UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4180

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BARRY TERRY,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:15-cr-00656-JFM-1)

Submitted: December 28, 2017 Decided: February 27, 2018

Before WILKINSON and HARRIS, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

William L. Welch, III, Baltimore, Maryland, for Appellant. Stephen M. Schenning, Acting United States Attorney, Patricia McLane, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

A jury convicted Barry Terry of being a felon in possession of a firearm and

ammunition, in violation of

(g)(1) (2012). Deeming Terry an armed

career criminal, the district court sentenced Terry to the statutory minimum term of 180

months’ imprisonment. See

(e) (2012). On appeal, Terry contends that:

(1)

(g)(1) is unconstitutional as applied to him, (2) the district court erred

in excluding a cell phone video and corresponding witness testimony of his arrest, (3) the

district court’s jury instructions denied him a fair trial, (4) sufficient evidence did not

exist to convict him, and (5) applying the Armed Career Criminal Act’s (ACCA)

enhanced sentences to criminal defendants based on prior drug offense convictions is

cruel and unusual punishment. We affirm.

Terry first asserts that § 922(g)(1) is unconstitutional as applied to him because it

exceeds Congress’ authority under the Commerce Clause in light of United States v.

Lopez,

(1995). We review constitutional claims de novo. United States v.

Dowell,

(4th Cir. 2014). We have consistently rejected Terry’s

argument, see United States v. Gallimore,

(4th Cir. 2001), and a panel

of this court may not overrule the precedent set by a prior panel, United States v. Bullard,

(4th Cir. 2011).

Terry next contends that the district court violated his right to present a defense by

excluding a cell phone video of his arrest and testimony from the person who recorded

the video. We review preserved evidentiary rulings, including the district court’s

decision to exclude evidence on Fed. R. Evid. 403 grounds, for abuse of discretion.

2 Huskey v. Ethicon, Inc.,

(4th Cir.), cert. denied,

(2017); United States v. Davis,

(4th Cir. 2012). “[E]rrors under Rule

403 are subject to the harmless error test: whether it is probable that the error could have

affected the verdict reached by the particular jury in the particular circumstances of the

trial.” United States v. Simpson,

(4th Cir. 1990) (internal quotation

marks omitted). However, unpreserved evidentiary errors are reviewed only for plain

error. United States v. Wilkerson,

(4th Cir. 1996).

Terry opposed the Government’s motion in limine to exclude the video and

testimony. See United States v. Ruhe,

, 383 n.4 (4th Cir. 1999) (holding

filing of motion in limine sufficiently preserves issue for appeal once court denies

motion). But rather than explicitly ruling on the Government’s motion, the district court

told Terry he could present his sister as a witness, without mentioning the video or the

recorder’s testimony, and Terry did not renew an offer of proof. See Fed. R. Evid. 103(b)

(“Once the court rules definitively on the record—either before or at trial—a party need

not renew an objection or offer of proof to preserve a claim of error for appeal.”). Thus,

it is unclear whether abuse of discretion or plain error review applies to Terry’s claim.

We need not determine which standard applies, because Terry does not prevail

even under the more favorable abuse of discretion review. While Terry contends that

exclusion of the cell phone video and testimony violated his right to present a defense,

“well-established rules of evidence permit trial judges to exclude evidence if its probative

value is outweighed by certain other factors such as unfair prejudice, confusion of the

issues, or potential to mislead the jury.” Holmes v. South Carolina,

, 326

3 (2006). We conclude that the district court did not abuse its discretion in excluding the

video and corresponding testimony, as the video shows only events after Terry disposed

of the gun, and viewing Terry’s arrest may have inflamed the jury against the

Government’s witnesses. * See Fed. R. Evid. 403. Further, any error is harmless due to

the significant evidence of Terry’s guilt. See Simpson,

.

Terry further claims that the district court erred by (1) refusing to give his

requested jury instruction on the definition of reasonable doubt, (2) giving an instruction

on law enforcement techniques, and (3) giving the Government’s, rather than his,

requested instruction regarding “in or affecting commerce.” We review challenges to

jury instructions for abuse of discretion, determining “whether, taken as a whole, the

instruction fairly states the controlling law.” United States v. Moye,

(4th Cir. 2006) (en banc). A trial “court abuses its discretion when it makes an error of

law.”

