United States v. Lewis , 265 F. App'x 255 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 8, 2008
No. 06-20176
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARCUS J. LEWIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 4:05-CR-37-ALL
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Marcus Lewis appeals following his jury conviction of being a felon in pos-
session of a firearm. On appeal, he contends that the district court erred when
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-20176
it denied his motion to suppress; overruled his Batson v. Kentucky, 476 U.S. 79,
89 (1986), challenges; responded to jury note #1; denied a two-point reduction in
sentencing for acceptance of responsibility; and calculated the sentencing base
offense level pursuant to U.S.S.G. § 2K2.1(a)(4)(A).
Before trial, Lewis unsuccessfully moved to suppress, asserting that the
discovery of his firearm was the product of an unconstitutional search. The dis-
trict court found that the officers’ actions were reasonable under the circum-
stances and permissible under the Fourth Amendment. On appeal, Lewis does
not set forth any legal argument or authority or factual analysis to dispute the
findings or conclusions, so he has waived review. See United States v. Thames,
214 F.3d 608, 611 n.3 (5th Cir. 2000).
Lewis asserts that the court erred in denying his Batson challenges. The
Equal Protection Clause forbids a prosecutor to challenge potential jurors solely
on account of race. Batson, 476 U.S. at 89. In Batson, the Court outlined a
three-step process for evaluating a claim that a prosecutor used peremptory
challenges in a manner violating the Equal Protection Clause:
(1) a defendant must make a prima facie showing that the prosecu-
tor has exercised his peremptory challenges on the basis of race,
(2) the burden then shifts to the prosecutor to articulate a race-neu-
tral reason for excusing the juror in question, and (3) the trial court
must determine whether the defendant has carried his burden of
proving purposeful discrimination.
United States v. Perkins, 105 F.3d 976, 978 (5th Cir. 1997) (internal quotation
marks and citation omitted).
Lewis raised a Batson challenge to the government’s decision to strike ven-
ire members 3, 13, and 19. In response, the government proffered race-neutral
reasons, i.e., knowing the defense attorney and highly unpleasant experiences
with police officers. The government related that these same race-neutral rea-
sons were used to strike other venire members. The district court accepted the
government’s race-neutral reasons and determined that there was no purposeful
2
No. 06-20176
discrimination.
We give great deference to a district court’s findings regarding the govern-
ment’s discriminatory intent vel non. Hernandez v. New York, 500 U.S. 352,
364-65 (1991). Lewis has not made a showing that the court erred in deciding
that the peremptory challenges were not on account of purposeful discrimina-
tion.
Lewis asserts that the district court erred as to jury note # 1 regarding
constructive possession. Because Lewis objected to the court’s response to the
note, which may fairly be viewed as a jury instruction, his challenge to the re-
sponse is reviewed for abuse of discretion. See United States v. Freeman, 434
F.3d 369, 377 (5th Cir. 2005).
A jury instruction need not be a model of perfection to be upheld under
this standard. United States v. Branch, 46 F.3d 440, 442 n.2 (5th Cir. 1995). To
the contrary, “even if a portion of the jury instructions are not technically per-
fect, the district court’s instructions will be affirmed on appeal if the charge in
its entirety presents the jury with a reasonably accurate picture of the law.”
United States v. Jones, 132 F.3d 232, 243 (5th Cir. 1998).
Contrary to Lewis’s statements, constructive possession was at issue, and
jury note # 1 raised that issue. The response to the note merely instructed the
jury to reread its original instruction concerning the definition of possession.
The jury instructions tracked Fifth Circuit Pattern Jury Instructions (Criminal
Cases) § 1.31. Lewis does not cite any authority disapproving of the specific pat-
tern instruction. The response thus “present[ed] the jury with a reasonably ac-
curate picture of the law.” Jones, 132 F.3d at 243.
Lewis asserts that the district court erred by denying him a two-point re-
duction for acceptance of responsibility. The court determined that Lewis was
not entitled to the reduction, because he challenged the factual basis for the ele-
ments of the offense. Lewis fails to set forth any factual analysis to dispute that
finding, so he has waived review. See Thames, 214 F.3d at 611 n.3. To the ex-
3
No. 06-20176
tent he argues that he went to trial in an effort to continue his challenge on the
constitutionality of the initial search or that his going to trial “has the same
practical effect as the assertion of an entrapment defense, that is, confession and
avoidance,” he is not entitled to relief. See United States v. Cordero, 465 F.3d
626, 631-32 (5th Cir. 2006); United States v. Sanchez-Ruedas, 452 F.3d 409, 414-
15 (5th Cir.), cert. denied, 127 S. Ct. 315 (2006); United States v. Partida, 385
F.3d 546, 564 (5th Cir. 2004); United States v. Washington, 340 F.3d 222, 229-30
(5th Cir. 2003).
Lewis contends that his base offense level should not be determined by
U.S.S.G. § 2K2.1(a)(4)(A). He fails to brief the applicability of that guideline and
thus has waived review. See Thames, 214 F.3d at 611 n.3. To the extent he ar-
gues that the use of his prior conviction for enhancement purposes violates the
Double Jeopardy Clause or that his prior conviction is not a sentencing factor,
those arguments fail. See Sudds v. Maggio, 696 F.2d 415, 417 (5th Cir. 1983);
Apprendi v. New Jersey, 530 U.S. 466 (2000).
AFFIRMED.
4