United States v. Baker

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4941

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

MARIO NATHANIEL BAKER,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:08-cr-00088-REP-1)

Submitted: July 15, 2009 Decided: August 7, 2009

Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

W. Barry Montgomery, KALBAUGH, PFUND & MESSERSMITH, Richmond,
Virginia, for Appellant. Peter S. Duffey, Assistant United
States Attorney, Michael Jagels, Special Assistant United States
Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Mario Nathaniel Baker appeals his jury conviction and

185-month sentence for two counts of possession of a firearm by

a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006);

one count of possession with intent to distribute heroin, in

violation of 21 U.S.C. § 841 (2006); and one count of possession

of a firearm in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c) (2006). Baker asserts that the

district court erred when it: (i) denied his motion to sever a

2007 firearm possession count from his trial on the remaining

counts; (ii) denied his Fed. R. Crim. P. 29 motion for judgment

of acquittal on all counts; and (iii) sentenced him to

185 months in prison because the district court allegedly

calculated his Guidelines range incorrectly and because his

within-Guidelines sentence allegedly fails to serve the 18

U.S.C. § 3553(a) (2006) factors. Finding no error, we affirm.

The joinder of multiple offenses is proper under Fed.

R. Crim. P. 8(a) if the offenses are: (1) of the same or similar

character; (2) based on the same act or transaction; or (3) part

of a common scheme or plan. See United States v. Foutz,

540 F.2d 733, 736 (4th Cir. 1976). Even if offenses are

properly joined, however, severance is appropriate if the

defendant establishes that he would be prejudiced by the

joinder. See Fed. R. Crim. P. 14(a). A defendant moving to

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sever multiple counts in an indictment has the burden of

demonstrating a “strong showing of prejudice,” however, and “it

is not enough to simply show that joinder makes for a more

difficult defense. The fact that a separate trial might offer a

better chance of acquittal is not a sufficient ground for

severance.” United States v. Goldman, 750 F.2d 1221, 1225 (4th

Cir. 1984) (internal citations omitted). A district court’s

decision to deny a motion to sever should only be overturned

upon a “showing of clear prejudice or abuse of discretion.”

United States v. Acker, 52 F.3d 509, 514 (4th Cir. 1995)

(citation omitted).

Baker has failed to meet the demanding burden of

demonstrating a “strong showing” that he was prejudiced by the

joinder of his 2007 firearm possession count. This is

especially true since the district court clearly instructed the

jury to keep the evidence pertaining to each offense separate

when considering Baker’s guilt. See United States v. Cardwell,

433 F.3d 378, 388 (4th Cir. 2005) (finding no prejudice based on

joinder of separate charges where the district court instructed

the jury that there were two distinct offenses and the evidence

supporting one offense should be considered separate from

evidence supporting the other offense); United States v. Silva,

745 F.2d 840, 844 (4th Cir. 1984) (recognizing that a limiting

instruction will avoid the prejudicial effect that the denial of

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a motion for severance may have). We conclude that the district

court did not abuse its discretion in denying Baker’s motion to

sever.

We also find that the district court did not err in

denying Baker’s Rule 29 motion for judgment of acquittal on all

counts. This court reviews the denial of a Rule 29 motion de

novo. See United States v. Alerre, 430 F.3d 681, 693 (4th Cir.

2005). When a Rule 29 motion was based on a claim of

insufficient evidence, the jury’s verdict must be sustained “if

there is substantial evidence, taking the view most favorable to

the Government, to support it.” United States v. Abu Ali,

528 F.3d 210, 244 (4th Cir. 2008) (internal quotation marks and

citations omitted), cert. denied, 129 S. Ct. 1312 (2009). This

court “ha[s] defined ‘substantial evidence’ as evidence that a

reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.” Alerre, 430 F.3d at 693 (internal

quotation marks and citations omitted).

