UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4998

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID WILLIS,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. Conrad, 

Jr., Chief District Judge. (3:07-cr-00277-RJC-DCK-1)

Submitted: March 26, 2010 Decided: April 15, 2010

Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel 

Hill, North Carolina, for Appellant. Edward R. Ryan, Acting 

United States Attorney, Charlotte, North Carolina; Amy E. Ray, 

Assistant United States Attorney, Asheville, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

David Willis was convicted by a jury of soliciting 

murder using a facility of interstate commerce and promising 

payment, in violation of 18 U.S.C. § 373; and using a facility 

of interstate commerce with the intent that murder for hire be 

committed, in violation of 18 U.S.C. § 1958. The district court 

sentenced Willis to 210 months’ imprisonment, a sentence at the 

bottom of the Sentencing Guidelines range. Willis appeals, 

raising three issues: (1) the district court committed plain 

error by failing to instruct the jury on entrapment; (2) the 

district court erred by not granting Willis a new trial based on 

allegedly false testimony from a Government witness; and (3) the 

district court imposed a procedurally unreasonable sentence. We 

affirm.

This case revolved around Willis’ plot to kill his exwife. At trial, the Government played Willis’ incriminating 

recorded statements made to a confidential informant. The most 

important evidence at trial came from Willis’ own statements. 

The key conversation between Willis and the informant Parker 

took place inside Willis’ truck. During the October 2007 

conversation, Willis indicated that he planned to kill his exwife to avoid sharing his pension from the United States Postal 

Service. At one point, Willis stated:
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I already decided it’s either her or me, and I’ll pop 

a cap in my own head before I live like this. I can’t 

stand 30 more years at the post office. I need to 

retire and enjoy life while I can. And I’ve thought 

about this and cussed about this and dreamed about 

this and it’s sad, but you know me. I’m as cold 

hearted as you are. (Supplemental Joint Appendix 

(“S.J.A.”) at 13).

During the conversation, Willis said that he would pay 

the informant to arrange for a hit man. Willis also indicated 

that he would kill her himself, if the hit man was not 

available. “I already know how I’d do it,” Willis said, 

describing a plan to spike a drink with antifreeze. (S.J.A. at 

15). Willis said he learned about the method from Court TV and 

would put the antifreeze in a drink left by a woman on his exwife’s mail route. “Three days later, it doesn’t matter where 

I’m at. She’s gonna have stomach pains and get a little funny 

and they take her to the hospital. She croaks and it hits you, 

boom, kidney failure.” (S.J.A. at 16).

After summarizing his poisoning plan, Willis 

nevertheless agreed that having someone else murder his ex-wife 

“would be the best way.” (S.J.A. at 17). Willis asked if he 

could trust the hit man “to get the job done,” but declined to 

meet him, stating “I don’t want anything to do with it if I can 

help it. If not, I’m gonna do it myself. She’s gonna drink 

some antifreeze. See I’ve got old antifreeze that’s old . . . I 

tasted it myself; it is as sweet as cherry juice.” (Id.).
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Entrapment occurs when (1) the government induces a 

person to commit a crime and (2) the person induced had no 

predisposition to engage in the criminal act. Mathews v. United 

States, 485 U.S. 58, 63 (1988). In order to establish 

inducement, a defendant must show that the government acted in 

an excessive manner that would prompt a reasonably firm person 

to commit a crime. See United States v. DeVore, 423 F.2d 1069, 

1072 (4th Cir. 1970). If the defendant establishes a prima 

facie case of inducement, the government then must show that the 

defendant’s decision to commit the crime was the product of his 

own disposition that did not originate from government 

persuasion. See United States v. Osborne, 935 F.2d 32, 38 (4th 

Cir. 1991). A defendant is entitled to an entrapment defense 

whenever there is sufficient evidence from which a reasonable 

jury could find entrapment. Mathews, 485 U.S. at 62.

Because Willis did not request an entrapment 

instruction, this Court’s review is for plain error. United 

States v. Olano, 507 U.S. 725, 732 (1993); United States v. 

