United States v. Wallace, 515 F.3d 327, 4th Cir. (2008)

PUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONOVAN LAMONT WALLACE,
Defendant-Appellant.
No. 06-5016
Appeal from the United States District Court

for the Northern District of West Virginia, at Elkins.
Robert E. Maxwell, Senior District Judge.
(2:04-cr-00019-REM)
Argued: December 7, 2007
Decided: February 12, 2008
Before NIEMEYER and GREGORY, Circuit Judges,
and Henry F. FLOYD, United States District Judge
for the District of South Carolina, sitting by designation.
Affirmed by published opinion. Judge Gregory wrote the opinion, in

which Judge Niemeyer and Judge Floyd joined.
COUNSEL
ARGUED: Brian Joseph Kornbrath, Federal Public Defender,
Clarksburg, West Virginia, for Appellant. Stephen Donald Warner,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Elkins, West Virginia, for Appellee. ON
BRIEF: Sharon L. Potter, United States Attorney, Wheeling, West
Virginia, for Appellee.
UNITED STATES v. WALLACE
OPINION
GREGORY, Circuit Judge:
The appellant, Donovan Lamont Wallace ("Wallace") was tried and
convicted of conspiracy to distribute cocaine and crack cocaine in
violation of 21 U.S.C. 841 (b)(1)(A) and 846 (2004) (Count 1),
possession with intent to distribute crack cocaine within 1,000 feet of
a playground in violation of 21 U.S.C. 841(b)(1)(B) and 860
(2004) (Count 2)1, possession of a firearm in furtherance of a drug
trafficking crime in violation of 21 U.S.C. 924 (c)(1)(A) (2004)
(Count 3), and possession of a firearm with an obliterated serial number in violation of 18 U.S.C. 922(k) and 924 (a)(1)(B) (2004)
(Count 4). Wallace was sentenced to 248 months in prison.
Wallace timely appeals his sentence, arguing that (1) the district
court committed reversible error by denying his motion for a mistrial
and by not providing an immediate curative instruction to the jury
after a Government witness violated an in limine agreement, (2) there
is insufficient evidence to support his conviction for possession of a
firearm with an obliterated serial number, and (3) the district court
sentence of 248 months was unreasonable.
After a thorough review of the record, we affirm the district courts
judgment.
I.
On April 23, 2004, the Upshur County, West Virginia, 911 Communications Center received a call indicating that an incident of
domestic violence was taking place at the Valley Green Apartment
complex located near Buckhannon, West Virginia. Two Buckhannon
police officers arrived at the scene, and while they waited for their
counterparts from the Upshur County Sheriff Department to join
1
After the verdict, Wallace filed a motion for acquittal as to Count 2

of the indictment, arguing that the Government had failed to prove an
essential element of the crime. The district court agreed and reduced
Wallaces conviction as to Count 2 to the lesser included offense of possession of more than five grams of crack cocaine with intent to distribute.
them, the officers received information that a maroon minivan with

two black males was leaving the apartment complex. Shortly thereafter, the officers stopped an erratically driven maroon van, and found
two occupants in the van Wallace, the driver, and his passenger
Kenneth Key.2 Wallace gave the police permission to search the van,
and during that search, the officers found three loaded pistols, including a Taurus .9 millimeter semi-automatic with an obliterated serial
number, drugs, and cash. After taking both men into custody, the
police interviewed Tina Rodrigue, who alleged that Wallace had
"choked her" and "slammed her" against a van during a "domestic
scuffle." (J.A. 67.) Prior to trial, the Government and Wallace agreed
to exclude the details of the domestic violence incident at trial.
At trial, the Government presented several witnesses, including
Rodrigue, who provided evidence that Wallace was a crack cocaine
dealer. Rodrigue testified that upon meeting Wallace in 2004,
Rodrigue began driving Wallace from West Virginia to Ohio and
Pennsylvania once a week to pick up crack cocaine. Eventually the
frequency of the trips increased to two to three times a week. Wallace
and Rodrigue would travel in vehicles rented in Rodrigues name and
paid for by Wallace. In addition to serving as Wallaces driver,
Rodrigue would sell the crack cocaine to buyers at the Valley Green
Apartment complex. Four other witnesses testified at trial that they
bought cocaine from Wallace.
The jury convicted Wallace on all four counts of the indictment.
Wallace was sentenced to 188 months as to Counts 1 and 2 and 27
months as to Count 4, all to run concurrently. Wallace also received
a 60 month sentence for Count 3 (use of firearm in furtherance of a
conspiracy), to run consecutive to the other counts. Thus, the total
effective sentence for Wallace was 248 months.
2
After pleading guilty to possession of a firearm in furtherance of a

drug related crime, in violation of 18 U.S.C. 924(c), and agreeing to
cooperate with the Government in its prosecution of Wallace, Key contradicted his grand jury testimony (which supported the Governments
version of the events) at trial. As a result, Key was indicted and pled
guilty to perjury for his testimony at trial.
We will now address each of Wallaces claims in turn.

