UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4560
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TRAVIS DOUG BURLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:12-cr-00186-JAG-1)
Submitted: March 28, 2014 Decided: April 21, 2014
Before SHEDD, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Amy Leigh Austin, LAW OFFICE OF AMY L. AUSTIN, PLLC, Richmond,
Virginia, for Appellant. Dana J. Boente, Acting United States
Attorney, Brian R. Hood, Assistant United States Attorney,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Travis Doug Burley appeals his conviction following a
jury trial for using, carrying, brandishing, and discharging a
firearm during and in relation to a drug trafficking offense, in
violation of 18 U.S.C. § 924(c)(1)(A) (2012). On appeal, Burley
argues that the evidence elicited at trial was insufficient to
support his conviction. Because we conclude Burley fails to
meet his burden of establishing that the evidence was
insufficient, we affirm.
We review de novo a challenge to the sufficiency of
the evidence supporting a jury verdict. United States v. Hager,
721 F.3d 167, 179 (4th Cir. 2013), petition for cert. filed, __
U.S.L.W. __ (U.S. Dec. 16, 2013) (No. 13-7913). We will affirm
if, viewing the evidence and drawing all reasonable inferences
in the light most favorable to the Government, the verdict is
supported by substantial evidence. United States v.
Penniegraft, 641 F.3d 566, 572 (4th Cir. 2011). Substantial
evidence is defined as such “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.”
United States v. Green, 599 F.3d 360, 367 (4th Cir. 2010)
(internal quotation marks omitted). We are obliged to affirm if
“any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United
2
States v. Jaensch, 665 F.3d 83, 93 (4th Cir. 2011) (internal
quotation marks omitted). A defendant seeking to challenge the
sufficiency of the evidence “carries a heavy burden,” as
reversal is reserved for cases “where the prosecution’s failure
is clear.” United States v. Bishop, 740 F.3d 927, 935 (4th Cir.
2014) (internal quotation marks omitted).
To convict Burley of violating § 924(c), the
Government was required to prove that Burley “used or carried a
firearm during and in relation to a drug trafficking crime or
possessed a firearm in furtherance of a drug trafficking crime.”
United States v. Stephens, 482 F.3d 669, 673 (4th Cir. 2007);
see 18 U.S.C. § 924(c)(1)(A). In his opening brief, Burley
essentially raises two distinct challenges to the sufficiency of
the evidence. Burley primarily argues that the jury could not
have found the elements of the offense beyond a reasonable doubt
because three of the Government’s primary witnesses were not
credible, and his own theory of the case was more persuasive.
This argument is entirely unavailing, as it is well-settled that
“[d]eterminations of credibility are within the sole province of
the jury and are not susceptible to judicial review.” United
States v. Palacios, 677 F.3d 234, 248 (4th Cir.) (internal
quotation marks and alterations omitted), cert. denied, 133 S.
Ct. 124 (2012).
3
Burley also briefly asserts that the evidence failed
to demonstrate that he knowingly engaged in a drug trafficking
offense or knowingly possessed the firearm during or in relation
to the drug trafficking offense. In his opening brief, Burley
bases this claim solely on the absence of direct evidence that
he was the intended purchaser in an arranged sale of marijuana,
during which, the Government alleged, the gun discharged after
Burley attempted to rob the seller of his marijuana. This
argument, too, is unavailing. One witness’ testimony regarding
his interaction with Burley on the day of the shooting provided
circumstantial evidence from which the jury could infer that
Burley was the intended drug purchaser. Another witness
testified that Burley told him the shooting had occurred when
Burley met with a drug dealer to purchase marijuana and instead
decided to steal it. Viewing the evidence, as we must, in the
light most favorable to the Government, see Penniegraft, 641
F.3d at 572, this testimony provided ample evidence from which
the jury could deduce that Burley was the individual for whom
the drug transaction had been arranged.
The arguments raised by Burley in his opening brief
fall far short of satisfying the heavy burden required for a
successful challenge to the sufficiency of the evidence. While
Burley raises additional arguments in his reply brief, these
arguments are not properly before us, and we decline to consider
4
them. See United States v. Brooks, 524 F.3d 549, 556 & n.11
(4th Cir. 2008) (deeming claim raised for first time in reply
brief abandoned); Yousefi v. INS, 260 F.3d 318, 326 (4th Cir.
2001) (concluding that petitioner abandoned argument on appeal
raised for first time in reply brief by failing to raise it in
opening brief).
Accordingly, 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
this court and argument would not aid the decisional process.
AFFIRMED
5