United States v. Burl , 22 F. App'x 276 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4466
MELVIN ANTONIO BURL,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CR-99-176)
Submitted: November 14, 2000
Decided: December 13, 2001
Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Jeffrey R. Russell, Norfolk, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, James Ashford Metcalfe, Assistant United
States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BURL
OPINION
PER CURIAM:
Melvin Antonio Burl, a Virginia prisoner, appeals his conviction
and sentence for drug trafficking offenses. Burl raises three issues on
appeal: whether the district court properly denied his Batson v. Ken-
tucky, 476 U.S. 79 (1986), challenge to jury selection, whether the
district court improperly commented on the evidence during jury
instructions, and (in his pro se brief) whether his sentence was plainly
erroneous under Apprendi v. New Jersey, 530 U.S. 466 (2000). Find-
ing no reversible error, we now affirm.
I.
Melvin Burl was discovered to possess a loaded handgun and
cocaine base pursuant to a lawful traffic stop and a lawful search. The
indictment specifies that Burl possessed five grams of cocaine base.
The jury returned a guilty verdict, and Burl was sentenced to a total
of 316 months imprisonment.
II.
A party alleging a Batson violation must make a prima facie case
of discriminatory use of peremptory challenges. Batson, 476 U.S. at
96-97; United States v. Grandison, 885 F.2d 143, 145 (4th Cir. 1989).
The burden then shifts to the striking party to provide a race-neutral
explanation for the peremptory challenge. Batson, 476 U.S. at 97. The
explanation need not be persuasive or even plausible. Purkett v. Elem,
514 U.S. 765, 767-68 (1995). A district court’s findings on a Batson
challenge necessarily involve credibility determinations; therefore, its
findings will be given great deference and will be reversed only for
clear error. Jones v. Plaster, 57 F.3d 417, 421 (4th Cir. 1995).
The district court provided sufficient findings to demonstrate that
it believed the Batson challenge to be meritless and that it found the
Government’s race-neutral reason acceptable. We defer to the district
court’s determination of credibility and find no error. Accordingly,
the district court’s rejection of Burl’s Batson claim is affirmed.
UNITED STATES v. BURL 3
III.
In charging the jury, the trial judge is not limited to the rote recita-
tion of instructions, but may "explain[ ] and comment[ ] upon the evi-
dence, by drawing [the jury’s] attention to the parts of it which he
thinks important, and he may express his opinion upon the facts."
Quercia v. United States, 289 U.S. 466, 469 (1933). This court has
held it is "particularly vital that the trial judge also instruct the jurors
that his comments are not binding upon them, but are only personal
views expressed for the purposes of assisting them, and that they are
the sole judges of the evidence." United States v. Tello, 707 F.2d 85,
88 (4th Cir. 1983).
The district court offered both summary commentary and the
required statement about the non-binding nature of his comments to
the jury. We find the district court’s commentary did not render
Burl’s trial unfair. Therefore, we dismiss Burl’s second claim.
IV.
Burl filed a motion for leave to file a supplemental pro se brief and
a pro se brief arguing that his sentence was plainly erroneous under
Apprendi v. New Jersey, 530 U.S. 466 (2000). While we grant Burl’s
motion to file a supplemental pro se brief and we fully consider his
arguments, we conclude, under the particular facts of this case, that
any error did not affect Burl’s substantial rights. See United States v.
Stewart, 256 F.3d 231, 252-53 (4th Cir.), cert. denied, United States
v. Simms, ___ S. Ct. ___, 2001 WL 1283457 (Nov. 26, 2001); United
States v. White, 238 F.3d 537, 543 (4th Cir.), cert. denied, 121 S. Ct.
2235 (2001). Accordingly, we affirm Burl’s conviction and sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the Court and
argument would not aid the decisional process.
AFFIRMED