United States v. Havely , 106 F. App'x 160 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 04-4040
DAMON A. HAVELY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CR-03-293-PJM)
Submitted: June 28, 2004
Decided: July 27, 2004
Before WIDENER, WILLIAMS, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James Wyda, Federal Public Defender, Kelli C. McTaggart, Assistant
Federal Public Defender, Greenbelt, Maryland, for Appellant.
Thomas M. DiBiagio, United States Attorney, Hollis Raphael Weis-
man, Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
2 UNITED STATES v. HAVELY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Damon A. Havely appeals his convictions and two-year term of
probation for misdemeanor possession of marijuana within a National
Park, in violation of 36 C.F.R. § 2.35(b)(2), and being a minor in pos-
session of alcohol in a National Park, in violation of 36 C.F.R.
§ 2.35(a)(2)(ii), as a result of a traffic stop conducted on January 12,
2003. Havely was convicted in a bench trial before a magistrate
judge. Havely appealed to the district court pursuant to 18 U.S.C.
§ 3402 (2000). The district court affirmed Havely’s convictions and
sentence. Havely appealed to this court pursuant to 28 U.S.C. § 1291(2000), challenging the sufficiency of the evidence to support each
count of conviction.
First, Havely argues that the evidence was insufficient to prove he
possessed the drugs found inside the vent of a car in which he was
the passenger. The verdict "must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to sup-
port 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. Bur-
gos, 94 F.3d 849, 862 (4th Cir. 1996). With this standard in mind, we
find that the evidence was sufficient. When the officer was first at the
vehicle, asking the driver to exit the car, he did not smell anything
unusual, although it was apparent that the heat had been on in the car.
Upon returning shortly thereafter to question Havely, the heat was
blowing very hard and the officer smelled "the strongest smell of mar-
ijuana that I’ve ever smelled in a motor vehicle." Havely was seated
close to the vent where the drugs were found, and the magistrate
judge reasonably concluded that Havely placed the drugs there.
Next, Havely argues that the evidence at trial was insufficient to
prove he was under 21 years of age, an element of the minor in pos-
UNITED STATES v. HAVELY 3
session of alcohol charge. See 36 C.F.R. § 2.35(a)(2)(ii). Because
Havely did not raise this claim at trial, our review is for plain error.
To meet the plain error standard, (1) there must be an error; (2) the
error must be plain, meaning obvious or clear under current law; and
(3) the error must affect substantial rights. United States v. Olano, 507
U.S. 725, 732-34 (1993). Even if these criteria are met, the error will
not be noticed unless it seriously affects the fairness, integrity, or pub-
lic reputation of the proceedings. Id. at 736. When "overwhelming
and essentially uncontroverted" evidence supports the challenged
judicial finding, there is "no basis for concluding that the error seri-
ously affected the fairness, integrity or public reputation of judicial
proceedings." United States v. Cotton, 535 U.S. 625, 633 (2002)
(alteration & internal quotation marks omitted). An officer testified
that Havely stated his date of birth, which showed he was under 21.
However, "an accused may not be convicted on his own uncorrobo-
rated confession," Smith v. United States, 348 U.S. 147, 152 (1954),
or inculpatory admissions. Opper v. United States, 348 U.S. 84, 91
(1954). The Government did not introduce a birth certificate, driver’s
license, passport, or any other evidence to corroborate Havely’s age.
Upon review of the record, we conclude that the Government failed
to produce "substantial independent evidence which would tend to
establish the trustworthiness of the statement." Opper, 348 U.S. at 93.
The Government’s failure to present evidence on which a reasonable
factfinder could make the required finding of guilt beyond a reason-
able doubt as to an element of the crime satisfies the first three Olano
prongs. See United States v. Cedelle, 89 F.3d 181, 185 (4th Cir. 1996)
(citing United States v. David, 83 F.3d 638, 642-47 (4th Cir. 1996)).
Nevertheless, we decline to notice the error. Havely does not assert
that he actually was over the age of twenty-one at the time of the inci-
dent, and in fact, counsel for Havely admitted before the district court
that his client was under twenty-one at the time of the incident.
Moveover, the Judgment in a Criminal Case lists Havely’s date of
birth as March 2, 1982 — thus making him roughly twenty years and
ten months old at the time of the offense — and Havely has not
sought to correct this aspect of the judgment or challenge it in any
way. Given that "overwhelming and essentially uncontroverted" evi-
dence supports the challenged judicial finding, there is "no basis for
concluding that the error seriously affected the fairness, integrity or
public reputation of judicial proceedings." Cotton, 535 U.S. at 633
4 UNITED STATES v. HAVELY
(alteration & internal quotation marks omitted). Accordingly, we
decline to notice the error and affirm Havely’s conviction for being
a minor in possession of alcohol.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED