United States v. Spaulding

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4148
MARK GERARD SPAULDING,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge;
James E. Kenkel, Magistrate Judge.
(CR-95-467-PJM)
Argued: April 9, 1998
Decided: May 26, 1998
Before MURNAGHAN, WILKINS, and HAMILTON,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Gary Allen Ticknor, Baltimore, Maryland, for Appellant.
John Vincent Geise, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia, United
States Attorney, Greenbelt, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Mark Gerard Spaulding appeals his convictions on two counts of
possession of a firearm by a convicted felon, see 18 U.S.C.A.
§ 922(g)(1) (West Supp. 1998), arguing that the district court erred in
refusing to exclude the firearms as fruits of unconstitutional searches
and in invalidating one of his peremptory challenges. Spaulding also
appeals his 240-month sentence, contending that the district court
erred in concluding that his prior Maryland conviction for reckless
endangerment qualified as a "crime of violence" for the purpose of
determining his base offense level, U.S. Sentencing Guidelines
Manual § 2K2.1(a)(2) (1995), and in imposing a four-level enhance-
ment for possessing the firearms in connection with another felony
offense, see U.S.S.G. § 2K2.1(b)(5). Finding no error, we affirm.
I.
Spaulding first alleges that the district court erred in refusing to
suppress the firearms as the fruits of unconstitutional searches of a
house in which he was staying and in which he was storing some pos-
sessions. We conclude that the factual findings of the district court
that the owner of the house had not given Spaulding the right to
exclude her from any area of her home and that she voluntarily con-
sented to the searches undertaken by the police are not clearly errone-
ous. See United States v. Kitchens, 114 F.3d 29, 31 (4th Cir. 1997)
(stating that factual findings supporting ruling on suppression motion
by the district court are reviewed for clear error). Accordingly, we
determine that the firearms--which were discovered during a search
conducted pursuant to a search warrant obtained on the basis of evi-
dence seized during the consent searches of the house--do not consti-
tute the fruits of unconstitutional searches. See Wong Sun v. United
States, 371 U.S. 471, 484-85 (1963); see also United States v.
Matlock, 415 U.S. 164, 170-71 (1974) (holding that consent may be
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validly given by one with common authority over the premises to be
searched). We therefore affirm the denial of the motion to suppress.
II.
Spaulding next contends that the district court erred in invalidating
one of his peremptory challenges on the basis that it was used in a
racially discriminatory manner. After Spaulding exercised eight of his
ten strikes on white venire members, the district court required him
to proffer the reasons for the strikes. Although the district court found
six of the strikes to be legitimate, it found two were made with the
intent to discriminate, only one of which is at issue here. Because the
reason offered by Spaulding for the strike in question was factually
unsubstantiated and inconsistent with his decision not to strike certain
minority venire members, we cannot say that the district court clearly
erred in finding that the reason offered was a pretext for purposeful
discrimination. See Jones v. Plaster, 57 F.3d 417, 421 (4th Cir. 1995)
(explaining that finding by the district court that strikes were made
discriminatorily is reviewed for clear error).
III.
Spaulding also maintains that the district court erred in determining
that his prior Maryland conviction for reckless endangerment quali-
fied as a "crime of violence" pursuant to U.S.S.G. § 4B1.2(1) for the
purpose of determining his base offense level for sentencing. Because
the Maryland reckless endangerment statute under which Spaulding
was convicted proscribed "conduct that creates a substantial risk of
death or serious physical injury to another," Md. Code Ann. art. 27,
§ 120(a) (1992), reckless endangerment is a"crime of violence" for
purposes of § 4B1.2(1). See United States v. Kirksey, 138 F.3d 120,
124 (4th Cir. 1998) (explaining that an offense is a"crime of vio-
lence" as defined by § 4B1.2(1) when the elements of that offense
involve conduct that presents a serious potential risk of physical
injury to another); U.S.S.G. § 2K2.1, comment. (n.5) (providing that
the term "crime of violence" is defined in U.S.S.G. § 4B1.2).
IV.
Spaulding finally argues that the district court clearly erred in
enhancing his sentence pursuant to U.S.S.G. § 2K2.1(b)(5) for pos-
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sessing a firearm in connection with a drug trafficking offense. The
district court heard testimony that Spaulding was a convicted drug
dealer, that he had continued to sell cocaine base and marijuana and
to carry firearms after his drug conviction, and that he possessed
$20,000 in currency at a time when he was not gainfully employed.
From that testimony, the court concluded by a preponderance of the
evidence that Spaulding was involved in large-scale drug transactions
and was carrying firearms to facilitate those transactions. Because we
do not find this conclusion to be clearly erroneous, we affirm the
imposition of the enhancement. See United States v. Turner, 102 F.3d
1350, 1357 (4th Cir. 1996) (holding that factual findings underlying
the determination of an appropriate sentence will be affirmed unless
clearly erroneous).
V.
In sum, we conclude that the district court did not err in denying
Spaulding's motion to suppress, invalidating one of his peremptory
strikes, finding that his previous conviction for reckless endangerment
constituted a crime of violence, or enhancing his sentence for possess-
ing a firearm in connection with another felony offense. Accordingly,
Spaulding's convictions and sentence are affirmed.
AFFIRMED
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