United States v. Carnell Kelly , 444 F. App'x 688 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5104
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CARNELL DESHAWN KELLY, a/k/a Mookie,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:00-cr-00193-TDS-1)
Submitted: June 22, 2011 Decided: July 12, 2011
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Todd A. Smith, LAW FIRM OF TODD A. SMITH, Graham, 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Unpublished opinions are not binding precedent in this circuit.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:
Carnell Deshawn Kelly appeals the district court’s
order revoking his supervised release and sentencing him to
twenty-eight months’ imprisonment and thirty-two months of
supervised release. On appeal, Kelly contends that there was
insufficient evidence to support the district court’s finding
that he violated a condition of his supervised release by
committing a crime because the Government failed to prove he
intended to distribute the crack cocaine recovered from him. We
affirm.
In reviewing a sentence imposed upon revocation of
supervised release, this court “takes a more ‘deferential
appellate posture concerning issues of fact and the exercise of
discretion’ than reasonableness review for [G]uidelines
sentences.” United States v. Moulden, 478 F.3d 652, 656
(4th Cir. 2007) (quoting United States v. Crudup, 461 F.3d 433,
439 (4th Cir. 2006)). Because Kelly did not argue in the
district court that the Government failed to prove intent to
distribute, the Government contends that this issue should be
reviewed for plain error. The district court’s conclusion that
Kelly possessed cocaine with intent to distribute is a factual
finding reviewed for clear error. See United States v. Benton,
627 F.3d 1051, 1054 (8th Cir. 2010).
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To revoke supervised release, a district court need
only find a violation of a condition of supervised release by a
preponderance of the evidence. 18 U.S.C. § 3583(e)(3) (2006).
This burden “simply requires the trier of fact to believe that
the existence of a fact is more probable than its nonexistence.”
United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010)
(internal quotation marks omitted). A defendant challenging the
sufficiency of the evidence faces a heavy burden. United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). In
determining whether the evidence in the record is sufficient, we
view the evidence in the light most favorable to the government.
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc).
We conclude that the district court did not clearly
err in determining that Kelly intended to distribute the crack
cocaine at issue. In response to complaints of drug activity,
police conducted surveillance of an apartment. Police received
tips that a heavyset male was selling drugs. They observed
approximately fifteen transactions in forty-five minutes at the
residence. They watched as a heavyset black male in a red hat
and red shirt exited the apartment and left the area in a
Chevrolet Impala. Police saw that individuals continued to
knock on the apartment door, but no one answered. Police
followed the Impala and witnessed the driver drop a baggie,
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later determined to contain 3.5 grams of crack, from the window.
A heavyset black male wearing a red hat and red shirt was
driving the Impala. The man was Kelly. The offense for which
Kelly is on supervised release included selling small amounts of
cocaine.
Because this evidence clearly supports the factual
finding at issue, we reject Kelly’s argument on appeal.
Accordingly, we affirm the district court’s order. 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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