US v. Roger Jones, III

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to strike, denying motion to stay appeal [999559804-2]. Originating case number: 1:14-cr-00037-JAB-1 Copies to all parties and the district court/agency. [999586641]. [14-4669]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4669

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROGER WAYNE JONES, III,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:14-cr-00037-JAB-1)

Submitted:

April 30, 2015

Decided:

May 20, 2015

Before NIEMEYER, AGEE, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant.
Eric Lloyd Iverson, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Roger Wayne Jones, III, appeals his jury conviction and
204-month sentence for possession of a firearm by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2012).
Jones’s

counsel

California,

386

has
U.S.

filed
738

a

brief

(1967),

pursuant

stating

to

that

Anders

there

are

v.
no

meritorious grounds for appeal but questioning whether a police
search of a vehicle in which Jones was a passenger violated the
Fourth
support

Amendment,
the

jury

whether

that

verdict,

was

whether

sufficient
Jones’s

evidence
sentence

to
is

reasonable, whether Jones had ineffective assistance of counsel,
and whether prosecutorial misconduct occurred.

Jones has filed

a pro se brief arguing that the Government failed to satisfy its
burden of proof at trial and that the district court erred in
sentencing him under the Armed Career Criminal Act (“ACCA”). 1

We

affirm.
First, with regard to Jones’s Fourth Amendment claim, we
conclude that Jones has waived his right to challenge the search
because he failed to file a motion to suppress before trial.
See United States v. Moore, 769 F.3d 264, 267 (4th Cir. 2014)

1

Jones also filed a supplemental pro se brief, but he has
moved to strike it and to stay this appeal. We grant the motion
to strike, and we deny the motion to stay.

2

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(providing

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standard),

cert.

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denied,

135

S.

Ct.

1463

(2015);

United States v. Whorley, 550 F.3d 326, 337 (4th Cir. 2008)
(applying waiver, declining to address suppression issues raised
for first time on appeal, and citing cases adopting rule).
Jones also challenges the sufficiency of the evidence.
must

uphold

a

jury’s

guilty

verdict

if

there

is

We

substantial

evidence, viewed in the light most favorable to the Government,
to support it.

United States v. Hamilton, 701 F.3d 404, 409

(4th Cir. 2012); see United States v. Cornell, 780 F.3d 616, 630
(4th

Cir.

2015)

(defining

substantial

evidence).

“In

determining whether there is substantial evidence to support a
verdict, we defer to the jury’s determinations of credibility
and resolutions of conflicts in the evidence, as they are within
the

sole

province

judicial review.”

of

the

jury

and

are

not

susceptible

to

United States v. Louthian, 756 F.3d 295, 303

(4th Cir.) (internal quotation marks omitted), cert. denied, 135
S. Ct. 421 (2014).

We have reviewed the trial transcript and

conclude that the jury had ample evidence to support a guilty
verdict.

See United States v. Reed, 780 F.3d 260, 271 (4th Cir.

2015) (stating elements of offense). 2
2

To the extent Jones asserts error in the district court’s
handling of a jury question during deliberations, we reject his
claim.
See United States v. Burgess, 604 F.3d 445, 453 (4th
Cir. 2012) (stating standard of review).

3

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We next review Jones’s sentence for both procedural and
substantive

reasonableness

abuse-of-discretion standard.”
38,

41

committed

(2007).
no

We

must

significant

“under

a

deferential

Gall v. United States, 552 U.S.

“ensure

that

procedural

the

error,

district

such

improperly calculating[] the Guidelines range.”

as

court

.

.

Id. at 51.

.
If

there is no significant procedural error, we then consider the
sentence’s substantive reasonableness under “the totality of the
circumstances, including the extent of any variance from the
Guidelines range.”

Id.

We presume that a sentence below a

properly calculated Guidelines range is reasonable.
756 F.3d at 306.
“by

showing

that

Louthian,

A defendant can rebut this presumption only
the

sentence

is

against the § 3553(a) factors.”

unreasonable

when

measured

Id.

After reviewing the presentence report and the sentencing
transcript, we conclude that Jones’s below-Guidelines sentence
is both procedurally and substantively reasonable.
court

properly

concluded

that

the

ACCA

applied

The district
to

correctly calculated the advisory Guidelines range. 3
also

listened

to

both

parties’

3

arguments,

Jones

and

The court

considered

the

18

We also reject Jones’s argument that the district court
erred in not submitting the question of his prior convictions to
the jury. See United States v. McDowell, 745 F.3d 115, 124 (4th
Cir. 2014), cert. denied, 135 S. Ct. 942 (2015).

4

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U.S.C. § 3553(a) (2012) factors, and articulated its reasons for
giving Jones a sentence below that range.

See Gall, 552 U.S. at

51 (discussing procedural reasonableness).

In addition, Jones

has not made the showing necessary to rebut the presumption of
reasonableness accorded his below-Guidelines sentence.
Finally,
brief,

the

contrary
record

misconduct,

to

Jones’s

contains

and

we

no

suggestion
evidence

decline

to

of

in

the

Anders

prosecutorial

consider

Jones’s

ineffective-assistance claim on direct appeal because the record
does not conclusively establish his counsel’s ineffectiveness.
See United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir.
2010).
In

accordance

with

Anders,

we

have

reviewed

the

entire

record in this case and have found no meritorious grounds for
appeal.

We

therefore

affirm

the

district

court’s

judgment.

This court requires that counsel inform Jones, in writing, of
the right to petition the Supreme Court of the United States for
further review.

If Jones requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then
counsel

may

move

representation.

in

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Jones.

5

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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

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