US v. Xavier Exum
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for leave to file [999440022-2] Originating case number: 8:13-cr-00320-DKC-1. Copies to all parties and the district court/agency. . [14-4227]
Pg: 1 of 9
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
XAVIER STANLEY EXUM,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Deborah K. Chasanow, Senior District
June 28, 2016
July 27, 2016
Before WILKINSON, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS, Baltimore,
Maryland, for Appellant.
Rod J. Rosenstein, United States
Attorney, Gerald A. A. Collins, Nicholas J. Patterson, Special
Assistant United States Attorneys, Greenbelt, Maryland, for
Unpublished opinions are not binding precedent in this circuit.
Pg: 2 of 9
violation of 18 U.S.C. § 922(g)(1) (2012).
Exum argues that the
district court erroneously failed to suppress the fruits of a
search of an apartment, his postarrest statements, and cell-site
district court erred by allowing a Government expert witness to
testify despite inadequate notice, denying his Fed. R. Crim. P.
29 motion, and applying a sentence enhancement for possessing a
Exum challenges the denial of his motions to suppress.
review factual findings underlying a district court’s denial of
a motion to suppress for clear error and legal conclusions de
United States v. Foster, 634 F.3d 243, 246 (4th Cir.
favorable to the Government, as the party prevailing below.”
United States v. Black, 707 F.3d 531, 534 (4th Cir. 2013).
Exum first argues that the officers improperly entered the
apartment where he was staying when they were seeking to arrest
him for a parole violation.
“[A]n arrest warrant founded on
Pg: 3 of 9
probable cause implicitly carries with it the limited authority
to enter a dwelling in which the suspect lives when there is
reason to believe the suspect is within.”
Payton v. New York,
officers had no reason to believe he was home at the time they
entered the apartment, see United States v. Hill, 649 F.3d 258,
262 (4th Cir. 2011) (providing standard), we disagree.
required, * courts use a “totality-of-the-circumstances approach”
in making that determination.
Illinois v. Gates, 462 U.S. 213,
“[P]robable cause involves probabilities — judgment
calls that are tethered to context and rooted in common sense.”
United States v. White, 549 F.3d 946, 947 (4th Cir. 2008); see
“Under this pragmatic, common sense approach, we
officers at the scene.”
United States v. Dickey–Bey, 393 F.3d
449, 453 (4th Cir. 2004).
As noted by the parties, courts disagree as to whether
Payton’s “reason to believe” standard requires a showing of
probable cause or something less, and we have not resolved the
issue. Hill, 649 F.3d at 262-63.
Pg: 4 of 9
Moreover, the apartment manager told the officer that
Exum spent his days at the apartment and that, if his car was
conclude that the officers reasonably believed that Exum was
home and that their entry into the apartment was proper.
Exum also argues that the officers exceeded the scope of
their search when they moved a door and an air mattress to
confirm the presence of firearms.
Because the officers were
lawfully present in the apartment and had a lawful right to
incriminating character of the firearms was immediately apparent
due to Exum’s prior felony, we conclude that the seizure of the
firearms under the plain-view doctrine was proper.
States v. Green, 599 F.3d 360, 376 (4th Cir. 2010) (discussing
warrant could seize cash from under bed where cash was visible
suppress all of his postarrest statements.
Because Exum was in
custody and had not been informed of his rights pursuant to
Miranda v. Arizona, 384 U.S. 436 (1966), any statements that he
Pg: 5 of 9
made as a result of interrogation must be suppressed.
interrogation); see also United States v. Johnson, 734 F.3d 270,
277 (4th Cir. 2013) (“[W]hen the police have no reason to expect
that a question will lead a suspect to incriminate himself, that
Our review of the record leads us to conclude that there is no
evidence any of Exum’s unsuppressed, inculpatory statements were
foreseeably precipitated by the officers’ remarks.
we affirm the district court’s denial of the motion to suppress
Exum’s postarrest statements.
Finally, Exum argues that the Government’s acquisition of
his CSLI under 18 U.S.C. § 2703(d) (2012) was improper.
Exum did not assert this argument below, our review is for plain
United States v. Fuertes, 805 F.3d 485, 497 (4th Cir.
1126-27 (2013) (same).
While this appeal was pending, we held
that the Government is not required to obtain a warrant before
procuring a defendant’s CSLI.
United States v. Graham, __ F.3d
__, __, Nos. 12-4659, 12-4825, 2016 WL 3068018, at *1, *3-4 (4th
Cir. May 31, 2016).
Accordingly, we affirm the denial of Exum’s
motion to suppress his CSLI.
Pg: 6 of 9
Exum argues that the district court erred by admitting the
testimony of an expert witness who, Exum believes, had not been
Because “Rule 16 is silent as to the timing of expert witness
governing such timing in this case, our review considers whether
the district court abused its discretion in finding that as a
matter of general fairness, [the Government’s] disclosure was
United States v. Holmes, 670 F.3d 586, 598 (4th Cir.
2012) (affirming exclusion of expert witness who was disclosed
“with only three days remaining before trial, two of which fell
during the weekend”).
The Government filed its expert disclosure 11 days before
trial, and defense counsel acknowledged receipt 7 days before
Although Exum argues that the Government’s disclosure
did not reveal this witness was an expert witness, the notice
belies his claim.
Accordingly, we hold that the district court
evidence, we review de novo the district court’s denial of a
Rule 29 motion.
United States v. Royal, 731 F.3d 333, 337 (4th
We will sustain the jury’s verdict “if there is
Government, to support it.”
Pg: 7 of 9
Glasser v. United States, 315 U.S.
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.”
United States v. White, 771 F.3d 225, 230
denied, 135 S. Ct. 1573 (2015).
Although Exum does not dispute that he had previously been
convicted of a felony or that the firearms at issue had moved in
evidence that he possessed those firearms.
See Royal, 731 F.3d
at 337 (outlining elements of § 922(g) offense); see also United
presented ample evidence that Exum was living at the apartment
located under an air mattress and behind a door, were not so
well hidden to prevent the jury from reasonably concluding that
Exum was aware of their presence.
United States v. Shorter, 328
Pg: 8 of 9
denial of Exum’s Rule 29 motion.
With regard to his sentence, Exum asserts that the district
possessing firearms in connection with another felony.
is undisputed that a handgun was stored under an air mattress in
the living room of the apartment, a shotgun was stored behind
the door of a nearby room, and drugs and drug paraphernalia were
stored in the kitchen.
United States v. McKenzie-Gude, 671 F.3d
452, 463-64 (4th Cir. 2011) (discussing proof to satisfy “in
connection with” requirement).
Based on these facts, we hold
that the district court did not clearly err in finding that
these firearms were stored in close enough proximity to the drug
paraphernalia to warrant an inference that Exum possessed these
States v. Manigan, 592 F.3d 621, 629 (4th Cir. 2010); see also
United States v. Cox, 744 F.3d 305, 308 (4th Cir. 2014) (stating
standard of review).
We affirm the judgment of the district court.
Exum’s motion to file a pro se brief.
See United States v.
Pg: 9 of 9
Penniegraft, 641 F.3d 566, 569 n.1 (4th Cir. 2011).
with oral argument because the facts and legal contentions are
argument would not aid the decisional process.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?