UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4231
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DEMETRIUS ANTONIO MCKOY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:09-cr-00051-BO-1)
Submitted: November 16, 2012 Decided: November 20, 2012
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina,
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Unpublished opinions are not binding precedent in this circuit.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:
Demetrius Antonio McKoy appeals the district court’s
judgment sentencing him to 220 months’ imprisonment. McKoy was
convicted of simple possession of marijuana in violation of 21
U.S.C. § 844(a) (2006), possession of a firearm by a felon in
violation of 18 U.S.C. §§ 922(g)(1), 924 (2006), and possession
with intent to distribute cocaine in violation of 21 U.S.C.
§ 841(a)(1) (2006). On appeal, McKoy argues that the district
court erred when it did not suppress evidence obtained by a
warrantless search of McKoy’s apartment, the evidence was not
sufficient as a matter of law to convict him of possession of a
firearm, he was entitled to a jury instruction on the
lesser-included offense of simple possession of cocaine, and
that the district court erred when it sentenced McKoy as a
career offender. We affirm.
McKoy first contends that the district court erred by
denying his motion to suppress the evidence of contraband
discovered in his apartment. When considering the district
court’s denial of a motion to suppress, we “review the district
court’s legal determinations de novo and its factual
determinations for clear error.” United States v. Kelly, 592
F.3d 586, 589 (4th Cir. 2010). Where a motion to suppress has
been denied, we “construe the evidence in the light most
favorable to the government.” Id. We also note that “searches
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and seizures inside a home without a warrant are presumptively
unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980).
For a warrantless entry to be reasonable under the
Fourth Amendment, it must be the result of exigent
circumstances, situations where “police officers (1) have
probable cause to believe that evidence of illegal activity is
present and (2) reasonably believe that evidence may be
destroyed or removed before they could obtain a warrant.”
United States v. Cephas, 254 F.3d 488, 494-95 (4th Cir. 2001);
see United States v. Turner, 650 F.2d 526, 528 (4th Cir. 1981)
(enumerating additional factors for determining exigency). We
review the factual finding of exigent circumstances for clear
error. United States v. Mowatt, 513 F.3d 395, 399 (4th Cir.
2008). Upon review of the record, we conclude that the district
court did not err in finding probable cause to search, based on
the plainly apparent illegal activity occurring in the
apartment. We further conclude that the district court’s
finding that the warrantless entry was justified by exigent
circumstances was well-supported by the evidence.
McKoy also argues that there was not sufficient
evidence to convict him of possession of a firearm. A jury’s
verdict “must be sustained if there is substantial evidence,
taking the view most favorable to the Government, to support
it.” Glasser v. United States, 315 U.S. 60, 80 (1942); see
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United States v. Perkins, 470 F.3d 150, 160 (4th Cir. 2006).
The crime of being a felon in possession of a firearm has three
elements: “(1) the defendant previously had been convicted of a
crime punishable by a term of imprisonment exceeding one year;
(2) the defendant knowingly possessed, transported, shipped, or
received the firearm; and (3) the possession was in or affecting
commerce.” United States v. Moye, 454 F.3d 390, 395 (4th Cir.
2006) (citing United States v. Langley, 62 F.3d 602, 606 (4th
Cir. 1995) (en banc)). Possession may be actual or
constructive. Moye, 454 F.3d at 395. Our review of the record
leads us to conclude that the evidence was sufficient for a
rational finder of fact to conclude that McKoy possessed the
firearm.
McKoy contends that he was entitled to an instruction
that would have allowed the jury to find him guilty of the
lesser-included offense of simple possession of cocaine. “The
district court has no discretion to refuse to give a
lesser-included instruction if the evidence warrants the
instruction and the defendant requests it.” United States v.
Baker, 985 F.2d 1248, 1259 (4th Cir. 1993). To be entitled to
the instruction, the defendant must present some “evidence from
which a reasonable jury could find that [defendant’s] intent was
to possess the cocaine for personal use, rather than for
distribution.” United States v. Wright, 131 F.3d 1111, 1112
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(4th Cir. 1997). McKoy did not put on any evidence of his own
at trial, and we conclude that he did not elicit enough evidence
from the Government witnesses, in light of Wright, to require
the district court to give the lesser-included offense
instruction.
Finally, McKoy argues that the district court’s
application of the career offender Guidelines violated
Apprendi v. New Jersey, 530 U.S. 466 (2000), because the fact of
the prior convictions relied on to support the sentence
enhancement was not pled in the indictment and proved before the
jury. Because McKoy was sentenced below the statutory maximums
on each count, his argument is without merit.
Accordingly, we affirm the district court’s judgment.
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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