4th

Cir.

2005)

(internal

quotation

marks

The court considers both circumstantial and direct

evidence, drawing all reasonable inferences from such evidence
in the government’s favor.

United States v. Harvey, 532 F.3d

326, 333 (4th Cir. 2008).

In resolving issues of substantial

evidence, this court does not reweigh the evidence or reassess
the

factfinder’s

determination

of

witness

credibility,

see

United States v. Brooks, 524 F.3d 549, 563 (4th Cir. 2008), and
“can reverse a conviction on insufficiency grounds only when the
prosecution’s

failure

is

clear.”

United

States

v.

Moye,

454 F.3d 390, 394 (4th Cir. 2006) (en banc) (internal quotation
marks omitted).
We conclude there was more than sufficient evidence to
support all three convictions.

The evidence showed that Stewart

was captured by police after being seen running from one of the
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Case: 10-4631

getaway vehicles.

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Date Filed: 01/21/2011

Page: 5

Near where he was seized was a bag of dye-

stained money, blue gloves and a ski mask similar to what was
worn by the robbers.

There was also evidence that one of his

fingerprints was lifted off of one of the bullets taken from one
of the guns.

It also appeared from the surveillance video of

the robbery that Stewart fit the physical type of the robber who
jumped the counter and seized the money.

Although Stewart was

not observed using a gun, his accomplice was seen brandishing
two guns during the robbery.

Furthermore, Stewart stipulated to

being a convicted felon and that the handguns and ammunition
were manufactured outside South Carolina.

We conclude there was

ample evidence showing that Stewart was an active participant in
the robbery, that he aided and abetted the use of a firearm in
furtherance of a crime of violence, and that he was a felon in
unlawful possession of ammunition.
This

court

reviews

a

district

court’s

sentence

reasonableness under an abuse-of-discretion standard.

for

Gall v.

United States, 552 U.S. 38, 51 (2007); see also United States v.
Pauley,
requires

511

F.3d

appellate

468,

473-74

(4th

consideration

of

Cir.
both

substantive reasonableness of a sentence.

2007).

This

review

the

procedural

and

Gall, 552 U.S. at 51.

In determining procedural reasonableness, this court considers
whether the district court properly calculated the defendant’s
advisory Guidelines range, considered the 18 U.S.C. § 3553(a)
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Case: 10-4631

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Date Filed: 01/21/2011

Page: 6

(2006) factors, analyzed any arguments presented by the parties,
and

sufficiently

“Regardless

of

explained

whether

the

the

below,

or
an

individualized

district

within-Guidelines

record

selected
court

sentence,

assessment

it

sentence.
imposes
must

based

an

place

on

the

Id.
above,
on

the

particular

United States v. Carter, 564 F.3d

facts of the case before it.”

325, 330 (4th Cir. 2009) (internal quotation marks omitted).
Finally,

this

court

reviews

the

substantive

reasonableness of the sentence, “examin[ing] the totality of the
circumstances to see whether the sentencing court abused its
discretion in concluding that the sentence it chose satisfied
the

standards

set

forth

in

§

3553(a).”

United

States

Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).

v.

If the

sentence imposed is within the appropriate Guidelines range, on
appeal it is presumptively reasonable.
F.3d 216, 218 (4th Cir. 2008).

United States v. Go, 517

This presumption may be rebutted

by a showing “that the sentence is unreasonable when measured
against the § 3553(a) factors.”
445

F.3d

375,

379

(4th

review

a

Cir.

United States v. Montes-Pineda,
2006)

(internal

quotation

marks

omitted).
We
supervised

release

prescribed

statutory

to

sentence

imposed

determine

range

and

after

whether
is

not

it

revocation
is

plainly

within

of
the

unreasonable.

United States v. Crudup, 461 F.3d 433, 437-39 (4th Cir. 2006).
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Case: 10-4631

We

have

Document: 50

reviewed

Supervised

the

Release

transcript

and

find

Date Filed: 01/21/2011

Presentence

Violation
no

Investigation

Report

error.

Page: 7

and

Report,

the

Accordingly,

the

sentencing

we

affirm

the

sentences.
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none.

We therefore

affirm.

This court requires that counsel inform the client, in

writing,

of

his

right

to

petition

United States for further review.

the

Supreme

Court

of

the

If the client requests that a

petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation.

Counsel’s motion must

state that a copy was served on the client.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

We dispense with

legal
before

contentions
the

court

are
and

argument would not aid the decisional process.
AFFIRMED

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