US v. Jermaine William


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:15-cr-00175-JAG-1. Copies to all parties and the district court. [999987448]. [16-4320]

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Appeal: 16-4320 Doc: 33 Filed: 12/15/2016 Pg: 1 of 9 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4320 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JERMAINE RODNEY WILLIAMS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., District Judge. (3:15-cr-00175-JAG-1) Submitted: November 30, 2016 Decided: December 15, 2016 Before MOTZ, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Gregory R. Sheldon, BAIN SHELDON, PLC, Richmond, Virginia, for Appellant. Dana J. Boente, United States Attorney, Olivia L. Norman, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-4320 Doc: 33 Filed: 12/15/2016 Pg: 2 of 9 PER CURIAM: Following a two-day trial, a federal jury convicted Jermaine Rodney Williams of Count 1 of a three-count indictment, which charged Williams with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (2012). facts underlying this charge occurred on December 21, 2013. The The district court subsequently sentenced Williams to 95 months in prison and Williams imposed timely consideration. a 3-year appealed term and of raises supervised four issue release. for our As set forth below, we conclude these arguments do not garner Williams any relief. Accordingly, we affirm. I. Williams’ first assignment of error pertains to the denial of his pretrial motion to dismiss the indictment. was predicated district Williams. court on a prior as related dismissal to the order first This motion entered indictment by the against In that order, the court found that the prosecution’s failure to bring Williams to trial within 70 days of indictment violated Williams’ rights under the Speedy Trial Act, see 18 U.S.C. §§ 3161–3174 (2012), and that the delay was attributable to the Government and not excusable. The court ordered the case dismissed, but did not specify whether the dismissal was with or without prejudice. 2 Appeal: 16-4320 Doc: 33 The Filed: 12/15/2016 Government Pg: 3 of 9 thereafter sought and obtained a second indictment—the indictment underlying the criminal judgment that is before us on appeal—in which the Government charged Williams with three crimes, two of which were the subject of the first indictment. This second different district judge. indictment, prejudice, arguing thus that criminal case was assigned to a Williams moved to dismiss the second the precluding prior the dismissal Government order from was with reindicting Williams on these charges. The district court held a hearing on the motion to dismiss at which it heard from both the prosecutor and Williams’ new defense attorney and received supporting evidence. thereafter analyzed the factors set forth in The court 18 U.S.C. § 3162(a)(2), which include “the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice,” * and ruled that the first prejudice. dismissal order reflected a dismissal without Williams appeals this ruling, arguing that the court * Although not dispositive, “the presence or absence of prejudice to the defendant” is also “relevant for a district court’s consideration,” and may be considered in conjunction with the third factor. United States v. Taylor, 487 U.S. 326, 334 (1988). 3 Appeal: 16-4320 Doc: 33 Filed: 12/15/2016 Pg: 4 of 9 erred in so finding that the first dismissal order was without prejudice. The trial Speedy does not Trial Act provides begin within 70 that, days if and the the defendant’s delay is not excludable, the district court “shall” dismiss the indictment with or without prejudice on motion of the defendant. 18 U.S.C. § 3162(a)(2); United States v. Henry, 538 F.3d 300, 304 (4th Cir. 2008). remedy for whether Neither a to Speedy dismiss type of Trial a dismissal Act case is violation,” with or “the and without presumptive in resolving prejudice, the district court must consider the specific factors set forth in § 3162(a)(2). Taylor, 487 U.S. at 334. The Supreme Court has instructed that, when reviewing a district court’s ruling on a Speedy Trial Act claim, “the district court’s judgment of how opposing considerations balance should not lightly be disturbed” so long as the court “properly considered” the statutory factors and did not make any clear error in its relevant factual findings. record confirms dismissing the that first the court, indictment, in Id. at 337. interpreting properly Here, the the considered order the statutory factors in 18 U.S.C. § 3162(a)(2) and did not commit clear error in its factual findings related to these factors. We thus affirm the denial of Williams’ motion to dismiss the second indictment on speedy trial grounds. 