UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4965
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL AUGUSTUS COMSTOCK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (2:07-cr-00025-F-1)
Argued: October 29, 2010 Decided: February 25, 2011
Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Niemeyer and Judge Davis joined.
ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina; Keith Alan Williams, KEITH
A. WILLIAMS, PA, Greenville, North Carolina, for Appellant.
Kristine L. Fritz, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: George E. B.
Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-
Parker, Assistant United States Attorneys, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:
Defendant Michael Augustus Comstock was convicted by a jury
of possessing a firearm after having been convicted of a crime
punishable by imprisonment for more than a year in violation of
18 U.S.C. §§ 922(g)(1) & 924. On appeal, he argues that the
district court erred by denying his motion to suppress certain
evidence seized from his home; admitting evidence that he had
guns and hunted on prior occasions; improperly calculating the
guidelines range at sentencing; and imposing a procedurally
unreasonable sentence. We disagree and affirm Defendant’s
conviction and sentence.
I.
In 2007, the North Carolina Wildlife Resources Commission
was investigating Defendant for illegally hunting bears. On May
1, 2007, officers conducting surveillance apprehended Defendant
as he exited a truck. Defendant told the officers that there
was a gun in the truck, but that he did not know what kind of
gun it was or whether it was loaded. Defendant stated that the
truck was not his, and that if his fingerprints were on the gun,
it was because he may have touched the gun when reaching into
the backseat to retrieve something else. In a later-recorded
interview, Defendant told the officers that he thought the gun
was a pellet gun. At trial, several witnesses testified that
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earlier in the day on May 1, 2007, Defendant fired the gun,
apparently killing a bear.
On June 26, 2007, an informant advised officers that
Defendant had removed all his guns from his residence on May 1,
2007 and given them to his nephew. Relying in part on this
information, officers obtained a search warrant on July 17,
2007, alleging probable cause to believe that evidence of gun
possession would be found in Defendant’s home. The warrant
specifically included “[f]irearms and other items that are
pertaining to the possession of firearms[.]” Officers searched
Defendant’s house on July 18, 2007 and found one gun, as well as
ammunition, documents, and videos.
Defendant moved to suppress the evidence obtained during
the execution of the warrant. A magistrate judge conducted a
hearing and recommended that Defendant’s motion be denied. The
district court adopted the magistrate judge’s recommendation and
denied Defendant’s motion to suppress.
Before trial, the government filed a notice of its intent
to offer Rule 404(b) evidence relating to Defendant’s gun use
and possession before and after May 1, 2007, the date of the
alleged offense. Defendant filed a motion in limine to exclude
that evidence. The district court denied the motion and
overruled Defendant’s objections to the evidence when it was
offered at trial. The Rule 404(b) evidence included a twenty-
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second clip of a video seized from Defendant’s house. The video
depicted Defendant carrying a gun into the woods, followed by a
man and a young boy. The district court also admitted testimony
from several witnesses who stated that Defendant had previously
used firearms to hunt game.
Defendant was convicted, and the district court sentenced
him to a 78-month term of imprisonment and a 3-year term of
supervised release.
II.
Defendant first argues that the district court erred in
denying his motion to suppress the fruits of a search warrant
that was based on stale and untimely information. The
government contends that Defendant failed to preserve this
argument by failing to object to the issue in the magistrate
judge’s report.
“[T]o preserve for appeal an issue in a magistrate judge’s
report, a party must object to the finding or recommendation on
that issue with sufficient specificity so as reasonably to alert
the district court of the true ground for the objection.”
United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007).
Defendant here argues that he preserved his staleness claim
with the following objection:
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The affidavit does not contain any information which
would leave [sic] an independent judicial official to
conclude that the confidential informant was reliable
and accurate as alleged. Particularly, the affidavit
does not disclose to the Magistrate Judge that he was
one of the participants. Rather, the informant simply
states that the defendant had guns in his house, but
does not describe the basis of this knowledge.
Further, the informant does not disclose that
defendant has any other related accessories to the
guns in his house or the basis for any such knowledge.
In fact, the only thing the confidential informant
relates is that on May 1st, some 2½ months earlier,
any guns were taken out of the home.
Defendant contends that the above language “alerted the district
court that [he] was objecting to the timeliness of the
information used to establish probable cause and thereby
provided ample basis for the district court to rule on the
staleness issue.” Reply Brief of Appellant at 4. However,
Defendant concedes that his objection does not contain any
reference to staleness.
Indeed, the only reference to timing appears in an
objection directed at the reliability of the informant. If
Defendant intended to object to the untimeliness of the
information, it was not stated with sufficient specificity to
preserve the issue. See Midgette, 478 F.3d at 622.
