Petition for Writ of Certiorari — Davian Wilson, Petitioner v. United States

APPENDIX 1

Case 3:15-cr-00068-DPJ-LRA Document 112 Filed 03/20/17 Page 1 of 7

AO 2458(Rev. 11/16) Judgment in ¢ Criminal Case

Sheet | JVH/fw

UNITED STATES DISTRICT COURT

Souther District of Mississippi

)

UNITED STATES OF AMERICA

’ ° } JUDGMENT IN A CRIMINAL CASE

DAVIAN WILSON Case Number: 3:15cr68DPJ-LRA-001

a/k/a Chaba ) USM Number: 18530-043

)

) Michael L. Scott and Abby W. Brumley

) ‘Defendant's Attorney

THE DEFENDANT: SOUTHERN OA TRIGT a

UO pleaded guilty to count(s) ——Fib =

O pleaded noto contendere to count(s) MAR-2.0-2017

which was accepted by the court.

was found guilty on count(s) —_ the single-count Indictment ET ey

after a plea of not guilty. =

The detendant 1s adjudicated guilty ot these ottenses:

Title & Section Nature of Offense Offense Ended Count

18 U.S.C. §§ 1153, 2 Murder (2nd Degree) 08/15/2014 1

and 1171

The defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence is imposed pursuant to

the Sentencing Reform Act of 1984,

O The defendant has been found not guilty on count(s)

CO) Count(s) Dis (Clare dismissed on the motion of the United States.

_,._ tis ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence,

or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment arc fully paid. If ordered to pay restitution,

the defendant must notify the court and United States attorney of material changes in ccohomic circumstances

The Honorable Daniel P. Jordan II! U.S. District Judge

Name and Tile of Judge

3 -L6-(>

Date

Case 3:15-cr-00068-DPJ-LRA Document 112 Filed 03/20/17 Page 2 of 7

AO 245B(Rev. 11/16) Judgment in a Criminal Case

Sheet 2— imprisonment

DEFENDANT: —DAVIAN WILSON

CASE NUMBER: 3:15cr68DPJ-LRA-001

IMPRISONMENT

The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of:

400 months

Wi The court makes the following recommendations to the Bureau of Prisons:

The Court recommends the defendant be housed at FCI Yazoo City, Mississippi, should he meet the designation

requirements.

i The defendant is remanded to the custody of the United States Marshal.

O The defendant shall surrender to the United States Marshal for this district:

O at Oem O pm on

0 as notified by the United States Marshal.

C) The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

O before

1 as notified by the United States Marshal.

1 asnotified by the Probation or Pretrial Services Office.

RETURN

Thave executed this judgment as follows:

Defendant delivered on to

a + With a certified copy of this judgment.

UNITED STATES MARSHAL

By

DEPUTY UNITED STATES MARSHAL

Case 3:15-cr-00068-DPJ-LRA Document 112 Filed 03/20/17 Page 3 of 7

AO 245B(Rev. 11/16) Judgment in a Criminal Case

Sheet 3 — Supervised Release

Judgment—Page 3 f 7

DEFENDANT: _DAVIAN WILSON a

CASE NUMBER: 3:15cr68DPJ-LRA-001

SUPERVISED RELEASE

Upon release from imprisonment, you will be on supervised release foratermof; _5 years

MANDATORY CONDITIONS

You must not commit another federal, state or local crime.

You must not unlawfully possess a controlled substance.

You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from

imprisonment and at least two periodic drug tests thereafter, as determined by the court.

OD The above drug testing condition is suspended, based on the court's determination that you

pose a low risk of future substance abuse. (check {fapplicahle)

4, ff You must cooperate in the collection of DNA as directed by the probation officer. (check applicable)

5. © You must comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et seq.) as

directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the location where you

reside, work, are a student, or were convicted of a qualifying offense. (check f applicable)

6. (© You must participate in an approved program for domestic violence. (check if applicable)

Coli

You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached

page.

Case 3:15-cr-00068-DPJ-LRA Document112 Filed 03/20/17 Page 4 of 7

AO 245B(Rev, 18/16) Judgment in a Criminal Case

Sheet 3A — Supervised Release

DEFENDANT: DAVIAN WILSON

CASE NUMBER: 3:15¢r68DPJ-LRA-001

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are imposed

because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation

officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.

1. You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your

release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time

frame,

2, After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and

when you must report to the probation officer, and you must report to the probation officer as instructed.

3. You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the

court or the probation officer,

4. You must answer truthfully the questions asked by your probation officer.

5. You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living

arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying

the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72

hours of becoming aware of a change or expected change.

6. You must allow the probation officer to visit you at any time at your bome or elsewhere, and you must permit the probation officer to

take any items prohibited by the conditions of your supervision that he or she observes in plain view.

