United States v. Rodney Clegg ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4232
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RODNEY CORNELIUS CLEGG,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:14-cr-00379-CCE-1)
Submitted: November 30, 2015 Decided: January 6, 2016
Before NIEMEYER, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Duberstein,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. JoAnna Gibson McFadden, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodney Cornelius Clegg appeals his conviction following a
jury trial for possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2012), and his resulting 37-
month sentence. Clegg’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), concluding that there
are no meritorious issues for appeal but questioning whether the
court erred in admitting certain evidence, whether the jury
instructions were erroneous, whether the court erred in
upholding the jury’s verdict, and whether Clegg’s sentence is
reasonable. Although notified of his right to do so, Clegg has
not filed a pro se supplemental brief. After careful
consideration of the entire record, we affirm.
First, counsel questions whether the court erred in
admitting into evidence photographs from Clegg’s Facebook
profile. We review evidentiary rulings for abuse of discretion
and “will only overturn a ruling that is arbitrary and
irrational.” United States v. Hassan, 742 F.3d 104, 130 (4th
Cir.) (alteration and internal quotations marks omitted), cert.
denied, 135 S. Ct. 157 (2014). We conclude that the court did
not abuse its discretion in admitting the challenged
photographs.
Next, counsel questions whether the district court erred in
instructing the jury. Clegg did not object to the instructions
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in the district court, and we therefore review only for plain
error. United States v. Olano, 507 U.S. 725, 731-32 (1993).
The Anders brief fails to question any particular instruction
and the record is devoid of any dispute about the jury
instructions. Thus, we find that Clegg has failed to establish
plain error.
Counsel also questions whether the court erred by upholding
the jury’s verdict despite Clegg’s motion for acquittal. We
review the denial of a motion for acquittal de novo. United
States v. Said, 798 F.3d 182, 193 (4th Cir. 2015). The jury
verdict must be sustained if, when “viewing the evidence in the
light most favorable to the government, there is substantial
evidence in the record to support the verdict.” United States
v. Cornell, 780 F.3d 616, 630 (4th Cir.) (internal quotation
marks omitted), cert. denied, 136 S. Ct. 127 (2015).
“[S]ubstantial 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).
We conclude that the Government presented substantial
evidence as to the disputed element of the offense. The parties
stipulated to all of the elements except Clegg’s knowing
possession of the firearm, and the Government’s photographic
evidence and eyewitness testimony that Clegg possessed and
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discharged a firearm constituted sufficient evidence on the
knowing possession element. To the extent that Clegg is also
challenging the court’s denial of his motion for a mistrial, we
have reviewed the record and conclude that the court did not
err.
Finally, counsel questions whether Clegg’s sentence is
reasonable. We review a sentence for reasonableness, applying
“a deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). In determining whether a
sentence is procedurally reasonable, we consider whether the
district court properly calculated the applicable advisory
Guidelines range, gave the parties an opportunity to argue for
an appropriate sentence, considered the 18 U.S.C. § 3553(a)
(2012) factors, and sufficiently explained the selected
sentence. Id. at 49-51. If we find no significant procedural
error, we examine the substantive reasonableness of the sentence
under “the totality of the circumstances.” Id. at 51.
When a sentence is above the applicable Sentencing
Guidelines range, we consider “whether the sentencing court
acted reasonably both with respect to its decision to impose
such a sentence and with respect to the extent of the divergence
from the sentencing range.” United States v. Washington, 743
F.3d 938, 944 (4th Cir. 2014) (internal quotation marks
omitted). “A major departure from the advisory range should be
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supported by a more significant justification than a minor one.”
United States v. Morace, 594 F.3d 340, 346 (4th Cir. 2010)
(internal quotation marks omitted).
We conclude that Clegg’s sentence is both procedurally and
substantively reasonable. The district court correctly
calculated Clegg’s Sentencing Guidelines range. The court also
considered Clegg’s oral objection and the parties’ arguments
before issuing its sentence. Further, although the court
elected to vary upward by three months from the top of the
applicable Guidelines range, the court’s decision to vary and
the extent of the variance were well-reasoned.
In accordance with Anders, we have reviewed the entire
record in this case for meritorious issues and have found none.
Accordingly, we affirm Clegg’s conviction and sentence. This
court requires that counsel inform Clegg, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Clegg requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client.
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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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