UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4173
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONNIE GRAY WESTMORELAND,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00101-NCT-1)
Submitted: September 30, 2013 Decided: October 10, 2013
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Mireille P.
Clough, Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Andrew C. Cochran, Special Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronnie Gray Westmoreland was convicted after a jury
trial of being a felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g)(1), 924(e) (2006). The district court
sentenced Westmoreland to 235 months’ imprisonment. On appeal,
Westmoreland asserts that: (1) the district court erred in
denying his motion to suppress statements made to law
enforcement officers; (2) the evidence was insufficient to
sustain a conviction; (3) his 235-month sentence is
unreasonable; (4) the district court erred in sentencing him
pursuant to the Armed Career Criminal Act (“ACCA”); and (5)
§ 922(g)(1) exceeds Congress’ authority under the Commerce
Clause. For the following reasons, we affirm.
(1) Motion to Suppress. Westmoreland first contends
that the district court erred in denying the motion to suppress
because he was entitled to, but did not receive, Miranda
warnings, see Miranda v. Arizona, 384 U.S. 436 (1966), during
questioning by law enforcement. We review factual findings
underlying the district court’s denial of a motion to suppress
for clear error and its legal conclusions de novo, United States
v. Foster, 634 F.3d 243, 246 (4th Cir. 2011), in the light most
favorable to the government, United States v. Farrior, 535 F.3d
210, 217 (4th Cir. 2008).
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“Statements obtained from [a] defendant during
custodial interrogation are presumptively compelled,” in
violation of the Fifth Amendment, unless the government shows
“that law enforcement officers (1) adequately informed the
defendant of his Miranda rights and (2) obtained a waiver of
those rights.” United States v. Cardwell, 433 F.3d 378, 388-89
(4th Cir. 2005) (footnote omitted). To determine whether a
defendant was in custody for Miranda purposes, courts are to
determine “first, what were the circumstances surrounding the
interrogation; and second, given those circumstances, would a
reasonable person have felt he or she was not at liberty to
terminate the interrogation and leave.” Thompson v. Keohane,
516 U.S. 99, 112 (1995) (footnote omitted). In other words,
“[a]n individual is in custody when, under the totality of the
circumstances, a suspect’s freedom from action is curtailed to a
degree associated with formal arrest.” United States v.
Colonna, 511 F.3d 431, 435 (4th Cir. 2007) (internal quotation
marks omitted).
The testimony presented at the suppression hearing
establishes that police officers encountered Westmoreland at a
private residence, that Westmoreland agreed to speak with an
officer, and that he followed the requesting officer into the
kitchen for a relatively brief conversation. There is no
evidence that the officers limited Westmoreland’s freedom of
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movement in any way or drew their firearms, and the record
reflects that the officer who spoke to Westmoreland did so in a
cordial and non-threatening tone of voice. Because a reasonable
person in Westmoreland’s position would have understood that he
was free to leave and was not in custody, the district court did
not err in denying Westmoreland’s motion to suppress.
(2) Sufficiency of the Evidence. Westmoreland next
contends that without fingerprint or DNA evidence from the
firearm, insufficient evidence supported his conviction. “A
defendant challenging the sufficiency of the evidence . . .
bears a heavy burden.” United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997) (internal quotation marks omitted). We
will uphold the jury’s verdict “if, viewing the evidence in the
light most favorable to the government, it is supported by
substantial evidence.” United States v. Reid, 523 F.3d 310, 317
(4th Cir. 2008). “Substantial evidence is evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” Id. (internal quotation marks omitted).
In reviewing for substantial evidence, we consider both
circumstantial and direct evidence and allow the government all
reasonable inferences from the facts shown to those sought to be
established. United States v. Harvey, 532 F.3d 326, 333 (4th
Cir. 2008).
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“To show a § 922(g)(1) violation, the government must
prove three elements: (i) that the defendant was a convicted
felon at the time of the offense; (ii) that he voluntarily and
intentionally possessed a firearm; and (iii) that the firearm
traveled in interstate commerce at some point.” United States
v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001) (internal
quotation marks omitted). Our review of the trial evidence
convinces us that sufficient evidence supports Westmoreland’s
conviction. ∗
(3) Sentence. Westmoreland next asserts that his
235-month sentence is unreasonable. Specifically, Westmoreland
contends that the district court erred in failing to properly
consider the factors set forth in 18 U.S.C. § 3553(a) (2006).
