                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4767


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WAYNEMON DEMOUNT BULLOCK,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:12-cr-00365-F-2)


Submitted:   January 29, 2015             Decided:   March 12, 2015


Before AGEE, DIAZ, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Phillip A. Rubin, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A     jury     convicted        Waynemon          Demount        Bullock      of

retaliation against a witness for his attendance and testimony

at an official proceeding, and aiding and abetting the same, in

violation of 18 U.S.C. §§ 1513(b)(1), 2 (2012).                              The district

court imposed a downward variant sentence of ninety-two months.

On   appeal,     Bullock       challenges       his    conviction       and       sentence.

Finding no reversible error, we affirm.

                                           I.

            A conviction under § 1513(b)(1) requires proof beyond

a reasonable doubt that “(1) the defendant knowingly engaged in

conduct either causing, or threatening to cause, bodily injury

to another person, and (2) acted with the intent to retaliate

for,   inter     alia,    the    testimony      of     a    witness    at    an    official

proceeding.”       United       States     v.   Wardell,       591    F.3d    1279,      1291

(10th Cir. 2009).         Bullock first challenges the district court’s

jury     instructions,         arguing     that       the     aiding        and   abetting

instruction      eliminated      the     retaliatory         intent    element      of    the

offense    and    that    an    instruction       on       another    count,      under   18

U.S.C.    § 1513(b)(2)          (2012),     confused         the     jury    as    to     the

knowledge and intent Bullock had to possess for the jury to

convict    him    under    18     U.S.C.    § 1513(b)(1).              “We    review      the

district court’s jury instructions in their entirety and as part

of the whole trial, and focus on whether the district court

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adequately instructed the jury regarding the elements of the

offense and the defendant’s defenses.”            United States v. Wilson,

198 F.3d 467, 469 (4th Cir. 1999) (citation omitted).

            We     review    Bullock’s      challenges         to    the      jury

instructions for plain error.            Bullock raised no objection to

the aiding and abetting instruction below; while he did object

to the § 1513(b)(2) instruction, he did so on grounds other than

that it confused the jury about the elements of § 1513(b)(1),

the issue he raises here.       See Fed. R. Crim. P. 30(d) (requiring

party to inform district court of specific grounds for objection

to instruction; otherwise, review is for plain error under Fed.

R. Crim. P. 52(b)); United States v. Robinson, 627 F.3d 941, 953

(4th Cir. 2010).

            After properly instructing the jury on the elements of

18 U.S.C. § 1513(b)(1), the district court instructed the jury

regarding   aiding    and   abetting,     stating    that     “[a]   person   may

violate the law even though he or she does not personally do

every — each and every act constituting the offense if that

person aided and abetted the commission of the offense.”                       We

conclude    that    this    instruction     was     neither     erroneous     nor

misleading.      As a defendant’s intent, knowledge, and motivation

when committing an offense are not acts, the aiding and abetting

instruction did not diminish the finding the jury needed to make

regarding Bullock’s retaliatory intent.

                                     3
               Bullock next argues that the instructions on the 18

U.S.C. § 1513(b)(2) charge confused the jury as to the elements

of §1513(b)(1).         The district court instructed the jury that, to

find   Bullock        guilty       of     retaliating          against     a        person      for

providing a law enforcement officer information related to the

commission of a federal offense, it did not need to find that

Bullock knew that the law enforcement officer was a federal law

enforcement officer.

               We    perceive      no    likelihood        that     the    instruction           at

issue confused         the    jury      regarding        the   elements        of    18    U.S.C.

§ 1513(b)(1).           First,          Bullock’s        conviction        of       retaliation

against    a    witness       for       his    attendance       and    testimony           at    an

official       proceeding       did      not    require        involvement           of    a    law

enforcement officer.               Second, the district court twice properly

instructed the jury that to convict Bullock under 18 U.S.C. §

1513(b)(1), it needed to find that Bullock knew the official

proceeding was a federal one.                  Accordingly, we find no reason to

reverse Bullock’s conviction based on the jury instructions.

               Bullock also attacks his conviction by asserting that

the    Government            failed       to        produce       sufficient              evidence

establishing that he knew the victim had testified in a federal

proceeding or that he entered the affray with the intent to

retaliate      against       the    victim      for      his   testimony.            We     review

challenges      to    the    sufficiency            of   evidence     de   novo.           United

                                                4
States v. Roe, 606 F.3d 180, 186 (4th Cir. 2010).                             “The jury’s

verdict   must       be     upheld       on       appeal   if   there    is   substantial

evidence in the record to support it, where 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. Perry, 757

F.3d 166, 175 (4th Cir. 2014) (emphasis and internal quotation

marks omitted), cert. denied, ___ S. Ct. ___, 2015 WL 133401

(U.S. Jan. 12, 2015) (No. 14-7289).

            Although Bullock testified that he did not know that

the   victim    testified          in    a    federal      proceeding,    three   of   the

Government’s witnesses provided the jury with ample testimony to

conclude beyond a reasonable doubt that Bullock was aware of the

victim’s testimony at the time of the altercation and joined in

the fight in retaliation for the victim’s testimony.                           We do not

reweigh the jury’s credibility determinations, United States v.

Kelly, 510 F.3d 433, 440 (4th Cir. 2007), and Bullock has not

sustained      his        burden        of    showing      that    the    evidence     was

insufficient to support his conviction.

                                                  II.

