                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4827


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HARVEY J. BREWER, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:12-cr-00001-IMK-JSK-1)


Submitted:   June 26, 2013                 Decided:   July 17, 2013


Before KEENAN, WYNN, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Barry P. Beck, POWER, BECK & MATZUREFF, Martinsburg, West
Virginia, for Appellant. Brandon Scott Flower, Assistant United
States Attorney, Clarksburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Following a two-day trial at which Defendant Harvey

Brewer testified in his own defense, the jury convicted Brewer

of escaping from the prison camp located at Federal Correctional

Institution — Gilmer (“FCI Gilmer”), in violation of 18 U.S.C.

§ 751(a)    (2006).        Brewer       was       sentenced      to   sixteen        months’

imprisonment, to be served consecutive to the 121-month sentence

he   was   serving    when   he    escaped,         and    one   year       of    supervised

release, to be served concurrent with the five-year supervised

release term previously imposed.                  This appeal followed.

            Counsel for Brewer has submitted his appellate brief

pursuant    to    Anders     v.        California,         386    U.S.        738    (1967),

certifying that there are no nonfrivolous issues, but asking us

to review the sufficiency of the evidence underlying the jury’s

verdict;    the     propriety      of    the       district      court’s          denial   of

Brewer’s motion in limine; whether the district court erred in

denying Brewer’s post-verdict motion for a new trial; and the

reasonableness of Brewer’s sentence.                    In his pro se supplemental

brief,     Brewer      asserts         that        18      U.S.C.       §        751(a)    is

unconstitutionally vague.          The Government has not filed a brief.

            For the following reasons, we reject these arguments.

Because    plenary    review      of    the       record   reveals       no      meritorious

issues, we affirm the judgment.



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                                         I.

            We    first     turn    to        counsel’s     challenge        to   the

sufficiency of the Government’s evidence.                   Although Brewer did

not move for a judgment of acquittal under Fed. R. Crim. P. 29

at the close of the Government’s case-in-chief, generally, a

jury’s    verdict   “must     be   sustained       if     there    is   substantial

evidence, taking the view most favorable to the Government, to

support it.”      Glasser v. United States, 315 U.S. 60, 80 (1942);

see United States v. Perkins, 470 F.3d 150, 160 (4th Cir. 2006).

This court considers both direct and circumstantial evidence,

drawing   all    reasonable    inferences        from   such      evidence   in   the

Government’s favor.        United States v. Harvey, 532 F.3d 326, 333

(4th Cir. 2008).          In evaluating sufficiency of the evidence,

this court does not reweigh the evidence or reassess the fact

finder’s determination of witness credibility, United States v.

Brooks, 524 F.3d 549, 563 (4th Cir. 2008), and “can reverse a

conviction on insufficiency grounds only when the prosecution’s

failure is clear.”         United States v. Moye, 454 F.3d 390, 394

(4th Cir. 2006) (en banc) (internal quotation marks omitted).

            To convict a defendant of escaping in violation of 18

U.S.C. § 751, the Government must prove:

     (1) that the defendant escaped or attempted to escape,
     (2) from the custody of the Attorney General, his
     appointed agent, or from a place where the defendant
     is confined at the direction of the Attorney General,


                                         3
     (3) where the custody is by virtue of (a) arrest on a
     felony charge or (b) conviction of any offense.

United States v. Vanover, 888 F.2d 1117, 1121 (6th Cir. 1989);

see also United States v. Evans, 159 F.3d 908, 910 (4th Cir.

1998) (discussing same elements).        “Although the term ‘escape’

is not defined in § 751(a), the government meets its burden if

it demonstrates that the defendant ‘absent[ed]’ himself ‘from

custody without permission.’”       Evans, 159 F.3d at 910 (quoting

United States v. Bailey, 444 U.S. 397, 407 (1980)).

          Given the jury’s guilty verdict, the evidence must be

viewed in the light most favorable to the Government.              United

States v. Baker, __ F.3d __, 2013 WL 2631726, at *1 (4th Cir.

June 13, 2013).   There was no dispute that Brewer was in custody

at FCI-Gilmer pursuant to his prior federal conviction.                The

real point of contention was whether Brewer escaped from FCI-

Gilmer or whether, as Brewer contended, he was simply out of

bounds.   The   guilty   verdict   reflects   that   the   jury   rejected

Brewer’s version of events and resolved this issue in favor of

the Government, and our review of the trial record confirms that

substantial evidence supports this verdict.

