UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4344
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HARRY M. WILLIAMS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:05-cr-00172-HEH)
Submitted: April 25, 2007 Decided: July 9, 2007
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Acting Federal Public Defender, Charles D.
Lewis, Assistant Federal Public Defender, Sapna Mirchandani,
Research and Writing Attorney, Richmond, Virginia, for Appellant.
Matthew Childs Ackley, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harry M. Williams, Jr., appeals his conviction and 120-
month sentence imposed following a jury trial on a charge of
possession of a firearm by a person previously convicted of a
felony offense. 18 U.S.C. § 922(g)(1) (2000). Williams’ attorney
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there were no meritorious issues for appeal,
but asserting that the district court erred by: (1) denying
Williams’ claim that the government exercised its peremptory
strikes to exclude black jurors from the venire, in violation of
Batson v. Kentucky, 476 U.S. 79 (1986); (2) denying Williams’
motions for judgment of acquittal; and (3) granting the
government’s motion for an upward departure from the sentencing
guideline range. Williams was informed of his right to file a pro
se supplemental brief, but has not done so. Our review of the
record discloses no reversible error; accordingly, we affirm
Williams’ conviction and sentence.
Great deference is given to a district court’s
determination of whether a peremptory challenge was based on a
discriminatory motive, and the court’s ruling is reviewed for clear
error. Jones v. Plaster, 57 F.3d 417, 421 (4th Cir. 1995).
Generally, a Batson challenge consists of three steps: (1) the
defendant makes out a prima facie case of discrimination; (2) the
government offers a race-neutral explanation; and (3) the trial
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court decides whether the defendant has carried his burden and
proved purposeful discrimination. Purkett v. Elem, 514 U.S. 765,
767-68 (1995). “Once a prosecutor has offered a race-neutral
explanation for the peremptory challenges and the trial court has
ruled on the ultimate question of intentional discrimination, the
preliminary issue of whether the defendant had made a prima facie
showing becomes moot.” Hernandez v. New York, 500 U.S. 352, 359
(1991) (plurality opinion). “At this step of the inquiry, the
issue is the facial validity of the prosecutor’s explanation.
Unless a discriminatory intent is inherent in the prosecutor’s
explanation, the reason offered will be deemed race neutral.” Id.
at 360.
The government explained that it struck the first two
jurors because they appeared uninterested and looked like they were
falling asleep. The government explained its third strike, stating
that the prospective juror appeared to be leering, smirking, and
not taking the proceedings seriously. The district court found
these to be racially-neutral bases for striking the jurors.
The fourth potential juror was stricken because the
government expressed a dislike for working with jurors who
previously served on Richmond juries, because “[a] lot of times
they have had bad experiences . . . . If I see a Richmond juror,
I just usually want to strike them. . . . Richmond jurors tend to
have not great experiences, and I don’t like dealing with Richmond
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jurors.” The district court found this to be a racially neutral
explanation and denied Williams’ objection.
We review only for clear error the trial court’s finding
that the defendant failed to carry his burden to prove purposeful
discrimination. Jones, 57 F.3d at 421. Although Williams asserted
that the government’s stated reasons for excluding those jurors
were pretextual, based on our review of the record in this case,
the district court did not clearly err in finding otherwise. See
Jones, 57 F.3d at 421. Accordingly, we affirm the district court’s
denial of Williams’ Batson challenge.
Williams next contends that the district court erred in
denying his motions for judgment of acquittal. This court reviews
the district court’s decision to deny a Federal Rule of Criminal
Procedure 29 motion de novo. United States v. Smith, 451 F.3d 209,
216 (4th Cir.), cert. denied, 127 S. Ct. 197 (2006). Where, as
here, the motion was based on a claim of insufficient evidence,
“[t]he verdict of a jury 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);
Smith, 451 F.3d at 216.
In order to convict Williams under § 922(g)(1), the
government had to establish that (1) he previously had been
convicted of a felony; (2) he knowingly possessed the firearm; and
(3) the possession was in or affecting commerce, because the
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firearm had traveled in interstate or foreign commerce at some
time. United States v. Moye, 454 F.3d 390, 395 (4th Cir.), cert.
denied, 127 S. Ct. 452 (2006). Because Williams stipulated as to
the first and third elements, the only element in dispute is
whether Williams knowingly possessed the firearm.
The government presented evidence that a security guard
saw Williams holding a gun and shooting into the air. The security
guard directed the man to holster his weapon, which the guard
observed him do. The man then got into a car with two other men
and drove off, only to circle the block and return. The security
guard approached the vehicle and ordered the three men to exit the
vehicle, which they did. The guard recognized one of the occupants
as the man whom he had seen with the gun. The firearm and holster
were recovered from inside the vehicle. The firearm had gun powder
residue on it, and it smelled like it had been fired. Also, the
rounds loaded in the weapon alternated silver and brass. The shell
casings recovered from the area where the shooting occurred also
were both silver and brass. The security guard positively
identified Williams during the trial as the man he saw fire the
gun.
Williams asserts that the government failed to present
the testimony of any civilian eyewitness, despite the fact that
there were a number of people around at the time of the incident.
