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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4004
UNITED STATES OF AMERICA,
Plaintiff Appellee,
v.
ROGER KEITH LUNSFORD,
Defendant - Appellant.
No. 15-4005
UNITED STATES OF AMERICA,
Plaintiff Appellee,
v.
ROGER KEITH LUNSFORD,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge.
(4:97-cr-00098-NCT-1; 4:97-cr00099-NCT-1; 1:14-cr-00190-NCT-1)
Submitted:
October 29, 2015
Decided:
Before DUNCAN, AGEE, and WYNN, Circuit Judges.
November 13, 2015
Affirmed by unpublished per curiam opinion.
J. Blake Norman, THE LAW OFFICE OF J. BLAKE NORMAN, Durham,
North Carolina, for Appellant. Ripley Rand, United States
Attorney, Graham T. Green, Assistant United States Attorney,
Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury found Roger Lunsford guilty of two counts of armed
bank robbery, in violation of 18 U.S.C. 2113(d) (2012), one
count of carry and use, by brandishing, of a firearm during a
crime of violence, in violation of 18 U.S.C. 924(c)(1)(A)(ii)
(2012), and one count of carry and use, by discharging, of a
firearm during a crime of violence, in violation of 18 U.S.C.
924(c)(1)(A)
(iii)
(2012).
The
district
court
sentenced
Lunsford to a total term of 454 months of imprisonment.
These
convictions, and two other violations, served as the basis for a
petition
for
revocation
of
supervised
release.
The
court
revoked Lunsfords supervised release and sentenced him to 36
months on the violations, to run concurrently to each other and
consecutively
to
the
sentence
convictions.
On
appeal,
imposed
Lunsford
on
argues
the
armed
that
the
robbery
district
court erred in denying his motion for acquittal on all counts,
that his sentence violates the Eighth Amendment, and that the
court
erred
in
revoking
robbery convictions.
his
supervised
release
based
on
the
Finding no error, we affirm
We review de novo the district courts denial of a Fed. R.
Crim. P. 29 motion for judgment of acquittal.
Smith, 451 F.3d 209, 216 (4th Cir. 2006).
affirm
if,
when
the
evidence
is
viewed
United States v.
This court should
in
the
light
most
favorable to the Government, the conviction is supported by
3
substantial evidence.
762-63
(4th
Cir.
United States v. Hickman, 626 F.3d 756,
2010)
(internal
quotation
marks
omitted).
Substantial evidence is evidence that a reasonable finder of
fact
could
accept
as
adequate
and
sufficient
to
support
conclusion of a defendants guilt beyond a reasonable doubt.
United States v. Green, 599 F.3d 360, 367 (4th Cir.) (quoting
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc)),
cert.
challenging
denied,
evidentiary
562
U.S.
913
sufficiency
(2015).
faces
defendant
heavy
burden.
United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007).
Reversal of a conviction on these grounds is limited to cases
where
the
prosecutions
failure
is
clear.
Id.
at
244-45
(internal quotation marks omitted).
Lunsford argues that the district court erred in denying
his
motion
for
acquittal
because
the
Government
presented
insufficient evidence identifying him as the perpetrator of the
crimes.
We
standards
and
have
reviewed
conclude
the
that
record
there
is
with
a
the
litany
requisite
of
strong
circumstantial evidence linking Lunsford to both robberies.
The
evidence was sufficient to support the convictions.
Next,
Lunsford
briefly
argues
that
his
sentence
is
categorically disproportionate, violating the Eighth Amendment.
He
suggests
sentence
was
that
32
because
years,
the
the
statutory
court
4
was
mandatory
unable
to
minimum
review
his
individual characteristics and establish a sentence to meet the
goals of 18 U.S.C. 3553(a) (2012).
Although challenges to a
sentence on Eighth Amendment grounds ordinarily are reviewed de
novo,
United
2009),
States
where,
as
v.
Malloy,
here,
568
F.3d
defendant
166,
180
fails
to
(4th
Cir.
raise
constitutional challenge to his sentence in the district court,
this courts review is for plain error only.
United States v.
Olano, 507 U.S. 725, 732-33 (1993).
The Eighth Amendment provides that [e]xcessive bail shall
not
be
unusual
required,
nor
punishments
excessive
fines
inflicted.
imposed,
U.S.
Const.
nor
cruel
amend.
and
VIII.
Punishment qualifies as cruel and unusual not only when it is
inherently barbaric, but also when it is disproportionate to the
crime for which it is imposed.
United States v. Cobler, 748
F.3d 570, 575 (4th Cir.) (internal quotation marks omitted),
cert. denied, 135 S. Ct. 229 (2014).
A defendant may challenge
the proportionality of a sentence under the Eighth Amendment in
two
ways;
length
of
under
a
an
as-applied
certain
challenge,
term-of-years
circumstances in a particular case.
he
sentence
Id.
contests
based
on
the
the
In a categorical
challenge, a defendant asserts that an entire class of sentences
is disproportionate based on the nature of the offense or the
characteristics of the offender.
Id.
Lunsfords
challenge,
which
sounds
in
categorical
analysis, fails because [t]he present case involves neither a
sentence of death nor a sentence of life imprisonment without
parole for a juvenile offender, the only two contexts in which
the
Supreme
Court
unconstitutionally
580-81.
In
sentences,
such
categorically
disproportionate.
addition,
as
924(c) convictions.
we
have
Lunsfords,
has
Cobler,
upheld
that
deemed
were
the
sentences
748
F.3d
at
imposition
of
based
on
multiple
See United States v. Camps, 32 F.3d 102,
106 (4th Cir. 1994); United States v. Raynor, 939 F.2d 191,
193-94
(4th
Cir.
1991).
Lunsford
does
not
show
that
his
sentence is constitutionally infirm and that the court plainly
erred in imposing the sentence.
Finally, Lunsford argues that the evidence did not support
the revocation of his supervised release based on the robbery
and firearm convictions.
Lunsfords arguments echo the same
challenges to the sufficiency of the evidence on the convictions
affirmed above.
We review a district courts judgment revoking
supervised release and imposing a term of imprisonment for abuse
of discretion.
Cir. 1999).
United States v. Pregent, 190 F.3d 279, 282 (4th
To revoke supervised release, a district court need
only find a violation of a condition of supervised release by a
preponderance of the evidence.
18 U.S.C. 3583(e)(3) (2012);
United States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992).
6
This burden simply requires the trier of fact to believe that
the existence of a fact is more probable than its nonexistence.
United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010)
(internal quotation marks omitted).
This court review[s] a district courts factual findings
underlying
revocation
for
clear
error.
United
States
v.
Padgett, 788 F.3d 370, 373 (4th Cir. 2015), petition for cert.
filed, ___ U.S.L.W. ___, (U.S. Oct. 13, 2015) (No. 15-6499).
Clear
error
occurs
when
the
reviewing
court
on
the
entire
evidence is left with the definite and firm conviction that a
mistake has been committed.
United States v. Cox, 744 F.3d
305, 308 (4th Cir. 2014) (internal quotation marks and ellipsis
omitted).
We conclude that the district court did not clearly
err in its factual findings, and its conclusion that Lunsford
committed
the
violations
associated
with
the
robberies
is
soundly supported by a preponderance of the evidence.
Accordingly, we affirm the criminal judgment and revocation
of supervised release.
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
