                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4561


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

CHARLIE B. TAYLOR,

                  Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:07-cr-00105-JPB-DJJ-1)


Submitted:    March 6, 2009                    Decided:   April 30, 2009


Before WILKINSON and      MICHAEL,   Circuit    Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Lary D. Garrett, GARRETT & GARRETT, Moorefield, West Virginia,
for Appellant.   Sharon L. Potter, United States Attorney, Paul
T. Camilletti, Assistant United States Attorney, Martinsburg,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Charlie B. Taylor was convicted after a jury trial of

assault with a dangerous weapon with intent to do bodily harm,

without just cause or excuse, in violation of 18 U.S.C. §§ 7,

113(a)(3)     (2006).       The    district        court   sentenced       Taylor   to

thirty-three months of imprisonment.                 Taylor appeals, contending

that: (1) the district court erred in refusing to grant his

motion for a judgment of acquittal pursuant to Fed. R. Crim. P.

29; (2) the district court erred in refusing to grant a new

trial by allowing the Government to strike an African-American

juror and in ruling that the Government could cross-examine his

witnesses using his criminal record when the Government had not

disclosed his criminal record until the day before trial; and

(3)   the   district    court     erred    by     refusing      to    grant   downward

departures    under     U.S.    Sentencing        Guidelines    Manual     §§ 5K2.10,

5K2.13, 5K2.20 (2007).          Finding no error, we affirm.

            Taylor      first     challenges        the    sufficiency        of    the

evidence to convict him.           This court reviews a district court’s

decision to deny a Rule 29 motion for a judgment of acquittal de

novo.   United States v. Smith, 451 F.3d 209, 216-17 (4th Cir.

2006)   (providing       standard).           A    defendant         challenging    the

sufficiency    of     the   evidence      faces     a   heavy    burden.        United

States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).                             The

verdict of a jury must be sustained “if, viewing the evidence in

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the   light    most    favorable      to    the     prosecution,       the     verdict    is

supported by ‘substantial evidence.’”                    Smith, 451 F.3d at 216

(citations      omitted).          Furthermore,         “[t]he         jury,     not     the

reviewing     court,     weighs    the      credibility     of    the     evidence       and

resolves any conflicts in the evidence presented.”                           Beidler, 110

F.3d at 1067 (internal quotation marks and citation omitted).

“Reversal for insufficient evidence is reserved for the rare

case where the prosecution’s failure is clear.”                          Id. (internal

quotation marks and citation omitted).

              Taylor’s    conviction         stemmed     from     an    incident       that

occurred      between    him    and     another       resident     of    the     Veterans

Administration Medical Facility (“VA”) in Berkeley County, West

Virginia.       Taylor    and     the      victim    exchanged     words       after     the

victim’s wheelchair bumped into Taylor’s walker in the elevator.

Upon exiting the elevator, the victim remained in front of the

doors preventing Taylor from exiting.                   Conflicting evidence was

presented at trial regarding who struck the first blow.                                   An

employee of the VA called a security officer to the scene, who

arrived and told the men to break it up.                    The victim backed off

upon seeing the officer.                Taylor, however, had pulled out a

pocket   knife    and    struck       the    victim    as   the    officer       arrived,

causing three lacerations across the victim’s chest, neck, and

face.



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                At trial, Taylor’s counsel argued to the jury that

Taylor acted in self-defense, and the district court instructed

the jury on the elements of self-defense.                      On appeal, Taylor

contends        that    the    evidence    clearly   demonstrated   that   he     was

exercising his right to defend himself.                     We have reviewed the

record and find that there was substantial evidence to support

the jury’s verdict.             See Beidler, 110 F.3d at 1067 (“[T]he jury,

not the reviewing court, weighs the credibility of the evidence

and resolves any conflict in the evidence presented.”) (internal

quotation marks and citation omitted).

                Taylor next contends that the district court erred in

denying his motion for a new trial filed pursuant to Fed. R.

Crim. P. 33.           We review a district court’s denial of a Rule 33

motion for a new trial for abuse of discretion.                   Smith, 451 F.3d

at 216-17.         With regard to Taylor’s Batson * claim, this court

reviews     a    finding       by   a   district   court   “concerning   whether    a

peremptory challenge was exercised for a racially discriminatory

reason . . . [with] great deference,” considering only whether

the   district         court   committed     clear   error.     United   States    v.

