United States v. Norris , 140 F. App'x 443 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4563
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SAMARIA NORRIS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (CR-02-1171)
Submitted: June 15, 2005 Decided: July 13, 2005
Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Jack B. Swerling, LAW OFFICES OF JACK B. SWERLING, Columbia, South
Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, Marshall Prince, Assistant United States Attorney, Jimmie
C. Ewing, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Samaria Norris was convicted by a jury of conspiracy to
commit bank robbery, in violation of 18 U.S.C. §§ 371, 2113(a)
(2000) (Count One); bank robbery, in violation of 18 U.S.C. § 2113(a) (2000) (Count Four); two counts of making a false statement to
a law enforcement officers, in violation of 18 U.S.C. § 1001 (2000)
(Counts Five and Six); and structuring transactions to evade
reporting requirements, in violation of 31 U.S.C. §§ 5324(a)(3),
(d)(1) (2000) (Count Seven).1 She was sentenced to 60 months’
imprisonment each on Counts One, Five, Six, and Seven, and 136
months’ imprisonment on Count Four, all to run concurrently, three
years’ supervised release, and restitution in the amount of
$121,125. Norris appeals her conviction and sentence.
Norris contends that the trial court erroneously allowed
the Government to strike an African-American juror, in violation of
Batson v. Kentucky, 476 U.S. 79 (1986). Great deference is given
to a district court’s determination of whether a peremptory
challenge was based on a discriminatory motive, and the court’s
ruling is reviewed for clear error. Jones v. Plaster, 57 F.3d 417,
421 (4th Cir. 1995). Generally, a Batson challenge consists of
three steps: (1) the defendant makes a prima facie case; (2) the
1
Norris was indicted on nine counts stemming from bank
robberies in September 2000 and July 2001. Norris was found guilty
of the five counts related to the July 2001 robbery, but was
acquitted of the remaining four counts related to the September
2000 robbery or to passing counterfeit currency.
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Government offers a race neutral explanation; and (3) the trial
court decides whether the defendant has carried her burden and
proved purposeful discrimination. United States v. Barnette, 211
F.3d 803, 812 (4th Cir. 2000). “Once a prosecutor has offered a
race-neutral explanation for the peremptory challenges and the
trial court has ruled on the ultimate question of intentional
discrimination, the preliminary issue of whether the defendant had
made a prima facie showing becomes moot.” Hernandez v. New York,
500 U.S. 352, 359 (1991). “At this step of the inquiry, the issue
is the facial validity of the prosecutor’s explanation. Unless a
discriminatory intent is inherent in the prosecutor’s explanation,
the reason offered will be deemed race neutral.” Id. at 360.
The Government’s proffered explanation was that it struck
the juror in question based on its belief that he might be biased
as a result of his brother’s pending criminal charge. No empaneled
juror had a pending criminal charge or family member with a pending
criminal charge. Accordingly, the Government’s explanation
satisfies this second step. Turning to the third step in the
inquiry, we review only for clear error the trial court’s finding
that Norris failed to carry her burden to prove purposeful
discrimination. Jones v. Plaster, 57 F.3d 417, 421 (4th Cir.
1995). Norris offered no evidence of racial motivation. Based on
our review of the record in this case, the district court did not
clearly err in denying Norris’ Batson motion.
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Norris next argues that the trial court erred by
disallowing her to question the government’s witness, Sherry
Kinley, concerning Kinley’s possible involvement in a prior
unrelated robbery, in order to challenge her credibility. Norris
claims, through conclusory and unsupported allegations, that under
Fed. R. Evid. 404(b), evidence of Kinley’s involvement in a prior
robbery would somehow have negated Norris’ guilt. A district
court's exclusion of evidence under the Federal Rules of Evidence
is reviewed for an abuse of discretion. See United States v.
