US v. Davin Stewart, No. 10-4631 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4631 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVIN JEROME STEWART, Defendant - Appellant. No. 10-4633 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVIN JEROME STEWART, Defendant - Appellant. Appeals from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, Chief District Judge. (2:96-cr-00115-DCN-2; 2:09-cr-00295-DCN-1) Submitted: December 22, 2010 Decided: January 21, 2011 Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Mary Gordon Baker, Assistant Federal Public Defender, Charleston, South Carolina, for Appellant. Alston Calhoun Badger, Jr., Assistant United States Attorney, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: In these consolidated appeals, Appellant Davin Jerome Stewart appeals the judgment of conviction entered after a jury trial and the amended judgment revoking supervised release. Stewart was convicted of one count of bank robbery and aiding and abetting such conduct, in violation of 18 U.S.C. §§ 2113(a), (d), and 2 (2006), one count of using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (2006), and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006). He was sentenced to a total of 171 months imprisonment for the three convictions. Based on the convictions, the district court revoked Stewart s supervised release and sentenced him to an additional thirty month term to run consecutive to the underlying sentences. Stewart s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), certifying there are no meritorious issues for appeal but raising for the court s consideration whether the evidence was sufficient to support sentences were reasonable. the convictions and The Government We affirm. A evidence the Stewart was given the opportunity to file a pro se supplemental brief but declined. did not file a brief. whether defendant to support challenging his conviction 3 the sufficiency bears a heavy of the burden. United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks omitted). A jury s 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 United States v. Perkins, 470 F.3d 150, 160 (4th Cir. 2006). evidence that a reasonable finder Substantial evidence is of fact could accept as adequate and sufficient to support a conclusion of a defendant s United States v. Alerre, 430 guilt beyond a reasonable doubt. F.3d 681, omitted). 693 (4th Cir. 2005) (internal quotation marks The court considers both circumstantial and direct evidence, drawing all reasonable inferences from such evidence in the government s favor. United States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). In resolving issues of substantial evidence, this court does not reweigh the evidence or reassess the factfinder s determination of witness credibility, see United States v. Brooks, 524 F.3d 549, 563 (4th Cir. 2008), and can reverse a conviction on insufficiency grounds only when the prosecution s failure is clear. United States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc) (internal quotation marks omitted). We conclude there was more than sufficient evidence to support all three convictions. The evidence showed that Stewart was captured by police after being seen running from one of the 4 getaway vehicles. Near where he was seized was a bag of dye- stained money, blue gloves and a ski mask similar to what was worn by the robbers. There was also evidence that one of his fingerprints was lifted off of one of the bullets taken from one of the guns. It also appeared from the surveillance video of the robbery that Stewart fit the physical type of the robber who jumped the counter and seized the money. Although Stewart was not observed using a gun, his accomplice was seen brandishing two guns during the robbery. Furthermore, Stewart stipulated to being a convicted felon and that the handguns and ammunition were manufactured outside South Carolina. We conclude there was ample evidence showing that Stewart was an active participant in the robbery, that he aided and abetted the use of a firearm in furtherance of a crime of violence, and that he was a felon in unlawful possession of ammunition. This court reviews a district court s sentence reasonableness under an abuse-of-discretion standard. for Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Pauley, requires 511 F.3d appellate 468, 473-74 (4th consideration of Cir. both substantive reasonableness of a sentence. 2007). This review the procedural and Gall, 552 U.S. at 51. In determining procedural reasonableness, this court considers whether the district court properly calculated the defendant s advisory Guidelines range, considered the 18 U.S.C. § 3553(a) 5 (2006) factors, analyzed any arguments presented by the parties, and sufficiently Regardless of explained whether the the below, or an individualized district within-Guidelines record selected court sentence, assessment it sentence. imposes must based an place on the Id. above, on the particular United States v. Carter, 564 F.3d facts of the case before it. 325, 330 (4th Cir. 2009) (internal quotation marks omitted). Finally, this court reviews the substantive reasonableness of the sentence, examin[ing] the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a). United States Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). v. If the sentence imposed is within the appropriate Guidelines range, on appeal it is presumptively reasonable. F.3d 216, 218 (4th Cir. 2008). United States v. Go, 517 This presumption may be rebutted by a showing that the sentence is unreasonable when measured against the § 3553(a) factors. 445 F.3d 375, 379 (4th review a Cir. United States v. Montes-Pineda, 2006) (internal quotation marks omitted). We supervised release prescribed statutory to sentence imposed determine range and after whether is not it revocation is plainly within of the unreasonable. United States v. Crudup, 461 F.3d 433, 437-39 (4th Cir. 2006). 6 We have reviewed Supervised the Release transcript and find Presentence Violation no Investigation Report error. and Report, the Accordingly, the sentencing we affirm the sentences. In accordance with Anders, we have reviewed the entire record for meritorious issues and have found none. We therefore affirm. This court requires that counsel inform the client, in writing, of his right to petition United States for further review. the Supreme Court of the If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy was served on the client. oral argument adequately because presented in the the facts and materials We dispense with legal before contentions the court are and argument would not aid the decisional process. AFFIRMED 7

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