United States v. Waynemon Bullock, 4th Cir. (2015)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 13-4767
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
WAYNEMON DEMOUNT BULLOCK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Fox, Senior
District Judge. (5:12-cr-00365-F-2)
Submitted:
January 29, 2015
Decided:
March 12, 2015
Before AGEE, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,

North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Phillip A. Rubin, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A
jury
convicted
Waynemon
Demount
Bullock
of
retaliation against a witness for his attendance and testimony

at an official proceeding, and aiding and abetting the same, in
violation of 18 U.S.C. 1513(b)(1), 2 (2012).
The district
court imposed a downward variant sentence of ninety-two months.

On
appeal,
Bullock
challenges
his
conviction
and
sentence.
Finding no reversible error, we affirm.

I.
A conviction under 1513(b)(1) requires proof beyond
a reasonable doubt that (1) the defendant knowingly engaged in
conduct either causing, or threatening to cause, bodily injury
to another person, and (2) acted with the intent to retaliate
for,
inter
proceeding.
alia,
the
United
(10th Cir. 2009).

jury
offense
U.S.C.
and
States
arguing
eliminated
that
v.
of
witness
Wardell,
591
at
F.3d
an
official
1279,
1291
Bullock first challenges the district courts
instructions,
instruction
testimony
an
1513(b)(2)
the
that
the
retaliatory
instruction
(2012),
on
aiding
intent
another
confused
the
and
abetting
element
count,
jury
as
of
the
under
18
to
the
knowledge and intent Bullock had to possess for the jury to

convict
him
under
18
U.S.C.
1513(b)(1).
We
review
the
district courts jury instructions in their entirety and as part

of the whole trial, and focus on whether the district court
2
adequately instructed the jury regarding the elements of the

offense and the defendants defenses.
United States v. Wilson,
198 F.3d 467, 469 (4th Cir. 1999) (citation omitted).

We
review
Bullocks
instructions for plain error.
challenges
to
the
jury
Bullock raised no objection to
the aiding and abetting instruction below; while he did object

to the 1513(b)(2) instruction, he did so on grounds other than
that it confused the jury about the elements of 1513(b)(1),
the issue he raises here.
See Fed. R. Crim. P. 30(d) (requiring
party to inform district court of specific grounds for objection

to instruction; otherwise, review is for plain error under Fed.
R. Crim. P. 52(b)); United States v. Robinson, 627 F.3d 941, 953
(4th Cir. 2010).
After properly instructing the jury on the elements of
18 U.S.C. 1513(b)(1), the district court instructed the jury
regarding
aiding
and
abetting,
stating
that
[a]
person
may
violate the law even though he or she does not personally do

every each and every act constituting the offense if that
person aided and abetted the commission of the offense.
conclude
that
misleading.
this
instruction
was
neither
erroneous
We
nor
As a defendants intent, knowledge, and motivation
when committing an offense are not acts, the aiding and abetting
instruction did not diminish the finding the jury needed to make
regarding Bullocks retaliatory intent.
3
Bullock next argues that the instructions on the 18

U.S.C. 1513(b)(2) charge confused the jury as to the elements
of 1513(b)(1).
find
Bullock
The district court instructed the jury that, to

guilty
of
retaliating
against
person
for
providing a law enforcement officer information related to the

commission of a federal offense, it did not need to find that
Bullock knew that the law enforcement officer was a federal law
enforcement officer.
We
perceive
issue confused
the
1513(b)(1).
against
official
no
jury
First,
witness
his
did
enforcement officer.
regarding
Bullocks
for
proceeding
likelihood
that
the
require
instruction
elements
conviction
attendance
not
the
and
of
of
18
U.S.C.
retaliation
testimony
involvement
at
at
of
an
law
Second, the district court twice properly
instructed the jury that to convict Bullock under 18 U.S.C.

1513(b)(1), it needed to find that Bullock knew the official
proceeding was a federal one.
Accordingly, we find no reason to
reverse Bullocks conviction based on the jury instructions.

Bullock also attacks his conviction by asserting that
the
Government
failed
to
produce
sufficient
evidence
establishing that he knew the victim had testified in a federal

proceeding or that he entered the affray with the intent to
retaliate
challenges
against
to
the
the
victim
for
sufficiency
of
4
his
testimony.
evidence
de
We
novo.
review
United
States v. Roe, 606 F.3d 180, 186 (4th Cir. 2010).
The jurys
verdict
substantial
must
be
upheld
on
appeal
if
there
is
evidence in the record to support it, where substantial evidence

is evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendants
guilt beyond a reasonable doubt.
United States v. Perry, 757
F.3d 166, 175 (4th Cir. 2014) (emphasis and internal quotation
marks omitted), cert. denied, ___ S. Ct. ___, 2015 WL 133401
(U.S. Jan. 12, 2015) (No. 14-7289).
Although Bullock testified that he did not know that
the
victim
testified
in
federal
proceeding,
three
of
the
Governments witnesses provided the jury with ample testimony to

conclude beyond a reasonable doubt that Bullock was aware of the
victims testimony at the time of the altercation and joined in
the fight in retaliation for the victims testimony.
We do not
reweigh the jurys credibility determinations, United States v.