(internal quotation marks omitted).

We conclude that the district court did not abuse its discretion in refusing to define

reasonable doubt. United States v. Hornsby,

(4th Cir. 2012)

(“[D]istrict court[s] [are] not required to define reasonable doubt to the jury so long as the

jury was instructed that the defendant’s guilt must be proven beyond a reasonable doubt.

. . .”). We also conclude that Terry fails to show that the law enforcement techniques

instruction was improper, as his vague claim that it was not generated by the evidence

* While the district court did not specifically rule on the issue of the cell phone video and corresponding testimony, both parties argued the admissibility of the evidence on relevancy and Fed. R. Evid. 403 grounds.

4 does not address the district court’s reasoning that Terry’s cross-examination of the

Government’s latent print expert gave rise to the instruction. Further, the court’s

instruction on “in or affecting commerce” was proper because it correctly stated the

controlling law. See Gallimore,

.

Terry also contends that the evidence was insufficient to convict him because it

did not show that he possessed a firearm or ammunition or that he caused the firearm to

affect interstate commerce. We review the denial of a Fed. R. Crim. P. 29 motion and

other “challenge[s] to the sufficiency of the evidence de novo.” United States v.

Palomino-Coronado,

(4th Cir. 2015). In assessing the sufficiency of

the evidence, we determine whether there is substantial evidence to support the

conviction when “viewed in the light most favorable to the government.”

“Substantial evidence is evidence that a reasonable finder of fact could accept as

adequate and sufficient to support a conclusion of a defendant’s guilt beyond a

reasonable doubt.”

(internal quotation marks omitted). “Determinations of credibility

lie within the sole province of the fact finder.” United States v. Palin,

(4th Cir. 2017). Thus, “reversal for insufficiency must be confined to cases where the

prosecution’s failure is clear.” Palomino-Coronado,

(internal quotation

marks omitted). To convict a defendant under

(g)(1), the Government

must establish that: (1) the defendant was a felon; (2) he voluntarily and intentionally

possessed a firearm; and (3) the firearm had traveled in interstate commerce. Gallimore,

. Our review of the trial transcript convinces us that the evidence was

clearly sufficient to sustain the jury’s verdict.

5 Finally, Terry argues that the ACCA’s mandatory minimum sentence, as applied

to defendants with predicate drug offense convictions, constitutes cruel and unusual

punishment by imposing disproportionate punishment, in violation of the Eighth

Amendment. “We review de novo . . . whether a sentence is proportional under the

Eighth Amendment.” Dowell,

. The Eighth Amendment prohibits cruel

and unusual punishment, which includes both “inherently barbaric” punishment and

punishment that “is disproportionate to the crime for which it is imposed.” United States

v. Cobler,

(4th Cir. 2014). A defendant can raise two kinds of Eighth

Amendment challenges to his sentence: an as-applied challenge based on all the

circumstances in his case, and a categorical challenge challenging an entire class of

sentences.

“[C]ategorical challenges to whole classes of prison sentences . . . have

had very limited success in the Supreme Court,” as “the only two contexts in which the

Supreme Court categorically has deemed sentences unconstitutionally disproportionate”

have involved death sentences or “life imprisonment without parole for . . . juvenile

offender[s].”

.

We conclude that Terry fails to make a showing of categorical disproportionality,

as Terry was not sentenced to death or life without parole as a juvenile offender. See

. We have also held that “a fifteen-year sentence under ACCA is neither

disproportionate to the offense nor cruel and unusual punishment, and thus does not

violate the Eighth Amendment.” United States v. Presley,

(4th Cir. 1995),

abrogated on other grounds by Johnson v. United States,

(2010). Further,

the Supreme Court has recognized that “[s]evere, mandatory penalties may be cruel, but

6 they are not unusual in the constitutional sense.” Harmelin v. Michigan,

(1991).

Accordingly, we affirm the judgment of the district court. 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

7