United States v. Domonic Usher ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5015
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DOMONIC DEVARRISE USHER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:11-cr-00217-D-6)
Submitted: January 31, 2014 Decided: February 7, 2014
Before WYNN, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
C. Burell Shella, SHELLA & ASSOCIATES, PC, Durham, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Domonic Devarrise Usher on one count
of conspiracy to commit violations of the Hobbs Act
(interference with commerce by robbery), 18 U.S.C. § 1951(b)
(2012) (Count 1), seven counts of interference with commerce by
robbery, 18 U.S.C. §§ 2, 1951(a) (2012) (Counts 2, 4, 6, 8, 10,
12, and 14), and seven counts of carrying and using a firearm
during and in relation to a crime of violence, 18 U.S.C. §§ 2,
924(c)(1)(A) (2012) (Counts 3, 5, 7, 9, 11, 13, and 15). The
district court sentenced Usher to 235 months’ imprisonment on
the conspiracy and each of the robbery convictions to run
concurrently with each other; a mandatory consecutive eighty-
four months’ imprisonment on Count Three; and mandatory
consecutive 300 months’ imprisonment on each of the remaining
four § 924(c) convictions, resulting in a cumulative sentence of
2119 months’ imprisonment. On appeal, Usher contends that the
district court erred by allowing the prosecutor to repeat the
testimony of witnesses, during his original trial, which ended
in a mistrial, and his second trial. He also argues that the
district court’s imposition of consecutive sentences on the
§ 924(c) convictions in Counts 5, 7, 9, 11, 13, and 15 violates
the Eighth Amendment’s protection against cruel and unusual
punishment. We affirm.
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I.
Usher first argues that the prosecutor’s conduct of
repeating witness answers during their testimony resulted in
needlessly repetitive and cumulative evidence and violated Fed.
R. Evid. 403. To warrant reversal for prosecutorial misconduct,
the defendant must show that the prosecutor engaged in improper
conduct that prejudiced his substantial rights so as to deny him
a fair proceeding. United States v. Allen, 491 F.3d 178, 191
(4th Cir. 2007).
In his opening brief, Usher does not allege that he
was prejudiced by the prosecutor’s conduct, nor does he point to
any evidence in the record showing “that such remarks or conduct
prejudiced the defendant to such an extent as to deprive the
defendant of a fair trial.” Allen, 491 F.3d at 191; see also
Fed. R. App. P. 28(a)(8)(A) (requiring the appellant’s brief to
contain “contentions and the reasons for them, with citations to
the authorities and parts of the record on which the appellant
relies”). Thus, we affirm Usher’s convictions.
II.
Usher also contends that his 2119-month sentence is
disproportionate to his crimes, because no one suffered physical
harm and the total economic loss was less than thirty-thousand
dollars. Because Usher did not challenge the sentence on this
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basis below, our review is for plain error. See United States
v. Ming Hong, 242 F.3d 528, 532 (4th Cir. 2001).
Congress mandates a minimum seven-year sentence for an
initial conviction under 18 U.S.C. § 924(c)(1)(A)(ii), and a
mandatory minimum sentence of twenty-five years for a second or
subsequent § 924(c) conviction. 18 U.S.C. § 924(c)(1)(C)(i).
Sentences imposed under § 924(c) cannot “run concurrently with
any other term of imprisonment imposed on the person, including
any term of imprisonment imposed for the crime of violence or
drug trafficking crime during which the firearm was used,
carried, or possessed.” 18 U.S.C. § 924(c)(1)(D)(ii). The
district court appropriately imposed an 84-month sentence for
Usher’s first firearm conviction (Count 3) and six consecutive
twenty-five-year terms of imprisonment on Counts 5, 7, 9, 11,
13, and 15.
We find no plain error in the district court’s
sentence. “Severe, mandatory penalties may be cruel, but they
are not unusual in the constitutional sense, having been
employed in various forms throughout our Nation’s history.”
Harmelin v. Michigan, 501 U.S. 957, 994-95 (1991). Indeed, this
court has held that stacked mandatory sentences under § 924(c),
while seemingly excessive, do not contravene the Constitution.
See, e.g., United States v. Khan, 461 F.3d 477, 495 (4th Cir.
2006) (lengthy mandatory sentences imposed on defendants by
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“count-stacking” provisions of 18 U.S.C. § 924(c) did not
constitute cruel and unusual punishment). We have held likewise
in other contexts in which the sentence was within statutory
bounds. See, e.g., Jones v. Purvis, 646 F.2d 127, 128 (4th Cir.
1981) (per curiam) (sentence did not violate the Eighth
Amendment where it was “well within the statutory
authorization”); United States v. Bandy, 415 F.2d 322, 323 (4th
Cir. 1969) (per curiam) (same, where the sentence “was within
the limits of the applicable statute”).
III.
Accordingly, we affirm Usher’s convictions and the
2119-month sentence imposed by the district court. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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