United States v. Chappell , 81 F. App'x 448 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4266
HENRY CHAPPELL,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Beaufort.
Sol Blatt, Jr., Senior District Judge.
(CR-01-611-1)
Submitted: September 29, 2003
Decided: November 21, 2003
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
J. Robert Haley, Assistant Federal Public Defender, Charleston, South
Carolina, for Appellant. J. Strom Thurmond, Jr., United States Attor-
ney, Lee E. Berlinsky, Assistant United States Attorney, Charleston,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. CHAPPELL
OPINION
PER CURIAM:
Henry Chappell appeals his seventy-five month sentence for pos-
sessing a shotgun despite a prior felony conviction, in violation of 18
U.S.C. § 922(g)(1) (2000), following a jury trial. On appeal, Chappell
argues the district court erred by denying his motion for new trial and
by applying an offense level enhancement for obstruction of justice
under U.S. Sentencing Guidelines Manual § 3C1.1 (2002). For the
following reasons, we affirm.
We find no abuse of discretion in the district court’s denial of
Chappell’s motion for new trial. See United States v. Singh, 54 F.3d
1182, 1190 (4th Cir. 1995) (providing standard). Chappell’s motion
was predicated on evidence that he contends demonstrates a fatal flaw
in the theory of the case advanced by the United States during closing
argument. However, we are not convinced the evidence in question
was newly discovered or would probably result in an acquittal, two
requirements for a new trial under Fed. R. Crim. P. 33. See United
States v. Fulcher, 250 F.3d 244, 249 (4th Cir.), cert. denied, 534 U.S.
939 (2001) (citing United States v. Custis, 988 F.2d 1355, 1359 (4th
Cir. 1993)).
Chappell’s motion turned on the results of an internet map service,
which arguably suggested that Chappell could not have picked up and
delivered the shotgun within the time frame offered by the United
States’ during its closing argument, as a cellular telephone call Chap-
pell placed to a gun shop in Metter, Georgia preceded his documented
arrival at the point of delivery in South Carolina by only one hour and
forty-seven minutes. However, this "new evidence" was arguably
available to Chappell prior to trial, as his movements on the day in
question were thoroughly explored at trial based in part on his logged
cellular telephone calls. Additionally, the uncertainty regarding when
during a particular two-day period Chappell actually received the
shotgun further placed the issue of whether delivery was physically
possible at issue. More importantly, however, there was substantial
evidence indicating Chappell delivered the shotgun at the documented
time in South Carolina. Hence, Chappell’s motion fails to satisfy the
requirements for new trial under Rule 33.
UNITED STATES v. CHAPPELL 3
Turning to Chappell’s challenge to the calculation of his sentencing
range, we find no error in the district court’s application of § 3C1.1.
At sentencing, Chappell argued there was an insufficient evidentiary
basis for application of the enhancement. However, in calculating a
defendant’s sentencing range, a sentencing court is entitled to con-
sider and rely on any information concerning the background, charac-
ter, and conduct of a person convicted of an offense. See 18 U.S.C.
§ 3661 (1994). When, as here, the district court relies on information
in the presentence report in making findings, the defendant bears the
burden of establishing that the information relied on by the district
court in making its findings is incorrect; mere objections are insuffi-
cient. See United States v. Love, 134 F.3d 595, 606 (4th Cir. 1998).
Because Chappell did not provide contrary evidence, electing instead
to challenge whether the United States met its burden of proof at sen-
tencing, the basis for the § 3C1.1 enhancement is insulated from
review. See, e.g., United States v. Charlesworth, 217 F.3d 1155,
1160-61 (9th Cir. 2000). As a result, we find no error in Chappell’s
sentence.
Accordingly, we affirm Chappell’s conviction and sentence. Fur-
ther, Chappell’s motion for oral argument is denied, as we have dis-
pensed 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