UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4119
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARCELLUS EDWARD CHEATHAM, III,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:12-cr-00111-HCM-LRL-1)
Submitted: October 31, 2014 Decided: February 10, 2015
Before MOTZ, KING, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Vaughan C. Jones, JOHNSON & JONES, LLP, Richmond, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Howard J.
Zlotnick, Assistant United States Attorney, Newport News,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marcellus Edward Cheatham, III, was charged in a five-count
superseding indictment for interference with commerce by robbery
(count one); brandishing a firearm during a crime of violence
(count two); felon in possession of a firearm (count three);
felon in possession of ammunition (count four); and possession
with intent to distribute a schedule II controlled substance
(count five). On the morning the trial was to begin, Cheatham
pleaded guilty to counts one and five and proceeded to trial on
the remaining counts. Count three was dismissed under Federal
Rule of Criminal Procedure 29, and a jury found Cheatham guilty
of counts two and four. He received a total sentence of 235
months.
On appeal, Cheatham challenges the district court’s denial
of his motion for a mistrial based on improper remarks by the
prosecutor, the court’s denial of his motion to suppress
evidence, the sufficiency of evidence on the counts on which the
jury found him guilty, the sentencing enhancements for his role
in the offense and obstruction of justice, and the denial of a
sentencing reduction for acceptance of responsibility. Finding
no error, we affirm.
Cheatham first argues that the district court erred in not
granting his motion for a mistrial after the Assistant United
States Attorney questioned Cheatham about sentencing
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consequences during his cross-examination. We review the denial
of a motion for mistrial for an abuse of discretion. United
States v. Wallace, 515 F.3d 327, 330 (4th Cir. 2008); see also
United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997)
(“[D]enial of a defendant’s motion for a mistrial is within the
sound discretion of the district court and will be disturbed
only under the most extraordinary of circumstances.”). In order
to show an abuse of discretion in denying a motion for a
mistrial, a defendant must show prejudice. No prejudice exists
“if the jury could make individual guilt determinations by
following the court’s cautionary instructions.” Wallace, 515
F.3d at 330 (quoting United States v. Dorsey, 45 F.3d 809, 817
(4th Cir. 1995)).
“A prosecutor’s improper [remarks] may so infect the trial
with unfairness as to make the resulting conviction a denial of
due process.” United States v. Lighty, 616 F.3d 321, 359 (4th
Cir. 2010) (internal quotation marks and alteration omitted)
(discussing remarks made during closing argument). We will
reverse a conviction based on improper prosecutorial remarks
only if “the remarks were, in fact, improper, and . . . the
improper remarks so prejudiced the defendant’s substantial
rights that the defendant was denied a fair trial.” Id.
(internal quotation marks omitted). In assessing prejudice,
this court considers
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(1) the degree to which the prosecutor’s remarks have
a tendency to mislead the jury and to prejudice the
accused; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of
the accused; (4) whether the comments were
deliberately placed before the jury to divert
attention to extraneous matters; (5) whether the
prosecutor’s remarks were invited by improper conduct
of defense counsel; and (6) whether curative
instructions were given to the jury.
United States v. Wilson, 624 F.3d 640, 656-57 (4th Cir. 2010).
These factors are to be viewed in the context of the trial as a
whole, and no single factor is dispositive. Lighty, 616 F.3d
at 361.
Our assessment of the record in light of the above factors
leads us to conclude that Cheatham was not so prejudiced by the
prosecutor’s problematic remarks that he was denied a fair
trial. They were isolated and in response to defense counsel’s
questioning of Cheatham on direct examination about the
potential punishment he faced. Further, the court instructed
the jury that evidence where an objection was sustained by the
judge must be disregarded, that statements by lawyers are not
evidence, and that punishment “is a matter exclusively within
the province of the Court and should never be considered by the
jury in any way in arriving at an impartial verdict as to the
guilt or innocence of the accused.” J.A. 516.
Cheatham next challenges the district court’s ruling
denying his motion to suppress evidence based on the arresting
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officers conducting a protective sweep of his residence prior to
the arrival of police with a search warrant. He argues that the
entry of Richmond police officers into his home to conduct a
protective sweep was an illegal search. We review the district
court’s factual findings regarding the motion to suppress for
clear error, and the court’s legal conclusions de novo. United
States v. Burgess, 684 F.3d 445, 452 (4th Cir. 2012); United
States v. Edwards, 666 F.3d 877, 882 (4th Cir. 2011). When, as
here, a motion to suppress has been denied, the court views the
evidence presented in the light most favorable to the
government. United States v. McBride, 676 F.3d 385, 391 (4th
Cir. 2012).
The need to preserve evidence and the concern for officer
safety are important law enforcement goals. United States v.
