United States v. Haile , 292 F. App'x 224 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4792
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MATTHEW E. HAILE,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:06-cr-00101-IMK)
Submitted: June 25, 2008 Decided: July 22, 2008
Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
L. Richard Walker, Assistant Federal Public Defender, Clarksburg,
West Virginia, for Appellant. Sharon L. Potter, United States
Attorney, Zelda E. Wesley, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Matthew E. Haile was convicted, after a jury trial, of
robbery affecting interstate commerce (Hobbs Act robbery), in
violation of 18 U.S.C. § 1951 (2000), use of a firearm during a
crime of violence, in violation of 18 U.S.C. § 924(c)(1)(B)(1)
(2000), possession of a sawed-off shotgun, in violation of 26
U.S.C. §§ 5822, 5861(c), 5871 (2000), and failure to register a
sawed-off shotgun, in violation of 26 U.S.C. §§ 5841, 5861(d), 5871
(2000). He was sentenced to 166 months in prison, and he timely
appealed. Finding no reversible error, we affirm.
Haile first argues that the district court erred when it
admitted evidence that prior to the October 2006 robbery, he had
been barred from the premises of the Rite Aid store where the crime
occurred. During cross-examination, the Government asked Haile
whether he had been barred from the Rite Aid store, and Haile
stated that he had not. To impeach Haile’s statements, the
Government called a rebuttal witness, Debbie Wriker, to contradict
Haile’s denial of the barring notice. Haile objected to the
evidence under Fed. R. Evid. 608(b), arguing that “[s]pecific
instances of the conduct of the witness, for the purposes of
attacking or supporting the witness’s character for truthfulness
. . . may not be proved by extrinsic evidence.” Id. The
Government argued that the evidence was admissible under Fed. R.
Evid. 613(b), as it would establish a prior inconsistent statement,
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and was admissible because Haile was afforded the opportunity to
explain or deny the statement. The district court overruled the
objection and permitted the witness to testify.
This court reviews the district court’s admission of
evidence for an abuse of discretion. See United States v. Hodge,
354 F.3d 305, 312 (4th Cir. 2004). An abuse of discretion occurs
“only when it can be said that the trial court acted arbitrarily or
irrationally in admitting evidence.” United States v. Williams,
445 F.3d 724, 732 (4th Cir.) (internal quotation marks and citation
omitted), cert. denied, 127 S. Ct. 314 (2006). Evidentiary rulings
are subject to harmless error analysis. United States v. Brooks,
11 F.3d 365, 371 (4th Cir. 1997).
The district court properly determined in denying a post-
trial motion for a new trial that any error in the admission of
Wriker’s testimony was harmless because the evidence of Haile’s
guilt was independent and overwhelming. During trial, Haile
admitted that he entered the store wearing a bandana over his face
and a hooded sweatshirt, asked the cashier for money, and took the
money. He also admitted that he sawed down the shotgun, and that
he possessed it before and after the robbery. Haile’s defense was
that he did not use the firearm during the commission of the crime.
However, Haile made inconsistent statements to police and on the
stand about where the weapon was located during the robbery, and he
testified that he lied to the police when he told them the weapon
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was on his person when he robbed the store. The jury’s verdict
reflects that it determined to credit the testimony of the sales
clerk and another customer, who stated that Haile was holding a
weapon concealed in his sweatshirt while he demanded money. Thus,
the evidence was sufficient to convict Haile of both the Hobbs Act
robbery and use of the firearm during the commission of a crime.
The admission of the barring notice, if erroneous, was harmless.
Haile next contends that the district court erroneously
used the preponderance of evidence standard of review at sentencing
in finding, pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 3C1.1 (2006), that Haile obstructed justice. Haile argues that
the court was required to use the beyond a reasonable doubt
standard to make such a factual finding because “[t]here is no
binding directive from any source expressly providing for the
preponderance standard to serve as the only proof standard at
federal non-capital sentencing hearings.”* (Appellant’s brief at
16). Haile did not raise this issue at sentencing; thus it is
reviewed for plain error. United States v. Olano, 507 U.S. 725,
732 (1993).
Haile recognizes that United States v. Morris, 429 F.3d
65 (4th Cir. 2005), cert. denied, 127 S. Ct. 121 (2006), is
*
Haile does not argue on appeal that there was insufficient
evidence for the judge to find that he obstructed justice using a
preponderance standard.
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frequently cited in support of the preponderance of the evidence
standard, but he contends that Morris did not squarely address this
issue.
Long-standing authority has permitted a sentencing court
to consider evidence that “has sufficient indicia of reliability,”
see USSG § 6A1.3(a), so long as that conduct has been proved by a
preponderance of the evidence. See United States v. Montgomery,
262 F.3d 233, 249 (4th. Cir. 2001); United States v. Crump, 120
F.3d 462, 468 (4th Cir. 1997). Pursuant to the remedial portion of
United States v. Booker, 543 U.S. 220 (2005), a sentencing court
continues to make factual findings concerning sentencing factors by
a preponderance of the evidence, taking into account that the
resulting guidelines range is advisory only. Morris, 429 F.3d at
71-72. Despite Haile’s contentions, even after Booker, we have
consistently approved the preponderance standard for judicial
factfinding at sentencing hearings. See, e.g., United States v.
Battle, 499 F.3d 315 (4th Cir. 2007). Further, we simply disagree
that Morris is not applicable. Thus, because the district court
properly used the preponderance standard to find Haile obstructed
justice, we find Haile’s claim to be meritless.
Accordingly, we affirm Haile’s conviction and sentence.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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