UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4180
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BARRY TERRY,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge. (1:15-cr-00656-JFM-1)
Submitted: December 28, 2017 Decided: February 27, 2018
Before WILKINSON and HARRIS, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
William L. Welch, III, Baltimore, Maryland, for Appellant. Stephen M. Schenning,
Acting United States Attorney, Patricia McLane, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Barry Terry of being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g)(1) (2012). Deeming Terry an armed
career criminal, the district court sentenced Terry to the statutory minimum term of 180
months’ imprisonment. See 18 U.S.C. § 924(e) (2012). On appeal, Terry contends that:
(1) 18 U.S.C. § 922(g)(1) is unconstitutional as applied to him, (2) the district court erred
in excluding a cell phone video and corresponding witness testimony of his arrest, (3) the
district court’s jury instructions denied him a fair trial, (4) sufficient evidence did not
exist to convict him, and (5) applying the Armed Career Criminal Act’s (ACCA)
enhanced sentences to criminal defendants based on prior drug offense convictions is
cruel and unusual punishment. We affirm.
Terry first asserts that § 922(g)(1) is unconstitutional as applied to him because it
exceeds Congress’ authority under the Commerce Clause in light of United States v.
Lopez, 514 U.S. 549 (1995). We review constitutional claims de novo. United States v.
Dowell, 771 F.3d 162, 167 (4th Cir. 2014). We have consistently rejected Terry’s
argument, see United States v. Gallimore, 247 F.3d 134, 138 (4th Cir. 2001), and a panel
of this court may not overrule the precedent set by a prior panel, United States v. Bullard,
645 F.3d 237, 246 (4th Cir. 2011).
Terry next contends that the district court violated his right to present a defense by
excluding a cell phone video of his arrest and testimony from the person who recorded
the video. We review preserved evidentiary rulings, including the district court’s
decision to exclude evidence on Fed. R. Evid. 403 grounds, for abuse of discretion.
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Huskey v. Ethicon, Inc., 848 F.3d 151, 159-60 (4th Cir.), cert. denied, 138 S. Ct. 107
(2017); United States v. Davis, 690 F.3d 226, 257 (4th Cir. 2012). “[E]rrors under Rule
403 are subject to the harmless error test: whether it is probable that the error could have
affected the verdict reached by the particular jury in the particular circumstances of the
trial.” United States v. Simpson, 910 F.2d 154, 158 (4th Cir. 1990) (internal quotation
marks omitted). However, unpreserved evidentiary errors are reviewed only for plain
error. United States v. Wilkerson, 84 F.3d 692, 694-95 (4th Cir. 1996).
Terry opposed the Government’s motion in limine to exclude the video and
testimony. See United States v. Ruhe, 191 F.3d 376, 383 n.4 (4th Cir. 1999) (holding
filing of motion in limine sufficiently preserves issue for appeal once court denies
motion). But rather than explicitly ruling on the Government’s motion, the district court
told Terry he could present his sister as a witness, without mentioning the video or the
recorder’s testimony, and Terry did not renew an offer of proof. See Fed. R. Evid. 103(b)
(“Once the court rules definitively on the record—either before or at trial—a party need
not renew an objection or offer of proof to preserve a claim of error for appeal.”). Thus,
it is unclear whether abuse of discretion or plain error review applies to Terry’s claim.
We need not determine which standard applies, because Terry does not prevail
even under the more favorable abuse of discretion review. While Terry contends that
exclusion of the cell phone video and testimony violated his right to present a defense,
“well-established rules of evidence permit trial judges to exclude evidence if its probative
value is outweighed by certain other factors such as unfair prejudice, confusion of the
issues, or potential to mislead the jury.” Holmes v. South Carolina, 547 U.S. 319, 326
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(2006). We conclude that the district court did not abuse its discretion in excluding the
video and corresponding testimony, as the video shows only events after Terry disposed
of the gun, and viewing Terry’s arrest may have inflamed the jury against the
Government’s witnesses. * See Fed. R. Evid. 403. Further, any error is harmless due to
the significant evidence of Terry’s guilt. See Simpson, 910 F.2d at 158.
