UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4789

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JERMAIN BETEA, a/k/a Jermaine Betea,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Claude M. Hilton, Senior

District Judge. (1:06-cr-305)

Submitted: August 28, 2008 Decided: September 23, 2008

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

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Frank Salvato, Alexandria, Virginia, for Appellant. Chuck

Rosenberg, United States Attorney, Michael E. Rich, James P.

Gillis, Assistant United States Attorneys, Conor B. Dugan, Special

Assistant United States Attorney, Alexandria, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jermain Betea appeals his jury conviction and sentence to

108 months for conspiracy in violation of 18 U.S.C. § 371 (2000),

altering United States currency in violation of 18 U.S.C. §§ 2, 471

(2000), two counts of causing a person to move in interstate

commerce to be defrauded in violation of 18 U.S.C. §§ 2, 2314

(2000), and obstruction of justice involving another criminal case

in violation of 18 U.S.C. § 1503 (2000). On appeal, Betea contends

the district court erred in allowing the Government a third trial

after two hung-jury mistrials, erred in admitting evidence, and

erred in calculating his sentencing range. We affirm.

Betea first argues the district court erred in allowing

the Government to try him three separate times, implicating his

double jeopardy rights and violating his right to fair proceedings.

However, it is well-settled that a mistrial is properly granted

when a jury is deadlocked; a defendant may be retried following a

hung-jury mistrial; and due process does not require dismissal of

the indictment. See United States v. Goodine, 400 F.3d 202, 207

(4th Cir. 2005) (citing Richardson v. United States, 468 U.S. 317,

325 (1984)); United States v. Ndame, 87 F.3d 114, 115 (4th Cir.

1996) (citing Arizona v. Washington, 434 U.S. 497, 505 (1978)).

Betea next contends that the district court improperly

admitted his tax returns showing he had zero taxable income for

three years preceding certain conduct alleged in his indictment.
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Betea objected to admission of the evidence based on relevance.

The Government argued the evidence tended to show that Betea lied

to law enforcement officers when he told them he had taken a trip

to Florida to purchase a restaurant, a beauty parlor, and beauty

supply materials, making it more probable that he was really

involved in a “black money scam” as alleged by the Government and

that he had lied to them about matters charged in the obstruction

count. The district court concluded the Government was entitled to

put in the evidence regarding Betea’s financial condition. 

On appeal, Betea contends the evidence was not only

irrelevant under Fed. R. Evid. 401, but its admission was also

unduly prejudicial under Fed. R. Evid. 403. “A district court’s

evidentiary rulings are entitled to substantial deference and will

not be reversed absent a clear abuse of discretion.” United States

v. Moore, 27 F.3d 969, 974 (4th Cir. 1994). “We will find that

discretion to have been abused only when the district court acted

‘arbitrarily or irrationally.’” Id. (quoting United States v. Ham,

998 F.2d 1247, 1252 (4th Cir. 1993)). 

To preserve a claim of error predicated upon a ruling

which admits evidence, a party must make a timely objection

“stating the specific ground of objection, if the specific ground

was not apparent from the context.” Fed. R. Evid. 103(a)(1).

“Where counsel fails adequately to present and preserve an

objection on the record, we review the admission of evidence solely
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for plain error.” United States v. Brewer, 1 F.3d 1430, 1434 (4th

Cir. 1993).

“Under Federal Rule of Evidence 403, relevant evidence ‘may be

excluded if its probative value is substantially outweighed by the

danger of unfair prejudice.’” United States v. Myers, 280 F.3d

407, 413 (4th Cir. 2002). “Because the evidence sought to be

excluded under Rule 403 is concededly probative, the balance under

Rule 403 should be struck in favor of admissibility, and evidence

should be excluded only sparingly.” United States v. Aramony, 88

F.3d 1369, 1378 (4th Cir. 1996). We have “interpreted Rule 403 to

require the exclusion of evidence only in those instances where the

trial judge believes that there is a genuine risk that the emotions

of the jury will be excited to irrational behavior, and that this

risk is disproportionate to the probative value of the offered

evidence.” United States v. Van Metre, 150 F.3d 339, 350 (4th Cir.

1998) (internal quotations and citations omitted).

We have reviewed the record and conclude that the

district court did not abuse its discretion or plainly err in

admitting Betea’s tax returns. Finally, Betea contends that the

district court erred in calculating his advisory guideline range,

and his resulting sentence is unreasonable.

We review Betea’s sentence under a deferential abuse-ofdiscretion standard. See Gall v. United States, 128 S. Ct. 586,

590 (2007). The first step in this review requires us to ensure
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that the district court committed no significant procedural error,

such as improperly calculating the guideline range. United States

v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008), cert. denied, 128 S.

Ct. 2525 (2008). In assessing the district court’s guideline

application, we review the court’s factual findings for clear error

and its legal conclusions de novo. United States v. Allen, 446

F.3d 522, 527 (4th Cir. 2006). We then consider the substantive

reasonableness of the sentence, taking into account the totality of

the circumstances. Gall, 128 S. Ct. at 597. We presume a sentence

within a properly calculated guideline range is reasonable. United

States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).

Betea contends the district court erred in sentencing him

on the obstruction count by applying the cross reference under U.S.

Sentencing Guidelines Manual § 2J1.2(c)(1) (2006), because he was

a victim of the criminal offense for which he was convicted of

obstructing, i.e., Betea’s kidnapping by a man Betea had scammed

and the man’s associates, and Betea did not actually impact the

investigation and prosecution of the offense. However, application

of this provision is appropriate regardless of any actual impact.

See United States v. Aragon, 983 F.2d 1306, 1315-16 (4th Cir.

1993). Moreover, its application is mandatory when the offense

involves obstructing the investigation or prosecution of a criminal

offense, regardless of whether the underlying offense was committed
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by the defendant or another person. See United States v. Brenson,

104 F.3d 1267, 1285 (11th Cir. 1997). 

Therefore, the district court properly determined Betea’s

advisory guideline range was 108 to 135 months. Betea further

contends his sentence at the low end of the range is unreasonable,

because it is harsher than the sentences of the kidnappers who

testified against him and his co-defendants in the fraud case.

However, Betea’s co-defendants were not charged with obstruction,

and the kidnappers were not charged in the fraud case and received

sentence reductions for cooperating with the Government. We

conclude Betea’s sentence is reasonable. 

Accordingly, we affirm the district court’s judgment. 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