United States v. Horton

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4713
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KAREEM JAHMAL HORTON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:08-cr-00480-WO-1)
Submitted: August 11, 2010 Decided: August 25, 2010
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Craven, III, Durham, North Carolina, for Appellant.
Terry M. Meinecke, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kareem Jahmal Horton appeals his conviction and
sentence for possession of a firearm by a felon, in violation of
18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006). Horton’s counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), contending that there are no meritorious issues on
appeal, but asserting that the evidence was insufficient to
support Horton’s conviction and the district court erred in
enhancing Horton’s sentence for obstruction of justice. Horton
filed a pro se supplemental brief, arguing that his indictment
is void because it is not signed by the grand jury foreman, in
violation of Fed. R. Crim. P. 7(c); the evidence is insufficient
to support his conviction; the district court erred by allowing
the Government to present testimony regarding an aborted third
firearms transaction; and the district court further erred by
enhancing his sentence under USSG §§ 2K2.1(a)(2) and (b)(6).
The Government has declined to file a brief. We affirm.
I. Sufficiency of the evidence
“A defendant challenging the sufficiency of the
evidence faces a heavy burden.” United States v. Foster, 507
F.3d 233, 245 (4th Cir. 2007). We review a sufficiency of the
evidence challenge by determining whether, viewing the evidence
in the light most favorable to the government, any rational
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trier of fact could find the essential elements of the crime
beyond a reasonable doubt. United States v. Collins, 412 F.3d
515, 519 (4th Cir. 2005); see Glasser v. United States, 315 U.S.
60, 80 (1942). We review both direct and circumstantial
evidence, and accord the government all reasonable inferences
from the facts shown to those sought to be established. United
States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). We do not
weigh the evidence or review the credibility of the witnesses.
See United States v. Allen, 491 F.3d 178, 185 (4th Cir. 2007).
If the evidence “supports different, reasonable interpretations,
the jury decides which interpretation to believe[.]” United
States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994) (citation
omitted). We will uphold the jury’s verdict if substantial
evidence supports it, and will reverse only in those rare cases
of clear failure by the prosecution. Foster, 507 F.3d at 244-
45.
In order to establish a violation of 18 U.S.C.
§ 922(g)(1), the Government had to prove: (1) the defendant was
a convicted felon; (2) he knowingly possessed the firearm; and
(3) the firearm traveled in interstate commerce. United
States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001); United
States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc).
After reviewing the record, it is clear that the evidence is
sufficient to allow a rational trier of fact to find the
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essential elements of two counts of possession of a firearm by a
felon beyond a reasonable doubt. Accordingly, this issue is
without merit.
II. Obstruction of justice enhancement
Next, Horton’s counsel contends that the district
court improperly enhanced Horton’s sentence for obstruction of
justice, upon its finding that Horton committed perjury when
testifying in his own defense. A district court’s factual
findings, including those that serve as a basis for an
obstruction of justice enhancement under USSG § 3C1.1, are
reviewed for clear error. United States v. Kiulin, 360 F.3d
456, 460 (4th Cir. 2004). This deferential standard of review
requires reversal only if we are “left with the definite and
firm conviction that a mistake has been committed.” United
States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (quoting
Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)).
However, we review a district court’s legal conclusions
regarding whether to apply a sentencing enhancement de novo.
See United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009).
According to USSG § 3C1.1, a defendant’s base offense
level is to be increased two levels for obstruction of justice
if
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[T]he defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice with respect to the investigation,
prosecution, or sentencing of the instant offense of
conviction, and . . . the obstructive conduct related
to (i) the defendant’s offense of conviction[.]
USSG § 3C1.1. The application notes for § 3C1.1 specifically
include the commission of perjury by defendant. USSG § 3C1.1
cmt. n.4(b). For purposes of § 3C1.1, the Supreme Court has
defined perjury in the following manner: “[a] witness
testifying under oath or affirmation [commits perjury] if she
gives false testimony concerning a material matter with the
willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory.” United
States v. Dunnigan, 507 U.S. 87, 94 (1993). Where “a defendant
objects to a sentence enhancement resulting from h[is] trial
testimony, a district court must review the evidence and make
independent findings necessary to establish a willful impediment
to or obstruction of justice, or an attempt to do the same,
under the perjury definition we have set out.” Id. at 95.
After reviewing the record, we hold that the district court’s
enhancement for obstruction of justice was not in error.
We have reviewed the issues raised in Horton’s pro se
supplemental brief and find them to be unavailing.
Additionally, in accordance with Anders, we have reviewed the
remainder of the record and find no meritorious issues for
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appeal. Accordingly, we affirm the judgment of the district
court, deny Horton’s counsel’s motion to withdraw, and deny
Horton’s motions to place this case in abeyance and to amend his
supplemental brief. We require that counsel inform his client,
in writing, of his 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
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