United States v. Comstock

UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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

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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

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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.

15
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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