Kelly, 510 F.3d 433, 440 (4th Cir. 2007), and Bullock has not
sustained
his
burden
of
showing
that
the
evidence
was
insufficient to support his conviction.

II.
Bullock
challenges
the
reasonableness of his sentence.

for
reasonableness
standard.
under
procedural
and
substantive
We review Bullocks sentence

deferential
abuse-of-discretion
Gall v. United States, 552 U.S. 38, 41 (2007).

5
district
court
commits
procedural
error
where,
among
other
things, it improperly calculates the Guidelines range, fails to

give sufficient consideration to the 18 U.S.C. 3553(a) (2012)
factors, or inadequately explains the sentence imposed.
51.
Id. at
Legal conclusions made by the district court in imposing a
sentence,
including
which
U.S.
Sentencing
Guidelines
Manual
(USSG) (2012) provision is applicable for scoring an offense

of conviction, are reviewed de novo.
United States v. Boulware,
604 F.3d 832, 835 (4th Cir. 2010).

When
reviewing
sentence
for
substantive
reasonableness, we examine[] 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 v. Mendoza-Mendoza, 597
F.3d 212, 216 (4th Cir. 2010).
[A]n appellate court must defer
to the trial court and can reverse a sentence only if it is

unreasonable,
even
if
the
sentence
choice of the appellate court.

F.3d
155,
160
defendants
(4th
properly
Cir.
not
have
been
the
United States v. Evans, 526
2008).
calculated
would
sentence
Guidelines
range
within
is
the
presumed
substantively reasonable on appeal, and [s]uch a presumption

can
only
be
unreasonable
rebutted
when
by
measured
showing
against
that
the
18
the
sentence
U.S.C.
is
3553(a)
factors.
United States v. Louthian, 756 F.3d 295, 306 (4th
Cir.), cert. denied, 135 S. Ct. 421 (2014).

First, Bullock argues that the district court should
have
applied
offenses,
USSG
rather
than
justice offenses.
2A2.2,
USSG
governing
2J1.2,
aggravated
governing
assault
obstruction
of
The Statutory Index in the Guidelines Manual
lists both USSG 2A2.2 and 2J1.2 as potentially applicable

provisions
for
1513(b)(1).
scoring
conviction
under
See USSG App. A (Statutory Index).
18
U.S.C.
To determine
which provision is most applicable, a court must look at the

offense conduct charged in the indictment.
at 836.
Boulware, 604 F.3d
If both provisions are equally applicable a court
should apply the provision that results in the greater offense

level.
USSG 1B1.1 cmt. n.5.

With
regard
to
the
18
U.S.C.
1513(b)(1)
charge,
Bullocks indictment alleged that he cause[d] bodily injury to

another person and that he did so with the intent to retaliate
against a person for the attendance of, and testimony given by,
a witness.
Accordingly, the charged conduct, read in a light
most favorable to Bullock, falls at least equally within both of

the
cmt.
potentially
applicable
background
scoring
Bullocks
with
USSG
offense
provisions.
2J1.2
of
cmt.
conviction
Compare
USSG
2A2.2
background.
Where
under
USSG
2J1.2
produced a higher total offense level, the district court did

not procedurally err when it applied USSG 2J1.2.
Second,
Bullock
argues
that
the
district
court
procedurally erred when it varied downward without explaining

the extent of its variance or why the lower sentence Bullock
sought did not satisfy the 18 U.S.C. 3553(a) factors.
Where
the district court imposes a variant sentence, it must give

serious consideration to the extent of the . . . variance, and
must
adequately
explain
the
chosen
sentence
to
allow
for
meaningful appellate review and to promote the perception of

fair sentencing.
United States v. Montes-Flores, 736 F.3d 357,
371 (4th Cir. 2013) (internal quotation marks omitted).
In this
case, the district court did not specify why the extent of the
chosen
variance
court,
while
factors
and
was
appropriate.
stating
making
that
brief
it
had
Furthermore,
considered
reference
to
the
the
district
3553(a)
Bullocks
criminal
record, did not explain how the sentencing factors applied to