Hughes, 401 F.3d 540, 547 (4th Cir. 2005). Under the plain 

error standard, Willis must show: (1) there was error; (2) the 

error was plain; and (3) the error affected his substantial 

rights. Olano, 507 U.S. at 732-34. Even when these conditions 

are satisfied, the Court may exercise its discretion to notice 

the error only if the error “seriously affects the fairness, 
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integrity or public reputation of judicial proceedings.” Id. at 

736 (internal quotation marks, alteration and citation omitted).

We find the trial court did not err, plain or 

otherwise, in failing to give an entrapment instruction because 

the evidence did not warrant such an instruction. Willis 

initiated the discussion about killing his ex-wife, devised a 

plan, and suggested he would kill his ex-wife, regardless of the 

informant’s involvement. Thus, Willis’ argument that the 

informant initiated and encouraged the plot does not counter the 

evidence of Willis’ overt predisposition to have his ex-wife 

murdered, as demonstrated by Willis’ statements reflecting his 

planning and preparation. 

We review a district court’s denial of a Rule 33 

motion for a new trial for abuse of discretion. United 

States v. Smith, 451 F.3d 209, 216-17 (4th Cir. 2006). Under 

Napue v. Illinois, 360 U.S. 264 (1959), a defendant is denied 

due process if the prosecutor knowingly offers or fails to 

correct false testimony. A Napue claim requires a showing of 

the falsity and materiality of testimony and the prosecutor’s 

knowledge of its falsity. Perjury offered under these 

circumstances is material if “there is any reasonable likelihood 

that the false testimony could have affected the judgment of the 

jury.” United States v. Agurs, 427 U.S. 97, 103 (1976). We 

find no abuse of discretion as one of two alleged perjured 
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statements was not clearly inconsistent and the other alleged 

perjured statement was not material. 

After United States v. Booker, 543 U.S. 220 (2005), 

this Court reviews a sentence for reasonableness, and “whether 

inside, just outside, or significantly outside the Guidelines 

range,” this Court applies a “deferential abuse-of-discretion 

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

Court first must “ensure that the district court committed no 

significant procedural error.” Id. at 51. Only if the sentence 

is procedurally reasonable, can this Court evaluate the 

substantive reasonableness of the sentence, again using the 

abuse-of-discretion standard. Id.; United States v. Carter, 564 

F.3d 325, 328 (4th Cir. 2009).

In determining whether the district court committed 

any significant procedural error, this Court looks to any

failure in the calculation (or the improper calculation) of the 

Guidelines range, the treatment of the Guidelines as mandatory, 

the failure to consider § 3553(a) factors, the selection of a 

sentence using clearly erroneous facts, and any failure to 

adequately explain the chosen sentence, including any deviation 

from the advisory Guidelines range. Gall, 552 U.S. at 51. This 

Court applies a presumption of reasonableness on appeal to a 

properly calculated, within-Guidelines sentence. Rita v. United 

States, 551 U.S. 338, 352-53 (2007); see United States v. Allen, 
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491 F.3d 178, 193 (4th Cir. 2007) (“A sentence within the proper 

Sentencing Guidelines range is presumptively reasonable.”). 

Even if this Court would have imposed a different sentence, this 

fact alone will not justify vacatur of the sentence. United 

States v. Evans, 526 F.3d 155, 162 (4th Cir. 2008).

Willis claims the district court imposed a 

procedurally unreasonable sentence because it incorrectly found 

that Willis was not remorseful for his conduct and that Willis 

had not accepted responsibility for his conduct. Willis claims 

the district court’s statements were tantamount to punishing him 

for exercising his right to trial.

We find the district court did not impose a 

procedurally unreasonable sentence. After observing Willis’ 

statement at sentencing, the court made a finding that Willis 

was not remorseful and, instead, blamed his situation on the 

informant. If anything, Willis was sorry for the situation that 

he got himself into, but he did not express any remorse over the 

finding that he intended to kill his wife. We also note the 

district court sentenced Willis at the bottom of the properly 

calculated Guidelines range. Thus, the sentence imposed is 

presumptively reasonable. Moreover, while Willis offered a 

number of mitigating facts in support of a lower sentence, the 

district court properly weighed these facts when considering the 

18 U.S.C. § 3553(a) factors. In particular, the district court 
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expressed its concern about the seriousness of the offense, 

which it described as “as serious as it gets.” (Joint Appendix 

at 476). 

Accordingly, we affirm the convictions and sentence. 

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

Court and argument would not aid the decisional process.

AFFIRMED