United States v. Brackett , 373 F. App'x 427 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4242
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL JAY BRACKETT,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:08-cr-00056-JPB-DJJ-2)
Submitted: March 10, 2010 Decided: April 12, 2010
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Byron Craig Manford, Martinsburg, West Virginia, for Appellant.
Sharon L. Potter, United States Attorney, Erin K. Reisenweber,
Assistant United States Attorney, Martinsburg, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Jay Brackett appeals his convictions and 210
month sentence following a jury trial on one count of conspiring
to possess with intent to sell stolen firearms, in violation of
18 U.S.C. § 922(j) (2006) (“Count One”), and one count of being
a felon in possession of a firearm and ammunition, in violation
of §§ 922(g)(1) & 924 (2006) (“Count Six”). We affirm.
Brackett’s first argument on appeal is that the
district court erred in denying his Fed. R. Crim. P. 29 motion
for judgment of acquittal and his motion for a new trial
because, according to Brackett, the evidence was insufficient to
sustain his convictions. This court reviews the denial of a
Rule 29 motion de novo, United States v. Alerre, 430 F.3d 681,
693 (4th Cir. 2005), and reviews the denial of a Rule 33 motion
for new trial for abuse of discretion. United States v.
Fulcher, 250 F.3d 244, 249 (4th Cir. 2001). To determine if
there was sufficient evidence to support a conviction, this
court considers whether, taking the evidence in the light most
favorable to the Government, substantial evidence supports the
jury’s verdict. Glasser v. United States, 315 U.S. 60, 80
(1942).
We have reviewed the materials on appeal and determine
that the evidence presented, viewed in the light most favorable
to the Government, was more than sufficient to sustain
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Brackett’s convictions on Count One and Six. Therefore,
Brackett’s first claim is without merit.
Next, Brackett argues that the district court erred by
not, sua sponte, giving a limiting instruction regarding his
prior felony convictions. Brackett failed to object in the
district court to the court’s failure to give a limiting
instruction. Accordingly, his claim is reviewed for plain
error. See United States v. Olano, 507 U.S. 725, 732 (1993)
(providing standard).
Assuming without deciding that the district court was
required to sua sponte give a limiting instruction, but see
United States v. Echeverri-Jaramillo, 777 F.2d 933, 937
(4th Cir. 1985), the alleged error had no effect on Brackett’s
substantial rights given the abundant evidence against him.
Moreover, the district court did instruct the jury that “[t]he
defendant is not on trial for any facts--or any acts or crimes
not alleged in the indictment,” and the parties stipulated to
the fact that Brackett had previously been convicted of a
felony. No evidence of the prior offense conduct was presented
to the jury. Accordingly, this claim fails.
Brackett also argues that a portion of the district
court’s general jury charge shifted the burden of proof from the
United States to him. The district court instructed the jury
that
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[c]ommon sense is no substitute for evidence, [y]ou
are permitted to use your common sense in evaluating
all the evidence, including the circumstantial
evidence, which the Government has presented to you in
an attempt to prove beyond a reasonable doubt the
guilt of Michael Jay Brackett.
According to Brackett, the last clause of that charge should
have read “which the Government has presented to you in an
attempt to prove beyond a reasonable doubt the guilt or
innocence of Michael Jay Brackett.”
The Government was not required to prove Brackett’s
innocence beyond a reasonable doubt, only his guilt. The
district court properly instructed the jury that the burden of
proof never shifted from the Government to Brackett and that
Brackett was innocent unless and until the Government proved his
guilt beyond a reasonable doubt. Accordingly, Brackett’s
challenge to the jury instruction fails.
Brackett also contends that the district court erred
by finding that he obstructed or attempted to obstruct justice
and enhancing his advisory guidelines range two levels pursuant
to USSG § 3C1.1. A district court’s factual findings, including
those that serve as a basis for a § 3C1.1 obstruction of justice
enhancement, are reviewed for clear error. United States v.
Kiulin, 360 F.3d 456, 460 (4th Cir. 2004).
At Brackett’s sentencing hearing, Brackett’s
co-defendant, Crum, testified that he wrote a letter recanting
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his earlier statement to law enforcement because he believed
Brackett would harm him if he did not. The co-defendant was
familiar with Brackett’s violent past and had received
information that Brackett had made a threat against Crum’s
mother’s life. The district court found this testimony
credible, a finding we do not reassess on appeal. See United
States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). Based on
the evidence presented, the district court did not clearly err
in applying the § 3C1.1 enhancement.
Next, although Brackett concedes that his sentence was
within the statutory maximum and within the advisory guideline
range, he asserts that he was sentenced in violation of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Specifically,
Brackett challenges the sentencing court’s finding that he had a
penchant for violence after hearing about Brackett’s alleged
threats against Crum and Crum’s mother and about Brackett’s
alleged violence toward others. To the extent Brackett claims
his sentence was enhanced based on his prior criminal history,
Apprendi specifically excepted prior criminal history from the
facts that must be submitted to a jury. Apprendi, 530 U.S. at
490. Also, to the extent that Brackett alleges the district
court based his sentence on uncharged prior bad acts that were
not admitted to or found beyond a reasonable doubt, his claim
fails because, following United States v. Booker, 543 U.S. 2205
(2005), a sentencing court continues to make decisions about
sentencing factors by a preponderance of the evidence. United
States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005). Accordingly,
Brackett’s Apprendi claim fails.
Brackett next asserts that his counsel rendered
ineffective assistance by failing to request a limiting
instruction, failing to object at various points in the
Government’s case in chief, and failing to provide clarification
through cross-examination. Claims of ineffective assistance of
counsel are not cognizable on direct appeal unless the record
conclusively establishes that counsel provided ineffective
assistance. United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir. 2006). We have reviewed the materials submitted on appeal
and find that the record does not conclusively establish that
counsel provided ineffective assistance. Accordingly, we
decline to address this issue on direct appeal.
Finally, Brackett claims that the cumulative weight of
all errors at trial warrants a new trial. Brackett has not
demonstrated that multiple errors occurred; therefore, the
cumulative error doctrine does not apply. See United States v.
Martinez, 277 F.3d 517, 532 (4th Cir. 2002).
For these reasons, we affirm Brackett’s convictions
and sentence. We dispense with oral argument as the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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