United States v. Macklin , 82 F. App'x 849 ( 2003 )


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  •                           UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.                               No. 03-4240
    BERTINA MACKLIN,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Richmond.
    Richard L. Williams, Senior District Judge.
    (CR-02-94)
    Submitted: November 26, 2003
    Decided: December 19, 2003
    Before SHEDD and DUNCAN, Circuit Judges, and
    HAMILTON, Senior Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    COUNSEL
    Craig W. Sampson, SAMPSON LAW FIRM, P.L.C., Richmond, Vir-
    ginia, for Appellant. Sara Elizabeth Flannery, OFFICE OF THE
    UNITED STATES ATTORNEY, Richmond, Virginia; Captain Ran-
    dall Warrick Bentley, OFFICE OF THE JUDGE ADVOCATE, Fort
    Lee, Virginia, for Appellee.
    2                     UNITED STATES v. MACKLIN
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Bertina Macklin appeals her convictions and 120-month sentence
    for assault with intent to commit murder, a violation of 
    18 U.S.C. § 113
    (a)(1) (2000); assault with a dangerous weapon, a violation of
    
    18 U.S.C. § 113
    (a)(3) (2000); and assault resulting in serious bodily
    injury, a violation of 
    18 U.S.C. § 113
    (a)(6) (2000). Counsel for Mack-
    lin has filed a brief in accordance with Anders v. California, 
    386 U.S. 738
     (1967), in which he states there are no meritorious grounds for
    an appeal, but presenting three issues for review. Although notified
    of her right to file a supplemental brief, Macklin has not done so. The
    Government declined to file a brief.
    First, Macklin contends that the evidence at trial was insufficient
    to support the jury’s verdicts. In determining whether sufficient evi-
    dence supports a conviction, the appropriate inquiry is whether, tak-
    ing the evidence in the light most favorable to the government, any
    reasonable trier of fact could have found the defendant guilty beyond
    a reasonable doubt. See Glasser v. United States, 
    315 U.S. 60
    , 80
    (1942). This court "must consider circumstantial as well as direct evi-
    dence, and allow the Government the benefit of all reasonable infer-
    ences from the facts proven to those sought to be established." United
    States v. Tresvant, 
    677 F.2d 1018
    , 1021 (4th Cir. 1982). The jury ver-
    dict must be upheld if there is substantial evidence to support it. See
    id.; see also United States v. Murphy, 
    35 F.3d 143
    , 148 (4th Cir.
    1994). A defendant challenging the sufficiency of the evidence faces
    a heavy burden. See United States v. Beidler, 
    110 F.3d 1064
    , 1067
    (4th Cir. 1997). With these standards in mind, and after reviewing the
    record, we conclude that the evidence was sufficient to support Mack-
    lin’s convictions.
    Next, Macklin objects to the district court’s refusal to depart down-
    ward at sentencing on the grounds of Macklin’s physical health, the
    UNITED STATES v. MACKLIN                         3
    victim’s conduct, and because she asserts that this case presents
    unusual circumstances not taken into consideration in the formulating
    of the Sentencing Guidelines. Because Macklin has not shown that
    the district court’s refusal to depart was based on a mistaken belief
    that it lacked the authority to do so, see United States v. Bayerle, 
    898 F.2d 28
    , 30-31 (4th Cir. 1990), we find that the district court’s deci-
    sion is not subject to appellate review.
    Finally, Macklin contests the district court’s decision to allow the
    admission of evidence of other acts, pursuant to Fed. R. Evid. 404(b).
    Macklin argues that the Government’s notice to her of its intent to use
    this evidence came unreasonably late. We disagree. Moreover, this
    court reviews a district court’s determination of the admissibility of
    evidence under Rule 404(b) for an abuse of discretion. See United
    States v. Queen, 
    132 F.3d 991
    , 995 (4th Cir. 1997). We conclude that
    the district court did not abuse its discretion.
    In accordance with Anders, we have reviewed the entire record in
    this case and have found no meritorious issues for appeal. We there-
    fore affirm Macklin’s convictions and sentence. This court requires
    that counsel inform his client, in writing, of her right to petition the
    Supreme Court of the United States for further review. If the client
    requests that a petition be filed, but counsel believes that such a peti-
    tion 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.
    We dispense with oral argument because the facts and legal conten-
    tions are adequately presented in the materials before the court and
    argument would not aid the decisional process.
    AFFIRMED