United States v. Talvin Lawing , 703 F.3d 229 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 11-4896
TALVIN TAQUANE LAWING,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Thomas D. Schroeder, District Judge.
(1:10-cr-00310-TDS-1)
Argued: October 26, 2012
Decided: December 31, 2012
Before AGEE, WYNN, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opin-
ion, in which Judge Wynn and Judge Floyd concurred.
COUNSEL
ARGUED: John Scott Coalter, MCKINNEY PERRY &
COALTER, Greensboro, North Carolina, for Appellant.
Michael Francis Joseph, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee. ON
BRIEF: Ripley Rand, United States Attorney, Terri-Lei
2 UNITED STATES v. LAWING
O’Malley, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.
OPINION
AGEE, Circuit Judge:
A jury convicted Talvin Taquane Lawing ("Lawing") of
one count of possession of ammunition by a convicted felon
in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) for
which Lawing was sentenced to 100 months imprisonment.
Lawing’s conviction and sentence stem from the discovery of
a sawed off shotgun and ammunition in his vehicle following
a police stop initiated by a tip from a confidential informant
("CI"). On appeal, Lawing challenges the denial of his motion
to suppress all evidence found during the stop and search of
his vehicle and alleges multiplicitous counts of the indict-
ment; he claims each error warrants reversal of his conviction.
He also argues, in the alternative, that his sentence was proce-
durally unreasonable. For the following reasons, we affirm the
judgment of the district court.
I.
On May 3, 2010, the CI informed Detective Jerry Alder-
man ("Alderman") of the Special Investigations Unit in the
Rowan County, North Carolina Sheriff’s Office ("RCSO")
that he knew a man selling crack cocaine.1 That afternoon, the
CI met with Alderman and told the detective that he had pre-
viously purchased crack cocaine from an individual the CI
identified as "Drew." The CI described Drew as a black male
with short hair in his late twenties or early thirties. In the pres-
1
Because the jury verdict was adverse to Lawing, we recite the facts
from the suppression hearing and trial in the light most favorable to the
government. United States v. Murphy, 35 F.3d 143, 144 (4th Cir. 1994).
UNITED STATES v. LAWING 3
ence of Detective Alderman and Detective Kevin Lee Myers
("Myers"), the CI telephoned Drew and ordered a quantity of
crack cocaine, which Drew agreed to shortly bring to the CI’s
residence.2 The officers recorded the telephone call between
Drew and the CI.
The CI informed the detectives that Drew would deliver the
crack cocaine to the CI’s residence in about 20 minutes and
that he would be driving a grey four-door Lexus automobile.
The CI also told the detectives that Drew would travel to his
residence by driving along Old Concord Road and turning left
at Old Beatty Ford Road.
Alderman and Myers waited with the CI at his residence for
Drew to arrive and positioned a team of RCSO officers in
marked and unmarked cars along Drew’s expected route of
travel. These officers were provided with Drew’s physical
description, a description of Drew’s vehicle, the predicted
route, and expected arrival time at the CI’s residence.
About twenty minutes later, Deputy Jason Naves
("Naves"), observed a four-door grey Lexus, driven by a
black male matching the CI’s description of Drew, turn left
off Old Concord Road onto Old Beatty Ford Road. Naves fol-
lowed the vehicle and effected a traffic stop of the vehicle
about a half mile from the CI’s residence.3 When Naves ran
the license tag to check the registration of the Lexus, he deter-
mined the registration had expired and that the car was regis-
tered to Lawing, not a person with the given name of Drew.
Naves then approached the Lexus and obtained the drivers’
licenses of the driver, which bore Lawing’s name, and the
passenger, which bore Monica Lowe’s name.
2
Alderman recalled that the CI ordered one-quarter to one-half an ounce
of cocaine for $300; Myers believed that the CI ordered the cocaine for
$150-$300.
3
Naves testified that he stopped the Lexus before it could arrive at the
residence because he was concerned that he would lose sight of the vehicle
due to heavy traffic.
4 UNITED STATES v. LAWING
A few minutes later, Detective Gregory Bacote ("Bacote"),
arrived at the scene and also approached Lawing’s vehicle.