Farrior, 535 F.3d 210, 220 (4th Cir. 2008) (citations omitted),

cert. denied, 129 S. Ct. 743 (2008).




      *
          Batson v. Kentucky, 476 U.S. 79 (1986).



                                             4
              When a defendant has made a Batson challenge, he must

come     forward         with        prima        facie     evidence       of     purposeful

discrimination.                Id.      “[T]he         burden    [then]    shifts       to    the

Government        to    articulate          a    race-neutral      explanation         for     the

challenge.”            Id. at 221.              If the Government provides such an

explanation, “the burden shifts back to the defendant to prove

that the explanation given is a pretext for discrimination.”

Id.

              In        this        case,        the     prosecution       offered           three

race-neutral reasons for striking the juror: she previously had

served on a criminal jury that reached a verdict of not guilty,

she had a sibling who had been convicted of a drug crime in that

same court, and she had testified on a prior occasion in a

murder trial.            Because Taylor has not demonstrated that these

reasons were merely a pretext for purposeful discrimination, we

find   no    error       in    the    district         court’s   denial      of   his    Batson

challenge.

              Taylor also asserts that the district court erred in

denying     his    Rule        33    motion       by    permitting   the     Government         to

introduce his extensive criminal record when the Government did

not comply with the court’s discovery order.                         The Government did

not receive Taylor’s forty-page criminal record until the day

before      trial,      at     which    time       it    disclosed     the      same    to    the

defense.      The district court ruled that the Government could use

                                                   5
the criminal record to impeach any character witnesses Taylor

might call on his behalf.

            This court “review[s] a district court’s decision to

sanction    a   party    for    discovery        violations     for    an   abuse   of

discretion.”     United States v. Hastings, 126 F.3d 310, 316 (4th

Cir. 1997) (citation omitted).

      In determining a suitable and effective sanction, a
      court must weigh the reasons for the [G]overnment’s
      delay and whether it acted intentionally or in bad
      faith; the degree of prejudice, if any, suffered by
      the defendant; and whether any less severe sanction
      will remedy the prejudice and the wrongdoing of the
      [G]overnment.

Id. at 317.       Our review of the record convinces us that the

district court did not abuse its discretion in denying Taylor’s

Rule 33 motion on this ground.

            Finally,      Taylor      contends        that   the    district    court

should have departed pursuant to several policy statements in

the Guidelines.     Appellate courts review a sentence imposed by a

district    court       for    reasonableness,          applying      an    abuse   of

discretion standard.          Gall v. United States, 128 S. Ct. 586, 597

(2007); United States v. Pauley, 511 F.3d 468, 473 (4th Cir.

2007).     If there are no procedural errors in the sentence, the

appellate court then considers the substantive reasonableness of

the   sentence.     Gall,       128    S.       Ct.    at    597.      “Substantive

reasonableness review entails taking into account the ‘totality

of the circumstances, including the extent of any variance from

                                            6
the Guidelines range.’”             Pauley, 511 F.3d at 473 (quoting Gall,

128 S. Ct. at 597).                If a sentence is within the Guidelines

range,    an    appellate      court     may    presume    that       the   sentence    is

reasonable.         Pauley, 511 F.3d at 473.

               Specifically, Taylor contends that the district court

should have sentenced him below the Guidelines range because the

victim’s       conduct      significantly       contributed       to    provoking      his

behavior, he suffers from a reduced mental capacity due to his

age, and the crime was not planned, and not long in duration,

and     represents      a    departure    from     his    normal       behavior.       In

addition, Taylor contends that the district court should have

varied from the Guidelines range based on his age and physical

condition.

               We    find     no    procedural      error        in     the    sentence.

Moreover, the sentence was within the Guidelines range; thus,

this court applies a presumption of reasonableness.                           Taylor has

failed    to    present      evidence     to    rebut     this    presumption.         We

therefore find the district court did not abuse its discretion

in imposing Taylor’s sentence.

               Accordingly,        we    affirm     Taylor’s           conviction      and

sentence.       We dispense with oral argument because the facts and

legal    contentions        are    adequately     presented       in    the    materials




                                            7
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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