US v. Jermaine William

Filing

UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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.

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The

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Government

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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).

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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.
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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

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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
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level.

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In

evaluating

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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

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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.

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Louthian,

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F.3d

295,

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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

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