Because the driver’s license of the driver of the Lexus did not
reflect the name of Drew, Bacote determined it was necessary
to determine if Lawing was indeed Drew given that all the
other predictive information from the C.I. had now been veri-
fied by the events leading to the stop of the Lexus. Bacote cal-
led the same telephone number the CI had used to call Drew.
Lawing’s cell phone rang within five seconds of when Bacote
placed the call.4 Soon after, Alderman and Myers arrived at
the scene. Alderman then called the telephone number used
by the CI to call Drew and, once again, Lawing’s cell phone
rang immediately. After Lawing’s phone rang a second time,
officers concluded that Drew was in fact Lawing and
requested a drug sniffing dog. The police officers then frisked
and detained Lawing and began to search his vehicle.
In the course of searching the vehicle, Alderman found a
loaded sawed-off 12-gauge shotgun under the carpet covering
the spare tire in the trunk with one shell in the chamber. Two
additional shotgun shells were found in the vehicle’s glove
box. No narcotics were found in the vehicle; however, Naves
found a small specimen of white powder, in a compartment
near the steering wheel, which field tested positive for
cocaine.
Lawing was then arrested and later charged in a supersed-
ing indictment with possession of a firearm by a convicted
felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)
(Count I); possession of ammunition by a convicted felon,
also in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)
(Count II);5 and possession of an unregistered shotgun modi-
4
There is conflicting testimony as to who had possession of the cell
phone as between Lawing or one of the police officers, when it rang. The
district court assumed the police seized the cell phone. Our analysis
assumes the same.
5
Lawing was charged with possession of the two shotgun shells found
in the glove compartment: a Remington 12-gauge shell and a Federal 12-
gauge shell. In addition, the sawed-off shotgun was loaded with a single
Remington 12-gauge shell.
UNITED STATES v. LAWING 5
fied having an overall length of less than 26 inches, in viola-
tion of 26 U.S.C. §§ 5841, 5861(d), and 5871 (Count III).
Lawing filed a motion to suppress all evidence seized dur-
ing the stop and search of his vehicle under the Fourth and
Fourteenth Amendments.6 The district court denied Lawing’s
motion based on its findings that the government demon-
strated by a preponderance of the evidence that the officers
(1) had a reasonable, articulable suspicion sufficient to stop
Lawing’s car, (2) established that Lawing was the person with
whom the CI arranged the drug deal, and (3) consequently,
had probable cause to search Lawing’s vehicle. The district
court also found that the police did not search Lawing’s cell
phone for any information but only seized it temporarily to
confirm that Lawing was Drew.
During trial, the government called Naves, Myers, and
Alderman, who had also testified at the suppression hearing,
as witnesses. The officers testified about the stop and search
of Lawing’s vehicle, and their testimony echoed that provided
during the suppression hearing. The government also called
Special Agent Darren Soloman to testify about the manufac-
turers of the shotgun and ammunition (to establish an inter-
state nexus to the offense).
Upon the conclusion of the government’s case in chief,
Lawing moved to dismiss all charges under Rule 29 of the
Federal Rules of Criminal Procedure contending the evidence
was insufficient to prove his guilt. The district court denied
the motion, finding that the government’s evidence was suffi-
cient upon which a reasonable jury could convict Lawing.
6
Although Lawing’s motion to suppress was styled as arising out of the
"4th, 5th and 14th Amendments," he did not raise a Fifth Amendment
argument. (J.A. 37.) The district court never considered such an argument,
and Lawing raises none on appeal. Any Fifth Amendment claim is there-
fore long since abandoned.
6 UNITED STATES v. LAWING
Lawing then presented his evidence by calling passenger
Monica Lowe, who testified that two other people had
recently driven the Lexus before the day of Lawing’s arrest
and that she had never seen Lawing possess a firearm or
ammunition. Lawing again made a Rule 29 motion to dismiss
all charges, which the district court also denied, and the case
went to the jury on all three counts. The jury returned a ver-
dict finding Lawing guilty of Count II (possession of ammu-
nition by a convicted felon), but acquitted him of Counts I and
III.
