United States v. McLennon ( 2003 )


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  •                           UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.
              No. 02-4193
    KENNSWORTH LLOYD MCLENNON,
    a/k/a Anthony Lee Pottinger,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Middle District of North Carolina, at Durham.
    William L. Osteen, District Judge.
    (CR-01-266)
    Submitted: March 10, 2003
    Decided: March 27, 2003
    Before NIEMEYER and GREGORY, Circuit Judges, and
    HAMILTON, Senior Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    COUNSEL
    Ronnie M. Mitchell, MITCHELL, BREWER, RICHARDSON,
    ADAMS, BURGE & BOUGHMAN, Fayetteville, North Carolina, for
    Appellant. Anna Mills Wagoner, United States Attorney, Paul A.
    Weinman, Assistant United States Attorney, Winston-Salem, North
    Carolina, for Appellee.
    2                    UNITED STATES v. MCLENNON
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Kennsworth Lloyd McLennon appeals his conviction and 240-
    month sentence for possession with intent to distribute cocaine, in
    violation of 
    21 U.S.C. §§ 841
    (a)(1), (b)(1)(C) (2000), and possession
    with intent to distribute crack, in violation of 
    21 U.S.C. §§ 841
    (a)(1)
    and (b)(1)(A) (2000) and 
    18 U.S.C. § 2
     (2000). McLennon raises sev-
    eral claims of error. Finding none, we affirm.
    McLennon first claims the evidence was insufficient to convict
    him. To determine whether there was sufficient evidence to support
    a conviction, this court considers whether, taking the evidence in the
    light most favorable to the Government, any reasonable trier of fact
    could have found the defendant guilty beyond a reasonable doubt.
    Glasser v. United States, 
    315 U.S. 60
    , 80 (1942). This court does not
    weigh the evidence or determine the credibility of the witnesses.
    Rather, the jury verdict must be upheld if there is substantial evidence
    to support the verdict. Id.; United States v. Murphy, 
    35 F.3d 143
    , 148
    (4th Cir. 1994). A defendant challenging the sufficiency of the evi-
    dence to support his conviction faces a heavy burden. United States
    v. Beidler, 
    110 F.3d 1064
    , 1067 (4th Cir. 1997). With these standards
    in mind, we find the evidence was sufficient to support McLennon’s
    convictions.
    Second, McLennon argues that the district court erred in denying
    his motion to suppress evidence. The district court’s findings of fact
    in ruling on a motion to suppress are reviewed for clear error, while
    its legal conclusions are reviewed de novo. United States v. Rusher,
    
    966 F.2d 868
    , 873 (4th Cir. 1992). The record demonstrates that
    McLennon was not an "overnight guest" in the sense contemplated by
    Minnesota v. Olson, 
    495 U.S. 91
    , 96-97 (1990), but was instead
    "merely present with the consent of the householder." See Minnesota
    v. Carter, 
    525 U.S. 83
    , 90 (1998). Accordingly, he did not have a rea-
    UNITED STATES v. MCLENNON                         3
    sonable expectation of privacy in the area searched. Alternatively, we
    find the execution of the search to be reasonable given the presence
    of exigent circumstances. See United States v. Kennedy, 
    32 F.3d 876
    ,
    882 (4th Cir. 1994). Therefore, the district court did not err in denying
    the suppression motion.
    McLennon next contends that the district court erred in instructing
    the jury that it could consider the fact that McLennon carried a false
    identification document when he was arrested as evidence of con-
    sciousness of guilt. The district court’s decision to give a requested
    jury instruction and the content of that instruction are reviewed for
    abuse of discretion. United States v. Russell, 
    971 F.2d 1098
    , 1107 (4th
    Cir. 1992). We find that the district court did not abuse its discretion
    in giving the instruction, but that even if it did, any error was harm-
    less beyond a reasonable doubt. United States v. Obi, 
    239 F.3d 662
    (4th Cir.), cert. denied, 
    534 U.S. 835
     (2001).
    McLennon argues that the Government should have turned over to
    the defense an allegedly exculpatory videotape. Nothing in the record
    supports the claim that the Government refused to produce the tape,
    and we find this contention to be meritless.
    McLennon raises two issues concerning his sentence. First,
    McLennon contends the district court erred in applying a two-level
    adjustment to his base offense level, pursuant to USSG § 2D1.1(b)(1),
    for possession of a firearm during the offense. The sentencing court’s
    factual findings are reviewed for clear error, while its applications of
    the Sentencing Guidelines are reviewed de novo. United States v.
    Daughtrey, 
    874 F.2d 213
    , 217 (4th Cir. 1989). "In order to prove that
    a weapon was present, the Government need show only that the
    weapon was possessed during the relevant illegal drug activity."
    United States v. McAllister, 
    272 F.3d 228
    , 234 (4th Cir. 2001). The
    evidence in the record supports the district court’s finding that it was
    not clearly improbable that the gun was connected to the drug distri-
    bution. See McAllister, 
    272 F.3d at 233-34
    ; United States v. Harris,
    
    128 F.3d 850
    , 852 (4th Cir. 1997).
    Finally, McLennon claims the district court erred in counting a
    1994 state court conviction in computing his criminal history score.
    McLennon did not raise this precise objection below, but instead
    4                    UNITED STATES v. MCLENNON
    objected on different grounds, and cannot show the district court erred
    in counting a valid conviction linked to McLennon by fingerprint evi-
    dence.
    Accordingly, we affirm McLennon’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 argu-
    ment would not aid the decisional process.
    AFFIRMED