United States v. Lawing, No. 11-4896

Decided on: December 31, 2012

Lawing was convicted of possession of ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, Lawing argued that the district court committed reversible error by denying his motions to suppress evidence and to dismiss the charges or, in the alternative, that his sentence was procedurally unreasonable. The Fourth Circuit held that the district court did not commit any reversible error and that Lawing’s sentence was reasonable.

A confidential informant told police that Lawing dealt crack cocaine, leading to a police stop that revealed a sawed-off shotgun and ammunition. Lawing moved to suppress the evidence seized during the stop, but the district court denied the motion on the basis that the government established compliance with the Fourth and Fourteenth Amendments. At the close of the government’s case, Lawing moved to dismiss the charges based on insufficiency of the evidence, but the district court denied the motion. The jury ultimately returned a verdict on one of three counts—possession of ammunition by a convicted felon in violation of §§ 922(g)(1) and 924(a)(2). The Presentence Report calculated Lawing’s base offense level to be 26 with a criminal history category of IV, for a Guidelines range of 92 to 105 months imprisonment. Lawing objected to the calculation of his base offense level, but the district court adopted the PSR’s recommendations and sentenced Lawing to 100 months imprisonment.

On appeal, Lawing first argued that the district court erred by denying his motion to suppress and his motions to dismiss the charges. The Fourth Circuit held that the district court did not err in denying Lawing’s motion to suppress because the stop and search of the car driven by Lawing comported with the requirements of the Fourth and Fourteenth Amendments: the police had reasonable suspicion to stop the car, officers’ possession of Lawing’s cell phone did not amount to a search or an unjustified seizure because the sole purpose of possession was to confirm Lawing’s identify, and the police were warranted in believing that contraband or evidence of a crime would be found in the vehicle. As to Lawing’s motions to dismiss the charges, the court held that the district court properly denied the motions “because the government put forth sufficient evidence upon which the jury could conclude that Lawing constructively possessed the ammunition,” which is enough to find a violation of § 932(g)(1). Finally, Lawing argued his sentence was procedurally unreasonable because the district court abused its discretion in finding that Lawing possessed a sawed-off shotgun and, as such, the district court used an incorrect base offense level in calculating his sentence. The district court’s factual determination is reviewed for clear error. In this case, the district court did not commit clear error because the evidence presented at trial established Lawing’s constructive possession of the firearm. The Fourth Circuit concluded that the district court did not abuse its discretion and affirmed the judgment.

Full Opinion

-Michelle Theret

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