UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4756
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTHONY LEE WAINWRIGHT, JR., a/k/a Youngin,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
Chief District Judge. (4:10-cr-00016-RBS-TEM-1)
Submitted: May 8, 2012 Decided: May 11, 2012
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lawrence H. Woodward, Jr., SHUTTLEWORTH, RULOFF, SWAIN, HADDAD &
MORECOCK, PC, Virginia Beach, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Lisa R. McKeel, Brian J.
Samuels, Howard J. Zlotnick, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Lee Wainwright appeals the sentence of life
plus eighty-four months imposed following his jury conviction of
conspiracy to obstruct, delay, and affect commerce by robbery,
in violation of 18 U.S.C. § 1951(a) (2006) (“Count One”);
interference with commerce by robbery, in violation of 18 U.S.C.
§ 1951(a) (“Count Two”); possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) (2006) (“Count
Three”); discharge of a firearm during a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A) (2006) (“Count Four”);
brandishing a firearm during a crime of violence, in violation
of 18 U.S.C. § 924(c)(1)(A) (“Count Five”); use of a firearm
during a crime of violence resulting in death, in violation of
18 U.S.C. § 924(j) (“Count Six”); and killing a witness to
prevent communication to law enforcement, in violation of 18
U.S.C.A. § 1512(a)(1)(C), (a)(3)(A) (West 2000 & Supp. 2011)
(“Count Seven”). The charges arose from the robbery of a
Hardee’s restaurant that culminated in the murder of a Hardee’s
employee. On appeal, Wainwright argues that insufficient
evidence supports his convictions. We affirm.
Because Wainwright did not file a Federal Rule of
Criminal Procedure 29 motion for a judgment of acquittal, we
review his claim for plain error. See United States v. Wallace,
515 F.3d 327, 331-32 (4th Cir. 2008). In reviewing a challenge
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to the sufficiency of the evidence, we must uphold the jury
verdict “if there is substantial evidence, viewed in the light
most favorable to the Government, to support it.” United
States v. Perkins, 470 F.3d 150, 160 (4th Cir. 2006).
Substantial 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. King, 628 F.3d 693, 700 (4th Cir. 2011)
(internal quotation marks omitted). In resolving issues of
substantial evidence, we do not reweigh the evidence or reassess
the factfinder’s determination of witness credibility, and we
must assume that the jury resolved all contradictions in
testimony in favor of the Government. See United States v.
Brooks, 524 F.3d 549, 564 (4th Cir. 2008).
Initially, we note that although Wainwright purports
to challenge the sufficiency of the evidence on all counts, he
does not raise Count Three in the argument section of his brief
and has therefore waived review on that count. See United
States v. Hudson, 673, F.3d 263, 268 (4th Cir. 2012). As to the
remaining counts, we conclude that sufficient evidence supports
the jury’s verdict finding Wainwright guilty beyond a reasonable
doubt.
To establish a Hobbs Act robbery, the Government must
prove:
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(1) that the defendant coerced the victim to part with
property; (2) that the coercion occurred through the
wrongful use of actual or threatened force, violence
or fear or under color of official right; and (3) that
the coercion occurred in such a way as to affect
adversely interstate commerce.
United States v. Buffey, 899 F.2d 1402, 1403 (4th Cir. 1990).
To establish a conspiracy to commit Hobbs Act robbery, the
Government must prove that the defendant agreed with at least
one other person to commit acts that would satisfy the above
three elements. Id.
Here, after hearing testimony from two Hardee’s
employees that they were intimidated by masked gunmen wearing
black into parting with money from Hardee’s safe and registers
and consistent testimony from several of Wainwright’s
coconspirators, the jury reasonably concluded that Wainwright
conspired to commit and did commit a Hobbs Act robbery.
Although Wainwright argues that the testimony of his
coconspirators was contradictory and incredible, we will not
second-guess a jury’s credibility determinations, even in the
face of minor inconsistencies. Brooks, 524 F.3d at 563.
To support a conviction for using or carrying a
firearm during a crime of violence, the Government is required
to show that the defendant committed a crime of violence, during
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which he used or carried a firearm. 18 U.S.C. § 924(c)(1)(A). *
Further, to support a conviction under 18 U.S.C. § 924(j), the
Government must show that the defendant, in the course of
violating § 924(c), caused the death of a person through the use
of a firearm. 18 U.S.C. § 924(j).
Here, two Hardee’s employees testified that they
watched a man matching Wainwright’s description use a gun to
shoot and kill the victim. Likewise, the jury heard at least
five separate accounts that Wainwright confessed to shooting and
killing the victim in the course of the robbery. Contrary to
Wainwright’s contention, there was substantial evidence, even
absent the testimony of additional coconspirators, from which
the jury could conclude beyond a reasonable doubt that
Wainwright used and carried a gun during the commission of the
robbery, resulting in the victim’s death.
Finally, to establish a violation of 18 U.S.C.A.
§ 1512(a)(1)(C), the Government must prove “(1) a killing or
attempted killing, (2) committed with a particular intent,
namely an intent (a) to prevent a communication (b) about the
commission or possible commission of a Federal offense (c) to a
*
Recognizing that the brandishing and discharge of firearms
are sentencing factors rather than elements of offenses,
Harris v. United States, 536 U.S. 545, 556 (2002), the district
court properly vacated Count Four for sentencing purposes.
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federal law enforcement officer or judge.” Fowler v. United
States, 131 S. Ct. 2045, 2049 (2011) (internal quotation marks
omitted). The Government presented evidence that Wainwright and
the victim knew each other and that Wainwright told several
people that he killed the victim because she saw his face and
would be able to identify him. From this testimony, and because
Wainwright was independently charged with Hobbs Act robbery, the
jury could reasonably have found that Wainwright murdered the
victim in order to keep her from identifying him to federal law
enforcement officers. See id. at 2052.
For the foregoing reasons, 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 the court and argument would not aid the
decisional process.
AFFIRMED
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