UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4779
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ADRIAN JAMAR HALL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. G. Ross Anderson, Jr., Senior
District Judge. (7:08-cr-00550-GRA-1)
Submitted: September 9, 2010 Decided: October 12, 2010
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher L. Murphy, STUCKEY LAW OFFICES, LLC, Charleston,
South Carolina, for Appellant. Kevin F. McDonald, Acting United
States Attorney, E. Jean Howard, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Adrian Jamar Hall appeals his convictions for possession
with intent to distribute marijuana, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(D) (2006), possession of a firearm after a
felony conviction in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), and 924(e) (2006), and use of a firearm in
furtherance of a drug trafficking offense, in violation of 18
U.S.C. § 924(c)(1)(A) (2006). For the reasons that follow, we
affirm.
Hall first argues that the district court erred by denying
his motion to suppress the firearm and marijuana found in the
vehicle he was driving at the time of his arrest. He argues
that pursuant to Arizona v. Gant, 129 S. Ct. 1710 (2009), which
was decided while his case was pending on appeal, the search
incident to arrest exception no longer justifies the police
officers’ search of the vehicle. Legal conclusions on a motion
to suppress are reviewed de novo. United States v. Blake, 571
F.3d 331, 338 (4th Cir 2009). When the district court denies a
suppression motion, this court reviews the evidence in the light
most favorable to the government. United States v. Neely, 564
F.3d 346, 349 (4th Cir. 2009).
Warrantless searches “are per se unreasonable under the
Fourth Amendment—subject only to a few specifically established
and well-delineated exceptions.” California v. Acevedo, 500
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U.S. 565, 580 (1991) (internal quotation marks and citation
omitted). One such exception is the search incident to a lawful
arrest, which permits “law enforcement officers following a
lawful arrest [to] . . . search the arrestee's person and the
area within his immediate control.” United States v. Murphy,
552 F.3d 405, 410 (4th Cir. 2009) (internal quotation marks and
citations omitted). Hall contends that under Gant, the search
could not be justified as a search incident to a lawful arrest
because he had already been secured in a patrol car when the
police conducted the search.
In Gant, the Supreme Court held that “[p]olice may search a
vehicle incident to a recent occupant’s arrest only if the
arrestee is within reaching distance of the passenger
compartment at the time of the search or it is reasonable to
believe the vehicle contains evidence of the offense of arrest.”
Gant, 129 S. Ct. at 1723. The Court further explained that
“[w]hen these justifications are absent, a search of an
arrestee’s vehicle will be unreasonable unless police obtain a
warrant or show that another exception to the warrant
requirement applies.” Id. at 1723-24.
While the search of Hall’s vehicle does not appear to be
justified as a search incident to an arrest in light of Gant,
the seizure of the marijuana and the search leading to the
discovery of the firearm are valid under other exceptions to the
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Fourth Amendment’s warrant requirement. With respect to the
marijuana, testimony introduced at the suppression hearing
indicates that it was in plain view on the floorboard of the
vehicle, and thus, its discovery was not the result of a search
within the meaning of the Fourth Amendment. With respect to the
firearm, which was under a seat, and arguably not in plain view,
the discovery of the marijuana in plain view gave police
probable cause to conduct the search of the vehicle that
ultimately led to the firearm’s discovery. See Maryland v.
Dyson, 527 U.S. 465, 467 (1999); United States v. Watkins, 662
F.2d 1090 (4th Cir. 1981). The district court, therefore, did
not err in denying the motion to suppress.
Next, Hall challenges the court’s denial of his request for
a jury instruction on simple possession as a lesser included
offense to possession with intent to distribute. This court
“review[s] a district court’s decision whether to give a jury
instruction for abuse of discretion”. See United States v.
Kennedy, 372 F.3d 686, 698 (4th Cir. 2004). “For the defendant
to be entitled to a lesser-included offense [instruction], the
proof on the element that differentiates the two offenses must
be sufficiently in dispute to allow a jury consistently to find
the defendant innocent of the greater and guilty of the lesser
offense.” United States v. Baker, 985 F.2d 1248, 1258-59
(4th Cir. 1993).
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We note at the outset that the district court erroneously
determined that a lesser included offense instruction was not
available as a matter of law because no such offense appears in
the statute Hall was charged with violating. We have squarely
held to the contrary. Id. at 1259. In spite of the court’s
error, however, “[w]e are . . . entitled to affirm on any ground
appearing in the record, including theories not relied upon or
rejected by the district court.” Scott v. United States, 328
F.3d 132, 137 (4th Cir. 2003).
We held in United States v. Wright, 131 F.3d 1111, 1115-16
(4th Cir. 1997) that a defendant is entitled to an instruction
on simple possession only when he offers “considerable
affirmative evidence unrelated to drug quantity from which the
jur[y] could have reasonably inferred that the defendant
possessed the drugs solely for personal use.” We have regularly
applied Wright in unreported opinions to affirm the denial of
lesser-included offense instructions in cases involving small
drug amounts. See, e.g., United States v. Davis, 2010 WL
2465019, *5-6 (4th Cir. 2010).
To be sure, in cases decided before Wright, we appear to
have adopted a contrary approach. In them, we held that a
district court must issue a possession instruction when proof of
distribution is “sufficiently in dispute” to allow the jury to
convict the defendant of simple possession. Baker, 985 F.2d at
5
1258. We made clear that evidence can be in sufficient dispute
even absent a direct “conflict in the testimony.” Id. at 1259
(quoting United States v. Medina, 755 F.2d 1269, 1273 (7th Cir.
1985)). We further stressed that any rational dispute about the
evidence regarding distribution requires “resolution by the
jury.” United States v. Levy, 703 F.2d 791, 793 n.4 (4th Cir.
1983). In holding that a jury can never rationally convict for
mere possession in the absence of substantial affirmative
evidence of non-distribution, Wright seems to depart from the
principles set forth in these cases. ∗
We need not resolve that possible conflict here, however.
Cf. McMellon v. United States, 387 F.3d 329, 333 (4th Cir. 2004)
(en banc) (holding that “as to conflicts between panel opinions,
application of the basic rule that one panel cannot overrule
another requires a panel to follow the earlier of the
conflicting opinions”). This is so because Hall’s possession of
a digital scale, see J.A. 129, provides strong -- and
uncontested -- evidence of his intent to distribute. See, e.g.,
∗
Wright’s requirement that a defendant produce “affirmative
evidence” of possession also seems at odds with the law of other
circuits. See, e.g, United States v. Hernandez, 476 F.3d 791,
798-800 (9th Cir. 2007); United States v. Trujillo, 390 F.3d
1267, 1270-1276 (10th Cir. 2004); United States v. Lucien, 61
F.3d 366, 375-76 (5th Cir. 1995); United States v. Gibbs, 904
F.2d 52, 58-59 (D.C. Cir. 1990); United States v. Garcia-Duarte,
718 F.2d 42, 48 (2d Cir. 1983); United States v. Blake, 484 F.2d
50, 58 (8th Cir. 1973).
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United States v. Jones, 586 F.3d 573, 575 (8th Cir. 2009)
(recognizing that “people involved in the distribution and
manufacture of drugs often use digital scales”); Davis, 2010 WL
at *6. Accordingly, we cannot hold that the district court
abused its discretion in denying Hall’s request for a simple
possession instruction.
In sum, we affirm Hall’s convictions for possession of a
firearm after a felony conviction, possession with intent to
distribute marijuana, and use of a firearm in relation to a drug
trafficking offense. 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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