Accordingly, we review Defendant’s claim for plain error only.
See United States v. Benton, 523 F.3d 424, 429 (4th Cir. 2008)
(reviewing claim waived under Midgette for plain error).
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Upon reviewing for plain error, we now consider Defendant’s
arguments: (1) that the delay between the date of the alleged
offense (May 1) and the date the warrant was executed (July 18)
rendered the information stale absent indicia that probable
cause had not lapsed; and (2) that the warrant was not supported
by probable cause because it revealed the absence of evidence at
his home.
Probable cause means “a fair probability that contraband or
evidence of a crime will be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983). “The fourth
amendment bars search warrants issued on less than probable
cause, and there is no question that time is a crucial element
of probable cause.” United States v. McCall, 740 F.2d 1331,
1335 (4th Cir. 1984). Accordingly, “[a] valid search warrant
may issue only upon allegations of ‘facts so closely related to
the time of the issue of the warrant as to justify a finding of
probable cause at that time. Whether the proof meets this test
must be determined by the circumstances of each case.’” Id. at
1335-36 (quoting Sgro v. United States, 287 U.S. 206, 210-11
(1932)).
In McCall, we rejected a test of counting the number of
days to determine the vitality of probable cause. Id. at 1336.
“Rather, we must look to all the facts and circumstances of the
case, including the nature of the unlawful activity alleged, the
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length of the activity, and the nature of the property to be
seized.” Id. We also stated that when “the criminal activity
alleged in the warrant is not ongoing in nature, nor the
evidence sought intrinsically likely to remain at the location
where it was originally observed, indicia external to the
evidence itself should demonstrate that probable cause has not
lapsed.” Id. at 1337.
In this case, Defendant observes that he allegedly shot a
bear on May 1, 2007. On July 17, more than eleven weeks after
the date of the alleged offense, officers obtained a warrant to
search his residence. Defendant asserts that officers had no
indication that evidence of a crime would still be found at the
residence on July 17. Defendant argues that applying the McCall
factors yields the conclusion that the government’s information
was stale by then. We disagree.
In the affidavit attached to the warrant, an officer
averred that individuals who purchase firearms retain certain
documents relating to those purchases. Indeed, many items
referred to in the search warrant, including sales receipts,
factory warranties, and cancelled checks are items that one
would expect a person to retain at home. See United States v.
Farmer, 370 F.3d 435, 439-40 (4th Cir. 2004) (noting that
documents like records of payment, canceled checks, and payment
receipts are the types of records that are not ordinarily
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destroyed or moved from place to place). Thus, we are persuaded
to hold that it was reasonable for the magistrate to believe
that such evidence of gun possession would be found at
Defendant’s residence, notwithstanding the passage of time. Cf.
United States v. Neal, 528 F.3d 1069, 1074 (8th Cir. 2008)
(“Information that someone is suspected of possessing firearms
illegally is not stale, even several months later, because
individuals who possess firearms tend to keep them for long
periods of time.”).
Defendant also argues that the warrant was so facially
deficient that the officers could not reasonably presume that it
was valid. Defendant notes that the affidavit submitted to
obtain the warrant was based on an informant’s tip that
Defendant gave all his guns to a third party on May 1.
Defendant argues that a person who divested himself of all his
firearms probably divested himself of all his firearm-related
items as well. Defendant contends that the informant’s tip
therefore could not furnish probable cause to look for even gun-
related materials. We disagree.
Defendant’s argument is premised on the unsupported
assumption that one does not dispose of guns without also
discarding all related items. But, as the magistrate judge
observed, “[t]he confidential informant did not suggest that
[Defendant] had removed from his home any firearm-related
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evidence that he might have had.” Insofar as the warrant
specifically listed other evidence of gun possession, including
ammunition, spare parts, and various records, Defendant fails to
demonstrate that the affidavit was lacking in probable cause.
See United States v. Crews, 502 F.3d 1130, 1140 (9th Cir. 2007)
(“[I]t is reasonable to believe that ammunition, cleaning kits,
cases, and other evidence of firearm possession would have still
been present at Apartment 3 after only twelve days even if the
.22 revolver was discarded.”).
In sum, the district court did not commit plain error in
adopting the magistrate judge’s recommendation to deny
Defendant’s motion to suppress.
III.
Defendant next argues that the district court erred in
admitting evidence that Defendant had guns and hunted on prior
occasions.
“Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show
action in conformity therewith.” Fed. R. Evid. 404(b). It may,
however, be admissible for other purposes, such as proof of
intent, knowledge, or absence of mistake. Id. To be admissible
under Rules 404 and 403, evidence of prior bad acts must be (1)
relevant to an issue other than character; (2) necessary “in the
9
sense that it is probative of an essential claim or an element
of the offense;” (3) reliable; and (4) more probative than
prejudicial. United States v. Queen, 132 F.3d 991, 997 (4th
Cir. 1997). We review a challenge to the admissibility of
evidence under Rule 404(b) for abuse of discretion. Id. at 995.
Defendant first argues that the Rule 404(b) evidence was
not relevant to any issue other than character or necessary to
the government’s case. Defendant’s intent, however, was at
issue here. Defendant was charged with possession of a firearm
in violation of 18 U.S.C. § 922(g)(1), and “a felon’s possession
of a firearm must be both voluntary and intentional to be
punishable under § 922(g)(1)[.]” United States v. Scott, 424
F.3d 431, 435 (4th Cir. 2005). Defendant contended that his
possession of the gun found in the truck he was driving on May
1, 2007 was neither voluntary nor intentional. We conclude,
therefore, that the Rule 404(b) evidence introduced in this case
was relevant to an issue other than character and necessary to
the government’s proof of intent. See United States v. Teague,
737 F.2d 378, 381 (4th Cir. 1984) (Rule 404(b) evidence was
admissible when defendant denied knowledge of gun found in
vehicle); but see United States v. Tate, 715 F.2d 864, 866 (4th
Cir. 1983) (Rule 404(b) evidence not admissible when defendant
denied knowledge of gun found in vehicle).
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This conclusion is supported by numerous circuit courts
that have considered the issue and held that past possession of
a firearm is relevant to proving intent. See United States v.
Moran, 503 F.3d 1135, 1144 (10th Cir. 2007) (“[T]he fact that
[defendant] knowingly possessed a firearm in the past supports
the inference that he had the same knowledge in the context of
the charged offense.”); United States v. Walker, 470 F.3d 1271,
1274 (8th Cir. 2006) (“Evidence that a defendant possessed a
firearm on a previous occasion is relevant to show knowledge and
intent . . . .”); United States v. Jernigan, 341 F.3d 1273, 1281
(11th Cir. 2003) (“[T]he caselaw in this and other circuits
establishes clearly the logical connection between a convicted
felon’s knowing possession of a firearm at one time and his
knowledge that a firearm is present at a subsequent time (or,
put differently, that his possession at the subsequent time is
not mistaken or accidental).”); United States v. Cassell, 292
F.3d 788, 794-95 (D.C. Cir. 2002) (“A prior history of
intentionally possessing guns . . . is certainly relevant to the
determination of whether a person in proximity to such a chattel
on the occasion under litigation knew what he was possessing and
intended to do so.”).
Defendant next argues that the Rule 404(b) evidence was not
reliable because the government’s witnesses were not credible.
“Evidence is reliable for purposes of Rule 404(b) unless it is
11
so preposterous that it could not be believed by a rational and
properly instructed juror.” United States v. Siegel, 536 F.3d
306, 319 (4th Cir. 2008) (quotation marks and citation omitted).
Defendant does not contest the reliability of the video, which
showed him holding a firearm on a previous occasion. Rather, he
attacks the government’s witnesses as either inconsistent in
their stories or biased due to a “falling out” with Defendant.
Defendant recognizes, however, that credibility determinations
rest with the jury. Further, Defendant fails to show that the
evidence was so preposterous that it could not be believed by a
rational juror. Defendant’s argument regarding the reliability
of the Rule 404(b) evidence is without merit.
Defendant also argues that the Rule 404(b) evidence should
have been excluded because its tendency for unfair prejudice
outweighed any probative value. Defendant contends that the
evidence enticed the jury to convict him because of his tendency
to hunt with guns.
“‘Evidence is unfairly prejudicial and thus should be
excluded under Rule 403 when there is a genuine risk that the
emotions of a jury will be excited to irrational behavior, and
this risk is disproportionate to the probative value of the
offered evidence.’” Id. at 319 (quoting United States v.
Williams, 445 F.3d 724, 730 (4th Cir. 2006)).
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Here, the challenged evidence involved conduct
substantially similar to the charged offense, lessening the
danger that the jury would be provoked to behave irrationally.
See id. Because the evidence was properly admitted to show
Defendant’s intent, we do not discern any error in the trial
court’s finding that its probative value outweighed its
prejudicial effect. See United States v. Aramony, 88 F.3d 1369,
1378 (4th Cir. 1996) (where evidence is probative, “the balance
under Rule 403 should be struck in favor of admissibility, and
evidence should be excluded only sparingly.”).