Watson, 703 F.3d 684, 693 (4th Cir. 2013). With respect to
officer safety, “the protection of police officers is of
particular concern in cases in which both drugs and firearms are
the subject of a pending search warrant.” Id. “[P]olice
officers need to be assured that the persons with whom they are
dealing are not ‘armed with, or able to gain immediate control
of, a weapon that could unexpectedly and fatally be used against
[the officers].’” Id. (quoting Maryland v. Buie, 494 U.S. 325,
333-34 (1990) (holding that a protective sweep when executing an
arrest warrant at a residence does not require probable cause)).
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We conclude that the district court did not clearly err in
determining that, considering the totality of the circumstances,
police legally conducted a protective sweep of the residence.
The denial of the motion to suppress was therefore proper.
Cheatham next challenges the sufficiency of the evidence to
support the jury verdicts. For his conviction for brandishing a
firearm during a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1) (2012), Cheatham claims that there was insufficient
evidence to prove that he brandished a real firearm and not a
simulated one. As to his conviction for possession of
ammunition by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2012), Cheatham argues that there was insufficient
evidence to suggest that he exercised dominion or control over
the ammunition.
We review de novo a district court’s denial of a motion
made pursuant to Rule 29 of the Federal Rules of Criminal
Procedure for judgment of acquittal. United States v. Alerre,
430 F.3d 681, 693 (4th Cir. 2005). We must uphold a jury
verdict “if there is substantial evidence, viewed in the light
most favorable to the Government,” to support it. Burks v.
United States, 437 U.S. 1, 17 (1978). “[S]ubstantial evidence
is 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. Burgos, 94
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F.3d 849, 862 (4th Cir. 1996). “In applying this standard of
review, we must remain cognizant of the fact that ‘[t]he jury,
not the reviewing court, weighs the credibility of the evidence
and resolves any conflicts in the evidence presented, and if the
evidence supports different, reasonable interpretations, the
jury decides which interpretation to believe.’” Id. (quoting
United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994)).
After reviewing the evidence as a whole, we conclude that
there was sufficient evidence to support the jury’s findings
that Cheatham brandished a firearm and possessed the ammunition
found during the execution of the search warrant. The jury was
entitled to reject Cheatham’s testimony that he brandished a
simulated firearm in the form of a cell phone and that he did
not exercise dominion or control over the ammunition. It is the
jury’s function to weigh the credibility of witnesses and to
resolve conflicts in the evidence. United States v. Dinkins,
691 F.3d 358, 387 (4th Cir. 2012). The jury’s determinations
regarding witness credibility and conflicting evidence will not
be disturbed if supported by substantial evidence, “even if we
were inclined to draw contrary inferences.” United States v.
Gomez-Jimenez, 750 F.3d 370, 379 (4th Cir.), cert. denied, 135
S. Ct. 305 (Oct. 6, 2014) (No. 14-5921) & 135 S. Ct. 384 (Oct.
14, 2014) (No. 14-6102). Here, substantial evidence supported
the jury’s decision on the brandishing count because the
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pharmacist testified that Cheatham robbed him at gunpoint.
Substantial evidence also supported the jury’s determination on
the possession of ammunition count because Cheatham testified he
was living in the house where the police recovered the
ammunition, and the ammunition “w[as] not so well hidden, as to
prohibit a reasonable fact finder from concluding that [the
defendant] was aware of [its] presence.” United States v.
Shorter, 328 F.3d 167, 172 (4th Cir. 2003).
Cheatham next challenges the two-level sentencing
enhancement applied for being a manager or supervisor under U.S.
Sentencing Guidelines Manual § 3B1.1(c) (2012). A defendant
qualifies for the two-level enhancement “[i]f [he] was an
organizer, leader, manager, or supervisor in any criminal
activity [that did not involve five or more participants].”
USSG § 3B1.1(c). Application of the enhancement is proper when
the defendant exercises “[l]eadership over only one other
participant . . . as long as there is some control exercised.”
United States v. Rashwan, 328 F.3d 160, 166 (4th Cir. 2003).
The evidence supported the conclusion that Cheatham supervised
or organized the activities of at least “Zeek” Walton in their
dealings while planning and after the robbery. The government
introduced text messages in which Cheatham and Walton discussed
the location of the pharmacy to rob, who would drive, and how to
split the proceeds. Cheatham also directed Walton to delete
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pictures and text messages from his phone. Therefore, the
district court did not clearly err in applying the enhancement.
See United States v. Kellam, 568 F.3d 125, 147-48 (4th Cir.
2009) (stating standard of review).
Next, Cheatham challenges the district court’s decision to
apply an enhancement for obstruction of justice under USSG
§ 3C1.1. The court ruled that the enhancement applied based on
the fact that Cheatham arrived on the day of trial and withdrew
his notice of an alibi defense and pleaded guilty to the
robbery, that he committed perjury regarding whether he pointed
a cell phone or a firearm at the pharmacist, and that he
directed a coconspirator to erase incriminating text messages
and photos from his phone. On appeal, Cheatham argues that he
should not be penalized for planning to utilize an alibi defense
and testifying on his own behalf, his actions did not impede the
government’s investigation, and there was insufficient evidence
that the messages and photos that Cheatham directed Walton to
erase were incriminating.
