UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4851
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LESTER KEITH GUNTER, a/k/a Keith Gunter, a/k/a Gunner,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Arenda L. Wright Allen,
District Judge. (2:13-cr-00176-AWA-DEM-3)
Submitted: July 31, 2015 Decided: September 9, 2015
Before AGEE and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James J. Duane, Virginia Beach, Virginia, for Appellant.
Christopher Catizone, Darryl J. Mitchell, Assistant United
States Attorneys, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lester Keith Gunter was found guilty by a jury of
conspiracy to distribute and possess with intent to distribute
50 grams or more of a mixture and substance containing a
detectable amount of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A) (2012). Gunter was sentenced to 262
months’ imprisonment. On appeal, Gunter argues that the
district court made two errors regarding the jury instructions
and three errors at sentencing. We have reviewed the record and
found no reversible error. Accordingly, we affirm.
Gunter first challenges the jury instruction regarding
indirect agreement between conspirators. “We review de novo a
claim that a jury instruction did not correctly state the
applicable law.” United States v. Washington, 743 F.3d 938, 941
(4th Cir. 2014). Here, even assuming, without deciding, that
the challenged instruction was erroneous, we conclude that
reversal is not warranted because this error was not
“prejudicial based on a review of the record as a whole.”
United States v. Moye, 454 F.3d 390, 399 (4th Cir. 2006) (en
banc).
Gunter also challenges the district court’s rejection of
his requested “mere buyer-seller” jury instruction. We review
the district court’s denial of a requested jury instruction for
an abuse of discretion. United States v. Sonmez, 777 F.3d 684,
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688 (4th Cir. 2015). We affirm the district court’s rejection
of the request because Gunter has not demonstrated, nor does the
record reflect, that this instruction “dealt with some point in
the trial so important, that failure to give the requested
instruction seriously impaired the defendant’s ability to
conduct his defense.” United States v. Lighty, 616 F.3d 321,
336 (4th Cir. 2010). The evidence in this case clearly
demonstrated more than a mere buyer-seller relationship.
Next, Gunter contends that, at sentencing, the district
court violated his Fifth Amendment right against self-
incrimination, a claim we review de novo. United States v.
Hall, 551 F.3d 257, 266 (4th Cir. 2009). Gunter’s claim is
without merit. Contrary to Gunter’s assertion, the district
court did not draw an adverse inference because of Gunter’s
failure to testify at sentencing, but instead made its findings
based on positive evidence presented at trial and described in
the presentence report.
Gunter also contends that the district court erred in
applying a sentencing enhancement pursuant to U.S. Sentencing
Guidelines Manual § 2D1.1(b)(1) (2013). In assessing a
challenge to the district court’s application of the Guidelines,
this court reviews the district court’s factual findings for
clear error and its legal conclusions de novo. United States v.
Alvarado Perez, 609 F.3d 609, 612 (4th Cir. 2010). We conclude
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that the district court did not clearly err. Though Gunter
contends that the district court relied on nonexistent trial
testimony, the challenged comments reflect an assessment of
witness credibility. As to the factual foundation, we find that
the district court relied on evidence which had “sufficient
indicia of reliability.” United States v. Wilkinson, 590 F.3d
259, 269 (4th Cir. 2010). Though Gunter insists that the
evidentiary source of the enhancement, two cooperating
coconspirators, should not be trusted and thus lack reliability,
this merely reflects different views of witness credibility, a
determination within the district court’s discretion. United
States v. Crawford, 734 F.3d 339, 343 (4th Cir. 2013); United
States v. McHan, 101 F.3d 1027, 1038 (4th Cir. 1996).
Finally, Gunter argues that his within-Guidelines sentence
is substantively unreasonable because it is longer than those of
his codefendants. We presume that a within-Guidelines sentence
is substantively reasonable. United States v. Louthian, 756
F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).
Gunter bears the burden of rebutting this presumption “by
showing that the sentence is unreasonable when measured against
the 18 U.S.C. § 3553(a) factors.” Id. We discern no error in
the court’s sentence. We have reviewed the record and conclude
that, though his sentence was more severe than his codefendants,
Gunter’s sentence was reasonable. The court’s reasoning and
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reliance on the factors in § 3553(a) was quite thorough and
Gunter has not presented – nor does the record provide – any
basis for rebutting the presumption that his within-Guidelines
sentence was substantively reasonable.
Therefore, 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
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