US v. Carnell Kelly

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:00-cr-00193-TDS-1 Copies to all parties and the district court/agency. [998629398]. [10-5104]

Appeal: 10-5104

Document: 31

Date Filed: 07/12/2011

Page: 1 of 4

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 07/12/2011

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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,

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Date Filed: 07/12/2011

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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. § 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,

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Date Filed: 07/12/2011

Page: 4 of 4

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