                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4514


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

WILLIAM WARDELL WELEBIR, a/k/a Cosmo, a/k/a William Wardell
Webelir, a/k/a Cozmo,

                Defendant – Appellant.



                              No. 10-5203


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

WILLIAM WARDELL WELEBIR, a/k/a Cosmo, a/k/a William Wardell
Webelir, a/k/a Cozmo,

                Defendant – Appellant.




Appeals from the United States District Court for the Western
District of Virginia, at Harrisonburg.     Samuel G. Wilson,
District Judge. (5:09-cr-00019-sgw-1)


Submitted:   April 21, 2011                 Decided:   June 2, 2011
Before DAVIS, KEENAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Andrea L. Harris,
Assistant Federal Public Defender, Christine Madeleine Lee,
Research and Writing Attorney, Charlottesville, Virginia, for
Appellant.   Timothy J. Heaphy, United States Attorney, Joseph
W.H. Mott, Assistant United States Attorney, Peter Luccarelli,
Third Year Law Student, Katherine L. Brings, Third Year Law
Intern, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            William Wardell Welebir appeals his conviction after a

jury trial for maliciously damaging and destroying by means of

fire a property used in interstate commerce, in violation of

18 U.S.C.       §§ 2,     844(i)      (2006),             and     the      district        court’s

imposition of restitution in the amount of $25,600.                                 We affirm.

            Welebir       claims      that          the    district         court     erred      in

denying his Fed. R. Crim. P. 29 motion for judgment of acquittal

on the basis of insufficient evidence.                           Rule 29 provides that a

district    court       “must    enter      a       judgment         of    acquittal       of   any

offense    for    which    the    evidence          is     insufficient        to    sustain      a

conviction.”       Fed. R. Crim. P. 29(a).                        We review de novo the

district    court’s       denial      of     a       Rule       29    motion,       determining

whether, viewing the evidence in the light most favorable to the

government, it is supported by substantial evidence.                                       United

States     v.    Hickman,       626   F.3d          756,        762-63     (4th Cir.       2010).

“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.”

United    States    v.    Young,      609       F.3d       348,      355    (4th    Cir.    2010)

(internal quotation marks and alteration omitted).

            In     reviewing       for     substantial               evidence,      this    court

considers both circumstantial and direct evidence and allows the

government all reasonable inferences from the facts shown to

                                                3
those    sought      to   be   established.             United     States     v.     Harvey,

532 F.3d 326, 333 (4th Cir. 2008).                      This court does not weigh

the evidence or review the credibility of witnesses.                                  United

States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).                                 Rather,

these functions are reserved for the jury.                         Id.    “Reversal for

insufficient evidence is reserved for the rare case where the

prosecution’s        failure    is   clear.”           United    States     v.     Beidler,

110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks

omitted).

              To   sustain     a   conviction          for    arson   under     18    U.S.C.

§ 844(i),     the    government      must     prove      that    the     defendant        “(1)

maliciously; (2) damaged or destroyed a building . . . or other

real or personal property; (3) by means of fire . . .; and (4)

the    building . . . or        personal         or    real    property     was    used    in

interstate . . . commerce               or       in     any      activity         affecting

interstate . . . commerce.”              United States v. Gullett, 75 F.3d

941,    947   (4th    Cir.     1996).        The      Government      asserts      that    the

evidence is sufficient to support Welebir’s conviction as either

a principal or an aider and abettor.

              “Aiders and abettors are liable to the same extent as

the principal.”           United States v. Akinkoye, 185 F.3d 192, 201

(4th Cir. 1999).          A defendant is guilty of aiding and abetting

if he has “knowingly associated himself with and participated in

the criminal venture.”             United States v. Kingrea, 573 F.3d 186,

                                             4
197    (4th   Cir.    2009)       (internal        quotation     marks     omitted).         To

prove the element of association, the government must show that

the defendant “shared in the principals’ criminal intent.                                  This

requires evidence that the defendant be aware of the principals’

criminal intent and the unlawful nature of their acts.”                                     Id.

(internal quotation marks omitted).                       However, when a defendant

is convicted of a crime based on alternative theories and the

government      produces         sufficient         evidence     to    convict    on        one

theory, we need not consider whether the evidence is sufficient

on the alternative ground.                United States v. Ealy, 363 F.3d 292,

298 (4th Cir. 2004).

