UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4898
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIS SARVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:11-cr-00083-D-1)
Submitted: December 1, 2014 Decided: February 4, 2015
Before KING, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willis James Sarvis appeals the district court’s
judgment imposing a sentence of life plus 360 months following a
guilty plea to possession of a firearm by a felon, 18 U.S.C.
§§ 922(g)(1) and 924 (2012) (Count Two); and a jury trial for
distribution of phencyclidine, 21 U.S.C. § 841(a)(1), (b)(1)(C)
(2012) (Count One); and possession of a firearm in furtherance
of a drug trafficking crime, 18 U.S.C. § 924(c) (2012) (Count
Three). Sarvis raises several challenges to his convictions and
sentences. We affirm.
I.
First, Sarvis argues that the district court
erroneously denied his motion to suppress. We review factual
findings underlying a district court’s denial of a motion to
suppress for clear error and its legal conclusions de novo.
United States v. Foster, 634 F.3d 243, 246 (4th Cir. 2011).
Because the district court denied the motion to suppress, we
construe the evidence in the light most favorable to the
Government, the party prevailing below. United States v. Black,
707 F.3d 531, 534 (4th Cir. 2013).
Sarvis does not dispute that the facts as testified to
at the suppression hearing could establish probable cause for
his arrest, but argues that this testimony was inherently
incredible. However, we “defer to the district court’s
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credibility findings.” United States v. Griffin, 589 F.3d 148,
150 n.1 (4th Cir. 2009) (internal quotation marks omitted).
Accordingly, we discern no error in the district court’s denial
of Sarvis’ motion to suppress.
Next, Sarvis argues that the Government violated his
due process rights through its discovery disclosures and lack
thereof; he further contends that the district court should have
sanctioned the Government. Because he failed to preserve this
claim by objecting in the district court, our review is for
plain error. United States v. Olano, 507 U.S. 725, 731-32
(1993); see United States v. Henderson, 133 S. Ct. 1121, 1126
(2013). We discern no plain error in the district court’s
actions here. The court credited the testimony of the
detective, thereby concluding that no police misconduct
occurred. Moreover, Sarvis has failed to sufficiently allege
what, if any, documents were not timely disclosed by the
Government and what prejudice resulted therefrom.
Sarvis next challenges the sufficiency of the
indictment as to Count Three, arguing that it erroneously
charged the two separate crimes contained in the statute as a
single crime. As Sarvis acknowledges, this claim is also
reviewed for plain error. See Olano, 507 U.S. at 731-32. We
“will construe the indictment liberally and indulge every
intendment in support of its sufficiency.” United States v.
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King, 628 F.3d 693, 699 (4th Cir. 2011) (internal alterations
and quotation marks omitted).
We discern no error, much less plain error, in the
indictment. Sarvis argues that the use of the conjunctive,
rather than disjunctive, in the indictment is insufficient.
However, “where a statute is worded in the disjunctive, federal
pleading requires the Government to charge in the conjunctive.”
United States v. Montgomery, 262 F.3d 233, 242 (4th Cir. 2001).
Sarvis similarly contends that the district court
constructively amended the indictment when it instructed the
jury on the elements of Count Three, using the disjunctive even
though the indictment is worded conjunctively. We have
previously held, however, that “[w]hen the Government charges in
the conjunctive, and the statute is worded in the disjunctive,
the district court can instruct the jury in the disjunctive.”
United States v. Robinson, 627 F.3d 941, 958 (4th Cir. 2010)
(internal quotation marks omitted). Accordingly, we find no
error in the court’s instruction.
II.
Sarvis next raises several challenges to his sentence.
We review sentences for reasonableness “under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41 (2007). We first ensure that the district court
committed no “‘significant procedural error,’” including
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improper calculation of the Guidelines range, insufficient
consideration of the § 3553(a) factors, and inadequate
explanation of the sentence imposed. United States v. Lynn, 592
F.3d 572, 575 (4th Cir. 2010) (quoting Gall, 552 U.S. at 51).
Sarvis argues that the district court’s application of
the second-degree murder cross reference was improper, asserting
four separate arguments. First, he argues that the death was
not relevant conduct. Relevant conduct for Guidelines purposes
includes, as relevant here, “all acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, or
willfully caused by the defendant . . . that occurred during the
commission of the offense of conviction.” U.S. Sentencing
Guidelines Manual § 1B1.3(a)(1); see United States v. Ashford,
718 F.3d 377, 383 (4th Cir. 2013) (holding that murder
cross-reference applied where the act satisfied § 1B1.3(a)(1)).