7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from

doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses

you from doing so. If you plan to change where you work or anything about your work (such as your position or your job

responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10

days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of

becoming aware of a change or expected change,

8. You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been

convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the

probation officer.

9. Ifyou are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

10, You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.¢., anything that was

designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers).

11. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without

first getting the permission of the coust.

12, ifthe probation officer determines that you pose a risk to another person (including an organization), the probation officer may

Tequire you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the

person and confirm that you have notified the person about the risk.

13, You must follow the instructions of the probation officer related to the conditions of supervision.

US. Probation Office Use Only

AUS. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy of this

judgment containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised

Release Conditions, available at: www.uscourts.goy.

Defendant's Signature Date

Case 3:15-cr-00068-DPJ-LRA Document 112 Filed 03/20/17 Page 5 of 7

AO 245B(Rev. 11/16) Judgment in a Criminal Case

Sheet 3D — Supervised Release

—==

Judgment—Page 5 of —___f_

DEFENDANT: — paVviAN WILSON

CASE NUMBER: 3:15 cr68DPJ-LRA-001

SPECIAL CONDITIONS OF SUPERVISION

1) You shall not incur new credit charges or open additional lines of credit without the approval of the probation officer, until

such time as the fine is paid.

2) You shalt provide the probation office with access to any requested financial information, until such time as the fine is

paid.

3) You shall participate in a program of mental health treatment to Include anger management counseling, as directed by

the probation office. If enrolled in a mental health treatment program, you shall abstain from consuming alcoholic

beverages during treatment and shall abstain for the remaining period of supervision. You shall contribute to the cost of

treatment in accordance with the probation office Copayment Policy.

4) You shall submit your person, property, house, residence, vehicle, papers, or office, to a search conducted by a United

States probation officer. Failure to submit to a search may be grounds for revocation of release. You shall wam any other

occupants that the premises may be subject to searches pursuant fo this condition. An officer may conduct a search

pursuant to this condition only when reasonable suspicion exists that you have viclated a condition of you supervision and

that the areas to be searched contain evidence of this violation. Any search must be conducted at a reasonable time and In

a reasonable manner.

5) You shall participate in a program of testing and/or treatment for alcohol/drug abuse as directed by the probation officer.

If enrolled in an alcohol/drug treatment program, you shall abstain from consuming alcoholic beverages during treatment

and shall continue abstaining for the remaining period of supervision. You shall contribute to the cost of treatment in

accordance with the probation office co-payment policy.

6) You shall not possess, Ingest, or otherwise use, a synthetic cannabinoid, or other synthetic narcotic, unless prescribed

by a licensed medical practitioner and approved by the U.S. Probation Office.

Case 3:15-cr-00068-DPJ-LRA Document 112 Filed 03/20/17 Page 6 of 7

AO 245B(Rev. 11/16) Judgment in a Criminal Case

Sheet 5 — Criminal Mi Penalties

Jedgment — Page 6 of 7

DEFENDANT: DAVIAN WILSON

CASE NUMBER: 3:15cr68DPJ-LRA-001

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

Assessment SVTA Assessment*® Fine Restitution

TOTALS $ 100.00 $ $ 1,500.00 $

(J The determination of restitution is deferred until - An Amended Judgment in a Criminal Case (AO 245¢ will be entered

after such determination,

01 The defendant must make restitution (including community restitution) to the following payees in the amount listed below.

If the defendant makes a partial payment, each payee shall reccive an approximately proportioned payment, unless specified otherwise in

the priority order or percentage Payment conn below. However, parciant [9 ists & § 3664(8), all noufederal victims must be paid

before the United States is paid.

Name of Payee Total Loss** Restitution Ordered Priority or Percentage

TOTALS s 0.00 $s 0.00

© Restitution amount ordered pursuant to plea agreement S$

C]_ The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the

fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject

to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

() = The court determined that the defendant does not have the ability to pay interest and it is ordered that:

C1 the interest requirement is waived forthe ] fine (© restitution.

1 the interest requirement forthe J fine OO restitution is modified as follows:

* Justice for Victims of Trafficking Act of 2015, Pub, L. No. 114-22.

** Findings for the total amount of losses are equi under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or

after September 13, 1994, but before April 23, 1996.