              Welebir      was     convicted         of   maliciously       damaging        and

destroying     by    means       of    fire    the     building     housing     Bad    Water

Bill’s    Barbeque        Barn,    a   Strasburg,         Virginia    restaurant.            On

appeal, Welebir does not contest that the building housing Bad

Water Bill’s was destroyed in an intentional arson and that the

restaurant was used in or affected interstate commerce.                           Rather,

he contends only that the evidence is insufficient to show his

participation        in    the    arson       as   a    principal     or   an   aider       and

abettor.      We conclude that, when the evidence is viewed in the

light most favorable to the Government, a reasonable jury could

find    the   Government         proved    that        Welebir   participated         in    the

arson of Bad Water Bill’s as a principal.



                                               5
            The       evidence,    including        Welebir’s     own   statements    to

investigators, places Welebir across the street from Bad Water

Bill’s   at       a     gas     station    at        approximately       2:26   AM    on

October 25, 2003, and leaving the restaurant’s lot approximately

five to seven minutes before the fire was first reported at 2:49

AM.   The fire started after a liquid fuel was poured in the

vicinity of the restaurant’s basement door, and all accidental

ignition sources in the basement were eliminated as causes of

the fire.

            The evidence also showed that the arson of Bad Water

Bill’s   took         place     amidst    an       atmosphere     of    animosity    and

following violent confrontations between two national motorcycle

gangs, the Hell’s Angels and the Pagans, both so-called “outlaw”

motorcycle gangs that engage in criminal activity.                          Bad Water

Bill’s was scheduled to host a motorcycle show later in the day

on October 25.         The motorcycle show was to feature the Titans, a

smaller motorcycle gang that supported and was aligned with the

Hell’s   Angels.          The    Pagans    considered       Bad    Water    Bill’s    as

located within their “territory” and sought to maintain that

territory from being infiltrated by the Hell’s Angels or any

other motorcycle gangs aligned with them.

            Welebir was not a member of any of these motorcycle

gangs.   Although interested in becoming a member of the Pagans,

Welebir was only a “hang around,” an individual who could attend

                                               6
some Pagan events but was not a full or even prospective member

of the gang.        The evidence established that it was not uncommon

for motorcycle gangs such as the Pagans to use hang arounds to

commit criminal acts on behalf of the gang.                      Using a hang around

would allow the gang to benefit from any criminal acts performed

while maintaining a “separation” between the act and the gang.

Welebir was also friends with Paul Hampton, the president of the

northern Virginia chapter of the Pagans in 2003.                          Hampton would

use     nonmembers      to    commit      criminal       acts—otherwise          known      as

“taking care of business”—on the gang’s behalf.                            To become a

member of the northern Virginia chapter, a person would need

Hampton’s “okay.”

            Although no witness testified to observing Welebir set

the Bad Water Bill’s fire, Welebir’s own statements establish

that he knew Hampton had been instructed by his superiors in the

Pagans’    mother    club     to    “take    care    of     business”      and    “send      a

message”    to   the     Titans     that     they    were    supporting         the    wrong

motorcycle      gang.        Welebir    wanted      to    become   a     member       of   the

Pagans but would need Hampton’s approval to do so.                                Although

Welebir denied setting the fire, he lied to investigators about

having    been   present       at   the     restaurant      lot.         From    Welebir’s

motive, his presence in the vicinity of the restaurant near the

time of the fire, the readily available means for starting the

fire,     his    inculpatory           statements,         and     his     inconsistent

                                             7
statements   to   law    enforcement,       a    reasonable     jury   could    have

concluded that Welebir committed the arson.                     Although largely

circumstantial, this evidence was sufficient to convict Welebir.

See United States v. Martin, 523 F.3d 281, 289 (4th Cir. 2008)

(finding   that   circumstantial       evidence      permitted     a   reasonable

jury to conclude that defendant intentionally set a building on

fire where there was evidence that the fire was intentionally

set and evidence of defendant’s financial motive to cause the

fire, opportunity to set the fire, presence in the building mere

minutes    before       the   fire,     and       lies     to    investigators).

