USCA4 Appeal: 22-4438 Doc: 40 Filed: 01/31/2024 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4438
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMETRIUS ANTWON MCGREGOR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Mark S. Davis, Chief District Judge. (2:19-cr-00034-MSD-DEM-1)
Submitted: December 29, 2023 Decided: January 31, 2024
Before AGEE and RICHARDSON, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Lawrence H. Woodward, Jr., RULOFF, SWAIN, HADDAD, MORECOCK,
TALBERT & WOODWARD, P.C., Virginia Beach, Virginia, for Appellant. Jessica D.
Aber, United States Attorney, Richmond, Virginia, William B. Jackson, Assistant United
States Attorney, Joseph E. DePadilla, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury convicted Demetrius Antwon McGregor of two counts of possession of a
firearm by a felon, in violation of 18 U.S.C. §§ 922(g), 924(e), one count of possession
with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and one
count of possession of firearms in furtherance of a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(1)(A). After calculating an advisory Sentencing Guidelines range
of 360 months to life imprisonment, the district court sentenced McGregor to 360 months’
imprisonment and 5 years’ supervised release. On appeal, McGregor argues that the court
(1) erred in denying his motion to suppress evidence recovered from an apartment, (2) erred
in denying his Fed. R. Crim. P. 29 motion for a judgment of acquittal, and (3) imposed an
unreasonable sentence. Finding no error, we affirm.
We begin with McGregor’s challenge to the district court’s order denying his
motion to suppress. In his opening brief, McGregor argues that the district court erred in
finding that the search warrant for the apartment was supported by probable cause.
However, the court also found that the Leon ∗ good faith exception to the exclusionary rule
applied. On appeal, McGregor does not challenge this independent, alternate ground for
the denial of the motion to suppress. Accordingly, he has waived appellate review of the
issue. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (“A party
waives an argument by failing to present it in its opening brief or by failing to develop its
argument—even if its brief takes a passing shot at the issue.” (cleaned up)); Brown v. Nucor
∗
United States v. Leon, 468 U.S. 897 (1984).
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Corp., 785 F.3d 895, 918 (4th Cir. 2015) (“Failure of a party in its opening brief to
challenge an alternate ground for a district court’s ruling waives that challenge.” (cleaned
up)).
Next, McGregor contends that the district court erred in denying his Fed. R. Crim.
P. 29 motion for acquittal based on insufficient evidence. We review a district court’s
denial of a Rule 29 motion based on the sufficiency of the evidence de novo. United
States v. Farrell, 921 F.3d 116, 136 (4th Cir. 2019). “A jury’s guilty verdict must be upheld
if, viewing the evidence in the light most favorable to the government, substantial evidence
supports it.” United States v. Haas, 986 F.3d 467, 477 (4th Cir. 2021) (internal quotation
marks omitted). “Substantial evidence 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. (cleaned up).
In assessing whether substantial evidence supports a conviction, “we are not entitled
to assess witness credibility.” United States v. Savage, 885 F.3d 212, 219 (4th Cir. 2018)
(internal quotation marks omitted). We must also “draw[] all reasonable inferences from
the facts” in “the light most favorable to the prosecution.” United States v. Denton, 944
F.3d 170, 179 (4th Cir. 2019) (internal quotation marks omitted). Accordingly, “[a]
defendant who brings a sufficiency challenge bears a heavy burden, as appellate reversal
on grounds of insufficient evidence is confined to cases where the prosecution’s failure is
clear.” Savage, 885 F.3d at 219 (internal quotation marks omitted).
We have reviewed the record and conclude that substantial evidence supports
McGregor’s convictions. The Government presented evidence that drugs and firearms
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were found in the bedroom of McGregor’s apartment. The bedroom also contained
ammunition and magazines that matched a handgun recovered from McGregor’s person
during his arrest, an arrest that took place just outside of the apartment. Further, expert
witnesses opined that the firearms and drugs found in the bedroom were consistent with
drug trafficking. Therefore, rational jurors could reasonably infer that McGregor
constructively possessed the drugs and firearms, that he intended to distribute the drugs,
and that he possessed at least one firearm in furtherance of a drug trafficking crime.
Accordingly, the district court did not err in denying McGregor’s Fed. R. Crim. P. 29
motion for acquittal.
Turning to McGregor’s sentence, we review a criminal sentence for reasonableness
“under a deferential abuse-of-discretion standard.” United States v. McDonald, 28 F.4th
553, 561 (4th Cir. 2022) (internal quotation marks omitted). In reviewing whether a
sentence is reasonable, we first “ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” United States v. Fowler, 948 F.3d 663, 668 (4th Cir. 2020)
(internal quotation marks omitted). If the sentence is procedurally sound, we “then
consider the substantive reasonableness of the sentence, taking into account the totality of
the circumstances.” United States v. Provance, 944 F.3d 213, 218 (4th Cir. 2019) (internal
quotation marks omitted). Any sentence within or below a properly calculated Guidelines
range is presumptively substantively reasonable. United States v. Gillespie, 27 F.4th 934,
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945 (4th Cir.), cert. denied, 143 S. Ct. 164 (2022). A defendant can rebut this presumption
only by showing that the sentence is unreasonable when measured against the § 3553(a)
factors. United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
We conclude that McGregor’s sentence is procedurally and substantively
reasonable. The district court properly calculated the Guidelines range and thoroughly
explained the chosen sentence after considering the parties’ arguments and the statutory
sentencing factors. And, while McGregor argues that his sentence is substantively
unreasonable, he fails to rebut the presumption of reasonableness attached to his within-
Guidelines-range sentence.
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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