The Presentence Investigation Report ("PSR") determined
that because Lawing’s offense involved a firearm described in
26 U.S.C. § 5845(A), and because Lawing committed the
offense subsequent to two felony convictions for a crime of
violence, his base offense level, for sentencing guidelines pur-
poses was 26. United States Sentencing Guidelines Manual
("USSG") § 2K2.1(a)(1). The PSR gave no enhancements or
adjustments to the base offense level which, when combined
with a criminal history category of IV, resulted in an advisory
Guidelines range of 92 to 105 months imprisonment.
At sentencing, Lawing objected to the PSR’s calculation of
his base offense level as 26 and argued instead that his base
offense level should be 24. The district court found by a pre-
ponderance of the evidence that Lawing’s conduct involved a
firearm as described in 26 U.S.C. § 5845(a), and thus adopted
the base offense level of 26 as recommended in the PSR. The
district court then adopted the PSR without change, including
the 92 to 105 months’ imprisonment Guidelines range. The
court imposed a within-Guidelines sentence of 100 months
imprisonment.
Lawing noted a timely appeal, and this court has jurisdic-
tion pursuant to 28 U.S.C. § 1291.
UNITED STATES v. LAWING 7
II.
On appeal, Lawing raises four issues: (1) the district court
committed reversible error by denying his motion to suppress
all evidence seized during the search of his car; (2) the district
court erred in denying his Rule 29 motions; (3) the district
court plainly erred by allowing the government to proceed at
trial on two counts under 18 U.S.C. § 922(g)7; and (4) the dis-
trict court abused its discretion at sentencing in finding by a
preponderance of the evidence that his offense involved the
possession of a sawed-off shotgun as described by 26 U.S.C.
§ 5845(a).
7
We need only address this issue briefly. Multiplicity is "the charging
of a single offense in several counts." United States v. Burns, 990 F.2d
1426, 1438 (4th Cir. 1993) (quoting 1 Charles A. Wright, Federal Prac-
tice and Procedure § 142, at 469 (2d. ed. 1982)). Pursuant to Rule
12(b)(3)(B), a defendant must raise a challenge to a defect in the indict-
ment, i.e., multiplicity, before trial. And pursuant to Rule 12(e), a party
that fails to lodge such an objection prior to trial waives his multiplicity
defense. Lawing did not raise the multiplicitous issue before, during, or
after trial. He raises the issue for the first time on appeal.
It is an open question in the Fourth Circuit whether we review an
unpreserved challenge to a multiplicitous indictment for plain error or
whether it is altogether waived. See United States v. Buczkowski, 458 F.
App’x 311, 317 n.* (4th Cir. 2011) (per curiam) (unpublished) (citing
United States v. Williams, 89 F.3d 165, 167 n.1 (4th Cir. 1996) ("granting
relief from Rule 12’s waiver provision because the defect in the indict-
ment did not become apparent until trial, when the government’s evidence
established that the counts in the indictment were ‘ineluctably contradic-
tory’")). However, we need not answer this question to resolve the issue
in this case. Even if we consider Lawing’s multiplicity issue under plain
error review and even if we find the counts multiplicitous, Lawing still
cannot prevail because any error was harmless. This is so because Lawing
was convicted on only one of the two counts. Error only stems from multi-
plicity when a defendant is punished for multiple convictions on the same
offense: "reversal is warranted if the defendant actually was convicted on
multiplicitous counts and subjected to multiple punishments." Burns, 990
F.2d at 1438 (emphasis added). Thus, Lawing’s multiplicity claim lacks
merit, and we do not discuss it further.
8 UNITED STATES v. LAWING
A.
An appellate court reviews a district court’s factual findings
in a motion to suppress for clear error and its legal findings
de novo. United States v. Day, 591 F.3d 679, 682 (4th Cir.
2010). When the district court denies a motion to suppress,
the appellate court views the facts in the light most favorable
to the government. United States v. Matthews, 591 F.3d 230,
234 (4th Cir. 2009).
