USA v. Wishork

Filing 920060921

Opinion

Download PDF
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT September 21, 2006 Charles R. Fulbruge III Clerk No. 05-60453 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus STEPHEN WISHORK, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Mississippi USDC No. 4:04-CR-32 -------------------Before JOLLY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* Stephen Wishork appeals his conviction following a jury trial for sexual assault of a child on an Indian reservation, in violation of 18 U.S.C. §§ 1153 and 2241(c), and his resulting 180-month sentence. He contends that the prosecutor made impermissible closing remarks which deprived him of a fair trial; that the district court erred in preventing him from crossexamining Government witness Randal Hickman about any charges of sexual assault Hickman faced; and that the sentence imposed violates United States v. Booker, 543 U.S. 220 (2005). Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * No. 05-60453 -2Wishork's challenge to the prosecutor's closing remarks indicating that he and his girlfriend, Tonya Lillie, broke up because she was aware he sexually assaulted the victim in this case fails for lack of resulting substantial prejudice because the challenged statements were not pervasive throughout closing argument and were limited by the district court's cautionary instruction to the jury that argument by counsel was not evidence. See United States v. Holmes, 406 F.3d 337, 356 (5th Moreover, the Cir.), cert. denied, 126 S. Ct. 375 (2005). evidence of Wishork's guilt was strong, including the medical evidence indicative of sexual assault; the victim's testimony that Wishork was her attacker, which testimony was corroborated by the testimony of her family members, the investigating officer, and the nurse who examined her; Officer Butler's testimony that, at his initial interview, Wishork denied being at home on the night in question, then changed his story, saying that he had gone out with Randal Hickman and returned home to sleep in his room; and Hickman's testimony that he spent the night in Wishork's room and did not see Wishork that evening, which contradicted Wishork's story to the police. See id. To the extent that Wishork additionally challenges, for the first time on appeal, the prosecutor's comments regarding his flight to New Mexico after his initial police interview, the claim is similarly unavailing. The remarks regarding Wishork's flight to New Mexico were made in explanation of why he had not No. 05-60453 -3been tested for chlamydia and were proper comments on the trial evidence. See United States v. Binker, 795 F.2d 1218, 1224 Moreover, the comments were proper rebuttal to (5th Cir. 1986). the defense counsel's closing argument suggesting that the investigators were at fault for failing to test Wishork for chlamydia. The remarks were not plainly erroneous. See United States v. Knezek, 964 F.2d 394, 400 (5th Cir. 1992). Wishork next contends, also for the first time on appeal, that the district court improperly limited his cross-examination of Hickman. Even if it is assumed that the district court's ruling prohibiting Wishork's proposed question on crossexamination was error, Wishork's substantial rights were not affected, given the strength of the direct evidence of his guilt, including the victim's unwavering identification of him as her assailant, as well as the lack of any evidence pointing to Hickman as a suspect and the jury's clear rejection of Lillie's alibi testimony. (1993). Wishork additionally challenges his sentence. For the first See United States v. Olano, 507 U.S. 725, 732 time on appeal, he contends that the sentence violates Booker because the district court apparently considered the guidelines to be mandatory and because it increased his sentence beyond the statutory maximum based on judicially determined facts. Wishork's conclusional allegation that the district court mistakenly considered the guidelines to be mandatory is No. 05-60453 -4unsupported by the record, which establishes that sentence was imposed after Booker. Because sentencing occurred post-Booker, there is no Sixth Amendment violation in connection with the district court's factual findings. See United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005). Further, because the sentence imposed fell within a properly calculated advisory guidelines range, it was neither unreasonable nor plainly erroneous. Id. The district court's judgment is AFFIRMED.

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?