US v. Demetrius McKoy, No. 12-4231 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4231 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DEMETRIUS ANTONIO MCKOY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:09-cr-00051-BO-1) Submitted: November 16, 2012 Decided: November 20, 2012 Before GREGORY, SHEDD, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Demetrius Antonio McKoy appeals the district court s judgment sentencing him to 220 months imprisonment. McKoy was convicted of simple possession of marijuana in violation of 21 U.S.C. § 844(a) (2006), possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1), 924 (2006), and possession with intent to distribute § 841(a)(1) (2006). cocaine in violation of 21 U.S.C. On appeal, McKoy argues that the district court erred when it did not suppress evidence obtained by a warrantless search of McKoy s apartment, the evidence was not sufficient as a matter of law to convict him of possession of a firearm, he was lesser-included that the entitled offense district career offender. court of to a jury simple erred instruction possession when it of on cocaine, the sentenced McKoy and as a We affirm. McKoy first contends that the district court erred by denying his discovered motion in his to suppress apartment. the When evidence of considering contraband the district court s denial of a motion to suppress, we review the district court s legal determinations de determinations for clear error. F.3d 586, 589 (4th Cir. 2010). been denied, we construe favorable to the government. novo and its factual United States v. Kelly, 592 Where a motion to suppress has the Id. 2 evidence in the light most We also note that searches and seizures inside a home without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586 (1980). For a warrantless entry to be reasonable under the Fourth Amendment, circumstances, it must situations be where the result police of officers exigent (1) have probable cause to believe that evidence of illegal activity is present and destroyed (2) or reasonably removed before believe they that could evidence obtain a may be warrant. United States v. Cephas, 254 F.3d 488, 494-95 (4th Cir. 2001); see United States v. Turner, 650 F.2d 526, 528 (4th Cir. 1981) (enumerating additional factors for determining exigency). We review the factual finding of exigent circumstances for clear error. United States v. Mowatt, 513 F.3d 395, 399 (4th Cir. 2008). Upon review of the record, we conclude that the district court did not err in finding probable cause to search, based on the plainly apparent apartment. We finding the that illegal further activity conclude warrantless entry that was occurring the in district justified by the court s exigent circumstances was well-supported by the evidence. McKoy also argues that there was not evidence to convict him of possession of a firearm. sufficient A jury s verdict must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it. Glasser v. United States, 315 U.S. 60, 80 (1942); see 3 United States v. Perkins, 470 F.3d 150, 160 (4th Cir. 2006). The crime of being a felon in possession of a firearm has three elements: (1) the defendant previously had been convicted of a crime punishable by a term of imprisonment exceeding one year; (2) the defendant knowingly possessed, transported, shipped, or received the firearm; and (3) the possession was in or affecting commerce. United States v. Moye, 454 F.3d 390, 395 (4th Cir. 2006) (citing United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en constructive. banc)). Possession Moye, 454 F.3d at 395. may be actual or Our review of the record leads us to conclude that the evidence was sufficient for a rational finder of fact to conclude that McKoy possessed the firearm. McKoy contends that he was entitled to an instruction that would have allowed the jury to find him guilty of the lesser-included offense of simple possession of cocaine. district court lesser-included has no discretion instruction if the to refuse evidence to The give warrants a the instruction and the defendant requests it. United States v. Baker, 985 F.2d 1248, 1259 (4th Cir. 1993). To be entitled to the instruction, the defendant must present some evidence from which a reasonable jury could find that [defendant s] intent was to possess the distribution. cocaine for personal use, rather than for United States v. Wright, 131 F.3d 1111, 1112 4 (4th Cir. 1997). McKoy did not put on any evidence of his own at trial, and we conclude that he did not elicit enough evidence from the Government witnesses, in light of the district court to give the Wright, to require lesser-included offense instruction. Finally, application of McKoy the argues career that offender the district Guidelines court s violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because the fact of the prior convictions relied on to support the sentence enhancement was not pled in the indictment and proved before the jury. Because McKoy was sentenced below the statutory maximums on each count, his argument is without merit. Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 5

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