United States v. Carmelo , 257 F. App'x 699 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4016
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLOS EDWARD CARMELO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:06-cr-00153-F-ALL)
Submitted: December 13, 2007 Decided: December 18, 2007
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Banumathi Rangarajan, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Edward Carmelo appeals his jury conviction and
fifty-one month sentence on one count of unlawful possession of a
firearm and ammunition by a convicted felon in violation of 18
U.S.C. § 922(g)(1) (2000). On appeal, Carmelo claims only that the
district court erred by allowing the Government to present
testimony about a suppressed firearm, thereby making Carmelo choose
between exercising his Sixth Amendment right to confront witnesses
against him and his Fourth Amendment right against unreasonable
searches and seizures. According to Carmelo, had he challenged the
witnesses’ testimony regarding the suppressed firearm’s existence,
he would have opened the door to the firearm’s admission and
vitiated the district court’s suppression order. Finding no error,
we affirm the district court’s judgment.
Because Carmelo asserts this constitutional error for the
first time on appeal, we review for plain error. See United States
v. Walker, 112 F.3d 163, 166 (4th Cir. 1997). To demonstrate plain
error, Carmelo must establish that error occurred, that it was
plain, and that it affected his substantial rights. See United
States v. Hughes, 401 F.3d 540, 547-48 (4th Cir. 2005). Carmelo
has failed to meet this burden.
Because police arrived at Carmelo’s residence in response
to a 911 call and therefore had a legitimate reason for peering
into Carmelo’s vehicle, the district court correctly determined
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that police could testify about initially seeing the firearm in the
vehicle even if the firearm was later suppressed as unlawfully
seized. See Alvarez v. Montgomery County, 147 F.3d 354, 358 (4th
Cir. 1998) (recognizing that an officer’s lawful entry onto a
defendant’s property is not diminished even if the officer later
violates the Fourth Amendment). Moreover, several months after the
weapon was observed in Carmelo’s vehicle, Carmelo admitted to
police that the weapon belonged to him. Because it is undisputed
that this evidence did not emanate from the unlawful seizure by
police, the district court correctly allowed the Government to
present testimony about the firearm. Cf. Segura v. United States,
468 U.S. 796, 804 (1984) (holding that the exclusionary rule
precludes the introduction of evidence obtained as a result of an
illegal search and seizure).
In any event, given the overwhelming evidence presented
by the Government regarding Carmelo’s possession of three other
firearms, we find that even if the district court did err, the
error was harmless. See Hughes, 401 F.3d at 548 (holding that the
error must “actually affect[] the outcome of the proceedings”)
(internal quotation marks omitted). Accordingly, we affirm the
district court’s judgment. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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