US v. Matthew Weston
Filing
UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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
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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
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discretion
in
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the
district
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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.
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Next,
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Weston
argues
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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
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perjured
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himself
at
trial,
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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
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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
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