UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5085
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONNELL ALEXANDER TAYLOR, a/k/a Juice,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:05-cr-00297-FDW-DCK-1)
Submitted: May 22, 2008 Decided: July 8, 2008
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Cortney
Escaravage, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donnell Alexander Taylor appeals his convictions by a
jury and 540-month sentence for possession with intent to
distribute five grams or more of cocaine base, possession of a
firearm in relation to a drug trafficking offense, and possession
of a firearm by a convicted felon. He argues on appeal that the
district court erred in denying his motion to suppress evidence,
the evidence was insufficient to support his convictions, the court
erred in denying his motion for a new trial, and his sentence is
procedurally and substantively unreasonable. Finding no reversible
error, we affirm.
Taylor first argues the court erred in denying his motion
to suppress evidence uncovered in a search of his residence. We
review the factual findings underlying a district court’s motion to
suppress ruling for clear error, and the legal determinations de
novo. United States v. McCoy, 513 F.3d 405, 410 (4th Cir. 2008),
petition for cert. filed, __ U.S.L.W. __ (U.S. Apr. 18, 2008) (No.
07-10497). When a suppression motion has been denied, we review
the evidence in the light most favorable to the Government. United
States v. Colonna, 511 F.3d 431, 434 (4th Cir. 2007).
“[A] search authorized by consent is wholly valid.”
Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). The
Government bears the burden of proving by a preponderance of the
evidence that consent was freely and voluntarily given. Id.;
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United States v. Matlock, 415 U.S. 164, 177 (1974). The
voluntariness of consent is a question of fact to be determined by
an examination of the totality of the circumstances.1 Id. at 233,
248-49; see Ohio v. Robinette, 519 U.S. 33, 39-40 (1996). Our
review of the record leads us to conclude the district court did
not clearly err in determining that Taylor’s consent to the entry
and search of his residence was voluntary.
Taylor also contends that his custodial statement should
have been suppressed because he was not advised of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966). However, the district
court found the arresting officer asked Taylor only routine booking
questions that do not require Miranda warnings. See
Pennsylvania v. Muniz, 496 U.S. 582, 601-02 (1990). The court also
concluded that Taylor spontaneously admitted to selling drugs, and
Miranda does not apply to statements not made in response to police
interrogation. Rhode Island v. Innis, 446 U.S. 291, 300 (1980);
United States v. Payne, 954 F.2d 199, 203 (4th Cir. 1992). Thus,
the district court did not err in denying Taylor’s motion to
suppress.2
1
Taylor’s arguments that the burden of proof to establish
consent should be beyond a reasonable doubt and hearsay testimony
should not be admissible in a suppression hearing are contrary to
well-settled law. See Matlock, 415 U.S. at 177, 172-75.
2
We reject Taylor’s assertion that his confession was
inadmissible under Fed R. Evid. 403. Taylor did not object at
trial to the admission of the statement and the court did not
plainly err in admitting the evidence. There is no basis to
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Taylor next argues that the evidence was insufficient to
prove that he knowingly possessed drugs, that he had the intent to
distribute drugs, and that the weapon found in the search met the
statutory definition of a firearm. We review de novo the denial of
a Fed. R. Crim. P. 29 motion for judgment of acquittal. United
States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). Where, as
here, the motion was based on a claim of insufficient evidence,
“[t]he verdict of a jury must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to
support it.” Glasser v. United States, 315 U.S. 60, 80 (1942).
In order to establish possession with intent to
distribute cocaine base, in violation of 21 U.S.C. § 841(a) (2000),
the Government must prove beyond a reasonable doubt that the
defendant: (1) knowingly; (2) possessed the controlled substance;
(3) with the intent to distribute it. United States v. Burgos, 94
F.3d 849, 873 (4th Cir. 1996) (en banc). Possession may be actual
or constructive. Id. To establish constructive possession, there
must be evidence showing the defendant has ownership, dominion, or
control over the contraband itself or of the premises or vehicle
where the contraband is found. United States v. Singleton, 441
F.3d 290, 296 (4th Cir. 2006); United States v. Rusher, 966 F.2d
868, 878 (4th Cir. 1992).
conclude that Taylor’s statement was unreliable, and Taylor cannot
establish that the evidence was unfairly prejudicial or that any
prejudice substantially outweighed its probative value.
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Taylor does not dispute that he was the sole occupant of
the residence. One of the bags containing cocaine base was in
plain view in his bedroom, as were digital scales and a plate with
cocaine residue and razor blades. Additionally, Taylor admitted
that he sold drugs, and he had over $900 on his person. Viewed in
the light most favorable to the Government, this evidence was
sufficient for a reasonable jury to conclude Taylor knowingly
possessed the drugs with intent to distribute.
