United States v. Kirt Omar Gibbs , 680 F. App'x 184 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4129
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KIRT OMAR GIBBS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Senior District
Judge. (8:14-cr-00351-DKC-1)
Submitted: February 17, 2017 Decided: February 24, 2017
Before NIEMEYER, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Columbia,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Michael T. Packard, Deborah A. Johnston, Assistant
United States Attorneys, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Kirt Omar Gibbs on several counts related
to his participation in a marijuana distribution conspiracy. On
appeal, Gibbs raises challenges to his conviction and sentence.
Finding no error, we affirm the district court’s judgment.
I.
Gibbs first challenges the district court’s order denying
his pretrial motion to suppress evidence seized after a traffic
stop. Gibbs contends that the traffic statute relied on by the
officer to justify the stop, Md. Code Ann. Transp. § 21-310(a)
(Lexis 2009), Maryland’s following-too-closely statute (“the
statute”), is unconstitutionally vague. When considering the
denial of a motion to suppress, “[w]e review de novo a district
court’s rulings with respect to reasonable suspicion and
probable cause.” United States v. Palmer, 820 F.3d 640, 648
(4th Cir. 2016).
However, we need not reach the constitutionality of the
statute. Even if we were to conclude that the statute at issue
is vague, the officer was entitled to rely on the statute unless
it was “clearly unconstitutional.” Illinois v. Krull, 480 U.S.
340, 349 (1987). Our sister circuits have rejected arguments
similar to Gibbs’. See, e.g., United States v. Gregory, 302
F.3d 805, 808-09 (8th Cir. 2002); United States v. Inocencio, 40
F.3d 716, 728 (5th Cir. 1994). Moreover, law enforcement
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officers had reasonable suspicion that Gibbs was engaged in drug
trafficking; that suspicion also supported the stop. Illinois
v. Wardlow, 528 U.S. 119, 123-24 (2000); United States v.
Massenburg, 654 F.3d 480, 492 (4th Cir. 2011). Thus, we affirm
the district court’s denial of the motion to suppress.
II.
Gibbs next challenges the admission into evidence of text
messages recovered from his cell phone. To the extent Gibbs
properly objected to the admission of the text messages, we
review the district court’s “evidentiary rulings for abuse of
discretion.” United States v. Faulls, 821 F.3d 502, 508 (4th
Cir. 2016). To the extent Gibbs failed to object, or raises a
new argument with respect to that evidence on appeal, we review
for plain error. United States v. Moore, 810 F.3d 932, 939 (4th
Cir. 2016). “[W]e may reverse only on a finding that (1) there
was error, (2) that was plain, (3) that affected substantial
rights, and (4) that seriously affected the fairness, integrity,
or public reputation of judicial proceedings.” Id. (alterations
and internal quotation marks omitted).
Gibbs first contends that the Government failed to
adequately authenticate the text messages. Because Gibbs only
objected on hearsay grounds in the district court, we review
this contention for plain error. In general, “[t]o satisfy the
requirement of authenticating an item of evidence, the proponent
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must produce evidence sufficient to support a finding that the
item is what the proponent claims it is.” Fed. R. Evid. 901(a).
“The burden to authenticate under Rule 901 is not high — only a
prima facie showing is required.” United States v. Vidacak, 553
F.3d 344, 349 (4th Cir. 2009) (internal quotation marks
omitted). Here, the Government presented a sufficient basis to
conclude that the text messages were authored by Gibbs, and thus
the district court did not plainly err in admitting the
messages.
Gibbs next contends that the district court erred in
admitting incoming text messages from his phone, because they
were hearsay, offered for the truth of the matter asserted. See
Fed. R. Evid. 801(c)(2). However, a statement is not hearsay if
it is offered to show its effect on the listener. United States
v. Safari, 849 F.2d 891, 894 (4th Cir. 1988). Gibbs’ outgoing
messages were admissible under Fed. R. Evid. 801(d)(2)(A), and
the incoming messages were admissible to show their effect on
Gibbs. Thus, we conclude the district court did not abuse its
discretion in admitting the messages.
III.
Finally, Gibbs contends that the district court erred in
calculating his base offense level, because the rule of lenity
required the court to attribute to him only 50 kilograms of
marijuana, as opposed to the nearly 100 kilograms the district
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court attributed. Because Gibbs’ argument is a legal one, we
review de novo the district court’s determination of the base
offense level. * United States v. Horton, 693 F.3d 463, 474 (4th
Cir. 2012). The rule of lenity only “applie[s] in the context
of the Sentencing Guidelines” if “there is a grievous ambiguity
or uncertainty in the language and structure of a [Guideline].”
United States v. Cutler, 36 F.3d 406, 408 (4th Cir. 1994)
(internal quotation marks omitted). Gibbs points to no
ambiguity in the Sentencing Guidelines, and we conclude the
district court did not err in relying on the jury’s verdict in
attributing to Gibbs just under 100 kilograms of marijuana.
IV.
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
* Gibbs also contends that the district court erred in not
applying a 2-level reduction for acceptance of responsibility;
however, the district court did credit Gibbs for acceptance of
responsibility.
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