In Ashford, we rejected the very argument Sarvis presses: that
murder is not a groupable offense under § 1B1.3(a)(2) and
therefore the cross-reference cannot apply. See 718 F.3d at
382-83. Therefore, we conclude that the death here was properly
included as relevant conduct.
Sarvis next challenges the sufficiency of the evidence
supporting the cross-reference, arguing that he acted in
self-defense. We review the district court’s factual findings
for clear error and its legal conclusions de novo. United
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States v. Medina-Campo, 714 F.3d 232, 234 (4th Cir. 2013). We
conclude, however, that application of the second-degree murder
cross-reference was proper because Sarvis could not colorably
assert self-defense under either federal or North Carolina law.
Next, Sarvis asserts that the district court
improperly double counted the murder by applying the
cross-reference and relying on the murder to determine his life
sentence for Count Three. “Double counting occurs when a
provision of the Guidelines is applied to increase punishment on
the basis of a consideration that has been accounted for by
application of another Guideline provision or by application of
a statute.” United States v. Reevey, 364 F.3d 151, 158 (4th
Cir. 2004). There was no impermissible double counting here.
Sarvis argues that the district court was required, as
a matter of due process, to establish the facts supporting the
cross-reference under a heightened standard of proof.
(Appellant’s Br. 42-43). However, we have previously held that
“the due process clause does not require the district court to
find uncharged conduct by a heightened standard of proof before
using it as a basis for determining a defendant’s sentence.”
United States v. Grubbs, 585 F.3d 793, 802 (4th Cir. 2009). We
therefore conclude that the cross-reference to second-degree
murder was properly applied.
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Sarvis next asserts that the district court erred by
treating § 5G1.2(d) of the Guidelines as mandatory. We conclude
that the district court clearly understood that the provisions
of the Guidelines were advisory and exercised its discretion in
imposing consecutive sentences.
Sarvis argues that the district court failed to
adequately explain its chosen sentence. In evaluating the
sentencing court’s explanation of a selected sentence, we have
consistently held that, while the district court must consider
the statutory factors and explain the sentence, it need not
“robotically tick through” every § 3353(a) factor on the record,
particularly when the court imposes a sentence within the
properly calculated Guidelines range. United States v. Johnson,
445 F.3d 339, 345 (4th Cir. 2006). At the same time, the
district court “must make an individualized assessment based on
the facts presented.” Gall, 552 U.S. at 50. While the
“individualized assessment need not be elaborate or lengthy,
. . . it must provide a rationale tailored to the particular
case at hand and adequate to permit meaningful appellate
review.” United States v. Carter, 564 F.3d 325, 330 (4th Cir.
2009) (internal quotation marks omitted).
The district court here thoroughly explained its
sentencing decision. The court noted that Sarvis’ crimes were
extraordinarily serious, and endangered the lives of the people
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living in the community where the offenses occurred. The
district court also relied upon Sarvis’ extensive criminal
history and lack of work history and noted that Sarvis had
squandered the leniency shown to him in the past.
Finally, Sarvis argues that his sentence is
substantively unreasonable. If we find a sentence procedurally
reasonable, we also must examine its substantive reasonableness,
considering “the totality of the circumstances, including the
extent of any variance from the Guidelines range.” Gall, 552
U.S. at 51. The sentence imposed must be “sufficient, but not
greater than necessary,” to satisfy the purposes of sentencing.
18 U.S.C. § 3553(a) (2012). A within-Guidelines sentence is
presumed reasonable on appeal, and the defendant bears the
burden to “rebut the presumption by demonstrating that the
sentence is unreasonable when measured against the § 3553(a)
factors.” United States v. Montes-Pineda, 445 F.3d 375, 379
(4th Cir. 2006) (internal quotation marks omitted). When a
district court imposes a sentence that falls outside of the
applicable Guidelines range, however, we consider “whether the
sentencing court acted reasonably both with respect to its
decision to impose such a sentence and with respect to the
extent of the divergence from the sentencing range.” United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007).
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We conclude that the district court’s sentence was
reasonable. Although the court focused on the offense conduct,
the court noted it had considered all of the § 3553(a) factors.
The offense conduct here was egregious; Sarvis fired at least
fifteen rounds from a high-powered assault rifle in a public
housing complex after a drug deal went bad, killing one person
and resulting in bullets entering nearby homes and vehicles. As
the district court noted, Sarvis had committed several prior
drug trafficking and violent crimes. Thus, we conclude the
sentence was substantively reasonable.
III.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED
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