Lawing first argues the district court committed reversible
error by denying his motion to suppress all evidence seized
during the search of his car including the ammunition that
formed the basis for the sole count of conviction under Count
II. We conclude the district court did not err in denying the
motion to suppress because the government demonstrated by
a preponderance of the evidence that police (1) had a reason-
able, articulable suspicion sufficient to stop Lawing’s car; (2)
established that Lawing was Drew, the person with whom the
CI arranged the drug deal; and (3) had probable cause to
search Lawing’s vehicle.
i. Stop of Lawing’s Vehicle
Law enforcement "can stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion
supported by articulable facts that criminal activity ‘may be
afoot,’ even if the officer lacks probable cause." United States
v. Christmas, 222 F.3d 141, 143 (4th Cir. 2000) (quoting
United States v. Sololow, 490 U.S. 1, 7 (1989)). Reasonable
suspicion is "simply a particularized and objective basis for
suspecting the person stopped of criminal activity." Ornelas
v. United States, 517 U.S. 690, 696 (1996) (internal quotation
marks omitted). It "is a less demanding standard than proba-
ble cause and requires a showing considerably less than pre-
ponderance of the evidence [even though] [t]he Fourth
Amendment [still] requires at least a minimal level of objec-
UNITED STATES v. LAWING 9
tive justification for making the stop." Illinois v. Wardlow,
528 U.S. 119, 123 (2000).
Here, the police had reasonable suspicion, supported by
articulable facts, to believe that criminal activity was afoot
when it conducted the stop of Lawing’s vehicle. The CI had
relayed information to the police in a face-to-face setting
thereby affording them the clear ability to judge his credibility
and corroborate the information he provided. See United
States v. Perkins 363 F.3d 317, 323 (4th Cir. 2004) (stating
that law enforcement in a face-to-face encounter with an
informant, can "judge the credibility of the tipster firsthand
and thus confirm whether the tip is sufficiently reliable to sup-
port reasonable suspicion"). Informants who report tips face-
to-face are "more trustworthy and reliable than [an] anony-
mous tip" because law enforcement can hold the informant
accountable for false statements. Christmas, 222 F.3d at 144.
Moreover, informants who make statements adverse to their
own penal interests may bolster their credibility. See United
States v. Harris, 403 U.S. 573, 583 (1971) (stating
"[a]dmissions of crime . . . carry their own indicia of credibil-
ity.").
The totality of the circumstances in the case at bar afforded
the police reasonable suspicion to stop Lawing’s car. Police
had a face-to-face encounter with the informant, who pro-
vided substantial and verifiable details that established the
necessary indicia of reliability: Lawing drove the car that the
CI said he would drive; Lawing took the route that the CI said
he would take; Lawing appeared at the time the CI said he
would arrive, in a place close to the intended delivery address.
This course of events allowed law enforcement to corrobo-
rate the CI’s account of the time and circumstances of the
intended cocaine delivery. By exposing himself to potential
criminal liability in telling the police he had previously pur-
chased crack cocaine from Drew, the CI further enhanced his
credibility.
10 UNITED STATES v. LAWING
Despite significant factual distinctions between what
occurred in this case and the facts in Florida v. J.L., 529 U.S.
266 (2000), Lawing cites J.L. as support for his argument that
the police lacked reasonable suspicion to stop his vehicle.
However, the facts in J.L. stand in such contrast to those in
the case at bar that J.L. actually supports the holding of the
district court and the position of the government in this
appeal.
In J.L., an anonymous informant in an unknown location
provided police the present location of a person alleged to
possess a firearm. The police carried out a Terry8 stop of J.L.,
recovered a firearm, and J.L. moved to suppress. Id. at 268-
69. The Supreme Court agreed that the motion to suppress
was properly granted. The Court held that the police needed
more than just "an anonymous tip lacking indicia of reliabil-
ity" to stop and detain J.L. Id. at 274. Because the police
knew neither the identity nor the location of the informant,
police could not assess the informant’s credibility nor hold the
informant responsible for fabricated information. As the Court
explained, "[a]ll the police had to go on . . . was the bare
report of an unknown, unaccountable informant who neither
explained how he knew about the gun nor supplied any basis
for believing he had inside information about J.L." Id. at 271.