4 Appeal: 16-4320 Doc: 33 Filed: 12/15/2016 Pg: 5 of 9 II. Williams next maintains that the Government’s evidence on the count of conviction was legally insufficient as it did not adequately prove Williams’ possession, actual or constructive, of a firearm. We disagree. We review the denial of a Fed. R. Crim. P. 29 motion de novo. See United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). When a Rule 29 motion was based on a claim of insufficient evidence, the jury’s verdict must be sustained “if there is substantial evidence, taking the view most favorable to the Government, to support it.” United States v. Abu Ali, 528 F.3d 210, 244 (4th Cir. 2008) (alteration and internal quotation marks omitted). reasonable Substantial finder of fact evidence could is accept “evidence as that adequate a and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” United States v. King, 628 F.3d 693, 700 (4th Cir. 2011) (internal quotation marks omitted). To convict a defendant under 18 U.S.C. § 922(g)(1), the Government must establish that: (1) the defendant was a felon; (2) he voluntarily and intentionally possessed a firearm; and (3) the firearm traveled in interstate commerce. United States v. Reed, 780 F.3d 260, 271 (4th Cir.), cert. denied, 136 S. Ct. 167 (2015). The trial transcript reveals that the Government 5 Appeal: 16-4320 Doc: 33 Filed: 12/15/2016 Pg: 6 of 9 produced sufficient evidence to establish each element of this offense. First, Williams stipulated that he had been convicted of a felony when the testimony of Alcohol, underlying Tobacco, interstate Special events Joseph Agent occurred. Bradley Firearms nexus. and Finally, Uncontradicted of Explosives Officer the Bureau established C. Byerly of of an the Chesterfield County Police Department, who was driving the first of several police vehicles pursuing Williams on December 21, 2013, observed Williams extend his arm out of his car window and drop a firearm to the street. Williams was the lone occupant of this vehicle. Byerly and another officer recovered the firearm shortly Williams Taking after the evidence was in apprehended the light a most few moments favorable later. to the Government and resolving all evidentiary contradictions in the Government’s favor, see United States v. Taylor, 659 F.3d 339, 343 (4th Cir. 2011), this testimony is sufficient to sustain the jury’s guilty verdict, see United States v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997). III. Williams asserts two challenges to his 95-month sentence. First, Williams assigns error to the district court’s application of U.S. Sentencing Guidelines Manual § 3C1.2 (2015), which resulted in a two-level increase in Williams’ base offense 6 Appeal: 16-4320 Doc: 33 level. Filed: 12/15/2016 In evaluating Pg: 7 of 9 the district court’s Guidelines calculations, this court reviews the district court’s findings for clear error and its legal conclusions de novo. United States v. White, 771 F.3d 225, 235 (4th Cir. 2014). Section 3C1.2 provides for a two-level enhancement “[i]f the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.” This enhancement “is intended to capture behavior that could be viewed as an obstruction of justice, and thus requires that a defendant be aware that he or she is fleeing from a law enforcement officer.” United States v. Shell, 789 F.3d 335, 347 (4th Cir. 2015) (internal quotation marks omitted). “[A]cts are considered reckless when [the defendant] was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation.” United States v. Carter, 601 F.3d 252, 255 (4th Cir. 2010) (internal quotation marks omitted). In overruling Williams’ objection to this enhancement, the district court ruled that it was properly applied because, on December chase, 21, on a 2013, Williams two-lane, led business the access Williams’ top speed approached 70 mph. 7 police on road, a high-speed during which The court opined that Appeal: 16-4320 Doc: 33 Filed: 12/15/2016 Pg: 8 of 9 traveling at this excessive rate of speed on such a small road, which, the court observed, was very close to a main thoroughfare, created a substantial risk of death or serious bodily injury to any of the drivers, including Williams. We readily conclude that these facts, which were established by the officers’ trial testimony, Williams’ contention that support he the engaged enhancement only in and belie “mere flight,” which would be insufficient to warrant the enhancement. See id. We therefore conclude that the district court did not commit clear error in applying this enhancement. Finally, Williams maintains that, “pursuant to USSG § 4A1.3(b)(1), a criminal history category of VI substantially over-represented the seriousness (Appellant’s Br. at 19). of his criminal history.” Williams goes on to particularize his various criminal convictions, and the points assigned thereto, and asserts that the scored “convictions for driving on a suspended operators’ license, marijuana possession and assault and battery history.” over-represent the seriousness of his criminal (Id. at 20). To the extent that Williams’ argument could be construed as a challenge to the substantive reasonableness of his sentence, we find that he fails to rebut the presumption of reasonableness afforded his within-Guidelines sentence. 8 See United States v. Appeal: 16-4320 Doc: 33 Louthian, 756 Filed: 12/15/2016 F.3d 295, Pg: 9 of 9 306 (4th Cir. 2014) (providing standard). For order these denying reasons, we Williams’ affirm motion both to the district dismiss the court’s indictment underlying this prosecution and the criminal judgment imposed following the jury trial. 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 9

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