United States v. Jamal Hosendove

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4294
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMAL KWAME HOSENDOVE,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:12-cr-00093-H-1)
Submitted: March 30, 2014 Decided: August 18, 2014
Before WILKINSON and DIAZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Seth M. Wood, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Jamal Hosendove as a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1).
The district court sentenced him to 62 months’ imprisonment.
Hosendove contends that the evidence was insufficient to
support his conviction. He also argues that the district court
erred in applying a four-level enhancement to his sentence for
possessing a firearm in connection with another felony offense.
For the reasons that follow, we affirm.
I.
On appeal from a criminal conviction, we “construe the
evidence in the light most favorable to the government.” United
States v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011).
A.
On December 10, 2011, Jacksonville, North Carolina police
responded to a 911 call reporting an alleged armed robbery at
the Sandy Run apartment complex. The caller gave a brief
description of two assailants and alerted authorities that one
of the suspects might have a weapon. Upon arrival, police
spotted Marcus Robinson and Jamal Hosendove, who fit the
description of the assailants provided by the 911 caller. After
a brief chase, both men were arrested. The police also found a
firearm nearby.
2
B.
At trial, Anthony Stephens testified that Marcus Robinson
assaulted him in the hallway of the Sandy Run apartment complex
after he failed to pay a debt owed to Robinson. Stephens
noticed a second man standing behind him when he tried to get
away. Stephens was unable to identify the second man because he
stood in a poorly lit area of the hallway. However, Stephens
did see a firearm tucked inside the man’s waistband, which he
described as silver with a black or brown handle.
The government also introduced testimony from several
police officers, including Officer Ervin and his partner,
Officer Smallwood, who were the first officers to respond to the
911 call. 1 Ervin saw two black men fitting the description given
by the 911 caller. The two men, Robinson and Hosendove, were
walking away from the Sandy Run apartment complex as Ervin and
Smallwood arrived. Ervin blew his horn to get their attention
and Hosendove immediately began running. Ervin pursued
Hosendove in his police cruiser and saw Hosendove remove a
firearm from his waistband. Ervin yelled “He’s got a gun” to
inform his partner, who then immediately alerted dispatch. J.A.
119. In what Ervin described as an effort to defend himself
1
Smallwood’s testimony was consistent with Ervin’s version
of their encounter with Robinson and Hosendove.
3
against what he perceived to be a deadly threat, Ervin hit
Hosendove with the right front corner of his police cruiser. At
that point, Hosendove threw the firearm on the ground, rolled
off the hood of the car, and continued running. After Hosendove
discarded the firearm, Ervin got out of his cruiser and pursued
Hosendove on foot. Once Robinson and Hosendove were
apprehended, the officers located the discarded firearm, which
matched Stephens’s description of the weapon.
During cross-examination, defense counsel asked Ervin if he
had kicked Hosendove in the head after securing him on the
ground. Officer Ervin denied it, but defense counsel then
introduced a recorded video of the arrest that contradicted
Ervin’s statement.
After the close of the government’s case-in-chief,
Hosendove moved for a judgment of acquittal under Rule 29 of the
Federal Rules of Criminal Procedure. The district court denied
the motion. Hosendove’s only evidence was to walk before
members of the jury so that they could observe his stature. He
then rested and renewed his motion for judgment of acquittal,
which the court again denied. The jury returned a guilty
verdict on the charge of being a felon in possession of a
firearm.
4
C.
The PSR recommended a four-level sentencing enhancement
under U.S.S.G. § 2K2.1(b)(6)(B) for unlawful possession of a
firearm in connection with another felony offense. According to
the PSR, Hosendove aided and abetted Robinson in his robbery of
Stephens. 2 Although Hosendove did not use the weapon during the
robbery, the probation officer concluded that it had the
“potential of facilitating the offense,” thus making the
enhancement applicable. J.A. 272. Hosendove objected to the
four-level enhancement on the ground that he did not rob or
assault Stephens. He also contended that Stephens did not
identify him at trial as the second man. The district court
overruled the objection and applied the enhancement.
The resulting Guidelines range for imprisonment was 63-78
months, based on a total offense level of 24 and a criminal
history category of III. The district court initially indicated
that 78 months would be an appropriate sentence, but reduced the
sentence to 62 months, pursuant to U.S.S.G. § 5G1.3(b), to
account for the sixteen months Hosendove had served in state
prison on related charges. This appeal followed.
2
The PRS noted that police interviewed Stephens at the
hospital, where he told them that Robinson stole his cell phone
and that the second man also struck him during the assault.
J.A. 258.
5
II.
On appeal, Hosendove contends that (1) he was entitled to a
judgment of acquittal due to insufficient evidence, and (2) the
district court erred in enhancing his base offense level for
possession of a firearm in connection with another felony
offense. We consider each issue in turn.
A.
We review de novo the district court’s denial of a
defendant’s motion for judgment of acquittal. Penniegraft, 641
F.3d at 571. “In reviewing the sufficiency of the evidence
following a conviction, [we] construe the evidence in the light
most favorable to the government, assuming its credibility, and
drawing all favorable inferences from it, and will sustain the
jury's verdict if any rational trier of fact could have found
the essential elements of the crime charged beyond a reasonable
doubt.” Id. Furthermore, we “cannot make [our] own credibility
determinations but must assume that the jury resolved all
contradictions in testimony in favor of the Government.” Id. at
572 (internal quotation marks omitted).
