UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4255
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DEMARCUS MANDELL BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Michael F. Urbanski, District
Judge. (7:13-cr-00068-MFU-1)
Submitted: October 30, 2014 Decided: November 14, 2014
Before DUNCAN and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Paul G. Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke,
Virginia, for Appellant. Jennifer Scott DeGraw, OFFICE OF THE
UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
DeMarcus Brown appeals the district court’s judgment
sentencing him to one year of imprisonment pursuant to his
conviction of assault on a government employee, in violation of
18 U.S.C. § 111(a) (2012). Brown’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious grounds for appeal, but
questioning whether (1) Brown’s conviction is unsupported by
sufficient evidence or otherwise unlawful, (2) the district
court abused its discretion in imposing Brown’s sentence to run
consecutively to his preexisting sentence, (3) the district
court erred in failing to give Brown’s requested instruction on
justification and (4) the district court erred in failing to
instruct that willfulness was an essential element of the
offense. Although advised of his right to do so, Brown has not
filed a supplemental brief. The Government declined to file a
brief. We affirm.
We review de novo the district court’s denial of a
Fed. R. Crim. P. 29 motion for judgment of acquittal. United
States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). We affirm
if, viewing the evidence in the light most favorable to the
Government, “the conviction is supported by substantial
evidence.” United States v. Hickman, 626 F.3d 756, 763-64 (4th
Cir. 2010) (internal quotation marks omitted). “Substantial
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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). A defendant challenging
evidentiary sufficiency “bears a heavy burden,” as reversal of a
conviction is limited to those circumstances in which “the
prosecution’s failure is clear.” United States v. Foster, 507
F.3d 233, 244-45 (4th Cir. 2007) (internal quotation marks
omitted).
Any individual who “forcibly assaults, resists,
opposes, impedes, intimidates, or interferes with [a federal
officer] while engaged in . . . official duties . . . shall,
where the acts in violation of this section constitute only
simple assault, be fined under this title or imprisoned not more
than one year, or both[.]” 18 U.S.C. § 111. Viewing the
evidence in the light most favorable to the Government, there
was ample evidence that Brown forcibly assaulted, resisted,
opposed, impeded, intimidated, or interfered with United States
Marshals while they were attempting to transport him from his
cell to his change of plea hearing. We thus conclude that the
district court did not err in denying Brown’s motion for
acquittal.
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Brown next challenges his sentence. We review a
sentence for reasonableness, applying “a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 46 (2007). There we presume that a within-Guidelines range
sentence is reasonable. See Rita v. United States, 551 U.S.
338, 347 (2007). We review the decision whether to impose a
concurrent or consecutive sentence for abuse of discretion.
United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2012).
Our review of the record reflects that it was
reasonable to impose upon Brown a consecutive, rather than
concurrent, sentence. We thus conclude that the district court
did not abuse its discretion in imposing its sentence.
Brown next challenges the district court’s refusal to
instruct the jury as to the justification defense. “[A]
defendant is entitled to an instruction as to any recognized
defense for which there exists evidence sufficient for a jury to
find in his favor.” United States v. Ricks, 573 F.3d 198, 200
(4th Cir. 2009) (internal quotation marks omitted).
We review a district court’s refusal to instruct the
jury on an affirmative defense de novo. United States v.
Perrin, 45 F.3d 869, 871 (4th Cir. 1995). To warrant a
justification instruction, a defendant must show that he:
(1) was under unlawful and present threat of
death or serious bodily injury;
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(2) did not recklessly place himself in a
situation where he would be forced to engage
in criminal conduct;
(3) had no reasonable legal alternative (to
both the criminal act and the avoidance of
threatened harm); and
(4) a direct causal relationship between the
criminal action and the avoidance of the
threatened harm.
Ricks, 573 F.3d at 202.
We have reviewed the record and conclude that the
district court did not err in refusing to give a justification
instruction. Brown did not show that he faced “death or serious
bodily injury,” or that he had “no legal alternative” to his
conduct. We thus hold that the district court correctly refused
to give the instruction.
Brown’s final challenge is that the district court
should have instructed the jury that “willfulness” is an
essential element of the charged offense. We consider de novo
“whether a district court has properly instructed a jury on the
statutory elements of an offense.” United States v. Powell, 680
F.3d 350, 355 (4th Cir. 2012) (internal quotation marks
omitted).
We have reviewed the record and conclude that the
district court’s decision was correct. Specific intent to
violate the statute is not required to be convicted under 18
U.S.C. § 111. United States v. Williams, 604 F.2d 277, 279 (4th
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Cir. 1979). We thus hold that the district court did not abuse
its discretion in refusing to instruct the jury that willfulness
was an essential element of the charged offense.
In accordance with Anders, we have reviewed the record
and have found no meritorious issues for appeal. Accordingly,
we affirm the district court’s judgment. This court requires
that counsel inform Brown, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Brown requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move
in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Brown. 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
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