II.
Wallace argues that the district court committed reversible error by
not granting a mistrial or providing an immediate curative instruction
to the jury after a Government witness violated an in limine agreement not to mention any details surrounding the domestic violence
incident involving Wallace and Rodrigue. We review both a district
courts denial of a motion for a mistrial and its decision regarding a
curative instruction for an abuse of discretion. See United States v.
Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997) (holding that "denial of
a defendants motion for a mistrial is within the sound discretion of
the district court and will be disturbed only under the most extraordinary of circumstances."); United States v. Helem, 186 F.3d 449, 454
(4th Cir. 1999) ("Decisions as to whether to give an instruction and
the content of any jury instruction are reviewed for abuse of discretion."). An abuse of discretion exists if ". . . the defendant [can] show
prejudice; no prejudice exists, however, if the jury could make individual guilt determinations by following the courts cautionary
instructions." United States v. Dorsey, 45 F.3d 809, 817 (4th Cir.
1995).
Prior to trial, the parties agreed that "reference to the [domestic]
incident at Valley Green Apartments would be limited to either a
domestic incident, a fight, or an argument" because any further discussion would clearly be "more prejudicial than probative . . ." (J.A.
84.) Despite cautioning its witnesses not to discuss the incident, the
following exchange took place between the Government and a police
officer who was on the scene the night of the crime:
AUSA:
And who did you did you speak with

anyone there?
Officer:
I did. I made contact with Tina Rodrigue.

She advised me that she had been in a
domestic scuffle with Mr. Wallace. He had
choked her and slammed her into the side of
the van
(J.A. 67.) Wallaces counsel immediately objected to the officers

comment on the basis of relevancy, which the court sustained. During
the first break in the proceedings after the officers statement, Wallace asked the court to declare a mistrial or in the alternative, to provide a curative instruction to the jury. The court did not grant or deny
the motion, but did provide a curative instruction to the jury as a part
of its final jury instructions.3
Wallace argues that the officers description of the domestic violence incident was "highly inflammatory", non-probative, and "highly
prejudicial." (Appellants Br. 12.) The Government responds that
Wallaces argument is without merit since (1) Wallace did not immediately ask for a curative instruction, (2) when Wallace did ask for the
instruction, the court granted his request, adding a curative instruction
into the courts final jury instructions, and (3) the final curative
instruction was appropriate.
We agree with the Government. There is no evidence that the statement by the officer was purposefully elicited by the Government and
the jury instructions clearly required the jury to disregard that portion
of the officers testimony. In addition, the Government correctly
points out that if Wallace wanted an immediate curative instruction,
he should have asked the court for one, instead of waiting for the first
break. Thus, we find that the district court did not abuse its discretion
in denying Wallaces motion for a mistrial or by not providing an
immediate curative instruction.
3
The following curative instruction was provided to the jury:

