Filed: Jan. 21, 2011
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4631 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVIN JEROME STEWART, Defendant - Appellant. No. 10-4633 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVIN JEROME STEWART, Defendant - Appellant. Appeals from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, Chief District Judge. (2:96-cr-00115-DCN-2; 2:09-cr-00295-DCN-1) Submitted: December 22, 2010 Decided: J
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4631 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVIN JEROME STEWART, Defendant - Appellant. No. 10-4633 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVIN JEROME STEWART, Defendant - Appellant. Appeals from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, Chief District Judge. (2:96-cr-00115-DCN-2; 2:09-cr-00295-DCN-1) Submitted: December 22, 2010 Decided: Ja..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4631
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVIN JEROME STEWART,
Defendant - Appellant.
No. 10-4633
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVIN JEROME STEWART,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Charleston. David C. Norton, Chief
District Judge. (2:96-cr-00115-DCN-2; 2:09-cr-00295-DCN-1)
Submitted: December 22, 2010 Decided: January 21, 2011
Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary Gordon Baker, Assistant Federal Public Defender,
Charleston, South Carolina, for Appellant. Alston Calhoun
Badger, Jr., Assistant United States Attorney, Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Appellant Davin Jerome
Stewart appeals the judgment of conviction entered after a jury
trial and the amended judgment revoking supervised release.
Stewart was convicted of one count of bank robbery and aiding
and abetting such conduct, in violation of 18 U.S.C. §§ 2113(a),
(d), and 2 (2006), one count of using and carrying a firearm
during and in relation to a crime of violence, in violation of
18 U.S.C. § 924(c)(1)(A)(ii) (2006), and one count of being a
felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2006). He was sentenced to a total of
171 months’ imprisonment for the three convictions. Based on
the convictions, the district court revoked Stewart’s supervised
release and sentenced him to an additional thirty month term to
run consecutive to the underlying sentences. Stewart’s counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), certifying there are no meritorious issues for appeal
but raising for the court’s consideration whether the evidence
was sufficient to support the convictions and whether the
sentences were reasonable. Stewart was given the opportunity to
file a pro se supplemental brief but declined. The Government
did not file a brief. We affirm.
“A defendant challenging the sufficiency of the
evidence to support his conviction bears a heavy burden.”
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United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)
(internal quotation marks omitted). A jury’s verdict “must be
sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.” Glasser v. United
States,
315 U.S. 60, 80 (1942); see United States v. Perkins,
470 F.3d 150, 160 (4th Cir. 2006). Substantial 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.” United States v. Alerre,
430
F.3d 681, 693 (4th Cir. 2005) (internal quotation marks
omitted). The court considers both circumstantial and direct
evidence, drawing all reasonable inferences from such evidence
in the government’s favor. United States v. Harvey,
532 F.3d
326, 333 (4th Cir. 2008). In resolving issues of substantial
evidence, this court does not reweigh the evidence or reassess
the factfinder’s determination of witness credibility, see
United States v. Brooks,
524 F.3d 549, 563 (4th Cir. 2008), and
“can reverse a conviction on insufficiency grounds only when the
prosecution’s failure is clear.” United States v. Moye,
454 F.3d 390, 394 (4th Cir. 2006) (en banc) (internal quotation
marks omitted).
We conclude there was more than sufficient evidence to
support all three convictions. The evidence showed that Stewart
was captured by police after being seen running from one of the
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getaway vehicles. Near where he was seized was a bag of dye-
stained money, blue gloves and a ski mask similar to what was
worn by the robbers. There was also evidence that one of his
fingerprints was lifted off of one of the bullets taken from one
of the guns. It also appeared from the surveillance video of
the robbery that Stewart fit the physical type of the robber who
jumped the counter and seized the money. Although Stewart was
not observed using a gun, his accomplice was seen brandishing
two guns during the robbery. Furthermore, Stewart stipulated to
being a convicted felon and that the handguns and ammunition
were manufactured outside South Carolina. We conclude there was
ample evidence showing that Stewart was an active participant in
the robbery, that he aided and abetted the use of a firearm in
furtherance of a crime of violence, and that he was a felon in
unlawful possession of ammunition.
This court reviews a district court’s sentence for
reasonableness under an abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007); see also United States v.
Pauley,
511 F.3d 468, 473-74 (4th Cir. 2007). This review
requires appellate consideration of both the procedural and
substantive reasonableness of a sentence.
Gall, 552 U.S. at 51.
In determining procedural reasonableness, this court considers
whether the district court properly calculated the defendant’s
advisory Guidelines range, considered the 18 U.S.C. § 3553(a)
5
(2006) factors, analyzed any arguments presented by the parties,
and sufficiently explained the selected sentence. Id.
“Regardless of whether the district court imposes an above,
below, or within-Guidelines sentence, it must place on the
record an individualized assessment based on the particular
facts of the case before it.” United States v. Carter,
564 F.3d
325, 330 (4th Cir. 2009) (internal quotation marks omitted).
Finally, this court reviews the substantive
reasonableness of the sentence, “examin[ing] the totality of the
circumstances to see whether the sentencing court abused its
discretion in concluding that the sentence it chose satisfied
the standards set forth in § 3553(a).” United States v.
Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). If the
sentence imposed is within the appropriate Guidelines range, on
appeal it is presumptively reasonable. United States v. Go,
517
F.3d 216, 218 (4th Cir. 2008). This presumption may be rebutted
by a showing “that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted).
We review a sentence imposed after revocation of
supervised release to determine whether it is within the
prescribed statutory range and is not plainly unreasonable.
United States v. Crudup, 461 F.3d 433, 437-39 (4th Cir. 2006).
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We have reviewed the Presentence Investigation Report, the
Supervised Release Violation Report and the sentencing
transcript and find no error. Accordingly, we affirm the
sentences.
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none. We therefore
affirm. This court requires that counsel inform the client, in
writing, of his right to petition the Supreme Court of the
United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy was served on the client. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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