United States v. Stephen Rosenberg , 457 F. App'x 340 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4677
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STEPHEN H. ROSENBERG,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:09-cr-00765-CMC-1)
Submitted: November 30, 2011 Decided: December 15, 2011
Before MOTZ, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joshua Snow Kendrick, JOSHUA SNOW KENDRICK, PC, Columbia, South
Carolina, for Appellant. Dean A. Eichelberger, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Stephen Rosenberg of one count of
transmitting in interstate commerce a communication containing a
threat, in violation of 18 U.S.C. § 875(c) (2006), and one count
of attempting to influence an officer of the court by a
threatening letter or communication, in violation of 18 U.S.C.
§ 1503(a) (2006). The district court sentenced Rosenberg to
sixty-five months in prison, and Rosenberg timely appealed.
Rosenberg’s counsel filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), stating that, in counsel’s
view, there are no meritorious issues for appeal, but
questioning whether the district court erred in limiting the
scope of the questioning of United States District Judge Perry,
a proposed trial witness, and whether the sentence was
reasonable. Rosenberg filed a pro se supplemental brief
reiterating the claim regarding Judge Perry’s questioning and
challenging the sufficiency of the evidence. The Government
declined to file a responsive brief.
First, counsel and Rosenberg question whether the
district court erred in limiting the scope of the questions
Rosenberg could have asked Judge Perry if he had been called as
a witness. This court reviews a district court’s evidentiary
rulings for abuse of discretion and will overturn an evidentiary
ruling only if it is arbitrary and irrational. United States v.
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Cole, 631 F.3d 146, 153 (4th Cir. 2011). A district court, in
its discretion, may exercise reasonable control over the
interrogation of witnesses and the presentation of evidence in
order to allow the effective ascertainment of the truth, to
avoid needless waste of time, and to protect a witness from
harassment. Fed. R. Evid. 611(a). A district court’s rulings
as to the examination of a witness do not abridge a defendant’s
right to present a defense unless they are arbitrary or
disproportionate to the purposes they are designed to serve.
United States v. Scheffer, 523 U.S. 303, 308 (1998). After
reviewing the record we conclude that the district court’s
decision to limit the scope of questions Rosenberg could ask
Judge Perry was neither arbitrary nor irrational and, therefore,
the district court did not abuse its discretion by imposing such
a limitation. Further, Rosenberg’s failure to call Judge Perry
as a witness prevents us from assessing the impact of the trial
court’s ruling.
Counsel also questions whether the district court’s
chosen sentence of sixty-five months was reasonable. We review
sentences for reasonableness under an abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007); see
also United States v. Pauley, 511 F.3d 468, 473-74 (4th Cir.
2007). The first step in this review requires us to assess
procedural reasonableness by ensuring that the district court
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committed no significant procedural errors, such as improperly
calculating the Guidelines range or failing to consider the 18
U.S.C. § 3553(a) (2006) factors. United States v. Boulware, 604
F.3d 832, 837-38 (4th Cir. 2010). We then consider the
substantive reasonableness of the sentence imposed, taking into
account the totality of the circumstances. Gall, 552 U.S. at
51. We presume that a sentence within a properly-calculated
Guidelines range is reasonable. United States v. Allen, 491
F.3d 178, 193 (4th Cir. 2007). That presumption may be rebutted
by a showing “that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted). A thorough review of the record leads us to conclude
that Rosenberg’s sentence was both procedurally and
substantively reasonable.
In accordance with Anders, we have reviewed
Rosenberg’s pro se claims and the record in this case and have
found no meritorious issues for appeal. The district court did
not err in permitting Rosenberg to represent himself, or in
finding he was competent to stand trial. The evidence was
sufficient to support the jury’s verdict. We therefore affirm
Rosenberg’s conviction and sentence. This court requires that
counsel inform Rosenberg, in writing, of the right to petition
the Supreme Court of the United States for further review. If
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Rosenberg 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 Rosenberg.
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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