United States v. Roger Lunsford

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4004
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROGER KEITH LUNSFORD,
Defendant - Appellant.
No. 15-4005
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROGER KEITH LUNSFORD,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (4:97-cr-00098-NCT-1; 4:97-cr-
00099-NCT-1; 1:14-cr-00190-NCT-1)
Submitted: October 29, 2015 Decided: November 13, 2015
Before DUNCAN, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Blake Norman, THE LAW OFFICE OF J. BLAKE NORMAN, Durham,
North Carolina, for Appellant. Ripley Rand, United States
Attorney, Graham T. Green, Assistant United States Attorney,
Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury found Roger Lunsford guilty of two counts of armed
bank robbery, in violation of 18 U.S.C. § 2113(d) (2012), one
count of carry and use, by brandishing, of a firearm during a
crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii)
(2012), and one count of carry and use, by discharging, of a
firearm during a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A) (iii) (2012). The district court sentenced
Lunsford to a total term of 454 months of imprisonment. These
convictions, and two other violations, served as the basis for a
petition for revocation of supervised release. The court
revoked Lunsford’s supervised release and sentenced him to 36
months on the violations, to run concurrently to each other and
consecutively to the sentence imposed on the armed robbery
convictions. On appeal, Lunsford argues that the district
court erred in denying his motion for acquittal on all counts,
that his sentence violates the Eighth Amendment, and that the
court erred in revoking his supervised release based on the
robbery convictions. Finding no error, we affirm
We review de novo the district court’s denial of a Fed. R.
Crim. P. 29 motion for judgment of acquittal. United States v.
Smith, 451 F.3d 209, 216 (4th Cir. 2006). This court should
affirm if, when the evidence is viewed in the light most
favorable to the Government, “the conviction is supported by
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substantial evidence.” United States v. Hickman, 626 F.3d 756,
762-63 (4th Cir. 2010) (internal quotation marks omitted).
“‘Substantial evidence’ is ‘evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.’”
United States v. Green, 599 F.3d 360, 367 (4th Cir.) (quoting
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc)), cert. denied, 562 U.S. 913 (2015). A defendant
challenging evidentiary sufficiency “faces a heavy burden.”
United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007).
Reversal of a conviction on these grounds is limited to “cases
where the prosecution’s failure is clear.” Id. at 244-45
(internal quotation marks omitted).
Lunsford argues that the district court erred in denying
his motion for acquittal because the Government presented
insufficient evidence identifying him as the perpetrator of the
crimes. We have reviewed the record with the requisite
standards and conclude that there is a litany of strong
circumstantial evidence linking Lunsford to both robberies. The
evidence was sufficient to support the convictions.
Next, Lunsford briefly argues that his sentence is
categorically disproportionate, violating the Eighth Amendment.
He suggests that because the statutory mandatory minimum
sentence was 32 years, the court was unable to review his
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individual characteristics and establish a sentence to meet the
goals of 18 U.S.C. § 3553(a) (2012). Although challenges to a
sentence on Eighth Amendment grounds ordinarily are reviewed de
novo, United States v. Malloy, 568 F.3d 166, 180 (4th Cir.
2009), where, as here, a defendant fails to raise a
constitutional challenge to his sentence in the district court,
this court’s review is for plain error only. United States v.
Olano, 507 U.S. 725, 732-33 (1993).
The Eighth Amendment provides that “[e]xcessive bail shall
not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. Const. amend. VIII.
Punishment qualifies as “cruel and unusual not only when it is
inherently barbaric, but also when it is disproportionate to the
crime for which it is imposed.” United States v. Cobler, 748
F.3d 570, 575 (4th Cir.) (internal quotation marks omitted),
cert. denied, 135 S. Ct. 229 (2014). A defendant may challenge
the proportionality of a sentence under the Eighth Amendment in
two ways; under an “as-applied” challenge, he contests the
length of a certain term-of-years sentence based on the
circumstances in a particular case. Id. In a “categorical”
challenge, a defendant asserts that an entire class of sentences
is disproportionate based on the nature of the offense or the
characteristics of the offender. Id.
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Lunsford’s challenge, which sounds in a categorical
analysis, fails because “[t]he present case involves neither a
sentence of death nor a sentence of life imprisonment without
parole for a juvenile offender, the only two contexts in which
the Supreme Court categorically has deemed sentences
unconstitutionally disproportionate.” Cobler, 748 F.3d at
580-81. In addition, we have upheld the imposition of
sentences, such as Lunsford’s, that were based on multiple
§ 924(c) convictions. See United States v. Camps, 32 F.3d 102,
106 (4th Cir. 1994); United States v. Raynor, 939 F.2d 191,
193-94 (4th Cir. 1991). Lunsford does not show that his
sentence is constitutionally infirm and that the court plainly
erred in imposing the sentence.
Finally, Lunsford argues that the evidence did not support
the revocation of his supervised release based on the robbery
and firearm convictions. Lunsford’s arguments echo the same
challenges to the sufficiency of the evidence on the convictions
affirmed above. We review a district court’s judgment revoking
supervised release and imposing a term of imprisonment for abuse
of discretion. United States v. Pregent, 190 F.3d 279, 282 (4th
Cir. 1999). To revoke supervised release, a district court need
only find a violation of a condition of supervised release by a
preponderance of the evidence. 18 U.S.C. § 3583(e)(3) (2012);
United States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992).
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This burden “simply requires the trier of fact to believe that
the existence of a fact is more probable than its nonexistence.”
United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010)
(internal quotation marks omitted).
This court “review[s] a district court’s factual findings
underlying a revocation for clear error.” United States v.
Padgett, 788 F.3d 370, 373 (4th Cir. 2015), petition for cert.
filed, ___ U.S.L.W. ___, (U.S. Oct. 13, 2015) (No. 15-6499).
“Clear error occurs when the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. Cox, 744 F.3d
305, 308 (4th Cir. 2014) (internal quotation marks and ellipsis
omitted). We conclude that the district court did not clearly
err in its factual findings, and its conclusion that Lunsford
committed the violations associated with the robberies is
soundly supported by a preponderance of the evidence.
Accordingly, we affirm the criminal judgment and revocation
of supervised release. 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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