US v. Matthew Weston


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:14-cr-00073-D-1. Copies to all parties and the district court. [999704754]. [15-4028]

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Appeal: 15-4028 Doc: 39 Filed: 11/23/2015 Pg: 1 of 7 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4028 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MATTHEW LUKE WESTON, Defendant -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. (5:14-cr-00073-D-1) Submitted: November 19, 2015 Decided: November 23, 2015 Before NIEMEYER, KING, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. EJ Hurst II, Durham, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-4028 Doc: 39 Filed: 11/23/2015 Pg: 2 of 7 PER CURIAM: Matthew Luke Weston appeals from his convictions after a jury trial for possession of a firearm by a convicted felon and possession of a stolen firearm, both counts involving a 9 mm Beretta pistol. He also challenges his 175-month sentence. Weston contests the district court’s admission of testimony that he possessed a .22 caliber pistol that was not the subject of the charged counts and the court’s denial of his motions for a mistrial, and asserts that the court impermissibly sentenced him based on facts found by a preponderance of evidence. After a thorough review of the record and the parties’ arguments, we affirm. We first challenges review, to the for abuse district of court’s discretion, admission Weston’s of evidence. United States v. Hassan, 742 F.3d 104, 130 (4th Cir.), cert. denied, 135 S. Ct. 157 (2014). Weston contends that the testimony regarding Weston’s possession of a .22 caliber pistol stolen from the same area at the same time as the charged 9 mm Beretta was not intrinsic evidence or admissible under Federal Rules of Evidence introduction of 404(b) or “[e]vidence 403. of a Rule crime, 404(b)(1) wrong, or prohibits other act . . . to prove a person’s character in order to show that on a particular character.” occasion the Evidence person acted “concern[ing] 2 in accordance acts intrinsic with the to the Appeal: 15-4028 Doc: 39 Filed: 11/23/2015 alleged crime,” ambit. United States v. Otuya, 720 F.3d 183, 188 (4th Cir. 2013) however, Pg: 3 of 7 (internal quotation “[E]vidence of things, involves it does other bad the not fall marks acts same within and is brackets intrinsic series Rule of if, 404(b)’s omitted). among transactions other as the charged offense, which is to say that both acts are part of a single criminal episode.” citation omitted). Id. (internal quotation marks and Moreover, evidence subject to exclusion under Rule 404(b)(1) “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). To acts” be admissible evidence must under be Rule 404(b), relevant to the an proffered issue other “bad than character, necessary to prove an element of the crime charged, reliable, and its probative value outweighed by its prejudicial nature. must not be substantially United States v. Fuertes, ___ F.3d ___, ___, No. 13-4755, 2015 WL 4910113, at *4 (4th Cir. Aug. 18, 2015). court abused its Generally, we will not find that a district discretion in admitting evidence over an objection unless that decision was “arbitrary and irrational.” United States v. Williams, 740 F.3d 308, 314 (4th Cir. 2014). Under these standards, we conclude that there was no abuse of 3 Appeal: 15-4028 Doc: 39 discretion in Filed: 11/23/2015 the district Pg: 4 of 7 court’s decision to admit the challenged testimony. Next, Weston denying his contends motion for a that the mistrial district because court juror a erred in allegedly viewed him in restraints, without first allowing him to question the marshals discretion transporting the district him. We denial of court’s review a for abuse motion for mistrial or the denial of a motion for a new trial. States v. Robinson, 627 F.3d 941, 948 (4th of a United Cir. 2010) (discussing motion for new trial); United States v. Wallace, 515 F.3d 327, 330 (4th Cir. 2008) (discussing motion for mistrial). The district court’s denial “will be disturbed only under the most extraordinary of circumstances.” United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997). The juror who the defendant thought had seen him in restraints credibly and unequivocally testified that he had not seen the defendant during the morning in question. found the juror to be credible and that with The court the fact in question resolved, there was no need for further investigation. This factual finding, based on the court’s assessment of the witness’s credibility, is not clearly erroneous. States v. DiTommaso, (providing standard). 405 F.2d 385, 393 (4th See United Cir. 1968) We therefore determine that the court did not abuse its discretion. 4 Appeal: 15-4028 Doc: 39 Next, Filed: 11/23/2015 Weston argues Pg: 5 of 7 that the district court erred in denying his motion for a new trial under Fed. R. Crim. P. 33. At trial, Weston contended that there was no direct evidence of his possession of the 9 mm Beretta and the testimonial evidence was contradictory, inconsistent, and incredible. In denying the motion, the court made several specific credibility findings in favor of the Government’s witnesses and stated that the defendant perjured himself. The denial of a motion for a new trial is reviewed for an abuse of discretion. United States v. Bartko, 728 F.3d 327, 334 (4th Federal Cir. 2013). Rule of Criminal Procedure 33 authorizes a district court to “vacate any judgment and grant a new trial if the interest of justice so requires.” Crim. P. 33(a). Fed. R. When the Rule 33 motion “attacks the weight of the evidence, the court’s authority is much broader than when it is deciding a motion to acquit on the ground of insufficient evidence” in witnesses.” that “it may evaluate the credibility of the United States v. Arrington, 757 F.2d 1484, 1485 (4th Cir. 1985). “When the evidence weighs so heavily against the verdict that it would be unjust to enter judgment, the court should grant a new trial.” Id. (citing cases). We have reviewed the record with the requisite standards and conclude that, in light of the heavy weight of the evidence and credibility findings made by the court, including that Weston 5 Appeal: 15-4028 Doc: 39 perjured Filed: 11/23/2015 himself at trial, Pg: 6 of 7 the court did not abuse its discretion in denying the motion. Finally, Weston argues that the court erred in considering acquitted or Guidelines uncharged range conduct and in in making calculating sentencing the Sentencing findings by a preponderance of the evidence and not beyond a reasonable doubt. A district court’s legal conclusions at sentencing are reviewed de novo and factual findings for clear error. United States v. Gomez–Jimenez, 750 F.3d 370, 380 (4th Cir.), cert. denied, 135 S. Ct. 305, 384 (2014). Weston recognized at sentencing and admits on appeal that Alleyne v. United States, 133 S. Ct. 2151 (2013), forecloses his argument. The Supreme Court made clear in Alleyne that its holding “does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment.” 133 S. Ct. at 2163; see United States v. Smith, 751 F.3d 107, 117 (3d Cir.) (“Alleyne did not curtail a sentencing court’s ability to find facts relevant in selecting a sentence within the prescribed statutory range.”), cert. denied, 135 S. Ct. 383, 497 (2014). considering The the district conduct and court therefore applying evidence standard. 6 a did not preponderance err in of the Appeal: 15-4028 Doc: 39 Filed: 11/23/2015 Pg: 7 of 7 Accordingly, we affirm the judgment. 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 7

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