US v. Domonic Usher

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:11-cr-00217-D-6. Copies to all parties and the district court/agency. [999293109]. [12-5015]

Appeal: 12-5015

Doc: 53

Filed: 02/07/2014

Pg: 1 of 5

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-5015

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DOMONIC DEVARRISE USHER,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
Chief District Judge. (5:11-cr-00217-D-6)

Submitted:

January 31, 2014

Decided:

February 7, 2014

Before WYNN, DIAZ, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

C. Burell Shella, SHELLA & ASSOCIATES, PC, Durham, North
Carolina, for Appellant.
Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 12-5015

Doc: 53

Filed: 02/07/2014

Pg: 2 of 5

PER CURIAM:
A jury convicted Domonic Devarrise Usher on one count
of

conspiracy

to

commit

violations

of

the

Hobbs

Act

(interference with commerce by robbery), 18 U.S.C. § 1951(b)
(2012) (Count 1), seven counts of interference with commerce by
robbery, 18 U.S.C. §§ 2, 1951(a) (2012) (Counts 2, 4, 6, 8, 10,
12, and 14), and seven counts of carrying and using a firearm
during and in relation to a crime of violence, 18 U.S.C. §§ 2,
924(c)(1)(A) (2012) (Counts 3, 5, 7, 9, 11, 13, and 15). The
district court sentenced Usher to 235 months’ imprisonment on
the

conspiracy

and

each

of

the

robbery

convictions

to

run

concurrently with each other; a mandatory consecutive eightyfour

months’

imprisonment

on

Count

Three;

and

mandatory

consecutive 300 months’ imprisonment on each of the remaining
four § 924(c) convictions, resulting in a cumulative sentence of
2119 months’ imprisonment.

On appeal, Usher contends that the

district court erred by allowing the prosecutor to repeat the
testimony of witnesses, during his original trial, which ended
in a mistrial, and his second trial.
district

court’s

imposition

of

He also argues that the

consecutive

sentences

on

the

§ 924(c) convictions in Counts 5, 7, 9, 11, 13, and 15 violates
the

Eighth

punishment.

Amendment’s

protection

We affirm.

2

against

cruel

and

unusual

Appeal: 12-5015

Doc: 53

Filed: 02/07/2014

Pg: 3 of 5

I.
Usher first argues that the prosecutor’s conduct of
repeating

witness

answers

during

their

testimony

resulted

in

needlessly repetitive and cumulative evidence and violated Fed.
R. Evid. 403.

To warrant reversal for prosecutorial misconduct,

the defendant must show that the prosecutor engaged in improper
conduct that prejudiced his substantial rights so as to deny him
a fair proceeding.

United States v. Allen, 491 F.3d 178, 191

(4th Cir. 2007).
In his opening brief, Usher does not allege that he
was prejudiced by the prosecutor’s conduct, nor does he point to
any evidence in the record showing “that such remarks or conduct
prejudiced the defendant to such an extent as to deprive the
defendant of a fair trial.”

Allen, 491 F.3d at 191; see also

Fed. R. App. P. 28(a)(8)(A) (requiring the appellant’s brief to
contain “contentions and the reasons for them, with citations to
the authorities and parts of the record on which the appellant
relies”).

Thus, we affirm Usher’s convictions.
II.
Usher also contends that his 2119-month sentence is

disproportionate to his crimes, because no one suffered physical
harm and the total economic loss was less than thirty-thousand
dollars.

Because Usher did not challenge the sentence on this

3

Appeal: 12-5015

Doc: 53

Filed: 02/07/2014

Pg: 4 of 5

basis below, our review is for plain error.

See United States

v. Ming Hong, 242 F.3d 528, 532 (4th Cir. 2001).
Congress mandates a minimum seven-year sentence for an
initial conviction under 18 U.S.C. § 924(c)(1)(A)(ii), and a
mandatory minimum sentence of twenty-five years for a second or
subsequent § 924(c) conviction.

18 U.S.C. § 924(c)(1)(C)(i).

Sentences imposed under § 924(c) cannot “run concurrently with
any other term of imprisonment imposed on the person, including
any term of imprisonment imposed for the crime of violence or
drug

trafficking

carried,

or

crime

during

possessed.”

18

which

U.S.C.

the
§

firearm

was

used,

924(c)(1)(D)(ii).

The

district court appropriately imposed an 84-month sentence for
Usher’s first firearm conviction (Count 3) and six consecutive
twenty-five-year terms of imprisonment on Counts 5, 7, 9, 11,
13, and 15.
We
sentence.
are

not

employed

find

no

plain

error

in

the

district

court’s

“Severe, mandatory penalties may be cruel, but they
unusual
in

in

various

the

constitutional

forms

throughout

sense,

our

having

Nation’s

Harmelin v. Michigan, 501 U.S. 957, 994-95 (1991).

been

history.”

Indeed, this

court has held that stacked mandatory sentences under § 924(c),
while seemingly excessive, do not contravene the Constitution.
See, e.g., United States v. Khan, 461 F.3d 477, 495 (4th Cir.
2006)

(lengthy

mandatory

sentences
4

imposed

on

defendants

by

Appeal: 12-5015

Doc: 53

“count-stacking”

Filed: 02/07/2014

provisions

Pg: 5 of 5

of

18

U.S.C.

constitute cruel and unusual punishment).

§

924(c)

did

not

We have held likewise

in other contexts in which the sentence was within statutory
bounds.
1981)

See, e.g., Jones v. Purvis, 646 F.2d 127, 128 (4th Cir.
(per

Amendment

curiam)
where

(sentence
it

was

did

not

“well

violate

within

the

the

Eighth

statutory

authorization”); United States v. Bandy, 415 F.2d 322, 323 (4th
Cir. 1969) (per curiam) (same, where the sentence “was within
the limits of the applicable statute”).
III.
Accordingly,

we

affirm

Usher’s

convictions

2119-month sentence imposed by the district court.

and

the

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

5