He also makes much of the fact that the security guard and the
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Richmond police officer who responded to the scene both handled the
gun and the magazine, thus destroying fingerprint evidence, and
that after finding an unidentified latent print on the weapon, the
government did not request a palm print from Williams for
comparison. He contends that gunshot residue tests should have
been performed to prove whether Williams had, in fact, fired the
weapon. Also, Williams asserts that the DNA evidence was
inconclusive because someone could have touched the holster after
he did and his DNA could still be on the holster; or he could have
brushed against it without knowing and deposited his DNA on it yet
not have been the one to have fired the gun. Determinations of
credibility and the weight to be given to evidence is within the
province of the jury. United States v. Wilson, 118 F.3d 228, 234
(4th Cir. 1997); United States v. Murphy, 35 F.3d 143, 148 (4th
Cir. 1994).
Viewing this evidence in the light most favorable to the
government, see Glasser, 315 U.S. at 80, we conclude that there was
sufficient evidence to support a finding that Williams possessed
the firearm. Coupled with his stipulations to his prior felony
conviction and the interstate commerce element of the offense,
there was sufficient evidence to support a conviction for
possession of the firearm by a convicted felon. Id. Thus, the
district court did not err in denying Williams’ motion for judgment
of acquittal.
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The final issue asserted by Williams is that the district
court erred in granting the government’s motion for an upward
departure at sentencing based on his criminal history. When
reviewing a sentence outside the advisory guideline range—whether
as a product of a departure or a variance—this court considers both
whether the district court acted reasonably with respect to its
decision to impose such a sentence and with respect to the extent
of the divergence from the guideline range. United States v.
Davenport, 445 F.3d 366, 370-71 (4th Cir. 2006) (citing United
States v. Moreland, 437 F.3d 424, 433-34 (4th Cir.), cert. denied,
126 S. Ct. 2054 (2006) and United States v. Hairston, 96 F.3d 102,
106 (4th Cir. 1996) (regarding departure sentence)). This court
has held:
[T]o sentence a defendant, district courts must (1)
properly calculate the sentence range recommended by the
Sentencing Guidelines; (2) determine whether a sentence
within that range and within statutory limits serves the
factors set forth in § 3553(a) and, if not, select a
sentence that does serve those factors; (3) implement
mandatory statutory limitations; and (4) articulate the
reasons for selecting the particular sentence, especially
explaining why a sentence outside of the Sentencing
Guideline range better serves the relevant sentencing
purposes set forth in § 3553(a).
United States v. Green, 436 F.3d 449, 455-56 (4th Cir.) (footnote
omitted), cert. denied, 126 S. Ct. 2309 (2006). A sentence not
imposed within the properly calculated range must be based on the
factors listed under § 3553(a). Id. at 456.
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The probation officer computed Williams’ guideline range
as 84 to 108 months, based on an offense level of 22 and criminal
history category VI. Addressing the government’s motion for an
upward departure, the court applied the five-step procedure
outlined in United States v. Bonetti, 277 F.3d 441 (4th Cir. 2002).
In doing so, the court reviewed the facts and circumstances of
Williams’ case, including his extensive and continuous criminal
record, which began at age 12. The court noted that Williams had
twenty misdemeanor offenses as an adult, five felony convictions,
two violations of probation, and sixteen offenses—mostly juvenile
offenses—for which no criminal history points were assessed.
Noting that an under-represented criminal history and a substantial
likelihood that the defendant will commit other crimes are
encouraged bases for departure from the guidelines, the court found
that a two-level upward departure was appropriate. The resulting
guideline range was 100 to 125 months. After considering the
factors set forth in 18 U.S.C. § 3553(a) (West 2000 & Supp. 2006),
the court found this to be a reasonable sentencing range and
ultimately imposed a sentence of 120 months—the statutory maximum.
Williams contends that the departure was unreasonable
because it was based on his juvenile record, because most of his
offenses were for non-violent offense, and because many of his
offenses were driving-related offenses. He also asserted that he
had never previously received a sentence of longer than seventeen
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months. He argued that an 84-month sentence “would impose a
sufficiently harsh punishment, serve as an effective deterrent to
any future crime, and protect the community as required under
§ 3553(a).”
We find that the district court appropriately considered
these facts and arguments and did not err in granting the
government’s motion for an upward departure. We also find that the
length of the sentence was reasonable. As the district court
concluded, a 120-month sentence was reasonable based on the
§ 3553(a) factors, Williams’ criminal record, his “inability to
adjust to rehabilitative programs,” his prior parole and probation
violations, and the nature of the offense. See Moreland, 437 F.3d
at 432. The court clearly considered the reasons for departure
under the Guidelines and the factors under § 3553(a), and the court
articulated specific reasons why a sentence greater than the
guidelines range was warranted. Because the district court
articulated supportable reasons for sentencing above the properly-
calculated sentencing guidelines range and considered the factors
under § 3553(a), we conclude that the court acted reasonably in
departing upward by two levels. See United States v. Hernandez-
Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). Accordingly, we
affirm Williams’ sentence.
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
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affirm Williams’ conviction and sentence. This court requires that
counsel inform his 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 thereof 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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