The anonymous tip in J.L, without more, was insufficient as
a matter of law because "reasonable suspicion . . . requires
that a tip be reliable in its assertion of illegality, not just in its
tendency to identify a determinate person." Id. at 272.
The facts of the case at bar, however, are materially differ-
ent from those in J.L. Here, police had ample indicia that the
CI’s tip was credible. Unlike in J.L., the CI here was known
to police. And unlike in J.L., the CI ordered cocaine base
from the defendant in the presence of the officers, thus pro-
viding the police with a credible assertion that Lawing was
engaged in illegal activity. Furthermore, the CI’s tip here con-
8
Terry v. Ohio, 392 U.S. 1 (1968).
UNITED STATES v. LAWING 11
tained "predictive information" that the Supreme Court found
lacking in J.L. Cf. id. at 271. In sum, the CI’s tip in this case
had a "tendency to identify a determinate person," i.e., Law-
ing, and was "reliable in its assertion of illegality." Id.
Accordingly, we reject Lawing’s contention that J.L. requires
reversal of the district court, and readily conclude that the
stop of Lawing’s vehicle was appropriate.
ii. Seizure of Lawing’s Cell Phone
Lawing also contends his cell phone was illegally seized
without probable cause. Accordingly, he argues any evidence
discovered subsequent to the seizure should have been sup-
pressed.
After stopping the Lexus Lawing was driving, Deputy
Naves examined his driver’s license, which did not reflect the
name of the driver as Drew. In view of the other information
from the CI on the make and color of the car, its precise route
and timing, the physical description of the driver, all of which
the police had now verified, they undertook to determine
whether Lawing was indeed Drew. To do so, officers simply
called the telephone number that the CI had earlier used to
place the crack cocaine order with Drew.
The Supreme Court has stated "in appropriate circum-
stances the Fourth Amendment allows a properly limited
‘search’ or ‘seizure’ on facts that do not constitute probable
cause to arrest or to search for contraband or evidence of
crime." United States v. Brignoni-Ponce, 422 U.S. 873, 881
(1975). A court determines the lawfulness of such a limited
seizure by balancing the right of the individual to be free of
unreasonable searches and seizures with the opposing inter-
ests of law enforcement. United States v. Place, 462 U.S. 696,
703 (1983). When law enforcement has substantial interests in
carrying out a search or seizure, it may carry out minimally
intrusive seizures based on reasonable suspicion. Id. at 703-
04.
12 UNITED STATES v. LAWING
At the outset, we note that Lawing, in his brief, character-
izes the officers’ actions as a "search" of his cell phone. The
district court, however, found the "[o]fficers did not search
Lawing’s cell phone for any information." (J.A. 149). We
agree with the district court’s assessment, as nothing in the
record supports Lawing’s claim that his cell phone was the
subject of a search. The police did not attempt to retrieve any
information from within the phone. Instead, the officers’ pos-
session of Lawing’s cell phone was limited to quickly deter-
mining whether Lawing’s phone would ring when Drew’s
number was dialed. Detective Bacote did not seize Lawing’s
cell phone to gain information from within the phone and pos-
sessed it for no other purpose than confirming Lawing’s iden-
tity as Drew.
This limited seizure of the cell phone was justified.
Although Lawing provided a driver’s license that did not bear
the name Drew, the totality of the circumstances afforded the
police officers reasonable suspicion to take minimal steps to
determine whether Lawing was Drew.
This seizure was minimally intrusive, and the "strong coun-
tervailing governmental interests," Place, 462 U.S. at 706, of
preventing the trafficking and distribution of cocaine9 out-
weighed Lawing’s possessory interest in his cell phone during
the brief duration of the stop. Law enforcement’s momentary
seizure of Lawing’s phone was permissible in the limited and
specific context in which it occurred and did not violate the
Fourth Amendment.10
9
The government has a significant interest in preventing the trafficking
and distribution of illegal drugs. United States v. Mendenhall, 446 U.S.
