US v. Xavier Exum

Filing

UNPUBLISHED PER CURIAM OPINION filed.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. [999898139]. [14-4227]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4227

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
XAVIER STANLEY EXUM,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Deborah K. Chasanow, Senior District
Judge. (8:13-cr-00320-DKC-1)

Submitted:

June 28, 2016

Decided:

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Affirmed by unpublished per curiam opinion.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
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Xavier
sentence

Stanley

for

being

Exum
a

appeals

felon

in

his

conviction

possession

violation of 18 U.S.C. § 922(g)(1) (2012).

of

and

a

78–month

firearm,

in

Exum argues that the

district court erroneously failed to suppress the fruits of a
search of an apartment, his postarrest statements, and cell-site
location

information

(“CSLI”).

Exum

also

argues

that

the

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
firearm

in

connection

with

a

drug

trafficking

offense.

We

affirm.
I.
Exum challenges the denial of his motions to suppress.

We

review factual findings underlying a district court’s denial of
a motion to suppress for clear error and legal conclusions de
novo.
2011).

United States v. Foster, 634 F.3d 243, 246 (4th Cir.
We

also

construe

the

evidence

“in

the

light

most

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

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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.”
445

U.S.

573,

603

(1980).

Although

Payton v. New York,

Exum

argues

that

the

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.
Assuming,

without

deciding,

that

probable

cause

is

required, * courts use a “totality-of-the-circumstances approach”
in making that determination.
230 (1983).

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
Gates,

462

concept”).
defer

to

U.S.

at

232

(describing

probable

cause

as

“fluid

“Under this pragmatic, common sense approach, we
the

expertise

officers at the scene.”

and

experience

of

law

enforcement

United States v. Dickey–Bey, 393 F.3d

449, 453 (4th Cir. 2004).
Here,
apartment

an
and

officer
saw

found

someone

Exum’s

vehicle

peeking

through

*

parked
the

near

the

apartment’s

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.

3

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blinds.

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Moreover, the apartment manager told the officer that

Exum spent his days at the apartment and that, if his car was
there,

Exum

would

be

there.

Based

on

this

information,

we

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
access

the

firearms

from

their

positions,

and

because

the

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.

See United

States v. Green, 599 F.3d 360, 376 (4th Cir. 2010) (discussing
doctrine

and

holding

that

officer

seeking

to

execute

arrest

warrant could seize cash from under bed where cash was visible
without

moving

court’s

denial

bed).
of

the

Accordingly,
motion

to

we

affirm

suppress

the

the
fruits

district
of

the

apartment search.
Next,

Exum

challenges

the

district

suppress all of his postarrest statements.

court’s

failure

to

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

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made as a result of interrogation must be suppressed.

See Rhode

Island

(defining

v.

Innis,

446

U.S.

291,

300-01

(1980)

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
question

cannot

constitute

an

interrogation

under

Miranda.”).

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.

Accordingly,

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.

Because

Exum did not assert this argument below, our review is for plain
error.

United States v. Fuertes, 805 F.3d 485, 497 (4th Cir.

2015),

cert.

standard);

see

denied,

136

Henderson

1126-27 (2013) (same).

v.

S.

Ct.

United

1220
States,

(2016)

(providing

133

Ct.

S.

1121,

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.

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II.
Exum argues that the district court erred by admitting the
testimony of an expert witness who, Exum believes, had not been
timely

disclosed

pursuant

to

Fed.

R.

Crim.

P.

16(a)(1)(G).

Because “Rule 16 is silent as to the timing of expert witness
disclosures”

and

“there

is

no

pre-trial

discovery

order

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
[]timely.”

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
trial.

Although Exum argues that the Government’s disclosure

did not reveal this witness was an expert witness, the notice
belies his claim.
did

not

abuse

Accordingly, we hold that the district court
its

discretion

in

allowing

this

expert’s

testimony.
III.
Turning

to

Exum’s

challenge

to

the

sufficiency

of

the

evidence, we review de novo the district court’s denial of a

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Rule 29 motion.
Cir. 2013).
substantial

United States v. Royal, 731 F.3d 333, 337 (4th

We will sustain the jury’s verdict “if there is
evidence,

taking

Government, to support it.”
60,

80

(1942).

reasonable

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the

of

most

favorable

to

the

Glasser v. United States, 315 U.S.

“Substantial

finder

view

fact

evidence

could

is

accept

evidence
as

that

adequate

a

and

sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.”
(4th

Cir.

2014)

United States v. White, 771 F.3d 225, 230

(internal

quotation

marks

omitted),

cert.

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
interstate

commerce,

he

argues

that

there

evidence that he possessed those firearms.

is

insufficient

See Royal, 731 F.3d

at 337 (outlining elements of § 922(g) offense); see also United
States

v.

(discussing

Al

Sabahi,

constructive

719

F.3d

305,

possession).

311

(4th

Here,

the

Cir.

2013)

Government

presented ample evidence that Exum was living at the apartment
where

the

firearms

were

found.

These

firearms,

which

were

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.

7

United States v. Shorter, 328

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167,

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172

(4th

Cir.

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2003).

Accordingly,

we

affirm

the

denial of Exum’s Rule 29 motion.
IV.
With regard to his sentence, Exum asserts that the district
court

erred

Sentencing

by

applying

Guidelines

a

sentence

Manual

§

enhancement

2K2.1(b)(6)(B)

under
(2013),

possessing firearms in connection with another felony.

U.S.
for

Here, it

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
firearms

in

connection

with

his

drug

activity.

See

United

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).
V.
We affirm the judgment of the district court.
Exum’s motion to file a pro se brief.

8

We deny

See United States v.

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Penniegraft, 641 F.3d 566, 569 n.1 (4th Cir. 2011).

We dispense

with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

this

court

and

argument would not aid the decisional process.
AFFIRMED

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