UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4969
DWAYNE MARQUELL JONES,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4049
KHINCEY NEVELL BARNES,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-01-250-A)
Submitted: June 6, 2002
Decided: June 20, 2002
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Michael S. Arif, MARTIN, ARIF, PETROVICH & WALSH, Spring-
field, Virginia; Christopher B. Amolsch, LAW OFFICE OF CHRIS-
2 UNITED STATES v. JONES
TOPHER AMOLSCH, Alexandria, Virginia, for Appellants. Paul J.
McNulty, United States Attorney, Morris R. Parker, Jr., Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In these consolidated appeals, Dwayne Marquell Jones and
Khincey Nevell Barnes appeal their convictions. Jones was convicted
of conspiracy to commit carjacking in violation of 18 U.S.C.A. § 371
(West 2000); carjacking and aiding and abetting such carjacking, in
violation of 18 U.S.C.A. §§ 2, 2119 (West 2000); using and carrying
a firearm during and in relation to a crime of violence and aiding and
abetting such use, in violation of 18 U.S.C.A. §§ 2, 924(c)(1)(A)
(West 2000); possession of a firearm by a convicted felon, in viola-
tion of 18 U.S.C.A. § 922(g)(1) (West 2000); and transportation of a
stolen vehicle, in violation of 18 U.S.C.A. § 2312 (West 2000).
Barnes was convicted of aiding and abetting a carjacking in violation
of 18 U.S.C.A. §§ 2, 2119. Jones contends the district court plainly
erred by admitting testimony relating to a pretrial identification proce-
dure using a photo array. Both Appellants contend the evidence was
insufficient to support the convictions.
Because Jones did not object at trial to testimony about the pretrial
photo identification, review is for plain error. Under the plain error
standard, Jones must show: (1) there was error; (2) the error was
plain; and (3) the error affected substantial rights. United States v.
Olano, 507 U.S. 725, 732 (1993). If the three elements are met, we
may exercise our discretion to notice the error only if the error "seri-
ously affect[s] the fairness, integrity, or public reputation of judicial
proceedings." Olano, 507 U.S. at 732 (internal quotation marks omit-
ted).
UNITED STATES v. JONES 3
Courts engage in a two-step analysis when a defendant challenges
an identification procedure. First, the defendant "must prove that the
identification procedure was impermissibly suggestive. Once this
threshold is crossed, the court then must determine whether the identi-
fication was nevertheless reliable under the totality of the circum-
stances." Holdren v. Legursky, 16 F.3d 57, 61 (4th Cir. 1994)
(citations omitted). If the court concludes the confrontation procedure
was not impermissibly suggestive, the inquiry ends. United States v.
Bagley, 772 F.2d 482, 492 (9th Cir. 1985); cf. Harker v. Maryland,
800 F.2d 437, 444 (4th Cir. 1986) (ending analysis after finding pho-
tographic array and show-up not impermissibly suggestive). If, how-
ever, the court finds the identification impermissibly suggestive, the
court then determines whether under the totality of the circumstances,
"there is ‘a very substantial likelihood of irreparable misidentifica-
tion.’" Manson v. Brathwaite, 432 U.S. 98, 116 (1977) (quoting Sim-
mons v. United States, 390 U.S. 377, 384 (1968)). We find that the
pretrial identification procedure using the photo array was not imper-
missibly suggestive.
We must affirm the convictions if there is substantial evidence,
when viewed in the light most favorable to the Government, to sup-
port the verdict. Glasser v. United States, 315 U.S. 60, 80 (1942). In
determining whether the evidence is substantial, we inquire as to
whether there is evidence sufficient to support a finding of guilt
beyond a reasonable doubt. United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996). In evaluating the sufficiency of the evidence, we
assume the fact finder resolved all contradictions in the evidence in
the Government’s favor. United States v. Romer, 148 F.3d 359, 364
(4th Cir. 1998). The fact finder, not the reviewing court, weighs the
credibility of the evidence and resolves any conflicts in the evidence
presented. United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994).
We find there was sufficient evidence to support the convictions.
Accordingly, we affirm the convictions and sentences. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED