UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4078
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CURTIS LOMONDA WILBORN, a/k/a Curtis Lomonda Wilburn,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:09-cr-00351-WO-1)
Submitted: November 23, 2011 Decided: December 13, 2011
Before MOTZ and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK, Chapel
Hill, North Carolina, for Appellant. Ripley Rand, United States
Attorney, Michael F. Joseph, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Curtis Lomonda Wilborn appeals from his conviction for
possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2) (2006), and his 120-month term of
imprisonment. Wilborn contends that the court erred in denying
his motions to suppress evidence and for judgment of acquittal,
and in increasing his offense level pursuant to U.S. Sentencing
Guidelines Manual (USSG) § 2K2.1(b)(6) (2010) when determining
his sentence. We affirm.
Wilborn first asserts that the firearm should have
been suppressed. We “review legal conclusions involved in the
district court’s suppression determination de novo but review
factual findings underlying the legal conclusions subject to the
clearly erroneous standard.” United States v. Rusher, 966 F.2d
868, 873 (4th Cir. 1992). In issuing a search warrant, the
magistrate’s task “is simply to make a practical, common-sense
decision whether, given all the circumstances set forth in the
affidavit . . . , including the ‘veracity’ and ‘basis of
knowledge’ of persons supplying hearsay information, there is 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). In reviewing a magistrate’s issuance of a search
warrant, “the duty of a reviewing court is simply to ensure that
the magistrate had a substantial basis for concluding that
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probable cause existed.” Id. at 238-39 (internal quotation
marks and alterations omitted). “[A] magistrate’s determination
of probable cause should be paid great deference by reviewing
courts.” United States v. Clyburn, 24 F.3d 613, 617 (4th Cir.
1994) (quoting Gates, 462 U.S. at 236).
We agree with the district court that the magistrate
had a substantial basis to conclude that probable cause existed.
The affidavit described an informant’s successful controlled buy
from a female at Wilborn’s residence, coupled with the
informant’s assertions that a male previously sold him drugs
from the residence and from a dark Nissan car. The affidavit
also described detectives’ surveillance of the residence soon
after the controlled buy, where they observed Wilborn driving a
dark Nissan car and a female leaving the residence to enter the
car. Testimony of one of the detectives established the
informant’s reliability. These facts were sufficient to
establish probable cause.
Wilborn next urges that the district court erred in
denying his motion, pursuant to Federal Rule of Criminal
Procedure 29, for judgment of acquittal. We review de novo a
district court’s denial of a motion for judgment of acquittal.
See United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005).
A guilty verdict must be sustained “if, viewing the evidence in
the light most favorable to the Government, it is supported by
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‘substantial evidence,’” which is evidence that a “reasonable
finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” Id. (internal quotation marks omitted). In this
inquiry, we “consider both circumstantial and direct evidence,
and allow the government all reasonable inferences that could be
drawn in its favor.” United States v. Harvey, 532 F.3d 326, 333
(4th Cir. 2008).
Wilborn challenges only whether the evidence was
sufficient to conclude that he ever possessed the firearm. We
conclude that ample evidence supports Wilborn’s conviction.
Before the detectives who were conducting surveillance on
Wilborn's home announced their presence, Wilborn clutched his
waist under his shirt as if he was holding a weapon. Then,
while running from the officers along a fence, he paused for a
moment before being subdued. A .38-caliber firearm was found on
the opposite side of the fence at the point where Wilborn
paused. It was clean and appeared freshly placed in the area,
which consisted of untended woods and dead leaves. Moreover,
the search turned up a box of .38-caliber ammunition in the
bedroom Wilborn shared with his girlfriend, Shakiela McRae.
Additionally, Wilborn’s demeanor changed significantly upon
seeing the firearm, going immediately from a belligerent to a
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passive attitude. A rational jury could find that these facts,
taken together, demonstrated his possession of the firearm.
Finally, Wilborn argues that the district court erred
in applying USSG § 2K2.1(b)(6) in imposing sentence. Factual
determinations underlying a district court’s imposition of
sentence must be supported by a preponderance of the evidence,
and are not to be overturned unless clearly erroneous. See
United States v. Jeffers, 570 F.3d 557, 570 (4th Cir. 2009).
The relevant section of the Guidelines provides that “[i]f the
defendant used or possessed any firearm or ammunition in
connection with the commission or attempted commission of
another felony offense,” the defendant’s offense level is to be
increased by four. USSG § 2K2.1(b)(6). A defendant possesses a
firearm “in connection with” another felony “if the firearm
. . . facilitated, or had the potential of facilitating,” that
felony, or, “in the case of a drug trafficking offense,” the
“firearm is found in close proximity to drugs, drug-
manufacturing materials, or drug paraphernalia.” Id., comment.
(n.14). “[A]nother felony offense” means “any federal, state,
or local offense, other than the . . . firearms possession or
trafficking offense, punishable by imprisonment for a term
exceeding one year, regardless of whether a criminal charge was
brought, or a conviction obtained.” Id.
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Marijuana found during the search of Wilborn’s home
was being packaged for resale and was on the bed that Wilborn
and McRae shared. McRae testified that the firearm was under
the same bed only two days before the search, and that she did
not move the firearm outside or know how it ended up there.
Additionally, Wilborn and McRae split the rent of the residence,
and McRae said she had been selling drugs from the residence for
several years. Finally, Detective Swaim testified at the
sentencing hearing that the informant told him that Wilborn
himself sold drugs from the residence. Thus, it was not clearly
erroneous for the court to find by a preponderance that Wilborn
maintained a dwelling for the purpose of keeping and selling
controlled substances, and the district court did not err in
enhancing Wilborn’s sentence pursuant to USSG § 2K2.1(b)(6).
Accordingly, we affirm Wilborn’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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