United States v. Whitfield , 314 F. App'x 554 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4335
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDRE D. WHITFIELD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:07-cr-00300-HEH-1)
Submitted: November 18, 2008 Decided: December 1, 2008
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Steven P. Hanna, Richmond, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Stephen W. Miller, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre D. Whitfield was convicted of: two counts of
using a communication facility to facilitate a drug offense;
possession with intent to distribute cocaine base; attempted
distribution of cocaine base; possession of a firearm in
furtherance of a drug trafficking crime; and possession of a
firearm by a person previously convicted of domestic violence.
He received a 192-month sentence. Whitfield now appeals his
convictions, arguing that the district court erred when it
rejected his Batson v. Kentucky, 476 U.S. 79 (1986), challenge
to the Government’s peremptory strikes of three black jurors.
We affirm.
Under Batson, the use of a peremptory challenge for a
racially discriminatory purpose offends the Equal Protection
Clause. Id. We give “great deference” to the trial court’s
findings as to whether a Batson violation occurred, and we
review the court’s findings for clear error. Jones v. Plaster,
57 F.3d 417, 421 (4th Cir. 1995).
A three-step process is used to analyze a Batson
claim:
First, the defendant must make a prima facie showing
that the prosecutor has exercised peremptory
challenges on the basis of race. Second, if the
requisite showing has been made, the burden shifts to
the prosecutor to articulate a race-neutral
explanation for striking the jurors in question.
Finally, the trial court must determine whether the
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defendant has carried his burden of proving purposeful
discrimination.
Hernandez v. New York, 500 U.S. 352, 358-59 (1991) (citations
omitted). When conducting this analysis, “the decisive question
[is] whether counsel’s race-neutral explanation . . . should be
believed.” Id. at 365.
At the second step, both age and occupation are
legitimate, race-neutral reasons to strike a juror. Smulls v.
Roper, 535 F.3d 853, 867 (8th Cir. 2008) (occupation); United
States v. Grimmond, 137 F.3d 823, 834 (4th Cir. 1998) (age);
United States v. Miller, 939 F.2d 605, 609 (9th Cir. 1991).
Here, the prosecutor stated that she struck a black female juror
because she was twenty-two, and the prosecutor wanted only
jurors who were twenty-five or older. The prosecutor cited
occupation as the reason she struck two black males: she wanted
no teachers, social workers, or nurses on the jury. One of the
struck jurors was a teacher, and the other was a social worker.
By articulating race-neutral reasons for the strikes, the
Government satisfied its burden at the second step of the
analysis.
At the third step, the trial court’s duty is to
determine whether the Government’s race-neutral reason for a
strike is “a pretext for discrimination.” United States v.
Farrior, 535 F.3d 210, 221 (4th Cir. 2008). The defendant must
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“show both that [the Government’s stated reasons for a strike]
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). In making this showing, the “‘defendant 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)).
Here, Whitfield did not challenge the Government’s
race-neutral explanation for striking the young female juror.
The failure to argue pretext after the challenged strike has
been explained constitutes a waiver of the initial Batson
objection. See Davis v. Baltimore Gas & Elec. Co., 160 F.3d
1023, 1027 (4th Cir. 1998). Even if there was no waiver,
Whitfield did not identify a similarly situated venire member of
a different race who was not peremptorily challenged, see
Golphin, 519 F.3d at 179-80, or otherwise establish that race
was the real reason for the strike. Similarly, he failed to
meet his burden with respect to the two male jurors.
Because the district court did not clearly err in
rejecting Whitfield’s Batson challenge, we affirm. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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