United States v. Dexter Broadnax, 4th Cir. (2012)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 11-4027
UNITED STATES OF AMERICA,

Plaintiff Appellee,
v.
DEXTER BROADNAX,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Fox, Senior
District Judge. (5:09-cr-00201-F-1)
Submitted:
May 17, 2012
Decided:
June 12, 2012
Before MOTZ, KING, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. James Payne, Shallotte, North Carolina, for Appellant.

Thomas G.
Walker,
United
States
Attorney,
Jennifer
P.
May-Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Dexter Broadnax of conspiracy
to commit robbery obstructing interstate commerce, in violation
of 18 U.S.C. 1951 (2006); six counts of robbery obstructing
interstate commerce and aiding and abetting, in violation of 18
U.S.C. 2, 1951 (2006); four counts of using a firearm during
the commission of a crime of violence and aiding and abetting,
in violation of 18 U.S.C. 2, 924(c) (2006); and possession of
a firearm after sustaining a conviction for a crime punishable
by a term of imprisonment exceeding one year, in violation of 18
U.S.C.
922(g)(1)
(2006).
The
district
court
sentenced
Broadnax to a total of 1,308 months of imprisonment and he now

appeals.
Finding no error, we affirm.

On
appeal,
Broadnax
first
argues
that
his
trial
counsel rendered ineffective assistance for failing to move to

suppress statements he made to a federal agent.
To prove a
claim of ineffective assistance of counsel, a defendant must

show
(1)
(2) that
that
the
Strickland
respect
counsels
deficient
v.
to
counsels
performance
Washington,
the
first
466
prong,
representation
reasonableness.
performance
fell
Id. at 688.
U.S.
the
below
was
deficient,
prejudiced
668,
687
defendant
an
the
defense.
(1984).
must
objective
and
With
show
that
standard
of
In addition, [j]udicial scrutiny
of counsels performance must be highly deferential.

2
Id. at
689.
Under the second prong of the test, [t]he defendant must
show
that
there
is
reasonable
probability
that,
but
for
counsels unprofessional errors, the result of the proceeding

would have been different.
Moreover,
we
Id. at 694.
may
address
claim
of
ineffective
assistance on direct appeal only if the lawyers ineffectiveness

conclusively
appears
on
the
record.
United
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
States
v.
We have reviewed
the record and conclude that ineffective assistance of counsel

does
not
conclusively
appear
on
the
record.
We
therefore
decline to consider this argument on direct appeal.

Broadnax
insufficient
to
next
support
firearm by a felon.
argues
the
that
conviction
the
for
evidence
possession
was
of
We review a district courts decision to
deny a Fed. R. Crim. P. 29 motion for a judgment of acquittal de

novo.
United States v. Smith, 451 F.3d 209, 216 (4th Cir.
2006).
A defendant challenging the sufficiency of the evidence
faces a heavy burden.

1067 (4th Cir. 1997).
United States v. Beidler, 110 F.3d 1064,

In reviewing the sufficiency of the
evidence supporting a criminal conviction, our role is limited

to considering whether there is substantial evidence, taking the
view most favorable to the Government, to support it.
(internal quotation marks and citation omitted).
Id.
Substantial
evidence is evidence that a reasonable finder of fact could

3
accept as adequate and sufficient to support a conclusion of a

defendants guilt beyond a reasonable doubt.
at
216
(internal
quotation
marks
and
Smith, 451 F.3d
citation
omitted).
Reversal for insufficient evidence is reserved for the rare

case where the prosecutions failure is clear.
Beidler, 110
F.3d at 1067 (internal quotation marks and citation omitted).

In addition, in order to prove possession under 18
U.S.C.
922(g),
the
government
need
not
prove
actual
or
exclusive possession, [rather] constructive or joint possession

is
sufficient.
136-37
(4th
possession
United
Cir.
can
be
States
2001)
v.
Gallimore,
(citation
omitted).
demonstrated
by
proof
247
F.3d
134,
Constructive
that
the
defendant
exercised, or had the power to exercise dominion and control

over
the
item.
Id.
citation omitted).
conclude
that
at
137
(internal
quotation
marks
and
Having thoroughly reviewed the record, we
there
was
substantial
evidence
to
support
the
jurys verdict of guilt of this offense.