This court “must consider circumstantial as well as

direct evidence, and allow the government the benefit of all

reasonable inferences from the facts proven to those sought to

be established.” United States v. Tresvant, 677 F.2d 1018, 1021

(4th Cir. 1982) (citations omitted). This court may not weigh

the evidence or review the credibility of the witnesses. See

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United States v. Allen, 491 F.3d 178, 185 (4th Cir. 2007). If

the evidence “supports different, reasonable interpretations,

the jury decides which interpretation to believe.” United

States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994) (citations

omitted). A defendant challenging the sufficiency of the

evidence faces a heavy burden. See United States v. Beidler,

110 F.3d 1064, 1067 (4th Cir. 1997). We have reviewed the

record in this case and conclude that the Government produced

sufficient evidence for a reasonable jury to conclude that Baker

committed the crimes with which he was charged. Accordingly, we

find that the district court did not err in denying Baker’s Rule

29 motion for judgment of acquittal.

Last, Baker argues that the district court incorrectly

calculated his Guidelines range when it included a 1988 felony

conviction in his criminal history calculation because that

conviction occurred more than fifteen years before the offenses

in the indictment and a prison term exceeding one year and one

month was not imposed. Baker also summarily asserts that,

although his sentence was a within-Guidelines sentence, it was

greater than necessary to achieve the § 3553(a) objectives. We

reject both assertions.

After United States v. Booker, 543 U.S. 220 (2005),

this court reviews a sentence for reasonableness, and “whether

inside, just outside, or significantly outside the Guidelines

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range,” this court applies a “deferential abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 128 S. Ct. 586,

591 (2007). This court first must “ensure that the district

court committed no significant procedural error.” 128 S. Ct. at

597. Only if the sentence is procedurally reasonable can this

court evaluate the substantive reasonableness of the sentence,

again using the abuse of discretion standard of review. Id.;

United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).

In determining whether the district court committed

any significant procedural error, this court looks to any

failure in the calculation (or the improper calculation) of the

Guidelines range, the treatment of the Guidelines as mandatory,

the failure to consider the § 3553(a) factors, the selection of

a sentence using clearly erroneous facts, and any failure to

adequately explain the chosen sentence, including any deviation

from the advisory Guidelines range. Gall, 128 S. Ct. at 597.

We may apply a presumption of reasonableness on appeal to a

within-Guidelines sentence. Rita v. United States, 551 U.S.

338, 127 S. Ct. 2456, 2462 (2007); see also Nelson v. United

States, 129 S. Ct. 890, 892 (2009) (emphasizing that the

presumption of reasonableness accorded a within-Guidelines

sentence is an appellate court presumption rather than a

presumption enjoyed by a sentencing court). Even if this court

would have imposed a different sentence, this fact alone will

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not justify vacatur of the sentence. United States v. Evans,

526 F.3d 155, 162 (4th Cir. 2008).

Although the conviction about which Baker complains

occurred more than fifteen years prior to his current offenses,

because he was sentenced in 1997 for probation revocation, the

conviction is deemed to have occurred within fifteen years of

his 2007 and 2008 offenses. U.S. Sentencing Guidelines Manual

(“USSG”) § 4A1.2(k) (2007). Moreover, although Baker’s original

prison term for the 1988 conviction did not exceed one year and

one month, Baker received a two-year sentence upon revocation of

his probation in 1997, thereby bringing the prison term within

the purview of USSG § 4A1.2(e)(1) (2007). Accordingly, we find

that Baker’s 1988 conviction was properly counted by the

district court in determining Baker’s criminal history category.

We also find that the district court’s imposition of a

185-month sentence is reasonable and should not be disturbed.

At sentencing, the district court considered and rejected

Baker’s objections to the presentence investigation report.

Moreover, Baker does not deny that his sentence is within the

Guidelines range calculated by the district court and within

statutory mandates, or that the district court considered the

§ 3553(a) factors. Rather, Baker only summarily asserts that a

lesser sentence would have been more appropriate because his

criminal history consisted only of convictions for drug crimes,

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rather than for crimes of violence or crimes involving firearms.

Such a summary assertion is insufficient to defeat the

presumption of reasonableness that this court accords a district

court’s within-Guidelines sentence on appeal. Rita, 127 S. Ct.

at 2462.

Based on the foregoing, we affirm the district court’s

judgment. 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