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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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