                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 08-5248


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

BRAD EVERETT FORD,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.     Samuel G. Wilson,
District Judge. (5:07-cr-00061-sgw-1)


Submitted:   October 6, 2010                 Decided:   November 30, 2010


Before NIEMEYER, GREGORY, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Charles A. Murray, Bonita Springs, Florida, for Appellant.
Julia C. Dudley, United States Attorney, Jeb T. Terrien,
Assistant United States Attorney, Harrisonburg, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Brad Everett Ford was convicted after a jury trial of

one count of aiding and abetting the possession with the intent

to distribute marijuana, in violation of 18 U.S.C. § 2 (2006)

and 21 U.S.C. § 841(a)(1), (b)(1)(D) (2006) (“count one”), and

one count of aiding and abetting the possession of firearms in

furtherance       of    a    drug    trafficking            crime,     in    violation     of

18 U.S.C. §§ 2, 924(c)(1) (2006) (“count two”).                               The district

court sentenced Ford to 33 months’ imprisonment on count one and

a consecutive sentence of 60 months’ imprisonment on count two,

for a total sentence of 93 months’ imprisonment.                                   On appeal,

Ford asserts that: (1) the district court erred in refusing to

grant his motion to suppress evidence and statements arising

from a September 2007 traffic stop; (2) the district court erred

in    denying     his   Fed.    R.    Crim.       P.   29    motion    for    judgment     of

acquittal because the evidence is insufficient to support his

convictions; (3) the district court erred in denying his motion

for    a    new   trial;      and    (4)    the    93-month        prison     sentence     is

substantively unreasonable.                Finding no error, we affirm.

              As to Ford’s challenge to the district court’s ruling

on    the   suppression        motion,      we     review     de     novo    the     district

court’s legal conclusions and review for clear error its factual

determinations.             United   States       v.   Blake,        571    F.3d    331,   338

(4th Cir. 2009), cert. denied, 130 S. Ct. 1104 (2010).                                Because

                                              2
the district court denied the motion to suppress, we construe

the evidence in the light most favorable to the Government, the

party prevailing below.              United States v. Farrior, 535 F.3d 210,

217   (4th      Cir.   2008).        Ford    challenges             the   district       court’s

denial of his motion to suppress on the ground that Trooper

Miller lacked probable cause to search his vehicle.

             The Fourth Amendment permits a warrantless search of a

vehicle    and    any     containers        or       compartments         found    within       it,

where    probable       cause      exists    to       search    the       vehicle.           United

States     v.     Ross,      456     U.S.    798,        823-24       (1982);          see     also

California v. Acevedo, 500 U.S. 565, 570 (1991).                             This court has

held that the odor of marijuana, without more, emanating from a

properly-stopped          vehicle,     may       provide       the    requisite         probable

cause to support the warrantless search of both the vehicle and

the baggage therein.               See United States v. Scheetz, 293 F.3d

175, 183-84 (4th Cir. 2002) (upholding as valid the search of a

knapsack     in    a   car    based    on    officers’          detection         of    odor     of

marijuana); see also United States v. Humphries, 372 F.3d 653,

659   (4th      Cir.    2004)      (concluding         that     a    police       officer       has

probable cause to arrest for marijuana possession if the officer

“smells the odor of marijuana in circumstances where the officer

can localize its source to a person”).

             Here, Trooper Miller pulled Ford’s vehicle over for

speeding and changing lanes without signaling, and Ford does not

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suggest that Miller acted improperly in doing so.                            After the

vehicle’s passenger rolled down his window, Miller smelled the

odor   of    “burnt     marijuana”       emanating      from     the   vehicle.      He

searched the vehicle and the bags contained within it based on

the marijuana odor.           Under prevailing Supreme Court and Fourth

Circuit case law, that testimony supports the district court's

conclusion that Miller had probable cause to search the inside

of the vehicle, as well as the bags contained within it.

             Ford also challenges the district court’s denial of

the motion to suppress on the ground that Trooper Miller did not

advise him of his rights under Miranda v. Arizona, 384 U.S. 436

(1966), prior to his admission to Miller that he had smoked

marijuana and knew he was going to jail.                        Statements obtained

from     a        defendant      during         custodial       interrogation        are

presumptively        compelled      in   violation      of    the   Fifth   Amendment,

unless      the    Government       shows   that     law      enforcement     officers

adequately        informed    the   defendant      of   his     Miranda     rights   and

obtained a wavier of those rights.                  United States v. Cardwell,

433 F.3d 378, 388-89 (4th Cir. 2005).                        To determine whether a

defendant was in custody for purposes of Miranda, courts are to

determine “first, what were the circumstances surrounding the

interrogation; and second, given those circumstances, would a

reasonable person have felt he or she was not at liberty to

terminate the interrogation and leave.”                       Thompson v. Keohane,

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516 U.S. 99, 112 (1995) (footnote omitted).                         In other words,

“[a]n individual is in custody when, under the totality of the

circumstances, a suspect’s freedom from action is curtailed to a

degree     associated         with    formal     arrest.”         United        States    v.

