US v. Carnell Kelly, No. 10-5104 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5104 UNITED STATES OF AMERICA, Plaintiff Appellee, v. CARNELL DESHAWN KELLY, a/k/a Mookie, Defendant Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:00-cr-00193-TDS-1) Submitted: June 22, 2011 Decided: July 12, 2011 Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Todd A. Smith, LAW FIRM OF TODD A. SMITH, Graham, North Carolina, for Appellant. Ripley Rand, United States Attorney, Michael F. Joseph, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Carnell order revoking twenty-eight Deshawn his Kelly supervised months supervised release. appeals release imprisonment the and and district sentencing court s to months thirty-two him of On appeal, Kelly contends that there was insufficient evidence to support the district court s finding that he violated a condition of his supervised release by committing a crime because the Government failed to prove he intended to distribute the crack cocaine recovered from him. We affirm. In supervised reviewing release, a sentence this court imposed takes upon a revocation more of deferential appellate posture concerning issues of fact and the exercise of discretion sentences. than reasonableness United States v. review Moulden, for 478 [G]uidelines F.3d 652, 656 (4th Cir. 2007) (quoting United States v. Crudup, 461 F.3d 433, 439 (4th Cir. 2006)). Because Kelly did not argue in the district court that the Government failed to prove intent to distribute, the Government contends that this issue should be reviewed for plain error. The district court s conclusion that Kelly possessed cocaine with intent to distribute is a factual finding reviewed for clear error. 627 F.3d 1051, 1054 (8th Cir. 2010). 2 See United States v. Benton, To revoke supervised release, a district court need only find a violation of a condition of supervised release by a preponderance of the evidence. 18 U.S.C. ยง 3583(e)(3) (2006). This burden simply requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence. United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (internal quotation marks omitted). sufficiency of the evidence A defendant challenging the faces a heavy burden. United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). In determining whether the evidence in the record is sufficient, we view the evidence in the light most favorable to the government. United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). We conclude that the district court did not clearly err in determining that Kelly intended to distribute the crack cocaine at issue. In response to complaints of drug activity, police conducted surveillance of an apartment. Police received tips that a heavyset male was selling drugs. They observed approximately fifteen transactions in forty-five minutes at the residence. and red They watched as a heavyset black male in a red hat shirt exited Chevrolet Impala. knock the on followed the the Police apartment Impala and apartment and saw individuals door, that left but no one witnessed the driver 3 the area in continued answered. drop a a to Police baggie, later determined to contain 3.5 grams of crack, from the window. A heavyset black male driving the Impala. wearing a red hat The man was Kelly. and red shirt was The offense for which Kelly is on supervised release included selling small amounts of cocaine. Because finding at this issue, evidence clearly supports the factual reject Kelly s argument on appeal. we Accordingly, we affirm the district court s order. We dispense 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 4
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