United States v. Deaton ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4425
MARK Q. DEATON,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., District Judge.
(CR-02-51)
Submitted: December 31, 2003
Decided: January 23, 2004
Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
William C. Gallagher, CASSIDY, MYERS, COGAN, VOEGELIN &
TENNANT, L.C., Wheeling, West Virginia, for Appellant. Thomas
E. Johnston, United States Attorney, Randolph J. Bernard, Robert H.
McWilliams, Jr., Assistant United States Attorneys, Wheeling, West
Virginia, for Appellee.
2 UNITED STATES v. DEATON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Mark Deaton was convicted of stealing firearms from a federal
firearms licensee, 18 U.S.C. § 922(u) (2000), possession of stolen
firearms, 18 U.S.C. § 922(j) (2000), and being an armed career crimi-
nal in possession of firearms, 18 U.S.C. § 922(g)(1) (2000). He was
sentenced as an armed career criminal to 120 months on each count.
The sentences run concurrently. Deaton appeals. Counsel has filed a
brief raising two issues. Deaton moves to file an addendum to the
brief raising additional issues. We grant the motion to file the adden-
dum and affirm.
I
On April 27, 2002, someone broke through the wall of the Outdoor
Store, a retail establishment in Wheeling, West Virginia. Nine fire-
arms were stolen.
Prior to the robbery, James Leonard met Deaton at a soup kitchen
in Martins Ferry, Ohio, and invited him to stay at his home. Leonard
drove Deaton to a place known as Cherry Hill, where Deaton
retrieved some belongings, including a red bag containing a hammer
and chisel, from beneath an abandoned car seat. Leonard testified that
Deaton always had the red bag with him. Deaton bragged to Leonard
and Maranda Burch, who also lived with Leonard, that he could get
any jewelry he wanted. He mentioned guns to Leonard. Deaton even
said that he intended to break into the Outdoor Store on the next
foggy night and to gain access using a hammer and chisel.
On April 28, Deaton contacted William Linde and informed him
that he had guns for sale, including assault-type weapons. Linde
reported the conversation to authorities, and police officers investigat-
ing the matter went to the Cherry Hill location and retrieved two of
UNITED STATES v. DEATON 3
the stolen weapons from beneath an abandoned car seat. Ohio authori-
ties notified police in Wheeling that two of the stolen guns had been
recovered and, based on their investigation, identified Deaton as a
suspect.
Also on April 28, Daniel Yanok noticed a shirtless man carrying
a red bag and a firearm with fabric draped over it. Yanok testified that
he got a clear look at the man’s face. Yanok followed the man to a
vacant lot, where the man was pacing. Again, Yanok could clearly see
the man. Yanok briefly left the scene. When he returned, the man was
fumbling through a red bag. Yanok immediately reported the incident
to the police. Wheeling police officers went to the vacant lot and
recovered five more of the stolen guns. Deaton was detained.
Approximately three weeks later, Yanok went to the police station,
where he selected Deaton’s photograph from a photographic line-up.
In October, Yanok accompanied officers to the area where he had
seen the man carrying the gun, and officers recovered the last two
stolen firearms.
II
Deaton first claims that the district court erred when it denied his
Fed. R. Crim. P. 29 motion for judgment of acquittal. He attempts to
cast doubt on the credibility of various witnesses, especially Yanok.
Specifically, Deaton contends that Yanok’s identification of him was
suspect because Yanok initially described him as having a goatee and
not wearing a shirt. Deaton did not have a goatee and was wearing
a blue shirt when police detained him.
After a de novo review, see United States v. Gallimore, 247 F.3d
134, 136 (4th Cir. 2001), we conclude that, viewing the evidence in
the light most favorable to the United States, substantial evidence
supports the verdict. See Glasser v. United States, 315 U.S. 60, 80
(1942); United States v. Stewart, 256 F.3d 231, 250 (4th Cir. 2001),
cert. denied, 535 U.S. 977 (2002). First, Yanok accurately described
Deaton, with the exception of the goatee and the shirt.* Yanok testi-
*Deaton could have retrieved a shirt from the bag he was carrying
when Yanok saw him and put the shirt on before the police entered.
4 UNITED STATES v. DEATON
fied that he had a clear view of the man with the gun who was carry-
ing a red bag. Yanok did not hesitate when selecting Deaton’s
photograph from a photo array. Yanok testified unequivocally that
Deaton was the man he saw on April 28. Finally, police found seven
of the stolen guns in the area where Yanok had seen the man. In light
of this, Yanok’s statement that the man appeared to have a goatee and
was not wearing a shirt is of little significance.
Other evidence supports the conviction. The day after the robbery,
Deaton informed Linde that he had guns for sale. Officers recovered
two stolen guns from beneath an abandoned car seat in Cherry Hill,
where Deaton had retrieved some of his possessions before going to
Leonard’s home. Deaton announced his intention to commit a robbery
and specifically mentioned the Outdoor Store. He also stated that he
intended to break into the store using a hammer and chisel. The rob-
ber gained entry to the Outdoor Store by knocking a hole in the wall.
In light of this evidence, all of which points to Deaton as the rob-
ber, Deaton’s attack on the scant evidence that might be considered
exonerating is wholly unavailing. Substantial evidence supports the
guilty verdict, and the district court correctly denied the Rule 29
motion.
III
Deaton was sentenced as an armed career criminal. On appeal, as
below, he contends that a 1992 breaking and entering conviction in
Ohio was not a violent felony for purposes of armed career criminal
status. See 18 U.S.C. § 924(e) (2000); U.S. Sentencing Guidelines
Manual § 4B1.4 (2002). The conviction was for a violation of Ohio
Rev. Code Ann. § 2113(A), which, at the time of Deaton’s conviction,
was a fourth degree felony punishable by a term of imprisonment of
six months to over one year.
The relevant statute provides, "No person by force, stealth, or
deception, shall trespass in an unoccupied structure, with purpose to
commit therein any theft offense . . . or any felony." Ohio Rev. Code
Ann. § 2113(A). The statute includes no conduct that would not con-
stitute burglary under § 924(e), and we conclude that the breaking and
entering was generic burglary. The district court properly counted the
UNITED STATES v. DEATON 5
conviction as a violent felony for purposes of § 924(e). See Taylor v.
United States, 495 U.S. 575, 602 (1990).
IV
In his addendum to his formal brief, Deaton contends that Count
III of the indictment, charging a violation of § 922(g), was deficient.
We have carefully reviewed the indictment and discern no reason to
reverse Deaton’s § 922(g) conviction on the basis of a flawed indict-
ment. See United States v. Bolden, 325 F.3d 471, 490 (4th Cir. 2003)
(setting forth requirements for valid indictment); United States v.
McDonald, 61 F.3d 248, 252 (4th Cir. 1995) (stating "[r]elief from an
erroneous indictment after a case has been decided by a petit jury is
rarely granted"), overruled on other grounds by United States v. Wil-
son, 205 F.3d 720 (4th Cir. 2000).
V
We accordingly affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED