United States v. Bryant ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4393
MONTIQUA JARVELL BRYANT,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
David A. Faber, Chief District Judge, sitting by designation.
(CR-02-215)
Submitted: February 27, 2004
Decided: April 6, 2004
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
J. Michael Mills, MILLS & WILLEY, New Bern, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BRYANT
OPINION
PER CURIAM:
Montiqua Jarvell Bryant was convicted of witness tampering, in
violation 18 U.S.C. § 1512(b)(3) (2000), and making a false statement
to a federal agent, in violation of 18 U.S.C. § 1001 (2000). On appeal,
he alleges the district court erred in denying his Fed. R. Crim. P. 29
motion for acquittal. He also claims the district court improperly
applied the cross-reference provision in the United States Sentencing
Guidelines, § 2B1.1(c)(3) (2002).
Where, as here, a motion for acquittal was based on insufficient
evidence, "[t]he verdict of a jury must be sustained if there is substan-
tial evidence, taking the view most favorable to the Government, to
support it." Glasser v. United States, 315 U.S. 60, 80 (1942).
Bryant argues that when he told Ricky Carraway that if anyone
asked about the gun purchases to say that he did not know anything,
he was merely instructing Carraway to tell the truth. Bryant further
argues that he did not make a false statement to a federal agent
because he did not know William Boyd by his proper name or by the
name "Cheeseburger." We must assume that the jury resolved these
issues in the Government’s favor. See United States v. Wilson, 115
F.3d 1185, 1190 (4th Cir. 1997). We find that there is substantial evi-
dence, taking the view most favorable to the Government, to support
the jury’s verdict. United States v. Glasser, 315 U.S. at 80.
Bryant next argues that the application of the USSG § 2B1.1(c)(3)
cross-reference was in error. We review de novo a district court’s
legal interpretation of a guideline. United States v. Souther, 221 F.3d
626, 628 (4th Cir. 2000).
Bryant was convicted of violating 18 U.S.C. § 1001 by making a
false statement to a federal agent "in connection with the investigation
of various firearms offenses, including straw purchases and interstate
transportation of firearms." (J.A., Vol. I at 18). For such a violation,
USSG § 2B1.1 provides the applicable guideline offense level. See
USSG App. A; USSG § 2B1.1.
UNITED STATES v. BRYANT 3
In pertinent part, USSG § 2B1.1(c)(3) provides that if "the defen-
dant was convicted under a statute proscribing false, fictitious, or
fraudulent statements or representations generally (e.g., 18 U.S.C.
§ 1001 . . .); and [ ] the conduct set forth in the count of conviction
establishes an offense specifically covered by another guideline in
Chapter Two (Offense Conduct), apply that other guideline." USSG
§ 2B1.1(c)(3). The introduction of the indictment, Count One, and
Count Two all reference Bryant’s involvement with firearm offenses.
Therefore, the probation officer applied the guidelines for firearm vio-
lations under USSG § 2K2.1. Since Bryant’s conduct, as set forth in
the count of conviction, established a firearm offense specifically cov-
ered in USSG § 2K2.1, the district court correctly adopted the proba-
tion officer’s application of the cross-reference. See USSG
§ 2B1.1(c)(3).
Finding no error, we affirm. 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