UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4998
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID WILLIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:07-cr-00277-RJC-DCK-1)
Submitted: March 26, 2010 Decided: April 15, 2010
Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina, for Appellant. Edward R. Ryan, Acting
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Unpublished opinions are not binding precedent in this circuit.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:
David Willis was convicted by a jury of soliciting
murder using a facility of interstate commerce and promising
payment, in violation of 18 U.S.C. § 373; and using a facility
of interstate commerce with the intent that murder for hire be
committed, in violation of 18 U.S.C. § 1958. The district court
sentenced Willis to 210 months’ imprisonment, a sentence at the
bottom of the Sentencing Guidelines range. Willis appeals,
raising three issues: (1) the district court committed plain
error by failing to instruct the jury on entrapment; (2) the
district court erred by not granting Willis a new trial based on
allegedly false testimony from a Government witness; and (3) the
district court imposed a procedurally unreasonable sentence. We
affirm.
This case revolved around Willis’ plot to kill his ex-
wife. At trial, the Government played Willis’ incriminating
recorded statements made to a confidential informant. The most
important evidence at trial came from Willis’ own statements.
The key conversation between Willis and the informant Parker
took place inside Willis’ truck. During the October 2007
conversation, Willis indicated that he planned to kill his ex-
wife to avoid sharing his pension from the United States Postal
Service. At one point, Willis stated:
2
I already decided it’s either her or me, and I’ll pop
a cap in my own head before I live like this. I can’t
stand 30 more years at the post office. I need to
retire and enjoy life while I can. And I’ve thought
about this and cussed about this and dreamed about
this and it’s sad, but you know me. I’m as cold
hearted as you are. (Supplemental Joint Appendix
(“S.J.A.”) at 13).
During the conversation, Willis said that he would pay
the informant to arrange for a hit man. Willis also indicated
that he would kill her himself, if the hit man was not
available. “I already know how I’d do it,” Willis said,
describing a plan to spike a drink with antifreeze. (S.J.A. at
15). Willis said he learned about the method from Court TV and
would put the antifreeze in a drink left by a woman on his ex-
wife’s mail route. “Three days later, it doesn’t matter where
I’m at. She’s gonna have stomach pains and get a little funny
and they take her to the hospital. She croaks and it hits you,
boom, kidney failure.” (S.J.A. at 16).
After summarizing his poisoning plan, Willis
nevertheless agreed that having someone else murder his ex-wife
“would be the best way.” (S.J.A. at 17). Willis asked if he
could trust the hit man “to get the job done,” but declined to
meet him, stating “I don’t want anything to do with it if I can
help it. If not, I’m gonna do it myself. She’s gonna drink
some antifreeze. See I’ve got old antifreeze that’s old . . . I
tasted it myself; it is as sweet as cherry juice.” (Id.).
3
Entrapment occurs when (1) the government induces a
person to commit a crime and (2) the person induced had no
predisposition to engage in the criminal act. Mathews v. United
States, 485 U.S. 58, 63 (1988). In order to establish
inducement, a defendant must show that the government acted in
an excessive manner that would prompt a reasonably firm person
to commit a crime. See United States v. DeVore, 423 F.2d 1069,
1072 (4th Cir. 1970). If the defendant establishes a prima
facie case of inducement, the government then must show that the
defendant’s decision to commit the crime was the product of his
own disposition that did not originate from government
persuasion. See United States v. Osborne, 935 F.2d 32, 38 (4th
Cir. 1991). A defendant is entitled to an entrapment defense
whenever there is sufficient evidence from which a reasonable
jury could find entrapment. Mathews, 485 U.S. at 62.
Because Willis did not request an entrapment
instruction, this Court’s review is for plain error. United
States v. Olano, 507 U.S. 725, 732 (1993); United States v.
Hughes, 401 F.3d 540, 547 (4th Cir. 2005). Under the plain
error standard, Willis must show: (1) there was error; (2) the
error was plain; and (3) the error affected his substantial
rights. Olano, 507 U.S. at 732-34. Even when these conditions
are satisfied, the Court may exercise its discretion to notice
the error only if the error “seriously affects the fairness,
4
integrity or public reputation of judicial proceedings.” Id. at
736 (internal quotation marks, alteration and citation omitted).
We find the trial court did not err, plain or
otherwise, in failing to give an entrapment instruction because
the evidence did not warrant such an instruction. Willis
initiated the discussion about killing his ex-wife, devised a
plan, and suggested he would kill his ex-wife, regardless of the
informant’s involvement. Thus, Willis’ argument that the
informant initiated and encouraged the plot does not counter the
evidence of Willis’ overt predisposition to have his ex-wife
murdered, as demonstrated by Willis’ statements reflecting his
planning and preparation.
We review a district court’s denial of a Rule 33
motion for a new trial for abuse of discretion. United
States v. Smith, 451 F.3d 209, 216-17 (4th Cir. 2006). Under
Napue v. Illinois, 360 U.S. 264 (1959), a defendant is denied
due process if the prosecutor knowingly offers or fails to
correct false testimony. A Napue claim requires a showing of
the falsity and materiality of testimony and the prosecutor’s
knowledge of its falsity. Perjury offered under these
circumstances is material if “there is any reasonable likelihood
that the false testimony could have affected the judgment of the
jury.” United States v. Agurs, 427 U.S. 97, 103 (1976). We
find no abuse of discretion as one of two alleged perjured
5
statements was not clearly inconsistent and the other alleged
perjured statement was not material.
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
range,” this Court applies a “deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This
Court first must “ensure that the district court committed no
significant procedural error.” Id. at 51. Only if the sentence
is procedurally reasonable, can this Court evaluate the
substantive reasonableness of the sentence, again using the
abuse-of-discretion standard. 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 § 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, 552 U.S. at 51. This
Court applies a presumption of reasonableness on appeal to a
properly calculated, within-Guidelines sentence. Rita v. United
States, 551 U.S. 338, 352-53 (2007); see United States v. Allen,
6
491 F.3d 178, 193 (4th Cir. 2007) (“A sentence within the proper
Sentencing Guidelines range is presumptively reasonable.”).
Even if this Court would have imposed a different sentence, this
fact alone will not justify vacatur of the sentence. United
States v. Evans, 526 F.3d 155, 162 (4th Cir. 2008).
Willis claims the district court imposed a
procedurally unreasonable sentence because it incorrectly found
that Willis was not remorseful for his conduct and that Willis
had not accepted responsibility for his conduct. Willis claims
the district court’s statements were tantamount to punishing him
for exercising his right to trial.
We find the district court did not impose a
procedurally unreasonable sentence. After observing Willis’
statement at sentencing, the court made a finding that Willis
was not remorseful and, instead, blamed his situation on the
informant. If anything, Willis was sorry for the situation that
he got himself into, but he did not express any remorse over the
finding that he intended to kill his wife. We also note the
district court sentenced Willis at the bottom of the properly
calculated Guidelines range. Thus, the sentence imposed is
presumptively reasonable. Moreover, while Willis offered a
number of mitigating facts in support of a lower sentence, the
district court properly weighed these facts when considering the
18 U.S.C. § 3553(a) factors. In particular, the district court
7
expressed its concern about the seriousness of the offense,
which it described as “as serious as it gets.” (Joint Appendix
at 476).
Accordingly, we affirm the convictions and sentence.
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
8