United States v. Mayberry , 341 F. App'x 859 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6782
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONALD MAYBERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:05-cr-00299-FL-1; 5:07-cv-00307-FL)
Submitted: July 27, 2009 Decided: August 13, 2009
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Rudolph A. Ashton, III, MCCOTTER, ASHTON & SMITH, P.A., New
Bern, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald Mayberry was indicted on one count of
possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1), 924 (2006). Following a jury trial,
Mayberry was convicted and sentenced to thirty-six months’
imprisonment. On appeal, Mayberry contends that the district
court erred in not sua sponte entering a judgment of acquittal
under Federal Rule of Criminal Procedure 29 (“Rule 29”) based on
insufficient evidence, that his trial counsel was ineffective
for failing to move for a Rule 29 judgment of acquittal, and
that the district court’s jury instructions were deficient
because they failed to state that the jury must unanimously
determine which firearm Mayberry possessed. For the reasons
below, we affirm the judgment of the district court.
I.
Mayberry first argues that the district court erred in
failing to enter, sua sponte, a judgment of acquittal under Rule
29 based on insufficient evidence that Mayberry knowingly
possessed a firearm. Pursuant to Rule 29:
After the government closes its evidence or
after the close of all the evidence, the
court on the defendant’s motion must enter a
judgment of acquittal of any offense for
which the evidence is insufficient to
sustain a conviction. The court may on its
own consider whether the evidence is
insufficient to sustain a conviction.
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Fed. R. Crim. P. 29(a). Mayberry’s counsel, though prompted by
the court, did not file a Rule 29 motion for acquittal. Because
Mayberry failed to move for acquittal pursuant to Rule 29, our
review is for plain error under Federal Rule of Criminal
Procedure 52. * Fed. R. Crim. P. 52(b); United States v. Wallace,
515 F.3d 327, 332 (4th Cir. 2008). To demonstrate plain error,
a defendant must show that: (1) there was an error; (2) the
error was clear or obvious; and (3) the error affected his
“substantial rights.” United States v. Olano, 507 U.S. 725,
732–34 (1993). We are not required to correct a plain error
unless “a miscarriage of justice would otherwise result,”
meaning that the error “cause[d] the conviction or sentencing of
an actually innocent defendant.” Id. at 736 (internal quotation
marks and citations omitted).
“A defendant challenging the sufficiency of the
evidence to support his conviction bears a heavy burden.”
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)
(internal quotation marks and citation omitted). A jury’s
*
Mayberry argues that our review should be de novo because
the district court denied a judgment of acquittal. However,
Mayberry readily concedes there was no Rule 29 motion filed.
Instead, Mayberry appears to argue that, because the district
court was permitted to consider sua sponte evidentiary
sufficiency, it effectively denied a motion by not doing so. We
decline to adopt this reasoning and find that plain error is the
proper standard of review.
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verdict “must be sustained if there is substantial evidence,
taking the view most favorable to the Government, to support
it.” Glasser v. United States, 315 U.S. 60, 80 (1942). See
also United States v. Martin, 523 F.3d 281, 284 (4th Cir. 2008).
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. Alerre, 430 F.3d 681, 693 (4th Cir. 2005)
(internal quotation marks and citation omitted). We “may not
weigh the evidence or review the credibility of the witnesses
[because] [t]hose functions are reserved for the jury.” United
States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997) (internal
citation omitted).
