US v. Stephen Rosenberg, No. 10-4677 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4677 UNITED STATES OF AMERICA, Plaintiff Appellee, v. STEPHEN H. ROSENBERG, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, District Judge. (3:09-cr-00765-CMC-1) Submitted: November 30, 2011 Decided: December 15, 2011 Before MOTZ, GREGORY, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Joshua Snow Kendrick, JOSHUA SNOW KENDRICK, PC, Columbia, South Carolina, for Appellant. Dean A. Eichelberger, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A jury convicted Stephen Rosenberg of one count of transmitting in interstate commerce a communication containing a threat, in violation of 18 U.S.C. § 875(c) (2006), and one count of attempting to influence an officer of the court by a threatening letter or communication, in violation of 18 U.S.C. § 1503(a) (2006). sixty-five The district court sentenced Rosenberg to months in prison, and Rosenberg timely appealed. Rosenberg s counsel filed a brief in accordance with Anders v. California, view, 386 there U.S. are 738 no (1967), meritorious stating that, issues for in counsel s appeal, but questioning whether the district court erred in limiting the scope of the questioning of United States District Judge Perry, a proposed trial reasonable. witness, Rosenberg and filed a whether the pro supplemental se sentence was brief reiterating the claim regarding Judge Perry s questioning and challenging the sufficiency of the evidence. The Government declined to file a responsive brief. First, district court counsel erred in and Rosenberg limiting the question scope of whether the the questions Rosenberg could have asked Judge Perry if he had been called as a witness. This court reviews a district court s evidentiary rulings for abuse of discretion and will overturn an evidentiary ruling only if it is arbitrary and irrational. 2 United States v. Cole, 631 F.3d 146, 153 (4th Cir. 2011). its discretion, may exercise A district court, in reasonable control over the interrogation of witnesses and the presentation of evidence in order to allow the effective ascertainment of the truth, to avoid needless waste of time, and to protect a witness from harassment. Fed. R. Evid. 611(a). A district court s rulings as to the examination of a witness do not abridge a defendant s right to present a defense unless they are arbitrary or disproportionate to the purposes they are designed to serve. United States v. Scheffer, 523 U.S. 303, 308 (1998). reviewing the record we conclude that the district After court s decision to limit the scope of questions Rosenberg could ask Judge Perry was neither arbitrary nor irrational and, therefore, the district court did not abuse its discretion by imposing such a limitation. Further, Rosenberg s failure to call Judge Perry as a witness prevents us from assessing the impact of the trial court s ruling. Counsel also questions whether the district chosen sentence of sixty-five months was reasonable. reasonableness under an court s We review sentences for abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007). The first step in this review requires us to assess procedural reasonableness by ensuring that the district court 3 committed no significant procedural errors, such as improperly calculating the Guidelines range or failing to consider the 18 U.S.C. § 3553(a) (2006) factors. F.3d 832, 837-38 (4th Cir. United States v. Boulware, 604 2010). We then consider the substantive reasonableness of the sentence imposed, taking into account the totality of the circumstances. 51. Gall, 552 U.S. at We presume that a sentence within a properly-calculated Guidelines range is reasonable. F.3d 178, 193 (4th Cir. 2007). United States v. Allen, 491 That presumption may be rebutted by a showing that the sentence is unreasonable when measured against the § 3553(a) factors. 445 F.3d 375, omitted). that 379 (4th United States v. Montes-Pineda, Cir. 2006) (internal quotation marks A thorough review of the record leads us to conclude Rosenberg s sentence was both procedurally and substantively reasonable. In accordance with Anders, we have reviewed Rosenberg s pro se claims and the record in this case and have found no meritorious issues for appeal. not err finding in he permitting was Rosenberg competent to to stand The district court did represent trial. sufficient to support the jury s verdict. Rosenberg s conviction and sentence. himself, The or evidence in was We therefore affirm This court requires that counsel inform Rosenberg, in writing, of the right to petition the Supreme Court of the United States for further review. 4 If Rosenberg requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in representation. this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Rosenberg. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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