Consequently,     Welebir’s    challenge        to   the   sufficiency    of    the

evidence fails. *

           With     respect    to     the       district    court’s     order     of

restitution, Welebir claims that the court abused its discretion

in ordering restitution outside of the ninety-day deadline for

     *
       Because the evidence is sufficient to show Welebir’s
participation in the arson as a principal, we need not consider
whether it is sufficient to show his participation as an aider
and abettor.   Ealy, 363 F.3d at 298.   Nevertheless, we readily
conclude that the evidence is sufficient to support Welebir’s
conviction as an aider and abettor, as it established his
knowing association with and participation in a criminal
venture. Welebir was aware that Hampton had been instructed to
“take care of business” and send a message to the Titans.      A
rational juror could have concluded that he shared in Hampton’s
criminal intent—Welebir drove to the restaurant lot knowing that
the arson would take place and took Hampton along to ensure that
the fire had been set. And Welebir had a motive to participate,
given his desire to join the Pagans and the need to receive
Hampton’s approval before becoming a member.



                                       8
doing so prescribed by the Mandatory Victims Restitution Act of

1996 (“MVRA”), Pub. L. No. 104-132, §§ 201-11, 110 Stat. 1214,

1227-41 (codified in relevant part at 18 U.S.C. §§ 3663A, 3664

(2006)).       We    review       orders       of     restitution       for    abuse   of

discretion.      See United States v. Llamas, 599 F.3d 381, 391

(4th Cir. 2010).         A district court abuses its discretion when it

“acts arbitrarily or irrationally, fails to consider judicially

recognized    factors          constraining     its        exercise    of     discretion,

relies on erroneous factual or legal premises, or commits an

error of law.”           United States v. Delfino, 510 F.3d 468, 470

(4th Cir. 2007).

             The MVRA directs a sentencing court, when sentencing a

defendant convicted of certain categories of offenses, including

“an offense against property,” to order “that the defendant make

restitution     to       the     victim    of       the     offense.”         18   U.S.C.

§ 3663A(a)(1),       (c)(1)(A)(ii).             Disputes         as   to    the    “proper

amount” of restitution are to be resolved by the court by a

preponderance       of   the     evidence,      and       the   government     bears   the

burden of demonstrating the “amount of the loss sustained by a

victim as a result of the offense.”                       18 U.S.C. § 3664(e).          If

the victim’s losses are “not ascertainable by the date that is

10 days prior to sentencing, the attorney for the Government or

the probation officer shall so inform the court, and the court

shall set a date for the final determination of the victim's

                                           9
losses, not to exceed 90 days after sentencing.”                                18 U.S.C.

§ 3664(d)(5).

            “[A] sentencing court that misses the 90-day deadline

[,however,] nonetheless retains the power to order restitution[]

at least where . . . the sentencing court made clear prior to

the    deadline’s     expiration         that     it    would     order      restitution,

leaving open (for more than 90 days) only the amount.”                            Dolan v.

United States, 130 S. Ct. 2533, 2536 (2010).                              The ninety-day

time   limit    is    the    type   of    requirement          that    “seeks    speed    by

creating a time-related directive that is legally enforceable

but does not deprive a [district court] . . . of the power to

take the action.”           Id. at 2538-39.            “The fact that a sentencing

court misses the [MVRA’s] 90-day deadline, even through its own

fault or that of the Government, does not deprive the court of

the power to order restitution.”                Id. at 2539.

            In this case, it is undisputed that the district court

missed the MVRA’s ninety-day deadline, ordering restitution on

October 25, 2010, 173 days after the May 5, 2010 sentencing

hearing.       In imposing judgment at the May 5 hearing, however,

the    district      court     specifically            ordered     that      Welebir     pay

restitution     to    Bad    Water   Bill’s        owner       Mary    Fisher,     leaving

undecided      for    more    than       ninety        days     only   the      amount    of

restitution.         We therefore reject Welebir’s argument that the

district    court     erred    in    denying       his        motion   to    dismiss     the

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restitution request because the MVRA required a hearing on that

request within ninety days after sentencing.                  See id. at 2536.

            Welebir also claims that the district court erred in

ordering restitution in this case because the Government did not

notify him of its amended request for restitution within ninety

days   after     sentencing.         We    reject     this    argument       as    well.

Although the district court necessarily could not rule on the

propriety      of   the    Government’s         amended   request     in     a    timely

manner, this did not deprive the court of the power to order a

restitution amount.            Id. at 2539.       Further, Welebir was able to

challenge    the     amended     restitution      request     at   the     October      25

hearing and has not asserted that he was harmed by the district

court’s     failure       to    comply     with     the     ninety-day       deadline.

Accordingly, we discern no abuse of discretion in the district

court’s order of restitution.

            We      therefore     affirm    the     district       court’s       amended

judgment of conviction.            We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials    before       the    court    and    argument    would    not        aid   the

decisional process.



                                                                                 AFFIRMED




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