To convict Hosendove of being a felon in possession of a
firearm, the government had to prove three elements: (1) that
Hosendove knowingly possessed a firearm; (2) that Hosendove had
a prior felony conviction; and (3) that the firearm traveled in
interstate commerce. United States v. Gallimore, 247 F.3d 134,
6
136 (4th Cir. 2001). Hosendove stipulated to the second and
third elements, so the government needed to prove only the
first--possession.
Hosendove contends that he was entitled to a judgment of
acquittal because the government failed to prove the element of
possession by “credible” evidence. Appellant’s Br. at 14.
Hosendove argues that Ervin, the only witness to testify that
Hosendove possessed a firearm, was not credible because he was
impeached when he denied kicking Hosendove as he lay on the
ground.
As our cases emphasize, however, credibility is determined
by the fact-finder. Here, the jury was charged with evaluating
Ervin’s testimony and determining the amount of weight, if any,
to give it. Ervin testified that Hosendove possessed the
firearm, and the jury apparently found Ervin’s testimony
credible despite defense counsel’s impeachment effort.
Moreover, other evidence corroborated Ervin’s testimony.
Minutes after responding to the 911 call, officers saw Hosendove
and Robinson leaving the Sandy Run complex together. After
Hosendove was arrested, police found a firearm in the area where
Hosendove ran. And Smallwood and another officer testified as
to the location where the firearm was found. The jury also
heard Stephens describe the firearm he saw in the waistband of
7
the second man, a description consistent with the firearm the
police found after Hosendove’s arrest.
After careful review, we are satisfied that there was
sufficient evidence to support Hosendove’s conviction. Thus,
the district court correctly denied Hosendove’s motion for a
judgment of acquittal.
B.
Hosendove next complains of his four-level sentencing
enhancement. The district court enhanced Hosendove’s sentence
because, it found, he had “used or possessed [the] firearm . . .
in connection with another felony offense.” U.S.S.G.
§ 2K2.1(b)(6)(B).
On appeal, Hosendove argues only that the facts of this
case do not satisfy the elements of armed robbery under North
Carolina law--the “[]other felony offense” suggested by the
probation officer. 3 See J.A. 271. According to Hosendove, “the
government presented no evidence that [he] endangered or
threatened Stephens’ life by the use of a gun,” as Hosendove
stood behind Stephens, and the gun never left his waistband.
Appellant’s Br. at 22.
3
The district court was rather less clear at the sentencing
hearing, referring simply to “the assault” before finding that
“there is sufficient preponderance of the evidence to allow the
enhancement for possession of a firearm in connection with
another felony offense.” J.A. 281.
8
Hosendove did not raise this specific issue at sentencing,
and thus we would normally review for plain error. We need not
wade into Hosendove’s argument, however, because the PSR
supports the application of the enhancement on the basis of
North Carolina common law robbery. See United States v. Smith,
395 F.3d 516, 519 (4th Cir. 2005) (“We are not limited to
evaluation of the grounds offered by the district court to
support its decision, but may affirm on any grounds apparent
from the record.”).
“Robbery at common law is the felonious taking of money or
goods of any value from the person of another, or in his
presence, against his will, by violence or putting him in fear.”
State v. Moore, 183 S.E.2d 546, 547 (N.C. 1971). And someone
“who aids or abets another in the commission of [that] crime is
equally guilty with that other person as [a] principal.” State
v. Noffsinger, 528 S.E.2d 605, 610 (N.C. Ct. App. 2000). Here,
the district court adopted the findings of the PSR as “credible
and reliable.” J.A. 292. According to the PSR, Robinson took
Stephens’s cell phone after he and a second man beat Stephens. 4
4
As noted earlier, Hosendove did not dispute the PSR’s
summary of how Stephens was assaulted and robbed; rather, he
denied any involvement in the offense. But based on the
district court’s recollection of the evidence presented at
trial, the court resolved that specific objection against
Hosendove.
9
At trial, Stephens also testified that he tried to get away but
noticed the second man standing behind him, effectively blocking
his escape. Thus, the record evidence supports a finding by a
preponderance of the evidence that Hosendove aided and abetted
the commission of common law robbery.
Common law robbery also suffices under the federal
Sentencing Guidelines. The Guidelines enhancement requires a
finding of “another felony offense,” defined as “any Federal,
state, or local offense . . . punishable by imprisonment for a
term exceeding one year.” U.S.S.G. § 2K2.1 cmt. 14(C). Common
law robbery is a Class G felony in North Carolina. See N.C.
Gen. Stat. § 14-87.1. Under North Carolina’s sentencing scheme,
the presumptive range for a Class G felony permits a sentence in
excess of one year for even the lowest criminal history
category. 5 See N.C. Gen. Stat. § 15A-1340.17(c). And
Hosendove’s firearm “facilitated, or had the potential of
facilitating,” common law robbery. U.S.S.G. § 2K2.1 cmt. 14(A);
see also United States v. McKenzie-Gude, 671 F.3d 452, 464 (4th
Cir. 2011) (“This requirement is satisfied if the firearm had
some purpose or effect with respect to the other offense,
5
As we explained in United States v. Kerr, 737 F.3d 33 (4th
Cir. 2013), we consider the presumptive range to establish the
maximum penalty for a North Carolina conviction where, as here,
no aggravating factors are in play.
10
including if the firearm was present for protection or to
embolden the actor.” (internal quotation marks omitted)).
Accordingly, the district court did not err in applying the
sentencing enhancement.
III.
For the foregoing reasons, we affirm the district court’s
judgment.
AFFIRMED
11