UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4484

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

TARVIS LEVITICUS DUNHAM, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Frank D. Whitney, 

District Judge. (3:06-cr-00456-FDW-1) 

Submitted: April 10, 2009 Decided: April 22, 2009 

Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior 

Circuit Judge. 

Affirmed by unpublished per curiam opinion. 

David G. Belser, BELSER & PARKE, Asheville, North Carolina, for 

Appellant. Gretchen C. F. Shappert, 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Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Following a guilty plea, Tarvis Leviticus Dunham was 

convicted of using a firearm in relation to a crime of violence, 

assault with a deadly weapon during a bank robbery, and larceny 

of a motor vehicle through force or violence, in violation of 18 

U.S.C. §§ 924(c)(1), 2113(d), and 2119 (2006). The district 

court sentenced Dunham to a total of 300 months’ imprisonment. 

Dunham appeals his sentence, contending that the prosecutor in 

his case committed misconduct by introducing a statement by the 

spouse of the carjacking victim as a victim statement during the 

sentencing hearing. Dunham argues the spouse was not a “victim” 

under 18 U.S.C. § 3771(e) (2006), the prosecutor violated his 

due process rights by failing to provide advance notice of his 

intent to introduce the statement, and the prosecutor’s argument 

at sentencing improperly referenced the statement. Finding no 

error, we affirm. 

 A claim of prosecutorial misconduct is reviewed “to 

determine whether the conduct so infected the trial with 

unfairness as to make the resulting conviction a denial of due 

process.” United States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 

2002) (internal quotation marks and citation omitted). To 

prevail under this standard, Dunham must show that “the 

prosecutor’s remarks or conduct were improper and, . . . that 

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such remarks or conduct prejudicially affected his substantial 

rights so as to deprive him of a fair trial.” Id. 

 The Crime Victims’ Rights Act (CVRA) defines a “crime 

victim” as “a person directly and proximately harmed as a result 

of the commission of a Federal offense.” 18 U.S.C. § 3771(e) 

(2006). The current law does not definitively answer the 

question of whether the spouse was a victim of Dunham’s crimes, 

as defined by the CVRA. See In re Antrobus, 519 F.3d 1123, 1125 

(10th Cir. 2008) (noting that “[t]his area of the law . . . is 

not well-developed and is evolving”). The act does not limit 

the information a district court may hear at sentencing. 

Therefore, the prosecutor did not act in derogation of 

established authority by offering and then referencing the 

spouse’s victim impact statement.*

 Dunham cites no authority for his additional 

contention that the prosecutor violated his right to due process 

by failing to give him advance notice of his intent to introduce 

the spouse’s statement. Again, the prosecutor’s conduct was 

neither improper nor constituted prosecutorial misconduct. 

 *

 In the alternative, even if it is assumed the spouse was 

not a victim of Dunham’s crime, as defined by the CVRA, we would 

nevertheless conclude that the impact of his statement did not 

so infect the sentencing proceeding with prejudicial error as to 

warrant relief. 

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 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 the court and argument would not aid the decisional 

process. 

AFFIRMED