Case 3:15-cr-00068-DPJ-LRA Document112 Filed 03/20/17 Page 7 of 7

AO 245B(Rev. 11/16) Judgment in a Criminal Case

Sheet 6 — Schedule of Payments

DEFENDANT: _DAVIAN WILSON

CASENUMBER: 3:45¢r68DPJ-LRA-001

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:

A & Lumpsumpaymentof$ _100.00 due immediately, balance due

O snot later than ,oOr

inaccordance wih 0 C, @& D, OF E,or f& Fhelow;or

B (2 Payment to begin immediately (may be combined with OIC, OD,or OF below); or

C © Payment in equal (eg., weekly, monthly, quarterly) installments of $ over a period of

(¢.g.. months or years), to commence (€.8., 30 or 60 days) after the date of this judgment; or

D @& Paymentinequal monthly (eg, weekly, monthly, quarterly) installments of $ 50.00 over a period of

XX XX (eg., months or years), to commence _50 day$ (eg. 39 or 60 days) after release from imprisonment toa

term of supervision; or

E ( Payment during the term of supervised release will commence within (e.g., 30 or 60 days) after release from

imprisonment. The court will set the payment plan based on an assessment of the defendant's ability to pay at that time; or

F Special instructions regarding the payment of criminal monetary penalties:

Should the full amount not be paid in full prior to the termination of supervised release, you are ordered to enter into a written

agreement with the Financial Litigation Unit of the U.S, Atlomney’s Office for payment of the remaining balance. Additionally,

the value of any future discovered assets may be applied to offset the balance of criminal monetary penalties. You may be

included In the Treasury Offset Program allowing qualified federal benefits to be applied to offset the balance of criminal

monetary penalties.

Unless the court has expressly ordered otherwise, ifthis judgment imposes imprisonment, payment of criminal monetary penalties is due during

the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’ Inmate

Financial Responsibility Program, are made to the clerk of the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

CQ) Joint and Several

Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several Amount,

and corresponding payee, if appropriate.

Os The defendant shall pay the cost of prosecution.

0 The defendant shall pay the following court cost(s):

= The defendant shall forfeit the defendant's interest in the following property to the United States:

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution inte: ‘4) fine principal, (5) fin

interest, (6) comunity Testitution, Gi x iecelshenne (8) omni bes and (9) LHe be cost py scotia hada on de Din

APPENDIX 2

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.8d 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.

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

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.

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.

Case: 17-60197 Document: 00514439206 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

D.C. Docket No. 3:15-CR-68-1 a

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

Before JONES, SMITH, and BARKSDALE, Circuit Judges.

JUDGMENT

This cause was considered on the record on appeal and the briefs on file.

It is ordered and adjudged that the sentence and conviction of the

District Court are affirmed.

APPENDIX 3

United States v. Wilson, 720 Fed.Appx. 209 (2018)

720 Fed.Appx. 209 (Mem)

This case was not selected for

publication in West's Federal Reporter.

See Fed. Rule of Appellate Procedure 32.1

generally governing citation of judicial decisions

issued on or after Jan. 1, 2007. See also

U.S.Ct. of App. 5th Cir. Rules 28.7 and 47.5.

United States Court of Appeals, Fifth Circuit.

UNITED STATES of America, Plaintiff-Appellee

Vv.

Davian WILSON, also known

as Chaba, Defendant-Appellant

No.

17

60197

|

Summary Calendar

l

Filed April 20, 2018

Appeal from the United States District Court for

the Southern District of Mississippi, USDC No. 3:15-

CR-68-1

Attorneys and Law Firms

Gregory Layne Kennedy, Esq., Assistant U.S, Attorney,

Jennifer L. Case, U.S. Attorney's Office, Southern District

of Mississippi, Jackson, MS, for Plaintiff-Appellee

Michael L. Scott, Esq., Thomas Creagher Turner, Jr.,

Esq., Federal Public Defender's Office, Southern District

of Mississippi, Jackson, MS, for Defendant-Appellant

Before JONES, SMITH, and BARKSDALE, Circuit

Judges.

Opinion

PER CURIAM:

. Pursuant to Sth Cir. R. 47.5, the court has determined

that this opinion should not be published and ts not

precedent except under the limited circumstances set

forth in Sth Cir. R. 47.5.4.

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 ofan 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.

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, 99 S.C1. 2781, 61

L.Fd.2d 560 (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 (Sth Cir. 2001) (citing United States

vy, 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 (Sth 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 selfdefense. 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 *210 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., ic/

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

United States v. Wilson, 720 Fed.Appx. 209 (2018)

was removed from Wilson’s person after his arrest. E.g.,

United States v. Ceballos, 789 F.3d 607, 618 (Sth 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 lawenforcement 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 vy. Isiwele. 635 F.3d 196,

200 (Sth Cir, 2011) (‘Once the proponent has made the

requisite showing ... flaws in the authentication ... go to

the weight of the evidence”); United States » Doggins,

633 F.3d 379, 383 (Sth 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 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 s

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 (Sth 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 *211 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 vy. Duhon, 541 F.3d 391, 397 (Sth

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.

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, Diei!, 775 F.3d at 724, there was no abuse of

discretion.

AFFIRMED.

All Citations

720 Fed.Appx. 209 (Mem)