We review a sentence for reasonableness, applying a “deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id. at
51. Procedurally, after determining whether the district court
correctly calculated the advisory Guidelines range, we must
decide whether the court considered the § 3553(a) factors,
analyzed the arguments presented by the parties, and
∗
The parties stipulated to Westmoreland’s status as a
convicted felon.
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sufficiently explained the selected sentence. United States v.
Lynn, 592 F.3d 572, 575-76 (4th Cir. 2010); United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009).
Once we have determined that the sentence is free of
significant procedural error, we then review its substantive
reasonableness, “tak[ing] into account the totality of the
circumstances.” Gall, 552 U.S. at 51. If the sentence is
within the appropriate Guidelines range, we apply a presumption
on appeal that the sentence is reasonable. United States v.
Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a
presumption is rebutted only when the defendant demonstrates
“that the sentence is unreasonable when measured against the
§ 3553(a) factors.” United States v. Montes-Pineda, 445 F.3d
375, 379 (4th Cir. 2006) (internal quotation marks omitted).
In this case, the district court correctly calculated
and considered the advisory Guidelines range and heard argument
from counsel and allocution from Westmoreland. The district
court considered the § 3553(a) factors and explained that the
within-Guidelines sentence of 235 months’ imprisonment was
warranted in light of Westmoreland’s history and
characteristics. Westmoreland offers no argument to rebut the
presumption on appeal that his within-Guidelines sentence is
substantively reasonable. Accordingly, we conclude that the
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district court did not abuse its discretion in sentencing
Westmoreland.
(4) Armed Career Criminal Sentence. Westmoreland
next argues that the district court erred in sentencing him as
an armed career criminal. Because Westmoreland raises this
claim for the first time on appeal, our review is for plain
error. Lynn, 592 F.3d at 577-78. To establish plain error,
Westmoreland must demonstrate that an error occurred, the error
was plain, and the error affected his substantial rights. Id.
at 577.
A defendant convicted of being a felon in possession
of a firearm who has three prior convictions for a violent
felony or serious drug offense is subject to sentencing as an
armed career criminal. 18 U.S.C. § 924(e)(1); U.S. Sentencing
Guidelines Manual § 4B1.4 (2012). Westmoreland contends that
his prior North Carolina convictions for breaking and entering
are not qualifying convictions for purposes of the ACCA. We
have held to the contrary on several occasions. United States
v. Thompson, 588 F.3d 197 (4th Cir. 2009); United States v.
Thompson, 421 F.3d 278 (4th Cir. 2005) (same); United States v.
Bowden, 975 F.2d 1080 (4th Cir. 1992) (same). The Supreme
Court’s recent decision in Descamps v. United States, 133 S. Ct.
2276 (2013), does not affect our conclusion.
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(5) Commerce Clause. Finally, Westmoreland asserts
that 18 U.S.C. § 922(g) exceeds Congress’ authority under the
Commerce Clause because the mere fact that a weapon crossed a
state line is insufficient to demonstrate that it affected
interstate commerce. Although Westmoreland acknowledges that
this argument is foreclosed by our holding in United States v.
Gallimore, 247 F.3d 134 (4th Cir. 2001), he questions
Gallimore’s validity in light of the Supreme Court’s holdings in
United State v. Lopez, 514 U.S. 549 (1995), United States v.
Morrison, 529 U.S. 598 (2000), and Jones v. United States, 529
U.S. 848 (2000). In Gallimore, which was decided after Lopez,
Morrison, and Jones, we held that that the interstate nexus
component of § 922(g) is established when the Government can
demonstrate “that a firearm was manufactured outside the state
where the defendant possessed it.” Gallimore, 247 F.3d at 138.
One panel of this court may not overrule the precedent set by a
prior panel. United States v. Rivers, 595 F.3d 558, 564 n.3
(4th Cir. 2010). Thus, this claim lacks merit.
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
this court and argument will not aid the decisional process.
AFFIRMED
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