Finally, Broadnax argues that the district court erred
in
applying
enhancements
under
the
advisory
Guidelines
for
obstruction of justice and use of a firearm during the final two

robberies.
the
In reviewing the district courts calculations under
Guidelines,
we
review
the
district
courts
legal
conclusions de novo and its factual findings for clear error.

United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010)
4
(internal
quotation
marks,
alteration,
and
citation
omitted).
We will find clear error only if, on the entire evidence, we

are left with the definite and firm conviction that a mistake
has
been
committed.
Id.
at
631
(internal
quotation
marks,
alterations, and citation omitted).

The Guidelines provide for a two-level enhancement if
a
defendant
willfully
obstructs
or
attempts
to
obstruct
the
administration of justice with respect to the prosecution of the

offense of conviction, related to the offense of conviction and
any
relevant
conduct.
U.S.
(USSG) 3C1.1 (2011).

enhancement
under
intimidating,
co-defendant.
section
otherwise
USSG
Guidelines
Manual
Obstruction of justice as warrants an
this
or
Sentencing
3C1.1
includes
unlawfully
cmt.
n.4(A).
threatening,
influencing
Also
under
a
the
Guidelines, a court must apply a six-level enhancement in the

offense
level
for
robbery
if
the
defendant
firearm in commission of the offense.

The
government
must
prove
otherwise
v.
Kiulin,
360
F.3d
456,
USSG 2B3.1(b)(2)(B).
application
of
enhancements by a preponderance of the evidence.

States
used
460
(4th
Cir.
Guidelines
See United
2004).
In
addition, in determining whether to apply the enhancements, a

court may consider acquitted conduct, as long as the conduct is
proven by a preponderance of the evidence.
Watts, 519 U.S. 148, 150-57 (1997).
5
See United States v.
Our review of the record
leads us to conclude that the district court did not err in

applying these enhancements under the advisory Guidelines.
Accordingly, we affirm the judgment of the district
court and deny Broadnaxs motion to file a pro se supplemental
brief.
legal
before
We dispense with oral argument because the facts and

contentions
the
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

May 17, 2012

June 12, 2012

Before MOTZ, KING, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

W. James Payne, Shallotte, North Carolina, for Appellant.

Unpublished opinions are not binding precedent in this circuit.

Broadnax to a total of 1,308 months of imprisonment and he now

Finding no error, we affirm.

counsel rendered ineffective assistance for failing to move to

claim of ineffective assistance of counsel, a defendant must

In addition, [j]udicial scrutiny

of counsels performance must be highly deferential.

Under the second prong of the test, [t]he defendant must

counsels unprofessional errors, the result of the proceeding

assistance on direct appeal only if the lawyers ineffectiveness

Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).

the record and conclude that ineffective assistance of counsel

decline to consider this argument on direct appeal.

We review a district courts decision to

deny a Fed. R. Crim. P. 29 motion for a judgment of acquittal de

United States v. Smith, 451 F.3d 209, 216 (4th Cir.

A defendant challenging the sufficiency of the evidence

faces a heavy burden.

United States v. Beidler, 110 F.3d 1064,

evidence supporting a criminal conviction, our role is limited

evidence is evidence that a reasonable finder of fact could

accept as adequate and sufficient to support a conclusion of a

Smith, 451 F.3d

Reversal for insufficient evidence is reserved for the rare

F.3d at 1067 (internal quotation marks and citation omitted).

exclusive possession, [rather] constructive or joint possession

exercised, or had the power to exercise dominion and control

Having thoroughly reviewed the record, we

jurys verdict of guilt of this offense.

obstruction of justice and use of a firearm during the final two

In reviewing the district courts calculations under

conclusions de novo and its factual findings for clear error.

We will find clear error only if, on the entire evidence, we

alterations, and citation omitted).

administration of justice with respect to the prosecution of the

(USSG) 3C1.1 (2011).

Obstruction of justice as warrants an

Guidelines, a court must apply a six-level enhancement in the

firearm in commission of the offense.

enhancements by a preponderance of the evidence.

addition, in determining whether to apply the enhancements, a

See United States v.

Our review of the record

leads us to conclude that the district court did not err in

We dispense with oral argument because the facts and

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