UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4941
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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