Filed: Jun. 12, 2012
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4027 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DEXTER BROADNAX, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:09-cr-00201-F-1) Submitted: May 17, 2012 Decided: June 12, 2012 Before MOTZ, KING, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. W. James Payne, Shallotte, North Car
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4027 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DEXTER BROADNAX, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:09-cr-00201-F-1) Submitted: May 17, 2012 Decided: June 12, 2012 Before MOTZ, KING, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. W. James Payne, Shallotte, North Caro..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4027
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DEXTER BROADNAX,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:09-cr-00201-F-1)
Submitted: May 17, 2012 Decided: June 12, 2012
Before MOTZ, KING, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. James Payne, Shallotte, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Dexter Broadnax of conspiracy
to commit robbery obstructing interstate commerce, in violation
of 18 U.S.C. § 1951 (2006); six counts of robbery obstructing
interstate commerce and aiding and abetting, in violation of 18
U.S.C. §§ 2, 1951 (2006); four counts of using a firearm during
the commission of a crime of violence and aiding and abetting,
in violation of 18 U.S.C. §§ 2, 924(c) (2006); and possession of
a firearm after sustaining a conviction for a crime punishable
by a term of imprisonment exceeding one year, in violation of 18
U.S.C. § 922(g)(1) (2006). The district court sentenced
Broadnax to a total of 1,308 months of imprisonment and he now
appeals. Finding no error, we affirm.
On appeal, Broadnax first argues that his trial
counsel rendered ineffective assistance for failing to move to
suppress statements he made to a federal agent. To prove a
claim of ineffective assistance of counsel, a defendant must
show (1) “that counsel’s performance was deficient,” and
(2) “that the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). With
respect to the first prong, “the defendant must show that
counsel’s representation fell below an objective standard of
reasonableness.”
Id. at 688. In addition, “[j]udicial scrutiny
of counsel’s performance must be highly deferential.”
Id. at
2
689. Under the second prong of the test, “[t]he defendant must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.”
Id. at 694.
Moreover, we may address a claim of ineffective
assistance on direct appeal only if the lawyer’s ineffectiveness
conclusively appears on the record. United States v.
Baldovinos,
434 F.3d 233, 239 (4th Cir. 2006). We have reviewed
the record and conclude that ineffective assistance of counsel
does not conclusively appear on the record. We therefore
decline to consider this argument on direct appeal.
Broadnax next argues that the evidence was
insufficient to support the conviction for possession of a
firearm by a felon. We review a district court’s decision to
deny a Fed. R. Crim. P. 29 motion for a judgment of acquittal de
novo. United States v. Smith, 451 F.3d 209, 216 (4th Cir.
2006). A defendant challenging the sufficiency of the evidence
faces a heavy burden. United States v. Beidler,
110 F.3d 1064,
1067 (4th Cir. 1997). “In reviewing the sufficiency of the
evidence supporting a criminal conviction, our role is limited
to considering whether there is substantial evidence, taking the
view most favorable to the Government, to support it.”
Id.
(internal quotation marks and citation omitted). Substantial
evidence is “evidence that a reasonable finder of fact could
3
accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.” Smith, 451 F.3d
at 216 (internal quotation marks and citation omitted).
“Reversal for insufficient evidence is reserved for the rare
case where the prosecution’s failure is clear.”
Beidler, 110
F.3d at 1067 (internal quotation marks and citation omitted).
In addition, in order to prove possession under 18
U.S.C. § 922(g), the government need not prove “actual or
exclusive possession, [rather] constructive or joint possession
is sufficient.” United States v. Gallimore, 247 F.3d 134,
136-37 (4th Cir. 2001) (citation omitted). Constructive
possession can be demonstrated by proof “that the defendant
exercised, or had the power to exercise dominion and control
over the item.”
Id. at 137 (internal quotation marks and
citation omitted). Having thoroughly reviewed the record, we
conclude that there was substantial evidence to support the
jury’s verdict of guilt of this offense.
Finally, Broadnax argues that the district court erred
in applying enhancements under the advisory Guidelines for
obstruction of justice and use of a firearm during the final two
robberies. In reviewing the district court’s calculations under
the Guidelines, we “review the district court’s legal
conclusions de novo and its factual findings for clear error.”
United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010)
4
(internal quotation marks, alteration, and citation omitted).
We will “find clear error only if, on the entire evidence, we
are left with the definite and firm conviction that a mistake
has been committed.” Id. at 631 (internal quotation marks,
alterations, and citation omitted).
The Guidelines provide for a two-level enhancement if
a defendant willfully obstructs or attempts to obstruct the
administration of justice with respect to the prosecution of the
offense of conviction, related to the offense of conviction and
any relevant conduct. U.S. Sentencing Guidelines Manual
(“USSG”) § 3C1.1 (2011). Obstruction of justice as warrants an
enhancement under this section includes “threatening,
intimidating, or otherwise unlawfully influencing a
co-defendant.” USSG § 3C1.1 cmt. n.4(A). Also under the
Guidelines, a court must apply a six-level enhancement in the
offense level for robbery if the defendant otherwise used a
firearm in commission of the offense. USSG § 2B3.1(b)(2)(B).
The government must prove application of Guidelines
enhancements by a preponderance of the evidence. See United
States v. Kiulin, 360 F.3d 456, 460 (4th Cir. 2004). In
addition, in determining whether to apply the enhancements, a
court may consider acquitted conduct, as long as the conduct is
proven by a preponderance of the evidence. See United States v.
Watts,
519 U.S. 148, 150-57 (1997). Our review of the record
5
leads us to conclude that the district court did not err in
applying these enhancements under the advisory Guidelines.
Accordingly, we affirm the judgment of the district
court and deny Broadnax’s motion to file a pro se supplemental
brief. 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
6
