United States v. Smith Merinord ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4557
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SMITH MERINORD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, Chief District Judge. (5:15-cr-00136-BO-2)
Submitted: July 21, 2020 Decided: July 27, 2020
Before GREGORY, Chief Judge, NIEMEYER, Circuit Judge, and TRAXLER, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Rudolph A. Ashton, III, DUNN PITTMAN SKINNER & CUSHMAN, PLLC, New Bern,
North Carolina, for Appellant. Brian A. Benczkowski, Assistant Attorney General, John
P. Cronan, Deputy Assistant Attorney General, Thomas E. Booth, Criminal Division,
UNITED STATES DEPARMENT OF JUSTICE, Washington, D.C.; Robert J. Higdon, Jr.,
United States Attorney, Jennifer May-Parker, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Smith Merinord appeals from his convictions for three counts of Hobbs Act robbery,
in violation of 18 U.S.C. § 1951(a)(1) (2018), and three corresponding counts of
brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii) (2018), and his resulting sentences. We affirm.
Merinord first argues that he is legally innocent of his § 924(c) convictions because
there is no valid predicate crime of violence. Section 924(c)(3) provides two definitions
of the term “crime of violence”—the force clause in § 924(c)(3)(A) and the residual clause
in § 924(c)(3)(B). Although the Supreme Court recently concluded that the residual clause
is unconstitutionally vague, United States v. Davis, 139 S. Ct. 2319, 2336 (2019), the force
clause remains intact. In United States v. Mathis, 932 F.3d 242, 266 (4th Cir.), cert. denied,
140 S. Ct. 639, 140 S. Ct. 640 (2019), we held that “Hobbs Act robbery constitutes a crime
of violence under the force clause of [§] 924(c).” In light of Mathis, Merinord’s § 924(c)
convictions are valid.
Merinord next claims that the district court erred by permitting a police officer
investigating one of the robberies to testify that he was told by another officer about a
similar robbery. He was also allowed to testify that he learned fingerprints had been
recovered in the second robbery that matched Merinord and his co-defendant. No
cautionary jury instruction was given at any time. However, the declarants subsequently
testified, and their testimony matched the substance of the hearsay statements.
Nonetheless, Merinord claims that the admission of the hearsay statements set an
inappropriate tone, bolstered the subsequent testimony, and hindered his
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cross-examination. “Decisions regarding the admission or exclusion of evidence are
committed to the sound discretion of the district court and will not be reversed absent an
abuse of that discretion.” United States v. Lancaster, 96 F.3d 734, 744 (4th Cir. 1996).
We will find that discretion to have been abused “only when the district court acted
‘arbitrarily or irrationally.’” United States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994)
(quoting United States v. Ham, 998 F.2d 1247, 1252 (4th Cir. 1993)). Moreover, any error
“that does not affect substantial rights must be disregarded.” Fed. R. Crim. P. 52(a); see
also Fed. R. Evid. 103(a) (noting that error may not be predicated upon a ruling which
admits or excludes evidence unless it “affects a substantial right of the party”).
Nonconstitutional error is harmless when we “can say, ‘with fair assurance, after pondering
all that happened without stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error.’” United States v. Nyman, 649 F.2d 208, 211-
12 (4th Cir. 1980) (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).
Initially, it is not at all clear that the testimony complained of by Merinord was
hearsay. It appears that the officer recounted the statements in order to explain the basis
and process of his investigation, not for the improper purpose of submitting the information
as truthful. However, even if it is assumed that the officer erroneously repeated the
out-of-court statements for the truth of the facts recited, Merinord can show no prejudice.
Because witnesses subsequently corroborated their statements to the officer and were
subject to cross-examination, Merinord cannot show reversible error.
Merinord also asserts a claim under the First Step Act of 2018, Pub. L. No. 115-391,
§ 404, 132 Stat. 5194, challenging the “stacking” of his § 924(c) sentences. In United
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States v. Jordan, however, we held that the First Step Act does not apply to cases that were
pending on appeal when Congress passed the First Step Act. 952 F.3d 160, 174 (4th Cir.
2020). While Merinord asserts that the result in his case is particularly harsh and that a
criminal case should not be considered “final” for First Step Act purposes until the appeal
is completed, Merinord cannot avoid the holding in Jordan. Because Merinord was
sentenced before the enactment of the First Step Act, he is not entitled to relief.
Accordingly, we affirm Merinord’s convictions and sentences. We dispense with
oral argument because the facts and legal contentions area adequately presented in the
materials before the court and argument would not aid the decisional process.
AFFIRMED
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