UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4484
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TARVIS LEVITICUS DUNHAM,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:06-cr-00456-FDW-1)
Submitted: April 10, 2009 Decided: April 22, 2009
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David G. Belser, BELSER & PARKE, Asheville, North Carolina, for
Appellant. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina; Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a guilty plea, Tarvis Leviticus Dunham was
convicted of using a firearm in relation to a crime of violence,
assault with a deadly weapon during a bank robbery, and larceny
of a motor vehicle through force or violence, in violation of 18
U.S.C. §§ 924(c)(1), 2113(d), and 2119 (2006). The district
court sentenced Dunham to a total of 300 months’ imprisonment.
Dunham appeals his sentence, contending that the prosecutor in
his case committed misconduct by introducing a statement by the
spouse of the carjacking victim as a victim statement during the
sentencing hearing. Dunham argues the spouse was not a “victim”
under 18 U.S.C. § 3771(e) (2006), the prosecutor violated his
due process rights by failing to provide advance notice of his
intent to introduce the statement, and the prosecutor’s argument
at sentencing improperly referenced the statement. Finding no
error, we affirm.
A claim of prosecutorial misconduct is reviewed “to
determine whether the conduct so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.” United States v. Scheetz, 293 F.3d 175, 185 (4th Cir.
2002) (internal quotation marks and citation omitted). To
prevail under this standard, Dunham must show that “the
prosecutor’s remarks or conduct were improper and, . . . that
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such remarks or conduct prejudicially affected his substantial
rights so as to deprive him of a fair trial.” Id.
The Crime Victims’ Rights Act (CVRA) defines a “crime
victim” as “a person directly and proximately harmed as a result
of the commission of a Federal offense.” 18 U.S.C. § 3771(e)
(2006). The current law does not definitively answer the
question of whether the spouse was a victim of Dunham’s crimes,
as defined by the CVRA. See In re Antrobus, 519 F.3d 1123, 1125
(10th Cir. 2008) (noting that “[t]his area of the law . . . is
not well-developed and is evolving”). The act does not limit
the information a district court may hear at sentencing.
Therefore, the prosecutor did not act in derogation of
established authority by offering and then referencing the
spouse’s victim impact statement. *
Dunham cites no authority for his additional
contention that the prosecutor violated his right to due process
by failing to give him advance notice of his intent to introduce
the spouse’s statement. Again, the prosecutor’s conduct was
neither improper nor constituted prosecutorial misconduct.
*
In the alternative, even if it is assumed the spouse was
not a victim of Dunham’s crime, as defined by the CVRA, we would
nevertheless conclude that the impact of his statement did not
so infect the sentencing proceeding with prejudicial error as to
warrant relief.
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Accordingly, we affirm the judgment of the district
court. 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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