US v. Randolph Spain
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:14-cr-00021-F-1 Copies to all parties and the district court/agency. .. [15-4692]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
RANDOLPH JOHNSON SPAIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:14-cr-00021-F-1)
November 21, 2016
Before NIEMEYER and
Senior Circuit Judge.
December 20, 2016
Affirmed in part, vacated in part and remanded by unpublished
per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, Acting United States Attorney,
Jennifer P. May-Parker, Barbara D. Kocher, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Guidelines range and sentenced Spain to the statutory maximum of
240 months of imprisonment, and he now appeals.
For the reasons
that follow, we affirm the convictions, but vacate the sentence
Spain first challenges the sufficiency of the evidence for
the second count of conviction.
We review a district court’s
decision to deny a Fed. R. Crim. P. 29 motion for a judgment of
acquittal de novo.
(4th Cir. 2006).
United States v. Smith, 451 F.3d 209, 216
A defendant challenging the sufficiency of the
evidence faces a heavy burden.
United States v. Beidler, 110
F.3d 1064, 1067 (4th Cir. 1997).
In determining whether the
evidence is sufficient to support a conviction, we determine
viewed in the light most favorable to the government, to support
United States v. Palacios, 677 F.3d 234, 248
(4th Cir. 2012) (internal quotation marks omitted).
evidence is “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.”
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credibility are within the sole province of the jury and are not
susceptible to judicial review.”
Id. (internal quotation marks
individual engage in prostitution or any sexual activity that
intent that the individual engage in prostitution, however, need
not be the defendant’s sole motivation for the interstate travel
Dingess v. United States, 315 F.2d 238, 239 (4th Cir. 1963).
have thoroughly reviewed the record and conclude that there was
sufficient evidence to support the jury’s verdict of guilt on
the second count.
Spain also argues that the district court erred in applying
a cross-reference under the Sentencing Guidelines and that this
error violated his Sixth Amendment right to a jury trial.
review a sentence for abuse of discretion, determining whether
United States v. Heath, 559 F.3d 263, 266 (4th Cir. 2009).
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Guidelines as mandatory, failing to consider the [18 U.S.C.]
clearly erroneous facts, or failing to adequately explain the
We then “‘consider the substantive reasonableness of
the sentence imposed.’”
United States v. Evans, 526 F.3d 155,
161 (4th Cir. 2008) (quoting Gall, 552 U.S. at 51).
In addition, in reviewing the district court’s calculations
conclusions de novo and its factual findings for clear error.”
United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010)
(internal quotation marks omitted).
We will “find clear error
only if, on the entire evidence, we are left with the definite
Manigan, 592 F.3d at 631 (internal quotation marks omitted).
Section 2G1.1(c) of the Guidelines provides that a district
court should apply U.S. Sentencing Guidelines § 2A3.1 (2015) in
determining the offense level if the offense involved conduct
defendant is guilty of violating § 2242 if he knowingly causes
placing that other person in fear.
18 U.S.C. § 2242(1).
on our review of the record, we conclude that the district court
did not err in applying this cross-reference in calculating the
advisory Guidelines range.
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Moreover, as Spain concedes in his
binding circuit precedent.
See United States v. Benkahla, 530
F.3d 300, 312 (4th Cir. 2008) (“Sentencing judges may find facts
relevant to determining a Guidelines range by a preponderance of
the evidence, so long as that Guidelines sentence is treated as
advisory and falls within the statutory maximum authorized by
the jury’s verdict.”).
Finally, Spain argues that the court erred in awarding two
criminal history points each to his 2011 Virginia conviction
consisting of four counts of prostitution and his 2013 North
Carolina conviction for assault because these convictions were
The Government has conceded the error and joins
respect to Spain’s North Carolina conviction, the district court
should have awarded that conviction only one criminal history
point because it was on appeal.
See United States v. Martin,
378 F.3d 353, 355-60 (4th Cir. 2004).
however, was not on appeal.
The Virginia conviction,
Spain appealed the 2011 Virginia
pleaded guilty to one of the four prostitution charges while on
appeal in the state circuit court.
However, as the Government
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prostitution as well as (2) the 2011 Virginia conviction for one
of those counts that resulted from Spain’s appeal to the state
We are unable to determine on the record that this error
was harmless. *
Cf. United States v. Savillon-Matute, 636 F.3d
119, 123 (4th Cir. 2011) (to determine that incorrect Guidelines
calculation was harmless, appellate court must determine that
district court would have reached the same result if Guidelines
Accordingly, we affirm Spain’s convictions, but
vacate the sentence and remand for proceedings consistent with
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 in the decisional
AFFIRMED IN PART;
VACATED IN PART AND REMANDED
We express no opinion on the substantive reasonableness of
the sentence that the district court imposed.
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