United States v. Eric Thompson , 443 F. App'x 770 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5268
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC THOMPSON, a/k/a Derick Cannon,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Liam O’Grady, District
Judge. (3:10-cr-00128-LO-1)
Submitted: July 28, 2011 Decided: August 17, 2011
Before GREGORY, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David R. Lett, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Michael R. Gill, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Eric Thompson on four counts of
robbery affecting commerce, in violation of 18 U.S.C. § 1951
(2006), four counts of using, carrying, and possessing a firearm
in relation to the robberies, in violation of 18 U.S.C.
§ 924(c)(1) (2006), and one count of unlawful possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2006). Thompson was sentenced to a
total of 1,097 months of imprisonment.
On appeal, Thompson first challenges his convictions
for a March 24, 2010, robbery of a Family Dollar store (Count
Five) and the related firearms offense (Count Six). Thompson
contends that the Government did not sufficiently prove that he
was the person who committed the March 24 crimes because of the
lack of a definitive eyewitness identification.
When an appellant challenges the sufficiency of the
evidence, the “jury verdict must be sustained if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” United States v. Burgos, 94 F.3d
849, 862 (4th Cir. 1996) (en banc) (emphasis and internal
quotation marks omitted). “Substantial 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.” United States v. Green, 599 F.3d 360, 367
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(4th Cir.) (internal quotation marks and citation omitted),
cert. denied, 131 S. Ct. 271 (2010).
In determining whether substantial evidence supports
the verdict, “this Court must consider circumstantial as well as
direct evidence, and allow the government the benefit of all
reasonable inferences from the facts proven to those sought to
be established.” United States v. Cameron, 573 F.3d 179, 183
(4th Cir. 2009) (internal quotation marks and citations
omitted). “[A]ppellate reversal on grounds of insufficient
evidence . . . will be confined to cases where the prosecution’s
failure is clear.” Green, 599 F.3d at 367 (internal quotation
marks and citation omitted). Thompson’s counsel objected to the
sufficiency of the evidence at trial, but the district court
found sufficient evidence to submit the matter to the jury.
Thus, we review the sufficiency of the evidence de novo. Green,
599 F.3d at 367. After reviewing the record, we easily conclude
that substantial evidence supports the jury’s convictions of
Thompson on Counts Five and Six.
Thompson next asserts that the district court erred
when it overruled his objection to the Government’s exercise of
a peremptory challenge to strike a black male juror. When
defense counsel raised a challenge pursuant to Batson v.
Kentucky, 476 U.S. 79 (1986) to the use of a peremptory strike
to remove the juror, the Government denied discriminatory intent
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and explained that it struck the juror because he seemed
distant, inattentive, and disengaged. The district court
overruled the objection.
The use of a peremptory challenge for a racially
discriminatory purpose offends the Equal Protection Clause.
Batson, 476 U.S. at 84-90. The trial court’s resolution of a
Batson challenge is largely a credibility determination, and
thus this court gives “great deference” to the trial court’s
findings as to whether a Batson violation occurred, and reviews
its findings for clear error. Green, 599 F.3d at 377; United
States v. Farrior, 535 F.3d 210, 221 (4th Cir. 2008).
A three-step process is used to analyze a Batson
claim. First, the party opposing the strike must make a prima
facie showing that the opposing party exercised the strike on
the basis of race. Batson, 476 U.S. at 96-97. The burden then
shifts to the party exercising the strike to offer a racially
neutral explanation for removing the juror in question. Id. at
97-98. When conducting this analysis, “the decisive question
[is] whether counsel’s race-neutral explanation . . . should be
believed.” Hernandez v. New York, 500 U.S. 352, 365 (1991).
Once the neutral explanation is presented, the
complaining party must prove purposeful discrimination. Batson,
476 U.S. at 98. A movant may show purposeful discrimination by
demonstrating that the opposing party’s explanation is a mere
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pretext for racial discrimination. Farrior, 535 F.3d at 221.
The party must “show both that [counsel’s stated] reasons were
merely pretextual and that race was the real reason for the
strike.” United States v. McMillon, 14 F.3d 948, 953 (4th Cir.
1994) (emphasis in original). In making this showing, the party
“‘may rely on all relevant circumstances to raise an inference
of purposeful discrimination.’” Golphin v. Branker, 519 F.3d
168, 179 (4th Cir. 2008) (quoting Miller-El v. Dretke, 545 U.S.
231, 240 (2005)).
Thompson failed to establish a prima facie case that
the Government exercised the peremptory challenge on the basis
of race. A prima facie case does not arise merely because a
racial minority has been struck from the venire. Farrior, 535
F.3d at 221. Moreover, the Government offered the prospective
juror’s disinterest and lack of attentiveness as a race-neutral
reason for its challenge. “A prosecutor is justified in
striking jurors that he or she perceives to be inattentive or
uninterested.” United States v. Garrison, 849 F.2d 103, 106
(4th Cir. 1988). Thompson failed to show that the proffered
reason was pretextual. Therefore, we conclude that the district
court did not clearly err in overruling the Batson objection.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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