UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4305
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT ETHAN HOLDEN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-03-27)
Submitted: February 28, 2005 Decided: April 7, 2005
Before LUTTIG, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
M. Gordon Widenhouse, Jr., RUDOLF WIDENHOUSE & FIALKO, Chapel Hill,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Thomas R. Ascik, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert Ethan Holden was convicted by a jury of conspiracy
to possess with intent to distribute methamphetamine and marijuana
in violation of 21 U.S.C. §§ 841, 846 (2000).
On appeal, Holden raises two issues. We affirm. First,
Holden alleges the district court erred in denying his motion for
judgment of acquittal because the Government failed to prove the
drug quantity necessary to support the offense of conviction.
Because there is no evidence in the record that Holden
contemporaneously objected to the drug quantity finding before the
district court, this court reviews the district court’s actions for
plain error. See United States v. Olano, 507 U.S. 725, 732-34
(1993). Under plain error review, we may notice an error that was
not preserved by timely objection only if the defendant can
demonstrate (1) that an error occurred, (2) that the error was
plain, and (3) that the error was material or affected the
defendant’s substantial rights. Id. at 731-32. Even when these
three conditions are satisfied, we retain discretion whether to
correct the error, which we will exercise only if the “error
seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Id. Upon review of the record, we find
there was no plain error.
Second, Holden alleges that his April 5, 2001 statement
given to FBI agents should have been suppressed because it was
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obtained while he was represented by counsel who was laboring under
a conflict of interest. We review the district court’s factual
findings underlying a motion to suppress for clear error and its
legal determinations de novo. Ornelas v. United States, 517 U.S.
690, 699 (1996); United States v. Rusher, 966 F.2d 868, 873 (4th
Cir. 1992). When a suppression motion has been denied, this court
construes the evidence in the light most favorable to the
government. United States v. Seidman, 156 F.3d 542, 547 (4th Cir.
1998). The district court’s rejection of Holden’s motion was based
on its assessment of witness credibility at a voir dire
examination. The court’s determination of credibility is not
reviewable on appeal. See United States v. Lowe, 65 F.3d 1137,
1142 (4th Cir. 1995). Accordingly, we find no reversible error.
Because Holden’s claims fail on appeal, we affirm his
conviction. 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
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