US v. DeMarcus Brown

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:13-cr-00068-MFU-1 Copies to all parties and the district court/agency. [999475038].. [14-4255]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4255

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DEMARCUS MANDELL BROWN,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Michael F. Urbanski, District
Judge. (7:13-cr-00068-MFU-1)

Submitted:

October 30, 2014

Before DUNCAN and
Circuit Judge.

KEENAN,

Decided:

Circuit

Judges,

November 14, 2014

and

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.

Paul G. Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke,
Virginia, for Appellant.
Jennifer Scott DeGraw, OFFICE OF THE
UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
DeMarcus Brown appeals the district court’s judgment
sentencing

him

to

one

year

of

imprisonment

pursuant

to

his

conviction of assault on a government employee, in violation of
18

U.S.C.

§

111(a)

(2012).

Brown’s

counsel

filed

a

brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that

there

are

no

meritorious

questioning

whether

(1)

Brown’s

sufficient

evidence

or

otherwise

grounds

conviction

for
is

unlawful,

appeal,
unsupported

(2)

the

but
by

district

court abused its discretion in imposing Brown’s sentence to run
consecutively

to

his

preexisting

sentence,

(3)

the

district

court erred in failing to give Brown’s requested instruction on
justification and (4) the district court erred in failing to
instruct

that

willfulness

was

offense.

Although advised of his right to do so, Brown has not

filed a supplemental brief.
brief.

an

essential

element

of

the

The Government declined to file a

We affirm.
We review de novo the district court’s denial of a

Fed. R. Crim. P. 29 motion for judgment of acquittal.
States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006).

United

We affirm

if, viewing the evidence in the light most favorable to the
Government,

“the

conviction

is

supported

by

substantial

evidence.”

United States v. Hickman, 626 F.3d 756, 763-64 (4th

Cir.

(internal

2010)

quotation
2

marks

omitted).

“Substantial

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evidence” is defined as such “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.”
United

States

(internal

v.

Green,

quotation

599

marks

F.3d

360,

omitted).

A

367

(4th

defendant

Cir.

2010)

challenging

evidentiary sufficiency “bears a heavy burden,” as reversal of a
conviction

is

limited

to

those

circumstances

prosecution’s failure is clear.”
F.3d

233,

244-45

(4th

Cir.

in

which

“the

United States v. Foster, 507

2007)

(internal

quotation

marks

omitted).
Any
opposes,

individual

impedes,

who

“forcibly

intimidates,

or

assaults,

interferes

with

resists,

[a

federal

officer] while engaged in . . . official duties . . . shall,
where

the

acts

in

violation

of

this

section

constitute

only

simple assault, be fined under this title or imprisoned not more
than

one

year,

or

both[.]”

18

U.S.C.

§

111.

Viewing

the

evidence in the light most favorable to the Government, there
was

ample

evidence

that

Brown

forcibly

assaulted,

resisted,

opposed, impeded, intimidated, or interfered with United States
Marshals while they were attempting to transport him from his
cell to his change of plea hearing.
district

court

did

not

err

in

acquittal.

3

We thus conclude that the

denying

Brown’s

motion

for

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Brown
sentence

next

for

challenges

338, 347 (2007).
or

sentence.

applying

We

“a

review

a

deferential

Gall v. United States, 552 U.S.

There we presume that a within-Guidelines range

sentence is reasonable.

concurrent

his

reasonableness,

abuse-of-discretion standard.”
38, 46 (2007).

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See Rita v. United States, 551 U.S.

We review the decision whether to impose a

consecutive

sentence

for

abuse

of

discretion.

United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2012).
Our
reasonable

review

to

of

impose

upon

concurrent, sentence.

the

record

Brown

a

reflects

that

consecutive,

it

rather

was
than

We thus conclude that the district court

did not abuse its discretion in imposing its sentence.
Brown next challenges the district court’s refusal to
instruct

the

jury

as

to

the

justification

defense.

“[A]

defendant is entitled to an instruction as to any recognized
defense for which there exists evidence sufficient for a jury to
find in his favor.”

United States v. Ricks, 573 F.3d 198, 200

(4th Cir. 2009) (internal quotation marks omitted).
We review a district court’s refusal to instruct the
jury

on

Perrin,

an
45

affirmative
F.3d

869,

defense
871

(4th

de

novo.

Cir.

1995).

United
To

States
warrant

justification instruction, a defendant must show that he:
(1) was under unlawful and present threat of
death or serious bodily injury;

4

v.
a

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(2) did not recklessly place himself in a
situation where he would be forced to engage
in criminal conduct;
(3) had no reasonable legal alternative (to
both the criminal act and the avoidance of
threatened harm); and
(4) a direct causal relationship between the
criminal action and the avoidance of the
threatened harm.
Ricks, 573 F.3d at 202.
We

have

reviewed

the

record

and

conclude

that

the

district court did not err in refusing to give a justification
instruction.

Brown did not show that he faced “death or serious

bodily injury,” or that he had “no legal alternative” to his
conduct.

We thus hold that the district court correctly refused

to give the instruction.
Brown’s
should

have

final

challenge

instructed

the

jury

is

that

that

the

district

“willfulness”

essential element of the charged offense.

court
is

an

We consider de novo

“whether a district court has properly instructed a jury on the
statutory elements of an offense.”
F.3d

350,

355

(4th

Cir.

2012)

United States v. Powell, 680
(internal

quotation

marks

omitted).
We
district

have

court’s

reviewed
decision

the
was

record
correct.

and

conclude
Specific

that
intent

the
to

violate the statute is not required to be convicted under 18
U.S.C. § 111.

United States v. Williams, 604 F.2d 277, 279 (4th
5

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Cir. 1979).

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We thus hold that the district court did not abuse

its discretion in refusing to instruct the jury that willfulness
was an essential element of the charged offense.
In accordance with Anders, we have reviewed the record
and have found no meritorious issues for appeal.
we affirm the district court’s judgment.

Accordingly,

This court requires

that counsel inform Brown, in writing, of the right to petition
the Supreme Court of the United States for further review.

If

Brown 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 thereof was served on
Brown.
legal
before

We dispense with oral argument because the facts and
contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

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