     Case: 09-51178 Document: 00511421122 Page: 1 Date Filed: 03/23/2011




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

                                                 FILED
                                                                           March 23, 2011

                                       No. 09-51178                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

STEPHEN WESTE,

                                                   Defendant - Appellant




                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:07-CR-323-1


Before REAVLEY, JOLLY, and STEWART, Circuit Judges.
PER CURIAM:*
       High school teacher Steven Weste appeals his conviction, which was
related to a series of threatening and harassing emails sent over a two-year
period. Weste contends that the district court erred by denying his motion to
transfer venue, that the evidence was insufficient to sustain his conviction, and
that his counsel was prevented from conducting a complete defense. Weste also
appeals his sentence of 180 months of imprisonment, asserting that the district
court erred in calculating his sentence. For the reasons outlined below, we

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 09-51178

disagree with each of Weste’s contentions, and therefore AFFIRM the judgment
of the district court.
                                        I.
      Steven Weste was a history teacher at Judson High School in San Antonio,
Texas, who began dating his student Amanda Stewart soon after her graduation
in May 2005.     Amanda, her family, and others received a series of emails
containing graphically-violent threats and harassing statements over a two-year
period. Although the emails purported to be from Amanda’s mother and from
her ex-boyfriend, the Government presented evidence showing that the IP
address was linked to Weste when the offending emails were sent. Further,
forensic evidence obtained by searching Weste’s computer showed that it was
used to compose some of the threatening messages.
      A jury found Weste guilty of fifteen counts, including: five counts of
Making False Statements to a Federal Agency, 18 U.S.C. § 1001(a)(2), one count
of Concealing a Material Fact in a Matter within the Jurisdiction of a Federal
agency, 18 U.S.C. § 1001(a)(1), and nine counts of Transmitting Threats to Kill
Others, 18 U.S.C. § 875(c). The district court sentenced Weste to 180 months of
imprisonment. Weste timely appealed.
                                        II.
      On appeal, Weste raises the following contentions: (1) that the district
court’s denial of his motion to transfer venue violated his right to a fair and
impartial jury; (2) that there was insufficient evidence to support the jury’s
verdict on each count; (3) that his right to present a defense was infringed by the
district court’s threatening to reverse a favorable motion to suppress if his
counsel continued aggressively to cross-examine witnesses; and (4) that the
district court abused its discretion by assigning him a non-guidelines sentence.
We consider each of these contentions below.



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                                  No. 09-51178

                                        A.
      We first address the denial of Weste’s motion for change of venue. A
change of venue motion is reviewed for abuse of discretion, with considerable
deference to the district court. Skilling v. United States, 130 S. Ct. 2896, 2913
n. 11 (2010); United States v. Hinojosa, 958 F.2d 624, 631 (5th Cir. 1992); United
States v. Smith, 354 F.3d 390, 394 (5th Cir. 2003).
      A newspaper article, which was published two days before the beginning
of trial, but after the jury was impaneled, reported Weste’s confession to the
police. Although it was suppressed from the jury, two jurors learned of the
article. However, they were dismissed from the jury and the remaining jurors
did not know about the article.       Weste argues that this chain of events
necessitated the grant of his motion to transfer venue. Although we agree that
the newspaper article containing the confession was prejudicial, the remaining
jurors were not aware of it. See United States v. Evans, 272 F.3d 1069, 1087 (8th
Cir. 2001); United States v. Seeright, 978 F.2d 842, 849-50 (4th Cir. 1992).
Accordingly, we find that the district court did not err in denying Weste’s motion
to transfer venue.
                                        B.
      We next consider Weste’s contention that the evidence is insufficient to
support the jury’s verdict on each count. This court reviews de novo whether the
evidence presented at trial is sufficient for a rational trier of fact to have found
the essential elements of a the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979). In order to uphold a verdict, the court need
only find that the jury’s verdict was reasonable; it need not believe it was
correct. United States v. Ollison, 555 F.3d 152, 160 (5th Cir. 2009).
      Weste alleges that there was no direct or physical evidence linking him to
the emails and that the IP addresses from which the emails were sent were not
registered to “Steven Weste.” At trial, a government case agent testified that the

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                                 No. 09-51178

