United States v. Evans , 161 F. App'x 244 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4171
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIAYON KARDELL EVANS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (CR-04-99)
Submitted: November 30, 2005 Decided: December 30, 2005
Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Simon H. Scott, III, SAMS & SCOTT, P.C., Norfolk, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Sherrie S. Capotosto, Assistant United States Attorneys,
Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Tiayon Kardell Evans was convicted after a bench trial,
of conspiracy to distribute and possess with intent to distribute
heroin and cocaine base, two counts of distribution of cocaine
base, two counts of distribution of heroin, one count of possession
with intent to distribute heroin, one count of possession with
intent to distribute cocaine base, and one count of possession of
a firearm in furtherance of a drug trafficking crime, in violation
of 21 U.S.C. §§ 841 (a)(1), (b)(1)(A)(iii), (b)(1)(B)(iii),
(b)(1)(C) (2000), and 18 U.S.C. § 924 (c)(1)(A) (2000). The
district court sentenced Evans to 240 months’ imprisonment.
On appeal Evans asserts the district court erred by
denying his motion to suppress and denying his motion for judgment
of acquittal based on insufficiency of the evidence. After
thoroughly reviewing the record, we affirm Evans’ conviction and
sentence.*
Evans claims that the search warrant, issued to
investigate theft of power, was a pretense to search the home for
drugs. He also argues that the police officers’ protective sweep,
during which the drugs were discovered, was overly broad. This
court reviews the district court’s factual findings underlying a
*
Evans has not raised a claim under United States v. Booker,
125 S. Ct. 738 (2005), or Blakely v. Washington, 542 U.S. 296(2004). Indeed, he raises no challenge to his sentence. Thus, he
has waived review of the sentence.
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motion to suppress for clear error, and the district court’s legal
determinations de novo. Ornelas v. United States, 517 U.S. 690,
699 (1996); United States v. Photogrammetric Data Servs., Inc., 259
F.3d 229, 237 (4th Cir. 2001). When a suppression motion has been
denied, this court reviews the evidence in the light most favorable
to the government. United States v. Seidman, 156 F.3d 542, 547
(4th Cir. 1998). In reviewing the propriety of issuing a search
warrant, the relevant inquiry is whether, under the totality of the
circumstances, the issuing judge had a substantial basis for
concluding that there was probable cause to issue the warrant.
Illinois v. Gates, 462 U.S. 213, 238 (1983). The facts presented
to the issuing judge need only convince a person of reasonable
caution that contraband or evidence of a crime will be found at the
place to be searched. Texas v. Brown, 460 U.S. 730, 742 (1983).
After reviewing the record, we conclude that there was a
substantial basis to find probable cause to issue the warrant.
The police officers entered the premises pursuant to a
valid search warrant, and during a protective sweep, they
discovered the contraband in plain view. The officers obtained a
second warrant after seeing the contraband. On these facts, the
court properly denied Evans’ motion to suppress.
Evans next claims the district court erred when it denied
his motion for a judgment of acquittal based on insufficiency of
the evidence. This court reviews the district court’s decision to
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deny a motion for judgment of acquittal de novo. United States v.
Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). If the motion was
based on insufficiency of the evidence, the verdict must be
sustained if there is substantial evidence, taking the view most
favorable to the government, to support it. Glasser v. United
States, 315 U.S. 60, 80 (1942). “[S]ubstantial evidence is
evidence that a reasonable finder of fact could accept as adequate
and sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt.” United States v. Burgos, 94 F.3d 849,
862 (4th Cir. 1996) (en banc). In evaluating the sufficiency of
the evidence, this court does not review the credibility of the
witnesses and assumes that the jury resolved contradictions in
testimony in favor of the government. United States v. Romer, 148
F.3d 359, 364 (4th Cir. 1998).
After thoroughly reviewing the record, we find the
evidence sufficient to convict Evans. Multiple witnesses testified
that Evans purchased and sold heroin and cocaine base, and also
carried a gun to drug deals. In addition, heroin, cocaine base,
and a handgun were seized at Evans’ apartment. Evans only attacks
the credibility of the witnesses, which we decline to review.
Romer, 148 F.3d at 364.
Accordingly we affirm Evans’ conviction and sentence. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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