Francisco, 35 F.3d 116, 118 (4th Cir. 1994). The district court's
evidentiary rulings will not be reversed unless they are “arbitrary
or irrational.” See United States v. Powers, 59 F.3d 1460, 1464
(4th Cir. 1995). After careful review of the record, we conclude
that the district court did not abuse its discretion in excluding
the proffered evidence.
Norris also appeals her sentence, arguing the district
court erred in applying enhancements to her sentence based on facts
found by the court and not by the jury in violation of Blakely v.
Washington, 124 S. Ct. 2531 (2004), and United States v. Booker,
125 S. Ct. 738 (2005). Because Norris did not object to her
sentence in the district court based on Blakely or Booker, our
review is for plain error. United States v. Hughes, 401 F.3d 540,
547 (4th Cir. 2005). To demonstrate plain error, Norris must
establish that error occurred, that it was plain, and that it
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affected her substantial rights. Id. at 547-48. If a defendant
establishes these requirements, the Court’s “discretion is
appropriately exercised only when failure to do so would result in
a miscarriage of justice, such as when the defendant is actually
innocent or the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Id. at 555 (internal
quotation marks and citation omitted).
In Booker, the Supreme Court held that the mandatory
manner in which the federal sentencing guidelines required courts
to impose sentencing enhancements based on facts found by the court
by a preponderance of the evidence violated the Sixth Amendment.
125 S. Ct. at 746, 750. The Court remedied the constitutional
violation by severing two statutory provisions, 18 U.S.C.
§§ 3553(b)(1), 3742(e) (West 2000 & Supp. 2004), thereby making the
guidelines advisory. Hughes, 401 F.3d at 546.
In this case, the district court increased Norris’ base
offense level from twenty to thirty-two based on several
enhancements. Some of these enhancements were appropriately based
on facts found by the jury—for example, a two-level enhancement was
applied for taking money from a financial institution, which was
based on the jury finding Norris guilty of taking “monies belonging
to SouthTrust Bank and insured by the Federal Deposit Insurance
Corporation.” However, some of the enhancements were based on
facts not found by the jury or admitted by Norris. For example,
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the jury did not find that the robbery involved a threat of death
or physical restraint of an individual, each of which resulted in
a two-level enhancement based on the district court’s factual
findings.
Without the enhancements based on judge found facts,
Norris’ total combined offense level for all counts would be 24,
placing her guideline range at 51 to 63 months in prison. The
court’s calculation at sentencing gave Norris a sentencing range of
121 to 151 months in prison. Norris’ 136-month sentence thus
exceeded the sentence that could have been imposed based only on the
facts found by the jury.2 Accordingly, Because Norris’ sentence was
the result of the Sixth Amendment violation, we conclude that her
substantial rights were affected. Therefore, in light of Booker and
Hughes, we vacate the sentence and remand the case for resentencing
consistent with Booker and Hughes.
Although the Sentencing Guidelines are no longer
mandatory, Booker makes clear that a sentencing court must still
“consult [the] Guidelines and take them into account when
sentencing.” 125 S. Ct. at 767. On remand, the district court
should first determine the appropriate sentencing range under the
2
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Norris’ sentencing. See generally Johnson v. United
States, 520 U.S. 461, 468 (1997) (stating that an error is “plain”
if “the law at the time of trial was settled and clearly contrary
to the law at the time of appeal”).
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Guidelines, making all factual findings appropriate for that
determination. See United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005) (applying Booker on plain error review). The court
should consider this sentencing range along with the other factors
described in 18 U.S.C. § 3553(a) (2000), and then impose a sentence.
Id. If that sentence falls outside the Guidelines range, the court
should explain its reasons for the departure as required by 18
U.S.C. § 3553(c)(2) (2000). Id. The sentence must be “within the
statutorily prescribed range and . . . reasonable.” Id. at 546-47.
In sum, while we affirm the convictions, we vacate Norris’
sentence and remand the case for resentencing consistent with Booker
and Hughes. 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 IN PART,
VACATED IN PART, AND REMANDED
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