United States of America v. Beverly Elaine Nelson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4917
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BEVERLY ELAINE NELSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:12-cr-00061-AW-1)
Submitted: May 30, 2013 Decided: June 13, 2013
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Marc Gregory Hall, HALL & CHO, P.C., Rockville, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Paul K.
Nitze, Special Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A federal jury convicted Beverly Elaine Nelson of
illegally reentering the United States after having been
removed, in violation of 8 U.S.C. § 1326(a) (2006). The
district court sentenced Nelson to twenty-seven months of
imprisonment and she now appeals. Finding no error, we affirm.
Nelson first argues on appeal that there was
insufficient evidence to support the jury’s finding of guilt
because, although the Government provided Nelson’s warrant of
deportation, the immigration official who signed that warrant
did not testify at trial. We review a district court’s decision
to deny a Fed. R. Crim. P. 29 motion for a judgment of acquittal
de novo. United States v. Smith, 451 F.3d 209, 216 (4th Cir.
2006). 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 the light most favorable to the
prosecution, the verdict is supported by ‘substantial
evidence.’” Smith, 451 F.3d at 216 (citations omitted).
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.”
Id. (internal quotation marks and citation omitted).
Furthermore, “[t]he jury, not the reviewing court, weighs the

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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).
In order to convict Nelson of illegal reentry, the
Government was required to prove that “(1) [she] is an alien who
was previously arrested and deported, (2) that [she] reentered
the United States voluntarily, and (3) that [she] failed to
secure the express permission of the Attorney General to
return.” United States v. Espinoza-Leon, 873 F.2d 743, 746 (4th
Cir. 1989); see also 8 U.S.C. § 1326(a). We have thoroughly
reviewed the record and conclude that the Government provided
substantial evidence of Nelson’s guilt. Although the warrant of
deportation demonstrated Nelson’s deportation and removal from
the country, see United States v. Bahena-Cardenas, 411 F.3d
1067, 1074-75 (9th Cir. 2005), the Government provided further
evidence of Nelson’s removal, including Nelson’s admissions in
her prior court filings.
Nelson next argues that the district court erred in
denying her request for a downward departure for cultural
assimilation. Under the Guidelines, a departure for cultural
assimilation may be warranted:

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in cases where (A) the defendant formed cultural ties
primarily with the United States from having resided
continuously in the United States from childhood,
(B) those cultural ties provided the primary
motivation for the defendant’s illegal reentry or
continued presence in the United States, and (C) such
a departure is not likely to increase the risk to the
public from further crimes of the defendant.
U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.8 (2012).
However, “[w]e lack the authority to review a sentencing court’s
denial of a downward departure unless the court failed to
understand its authority to do so.” United States v. Brewer,
520 F.3d 367, 371 (4th Cir. 2008). Our review of the record
leads us to conclude that the district court did not so
misunderstand its authority to depart and therefore this court
may not review this argument.
Accordingly, we affirm the judgment of the district
court. 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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