544, 561 (1980) (Powell, J., concurring in part and concurring in the judg-
ment).
10
In the alternative, as a factual matter, the district court found "on this
record the officer’s possession of Lawing’s cell phone was irrelevant to
the determination of probable cause, because every indication is that the
officers would have heard it ring as well on the center console of Lawing’s
UNITED STATES v. LAWING 13
iii. Search of Lawing’s Vehicle
Lawing also contends police lacked the requisite probable
cause to search his vehicle. Police typically must obtain a
warrant to carry out a search, but an exception to the warrant
requirement has long been recognized where probable cause
is established to believe that a vehicle contains contraband or
evidence of a crime. See Carroll v. United States, 267 U.S.
132, 153 (1925) (holding "contraband goods concealed and
illegally transported in an automobile or other vehicle may be
searched for without a warrant").
Probable cause is "not readily, or even usefully, reduced to
a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232
(1983). It is determined by examining facts "from the stand-
point of an objectively reasonable police officer." Ornelas,
517 U.S. at 696. Probable cause is established in those cases
when "the known facts and circumstances are sufficient to
warrant a man of reasonable prudence in the belief that con-
traband or evidence of a crime will be found." Id.
Lawing argues that there was not a fair probability that con-
traband or evidence of a crime would be found in his vehicle.
Cf. Gates, 462 U.S. at 238. As recounted above, the totality
of the circumstances gave the police reasonable suspicion to
stop the vehicle and seize the cell phone. Indeed, prior to
Lawing’s cell phone ringing, the predictive information pro-
vided by the CI had been almost entirely born out by the facts
as observed by police. All that remained was for the officers
to verify that the individual driving the Lexus was the same
person from whom the CI had offered to purchase cocaine
vehicle where it rested when the vehicle was stopped had it not been
handed over to the officers." (J.A. 149). In light of our holding that the
limited seizure of the cell phone was not a violation of the Fourth Amend-
ment, we need not consider the district court’s alternative holding that
Lawing was, in any event, not prejudiced by the seizure.
14 UNITED STATES v. LAWING
base, thus tipping the scales from reasonable suspicion to
probable cause. When police called the number provided by
the CI and twice observed Lawing’s cell phone ringing, they
verified that Lawing was the target of their investigation, and
established a substantial likelihood that Lawing was traffick-
ing in contraband, that is, they now possessed probable cause.
The facts and circumstances in this case were thus sufficient
to warrant a man of reasonable prudence to believe that con-
traband or evidence of a crime would be found in Lawing’s
vehicle.
Because the stop and search of Lawing’s car and the sei-
zure of Lawing’s cell phone did not violate Lawing’s Fourth
Amendment rights, the district court did not err in denying his
motion to suppress.
B.
Lawing next argues that the district court erred in denying
his Rule 29 motions to dismiss because the government failed
to adduce sufficient evidence of Lawing’s possession of
ammunition as charged in Count II.
This court reviews the district court’s denial of a defen-
dant’s Rule 29 motion de novo. United States v. Alerre, 430
F.3d 681, 693 (4th Cir. 2005). We will uphold "a jury verdict
if there is substantial evidence, viewed in the light most favor-
able to the government, to support it." United States v. Lam,
677 F.3d 190, 198 (4th Cir 2012) (internal quotation marks
and alterations omitted). Evidence is regarded as substantial
when "a reasonable finder of fact could accept [the evidence]
as adequate and sufficient to support a conclusion of a defen-
dant’s guilt beyond a reasonable doubt." United States v. Bur-
gos, 94 F.3d 849, 862 (4th Cir. 1986) (en banc). An appellate
court "can reverse a conviction on insufficiency grounds only
when the prosecution’s failure is clear." United States v.
Moye, 454 F.3d 390, 394 (4th Cir. 2006) (internal quotation
marks omitted).
