UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4561
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLIE B. TAYLOR,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:07-cr-00105-JPB-DJJ-1)
Submitted: March 6, 2009 Decided: April 30, 2009
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lary D. Garrett, GARRETT & GARRETT, Moorefield, West Virginia,
for Appellant. Sharon L. Potter, United States Attorney, Paul
T. Camilletti, Assistant United States Attorney, Martinsburg,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charlie B. Taylor was convicted after a jury trial of
assault with a dangerous weapon with intent to do bodily harm,
without just cause or excuse, in violation of 18 U.S.C. §§ 7,
113(a)(3) (2006). The district court sentenced Taylor to
thirty-three months of imprisonment. Taylor appeals, contending
that: (1) the district court erred in refusing to grant his
motion for a judgment of acquittal pursuant to Fed. R. Crim. P.
29; (2) the district court erred in refusing to grant a new
trial by allowing the Government to strike an African-American
juror and in ruling that the Government could cross-examine his
witnesses using his criminal record when the Government had not
disclosed his criminal record until the day before trial; and
(3) the district court erred by refusing to grant downward
departures under U.S. Sentencing Guidelines Manual §§ 5K2.10,
5K2.13, 5K2.20 (2007). Finding no error, we affirm.
Taylor first challenges the sufficiency of the
evidence to convict him. This court reviews a district court’s
decision to deny a Rule 29 motion for a judgment of acquittal de
novo. United States v. Smith, 451 F.3d 209, 216-17 (4th Cir.
2006) (providing standard). A defendant challenging the
sufficiency of the evidence faces a heavy burden. United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). The
verdict of a jury must be sustained “if, viewing the evidence in
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the light most favorable to the prosecution, the verdict is
supported by ‘substantial evidence.’” Smith, 451 F.3d at 216
(citations omitted). Furthermore, “[t]he jury, not the
reviewing court, weighs the credibility of the evidence and
resolves any conflicts in the evidence presented.” Beidler, 110
F.3d at 1067 (internal quotation marks and citation omitted).
“Reversal for insufficient evidence is reserved for the rare
case where the prosecution’s failure is clear.” Id. (internal
quotation marks and citation omitted).
Taylor’s conviction stemmed from an incident that
occurred between him and another resident of the Veterans
Administration Medical Facility (“VA”) in Berkeley County, West
Virginia. Taylor and the victim exchanged words after the
victim’s wheelchair bumped into Taylor’s walker in the elevator.
Upon exiting the elevator, the victim remained in front of the
doors preventing Taylor from exiting. Conflicting evidence was
presented at trial regarding who struck the first blow. An
employee of the VA called a security officer to the scene, who
arrived and told the men to break it up. The victim backed off
upon seeing the officer. Taylor, however, had pulled out a
pocket knife and struck the victim as the officer arrived,
causing three lacerations across the victim’s chest, neck, and
face.
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At trial, Taylor’s counsel argued to the jury that
Taylor acted in self-defense, and the district court instructed
the jury on the elements of self-defense. On appeal, Taylor
contends that the evidence clearly demonstrated that he was
exercising his right to defend himself. We have reviewed the
record and find that there was substantial evidence to support
the jury’s verdict. See Beidler, 110 F.3d at 1067 (“[T]he jury,
not the reviewing court, weighs the credibility of the evidence
and resolves any conflict in the evidence presented.”) (internal
quotation marks and citation omitted).
Taylor next contends that the district court erred in
denying his motion for a new trial filed pursuant to Fed. R.
Crim. P. 33. We review a district court’s denial of a Rule 33
motion for a new trial for abuse of discretion. Smith, 451 F.3d
at 216-17. With regard to Taylor’s Batson * claim, this court
reviews a finding by a district court “concerning whether a
peremptory challenge was exercised for a racially discriminatory
reason . . . [with] great deference,” considering only whether
the district court committed clear error. United States v.
Farrior, 535 F.3d 210, 220 (4th Cir. 2008) (citations omitted),
cert. denied, 129 S. Ct. 743 (2008).
*
Batson v. Kentucky, 476 U.S. 79 (1986).
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When a defendant has made a Batson challenge, he must
come forward with prima facie evidence of purposeful
discrimination. Id. “[T]he burden [then] shifts to the
Government to articulate a race-neutral explanation for the
challenge.” Id. at 221. If the Government provides such an
explanation, “the burden shifts back to the defendant to prove
that the explanation given is a pretext for discrimination.”
Id.
In this case, the prosecution offered three
race-neutral reasons for striking the juror: she previously had
served on a criminal jury that reached a verdict of not guilty,
she had a sibling who had been convicted of a drug crime in that
same court, and she had testified on a prior occasion in a
murder trial. Because Taylor has not demonstrated that these
reasons were merely a pretext for purposeful discrimination, we
find no error in the district court’s denial of his Batson
challenge.
Taylor also asserts that the district court erred in
denying his Rule 33 motion by permitting the Government to
introduce his extensive criminal record when the Government did
not comply with the court’s discovery order. The Government did
not receive Taylor’s forty-page criminal record until the day
before trial, at which time it disclosed the same to the
defense. The district court ruled that the Government could use
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the criminal record to impeach any character witnesses Taylor
might call on his behalf.
This court “review[s] a district court’s decision to
sanction a party for discovery violations for an abuse of
discretion.” United States v. Hastings, 126 F.3d 310, 316 (4th
Cir. 1997) (citation omitted).
In determining a suitable and effective sanction, a
court must weigh the reasons for the [G]overnment’s
delay and whether it acted intentionally or in bad
faith; the degree of prejudice, if any, suffered by
the defendant; and whether any less severe sanction
will remedy the prejudice and the wrongdoing of the
[G]overnment.
Id. at 317. Our review of the record convinces us that the
district court did not abuse its discretion in denying Taylor’s
Rule 33 motion on this ground.
Finally, Taylor contends that the district court
should have departed pursuant to several policy statements in
the Guidelines. Appellate courts review a sentence imposed by a
district court for reasonableness, applying an abuse of
discretion standard. Gall v. United States, 128 S. Ct. 586, 597
(2007); United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007). If there are no procedural errors in the sentence, the
appellate court then considers the substantive reasonableness of
the sentence. Gall, 128 S. Ct. at 597. “Substantive
reasonableness review entails taking into account the ‘totality
of the circumstances, including the extent of any variance from
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the Guidelines range.’” Pauley, 511 F.3d at 473 (quoting Gall,
128 S. Ct. at 597). If a sentence is within the Guidelines
range, an appellate court may presume that the sentence is
reasonable. Pauley, 511 F.3d at 473.
Specifically, Taylor contends that the district court
should have sentenced him below the Guidelines range because the
victim’s conduct significantly contributed to provoking his
behavior, he suffers from a reduced mental capacity due to his
age, and the crime was not planned, and not long in duration,
and represents a departure from his normal behavior. In
addition, Taylor contends that the district court should have
varied from the Guidelines range based on his age and physical
condition.
We find no procedural error in the sentence.
Moreover, the sentence was within the Guidelines range; thus,
this court applies a presumption of reasonableness. Taylor has
failed to present evidence to rebut this presumption. We
therefore find the district court did not abuse its discretion
in imposing Taylor’s sentence.
Accordingly, we affirm Taylor’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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