The defendant is not on trial for any alleged domestic violence
incident that allegedly took place at the Valley Green Apartments in Buckhanon, West Virginia on April the 23rd, 2004.
You are instructed not to use these allegations against the defendant when deciding the guilt or innocence to the charges pending
in this indictment.
(J.A. 270.)
III.
A.
Wallace also argues that there is insufficient evidence to support
his conviction for possession of a firearm with an obliterated serial
number. Before addressing the substance of Wallaces claim, we must
determine whether Wallaces failure to raise his insufficiency of evidence claim at the trial level via a Fed. R. Crim. P. 29 ("Rule 29")
motion for a judgment of acquittal precludes his appeal of this issue
here, and if the Governments failure to raise a preclusion defense
prevents us from considering that issue.4
Despite not filing a Rule 29 motion at the trial level, Wallace
argues that we should reverse his conviction for possession of a firearm with an obliterated serial number due to insufficiency of evidence. The Government argues that any review of Wallaces claim is
improper at this stage because (1) "[a]n issue that was never raised
before the trial court cannot really be reviewed," (italics in original)
and (2) "[i]t should be presumed that a District Judge would [have]
use[d] Rule 29 on its own if faced with such insufficient evidence that
substantial rights were effected." (Appellees Supplemental Br. 4.)
The Supreme Courts holding in United States v. Olano, 507 U.S.
725, 732 (1993), reaffirmed in United States v. Cotton, 535 U.S. 625,
631-33 (2002), and reiterated by published opinions in this Circuit5
provides us with clear guidance with respect to this issue. In Olano,
4
After the parties submitted their initial briefs, we asked them to file
supplemental briefs addressing these two issues.
5
See e.g., United States v. Higgs, 353 F.3d 281, 324 (4th Cir. 2003)
(review of a defendants constitutional claim for "plain error" was proper
despite the fact that he had not raised the claim at the trial court level);
United States v. Carter, 300 F.3d 415, 428-29 (4th Cir. 2002) ("Because
no defendant raised this argument before the district court, our review is
for plain error."); United States v. Stevens, 817 F.2d 254, 255 n.1 (4th
Cir. 1987) (holding that since "defendant made no motion for [a Rule 29]
judgment of acquittal . . . our examination is technically limited to determining whether or not manifest injustice would occur" (citing to Lockhart v. United States, 183 F.2d 265 (4th Cir. 1950) (per curiam))).
the Court flushed out the meaning of Fed. R. Crim. P. 52(b), which
reads: "[a] plain error that affects substantial rights may be considered
even though it was not brought to the courts attention." The Court
interpreted Rule 52(b) to mean that "[i]f a legal rule was violated during the district court proceedings, and if the defendant did not waive
the rule, then there has been an error within the meaning of Rule
52(b) despite the absence of a timely objection." Olano, 507 U.S. at
733-34. However, the Court noted that Rule 52(b) is "permissive, not
mandatory," and as a result, even "[i]f the forfeited error is plain and
affects substantial rights, the court of appeals has authority to order
correction, but is not required to do so." Id. at 735.
The Olano Court stated that courts of appeal should exercise the
discretion conferred by Rule 52(b) when a "miscarriage of justice
would otherwise result." Id. at 736 (internal citation marks and citations omitted). "[T]he term miscarriage of justice means that the
defendant is actually innocent." Id. (citation omitted). However, if the
actual guilt or innocence of a defendant is not involved, then our discretion should only be exercised to "correct a plain forfeited error
affecting substantial rights if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings." Id. (citation
omitted). Because Wallaces insufficiency of evidence claim involves
his guilt or innocence, Olano clearly allows us to review it for plain
error (despite the inefficient nature of proceeding in such a manner).
B.
In order for Wallace to prove that the jurys decision constituted
plain error, (1) there must be an error; (2) the error must be plain,
meaning obvious or clear under current law; and (3) the error must
affect substantial rights. United States v. Olano, 507 U.S. 725, 732-34
(1993). Even if these criteria are met, the error will not be noticed
unless it seriously affects the fairness, integrity, or public reputation
of the proceedings. Id. at 736. We now turn to Wallaces insufficiency
of evidence claim.
Wallace was convicted of violating 18 U.S.C. 922(k) which
states:
(k) It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any
firearm which has had the importers or manufacturers

serial number removed, obliterated, or altered or to possess
or receive any firearm which has had the importers or manufacturers serial number removed, obliterated, or altered
and has, at any time, been shipped or transported in interstate or foreign commerce.
Wallace argues that there was not substantial evidence to support his
conviction under this statute because the jury was not presented with
evidence that the firearm was transported or shipped in interstate
commerce. Wallace contends that the facts, as taken in the light most
favorable to the Government provide: Wallace was arrested in West
Virginia while driving a rental van, a pistol was seized from the van,
the rental van was obtained from a West Virginia car rental agency,
and Tina Rodrigue only saw Wallaces firearms on the day of the
arrest. In addition, although Rodrigue drove Wallace from West Virginia to Ohio and Pennsylvania, she did not see the pistol during any
of those trips. Finally, Wallace states that there is no evidence in the
record as to where the pistol in question was manufactured.
The Government argues that there is strong circumstantial evidence
"that the transient appellant caused the firearm to travel in interstate
commerce." (Appellees Br. 13.) Specifically, the Government points
to the fact that (1) Wallace was not from West Virginia, (2) he stayed
in hotels and with friends during his visits to West Virginia, and (3)
during the relevant time period, Wallace had driven from West Virginia to Pennsylvania and/or Ohio, two to three times a week. The
Government believes that these facts combined with the engravings
on the firearm itself ("MFG. MIAMI, FL") provide substantial evidence to support the jurys judgment. Nevertheless, the Government
recognizes that because the pistol is not a part of the appellate record6
and no witness at trial ever discussed the markings on the gun,
remand may be necessary so that the district court can "make a record
of the markings engraved into the gun, showing that it was manufactured outside of West Virginia." (Appellants Br. 13.) In addition,
while it is undisputed that the jury had access to the gun during delib6
The district court ordered that the gun be turned over to the United
States at the conclusion of the trial.
erations, the Government candidly admits that there was no testimony