UNITED STATES v. LAWING 15
Here, the district court properly denied Lawing’s Rule 29
motions because the government put forth sufficient evidence
upon which the jury could conclude that Lawing construc-
tively possessed the ammunition. 18 U.S.C. § 922(g)(1) states
in relevant part "[i]t shall be unlawful for any person . . . who
has been convicted in any court, of a crime punishable by
imprisonment for a term exceeding one year . . . to ship or
transport in interstate or foreign commerce, or possess in or
affecting commerce, any firearm or ammunition." Section
"922(g)(1) does not require proof of actual or exclusive pos-
session; constructive or joint possession is sufficient." United
States v. Gallimore, 247 F.3d 134, 136-37 (4th Cir. 2001).
Constructive possession is established when the government
produces evidence that shows "ownership, dominion, or con-
trol over the contraband itself or the premises or vehicle in
which the contraband is concealed." Blue, 957 F.2d at 107
(quoting United States v. Ferg, 504 F.2d 914, 916-17 (5th Cir.
1974)).
Whether constructive possession is established is a "fact-
specific" inquiry. United States v. Mudd, 685 F.3d 473, 477
(5th Cir. 2012). "[W]e have repeatedly affirmed the right of
juries to consider proximity as part of their analysis of a
defendant’s constructive possession." United States v.
Shrader, 675 F.3d 300, 308 (4th Cir. 2012).
The government introduced evidence that showed Lawing
was both the driver and the owner of the car in which the
ammunition was found. Deputy Naves verified that the vehi-
cle was registered in Lawing’s name. Furthermore, the gov-
ernment introduced evidence that Lawing’s identification
card, depicting his name and picture, was found beneath the
shotgun shells in the glove compartment.11
11
Lowe testified that the identification card belonged to her son, Bren-
dell Lowe instead of Lawing. She also testified that two other people,
including Brendell Lowe, drove the vehicle around the time of Lawing’s
arrest. Detective Myers testified that the identification card bore Lawing’s
name. Based on the jury’s verdict, the jury credited Myers and did not find
Lowe’s testimony credible.
16 UNITED STATES v. LAWING
Lawing argues because he was not the only person to drive
the car, the government must show a greater connection or
nexus between Lawing and the ammunition. The government,
however, has shown the necessary connection by proving that
Lawing was both the owner and driver of the car in which the
ammunition was found and by showing that his identification
card was beneath the ammunition. See United States v. Single-
ton, 441 F.3d 290, 296 (4th Cir. 2006) ("A person has con-
structive possession over contraband when he has ownership,
dominion, or control over the contraband itself or over the
premises or vehicle in which it [is] concealed.") (quoting
United States v. Armstrong, 187 F.3d 392, 396 (4th Cir. 1999)
(emphasis added)). In light of the fact-specific nature of the
constructive possession inquiry, we conclude that these facts
were sufficient evidence from which a jury could conclude
Lawing possessed the ammunition. Accordingly, the district
court did not err in denying the motions to dismiss.
C.
Lawing lastly contends his sentence was procedurally unrea-
sonable,12 contending the district court abused its discretion in
finding by a preponderance of the evidence that he possessed
a sawed-off shotgun as described by 26 U.S.C. § 5845(a). As
a consequence, Lawing argues the district court used the
incorrect base offense level, 26, in calculating his advisory
Guidelines range.
We review a district court’s sentencing decisions for rea-
sonableness under a deferential abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 41 (2007). When review-
ing whether a district court properly calculated the Guidelines
range we "review the district court’s legal conclusions de
novo and its factual findings for clear error." United States v.
12
Lawing only argues that the district court incorrectly calculated his
advisory Guidelines range and does not bring a separate claim that his sen-
tence was substantively unreasonable.
UNITED STATES v. LAWING 17
Layton, 564 F.3d 330, 334 (4th Cir. 2009). A sentence is pro-
cedurally unreasonable if the district court committed a "sig-
nificant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider [18 U.S.C.]
§ 3553(a) factors, selecting a sentence based on clearly erro-
neous facts, or failing to adequately explain the chosen sen-
tence[.]" Gall, 522 U.S. at 51.
