UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4582
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY EUGENE LINGENFELTER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:10-cr-00153-RAJ-TEM-1)
Submitted: March 22, 2012 Decided: April 2, 2012
Before KING, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael D. Kmetz, Norfolk, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Stephen W. Haynie, Assistant
United States Attorney, Elizabeth B. Fitzwater, Special
Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Eugene Lingenfelter appeals his convictions by
jury and his 330-month aggregate sentence for his role in hiring
a longtime friend to murder his ex-wife. After thoroughly
examining the record and the contentions of the parties, we
affirm.
Lingenfelter first contends that, during his trial,
the district court improperly limited his ability to cross-
examine two prosecution witnesses, thereby violating his rights
under the Confrontation Clause. We disagree. “[T]he
Confrontation Clause guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.”
Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)
(emphasis in original). Thus, “[i]t is elementary that trial
judges possess wide latitude to impose reasonable limits on
cross-examination, based on concerns including harassment,
prejudice, confusion of the issues, repetition, or marginal
relevance.” United States v. Turner, 198 F.3d 425, 429 (4th
Cir. 1999) (citing Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986)). See also United States v. Bodden, 736 F.2d 142, 145
(4th Cir. 1984).
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In this case, the district court permitted
Lingenfelter an opportunity for a “substantial and thorough
examination” of both of the witnesses at issue, which is all the
Confrontation Clause requires. Turner, 198 F.3d at 430; United
States v. Owens, 484 U.S. 554, 559 (1988). Indeed, although
Lingenfelter complains about the time limit imposed by the
district court on his cross-examination of one of the witnesses,
nowhere does he indicate any avenue of questioning or line of
inquiry that was foreclosed by the district court’s conduct.
Cf. United States v. Nelson, 39 F.3d 705, 708 (7th Cir. 1994)
(holding that once defendants have been permitted to cross-
examine on relevant grounds, “it is of peripheral concern to the
Sixth Amendment how much opportunity defense counsel gets to
hammer that point home to the jury”). Under these
circumstances, we can only conclude that any error committed by
the district court with respect to either witness was harmless.
See Turner, 198 F.3d at 430; Wiggins v. Boyette, 635 F.3d 116,
121-22 (4th Cir.), cert. denied, 132 S. Ct. 214 (2011).
Lingenfelter next claims that the district court erred
in denying his motion alleging that his convictions of both
conspiracy and for substantive offenses under 18 U.S.C.
§ 1958(a) (2006) violated his double jeopardy rights. This
court reviews questions of double jeopardy de novo. United
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States v. Goodine, 400 F.3d 202, 206 (4th Cir. 2005); United
States v. Brown, 202 F.3d 691, 703 (4th Cir. 2000).
By its own terms, § 1958(a) criminalizes anyone
(a) who uses interstate commerce facilities or causes another to
do so with intent that a murder be committed, or (b) “who
conspires to do so.” Id. As we have observed elsewhere, “the
‘settled principle’ that ‘the commission of the substantive
offense and a conspiracy to commit it are separate and distinct
offenses’ does not give way simply because the statute
describing the substantive offense also specifically prohibits
conspiracies.” United States v. Chandia, 514 F.3d 365, 372 (4th
Cir. 2008) (quoting Callanan v. United States, 364 U.S. 587, 593
(1961)). And, as is well-established, a conviction for the
substantive offense does not bar a conviction for conspiracy to
commit that offense “[b]ecause the former require[s] proof the
substantive crime was actually committed while the latter does
not, and the latter requires proof of agreement but the former
do[es] not.” United States v. Robinson, 627 F.3d 941, 958 (4th
Cir. 2010) (citing Blockburger v. United States, 284 U.S. 299,
304 (1932)).
Here, Count One of the indictment charged Lingenfelter
with conspiracy under § 1958(a). Counts Two and Three charged
him with substantive violations of § 1958(a) for two separate
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courses of conduct: on or about April 19, 2010, and on or about
June 27, 2010, respectively. Because § 1958(a) does not
preclude conviction of both offenses that it describes on the
basis of a single course of conduct, and because each offense
with which Lingenfelter was charged required proof of an element
that the others did not, the Double Jeopardy Clause does not
insulate Lingenfelter from conviction on all counts of the
indictment. United States v. Johnson, 219 F.3d 349, 358-59 (4th
Cir. 2000).
Finally, Lingenfelter claims that he was erroneously
accorded a 2-point leadership enhancement under U.S. Sentencing
Guidelines Manual (“USSG”) § 3B1.1(c). This Court reviews a
sentence for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). In
assessing whether a sentencing court properly applied the
Guidelines, the district court’s factual findings are reviewed
for clear error and its legal conclusions are reviewed de novo.
United States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008).
Our review of the record persuades us that Lingenfelter fully
merited a sentencing enhancement under § 3B1.1. See USSG
§ 3B1.1 cmt. n.4; United States v. Cameron, 573 F.3d 179, 184
(4th Cir. 2009).
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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 material
before the court and argument will not aid the decisional
process.
AFFIRMED
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