     Case: 17-60197       Document: 00514439191         Page: 1     Date Filed: 04/20/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                     No. 17-60197                              FILED
                                   Summary Calendar                        April 20, 2018
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

DAVIAN WILSON, also known as Chaba,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:15-CR-68-1


Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
       Davian Wilson challenges his conviction and sentence, based upon a
jury’s finding him guilty of second-degree murder, in violation of 18 U.S.C.
§ 1111. His conviction arose out of an incident in which Wilson, Bell, Cotton,
and Willis together attacked Jonis Joe after leaving a party. Joe died of
internal bleeding caused by being stabbed numerous times.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
    Case: 17-60197    Document: 00514439191      Page: 2   Date Filed: 04/20/2018


                                 No. 17-60197

      Wilson first contends that, although Joe died of stab wounds, there was
insufficient evidence to prove he stabbed him. A jury verdict will be upheld if,
when “considering the evidence and all reasonable inferences in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt”. United States v.
Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)). Along that line, the jury “retains the sole authority
to weigh any conflicting evidence and to evaluate the credibility of the
witnesses”. United States v. Loe, 262 F.3d 427, 432 (5th Cir. 2001) (citing
United States v. Millsaps, 157 F.3d 989, 994 (5th Cir. 1998)). In short, our
review is “highly deferential to the verdict”. United States v. Harris, 293 F.3d
863, 869 (5th Cir. 2002).
      Bell testified he and Wilson each stabbed Joe many times.             Bell’s
testimony was corroborated by Wilson’s after-the-fact admissions to two
separate witnesses that he believed he had killed Joe. It was also corroborated
by circumstantial evidence that Wilson possessed a knife on the night of the
incident and that he was seen cleaning a knife in a kitchen sink immediately
after the incident. Viewing this evidence in the requisite light most favorable
to the prosecution, a rational jury could have found Wilson stabbed Joe with
malice aforethought. E.g., Vargas-Ocampo, 747 F.3d at 303.
      Alternatively, Wilson asserts he stabbed Joe in self-defense.         Trial
evidence established Joe never pointed a gun at Wilson or the other attackers,
and Wilson points to no evidence suggesting any of the attackers felt
threatened by Joe or believed the force they employed during the assault was
necessary to defend themselves. Wilson fails to establish no rational jury could
have found he did not act in self-defense. E.g., id.




                                        2
    Case: 17-60197    Document: 00514439191     Page: 3   Date Filed: 04/20/2018


                                 No. 17-60197

      Wilson next contends the court abused its discretion in admitting into
evidence the clothing Wilson allegedly was wearing on the night of the attack.
For the following reasons, the Government met the low evidentiary threshold
from which the jury could infer the clothing was removed from Wilson’s person
after his arrest. E.g., United States v. Ceballos, 789 F.3d 607, 618 (5th Cir.
2015) (conclusive proof of authenticity not required for admission).
      A photograph of Wilson at the time of his arrest depicts him wearing the
same distinctive sweatshirt that was among the clothes admitted at trial; and
a law-enforcement officer testified she observed Wilson wearing the same
sweatshirt at the time of his arrest. Also among the clothes admitted in
evidence was underwear with Wilson’s name written on the inside of the
waistband. Moreover, the Government presented testimony to establish the
chain of custody of the clothes from where they were first examined at a
detention center, and their subsequent transfers to an evidence locker at the
police station and to the state crime lab—where various items of the clothing
were found to have spots of blood belonging to both Wilson and Joe.
      Any gaps in the chain of custody or any doubts about authenticity went
to the weight of the evidence, not its admissibility. E.g., United States v.
Isiwele, 635 F.3d 196, 200 (5th Cir. 2011) (“Once the proponent has made the
requisite showing . . . flaws in the authentication . . . go to the weight of the
evidence”); United States v. Doggins, 633 F.3d 379, 383 (5th Cir. 2011)
(“Missing links in the chain of custody go to the weight and not the
admissibility of evidence and are properly left to consideration by the jury”
(internal quotation omitted)). As noted, the court did not abuse its discretion
in admitting the clothes in evidence.
      Regarding his sentence, Wilson asserts his above-Guidelines sentence of
400 months’ imprisonment is substantively unreasonable because the court



                                        3
    Case: 17-60197    Document: 00514439191     Page: 4   Date Filed: 04/20/2018


                                 No. 17-60197

failed to give sufficient weight to 18 U.S.C. § 3553(a)(6), which required the
court to consider “the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
conduct”. Wilson preserved in district court his challenge to the substantive
reasonableness of his sentence; our review is for abuse of discretion. E.g.,
United States v. Diehl, 775 F.3d 714, 724 (5th Cir. 2015) (citing United States
v. Scott, 654 F.3d 552, 554 (5th Cir. 2011)).
      Wilson’s contention that his sentence is unreasonably long when
compared to the average and median sentences federal courts imposed for
murder convictions from 2014 to 2016 is unavailing because the national
averages “do not reflect the enhancements or adjustments for the aggravating
or mitigating factors that distinguish individual cases” and “are basically
meaningless in considering whether a disparity with respect to [Wilson] is
warranted or unwarranted”. United States v. Willingham, 497 F.3d 541, 544–
45 (5th Cir. 2007).
      Wilson’s assertion that his sentence is unjustly disparate when
considering the sentences of Bell (180 months), Cotton (57 months), and Willis
(no federal charges brought) is also unavailing.       Any disparity between
Wilson’s sentence and the sentences of the other parties reflects the fact that
Bell and Cotton accepted responsibility, Bell cooperated with the Government,
Wilson’s criminal history included more severe and violent offenses, Cotton
pleaded guilty to a lesser offense, and Willis was not even indicted in federal
court. E.g., United States v. Kinchen, 729 F.3d 466, 476 (5th Cir. 2013); United
States v. Guillermo Balleza, 613 F.3d 432, 435 (5th Cir. 2010); United States v.
Duhon, 541 F.3d 391, 397 (5th Cir. 2008). Moreover, Wilson instigated the
attack on Joe, and there is support in the record for the court’s finding Wilson
was primarily responsible for Joe’s death.



                                        4
    Case: 17-60197    Document: 00514439191     Page: 5   Date Filed: 04/20/2018


                                 No. 17-60197

      In sentencing Wilson, the district court gave due consideration to 18
U.S.C. § 3553(a)(6) and Wilson’s sentencing-disparity claims. Given our highly
deferential review, Diehl, 775 F.3d at 724, there was no abuse of discretion.
      AFFIRMED.




                                       5
