                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-4839


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JAMES A. MATHENY,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Thomas E. Johnston,
District Judge. (2:12-cr-00068-1)


Submitted:   April 19, 2013                   Decided:   May 2, 2013


Before NIEMEYER, AGEE, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark McMillian, MARK MCMILLIAN - ATTORNEY AT LAW, L.C.,
Charleston, West Virginia, for Appellant. R. Booth Goodwin, II,
United States Attorney, Thomas C. Ryan, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              James     A.     Matheny    appeals     from     his    convictions           for

assaulting         a   federal     officer        with     a    deadly       weapon         and

brandishing        a   firearm    during    and     in    relation     to     a    crime     of

violence.      The evidence showed that, in response to questioning

outside of his home regarding an ongoing investigation, Matheny

aimed a pistol at a federal officer and a state investigator

assisting that officer and threatened to kill them.                                    Matheny

asserts on appeal that the evidence was insufficient to show

that he did not act in self-defense and that he “used” the

firearm.      We affirm.

              When an appellant challenges the sufficiency of the

evidence,      the     “jury     verdict    must     be    sustained        if    there     is

substantial        evidence,     taking     the    view    most      favorable         to   the

Government, to support it.”                 United States v. Burgos, 94 F.3d

849,    862    (4th     Cir.     1996)   (en      banc)    (emphasis        and    internal

quotation     marks      omitted).         “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. Green, 599 F.3d 360, 367

(4th Cir. 2010) (internal quotation marks and citation omitted).

In     determining       whether     substantial          evidence       supports           the

verdict,      we    “must    consider      circumstantial        as    well       as   direct

evidence, and allow the government the benefit of all reasonable

                                             2
inferences        from     the    facts      proven       to    those     sought       to    be

established.”        United States v. Cameron, 573 F.3d 179, 183 (4th

Cir.    2009)     (internal      quotation        marks    and    citations         omitted).

“Appellate reversal on grounds of insufficient evidence . . .

will be confined to cases where the prosecution’s failure is

clear.”      Green, 599 F.3d at 367 (internal quotation marks and

citation        omitted).            Matheny’s       counsel       objected          to      the

sufficiency of the evidence at trial, but the district court

found    sufficient       evidence      to   submit       the    matter    to    the      jury.

Thus, we review the sufficiency of the evidence de novo.                             Id.

             Matheny first argues that he was unaware of the status

of     the   law    enforcement         victims,       and       thus,    he     acted       in

proportional self-defense to a situation where two men, larger

than    he   was,        trespassed     on    his     land       and    confronted          him.

Accordingly, he contends that the Government failed to prove,

beyond a reasonable doubt, that he did not act in self defense.

             To    sustain       a    conviction      for       assaulting      a    federal

officer with a dangerous weapon in violation of 18 U.S.C. § 111

(2006), the Government must prove that Matheny used a dangerous

weapon to forcibly assault, resist, oppose, impede, intimidate,

or   interfere      with    any      designated     federal       officer       while       that

officer was performing official duties.                        We have held that § 111

“does not proscribe reasonable force employed in a justifiable

belief that it is exerted in self-defense.”                            United States v.

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Wallace, 368 F.2d 537, 538 (4th Cir. 1966).                              We have explained

that “the quantum of force which one may use in self-defense is

proportional        to   the    threat     which       he      reasonably         apprehends.”

United States v. Black, 692 F.2d 314, 318 (4th Cir. 1982).

              In short, then, where a defendant charged
              with violating § 111 claims that he was
              unaware that the victim was a federal
              officer, the question becomes: would the
              defendant have been justified, because of
              the agent’s actions, in using force against
              the agent had the latter, in fact, been a
              “civilian.”

United States v. Hillsman, 522 F.2d 454, 460 (7th Cir. 1975).

              In the present case, it is conceded that Matheny did

not know the victims included a federal officer.                                  Nonetheless,

there      was    more   than       sufficient       evidence         to    establish          that

Matheny used force against the victims that was disproportionate

to any reasonably apprehended potential threat.                                  There was no

evidence     that     either     victim    took       any      action      that    would       have

given Matheny         any    reasonable        belief       that    he     was    in    physical

danger.          Prior to Matheny pulling his weapon, neither victim

threatened         Matheny,     made     an        aggressive       movement,           took    an

aggressive        posture,     or     attacked      him.        Instead,         the    evidence

supported the conclusion that, in response to a ten-to-fifteen

second     conversation,        Matheny       pulled       a   gun,      aimed     it    at     the

waists of both victims, threatened to kill them, and trained the

gun   on    them    until      they    left.        Because        there    was     sufficient


                                               4
evidence to support the jury’s finding that Matheny did not act

in self defense, * the district court did not err in denying his

motion for judgment of acquittal.

              Next,    Matheny      contends    that   there    was   insufficient

evidence that he “used” the firearm within the meaning of the

statute.       Without a citation to any case law, Matheny avers

that, when referring to a firearm, “uses” in § 111(b) requires

that the defendant “discharge the weapon or attempt to discharge

the weapon.”

              We find that Matheny’s definition is without support.

In a § 111(b) prosecution, a court “must apply the ‘ordinary or

natural’ meaning of the word ‘use,’ variously defined as ‘[t]o

convert to one's service,’ ‘to employ,’ ‘to avail oneself of,’

and ‘to carry out a purpose or action by means of.’”                       U.S. v.

Williams,     520     F.3d   414,    421    (5th   Cir.   2008)     (holding     that

swinging      and     brandishing      a   shank    constituted       “use”    under

§ 111(b)).        Moreover, in a similar context, interpreting “use”

under 18 U.S.C. § 924(c) (2006), the Supreme Court has found

“use”    of   a   firearm    to   include      brandishing     or   displaying   the

     *
       In fact, Katrina Thacker, Matheny’s daughter, testified
that Matheny told her he pulled the gun on Wise and Berry not
because he was afraid of them, but rather because they called
him a liar.   Further, Matheny himself did not testify that he
was frightened prior to displaying his weapon; instead, he
testified that he became scared after he had already pulled out
the gun when one of the victims tried to get behind him.



                                           5
weapon.     Bailey v. United States, 516 U.S. 137, 148-49 (1995);

see also United States v. Hayden, 85 F.3d 153, 161 (4th Cir.

1996) (noting that brandishing constitutes “use” of a firearm).

In addition, Matheny’s assertions that he made no actual contact

with the victims and that the firearm did not have a round

chambered are equally unavailing.            See United States v. Hamrick,

43   F.3d   877,   880-83    (4th     Cir.    1995)   (affirming   § 111(b)

conviction where defendant mailed a dysfunctional bomb to the

victim).    Given the substantial evidence that Matheny brandished

a firearm while threatening the victims, we conclude there was

sufficient evidence to show “use” under the statute.

            Accordingly,    we   affirm      Matheny’s   convictions.     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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