Bullocks case.
Accordingly, the district court procedurally
erred when imposing Bullocks sentence.
See United States v.
Carter, 564 F.3d 325, 329-30 (4th Cir. 2009) (district courts
statement
that
it
considered
3553(a)
factors
constitutes
procedural error where it did not articulate how the sentencing

factors applied to the facts of the particular case before it).
We
review
harmlessness.
procedural
error
at
Boulware, 604 F.3d at 838.
sentencing
for
A district courts
failure to properly explain its sentence is harmless where the

error
did
influence
not
on
have
the
substantial
result,
and
injurious
including
where
effect
the
or
record
demonstrates that the district court considered the arguments

advanced by the defendant and the arguments were weak.
839-40.
was
Id. at
Here, Bullock argued that a downward variant sentence
appropriate
because
under USSG 2A2.2.
his
offense
should
have
been
scored
Although the district court opted to vary
downward to some extent, the record makes clear that it had

already rejected Bullocks scoring argument, in accordance with
the
Guidelines.
Therefore,
the
district
courts
failure
to
adequately explain its sentence was harmless.

Finally,
Bullock
argues
that
his
sentence
is
substantively unreasonable because the district court did not

adequately
Bullocks
tie
his
sentence
ninety-two-month
to
the
sentence
3553(a)
is
factors.
downward
sentence, we presume it is substantively reasonable.

756 F.3d at 306.
As
variant
Louthian,
Bullock has not overcome the presumption of
substantive reasonableness where the district courts sentence

accounted for Bullocks pattern of recidivism.
3553(a)(2)(B),
(a)(2)(C)
(listing
need
to
See 18 U.S.C.
afford
adequate
deterrence and to protect the public from further crimes of

the defendant as sentencing factors).
III.
Accordingly,
sentence.
legal
before
we
affirm
Bullocks
conviction
and
We dispense with oral argument because the facts and
contentions
this
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED
10

United States v. Waynemon Bullock, 4th Cir. (2015)

Uploaded by

Copyright:

Available Formats

United States v. Waynemon Bullock, 4th Cir. (2015)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

United States v. Waynemon Bullock, 4th Cir. (2015)

Uploaded by

Copyright:

Available Formats

UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

January 29, 2015

March 12, 2015

Before AGEE, DIAZ, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,

Unpublished opinions are not binding precedent in this circuit.

retaliation against a witness for his attendance and testimony

court imposed a downward variant sentence of ninety-two months.

Finding no reversible error, we affirm.

(10th Cir. 2009).

Bullock first challenges the district courts

knowledge and intent Bullock had to possess for the jury to

district courts jury instructions in their entirety and as part

adequately instructed the jury regarding the elements of the

United States v. Wilson,

198 F.3d 467, 469 (4th Cir. 1999) (citation omitted).

instructions for plain error.

Bullock raised no objection to

the aiding and abetting instruction below; while he did object

See Fed. R. Crim. P. 30(d) (requiring

party to inform district court of specific grounds for objection

violate the law even though he or she does not personally do

As a defendants intent, knowledge, and motivation

Bullock next argues that the instructions on the 18

The district court instructed the jury that, to

providing a law enforcement officer information related to the

Second, the district court twice properly

instructed the jury that to convict Bullock under 18 U.S.C.

Accordingly, we find no reason to

reverse Bullocks conviction based on the jury instructions.

establishing that he knew the victim had testified in a federal

States v. Roe, 606 F.3d 180, 186 (4th Cir. 2010).

evidence in the record to support it, where substantial evidence

United States v. Perry, 757

Governments witnesses provided the jury with ample testimony to

reweigh the jurys credibility determinations, United States v.

insufficient to support his conviction.

reasonableness of his sentence.

We review Bullocks sentence

Gall v. United States, 552 U.S. 38, 41 (2007).

things, it improperly calculates the Guidelines range, fails to

Legal conclusions made by the district court in imposing a

(USSG) (2012) provision is applicable for scoring an offense

United States v. Boulware,

604 F.3d 832, 835 (4th Cir. 2010).

reasonableness, we examine[] the totality of the circumstances

United States v. Mendoza-Mendoza, 597

F.3d 212, 216 (4th Cir. 2010).

[A]n appellate court must defer

to the trial court and can reverse a sentence only if it is

choice of the appellate court.

United States v. Evans, 526

substantively reasonable on appeal, and [s]uch a presumption

United States v. Louthian, 756 F.3d 295, 306 (4th

Cir.), cert. denied, 135 S. Ct. 421 (2014).

The Statutory Index in the Guidelines Manual