“[T]o prove a violation of § 922(g)(1), the government
must prove, beyond a reasonable doubt, that: (1) the defendant
previously had been convicted of a crime punishable by a term of
imprisonment exceeding one year; (2) the defendant knowingly
possessed . . . the firearm; and (3) the possession was in or
affecting commerce . . . .” United States v. Langley, 62 F.3d
602, 606 (4th Cir. 1995). Mayberry does not deny that he was
previously convicted of a crime punishable by a term of
imprisonment exceeding one year or that the firearm traveled in
interstate commerce. Mayberry argues only that the evidence was
not sufficient to prove his constrictive possession of .380
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caliber Hi Point found in his stepson’s bedroom. What Mayberry
ignores, however, is that a neighbor’s testimony established
that Mayberry possessed and fired a weapon in his front yard on
May 21, 2005. Moreover, expert testimony established that the
spent shell casing found outside Mayberry’s home on May 21,
2005, came from the .380 caliber Hi Point later found in the
stepson’s bedroom. Viewing the evidence in the light most
favorable to the Government, we find that this testimony was
substantial enough for the jury to determine that Mayberry had
actual possession of a firearm. Mayberry’s claim thus fails.
II.
Mayberry next argues that he received ineffective
assistance of counsel because counsel failed to file a Rule 29
motion for acquittal and that, had such motion been filed, it
would have been granted. A defendant may raise a claim of
ineffective assistance of counsel “on direct appeal if and only
if it conclusively appears from the record that his counsel did
not provide effective assistance.” United States v. Martinez,
136 F.3d 972, 979 (4th Cir. 1998). To prove ineffective
assistance the defendant must show two things: (1) “that
counsel’s representation fell below an objective standard of
reasonableness” and (2) “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v.
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Washington, 466 U.S. 668, 688, 694 (1984). There is “a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Id. at 689.
In United States v. Daniel, 3 F.3d 775, 779 (4th Cir.
1993), we held that counsel was not ineffective for failing to
seek a judgment of acquittal because counsel was
“demonstrat[ing] his sound evaluation of [the] likelihood of
success.” Further, in Williams v. Kelly, 816 F.2d 939, 949-50
(4th Cir. 1987), we found that counsel’s failure to file a
motion to strike was a reasonable strategic decision, one we
declined to second guess. We find that, in light of the
substantial evidence presented that Mayberry possessed a firearm
as a convicted felon on May 21, 2005, counsel’s decision not to
file a Rule 29 motion for acquittal was a reasonable strategic
decision. Accordingly, Mayberry has not conclusively shown that
he received ineffective assistance of counsel.
III.
Finally, Mayberry argues that the district court
committed plain error in the jury instructions by failing to
clearly state which firearm was at issue. Mayberry argues that,
because of the district court’s error, the jury may have been
confused and the verdict not unanimous that Mayberry possessed a
particular firearm -- a .380 caliber Hi Point pistol.
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Because Mayberry failed to object to the jury
instructions at trial, we review for plain error. United States
v. Hastings, 134 F.3d 235, 239 (4th Cir. 1998). “Jury
instructions are reviewed to determine whether, taken as a
whole, the instructions fairly state the controlling law.”
United States v. McQueen, 445 F.3d 757, 759 (4th Cir. 2006)
(internal quotation marks, alterations, and citation omitted).
In this case, 18 U.S.C. § 922(g)(1) (2006) provides
the controlling law. That statute makes it unlawful for a
convicted felon to possess any firearm. The identity of the
firearm is not an element of the offense; thus any firearm
suffices to trigger a violation of § 922(g)(1). See United
States v. Talbert, 501 F.3d 449, 451–52 (5th Cir. 2007), United
States v. DeJohn, 368 F.3d 533, 542 (6th Cir. 2004), United
States v. Verrecchia, 196 F.3d 294, 298–99 (1st Cir. 1999).
We find that the district court’s jury instructions, when
taken as a whole, fairly state the controlling law. The
district court read the charge in the indictment, that Mayberry
possessed “firearms, including a HiPoint, .380 caliber semi-
automatic pistol,” and instructed the jurors on the elements of
the crime, including that they could only find Mayberry guilty
if they found that Mayberry “knowingly possessed a firearm and
ammunition as charged.” The district court also instructed the
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jury that its decision was required to be unanimous. Therefore,
the district court did not err in its jury instructions.
Accordingly, we affirm the judgment of the district
court. 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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