In sum, we hold that the trial court did not abuse its
discretion in admitting the Rule 404(b) evidence.
IV.
Defendant next argues that the district court improperly
calculated his advisory Guidelines range at sentencing.
Specifically, Defendant contends that the district court used an
overbroad definition of “relevant conduct,” which mistakenly
allowed a prior conviction to be counted. In reviewing any
sentence, we apply a deferential abuse of discretion standard.
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).
Defendant’s argument revolves around United States
Sentencing Guidelines Manual (“U.S.S.G.”) § 4A1.2. That section
states:
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Any prior sentence of imprisonment exceeding one year
and one month that was imposed within fifteen years of
the defendant’s commencement of the instant offense is
counted. Also count any prior sentence of
imprisonment exceeding one year and one month,
whenever imposed, that resulted in the defendant being
incarcerated during any part of such fifteen-year
period.
U.S.S.G. § 4A1.2(e)(1) (2009). Commentary notes that “the term
‘commencement of the instant offense’ includes any relevant
conduct.” U.S.S.G. § 4A1.2, cmt. n.8.
Defendant was convicted in January 1986 for assault with a
deadly weapon with intent to kill inflicting serious injury. He
was paroled on May 27, 1988. Regarding the present case,
Defendant concedes that he engaged in relevant conduct as far
back as 2001. “The ‘Bear Hunting 2001’ video,” he states,
“established a 2001 beginning date for relevant conduct[.]”
Brief of Appellant at 33. Defendant argues, however, that the
district court erred in assigning criminal history points to his
assault offense because the starting point of his relevant
conduct in 2001 could have been more than fifteen years after
his state court felony conviction in 1986.
Defendant’s argument fails due to the second sentence of
U.S.S.G. § 4A1.2(e)(1). The Guideline there instructs the
sentencing court to “count any prior sentence of imprisonment
exceeding one year and one month, whenever imposed, that
resulted in the defendant being incarcerated during any part of
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such fifteen-year period.” U.S.S.G. § 4A1.2(e)(1) (emphasis
added). Counting back fifteen years from 2001, the district
court could consider any conviction that resulted in Defendant’s
incarceration since 1986, including his incarceration until 1988
for his 1986 conviction. The district court therefore properly
counted Defendant’s 1986 conviction in calculating Defendant’s
advisory sentencing range.
V.
Finally, Defendant argues that the district court erred by
failing to explain its reasons for imposing his particular
sentence, as required by 18 U.S.C. § 3553. The government
contends that Defendant’s failure to make this argument below
requires us to apply plain error review.
“The court, at the time of sentencing, shall state in open
court the reasons for its imposition of the particular
sentence[.]” 18 U.S.C. § 3553(c). “When rendering a sentence,
the district court must make an individualized assessment based
on the facts presented. That is, the sentencing court must
apply the relevant § 3553(a) factors to the specific
circumstances of the case before it.” Carter, 564 F.3d at 328
(quotation marks and citation omitted). We recently held that
plain error review applies to a claim of procedural sentencing
error raised for the first time on appeal. United States v.
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Lynn, 592 F.3d 572, 577 (4th Cir. 2010). A party preserves his
claim below “[b]y drawing arguments from § 3553 for a sentence
different than the one ultimately imposed . . . .” Id. at 578.
Defendant contends he preserved his claim here because he
argued various aspects of 18 U.S.C. § 3553(a) before the
district court. Indeed, Defendant persuaded the district court
to grant him supervised release so that he could have surgery,
and to deny the government’s motion for an upward departure.
There is no indication, however, that Defendant argued for “a
sentence different than the one ultimately imposed[.]” Id. On
the contrary, the district court granted Defendant every request
Defendant made with regard to his sentence. Defendant therefore
failed to preserve his objection to the district court’s lack of
explanation for his sentence, and we review for plain error.
To establish plain error, Defendant must demonstrate that
the lack of explanation in this case constituted plain error
affecting his substantial rights. Id. at 580. “In other words,
even if we assume that the district court’s very brief
explanation constituted clear error, Rule 52(b) requires that
[Defendant] also show that this explanation had a prejudicial
effect on the sentence imposed.” Id. Defendant does not allege
any prejudice resulting from the district court’s failure to
provide an explanation for his sentence. Defendant’s argument
that the district court’s failure to state its consideration of
16
the section 3553 factors justifies reversal of his sentence is
therefore without merit. Cf. United States v. Hernandez, 603
F.3d 267, 272-73 (4th Cir. 2010) (holding no plain error in
brief explanation of sentence when district court imposed the
within-Guidelines sentence requested by the defendant).
AFFIRMED
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