Turning to the firearm offenses, to establish a violation
of 18 U.S.C.A. § 924(c)(1) (West 1999 & Supp. 2008), “the
government must prove that the defendant used or carried a firearm
during and in relation to a drug trafficking crime or possessed a
firearm in furtherance of a drug trafficking crime.” United
States v. Stephens, 482 F.3d 669, 673 (4th Cir. 2007). The
evidence revealed that Taylor had a shotgun in plain view within a
few feet of where the drugs were located. The evidence also
disclosed that according to the police officers’ training and
experience, drug distributors regularly possess weapons to protect
themselves and their supplies. This evidence was sufficient to
support Taylor’s conviction under § 924(c).
In order to convict Taylor under 18 U.S.C. § 922(g)(1)
(2000), the Government had to establish that “(1) the defendant
previously had been convicted of a [felony] . . . ; (2) the
defendant knowingly possessed . . . the firearm; and (3) the
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possession was in or affecting commerce, because the firearm had
traveled in interstate or foreign commerce at some point during its
existence.” United States v. Moye, 454 F.3d 390, 395 (4th Cir.)
(en banc) (internal quotation marks and citation omitted), cert.
denied, 127 S. Ct. 452 (2006). Taylor contends the evidence was
insufficient for a reasonable juror to conclude the shotgun found
in his bedroom was a firearm because the Government’s attorney did
not use the precise statutory language when asking the ATF agent to
identify the shotgun as a firearm. Nevertheless, the evidence was
sufficient for the jury to conclude that the shotgun was a firearm
within the meaning of the statute. Because the evidence was
sufficient to support all of Taylor’s convictions, we conclude the
district court did not err in denying the Rule 29 motion.
Taylor also contends the district court erred in denying
his motion for a new trial. A district court may grant a
defendant’s motion for a new trial “if the interest of justice so
requires.” Fed. R. Crim. P. 33(a). A district court must
sparingly exercise the discretion to grant a new trial, and “should
do so only when the evidence weighs heavily against the verdict.”
United States v. Singh, 578 F.3d 236, 239 (4th Cir. 2008) (internal
quotation marks and citation omitted). This court reviews the
denial of a Rule 33 motion for abuse of that discretion. United
States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006).
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Taylor raised only evidentiary insufficiency in support
of his motion for a new trial. We have found the evidence to be
sufficient to support each of Taylor’s convictions. On appeal,
Taylor suggests that the district court should have granted his
motion on the basis of improperly admitted, prejudicial hearsay
testimony. At trial, the police officers testified about a
drug-dealing complaint in order to explain why they initiated
contact with Taylor. This evidence was not inadmissible because
“an out of court statement is not hearsay if it is offered for the
limited purpose of explaining why a government investigation was
undertaken.”3 United States v. Love, 767 F.2d 1052, 1063 (4th Cir.
1985).
Finally, Taylor challenges his sentence. He asserts the
sentence is procedurally flawed in that the district court
improperly applied the appellate standard in imposing Taylor’s
sentence. It is well-settled that we presume a sentence imposed
within the properly calculated guidelines range is reasonable.
United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see Rita v.
United States, 127 S. Ct. 2456, 2462-68 (2007). However, a
district court may not use such a presumption in sentencing. Rita,
3
The district court correctly sustained Taylor’s objection to
an officer’s testimony about general “complaints about the
residence” prior to the complaint that instigated the police
contact on the night of the search.
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127 S. Ct. at 2465. In sentencing a defendant after Booker,4 a
district court must engage in a multi-step process. First, the
court must correctly calculate the appropriate advisory guidelines
range. Gall v. United States, 128 S. Ct. 586, 596 (2007). The
court then must consider that range in conjunction with the 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2008) factors. Id.
Appellate review of a district court’s imposition of a sentence is
for abuse of discretion. Id.; see also United States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007).
The district court did not procedurally err in imposing
Taylor’s sentence. The court explicitly acknowledged its lawful
authority to impose a sentence outside of the guidelines range.
The language of the district court throughout sentencing confirms
that the court did not apply the appellate presumption of
reasonableness in imposing a sentence within the guidelines range.
See Go, 517 F.3d at 219-20.
Taylor challenges the substantive reasonableness of his
540-month sentence. In its consideration of the § 3553(a) factors,
the district court determined that the sentence selected was
necessary to achieve the goals of sentencing, in particular to
protect the public from further crimes, to promote respect for the
law, and to deter others from criminal conduct. The court stated
that Taylor’s statements evinced a refusal to recognize that he had
4
United States v. Booker, 543 U.S. 220 (2005).
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led a “life of crime.” Nothing in the record indicates the court
imposed a longer sentence in order to punish Taylor for his
insistence that the search of his home was unlawful. In addition,
the transcript reveals that the court’s conclusion that Taylor had
led a life of crime was based on Taylor’s substantial criminal
history, which failed to demonstrate any “serious history of
rehabilitation.” The district court did not abuse its discretion
in sentencing Taylor.
Accordingly, we affirm Taylor’s 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
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