IP addresses from which several of the threatening emails were sent could be
traced to Weste. The expert also testified that Weste set up or logged on to
several of the email accounts from which the offending emails were sent.
Government experts presented several chronologies of events showing that
Weste’s computer was used in locations where Weste was known to have been
at the times they were sent (Weste’s location was tracked through cell phone
records and credit card transactions).      Additionally, a government agent
performed a forensic examination of Weste’s laptop, which showed that it was
used to log on to the email accounts in question, that it was used to log on to a
Starbucks wireless account from which emails were sent, and that the January
8, 2007 email sent to John Coleman from chalcedony.1@hotmail.com was
composed on Weste’s laptop. Based upon this and other evidence presented at
trial, we hold that there is sufficient evidence for a reasonable jury to convict
Weste.
                                       C.
      Weste contends that the district court violated his Sixth Amendment right
to present a defense when it threatened to reverse a favorable ruling from a
motion to suppress if counsel continued to cross-examine witnesses in a way that
attacked law enforcement. Alleged Sixth Amendment violations are reviewed
de novo. Wilkerson v. Cain, 233 F.3d 886, 890 (5th Cir. 2000); United States v.
Hitt, 473 F.3d 146, 156 (5th Cir. 2006); United States v. Skelton, 514 F.3d 433,
438 (5th Cir. 2008). Although Weste claims that the judge issued a “blanket
warning” that inhibited his defense, the district court judge made a single
statement, which was quickly clarified when he explicitly noted: “You can ask
all the tough questions you like, but your questions have to be phrased as
questions.” We have held that “[t]he Confrontation Clause does not guarantee
defendants cross-examination to whatever extent they desire.” Bigby v. Dretke,
402 F.3d 551, 573 (5th Cir. 2005). Accordingly, we hold that the district court

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                                  No. 09-51178

did not err by requiring Weste’s counsel to phrase statements to witnesses as
questions.
                                       D.
      Finally, Weste contends that the district court erred by imposing upon him
a non-guidelines sentence. Appellate review of sentences takes place in two
stages:   First, the appellate court questions whether the district court
procedurally erred; then, if the sentence was procedurally proper, the court
engages in a substantive review for reasonableness, based on the totality of the
circumstances. United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th
Cir. 2009).   Because Weste did not raise a claim of procedural error at
sentencing, we review his claim for plain-error. See United States v. Lopez-
Velasquez, 562 F.3d 804, 806 (5th Cir. 2008).       The district did not commit
procedural error because it clearly listed the factors that led to the heightened
sentence, consistent with 18 U.S.C. § 3553. Mondragon-Santiago, 564 F.3d at
360 (describing procedural error as including a failure “to adequately explain the
chosen sentence—including an explanation for any deviation from the
Guidelines range.”).
      Thus, we need only assess whether the sentence is reasonable based upon
the totality of the circumstances.      Appellate courts review sentences for
reasonableness under an abuse of discretion standard.          United States v.
Brantley, 537 F.3d 347, 349 (5th Cir. 2008).      A non-guidelines sentence is
unreasonable if it: (1) does not account for 18 U.S.C. § 3553(a) factors that
should have received significant weight; (2) gives significant weight to an
irrelevant or improper factor; or (3) represents clear error of judgment in
balancing the sentencing factors. United States v. Smith, 440 F.3d 704, 708 (5th
Cir. 2006).
      The district court properly considered, with reference to § 3553, the pre-
sentence report, the parties’ arguments, the victim impact statements, evidence

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from the trial, psychological reports, and letters submitted in support of Weste.
Further, the court did not abuse its discretion by grouping the fifteen charges
into three counts; it did so in accordance with U.S.S.G § 3D1.2, which requires
that “[a]ll counts involving substantially the same harm shall be grouped
together into a single Group.” U.S.S.G § 3D1.2. Finally, the district court did
not abuse its discretion by running the sentences consecutively rather that
concurrently; it clearly has the authority to do so. See United States v. Saldana,
427 F.3d 298, 308-09 n.41 (5th Cir. 2005) (“A district court has discretion under
18 U.S.C. § 3584 to depart upwardly by running sentences consecutively, even
when 18 U.S.C.A. § 5G1.2(d) would otherwise mandate that the sentences run
concurrently.”).
      Although we note that Weste’s sentence was a sizable variance from the
range advised by the guidelines, the district court produced a reasonable
sentence which it adequately explained with reference to the § 3553(a)
sentencing factors and was consistent with our interpretation of the statutes
governing grouping and consecutively-run sentences. Accordingly, we find that
the district court did not abuse its discretion in deciding Weste’s sentence.
                                       III.
      To review our holdings, we summarize: (1) the district court did not err
in denying Weste’s motion to transfer venue; (2) there is sufficient evidence to
support the jury’s verdict on each count; (3) Weste’s right to present a defense
was not infringed; and (4) the district court did not abuse its discretion by
assigning Weste a non-guidelines sentence. Consequently, the judgment of the
district court is
                                                                     AFFIRMED.




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