United States v. William E. Nicholson ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4265
WILLIAM EARL NICHOLSON, III,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4437
LAQUAN DEMAR WHITTED,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-98-46)
Submitted: March 31, 2000
Decided: May 2, 2000
Before MOTZ and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Harold H. Chen, BROOKS, PIERCE, MCLENDON, HUMPHREY &
LEONARD, L.L.P., Raleigh, North Carolina; William L. Davis, III,
Lumberton, North Carolina, for Appellants. Janice McKenzie Cole,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
William Nicholson and Laquan Whitted appeal from their criminal
judgments convicting them of conspiracy to commit a robbery by
force and intimidation on a military reservation in violation of 18
U.S.C. § 371 (1994), and convicting Nicholson of robbery by force
and intimidation on a military reservation in violation of 18 U.S.C.
§§ 2, 2112 (1994). On appeal, both defendants challenge the suffi-
ciency of the evidence of their convictions on all counts. In addition,
Nicholson challenges the district court's taking of judicial notice of
the fact that the robbery took place on Fort Bragg and the court's
upward departure at sentencing due to his inadequate criminal history
category under U.S. Sentencing Guidelines Manual § 4A1.3 (1998).
Finding no error, we affirm.
We find that sufficient evidence supported the convictions of both
Nicholson and Whitted. See Glasser v. United States, 315 U.S. 60, 80
(1942). The jury was entitled to make its own credibility findings
regarding co-conspirator George Floore's testimony and resolve fac-
tual differences in the testimony of Floore and the victim, Edna Hart-
ley. In evaluating the sufficiency of the evidence, this court does not
review the credibility of the witnesses and assumes that the jury
resolved all contradictions in the testimony in favor of the govern-
2
ment. See United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998),
cert. denied, 525 U.S. 1141 (1999).
We also find that the district court did not plainly err, see Fed. R.
Evid. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993), in fail-
ing to specifically instruct the jury that they could disregard judicially
noticed facts regarding jurisdiction, because any error did not seri-
ously affect the fairness, integrity, or public reputation of the judicial
proceedings and did not result in a miscarriage of justice. At trial,
Nicholson did not contest the fact that the gas station is located on
Fort Bragg. There was testimony from three witnesses that the gas
station was located on Fort Bragg: Agent Schmitt; the cashier, Edna
Hartley; and George Floore. The jury was also instructed that they
must find that the gas station was located within the special maritime
and territorial jurisdiction of the United States. Therefore, the court
did not plainly err.
Finally, Nicholson assigns error to the court's upward sentencing
departure under USSG § 4A1.3 for an inadequate criminal history cat-
egory, alleging that the court improperly relied upon an overturned
conviction. This court reviews the district court's decision to depart
upward from the guideline range for an abuse of discretion. See Koon
v. United States, 518 U.S. 81, 100 (1996); United States v. Rybicki,
96 F.3d 754, 756-57 (4th Cir. 1996). Under USSG§ 4A1.3, an inade-
quate criminal history category is an encouraged ground for depar-
ture. When an encouraged factor is present, the district court must
decide whether the factor is adequately accounted for in the applica-
ble guideline range. This decision is reviewed de novo. See Rybicki,
96 F.3d at 758.
The guidelines do not require that only convictions be used to mea-
sure criminal history. See USSG § 4A1.3(e). Any information may be
considered, so long as it has sufficient indicia of reliability to support
its probable accuracy. See USSG § 6A1.3, comment. While Nichol-
son objected overall to an upward departure, he did not challenge the
criminal conduct outlined in the Pre-Sentence Report (PSR) regarding
the 1981 Missouri state conviction, later overturned with a resulting
acquittal. We therefore find that the court did not abuse its discretion
in considering the criminal conduct. Regardless, Nicholson's criminal
3
history was so extensive that the other convictions were sufficient to
warrant the upward departure.
We therefore affirm the judgments. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
4