UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4669
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROGER WAYNE JONES, III,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:14-cr-00037-JAB-1)
Submitted: April 30, 2015 Decided: May 20, 2015
Before NIEMEYER, AGEE, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Eric Lloyd Iverson, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roger Wayne Jones, III, appeals his jury conviction and
204-month sentence for possession of a firearm by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2012).
Jones’s counsel has 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 a police
search of a vehicle in which Jones was a passenger violated the
Fourth Amendment, whether that was sufficient evidence to
support the jury verdict, whether Jones’s sentence is
reasonable, whether Jones had ineffective assistance of counsel,
and whether prosecutorial misconduct occurred. Jones has filed
a pro se brief arguing that the Government failed to satisfy its
burden of proof at trial and that the district court erred in
sentencing him under the Armed Career Criminal Act (“ACCA”). 1 We
affirm.
First, with regard to Jones’s Fourth Amendment claim, we
conclude that Jones has waived his right to challenge the search
because he failed to file a motion to suppress before trial.
See United States v. Moore, 769 F.3d 264, 267 (4th Cir. 2014)
1
Jones also filed a supplemental pro se brief, but he has
moved to strike it and to stay this appeal. We grant the motion
to strike, and we deny the motion to stay.
2
(providing standard), cert. denied, 135 S. Ct. 1463 (2015);
United States v. Whorley, 550 F.3d 326, 337 (4th Cir. 2008)
(applying waiver, declining to address suppression issues raised
for first time on appeal, and citing cases adopting rule).
Jones also challenges the sufficiency of the evidence. We
must uphold a jury’s guilty verdict if there is substantial
evidence, viewed in the light most favorable to the Government,
to support it. United States v. Hamilton, 701 F.3d 404, 409
(4th Cir. 2012); see United States v. Cornell, 780 F.3d 616, 630
(4th Cir. 2015) (defining substantial evidence). “In
determining whether there is substantial evidence to support a
verdict, we defer to the jury’s determinations of credibility
and resolutions of conflicts in the evidence, as they are within
the sole province of the jury and are not susceptible to
judicial review.” United States v. Louthian, 756 F.3d 295, 303
(4th Cir.) (internal quotation marks omitted), cert. denied, 135
S. Ct. 421 (2014). We have reviewed the trial transcript and
conclude that the jury had ample evidence to support a guilty
verdict. See United States v. Reed, 780 F.3d 260, 271 (4th Cir.
2015) (stating elements of offense). 2
2
To the extent Jones asserts error in the district court’s
handling of a jury question during deliberations, we reject his
claim. See United States v. Burgess, 604 F.3d 445, 453 (4th
Cir. 2012) (stating standard of review).
3
We next review Jones’s sentence for both procedural and
substantive reasonableness “under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41 (2007). We must “ensure that the district court
committed no significant procedural error, such as . . .
improperly calculating[] the Guidelines range.” Id. at 51. If
there is no significant procedural error, we then consider the
sentence’s substantive reasonableness under “the totality of the
circumstances, including the extent of any variance from the
Guidelines range.” Id. We presume that a sentence below a
properly calculated Guidelines range is reasonable. Louthian,
756 F.3d at 306. A defendant can rebut this presumption only
“by showing that the sentence is unreasonable when measured
against the § 3553(a) factors.” Id.
After reviewing the presentence report and the sentencing
transcript, we conclude that Jones’s below-Guidelines sentence
is both procedurally and substantively reasonable. The district
court properly concluded that the ACCA applied to Jones and
correctly calculated the advisory Guidelines range. 3 The court
also listened to both parties’ arguments, considered the 18
3
We also reject Jones’s argument that the district court
erred in not submitting the question of his prior convictions to
the jury. See United States v. McDowell, 745 F.3d 115, 124 (4th
Cir. 2014), cert. denied, 135 S. Ct. 942 (2015).
4
U.S.C. § 3553(a) (2012) factors, and articulated its reasons for
giving Jones a sentence below that range. See Gall, 552 U.S. at
51 (discussing procedural reasonableness). In addition, Jones
has not made the showing necessary to rebut the presumption of
reasonableness accorded his below-Guidelines sentence.
Finally, contrary to Jones’s suggestion in the Anders
brief, the record contains no evidence of prosecutorial
misconduct, and we decline to consider Jones’s
ineffective-assistance claim on direct appeal because the record
does not conclusively establish his counsel’s ineffectiveness.
See United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir.
2010).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious grounds for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Jones, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Jones 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 Jones.
5
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
6