United States v. Gordie Penson , 684 F. App'x 297 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4092
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GORDIE LEROY PENSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Asheville. Martin K. Reidinger, District Judge. (1:15-cr-00007-MR-DLH-1)
Submitted: March 21, 2017 Decided: April 5, 2017
Before DUNCAN, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles R. Brewer, Asheville, North Carolina, for Appellant. Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gordie Leroy Penson appeals his convictions for Hobbs Act robbery, in violation
of 18 U.S.C. § 1951(a) (2012); knowingly and unlawfully discharging a firearm in
furtherance of a crime of violence (Hobbs Act robbery), in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii) (2012); and being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1) (2012). After consideration of Penson’s claims, we affirm.
Penson first argues that the district court plainly erred when it failed to require the
Government to comply with the court’s discovery order and disclose exculpatory
evidence in accordance with Brady v. Maryland, 373 U.S. 83 (1963). Because Penson
did not raise this objection below, our review is for plain error. To establish plain error,
Penson must show that (1) an error exists, (2) the error is plain, and (3) the error affects
his substantial rights. United States v. Olano, 507 U.S. 725, 732-34 (1993). If a
defendant satisfies those conditions, then we may exercise our discretion to correct the
error if it “seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. at 732 (alterations and internal quotation marks omitted).
In order to prove a Brady violation, (1) “[t]he evidence at issue must be favorable
to the accused, either because it is exculpatory, or because it is impeaching”; (2) “that
evidence must have been suppressed by the [s]tate, either willfully or inadvertently”; and
(3) the evidence must be material. Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see
id. at 280. Here, Penson does not identify any favorable evidence that the Government
failed to disclose, nor does he show how such evidence might be material to his case. See
United States v. Caro, 597 F.3d 608, 619 (4th Cir. 2010) (“Because [defendant] can only
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speculate as to what the requested information might reveal, he cannot satisfy Brady’s
requirement of showing that the requested evidence would be favorable to [him].”).
Thus, we reject this claim.
Penson further argues that comments the Government made during closing
argument prejudiced him. Our review is for plain error. For claims of prosecutorial
misconduct during closing argument, “an appellant must show that the remarks were
improper and that they prejudicially affected the defendant’s substantial rights so as to
deprive [him] of a fair trial.” United States v. Rand, 835 F.3d 451, 465 (4th Cir.)
(internal quotation marks omitted) (stating factors courts consider), cert. denied, 137 S.
Ct. 525 (2016).
Penson does not show that the district court plainly erred when it allowed the
Government to comment during closing argument regarding possible ownership of a cell
phone found near the scene of the robbery. Assuming arguendo that the Government’s
comments relating to information retrieved from the cell phone were improper, Penson
does not establish prejudice. Absent the remarks about the cell phone, the remaining
evidence at trial, particularly when viewed in the light most favorable to the Government,
established Penson’s guilt. Thus, the district court did not plainly err.
Penson also argues that the Government presented insufficient evidence to identify
him as the robber, so the district court erred when it submitted his case to the jury. “In
evaluating the sufficiency of the evidence to support a criminal conviction, we must
determine—viewing the evidence and all of the inferences reasonably to be drawn from it
in the light most favorable to the Government—whether a reasonable trier of fact could
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have found the defendant guilty beyond a reasonable doubt.” United States v. Hughes,
401 F.3d 540, 544-45 (4th Cir. 2005) (internal quotation marks omitted). “[I]n
sufficiency challenges our focus is the complete picture that the evidence presents.”
United States v. Strayhorn, 743 F.3d 917, 921-22 (4th Cir. 2014) (internal quotation
marks omitted). Penson bears a heavy burden, as “[a]ppellate reversal on grounds of
insufficient evidence . . . [is] confined to cases where the prosecution’s failure is clear.”
United States v. Clarke, 842 F.3d 288, 297 (4th Cir. 2016) (citations and internal
quotation marks omitted).
Contrary to Penson’s assertion on appeal, the Government established an effect on
interstate commerce through a stipulation of that element by the parties. Additionally,
the record refutes Penson’s contention that the evidence did not prove he committed the
robbery. The evidence presented at trial showed the following: within minutes of the
robbery, officers found Penson hiding in trees and bushes on the property of the
restaurant that was robbed; eyewitnesses saw Penson leave the restaurant and run toward
the trees and bushes; officers found a bag containing a .45-caliber pistol near Penson and
ammunition inside the restaurant’s office; Penson tested positive for gunshot residue on
his hands at the time of his arrest; officers found near Penson a large amount of cash and
clothing consistent with the eyewitnesses’ descriptions of the robber’s attire; and officers
found cell phones with connections to Gordie Penson near the scene of the crime. When
viewed in the light most favorable to the Government, even in the absence of DNA or
fingerprint evidence, the jury could reasonably conclude that Penson was the person who
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robbed the restaurant. Thus, the district court did not plainly err by submitting the case to
the jury.
Finally, Penson argues that trial counsel provided ineffective assistance by failing
to raise objections in the district court, which resulted in this court reviewing his claims
for plain error. Unless an attorney’s ineffectiveness conclusively appears on the face of
the record, ineffective assistance claims are not generally addressed on direct appeal.
United States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014). Instead, such claims
should be raised in a motion brought pursuant to 28 U.S.C. § 2255 (2012), in order to
permit sufficient development of the record. United States v. Baptiste, 596 F.3d 214, 216
n.1 (4th Cir. 2010). Because the record does not conclusively establish ineffective
assistance of counsel, see Strickland v. Washington, 466 U.S. 668, 688 (1984) (providing
standard), we decline to review this claim on direct appeal.
Accordingly, 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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