UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4360
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WALTER EMORY MORSLEY,
Defendant – Appellant.
No. 10-4513
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DONALD ELLIOTT CROMWELL, JR.,
Defendant – Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:08-cr-00401-RDB-3; 1:08-cr-00401-RDB-1)
Submitted: October 27, 2011 Decided: November 17, 2011
Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Elkridge,
Maryland; Harry D. McKnett, OFFICE OF HARRY D. MCKNETT, ESQ.,
LLC, Columbia, Maryland, for Appellants. Rod J. Rosenstein,
United States Attorney, James G. Warwick, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A federal grand jury returned a fourteen-count
superseding indictment charging Donald Elliott Cromwell, Jr.,
Walter Emory Morsley, and four co-defendants with offenses
arising from a string of armed robberies of commercial armored
vehicles in the summer of 2008, in violation of 18 U.S.C.
§§ 922(g), 924(c), 1951 (2006). Cromwell faced charges on
account of robberies on May 9, June 13, July 22, and August 6.
Morsley was involved only in the May 9 robbery. Cromwell and
Morsley were convicted following a jury trial and sentenced to
1272 and 396 months’ imprisonment, respectively. In these
consolidated appeals, Cromwell asserts the district court erred
in failing to require the presence of a particular law
enforcement witness at the suppression hearing. Morsley argues
that the district court erred in denying his Fed. R. Crim. P. 29
and 33 motions. Both Cromwell and Morsley challenge the
reasonableness of their sentences. We affirm.
Cromwell argues that the district court’s refusal to
require the presence of Special Agent Vorndran at the
suppression hearing deprived him of his constitutional right to
confront the witness. A district court’s evidentiary rulings
are reviewed for abuse of discretion. See United States v.
Basham, 561 F.3d 302, 325 (4th Cir. 2006). “Decisions as to the
admission or exclusion of evidence are within the province of
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the district court, and any error in such decisions is subject
to review under the harmless error test.” United States v.
Pendergraph, 388 F.3d 109, 112 (4th Cir. 2004).
Cromwell’s argument is without merit. To the extent
he claims a violation of the Confrontation Clause, his claim
must fail because “the confrontation right pertains only to
adverse witnesses offering testimony at trial.” United
States v. Soriano-Jarquin, 492 F.3d 495, 504 (4th Cir. 2007).
Here, the Government neither called Vorndran as a witness nor
introduced any statements by him. Additionally, Cromwell cannot
show his right to compulsory process was violated because “the
Sixth Amendment does not by its terms grant to a criminal
defendant the right to secure the attendance and testimony of
any and all witnesses: it guarantees him ‘compulsory process
for obtaining witnesses in his favor.’” United States v.
Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (quoting U.S. Const.
amend. VI). Cromwell offered the district court no reason to
believe that Vorndran had information material to his defense,
instead merely speculating that Vorndran’s testimony would be
inconsistent with that of a witness who did testify. See United
States v. Rivera, 412 F.3d 562, 570 (4th Cir. 2005) (rejecting
claim that compulsory process rights were violated where
defendant provided no reason to believe absent witnesses had
information material to his defense).
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Morsley challenges the sufficiency of the evidence
against him. He contends that his conviction is based on the
uncorroborated and contradictory testimony of two unreliable
witnesses. Morsley alleges several inconsistencies in the
testimony between the two witnesses. He argues the district
court erred in denying his motions for acquittal and for a new
trial.
We review a district court’s decision to deny a Rule
29 motion for a judgment of acquittal de novo and the denial of
a Fed. R. Crim. P. 33 motion for a new trial for abuse of
discretion. United States v. Smith, 451 F.3d 209, 216 (4th Cir.
2006). A defendant challenging the sufficiency of the evidence
faces a heavy burden. United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997). The verdict of a jury must be sustained
“if, viewing the evidence in the light most favorable to the
prosecution, the verdict is supported by ‘substantial
evidence.’” Smith, 451 F.3d at 216 (citations omitted).
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 and citation omitted).
Furthermore, “[t]he jury, not the reviewing court, weighs the
credibility of the evidence and resolves any conflicts in the
evidence presented.” Beidler, 110 F.3d at 1067 (internal
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quotation marks and citation omitted). “Reversal for
insufficient evidence is reserved for the rare case where the
prosecution’s failure is clear.” Id. (internal quotation marks
and citation omitted).
