US v. Rodney Clegg, No. 15-4232 (4th Cir. 2016)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4232 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RODNEY CORNELIUS CLEGG, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:14-cr-00379-CCE-1) Submitted: November 30, 2015 Decided: January 6, 2016 Before NIEMEYER, THACKER, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen, Federal Public Defender, John A. Duberstein, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. JoAnna Gibson McFadden, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Rodney Cornelius Clegg appeals his conviction following a jury trial for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012), and his resulting 37month sentence. Clegg’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), concluding that there are no meritorious issues for appeal but questioning whether the court erred in instructions admitting were certain erroneous, evidence, whether the whether the court erred jury in upholding the jury’s verdict, and whether Clegg’s sentence is reasonable. not Although notified of his right to do so, Clegg has filed a pro se supplemental brief. After careful consideration of the entire record, we affirm. First, admitting profile. and counsel into questions evidence whether photographs the from court Clegg’s erred in Facebook We review evidentiary rulings for abuse of discretion “will irrational.” only overturn a ruling that is arbitrary and United States v. Hassan, 742 F.3d 104, 130 (4th Cir.) (alteration and internal quotations marks omitted), cert. denied, 135 S. Ct. 157 (2014). not abuse its discretion We conclude that the court did in admitting the challenged photographs. Next, counsel questions whether the district court erred in instructing the jury. Clegg did not object to the instructions 2 in the district court, and we therefore review only for plain error. United States v. Olano, 507 U.S. 725, 731-32 (1993). The Anders brief fails to question any particular instruction and the record instructions. is devoid of any dispute about the jury Thus, we find that Clegg has failed to establish plain error. Counsel also questions whether the court erred by upholding the jury’s verdict despite Clegg’s motion for acquittal. review the denial of a motion for acquittal de novo. States v. Said, 798 F.3d 182, 193 (4th Cir. 2015). We United The jury verdict must be sustained if, when “viewing the evidence in the light most favorable to the government, there is substantial evidence in the record to support the verdict.” United States v. Cornell, 780 F.3d 616, 630 (4th Cir.) (internal quotation marks omitted), cert. denied, 136 S. Ct. 127 (2015). “[S]ubstantial 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.” Id. (internal quotation marks omitted). We conclude presented substantial evidence as to the disputed element of the offense. The parties stipulated to possession of evidence and all the that of the the firearm, eyewitness Government elements and the testimony 3 except Clegg’s Government’s that Clegg knowing photographic possessed and discharged a firearm constituted knowing possession element. sufficient evidence on the To the extent that Clegg is also challenging the court’s denial of his motion for a mistrial, we have reviewed the record and conclude that the court did not err. Finally, reasonable. counsel questions whether Clegg’s sentence is We review a sentence for reasonableness, applying “a deferential abuse-of-discretion standard.” States, 552 U.S. sentence is district court 38, 41 procedurally (2007). In determining reasonable, we calculated the properly Gall v. United consider whether whether applicable a the advisory Guidelines range, gave the parties an opportunity to argue for an appropriate (2012) sentence, factors, sentence. and considered sufficiently Id. at 49-51. the 18 U.S.C. explained the § 3553(a) selected If we find no significant procedural error, we examine the substantive reasonableness of the sentence under “the totality of the circumstances.” When Guidelines a sentence range, we is above consider the “whether Id. at 51. applicable the Sentencing sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect to the extent of the divergence from the sentencing range.” F.3d 938, omitted). 944 (4th Cir. United States v. Washington, 743 2014) (internal quotation marks “A major departure from the advisory range should be 4 supported by a more significant justification than a minor one.” United States v. Morace, 594 F.3d 340, 346 (4th Cir. 2010) (internal quotation marks omitted). We conclude that Clegg’s sentence is both procedurally and substantively reasonable. The district court calculated Clegg’s Sentencing Guidelines range. considered before Clegg’s issuing oral its objection sentence. and the Further, correctly The court also parties’ although arguments the court elected to vary upward by three months from the top of the applicable Guidelines range, the court’s decision to vary and the extent of the variance were well-reasoned. In accordance with Anders, we have reviewed the entire record in this case for meritorious issues and have found none. Accordingly, we affirm Clegg’s conviction and sentence. This court requires that counsel inform Clegg, in writing, of his right to petition the Supreme Court of the United States for further review. If Clegg requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in this court for leave to withdraw from Counsel’s motion must state that a copy thereof was served on the client. 5 We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 6
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