United States v. Mumford ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 00-4088
HERNANDEZ DEVON MUMFORD, a/k/a
Fruit,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Malcolm J. Howard, District Judge.
(CR-99-37)
Submitted: August 30, 2000
Decided: September 11, 2000
Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Robert J. McAfee, McCOTTER, McAFEE & ASHTON, P.L.L.C.,
New Bern, North Carolina, for Appellant. Janice McKenzie Cole,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Hernandez Devon Mumford appeals from his conviction and sen-
tence for assaulting a postmaster with intent to rob, and aiding and
abetting, in violation of 18 U.S.C.A. §§ 2114(a), 2 (West Supp. 2000)
(Count One), and using and carrying a firearm during and in relation
to a violent crime, and aiding and abetting, in violation of 18
U.S.C.A. §§ 924(c), 2 (West Supp. 2000) (Count Two). The district
court sentenced Mumford to a 100-month term of imprisonment on
Count One and a consecutive sixty-month term of imprisonment on
Count Two, and five years' supervised release. The district court fur-
ther ordered Mumford to pay a $4,000 fine and restitution of
$2,169.61. On appeal, Mumford claims insufficiency of the evidence
such that the district court erred in denying his motion for judgment
of acquittal, and also raises three sentencing issues. We affirm Mum-
ford's conviction and sentence.
In evaluating a sufficiency of the evidence challenge, the jury ver-
dict must be upheld if there exists substantial evidence, including cir-
cumstantial and direct evidence, to support the verdict, viewing the
evidence most favorable to the government. See Glasser v. United
States, 315 U.S. 60, 80 (1942); United States v. Tresvant, 677 F.2d
1018, 1021 (4th Cir. 1982). In resolving issues of substantial evi-
dence, this court does not weigh evidence or review witness credibil-
ity, see United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989),
rather, the credibility of witnesses is within the sole province of the
jury. See United States v. Lamarr, 75 F.3d 964, 973 (4th Cir. 1996);
see also United States v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984).
This court may reverse a jury verdict only when there is a complete
absence of probative facts to support the jury's conclusions, see Sher-
rill White Constr., Inc. v. South Carolina Nat'l Bank, 713 F.2d 1047,
1050 (4th Cir. 1983), and this court previously has held that even the
uncorroborated testimony of an accomplice may be sufficient to sus-
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tain a conviction. See United States v. Burns , 990 F.2d 1426, 1439
(4th Cir. 1993).
Mumford testified at trial that he never assisted anyone plan or
commit the robbery, never handled the stolen money orders, and was
home sleeping during the commission of the crimes charged. Our
review of the record reveals ample contrary evidence that Mumford
participated in every phase of these crimes, including planning the
robbery, conducting surveillance on the Post Office prior to the rob-
bery, discussing how to cash the stolen money orders, and obtaining
the gun used in the robbery. Mumford's arguments that the govern-
ment's witnesses were incredible or biased, or that there was ample
evidence to support the finding that he was, at most, a "knowing spec-
tator," do not form the basis of reversal. See Saunders, 886 F.2d at
60; United States v. Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989).
Mumford also alleges error in the calculation of the amount of loss,
claiming that the district court's assignment of a $100 value per unre-
covered blank money order was speculative. The district court's
determination of the amount of loss is a factual issue reviewed under
the clearly erroneous standard. See United States v. Rothberg, 954
F.2d 217, 219 (4th Cir. 1992). Based on the evidence presented at trial
as to the full value for which each of the forty-three money orders
could have been cashed, including the profit gained from the money
orders which were negotiated, the least of which was $100, we find
no clear error in the district court's conservative assessment of the
value of loss.
Mumford next claims entitlement to a role reduction because he
was a minor participant in the offense. We find that the district court's
findings that Mumford was actively involved in the planning of the
Count One offense and in obtaining the gun used in the robbery were
fully supported by the evidence.
Mumford's final claim, that the district court erred in its determina-
tion that he committed perjury at trial, is reviewable for plain error
because Mumford failed to lodge this objection in the district court.
See United States v. Olano, 507 U.S. 725, 732-37 (1993). We have
reviewed the district court's findings concerning the obstruction of
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justice enhancement and find no clear error in its compliance with
United States v. Dunnigan, 507 U.S. 87 (1993).
Accordingly, we affirm Mumford's conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the Court and argu-
ment would not aid the decisional process.
AFFIRMED
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