United States v. Whitaker , 208 F. App'x 244 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4933
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SCOTTIE WHITAKER,
Defendant - Appellant.
No. 05-5020
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NATHAN PETWAY,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-04-56-H)
Submitted: November 13, 2006 Decided: December 7, 2006
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nora Henry Hargrove, Wilmington, North Carolina; David B. Betts,
Columbia, South Carolina, for Appellants. Anne Margaret Hayes,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
- 2 -
PER CURIAM:
Scottie Whitaker and Nathan Petway were convicted by a
jury of one count of conspiracy to commit armed bank robbery, in
violation of 18 U.S.C. §§ 371, 2113 (2000) (Count One); one count
of armed bank robbery, in violation of 18 U.S.C. §§ 2113, 2 (2000)
(Count Two); and one count of using and carrying firearms during
and in relation to a crime of violence, in violation of 18 U.S.C.
§§ 924(c)(1), 2 (West Supp. 2006) (Count Three). Whitaker was also
convicted of one count of possession of a firearm after having been
convicted of a crime punishable by more than one year of
imprisonment, in violation of 18 U.S.C. § 922(g) (2000) (Count
Five). The district court sentenced Whitaker to a total of 192
months of imprisonment. Petway’s prior criminal record qualified
him for an enhanced sentence as a career offender, and the district
court sentenced him to a total of 300 months of imprisonment after
granting his request for a variance from the sentencing range
calculated under the Sentencing Guidelines.1
The defendants timely appealed, and the cases were
consolidated. On appeal, counsel filed an Anders2 brief, in which
they state there are no meritorious issues for appeal, but suggest
that the district court erred in denying defendants’ motions for
judgment of acquittal and submitting the case to the jury.
1
U.S. Sentencing Guidelines Manual (2004) (USSG).
2
Anders v. California, 386 U.S. 738 (1967).
- 3 -
Whitaker and Petway each filed a pro se supplemental brief. The
Government declined to file a brief. We affirm.
Counsel suggest that the district court erred in denying
defendants’ motion for judgment of acquittal because the evidence
was insufficient to submit the case to the jury. A defendant
challenging the sufficiency of the evidence faces a heavy burden.
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).
“[A]n appellate court’s reversal of a conviction on grounds of
insufficient evidence should be confined to cases where the
prosecution’s failure is clear.” United States v. Jones, 735 F.2d
785, 791 (4th Cir. 1984). A jury’s verdict must be upheld on
appeal if there is substantial evidence in the record to support
it. Glasser v. United States, 315 U.S. 60, 80 (1942). In
determining whether the evidence in the record is substantial, this
court views the evidence in the light most favorable to the
government, and inquires whether there is evidence that a
reasonable finder of fact could accept as adequate and sufficient
to establish a defendant’s guilt beyond a reasonable doubt. United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). In
evaluating the sufficiency of the evidence, we do not review the
credibility of the witnesses and assume that the jury resolved all
contradictions in the testimony in favor of the government. United
States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998). Our review of
the record leads us to conclude that the evidence was sufficient to
- 4 -
submit the case to the jury and to sustain the jury’s verdicts of
guilt.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We have
considered the arguments asserted in the pro se briefs submitted by
Whitaker and Petway and find them to be without merit. We
therefore affirm the convictions and sentences. We deny Whitaker’s
motions to file additional supplemental briefs. This court
requires that counsel inform their client, in writing, of the right
to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client.
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
- 5 -