UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4533
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHIRLEY INGRAM, JR., a/k/a Raheem,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:10-cr-00069-FDW-1)
Submitted: December 23, 2014 Decided: January 8, 2015
Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henderson Hill, Executive Director, Ann L. Hester, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shirley Ingram, Jr., appeals his convictions and
sentences for possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2012), and in furtherance of
a drug-trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1) (2012). Ingram claims the district court erred by
(1) not suppressing evidence found following a third-party
consent search of his vehicle; (2) denying his Fed. R. Crim. P.
29 motion for a judgment of acquittal; (3) designating Ingram an
armed career criminal, under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e) (2012), by relying on prior
convictions that he claims do not qualify as predicate offenses;
and (4) imposing an ACCA sentence based on facts not alleged in
the indictment and proved to the jury beyond a reasonable doubt.
We affirm.
I. Suppression claim
“In evaluating [an] appeal of the denial of [a] motion
to suppress . . . , we review the district court’s factual
findings for clear error and its legal conclusions de novo.”
United States v. Brown, 757 F.3d 183, 190 (4th Cir.), cert.
denied, 135 S. Ct. 229 (2014). “When the district court denies
a motion to suppress, we view the evidence in the light most
favorable to the government.” United States v. McGee, 736 F.3d
263, 269 (4th Cir. 2013), cert. denied, 134 S. Ct. 1572 (2014).
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“The government bears the burden of proof in justifying a
warrantless search or seizure.” Id.
A warrantless search may be justified by showing
consent to search by “a third party who possessed common
authority over . . . the premises or effects sought to be
inspected.” United States v. Matlock, 415 U.S. 164, 171 (1974);
United States v. Shrader, 675 F.3d 300, 306 (4th Cir. 2012).
However, “a physically present inhabitant’s express refusal of
consent to a police search is dispositive as to him, regardless
of the consent of a fellow occupant.” Georgia v. Randolph, 547
U.S. 103, 122-23 (2006). “The government has the burden of
proving consent,” and we “review for clear error a district
court’s determination that a search [was] consensual.” United
States v. Robertson, 736 F.3d 677, 680 (4th Cir. 2013). In
determining whether consent to search was freely and voluntarily
given, a court is to consider the totality of the circumstances,
including the characteristics of the consenter, such as her
mental capacity. United States v. Jones, 701 F.3d 1300, 1318
(10th Cir. 2012); United States v. Lattimore, 87 F.3d 647, 650
(4th Cir. 1996) (en banc).
Here, prior to trial, Ingram moved to suppress
evidence seized from the search of his vehicle, arguing that his
mother, who had consented to the search, lacked the capacity to
do so. He also claimed that, regardless of whether his mother’s
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consent was voluntary, the search was unreasonable under
Randolph. We discern no reversible error in the district
court’s determinations that Ingram’s mother did not lack the
requisite capacity to consent and that, because Ingram never
expressly refused his consent, Randolph does not apply to his
case. Therefore, we affirm the district court’s denial of
Ingram’s motion to suppress.
II. Sufficiency of the evidence claim.
This court reviews de novo the denial of a Rule 29
motion for a judgment of acquittal. United States v. Jaensch,
665 F.3d 83, 93 (4th Cir. 2011). A defendant challenging the
sufficiency of the evidence faces “a heavy burden.” United
States v. McLean, 715 F.3d 129, 137 (4th Cir. 2013). The jury
verdict must be sustained “if any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Pineda, 770 F.3d 313, 317
(4th Cir. 2014) (internal quotation marks omitted). “[T]he
jury, not the reviewing court, weighs the credibility of the
evidence and resolves any conflicts in the evidence presented
. . . .” McLean, 715 F.3d at 137 (internal quotation marks
omitted). Moreover, we give the government “the benefit of all
reasonable inferences from the facts proven to those sought to
be established.” United States v. Gomez-Jimenez, 750 F.3d 370,
378 (4th Cir.) (internal quotations marks omitted), cert.
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denied, 135 S. Ct. 305 (2014). Thus, “[r]eversal for
insufficient evidence is reserved for the rare case where the
prosecution’s failure is clear.” United States v. Ashley, 606
F.3d 135, 138 (4th Cir. 2010) (internal quotation marks
omitted).
“Section 924(c) requires the government to present
evidence indicating that the possession of a firearm furthered,
advanced, or helped forward a drug trafficking crime.” Pineda,
770 F.3d at 317 (internal quotation marks and alteration
omitted). Because the government introduced ample evidence from
which a reasonable factfinder could conclude beyond a reasonable
doubt that Ingram had possessed a firearm that furthered and
advanced a drug trafficking crime, we conclude that sufficient
evidence supported his § 924(c) conviction. Thus, the district
court did not err by denying Ingram’s Rule 29 motion.
III. ACCA claims
Ingram claims that the district court erred by
imposing an ACCA sentence because his prior North Carolina
breaking or entering convictions, under N.C. Gen. Stat. § 14-
54(a) (2011), did not count as predicate convictions for
purposes of ACCA. Our recent decision in United States v.
Mungro, 754 F.3d 267 (4th Cir. 2014), cert. denied, __ S. Ct.
__, 83 U.S.L.W. 3328 (U.S. Dec. 1, 2014) (No. 14-6886), holding
that § 14-54(a) convictions qualify as ACCA predicate
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convictions, forecloses this argument. Ingram’s final claim—
that he was improperly designated an armed career criminal
because his prior convictions were not submitted to the jury and
proved beyond a reasonable doubt—is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). Therefore, the
district court did not err in rejecting these claims.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid in the decisional
process.
AFFIRMED
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