                                   II.

          We next consider whether the district court abused its

discretion in denying Brewer’s motion in limine, predicated on

Federal Rules of Evidence (“FRE”) 901 and 403, through which he


                                    4
sought to preclude the introduction of a video clip and related

photographs taken by a surveillance camera.                      See United States

v. Henry, 673 F.3d 285, 291 (4th Cir.), cert. denied, 133 S. Ct.

182 (2012).         “A district court abuses its discretion when it

acts     in   an    arbitrary    manner,        when   it    fails        to    consider

judicially-recognized factors limiting its discretion, or when

it relies on erroneous factual or legal premises.”                    Id.

              On    this     record,    we      discern     no    such         abuse    of

discretion.         Witness testimony authenticated the time and date

the challenged video clip was recorded, satisfying FRE 901.

              Brewer’s argument under FRE 403 fares no better.                         The

district court’s decision to allow the jury to view the video

clip and decide, in its capacity as the fact finder, whether or

not the man in the clip was Brewer, was neither arbitrary nor

predicated on an erroneous premise.                We therefore defer to the

district court’s ruling on the motion in limine based on FRE

403.     See United States v. Meyers, 280 F.3d 407, 413 (4th Cir.

2002) (explaining the “broad deference” this court accords to

the district court’s assessment of FRE 403 balancing).

                                        III.

              Counsel also asks that we review the district court’s

denial of Brewer’s post-verdict motion for a new trial based on

a juror’s failure to disclose a potential source of bias.                               To

obtain    a   new    trial    based    on    nondisclosure       by   a    juror,      the

                                            5
defendant must show that (1) the juror did not honestly answer a

material question during voir dire; and (2) if the juror had

provided an honest answer, it would have been a valid basis for

a challenge for cause.               See United States v. Fulks, 454 F.3d

410, 431 (4th Cir. 2006) (citing McDonough Power Equip., Inc. v.

Greenwood, 464 U.S. 548 (1984)).

               The district court assumed that Brewer satisfied the

first prong of the inquiry.               The court concluded, though, that

even if the juror had disclosed the potential source of her bias

— that her deceased father had been a police officer — this

would not have been a valid basis for a cause-based challenge to

her service on the jury, and thus denied the motion.

               A district court’s ruling as to whether a juror would

have       been    removed     for   cause   is        reviewed   for   an   abuse   of

discretion.         Id. at 432.      A trial court abuses its discretion in

this arena “(1) where a per se rule of disqualification applies;

and (2) where the court demonstrates a clear disregard for the

actual      bias    of   the    juror.”          Id.    (internal   quotation    marks

omitted).         There is no per se rule of disqualification of any

juror whose family member worked in law enforcement. 1                        We also

agree that this juror exhibited no actual bias and that this is

       1
        In fact, as the district court noted, five other
prospective jurors answered the same question affirmatively, and
none of them were stricken from the jury for cause.



                                             6
not   one       of    the     “extreme       situations”        from    which      bias       may    be

implied.         Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988).

We therefore affirm the denial of the motion for a new trial.

                                                  IV.

                 Turning,       then,        to   Brewer’s           sentence,         this    court

reviews any criminal sentence, “whether inside, just outside, or

significantly outside the Guidelines range,” for reasonableness,

“under      a     deferential          abuse-of-discretion             standard.”             United

States v. King, 673 F.3d 274, 283 (4th Cir.), cert. denied, 133

S. Ct. 216 (2012); Gall v. United States, 552 U.S. 38, 46, 51

(2007).         Where, as here, the district court imposes a departure

or    variance          sentence,        this       court       considers         “whether          the

sentencing           court    acted     reasonably            both    with     respect        to    its

decision        to     impose    such     a    sentence        and    with     respect        to    the

extent of the divergence from the sentencing range.”                                          United

States      v.       Hernandez-Villanueva,              473    F.3d    118,     123     (4th       Cir.

2007).           Only    if     we    determine         that    there     is      no    procedural

infirmity will we review the substantive reasonableness of the

sentence,            again     applying       the       abuse-of-discretion              standard.

