United States v. Sheldon ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4375
BRANDON FORREST SHELDON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Peter J. Messitte, District Judge.
(CR-95-148-PJM)
Submitted: January 31, 1997
Decided: February 26, 1997
Before HALL, MURNAGHAN, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Richard C. Bittner, BITTNER & DEMYAN, Glen Burnie, Maryland,
for Appellant. Lisa J. Stark, Appellate Section, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C.; Lynne A. Battaglia, United States Attorney, Douglas B. Far-
quhar, Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Sheldon appeals from his convictions and sentence for
violating 18 U.S.C. § 241 and 42 U.S.C. § 3631 (1994). Sheldon and
an accomplice, John Boyd, Jr., built a cross out of lumber, doused it
with diesel fuel, and burned it in front of the house occupied by a
mixed race couple. Sheldon claims that his convictions violate his
First Amendment rights, and that the trial court erred in finding that
he improperly used his peremptory challenges, erred in admitting cer-
tain evidence, and erred by enhancing his sentence under the sentenc-
ing guidelines. We affirm.
We find no First Amendment violation in the convictions. Sheldon
contends that the trial court should have instructed the jury on the test
set out in Brandenburg v. Ohio, 395 U.S. 444 (1969). However, we
find no difference in the instructions given his jury and the instruc-
tions approved by the court in United States v. Lee, 6 F.3d 1297, 1304
(8th Cir. 1993) (en banc) (concurring opinion), which Sheldon cites
as giving the proper instructions when Brandenburg is applied. We
find that the statutes are not overbroad. See, e.g., United States v.
Stewart, 65 F.3d 918, 928-29 (11th Cir. 1995), cert. denied, 116 S.
Ct. 958 (1996). We also find that the statutes are not unconstitution-
ally vague. See, e.g., Stewart, 65 F.3d at 929. We thus reject his
constitutionally-based arguments.
Sheldon next claims that the trial court erred by finding that he
exercised peremptory challenges against three jurors based on their
race. Such a finding by the trial court is given"great deference" by
this court and is reviewed for clear error. See Hernandez v. New York,
500 U.S. 352, 364 (1991); Jones v. Plaster, 57 F.3d 417, 421 (4th Cir.
1995). After examining the record, including the reasons given by the
trial court for making its findings, we are unable to say that the find-
ings as to the exercise of these challenges are clearly erroneous.
2
The government presented evidence during the trial of Sheldon's
speech and actions which showed racial animus. He contends that the
trial court abused its discretion by allowing such evidence to be
admitted under Fed. R. Evid. 403. We find no abuse of discretion. See
United States v. McInnis, 976 F.2d 1226, 1230-32 (9th Cir. 1992)
(evidence properly admitted of defendant's possession of items show-
ing racial animus in § 3631 prosecution).
Finally, Sheldon presents three sentencing guidelines claims. First,
he claims that the trial court erred in enhancing his base offense level
by three levels for intentional selection of his victim based on race.
U. S. Sentencing Guidelines Manual § 3A1.1(a) (1995). However,
application note 4 to U.S.S.G. § 2H1.1 clearly shows that it is appro-
priate to add the three levels for selection of victim based on race.
Sheldon next claims that his sentence enhancements under both
§ 3A1.1(a) and § 3A1.1(b) (selection of vulnerable victim) are dupli-
cative. We reject this claim because the district court did not apply the
vulnerable victim enhancement solely because of the race of the vic-
tim. That enhancement was partially based on the isolated location of
the victims' home and did not duplicate the enhancement for selection
of a victim based on the victim's race. The last guidelines argument
is that the trial court failed to specifically find that the victims were
targeted due to their vulnerability as is required for proper application
of the enhancement. However, the court's statements, taken in context
with the arguments of the attorneys, show that the requisite finding
was made. We thus find no sentencing guideline errors.
We therefore affirm Sheldon's convictions and sentence. We dis-
pense 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
3