Terry further claims that the district court erred by (1) refusing to give his
requested jury instruction on the definition of reasonable doubt, (2) giving an instruction
on law enforcement techniques, and (3) giving the Government’s, rather than his,
requested instruction regarding “in or affecting commerce.” We review challenges to
jury instructions for abuse of discretion, determining “whether, taken as a whole, the
instruction fairly states the controlling law.” United States v. Moye, 454 F.3d 390, 398
(4th Cir. 2006) (en banc). A trial “court abuses its discretion when it makes an error of
law.” Id. (internal quotation marks omitted).
We conclude that the district court did not abuse its discretion in refusing to define
reasonable doubt. United States v. Hornsby, 666 F.3d 296, 310-11 (4th Cir. 2012)
(“[D]istrict court[s] [are] not required to define reasonable doubt to the jury so long as the
jury was instructed that the defendant’s guilt must be proven beyond a reasonable doubt.
. . .”). We also conclude that Terry fails to show that the law enforcement techniques
instruction was improper, as his vague claim that it was not generated by the evidence
*
While the district court did not specifically rule on the issue of the cell phone
video and corresponding testimony, both parties argued the admissibility of the evidence
on relevancy and Fed. R. Evid. 403 grounds.
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does not address the district court’s reasoning that Terry’s cross-examination of the
Government’s latent print expert gave rise to the instruction. Further, the court’s
instruction on “in or affecting commerce” was proper because it correctly stated the
controlling law. See Gallimore, 247 F.3d at 138.
Terry also contends that the evidence was insufficient to convict him because it
did not show that he possessed a firearm or ammunition or that he caused the firearm to
affect interstate commerce. We review the denial of a Fed. R. Crim. P. 29 motion and
other “challenge[s] to the sufficiency of the evidence de novo.” United States v.
Palomino-Coronado, 805 F.3d 127, 130 (4th Cir. 2015). In assessing the sufficiency of
the evidence, we determine whether there is substantial evidence to support the
conviction when “viewed in the light most favorable to the government.” Id.
“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.” Id. (internal quotation marks omitted). “Determinations of credibility
lie within the sole province of the fact finder.” United States v. Palin, 874 F.3d 418, 424
(4th Cir. 2017). Thus, “reversal for insufficiency must be confined to cases where the
prosecution’s failure is clear.” Palomino-Coronado, 805 F.3d at 130 (internal quotation
marks omitted). To convict a defendant under 18 U.S.C. § 922(g)(1), the Government
must establish that: (1) the defendant was a felon; (2) he voluntarily and intentionally
possessed a firearm; and (3) the firearm had traveled in interstate commerce. Gallimore,
247 F.3d at 136. Our review of the trial transcript convinces us that the evidence was
clearly sufficient to sustain the jury’s verdict.
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Finally, Terry argues that the ACCA’s mandatory minimum sentence, as applied
to defendants with predicate drug offense convictions, constitutes cruel and unusual
punishment by imposing disproportionate punishment, in violation of the Eighth
Amendment. “We review de novo . . . whether a sentence is proportional under the
Eighth Amendment.” Dowell, 771 F.3d at 167. The Eighth Amendment prohibits cruel
and unusual punishment, which includes both “inherently barbaric” punishment and
punishment that “is disproportionate to the crime for which it is imposed.” United States
v. Cobler, 748 F.3d 570, 575 (4th Cir. 2014). A defendant can raise two kinds of Eighth
Amendment challenges to his sentence: an as-applied challenge based on all the
circumstances in his case, and a categorical challenge challenging an entire class of
sentences. Id. “[C]ategorical challenges to whole classes of prison sentences . . . have
had very limited success in the Supreme Court,” as “the only two contexts in which the
Supreme Court categorically has deemed sentences unconstitutionally disproportionate”
have involved death sentences or “life imprisonment without parole for . . . juvenile
offender[s].” Id. at 577, 580-81.
We conclude that Terry fails to make a showing of categorical disproportionality,
as Terry was not sentenced to death or life without parole as a juvenile offender. See id.
at 580-81. We have also held that “a fifteen-year sentence under ACCA is neither
disproportionate to the offense nor cruel and unusual punishment, and thus does not
violate the Eighth Amendment.” United States v. Presley, 52 F.3d 64, 68 (4th Cir. 1995),
abrogated on other grounds by Johnson v. United States, 559 U.S. 133 (2010). Further,
the Supreme Court has recognized that “[s]evere, mandatory penalties may be cruel, but
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they are not unusual in the constitutional sense.” Harmelin v. Michigan, 501 U.S. 957,
994 (1991).
Accordingly, we affirm the judgment of the district court. 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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