Gall, 552 U.S. at 51; United States v. Lynn, 592 F.3d 572, 575

(4th Cir. 2010).

                 We    conclude       that    Brewer’s         sentence      is    free       of    any

procedural or substantive infirmity.                           First, the district court

properly         calculated          Brewer’s     pre-departure           Guidelines          range.

                                                   7
Moreover, we do not discern any error in the two-level upward

departure the court imposed based on Brewer’s extensive perjury

and calculated efforts to obstruct justice.                         See U.S. Sentencing

Guidelines Manual (“USSG”) §§ 3C1.1, 5K2.0(a)(3), p.s. (2011);

see, e.g., United States v. O’Georgia, 569 F.3d 281, 290 (6th

Cir. 2009) (recognizing that “[d]epartures under [USSG § 5K2.0]

therefore fall into two categories — departures based on facts

of    a   different      kind     than     those         taken   into     account     by   the

underlying         Guidelines       and       departures         where      the      relevant

circumstance is present to an unusually large or small degree”).

Finally, the court permitted the parties to argue in favor of a

particular        sentence,      allowed        Brewer      to    allocute,       considered

those arguments, and analyzed the relevant sentencing factors in

terms of this individual defendant.

              With      regard    to      the       substantive         reasonableness      of

Brewer’s sentence, this court evaluates “the totality of the

circumstances to see whether the sentencing court abused its

discretion in concluding that the sentence it chose satisfied

the    standards        set    forth     in    §    3553(a).”           United    States    v.

Hargrove,         701   F.3d     156,     160-61         (4th    Cir.     2012)   (internal

quotation marks omitted), cert. denied, 2013 WL 1703536 (U.S.

May 20, 2013).           Given the totality of circumstances present in

this      case,    we    conclude       that       the    departure       sentence    Brewer

received is substantively reasonable.

                                                8
                                               V.

              In his pro se supplemental brief, Brewer asserts that

18 U.S.C. § 751(a) is unconstitutionally vague, as applied to

his conduct, because it penalizes innocent conduct and because

it does not give fair notice as to what actions are prohibited.

We cannot agree.

              As we recently explained, a criminal statute is void-

for-vagueness     if     it      “fails       to    provide   a   person    of        ordinary

intelligence     fair       notice       of    what     is    prohibited,        or    is   so

standardless      that        it     authorizes         or     encourages         seriously

discriminatory enforcement.                   This analysis should be conducted

bearing in mind the context in which the statute is applied.”

United States v. Beason, No. 11-4676, 2013 WL 1694541, at *2

(4th Cir. Apr. 19, 2013) (unpublished after argument) (internal

quotation marks and citations omitted).                           We readily conclude

that § 751(a) provides ample notice as to what is prohibited.

The statute clearly criminalizes the escape or attempted escape

“from   the    custody      of     the   Attorney       General    or    his     authorized

representative, or from any institution or facility in which

[the    prisoner]      is     confined         by     direction     of     the        Attorney

General.”      18 U.S.C. § 751(a).                  And, as previously noted, the

Supreme Court has defined “escape” as “absenting oneself from

custody without permission.”                  Bailey, 444 U.S. at 407.                 In our

view,   “a     reasonable          person      of    ordinary      intelligence         would

                                               9
understand” the      conduct prohibited by this statute. 2               United

States v. Cavillo-Rojas, Nos. 10–4033/4061/4062/4067/4072, 2013

WL 563885, at *10 (4th Cir. Feb. 15, 2013) (unpublished after

argument).

                                     VI.

            In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm the criminal judgment.               This court requires

that counsel inform Brewer, in writing, of the right to petition

the Supreme Court of the United States for further review.                   If

Brewer requests that a petition be filed, but counsel believes

that such a petition would be frivolous, then counsel may move

in   this    court   for   leave    to    withdraw   from      representation.

Counsel’s motion must state that a copy thereof was served on

Brewer.     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

     2
       This argument is also flawed in that it is predicated on
Brewer’s insistence that his only transgression was being
outside the camp housing unit after the designated midnight
hour.    But the jury heard and clearly rejected Brewer’s
testimony on this critical point.    We thus find no merit in
Brewer’s argument as to the vagueness of the statute as applied
to his view of his conduct.



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