United States v. Acklin ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4041
WILLARD LEE ACKLIN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Malcolm J. Howard, District Judge.
(CR-02-22)
Submitted: June 23, 2003
Decided: August 1, 2003
Before LUTTIG, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
William G. Duke, BLOUNT & DUKE, Greenville, North Carolina,
for Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Christine Witcover Dean,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
2 UNITED STATES v. ACKLIN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Following a jury trial, Willard Lee Acklin was convicted of posses-
sion of firearms by a convicted felon and possession of ammunition
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000); 18
U.S.C.A. § 924(e)(1) (West Supp. 2003). The district court imposed
concurrent sentences of 262 months. Acklin appeals from his convic-
tion and sentence. We affirm.
Acklin first argues that the district court erred in allowing the Gov-
ernment to introduce into evidence a recorded telephone conversation
to which Acklin was a party. The district court found that Acklin con-
sented to the recording of his phone calls, and therefore the intercep-
tion of this conversation was not in violation of the Omnibus Crime
Control and Safe Streets Act of 1968, 18 U.S.C.A. §§ 2510-22 (West
2000 & Supp. 2003) (Title III). See 18 U.S.C. § 2511(2)(c) (providing
that interception of communication is not unlawful where "one of the
parties to the communication has given prior consent to such intercep-
tion").
Based on the statement in the inmate handbook that Acklin
received upon entering the Pitt County Detention Facility and Ack-
lin’s signature on an Inmate Medical Screening Report, which pro-
vided that, as a condition to using the inmate phone system, the
inmate consents to the recording and/or monitoring of his calls, we
find no clear error by the district court in finding that Acklin con-
sented. See United States v. Hammond, 286 F.3d 189, 192-94 (4th
Cir.), cert. denied, 123 S. Ct. 215 (2002) (applying consent exception
to telephone calls from prisons).
Acklin next argues that the trial court erred in denying his motion
for judgment of acquittal because the evidence was insufficient to
show that he "possessed" either the firearms or the ammunition. Tak-
UNITED STATES v. ACKLIN 3
ing the evidence in the light most favorable to the government,
Glasser v. United States, 315 U.S. 60, 80 (1942), we find that the evi-
dence was sufficient to support a verdict and that the district court did
not err in denying the motion for judgment of acquittal. Two firearms
and ammunition for these and other weapons were discovered during
a search of a locked bedroom in the trailer at Lot 8 in the Cool Acres
Mobile Home Park on January 25, 2002. Acklin had a key to this bed-
room, admitted that he maintained possessions in that room, and had
personal papers in the room. Although Acklin asserted that he was not
living there at the time of the search, evidence was presented that
placed Acklin at the residence on January 7, 2002, and also on Janu-
ary 13, 2002. Additionally, Acklin referred to the Cool Acres property
as his home, and he admitted to possession of the firearms in a phone
call he made to the Sheriff’s Office to inquire about the seizure of the
guns.
Also, evidence was presented that Acklin convinced a former and
a current girlfriend to provide false exculpatory statements for him to
corroborate false statements he made to investigators. We find that
the evidence of Acklin’s dominion and control over access to the
locked room in which the firearms and ammunition were found, and
his provision and procurement of false exculpatory statements
amounted to sufficient evidence that Acklin "‘exercised, or had the
power to exercise, dominion and control over the [firearms and
ammunition].’" United States v. Gallimore, 247 F.3d 134, 137 (4th
Cir. 2001) (quoting United States v. Jackson, 124 F.3d 607, 610 (4th
Cir. 1997)); see United States v. McDougald, 650 F.2d 532, 533 (4th
Cir. 1981) (allowing consideration of false exculpatory statement as
evidence of consciousness of guilt). Accordingly, we agree with the
district court’s ruling that, based on this evidence, a rational trier of
fact could find beyond a reasonable doubt that Acklin possessed the
firearms and the ammunition found in the locked bedroom. See
United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996).
Next, Acklin contends that application of the armed career criminal
sentencing enhancement violates the rule announced in Apprendi v.
New Jersey, 530 U.S. 466 (2000), because the predicate felonies were
not alleged in the indictment and found by the jury beyond a reason-
able doubt. We have previously rejected a similar argument and con-
clude that Acklin’s assertion of error is without merit. See United
4 UNITED STATES v. ACKLIN
States v. Sterling, 283 F.3d 216, 219-20 (4th Cir.), cert. denied, 536
U.S. 931 (2002).
The next issue that Acklin asserts is that the district court plainly
erred in imposing a four-level enhancement based on its finding that
Acklin possessed the firearms and ammunition in relation to drug traf-
ficking activities. Because he failed to raise this objection at sentenc-
ing, our review is for plain error. See United States v. Olano, 507 U.S.
725, 732 (1993). As Acklin acknowledged in his brief, his sentencing
as an armed career criminal—with an offense level higher than his
adjusted offense level of 32—renders moot his challenge to the four-
level enhancement for possession of firearms in connection with drug
trafficking. Because application of this enhancement does not affect
Acklin’s substantial rights, we find that, even if we assume that the
enhancement was erroneous, it cannot constitute plain error which
this court would exercise its discretion to correct. See id.Acklin’s assertion that the enhancement results in impermissible
double counting, and his reliance on United States v. Vincent, 20 F.3d
229 (6th Cir. 1994), is erroneous. Vincent was convicted of a different
offense and was sentenced pursuant to a different guideline provision.
The provision under which Acklin was sentenced, U.S. Sentencing
Guidelines Manual § 2K2.1(b)(5) (2001), expressly requires an
enhancement if the firearms or ammunition were "used or possessed
[ ] in connection with another felony offense." Id. Also, because at
sentencing, Acklin withdrew his objection to the sufficiency of the
evidence supporting the enhancement, Acklin has waived any claim
of error on this issue. See United States v. David, 83 F.3d 638, 641
n.5 (4th Cir. 1996).
Lastly, Acklin contends that the district court erred in sentencing
him as an armed career criminal. He asserts that the district court’s
determination of his offense level and criminal history category was
plainly erroneous because there was insufficient evidence that the
firearms and ammunition were possessed in connection with drug
trafficking activities. Because Acklin failed to raise this objection at
sentencing, this court’s review is for plain error. See Olano, 507 U.S.
at 732.
The probation officer recommended that Acklin’s offense level and
criminal history be determined based on the finding that the firearms
UNITED STATES v. ACKLIN 5
and ammunition were possessed in connection with drug trafficking
activities. Acklin did not object to this recommendation, and the dis-
trict court adopted it. Absent "an affirmative showing the information
[in the presentence report] is inaccurate, the court is ‘free to adopt the
findings [ ] without more specific inquiry or explanation.’" United
States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990) (quoting United
States v. Mueller, 902 F.2d 336, 346 (5th Cir. 1990)). Because Acklin
did not attempt to show that the finding that the guns and ammunition
were possessed in connection with drug trafficking activities was
inaccurate, as was his burden, Terry, 916 F.2d at 162, the district
court did not commit error, much less plain error, in adopting the pro-
bation officer’s recommendation in this regard. See Olano, 507 U.S.
at 732.
In conclusion, we affirm Acklin’s conviction 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