United States v. Kenneth Frazier

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1638
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Kenneth L. Frazier, *
* [UNPUBLISHED]
Appellant. *
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Submitted: September 20, 2010
Filed: September 29, 2010
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Before BYE, BEAM, and SMITH, Circuit Judges.
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PER CURIAM.
Kenneth L. Frazier entered a conditional plea of guilty to the offense of being
a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
He reserved the right to appeal the denial of a motion to suppress evidence of firearms
found in a search of his residence during the execution of an arrest warrant. Frazier
filed this appeal after the district court1 sentenced him to a thirty-month term of
imprisonment.
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
A magistrate judge2 conducted an evidentiary hearing on Frazier's motion to
suppress and concluded Frazier gave voluntary verbal consent to a police officer,
during the execution of the arrest warrant, to enter Frazier's home and retrieve two
shotguns from a closet. In doing so, the magistrate judge resolved a factual dispute
between the officer's version of events and Frazier's version of events. The magistrate
judge rejected Frazier's claim that he never gave consent, finding his testimony was
not credible. The district court then adopted the magistrate judge's recommendation
and denied the motion to suppress.
We review the district court's factual findings in support of its denial of the
motion to suppress for clear error, and its legal conclusions de novo. United States
v. Johnson, 601 F.3d 869, 872 (8th Cir. 2010). Frazier contends the district court
erred by finding Frazier gave verbal consent and by discrediting Frazier's testimony.
Simply put, the error Frazier alleges turns upon a credibility finding. Credibility
determinations are "virtually unreviewable on appeal." United States v. Sinclair, 474
F.3d 1148, 1149 (8th Cir. 2010) (quoting United States v. Heath, 58 F.3d 1271, 1275
(8th Cir. 1995)). Having carefully reviewed the record, we find no basis for
concluding the district court clearly erred.
Accordingly, we affirm.
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2
The Honorable John T. Maughmer, United States Magistrate Judge for the
Western District of Missouri.
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