United States v. Rogers , 383 F. App'x 337 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5046
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VINCENT SHAMONT ROGERS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:08-cr-00216-HFF-2)
Submitted: May 27, 2010 Decided: June 18, 2010
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael Chesser, Aiken, South Carolina, for Appellant.
Elizabeth Jean Howard, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vincent Shamont Rogers timely appeals the 730-month
sentence imposed following a jury trial on three counts of
robbery and aiding and abetting the same, in violation of the
Hobbs Act, 18 U.S.C. §§ 2, 1951(a) (2006) (Counts 1, 3, and 5),
and three counts of using or carrying a firearm during, and
possession of a firearm in furtherance of, a crime of violence,
and aiding and abetting the same, in violation of 18 U.S.C.
§§ 2, 924(c)(1)(A) (2006) (Counts 2, 4, and 6). Counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
questioning whether the district court erred in denying Rogers’s
Federal Rule of Criminal Procedure 29 (“Rule 29”) motion on
Counts 5 and 6 and whether Rogers’s 300-month sentence on Count
6 and overall 730-month sentence violate the Eighth Amendment.
Rogers has not filed a pro se brief, though he was informed of
his right to do so. Finding no reversible error, we affirm.
Rogers first argues that the district court erred in
denying his Rule 29 motion as to Counts 5 and 6 because no
evidence was presented showing that he participated in the
robbery charged in Count 5 as a principal or as an aider and
abettor or that he knew about the gun used in that robbery.
We review the district court’s denial of a Rule 29
motion for acquittal de novo. United States v. Perkins, 470
F.3d 150, 160 (4th Cir. 2006). A jury verdict must be upheld
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“if there is substantial evidence, viewed in the light most
favorable to the Government, to support it.” Id. We consider
both circumstantial and direct evidence, drawing all reasonable
inferences from such evidence in the Government’s favor. United
States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). However,
we “may not weigh the evidence or review the credibility of the
witnesses” because “[t]hose functions are reserved for the
jury.” United States v. Wilson, 118 F.3d 228, 234 (4th Cir.
1997) (internal citation omitted).
In Count 5, Rogers was charged with Hobbs Act robbery
of a Li’l Cricket store. In Count 6, Rogers was charged with
possession of a firearm in furtherance of that robbery. Rogers
was charged in both counts as a principal and an aider and
abettor. “Whoever commits an offense against the United States
or aids, abets, counsels, commands, induces or procures its
commission, is punishable as a principal.” 18 U.S.C. § 2.
Thus, “[s]o long as all of the elements necessary to find [the
defendant] guilty of the crime, whether as a principal or as
aider or abetter, were put before the jury, conviction will be
proper.” United States v. Rashwan, 328 F.3d 160, 165 (4th Cir.
2003). A defendant is guilty of aiding and abetting a crime
when he: (1) is “aware of the principals’ criminal intent and
the unlawful nature of their acts”; (2) “knowingly associated
himself with and participated in the criminal venture”; and
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(3) “shared in the principals’ criminal intent.” United
States v. Winstead, 708 F.2d 925, 927 (4th Cir. 1983).
The Hobbs Act proscribes robbery that “obstructs,
delays, or affects commerce or the movement of any article or
commodity in commerce.” 18 U.S.C. § 1951(a). Thus, a Hobbs Act
conviction requires the proof of two elements: “(1) the
underlying robbery or extortion crime, and (2) an effect on
interstate commerce.” United States v. Williams, 342 F.3d 350,
353 (4th Cir. 2003).
The evidence is undisputed that a robbery in fact took
place at the Li’l Cricket. Moreover, it is clear that the Li’l
Cricket robbery affected interstate commerce. Additionally,
there was testimony showing that, although Rogers did not enter
the Li’l Cricket, he remained in the car while two other men
went inside as previously planned. Further, Rogers split the
proceeds equally with his two companions. We find that, viewing
the evidence in the light most favorable to the Government,
there was sufficient evidence for the jury to conclude that
Rogers knowingly participated in the robbery and shared the
others’ criminal intent. Thus, the district court properly
denied Rogers’s Rule 29 motion with respect to Count 5.
To prove a violation of § 924(c)(1), the Government
must demonstrate either that the defendant “use[d] or carrie[d]
a firearm” “during and in relation to any crime of violence,” or
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that the defendant “possesse[d] a firearm” “in furtherance of
any such crime.” 18 U.S.C. § 924(c)(1)(A); United States v.
Stephens, 482 F.3d 669, 673 (4th Cir. 2007). To be convicted of
aiding and abetting under § 924(c), only “participation at some
stage accompanied by knowledge of the result and intent to bring
about that result” are required. United States v. Wilson, 135
F.3d 291, 305 (4th Cir. 1998) (internal quotation marks
omitted).
Testimony revealed that the Li’l Cricket robbery was
the third robbery in which Rogers was involved and, according to
one of the participants, it was only the first where Rogers was
not the gunman. When the three arrived at the Li’l Cricket,
they decided Rogers would stay in the car while the other two
entered the store. They also decided who would be the gunman
before going inside. We find that, viewing the evidence in the
light most favorable to the Government, there was sufficient
evidence for the jury to conclude that Rogers knew of the gun
and intended that it be used during, or possessed in furtherance
of, the robbery. Thus, the district court properly denied
Rogers’s Rule 29 motion with respect to Count 6.
Rogers also argues that his 300-month consecutive
sentence on Count 6 and his overall 730-month sentence
constitute cruel and unusual punishment, in violation of the
Eighth Amendment. Rogers argues that the sentence on Count 6
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violates the Eighth Amendment because the evidence showed he was
incapacitated and had no knowledge of the crime. Rogers further
argues that both the sentence on Count 6 and his overall
sentence violate the Eighth Amendment because of his young age
and lack of criminal history at the time of the offenses.
The Eighth Amendment “contains a ‘narrow
proportionality principle’ that ‘applies to noncapital
sentences.’” Ewing v. California, 538 U.S. 11, 20 (2003)
(quoting Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991)).
However, we have “held that proportionality review is not
available for any sentence less than life imprisonment without
the possibility of parole.” United States v. Ming Hong, 242
F.3d 528, 532 (4th Cir. 2001) (citing United States v. Polk, 905
F.2d 54, 55 (4th Cir. 1990)). Rogers was not in fact sentenced
to life imprisonment, so the proportionality of his sentence is
not reviewable on appeal.
In accordance with Anders, we have examined the entire
record and find no meritorious issues for appeal. We therefore
affirm the district court’s judgment. 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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