Filed: Mar. 12, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4767 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WAYNEMON DEMOUNT BULLOCK, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:12-cr-00365-F-2) Submitted: January 29, 2015 Decided: March 12, 2015 Before AGEE, DIAZ, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Mitchell G. Styers, B
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4767 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WAYNEMON DEMOUNT BULLOCK, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:12-cr-00365-F-2) Submitted: January 29, 2015 Decided: March 12, 2015 Before AGEE, DIAZ, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Mitchell G. Styers, BA..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4767
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WAYNEMON DEMOUNT BULLOCK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:12-cr-00365-F-2)
Submitted: January 29, 2015 Decided: March 12, 2015
Before AGEE, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Phillip A. Rubin, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Waynemon Demount Bullock of
retaliation against a witness for his attendance and testimony
at an official proceeding, and aiding and abetting the same, in
violation of 18 U.S.C. §§ 1513(b)(1), 2 (2012). The district
court imposed a downward variant sentence of ninety-two months.
On appeal, Bullock challenges his conviction and sentence.
Finding no reversible error, we affirm.
I.
A conviction under § 1513(b)(1) requires proof beyond
a reasonable doubt that “(1) the defendant knowingly engaged in
conduct either causing, or threatening to cause, bodily injury
to another person, and (2) acted with the intent to retaliate
for, inter alia, the testimony of a witness at an official
proceeding.” United States v. Wardell, 591 F.3d 1279, 1291
(10th Cir. 2009). Bullock first challenges the district court’s
jury instructions, arguing that the aiding and abetting
instruction eliminated the retaliatory intent element of the
offense and that an instruction on another count, under 18
U.S.C. § 1513(b)(2) (2012), confused the jury as to the
knowledge and intent Bullock had to possess for the jury to
convict him under 18 U.S.C. § 1513(b)(1). “We review the
district court’s jury instructions in their entirety and as part
of the whole trial, and focus on whether the district court
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adequately instructed the jury regarding the elements of the
offense and the defendant’s defenses.” United States v. Wilson,
198 F.3d 467, 469 (4th Cir. 1999) (citation omitted).
We review Bullock’s challenges to the jury
instructions for plain error. Bullock raised no objection to
the aiding and abetting instruction below; while he did object
to the § 1513(b)(2) instruction, he did so on grounds other than
that it confused the jury about the elements of § 1513(b)(1),
the issue he raises here. See Fed. R. Crim. P. 30(d) (requiring
party to inform district court of specific grounds for objection
to instruction; otherwise, review is for plain error under Fed.
R. Crim. P. 52(b)); United States v. Robinson, 627 F.3d 941, 953
(4th Cir. 2010).
After properly instructing the jury on the elements of
18 U.S.C. § 1513(b)(1), the district court instructed the jury
regarding aiding and abetting, stating that “[a] person may
violate the law even though he or she does not personally do
every — each and every act constituting the offense if that
person aided and abetted the commission of the offense.” We
conclude that this instruction was neither erroneous nor
misleading. As a defendant’s intent, knowledge, and motivation
when committing an offense are not acts, the aiding and abetting
instruction did not diminish the finding the jury needed to make
regarding Bullock’s retaliatory intent.
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Bullock next argues that the instructions on the 18
U.S.C. § 1513(b)(2) charge confused the jury as to the elements
of §1513(b)(1). The district court instructed the jury that, to
find Bullock guilty of retaliating against a person for
providing a law enforcement officer information related to the
commission of a federal offense, it did not need to find that
Bullock knew that the law enforcement officer was a federal law
enforcement officer.
We perceive no likelihood that the instruction at
issue confused the jury regarding the elements of 18 U.S.C.
§ 1513(b)(1). First, Bullock’s conviction of retaliation
against a witness for his attendance and testimony at an
official proceeding did not require involvement of a law
enforcement officer. Second, the district court twice properly
instructed the jury that to convict Bullock under 18 U.S.C. §
1513(b)(1), it needed to find that Bullock knew the official
proceeding was a federal one. Accordingly, we find no reason to
reverse Bullock’s conviction based on the jury instructions.
Bullock also attacks his conviction by asserting that
the Government failed to produce sufficient evidence
establishing that he knew the victim had testified in a federal
proceeding or that he entered the affray with the intent to
retaliate against the victim for his testimony. We review
challenges to the sufficiency of evidence de novo. United
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States v. Roe, 606 F.3d 180, 186 (4th Cir. 2010). “The jury’s
verdict must be upheld on appeal if there is substantial
evidence in the record to support it, where 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. Perry,
757
F.3d 166, 175 (4th Cir. 2014) (emphasis and internal quotation
marks omitted), cert. denied, ___ S. Ct. ___,
2015 WL 133401
(U.S. Jan. 12, 2015) (No. 14-7289).
Although Bullock testified that he did not know that
the victim testified in a federal proceeding, three of the
Government’s witnesses provided the jury with ample testimony to
conclude beyond a reasonable doubt that Bullock was aware of the
victim’s testimony at the time of the altercation and joined in
the fight in retaliation for the victim’s testimony. We do not
reweigh the jury’s credibility determinations, United States v.
Kelly, 510 F.3d 433, 440 (4th Cir. 2007), and Bullock has not
sustained his burden of showing that the evidence was
insufficient to support his conviction.
