United States v. Redfern ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4942
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LAMAR REDFERN, a/k/a Josh Fisher,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Lacy H. Thornburg,
District Judge. (CR-01-151)
Submitted: May 4, 2005 Decided: July 13, 2005
Before LUTTIG, MICHAEL, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Kenneth M. Smith, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Lamar Redfern appeals his convictions and sentence for
armed bank robbery and use of a firearm in the commission of a
crime of violence, in violation of 18 U.S.C. §§ 924, 2113 (2000).
We affirm his conviction. Finding that the district court’s
imposition of sentence violated Redfern’s Sixth Amendment right to
trial by a jury, we vacate the sentence and remand for further
proceedings.
Redfern first claims on appeal that the district court
erred in denying his motion for judgment of acquittal, filed
pursuant to Fed. R. Crim. P. 29. “The verdict of a jury must be
sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.” Glasser v. United
States, 315 U.S. 60, 80 (1942). Our review of the record discloses
that substantial evidence supported the verdict. Two of Redfern’s
co-conspirators testified that Redfern had participated in the
robbery of three banks. They testified that he was armed at the
time and acted as a guard at the entrance to each bank while
co-conspirators cleared out the tellers’ cash drawers. This
evidence was corroborated by (1) the testimony of Redfern’s
girlfriend who told the jury about changes in Redfern’s lifestyle
at the time of the robberies and (2) the evidence of a stolen
license plate found behind the home of Redfern’s grandmother, where
he lived. Although Redfern disputes the testimony of his
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co-conspirators as self-serving, it is the jury, and not this
court, that is best suited to weigh the credibility of the
witnesses. See United States v. D’Anjou, 16 F.3d 604, 614 (4th
Cir. 1994). Moreover, the district court adequately addressed the
jury’s question about a co-conspirator’s omission from several
counts of the indictment; we find no reasonable likelihood that the
jury was confused. Accordingly, the district court did not err in
denying Redfern’s motion for judgment of acquittal.
Redfern next asserts that the district court erred in
denying his motion for a mental evaluation. The district court
must order a competency hearing under 18 U.S.C. § 4241(a) (2000),
if there is reasonable cause to believe the defendant may presently
be suffering from a mental defect rendering him incompetent. This
court’s review of a district court’s refusal to order a competency
hearing is for an abuse of discretion. United States v. West, 877
F.2d 281, 285 n.1 (4th Cir. 1989). The district court had the
opportunity to observe Redfern throughout the trial, and indeed,
Redfern participated in his defense. Our review of the transcript
discloses no unusual behavior or obvious lack of understanding or
participation on Redfern’s part. Furthermore, Redfern failed to
present anything more than speculative and inconclusive allegations
regarding his mental state. Accordingly, we find no error on the
part of the district court in denying Redfern’s motion.
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Finally, Redfern claims that the district court’s
imposition of sentence violated his Sixth Amendment right to trial
by a jury. Because we conclude that the district court’s
application of the sentencing guidelines enhanced Redfern’s
sentence on the basis of facts not found by the jury beyond a
reasonable doubt, we agree.* See United States v. Booker, 125 S.
Ct. 738 (2005); United States v. Hughes, 401 F.3d 540 (4th Cir.
2005). Accordingly, although we affirm Redfern’s convictions, we
vacate his sentence and remand for further proceedings.
Although the sentencing guidelines are no longer
mandatory, Booker makes clear that a sentencing court must still
“consult [the] Guidelines and take them into account when
sentencing.” 125 S. Ct. at 767. On remand, the district court
should first determine the appropriate sentencing range under the
Guidelines, making all factual findings appropriate for that
determination. See Hughes, 401 F.3d at 546. The court should
consider this sentencing range along with the other factors
described in 18 U.S.C. § 3553(a) (2000), and then impose a
sentence. Id. If that sentence falls outside the Guidelines
range, the court should explain its reasons for the departure as
*
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Reed's sentencing. See generally Johnson v. United
States, 520 U.S. 461, 468 (1997) (stating that an error is “plain”
if “the law at the time of trial was settled and clearly contrary
to the law at the time of appeal”).
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required by 18 U.S.C. 3553(c)(2) (2000). Id. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47.
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 IN PART,
VACATED IN PART, AND REMANDED
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