Unpublished opinions are not binding precedent in this circuit.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.
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,
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.
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.
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.
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,
Bullock challenges the procedural and substantive reasonableness of his sentence. We review Bullock's sentence for reasonableness "under a deferential abuse-of-discretion standard."
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)."
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).
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.
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."
We review a procedural error at sentencing for harmlessness.
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.
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.