Under USSG § 3C1.1, an enhancement for obstruction of
justice is permitted if:
(1) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice with respect to the investigation,
prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to
(A) the defendant’s offense of conviction and any
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relevant conduct; or (B) a closely related
offense . . . .
Committing perjury qualifies a defendant for the enhancement.
USSG § 3C1.1 cmt. n.4(B). The adjustment for perjury is not
applicable merely because the defendant testified and
subsequently was convicted. United States v. Dunnigan, 507 U.S.
87, 95 (1993). Instead, the court must find that the defendant
gave false testimony under oath “concerning a material matter
with the willful intent to provide false testimony, rather than
as a result of confusion, mistake, or faulty memory.” Id. at
94; United States v. Smith, 62 F.3d 641, 646-57 (4th Cir. 1995).
“In assessing whether a sentencing court properly applied
the Guidelines, we review the district court’s factual findings
for clear error and its legal conclusions de novo.” United
States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008). We
conclude that, under the above authorities, the district court
correctly applied the enhancement. Cheatham’s notice of an
alibi defense alleged that Cheatham was at his home at the time
of the robbery and offered the names of three witnesses who
would testify on his behalf, including his mother. The
government was forced to prepare to rebut the alibi defense
because it was not withdrawn until the morning of trial, at
which time Cheatham admitted to the robbery. The false alibi
thus impeded the investigation. Cheatham also instructed his
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coconspirator to delete text messages and photos, which the
district court found as a fact was an attempt to obstruct the
prosecution of the case or impede the administration of justice.
See United States v. Malki, 609 F.3d 503, 511 (2d Cir. 2010)
(finding the obstruction enhancement supported by, among other
things, the defendant deleting cell phone records before an
interview with government agents and erasing emails afterward).
Finally, the court’s finding of perjury based on Cheatham’s
testimony also supports the enhancement. The jury did not
believe Cheatham’s testimony that he did not possess a firearm
at the time of the robbery, which was a material matter and was
intended to deceive the court and jury. The jury also did not
believe Cheatham’s testimony that he did not possess or control
the ammunition found in his home. See United States v. Curry,
461 F.3d 452, 461 (4th Cir. 2006) (noting that the sentencing
court is bound to accept the facts implicit from the jury
verdict).
Finally, Cheatham argues that the district court erred in
denying a reduction for acceptance of responsibility when he
pleaded guilty to two counts and acknowledged his associated
criminal conduct. He submits that the court (1) improperly did
not give its reasons and (2) should not have withheld the
reduction because he decided to go to trial on the remaining
three counts, one of which was dismissed.
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As to Cheatham’s first contention, the district court must
make “adequate findings as to a controverted matter.” United
States v. Morgan, 942 F.2d 243, 245 (4th Cir. 1991). If “the
district court fails to resolve a disputed factual matter on
which it necessarily relied at sentencing, this court must
vacate the sentence and remand for resentencing.” Id. Although
the district court in this case did not explain why it denied
the reduction, it did make an express finding that Cheatham did
not qualify for acceptance of responsibility. It also made
factual findings when discussing the obstruction enhancement
that relate to acceptance of responsibility.
Turning to Cheatham’s second contention, the district
court’s determination that a defendant is not entitled to an
adjustment for acceptance of responsibility is reviewed for
clear error. United States v. Knight, 606 F.3d 171, 177 (4th
Cir. 2010). A guilty plea generally is an indication of
acceptance of responsibility; however, conduct that results in
an adjustment for obstruction of justice “ordinarily indicates
that the defendant has not accepted responsibility for his
criminal conduct,” although in “extraordinary cases” both
adjustments may apply. USSG § 3E1.1 cmt. n.4. The “question of
whether a defendant who obstructed justice is entitled to an
acceptance-of-responsibility reduction [is] a largely factual
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matter to be determined by the district court.” Knight, 606
F.3d at 176.
We conclude that the district court did not err in denying
the reduction for acceptance of responsibility where Cheatham
committed perjury and the court determined that he had
obstructed justice. Although the application of § 3C1.1 does
not automatically disqualify the defendant from receiving the
§ 3E1.1 reduction, it is rare that both Guidelines provisions
apply. USSG § 3E1.1 cmt. n.2. Cheatham argues that United
States v. Hargrove, 478 F.3d 195 (4th Cir. 2007) demonstrates
that it is error to deny the reduction where a defendant has
pleaded guilty to some charges, but denied other related
charges. In Hargrove, we remanded to the district court when
the court stated that it could not apply both the obstruction of
justice and acceptance of responsibility provisions. Hargrove,
478 F.3d at 201-02. Here, the district court acknowledged that
it had the discretion to apply both provisions, but determined
that the facts did not support it. We therefore conclude that
the court did not err in denying the reduction.
Accordingly, we affirm the 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
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