UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4753
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ADRIAN D. BRIGGS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Newport
News. Raymond A. Jackson, District Judge. (4:17-cr-00033-RAJ-RJK-1)
Submitted: August 31, 2018 Decided: November 15, 2018
Before DIAZ and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Sean S. Jung, PILGRIMS LAW GROUP, PLLC, Newport News, Virginia, for Appellant.
Tracy Doherty-McCormick, Acting United States Attorney, Alexandria, Virginia, Bethany
J. Lipman, Special Assistant United States Attorney, Baltimore, Maryland, Howard J.
Zlotnick, Managing Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Adrian D. Briggs of carjacking (Count 1), in violation of 18 U.S.C.
§ 2119 (2012), and brandishing or possessing a firearm during and in relation to a crime of
violence (Count 2), in violation of 18 U.S.C. § 924(c)(1)(A) (2012). The district court
sentenced him to 60 months on Count 1 and to a consecutive 84 months, the statutory
mandatory minimum sentence, for Count 2. He contends that on appeal the district court
erred in denying his motion to suppress, that he is entitled to a new trial, and that his
sentence is unreasonable. We affirm.
In considering “a district court’s ruling on a motion to suppress, we review factual
findings for clear error and legal determinations de novo[,] . . . constru[ing] the evidence
in the light most favorable to the prevailing party.” United States v. Lull, 824 F.3d 109,
114-15 (4th Cir. 2016) (internal quotation marks omitted). We follow a two-step process
in determining whether an out-of-court identification should be excluded: “(1) the
defendant must show that the photo identification procedure was impermissibly suggestive,
and (2) if the defendant meets this burden, a court considers whether the identification was
nevertheless reliable in the context of all of the circumstances.” United States v. Saint
Louis, 889 F.3d 145, 152 (4th Cir. 2018) (internal quotation marks omitted), petitions for
cert. filed, U.S.L.W. (U.S. July 31, 2018) (Nos. 18-5427, 18-5438); see United States v.
Greene, 704 F.3d 298, 305 (4th Cir. 2013). “A procedure is unnecessarily suggestive if a
positive identification is likely to result from factors other than the witness’s own
recollection of the crime.” Greene, 704 F.3d at 306 (internal quotation marks omitted).
“When the suggestiveness in the procedure does not reach the impermissible level, the
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potential for error (or potential for misidentification) is left for testing by a course of cross-
examination at trial.” United States v. Saunders, 501 F.3d 384, 389 n.1 (4th Cir. 2007)
(internal quotation marks omitted).
Here, Briggs contends that the victim’s photo lineup identification of him was
impermissibly suggestive and should have been suppressed. Specifically, Briggs asserts
that, during an interview with the victim a few weeks before the photo lineup, police
implied Briggs’s photo would be included in the photo lineup when they asked the victim
if he knew Briggs. Briggs also points out that he was the only person in the lineup wearing
a white crewneck shirt. The lead investigator testified at the suppression hearing and at
trial that, after receiving results regarding certain fingerprints found in and on the victim’s
car, she asked the victim whether he knew a man named Adrian Briggs. Nearly two months
passed from that time to the time of the photo lineup, reducing any potential suggestiveness
from law enforcement. In addition, the detective who conducted the lineup told the victim
that the lineup might not contain the suspect and that all photos would be shown even if
the victim made an identification before the last photo. This admonishment further reduced
any potential suggestiveness from the lead investigator that police had found a suspect and
that he would be in the lineup. We do not believe that the fairly commonplace color and
style of Briggs’s shirt made his photo stand out from the other photos in the lineup in a way
that was impermissibly suggestive, especially given that another photo in the lineup
featured a collared white shirt. Therefore, we conclude the district court did not clearly err
in finding that the photo lineup was not unnecessarily suggestive and, thus, did not err in
denying Briggs’s motion to suppress.
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Next, we review for an abuse of discretion a district court’s denial of a motion for a
new trial under Fed. R. Crim. P. 33. Saint Louis, 889 F.3d at 157. “A district court should
grant a new trial based on the weight of the evidence only when the evidence weighs
heavily against the verdict.” Id. (internal quotation marks omitted). “When considering
the motion, the district court is not required to view the evidence in the light most favorable
to the government, and it may evaluate the credibility of witnesses.” Id.
Briggs contends that he is entitled to a new trial because, essentially, the victim’s
identification was unreliable and there was some evidence pointing to a different person as
the carjacker. We conclude, however, that ample evidence shows that Briggs was the one
who carjacked the victim. For example, the victim was completely certain that Briggs
carjacked him, Briggs’s fingerprints were found on a cigar wrapper in the victim’s car even
though the victim did not smoke cigars and did not know Briggs, and cell phone records
showed that someone called Briggs’s mother using the victim’s stolen phone in close
proximity to one location where the carjacker was seen on a surveillance camera. The lead
investigator also testified that the person to whom Briggs points as the perpetrator did not
look anything like the suspect in the surveillance videos or pictures and that person was
never a suspect during the investigation; further, the victim did not recognize that person.
Given the evidence pointing to Briggs as the perpetrator, the district court did not abuse its
discretion in denying Briggs’s motion.
Finally, “[w]e review a sentence for reasonableness ‘under a deferential abuse-of-
discretion standard.’” United States v. McCoy, 804 F.3d 349, 351 (4th Cir. 2015) (quoting
Gall v. United States, 552 U.S. 38, 41 (2007)). This review entails appellate consideration
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of both the procedural and substantive reasonableness of the sentence. Gall, 552 U.S. at
51. In determining procedural reasonableness, we must consider whether the district court
properly calculated the Sentencing Guidelines range, treated the Guidelines as advisory
rather than mandatory, gave the parties an opportunity to argue for an appropriate sentence,
considered the 18 U.S.C. § 3553(a) (2012) factors, selected a sentence not based on clearly
erroneous facts, and sufficiently explained the chosen sentence. Id. at 49-51.
If the district court’s sentencing decision is procedurally reasonable, then we must
consider whether the sentence imposed is substantively reasonable. Id. at 51. Substantive
reasonableness is based on “the totality of the circumstances.” Id. We presume that a
sentence imposed within a properly calculated Guidelines range is reasonable. United
States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
Briggs contends that his sentence is unreasonable because the court failed to analyze
his arguments that the mandatory minimum sentence was excessive and did not serve as a
useful deterrent. Our review of the record, however, convinces us that the court did
consider Briggs’s arguments and that its decision is procedurally reasonable. See Gall, 552
U.S. at 49-51. Substantively, Briggs’s sentence of 144 months is within the properly
calculated Guidelines range, and Briggs has not rebutted the presumption of reasonableness
accorded his within-Guidelines-range sentence. See Louthian, 756 F.3d at 306. We
therefore conclude that the sentence is substantively reasonable. See Gall, 552 U.S. at 51.
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 the decisional process.
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AFFIRMED
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United States v. Adrian Briggs
Combined Opinion