UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4341
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOVAN CORNELIUS SIMON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:12-cr-00742-RBH-1)
Submitted: January 23, 2015 Decided: February 2, 2015
Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Andrew Mackenzie, BARRETT & MACKENZIE, LLC, Greenville, South
Carolina, for Appellant. Arthur Bradley Parham, Assistant
United States Attorney, Florence, South Carolina; Stanley D.
Ragsdale, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jovan Cornelius Simon appeals his conviction and the
137-month sentence imposed by the district court after he was
convicted of conspiracy to distribute and possess with intent to
distribute cocaine and cocaine base, in violation of 18 U.S.C.
§§ 841(a)(1), (b)(1)(C), (b)(1)(D) 846 (2012), and possession of
a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), (e) (2012). Simon’s counsel has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that he has found no meritorious grounds for appeal but
questioning the denial of Simon’s motions to suppress, and the
application of the sentencing enhancement for obstruction of
justice. Simon has filed a pro se supplemental brief arguing
these issues and additionally contending that the evidence was
insufficient to convict him of conspiracy and that the district
court erred by failing to require the jury to specify which
firearm Simon possessed and by applying a statutory sentencing
range based on drug weights that were not found by the jury. We
affirm the judgment of the district court.
We review factual findings underlying a district
court’s denial of a motion to suppress for clear error and legal
conclusions de novo. United States v. Foster, 634 F.3d 243, 246
(4th Cir. 2011). We construe the evidence in the light most
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favorable to the Government, the prevailing party below. United
States v. Black, 707 F.3d 531, 534 (4th Cir. 2013).
In challenging the February 28, 2012 search, Simon
argues that the officers’ testimony that they smelled marijuana
in his vehicle was not credible and that they could not have
known whether the odor came from the vehicle or from Simon’s
person. “We defer to the district court’s credibility
findings.” United States v. Griffin, 589 F.3d 148, 150 n.1 (4th
Cir. 2009) (internal quotation marks omitted). We have
repeatedly held that an officer who smells marijuana upon
approaching a vehicle during a lawful traffic stop has probable
cause to search those parts of the vehicle where that marijuana
may be contained. United States v. Carter, 300 F.3d 415, 422
(4th Cir. 2002). Accordingly, we affirm the denial of the
motion to suppress the fruits of the February 28, 2012 search. ∗
Simon also challenges the May 9, 2013 search of his
underwear when he was stopped for a traffic infraction. A
“search conducted inside [a defendant’s] underwear is properly
∗
Simon also argues that the officers lacked probable cause
to seize the firearms they found in the vehicle. Because Simon
did not raise this argument prior to trial, it is waived, and
cannot be asserted on appeal absent a showing of good cause.
See, e.g. United States v. White, 584 F.3d 935, 948 (10th Cir.
2009) (holding that moving to suppress evidence on one basis
does not prevent waiver of unasserted bases for suppression).
Simon does not allege good cause for us to consider this issue.
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characterized as a strip search.” United States v. Edwards, 666
F.3d 877, 882 (4th Cir. 2011). We examine such a search “in its
complete context and consider the following factors: 1) the
place in which the search was conducted; 2) the scope of the
particular intrusion; 3) the manner in which the search was
conducted; and 4) the justification for initiating the search.”
Id. at 883.
In this case, the intrusion was properly limited in
scope to removing an unknown object from Simon’s groin and the
search was conducted in a safe, nonthreatening manner.
Accordingly, we find that the district court properly denied the
motion to suppress the fruits of the May 9, 2013 search.
Simon’s counsel questions whether the district court
erred by applying a sentencing enhancement for obstruction of
justice. We review the imposition of this enhancement for clear
error. United States v. Hughes, 401 F.3d 540, 560 (4th Cir.
2005). The obstruction enhancement is appropriate when a
defendant commits perjury by giving “false testimony concerning
a material matter with the willful intent to provide false
testimony.” United States v. Dunnigan, 507 U.S. 87, 94-96
(1993). Testimony concerns a material matter when it, “if
believed, would tend to influence or affect the issue under
determination.” U.S. Sentencing Guidelines Manual § 3C1.1 cmt.
n.6 (2013).
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The district court applied the enhancement based upon
Simon’s testimony at the suppression hearing that he was unaware
that there were any drugs contained in a sock tied to his
genitals that was discovered during the pat-down search.
Contrary to Simon’s contention that no one but himself can
testify regarding what was in his mind, the district court was
justified in finding that this testimony was willfully false.
See, e.g., United States v. Santos, 553 U.S. 507, 521 (2008)
(recognizing that “knowledge must almost always be proved[] by
circumstantial evidence”). If believed, this testimony would
strongly undermine the officers’ credibility by implying that
there were no drugs in the sock and that the officers’ testimony
that they found such drugs was false. See United States v. Fox,
393 F.3d 52, 61 n.9 (1st Cir. 2004) (holding that testimony
implying officer had fabricated account of stop was material due
to impeachment value), vacated and remanded on other grounds,
545 U.S. 1125 (2005). Accordingly, we find that the district
court did not clearly err by applying the obstruction
enhancement.
In accordance with Anders, we have reviewed the entire
record and the issues raised in Simon’s pro se supplemental
brief and have found no meritorious grounds for appeal.
Accordingly, we affirm the district court’s judgment. This
court requires that counsel inform Simon, in writing, of his
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right to petition the Supreme Court of the United States for
further review. If Simon requests that a petition be filed, but
counsel believes that such a petition would be frivolous,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Simon. 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 the
decisional process.
AFFIRMED
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