United States v. Mashore , 346 F. App'x 934 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4217
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMIL M. MASHORE,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:08-cr-00334-REP-1)
Submitted: September 9, 2009 Decided: October 9, 2009
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
Angela D. Whitley, LAW OFFICES OF BOONE, BEALE, Richmond,
Virginia, for Appellant. Dana J. Boente, United States
Attorney, Michael A. Jagels, Special Assistant United States
Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a bench trial, Jamil Mashore was convicted
of possessing a firearm as an unlawful drug user, in violation
of 18 U.S.C. § 922(g)(3) (2006) and sentenced to twenty-one
months’ imprisonment. On appeal, Mashore argues that the
district court erred in denying his motion to suppress because
Officer William McAuliffe was not credible on the facts
surrounding Mashore’s traffic stop. Also, Mashore argues that
the district court erred in admitting his uncorroborated
statements to establish that he was an unlawful drug user and in
concluding that the Government had established a pattern of drug
use sufficient to satisfy the definition of unlawful drug user.
Finding no reversible error, we affirm Mashore’s conviction and
sentence, but remand for correction of a clerical error in the
judgment.
On appeal from a district court’s denial of a motion
to suppress, the district court’s factual findings are reviewed
for clear error and the legal determinations are reviewed de
novo. See United States v. Buckner, 473 F.3d 551, 553 (4th Cir.
2007). Under a clear error standard of review, this court will
reverse only if “left with the definite and firm conviction that
a mistake has been committed.” United States v. Stevenson,
396 F.3d 538, 542 (4th Cir. 2005) (quoting Anderson v. Bessemer
City, 470 U.S. 564, 573 (1985)). It is well-settled that this
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court will give particular deference to a district court’s
credibility determinations for “it is the role of the district
court to observe witnesses and weigh their credibility during a
pre-trial motion to suppress.” United States v. Abu Ali,
528 F.3d 210, 232 (4th Cir. 2008) (quoting United States v.
Murray, 65 F.3d 1161, 1169 (4th Cir. 1995)), cert. denied, 129
S. Ct. 1312 (2009). Finally, where, as here, the district court
denies a motion to suppress, this court reviews the evidence in
the light most favorable to the Government. United States v.
Uzenski, 434 F.3d 690, 704 (4th Cir. 2006).
Mashore’s argument that the district court erred in
denying his motion to suppress turns solely on McAuliffe’s
credibility. Although Mashore questions McAuliffe’s testimony
regarding the basis for the traffic stop, the district court
determined that McAuliffe’s testimony regarding Mashore’s
speeding was credible and that McAuliffe, therefore, had
reasonable suspicion to stop Mashore. We have reviewed the
record and conclude that the district court did not clearly err
in crediting McAuliffe’s testimony regarding Mashore’s speeding.
Accordingly, the district court did not err in denying Mashore’s
motion to suppress.
Mashore also argues that the district court erred in
finding him guilty based on his uncorroborated confession
regarding marijuana use. Courts require corroboration to
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prevent confessions to crimes never committed and “convictions
based upon untrue confessions alone.” Warszower v. United
States, 312 U.S. 342, 347 (1941). Evidence corroborative of a
defendant’s admissions need not prove the offense beyond a
reasonable doubt or by a preponderance, as long as there is
substantial independent evidence that the offense has been
committed, and the evidence as a whole proves beyond a
reasonable doubt that the defendant is guilty. Smith v. United
States, 348 U.S. 147, 156 (1954). “Independent evidence
adequately corroborates a confession if it supports the
essential facts admitted sufficiently to justify a jury
inference of their truth[.]” Abu Ali, 528 F.3d at 235 (quoting
Opper v. United States, 348 U.S. 84, 93 (1954)) (internal
quotations omitted). Here, Mashore’s confession of marijuana
use was corroborated by the strong odor of marijuana that
McAuliffe observed while standing outside Mashore’s vehicle.
This evidence was sufficient to justify an inference by the
fact-finder that Mashore’s confession about his marijuana use
was true.
Finally, Mashore argues that the Government failed to
establish beyond a reasonable doubt the requisite pattern,
duration, continuity and recency of drug use to establish that
Mashore qualified as an “unlawful user” of drugs. According to
18 U.S.C. § 922(g)(3), it is unlawful for any person who is an
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unlawful user or addicted to any controlled substance to possess
a firearm. 18 U.S.C. § 922(g)(3). To sustain a conviction
under § 922(g)(3), the Government must establish that Mashore’s
drug use was sufficiently consistent, prolonged, and close in
time to his gun possession to put him on notice that he
qualified as an unlawful user of drugs under the statute.
United States v. Purdy, 264 F.3d 809, 812 (9th Cir. 2001).
Again, we have reviewed the record and determine that the
evidence presented here, viewed in the light most favorable to
the Government, established a pattern and duration sufficient to
place Mashore on notice that he was an unlawful user of drugs
within the meaning of § 922(g)(3).
Accordingly, we affirm Mashore’s conviction and
sentence. However, we remand the case to the district court for
correction of a clerical error in the criminal judgment. See
Fed. R. Crim. P. 36. The judgment erroneously indicates that
Mashore pled guilty to the offense of conviction. This error
does not affect the validity of Mashore’s conviction or
sentence. We dispense with oral argument as the facts and legal
contentions of the parties are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED AND REMANDED
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