II.
Bullock challenges the procedural and substantive
reasonableness of his sentence. We review Bullock’s sentence
for reasonableness “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). A
5
district court commits procedural error where, among other
things, it improperly calculates the Guidelines range, fails to
give sufficient consideration to the 18 U.S.C. § 3553(a) (2012)
factors, or inadequately explains the sentence imposed. Id. at
51. Legal conclusions made by the district court in imposing a
sentence, including which U.S. Sentencing Guidelines Manual
(“USSG”) (2012) provision is applicable for scoring an offense
of conviction, are reviewed de novo. United States v. Boulware,
604 F.3d 832, 835 (4th Cir. 2010).
When reviewing a sentence for substantive
reasonableness, we “examine[] 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). “[A]n appellate court must defer
to the trial court and can reverse a sentence only if it is
unreasonable, even if the sentence would not have been the
choice of the appellate court.” United States v. Evans,
526
F.3d 155, 160 (4th Cir. 2008). A sentence within the
defendant’s properly calculated Guidelines range is presumed
substantively reasonable on appeal, and “[s]uch a presumption
can only be rebutted by showing that the sentence is
unreasonable when measured against the 18 U.S.C. § 3553(a)
6
factors.” United States v. Louthian, 756 F.3d 295, 306 (4th
Cir.), cert. denied,
135 S. Ct. 421 (2014).
First, Bullock argues that the district court should
have applied USSG § 2A2.2, governing aggravated assault
offenses, rather than USSG § 2J1.2, governing obstruction of
justice offenses. The Statutory Index in the Guidelines Manual
lists both USSG §§ 2A2.2 and 2J1.2 as potentially applicable
provisions for scoring a conviction under 18 U.S.C.
§ 1513(b)(1). See USSG App. A (Statutory Index). To determine
which provision is most applicable, a court must look at the
“offense conduct charged” in the indictment. Boulware, 604 F.3d
at 836. If both provisions are “equally applicable” a court
should apply “the provision that results in the greater offense
level.” USSG § 1B1.1 cmt. n.5.
With regard to the 18 U.S.C. § 1513(b)(1) charge,
Bullock’s indictment alleged that he “cause[d] bodily injury to
another person” and that he did so “with the intent to retaliate
against a person for the attendance of, and testimony given by,
a witness.” Accordingly, the charged conduct, read in a light
most favorable to Bullock, falls at least equally within both of
the potentially applicable provisions. Compare USSG § 2A2.2
cmt. background with USSG § 2J1.2 cmt. background. Where
scoring Bullock’s offense of conviction under USSG § 2J1.2
7
produced a higher total offense level, the district court did
not procedurally err when it applied USSG § 2J1.2.
Second, Bullock argues that the district court
procedurally erred when it varied downward without explaining
the extent of its variance or why the lower sentence Bullock
sought did not satisfy the 18 U.S.C. § 3553(a) factors. Where
the district court imposes a variant sentence, it “must give
serious consideration to the extent of the . . . variance, and
must adequately explain the chosen sentence to allow for
meaningful appellate review and to promote the perception of
fair sentencing.” United States v. Montes-Flores, 736 F.3d 357,
371 (4th Cir. 2013) (internal quotation marks omitted). In this
case, the district court did not specify why the extent of the
chosen variance was appropriate. Furthermore, the district
court, while stating that it had considered the § 3553(a)
factors and making a brief reference to Bullock’s criminal
record, did not explain how the sentencing factors applied to
Bullock’s case. Accordingly, the district court procedurally
erred when imposing Bullock’s sentence. See United States v.
Carter,
564 F.3d 325, 329-30 (4th Cir. 2009) (district court’s
statement that it considered § 3553(a) factors constitutes
procedural error where it did not “articulate how the sentencing
factors applied to the facts of the particular case before it”).
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We review a procedural error at sentencing for
harmlessness. Boulware, 604 F.3d at 838. A district court’s
failure to properly explain its sentence is harmless where the
error “did not have a substantial and injurious effect or
influence on the result,” including where the record
demonstrates that the district court considered the arguments
advanced by the defendant and the arguments were weak.
Id. at
839-40. Here, Bullock argued that a downward variant sentence
was appropriate because his offense should have been scored
under USSG § 2A2.2. Although the district court opted to vary
downward to some extent, the record makes clear that it had
already rejected Bullock’s scoring argument, in accordance with
the Guidelines. Therefore, the district court’s failure to
adequately explain its sentence was harmless.
Finally, Bullock argues that his sentence is
substantively unreasonable because the district court did not
adequately tie his sentence to the § 3553(a) factors. As
Bullock’s ninety-two-month sentence is a downward variant
sentence, we presume it is substantively reasonable. Louthian,
756 F.3d at 306. Bullock has not overcome the presumption of
substantive reasonableness where the district court’s sentence
accounted for Bullock’s pattern of recidivism. See 18 U.S.C.
§ 3553(a)(2)(B), (a)(2)(C) (listing need “to afford adequate
9
deterrence” and “to protect the public from further crimes of
the defendant” as sentencing factors).
III.
Accordingly, we affirm Bullock’s conviction and
sentence. 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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