            Bullock         challenges            the    procedural     and   substantive

reasonableness of his sentence.                         We review Bullock’s sentence

for   reasonableness          “under          a    deferential     abuse-of-discretion

standard.”      Gall v. United States, 552 U.S. 38, 41 (2007).                          A

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district      court    commits      procedural        error     where,      among       other

things, it improperly calculates the Guidelines range, fails to

give sufficient consideration to the 18 U.S.C. § 3553(a) (2012)

factors, or inadequately explains the sentence imposed.                                Id. at

51.    Legal conclusions made by the district court in imposing a

sentence,      including      which       U.S.     Sentencing       Guidelines         Manual

(“USSG”) (2012) provision is applicable for scoring an offense

of conviction, are reviewed de novo.                   United States v. Boulware,

604 F.3d 832, 835 (4th Cir. 2010).

              When      reviewing          a       sentence         for      substantive

reasonableness, we “examine[] 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. Mendoza-Mendoza, 597

F.3d 212, 216 (4th Cir. 2010).                 “[A]n appellate court must defer

to the trial court and can reverse a sentence only if it is

unreasonable,        even   if    the     sentence     would       not    have       been   the

choice of the appellate court.”                     United States v. Evans, 526

F.3d   155,     160    (4th       Cir.     2008).       A     sentence       within         the

defendant’s     properly         calculated        Guidelines      range    is       presumed

substantively reasonable on appeal, and “[s]uch a presumption

can    only    be     rebutted       by     showing      that       the     sentence         is

unreasonable     when       measured      against      the    18    U.S.C.       §    3553(a)



                                               6
factors.”     United States v. Louthian, 756 F.3d 295, 306 (4th

Cir.), cert. denied, 135 S. Ct. 421 (2014).

            First, Bullock argues that the district court should

have    applied       USSG     § 2A2.2,          governing    aggravated       assault

offenses,    rather     than    USSG   § 2J1.2,       governing       obstruction   of

justice offenses.        The Statutory Index in the Guidelines Manual

lists both USSG §§ 2A2.2 and 2J1.2 as potentially applicable

provisions      for     scoring        a      conviction       under     18     U.S.C.

§ 1513(b)(1).      See USSG App. A (Statutory Index).                   To determine

which provision is most applicable, a court must look at the

“offense conduct charged” in the indictment.                    Boulware, 604 F.3d

at 836.      If both provisions are “equally applicable” a court

should apply “the provision that results in the greater offense

level.”    USSG § 1B1.1 cmt. n.5.

            With     regard    to   the      18    U.S.C.    § 1513(b)(1)      charge,

Bullock’s indictment alleged that he “cause[d] bodily injury to

another person” and that he did so “with the intent to retaliate

against a person for the attendance of, and testimony given by,

a witness.”       Accordingly, the charged conduct, read in a light

most favorable to Bullock, falls at least equally within both of

the    potentially     applicable      provisions.           Compare    USSG   § 2A2.2

cmt.    background     with     USSG       § 2J1.2    cmt.    background.        Where

scoring    Bullock’s     offense       of    conviction       under    USSG    § 2J1.2



                                             7
produced a higher total offense level, the district court did

not procedurally err when it applied USSG § 2J1.2.

            Second,        Bullock      argues          that    the     district        court

procedurally erred when it varied downward without explaining

the extent of its variance or why the lower sentence Bullock

sought did not satisfy the 18 U.S.C. § 3553(a) factors.                                 Where

the district court imposes a variant sentence, it “must give

serious consideration to the extent of the . . . variance, and

must     adequately   explain        the      chosen       sentence      to     allow    for

meaningful appellate review and to promote the perception of

fair sentencing.”          United States v. Montes-Flores, 736 F.3d 357,

371 (4th Cir. 2013) (internal quotation marks omitted).                              In this

case, the district court did not specify why the extent of the

chosen    variance    was     appropriate.              Furthermore,          the    district

court,    while    stating       that    it       had    considered       the       § 3553(a)

factors    and    making     a   brief     reference           to    Bullock’s       criminal

record, did not explain how the sentencing factors applied to

Bullock’s case.        Accordingly, the district court procedurally

erred when imposing Bullock’s sentence.                         See United States v.

Carter, 564 F.3d 325, 329-30 (4th Cir. 2009) (district court’s

statement     that    it     considered           § 3553(a)         factors     constitutes

procedural error where it did not “articulate how the sentencing

factors applied to the facts of the particular case before it”).



                                              8
            We      review     a    procedural       error         at     sentencing       for

harmlessness.          Boulware, 604 F.3d at 838.                  A district court’s

failure to properly explain its sentence is harmless where the

error   “did     not    have    a   substantial         and    injurious         effect     or

influence      on      the     result,”         including       where          the      record

demonstrates that the district court considered the arguments

advanced by the defendant and the arguments were weak.                                 Id. at

839-40.     Here, Bullock argued that a downward variant sentence

was   appropriate       because     his    offense       should         have    been    scored

under USSG § 2A2.2.            Although the district court opted to vary

downward to some extent, the record makes clear that it had

already rejected Bullock’s scoring argument, in accordance with

the   Guidelines.         Therefore,       the    district         court’s       failure    to

adequately explain its sentence was harmless.

            Finally,         Bullock       argues       that       his         sentence     is

substantively unreasonable because the district court did not

adequately     tie     his     sentence    to     the    § 3553(a)         factors.         As

Bullock’s      ninety-two-month           sentence       is    a        downward       variant

sentence, we presume it is substantively reasonable.                               Louthian,

756 F.3d at 306.             Bullock has not overcome the presumption of

substantive reasonableness where the district court’s sentence

accounted for Bullock’s pattern of recidivism.                             See 18 U.S.C.

§ 3553(a)(2)(B),        (a)(2)(C)      (listing         need   “to       afford      adequate



                                            9
deterrence” and “to protect the public from further crimes of

the defendant” as sentencing factors).

                                    III.

            Accordingly,      we   affirm    Bullock’s        conviction   and

sentence.    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




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