"A verdict of acquittal demonstrates only lack of proof
beyond a reasonable doubt; it does not necessarily establish
the defendant’s innocence." United States v. Isom, 886 F.2d
736, 738 (4th Cir. 1989). At sentencing, a district court may
consider conduct of which a defendant has been acquitted if
the conduct has nonetheless been proved by a preponderance
of the evidence. United States v. Watts, 519 U.S. 148, 157
(1997). Accordingly, the mere fact that the jury acquitted
Lawing of firearms charges did not preclude the district court
from considering whether Lawing did in fact possess a fire-
arm.
USSG § 2K2.1(a) sets forth the applicable base offense
levels for firearms offenses. Pursuant to USSG § 2K2.1(a)(1),
a defendant shall receive a base offense level of 26 if the
offense involved, inter alia, a "firearm that is described in 26
U.S.C. § 5845(a) and the defendant has two prior felony con-
victions for a crime of violence or a controlled substance
offense." As relevant here, § 5845(a) includes the following
description: a shotgun "having a barrel or barrels of less than
18 inches in length."
USSG § 52K2.1(a)(2), on the other hand, provides for the
lower base offense level of 24 if the defendant has merely
sustained two felony convictions for crimes of violence or
controlled substance offenses. Lawing does not contest that he
has two predicate offense convictions. Rather, the core of his
contention is that he did not possess the firearm, and therefore
USSG § 2K2.1(a)(2) should apply to make his base offense
18 UNITED STATES v. LAWING
level 24. With a total offense level of 24 and criminal history
category of IV, Lawing argues his advisory Guidelines range
should have been 77 to 96 months rather than 92 to 115
months as calculated in the PSR, and as determined by the
district court.
Although the sawed off shotgun was found under the carpet
in the trunk of his car, Lawing argues the absence of his fin-
gerprints, DNA, hair, fiber, or other physical evidence on the
firearm prohibit a finding that he possessed the weapon.
Therefore, he claims the government failed to prove by a pre-
ponderance of the evidence that a firearm described in 26
U.S.C. § 5845(a) was involved in the offense for which he
was convicted. Accordingly, he argues the lower base offense
level found in USSG § 2K2.1(a)(2) should apply and he is
entitled to be resentenced. We disagree.
The district court was in the best position to determine the
sufficiency of the evidence and the credibility of the witnesses
and determined that "Lawing knowingly possessed [the fire-
arm], at least constructively possessed it, based upon a pre-
ponderance of the evidence that was presented at trial." (J.A.
312-313). We review the district court’s factual determina-
tions under a clear error standard. Layton, 564 F.3d at 334.
Based on the evidence and the witness testimony that Lawing
was the owner and driver of the vehicle in which the firearm
was found, it was not clearly erroneous for the district court
to find by a preponderance of the evidence that Lawing con-
structively possessed the firearm. And contrary to Lawing’s
claim on appeal, direct evidence is not required to establish
possession. Rather, constructive possession may be estab-
lished through direct or circumstantial evidence. United States
v. Nelson, 6 F.3d 1049, 1053 (4th Cir. 1993).
Lastly, we note the police located two types of 12-gauge
shotgun shells during their search of Lawing’s vehicle. Law-
ing’s possession of those shells served as the basis for his
conviction of Count II of the indictment. The district court’s
UNITED STATES v. LAWING 19
finding, therefore, that Lawing constructively possessed the
12-gauge shotgun is consistent with the jury’s verdict finding
Lawing in possession of compatible ammunition. Moreover,
the sawed-off shotgun was loaded with a Remington 12-gauge
shotgun shell—the same make as one of the shells found in
the glove compartment. As discussed above, the mere fact
that the jury failed to convict Lawing of Count I, possession
of the firearm, did not preclude the district court from finding,
for sentencing purposes, that Lawing did in fact possess the
weapon.
In light of our deferential review of the district court’s fac-
tual findings at sentencing, and in view of the evidence
adduced by the government, we hold the district court did not
abuse its discretion in finding by a preponderance of the evi-
dence that the government had shown Lawing possessed the
shotgun found in the trunk of his car. Consequently, the dis-
trict court did not err in determining a base offense level of
26. Lawing’s sentence was not procedurally unreasonable.
III.
For the aforementioned reasons, we affirm the judgment of
the district court.
AFFIRMED