United States v. Roby ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4099
KENYATA AUDREEN ROBY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Rebecca B. Smith, District Judge.
(CR-99-46)
Submitted: July 14, 2000
Decided: August 24, 2000
Before MICHAEL and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
David M. Tichanski, Hampton, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Robert E. Bradenham II, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kenyata Audreen Roby appeals from his convictions and sentence
imposed for possession with intent to distribute crack cocaine in vio-
lation of 21 U.S.C.A. § 841(a)(1) (West 1999), and carrying a firearm
in relation to a drug trafficking offense in violation of 18 U.S.C.A.
§ 924(c) (West 2000). He challenges the district court's denial of his
motion to suppress evidence, the sufficiency of the evidence, a jury
instruction, and the obstruction of justice enhancement to his sen-
tence. We affirm.
While conducting surveillance of the home of a suspected drug
dealer, officers learned that the alleged dealer was expecting a deliv-
ery of crack cocaine that evening. The officers later observed two
vehicles leave the residence. They followed the second one, which
was registered to Roby. They observed that a license plate light was
out on that vehicle and radioed a marked unit to conduct a traffic stop
for the equipment violation and to inquire about drugs being sold
from the residence under surveillance.
The deputy stopped Roby's vehicle, and the narcotics officers
approached the vehicle from different sides. When Roby handed the
deputy his license and registration, one of the narcotics officers
observed that Roby was sitting on a pistol. The deputy ordered Roby
out of the vehicle and handcuffed him. A loaded pistol, an extra mag-
azine with seven rounds of ammunition, electronic scales, a cellular
phone, and a pager were seized. Concealed in the driver's seat of the
vehicle were approximately ten grams of crack cocaine and approxi-
mately twenty grams of marijuana. Roby had on his person $734 in
cash. Roby was arrested, charged, and subsequently convicted of pos-
session with intent to distribute crack cocaine and carrying a firearm
in relation to a drug trafficking offense.
Roby first contends that the district court erred in denying his
motion to suppress evidence discovered during the traffic stop, which
Roby contends was invalid. He denies that a bulb was not illuminated
and contends that if a bulb was burned out, this was not an equipment
violation. The district court made a credibility determination that the
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bulb was not illuminated. See United States v. Burgos, 94 F.3d 849,
868 (4th Cir. 1996).
The officers' observation that the license plate bulb was not illumi-
nated gave them probable cause to believe that Roby's vehicle was in
violation of the equipment code. See Whren v. United States, 517 U.S.
806, 810 (1996); United States v. Hassan El, 5 F.3d 726, 730-31 (4th
Cir. 1993). Roby's claim that the stop was pretextual is irrelevant
because the officer had an objective right to stop a vehicle. See Ohio
v. Robinette, 519 U.S. 33, 38-40 (1996). Because the traffic stop was
justified based on the equipment violation, we need not address
whether the stop would be valid based only on the suspicion of nar-
cotics activity.
Roby challenges the sufficiency of the evidence to support his con-
victions. Roby testified on his own behalf that he did not know the
crack cocaine was in his seat. He presented a number of innocent
explanations for his possession of the pager, cellular phone, firearm,
and scales. He argues that the government did not prove either know-
ing possession or intent to distribute. However, there was testimony
that the drugs were packaged in a manner for distribution and that the
amount of crack cocaine discovered was unlikely for personal use. By
its verdicts, the jury apparently rejected Roby's explanations and
accepted the government witnesses' testimony. The jury's credibility
determinations are not reviewable by this court. See United States v.
Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Construing the evidence
in the light most favorable to the government, see Glasser v. United
States, 315 U.S. 60, 80 (1942), we find that the verdicts are support-
able. See Burgos, 94 F.3d at 868.
Roby's next contention is that the district court's instruction that
the defendant must be convicted of the predicate drug offense in order
to sustain a § 924(c)(1) conviction was plain error. Contrary to the
instruction, a conviction on the predicate offense is not necessary for
a conviction under § 924(c). See United States v. Rodriguez-Moreno,
526 U.S. 275, 280 (1999). However, because a conviction was
returned on the underlying drug trafficking offense, the jury necessar-
ily found that he committed the elements of the predicate offense, and
Roby suffered no prejudice from any error in the instruction. See
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United States v. Olano, 507 U.S. 725, 732 (1993) (providing standard
for plain error review).
Lastly, Roby argues that the sentencing court erred in enhancing
his sentence by two levels for obstruction of justice. The sentencing
court made a factual finding that Roby's denial of knowledge of the
cocaine was incredible. The court found that Roby committed perjury
during his trial testimony. Roby contends that he did not. Because he
failed to show that the court's factual finding was clearly erroneous,
see United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989),
we uphold the two-level enhancement of Roby's sentence for obstruc-
tion of justice. See United States v. Dunnigan , 507 U.S. 87, 96 (1993).
In conclusion, we affirm Roby's convictions and sentence. We dis-
pense 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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