Filed: May 20, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4189 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DURWOOD JOSEPH FIELDS, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:08-cr-00395-FL-1) Submitted: April 27, 2011 Decided: May 20, 2011 Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opi
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4189 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DURWOOD JOSEPH FIELDS, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:08-cr-00395-FL-1) Submitted: April 27, 2011 Decided: May 20, 2011 Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opin..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4189
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DURWOOD JOSEPH FIELDS,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:08-cr-00395-FL-1)
Submitted: April 27, 2011 Decided: May 20, 2011
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
M. Gordon Widenhouse, Jr., RUDOLF WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina, for Appellant. George E.B. Holding,
United States Attorney, Jennifer P. May-Parker, David A.
Bragdon, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Durwood Joseph Fields was convicted after a jury trial
of one count of possession of one or more firearms by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924
(2006). The district court sentenced Fields to 120 months’
imprisonment. Fields appeals, asserting that the district court
erred in refusing his requested jury instruction on mere
presence, denying his request to give the final closing
argument, and in calculating his offense level under the
U.S. Sentencing Guidelines Manual (“USSG”) (2009) without a jury
finding the facts supporting that level beyond a reasonable
doubt. We affirm.
We review jury instructions in their entirety and as
part of the whole trial to determine whether the district court
adequately instructed the jury on the elements of the offense
and the accused’s defenses. See United States v. Bostian, 59
F.3d 474, 480 (4th Cir. 1995). Both the decision whether to
give a jury instruction and the content of that instruction are
reviewed for abuse of discretion. United States v. Passaro,
577 F.3d 207, 221 (4th Cir. 2009). To be entitled to a
requested jury instruction, the party urging the instruction
must establish a sufficient evidentiary foundation to support
the instruction. United States v. Lewis,
53 F.3d 29, 33 n.8
(4th Cir. 1995). In reviewing whether there is a sufficient
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evidentiary foundation for a requested instruction, we view the
evidence in the light most favorable to the party requesting the
instruction. See United States v. Giraldi, 86 F.3d 1368, 1376
(5th Cir. 1996). The refusal to give a requested jury
instruction is reversible error only if the proposed instruction
“(1) was correct; (2) was not substantially covered by the
court’s charge to the jury; and (3) dealt with some point in the
trial so important, that failure to give the requested
instruction seriously impaired the defendant’s ability to
conduct his defense.”
Passaro, 577 F.3d at 221 (internal
quotation marks omitted).
The district court did not commit reversible error in
refusing to give Fields’ requested instruction that his mere
presence at the scene of a crime was insufficient to show his
guilt on the firearms offense. Fields’ proposed instruction was
not supported by the facts presented at trial. In short, there
was no “scene of the crime” unless Fields possessed one or more
firearms discovered in the residence where he was living.
Absent Fields’ possession, there simply was no crime that could
be improperly attributed to him by his presence at the
residence. Further, the district court’s instructions regarding
the possession requirement were adequate to prevent a conviction
based solely on Fields’ proximity to a firearm.
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Fields also contends that the district court committed
reversible error in denying his request to give the final
closing argument. A district court possesses broad discretion
to control closing argument, and its exercise of discretion will
not be overturned absent a clear abuse. See United States v.
Baptiste, 596 F.3d 214, 226 (4th Cir. 2010). A district court
abuses its discretion when it fails or refuses to exercise its
discretion, fails “adequately to take into account judicially
recognized factors constraining its exercise” of discretion, or
exercises its discretion based upon “erroneous factual or legal
premises.” James v. Jacobson,
6 F.3d 233, 239 (4th Cir. 1993).
If a district court abuses its discretion in ruling with respect
to closing argument, such an abuse will justify reversal of a
conviction only if the ruling is prejudicial. United States v.
Ollivierre,
378 F.3d 412, 417 (4th Cir. 2004), vacated on other
grounds by Ollivierre v. United States,
543 U.S. 1112 (2005).
Rule 29.1 of the Federal Rules of Criminal Procedure
provides that “[c]losing arguments proceed in the following
order: (a) the government argues; (b) the defense argues; and
(c) the government rebuts.” Fed. R. Crim. P. 29.1. The Rule is
designed to control the order of closing arguments and to permit
the defendant to respond to the prosecution’s argument in an
informed manner. See id. advisory committee note (1974).
Nothing in the record before us, however, suggests that these
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core interests were invaded in this case. Further, although the
Rule does not “limit the discretion of the trial judge[,] whose
obligation it is to ensure a fair and orderly procedure in the
closing arguments to the jury,” United States v. Cardascia,
951 F.2d 474, 485 (2d Cir. 1991), Fields has not established
that he was prejudiced by the district court’s denial of his
request for the final closing argument. Accordingly, the
court’s denial does not amount to reversible error.
Finally, we conclude that Fields’ Sixth Amendment
right to a jury trial was not violated when the district court
increased his base offense level six levels under USSG
§ 2K2.1(b)(1)(C) based on facts it found by a preponderance of
the evidence. The district court’s application of the six-level
enhancement did not result in a sentence greater than that
authorized by the jury’s verdict in this case. See 18 U.S.C.
§ 924(a)(2). Accordingly, the district court did not violate
the Sixth Amendment in applying the Guidelines enhancement.
See United States v. Booker, 543 U.S. 220, 232-44 (2005)
(holding that judge-found sentence enhancements mandatorily
imposed under the Guidelines that result in a sentence greater
than that authorized by the jury verdict or facts admitted by
the defendant violate the Sixth Amendment’s guarantee of the
right to trial by jury); see also Rita v. United States,
551 U.S. 338, 352 (2007) (recognizing that the Supreme Court’s
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“Sixth Amendment cases do not automatically forbid a sentencing
court to take account of factual matters not determined by a
jury and to increase the sentence in consequence”); United
States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008)
(recognizing only that “the Guidelines must be advisory, not
that judges may find no facts”).
Accordingly, we affirm the district court’s judgment.
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 in the decisional process.
AFFIRMED
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