UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4160
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH LAMONT BARNES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:13-cr-00138-FL-1)
Submitted: December 31, 2015 Decided: March 2, 2016
Before AGEE, DIAZ, and FLOYD, Circuit Judges.
Affirmed in part, vacated in part and remanded by unpublished per
curiam opinion.
Paul K. Sun, Jr., Kelly Margolis Dagger, ELLIS & WINTERS LLP, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Lamont Barnes appeals his jury conviction and
sentence for possession of a firearm by a convicted felon in
violation of 18 U.S.C. §§ 922(g)(1), 924 (2012). Having reviewed
the record, we affirm Barnes’ conviction but vacate his sentence
and remand for resentencing.
Barnes first challenges the district court’s denial of his
motion to suppress evidence stemming from an investigatory stop of
a stationary vehicle that he and an acquaintance occupied. 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. Hill, 776 F.3d 243, 247 (4th Cir. 2015). In a
case involving a brief investigatory stop short of an arrest, “the
Fourth Amendment is satisfied if the officer’s action is supported
by reasonable suspicion to believe that criminal activity may be
afoot.” United States v. Arvizu, 534 U.S. 266, 273 (2002)
(internal quotation marks omitted); see Terry v. Ohio, 392 U.S. 1,
30 (1968). “[R]easonable suspicion is a less demanding standard
than probable cause and requires a showing considerably less than
preponderance of the evidence.” Illinois v. Wardlow, 528 U.S.
119, 123 (2000). “[M]ultiple factors may be taken together to
create a reasonable suspicion even where each factor, taken alone,
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would be insufficient.” United States v. George, 732 F.3d 296,
300 (4th Cir. 2013).
Our de novo review of the record confirms that the district
court did not err in finding that, based on the totality of the
circumstances, the officers had a reasonable, articulable
suspicion that Barnes and the vehicle’s other occupant were engaged
in criminal activity. We therefore conclude that the district
court did not err in denying Barnes’ motion to suppress.
Barnes also challenges the district court’s admission into
evidence of expert testimony concerning the firearm’s movement in
interstate and foreign commerce, and statements that Barnes made
to police concerning his acquisition of the firearm. Upon careful
review of the record, we find that the district court did not abuse
its discretion in admitting either type of evidence. See United
States v. Byers, 649 F.3d 197, 213 (4th Cir. 2011) (stating
standard of review).
Finally, Barnes argues that the district court erred in
sentencing him as an armed career criminal. In light of the
Government’s concession that Barnes was not an armed career
criminal, although we affirm Barnes’ conviction, we vacate his
sentence and remand this case for resentencing. We dispense with
oral argument because the facts and legal contentions are
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adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED IN PART AND REMANDED.
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