on the issue of where the gun was manufactured.7
Based on the circumstantial evidence presented to the jury regarding Wallaces whereabouts and Wallaces admission at oral argument
that the gun was engraved with the words "MFG:MIAMI, FL"8, we
find no error in the jurys decision.9 Because we find no error, we
need not address the remaining prongs of the plain error analysis.
IV.
Finally, Wallace contends that the district courts guideline sentence of 248 months was unreasonable because the combined statutory minimum sentence of fifteen years, or 180 months, was greater
than necessary to satisfy 18 U.S.C. 3553(a). Since Wallace does not
point out any procedural improprieties in his sentence, we limit our
review to the substantive reasonableness of Wallaces sentence under
an abuse of discretion standard. United States v. Gall, 128 S.Ct. 586,
597 (2007). In doing so, we must consider the "totality of the circum7
The Government contends that Kenneth Key was supposed to testify

that he had personal knowledge that Wallace carried the gun across state
lines. However, as stated above, Key lied on the stand, resulting in his
conviction for perjury.
8
The following exchange at oral argument is most relevant:
Court: "Do you concede that . . . there is sufficient evidence that
[the gun] was manufactured in Florida? Its a simple question."
Wallace: "A rational finder of fact could conclude that the
weapon was manufactured in Miami, FL."
9
The Government did not raise a preclusion argument in its brief. It
contends that its failure to raise the issue does not prevent preclusion
because Wallace failed to file a Rule 29 motion, and the district court did
not raise the issue sua sponte. In addition, it contends that we should preclude Wallaces claim because appellate review will not improve the
efficiency of the rules of criminal procedure. See Fed. R. Crim. P. 2
("These rules are to be interpreted to provide for the just determination
of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and
delay."). Because we find that the jury committed no error, we need not
reach this issue.
10
stances", Gall, 128 S.Ct. at 597, including "the extent to which the
sentence . . . comports with the various, and sometimes competing,
goals of 3553(a)." United States v. Moreland, 437 F.3d 424, 433
(4th Cir. 2006).
Since the district courts sentence is well within the guideline
range, the sentence is "presumptively reasonable." United States v.
Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006). see also United
States v. Rita, 177 Fed. Appx. 357, 358 (4th Cir. 2006), affd, 127
S.Ct. 2456, 2462 (2007). Wallace argues that the 248 month guideline
sentence imposed by the district court is unreasonable because the
minimum statutory sentence of 180 months was "clearly sufficient,
but not greater than necessary, to satisfy the statutory purposes of sentencing." (Appellants Br. 18.) Thus, during sentencing, Wallace
asked the court to consider a downward variance under Booker
because of his youth (29 years old), limited criminal history, and the
brief time frame within which the relevant conduct took place. The
district court denied Wallaces request.
Based on the totality of the circumstances, we conclude that the
district court did not abuse its discretion in imposing a 248 month
sentence on Wallace. The PSR calculated the guideline range for
Counts 1, 2, and 4 as 188-235 months. As to Count 3, the guideline
sentence was 60 months, and per the relevant statute, it had to be
imposed consecutive to the sentence as to the other counts. Thus, the
total guideline range was 248-295 months. After considering the
guideline range and the 3553(a) factors, the district court sentenced
Wallace to 188 months for Count One, 188 months for Count Two,
and 27 months as to Count Four, all of which would run concurrently.
As to Count Three, the district court imposed the guideline sentence
of five years, to run consecutive to the other counts. Thus, the district
courts overall sentence of 248 months was the minimum possible
guideline sentence. This sentence clearly was not unreasonable, and
as such, we affirm the district courts decision.
V.
Based on the reasoning above, the district courts judgment is
affirmed.
AFFIRMED

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PUBLISHED

UNITED STATES COURT OF APPEALS

Appeal from the United States District Court

Affirmed by published opinion. Judge Gregory wrote the opinion, in

UNITED STATES v. WALLACE

After the verdict, Wallace filed a motion for acquittal as to Count 2

UNITED STATES v. WALLACE

them, the officers received information that a maroon minivan with

After pleading guilty to possession of a firearm in furtherance of a

UNITED STATES v. WALLACE

We will now address each of Wallaces claims in turn.

And who did you did you speak with

I did. I made contact with Tina Rodrigue.

UNITED STATES v. WALLACE

(J.A. 67.) Wallaces counsel immediately objected to the officers

The following curative instruction was provided to the jury:

UNITED STATES v. WALLACE

UNITED STATES v. WALLACE

UNITED STATES v. WALLACE

firearm which has had the importers or manufacturers

UNITED STATES v. WALLACE

erations, the Government candidly admits that there was no testimony

The Government contends that Kenneth Key was supposed to testify

UNITED STATES v. WALLACE

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