Here, the jury’s verdict was supported by substantial
evidence. Despite some inconsistencies, the witnesses’
testimony was largely in agreement. Each witness testified that
Morsley participated in the robbery and was armed with a
shotgun. Video surveillance images were consistent with the
witnesses’ accounts. The questions of credibility Morsley
raises were resolved by the jury. See id. Because Morsley’s
motion for a new trial was similarly based on the sufficiency of
the evidence, we conclude that the district court did not abuse
its discretion in denying the motion. See Smith, 451 F.3d at
216-17 (“Under the applicable legal principles, a trial court
should exercise its discretion to award a new trial sparingly,
and a jury verdict is not to be overturned except in the rare
circumstance when the evidence weighs heavily against it.”)
(internal quotation marks omitted).
Turning to the sentences imposed by the district
court, we review those sentences for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); United States v. Diosdado-Star, 630 F.3d 359, 363
(4th Cir.), cert. denied, 131 S. Ct. 2946 (2011). Our review
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requires consideration of both the procedural and substantive
reasonableness of a sentence. Gall, 552 U.S. at 51.
In determining procedural reasonableness, we consider
whether the district court properly calculated the defendant’s
advisory Guidelines range, considered the 18 U.S.C. § 3553(a)
(2006) factors, analyzed any arguments presented by the parties,
and sufficiently explained the selected sentence. Id. Once we
determine that there was no procedural error, we next assess the
substantive reasonableness of the sentence. Our inquiry
requires us to review “whether the District Judge abused his
discretion in determining that the § 3553(a) factors supported
[the sentence] and justified a substantial deviation from the
Guidelines range.” Id. at 56. The court must take “‘into
account the totality of the circumstances, including the extent
of any variance from the Guidelines range.’” United States v.
Morace, 594 F.3d 340, 346 (4th Cir.) (quoting Gall, 552 U.S. at
51), cert. denied, 131 S. Ct. 307 (2010). We afford within-
Guidelines sentences a presumption of reasonableness. See
United States v. Mendoza-Mendoza, 597 F.3d 212, 216-17
(4th Cir. 2010).
Cromwell contends that the district court did not give
adequate consideration to the sentencing factors enumerated in
§ 3553. We disagree. The district court considered Cromwell’s
criminal history, Cromwell’s role in the robberies, and the need
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to impose a sentence sufficient but no greater than necessary to
meet the goals of § 3553(a)(2). The district court recognized
that, given Cromwell’s age, his sentence would effectively be
life imprisonment. Nevertheless, the district court stated that
the sentence was necessary to deter and rehabilitate Cromwell
and to protect the public. The district court was not required
to “robotically tick through § 3553(a)’s every subsection,”
United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006), and
we conclude that the district court adequately explained its
basis for the sentence imposed. We thus find no procedural
error in the imposition of Cromwell’s sentence.
Nor is Cromwell’s sentence substantively infirm.
Cromwell asserts that “in light of his age, health, family ties
and lack of injury to any victim in this case, the district
court should have imposed a sentence which is reasonable,
necessarily far lower than Appellant received.” We conclude,
however, that Cromwell has failed to overcome the presumption of
reasonableness this court affords to within-Guidelines
sentences. Cromwell’s lengthy sentence was a result of his
repeated decision to commit armed robberies and Congress’s
decision that an offender who carries a firearm during a crime
of violence is subject to mandatory consecutive terms of
imprisonment. See 18 U.S.C. § 924(c)(1).
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Morsley argues that the district court did not give
adequate consideration to the § 3553 sentencing factors. He
notes that he took part only in the May 9 robbery, that no one
was injured in that robbery, and that he neither used nor
brandished a weapon. He states that he is fifty-two years old
and his 396-month sentence is the equivalent of a life sentence.
Here, the district court considered the nature and
circumstances of the offense, Morsley’s criminal history, and
the need to avoid unwarranted sentencing disparities. The court
stated that Morsley was “not as culpable” as Cromwell and
recognized that, given Morsley’s age, a sentence at the bottom
of the Guidelines range could amount to a life sentence. The
district court nevertheless concluded that “the Guidelines are
not far off in this case,” and imposed a sentence of 396 months’
imprisonment, within Morsley’s 360 months to life Guidelines
range. The court stated the sentence was necessary to achieve
the purposes of sentencing and to protect the public. We
conclude that the district court adequately discharged its
responsibility to explain the sentence imposed with sufficient
detail to allow meaningful appellate review. See Rita v. United
States, 551 U.S. 338, 359 (2007). Morsley’s sentence is also
substantively reasonable, as the district court imposed a
within-Guidelines sentence based on a careful consideration of
the sentencing factors.
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Accordingly, we affirm Morsley and Cromwell’s
convictions and sentences. We deny Cromwell’s motion for leave
to file a pro se supplemental brief. 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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