Colonna, 511 F.3d 431, 435 (4th Cir. 2007) (internal quotation

marks    omitted).             Courts      view        the     inquiry        objectively,

questioning       whether      “a    reasonable    [perso]n       in     the     suspect’s

position     would      have    understood       his    situation        to    be   one   of

custody.”     Id. (internal quotation marks omitted).

             We have reviewed the record and conclude that Ford was

not in custody when he told Miller that he had smoked marijuana

and   knew   he    was    going       to   jail.       Although     Ford       made   these

statements while sitting in Trooper Miller’s police vehicle with

its doors closed and the windows shut, the reason for detaining

him in that fashion--namely, that the heavy highway traffic and

Ford’s fast speech made Ford hard to hear when Miller initially

talked   with     him    on    the    highway’s    shoulder--militated              against

“whatever coercive elements [we]re otherwise normally attendant”

in such a situation.                United States v. Manbeck, 744 F.2d 360,

379   (4th Cir.      1984).          Additionally,       Ford    does     not    point    to

anything in Miller’s demeanor or the way in which he conducted

himself that would suggest that Ford was under arrest or being

detained as if he were under arrest.                         Miller never brandished

any weapon, had physical contact with Ford, threatened him, or

                                             5
told him that he was under arrest or otherwise not free to

leave.     See Manbeck, 744 F.2d at 379 (concluding that defendant

was not in custody, in part, because officers did not handcuff,

threaten, or pressure defendant).                 Further, we reject Ford’s

attempt to liken his case to Florida v. Royer, 460 U.S. 491,

501-02 (1983), where the Supreme Court held that the defendant

was effectively “seized” under the Fourth Amendment where law

enforcement officials requested and examined his airline ticket

and identification, identified themselves as narcotics agents,

told the defendant he was suspected of transporting narcotics,

and   asked      him   to   accompany    them     to   a    police    room,     while

retaining the ticket and identification and without indicating

he was free to depart.           Here, Ford was questioned by only one

officer and, contrary to his assertion, there is no indication

from the record that Trooper Miller retained Ford’s driver’s

license while the two were conversing.                 In view of the totality

of the circumstances, see United States v. Weaver, 282 F.3d 302,

310 (4th Cir. 2002), we conclude that the district court did not

err in denying Ford’s motion to suppress.

            Ford also contends that the district court erred in

denying his Rule 29 motion for judgment of acquittal because the

evidence    is    insufficient   to     support    the     jury’s    verdict.     We

review de novo the district court’s denial of a Rule 29 motion

for judgment of acquittal.         United States v. Reid, 523 F.3d 310,

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317 (4th Cir. 2008).                 A defendant challenging the sufficiency of

the evidence “bears a heavy burden.”                            United States v. Beidler,

110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks

omitted).      This court will uphold the jury’s verdict “if viewing

the evidence in the light most favorable to the [G]overnment, it

is supported by substantial evidence.”                               Reid, 523 F.3d at 317.

“Substantial evidence is evidence that a reasonable finder of

fact   could       accept       as        adequate       and    sufficient          to    support      a

conclusion of a defendant's guilt beyond a reasonable doubt.”

Id.    (internal       quotation            marks       omitted).            In    reviewing         for

substantial evidence, this court considers both circumstantial

and direct evidence and allows the Government all reasonable

inferences         from        the    facts        shown        to    those        sought       to    be

established.           United         States        v.     Harvey,         532    F.3d        326,   333

(4th Cir. 2008).

              Ford    asserts             that   the     evidence          is     insufficient        to

support    his      conviction            for    count     one       because       the    Government

failed to prove that he constructively possessed marijuana found

in his vehicle.            A conviction for possession with the intent to

distribute      may       be    based       on   constructive              possession.           United

States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992).                                          “A person

may    have    constructive               possession           of    contraband          if    he    has

ownership,         dominion,         or     control       over       the    contraband          or   the

premises      or    vehicle          in    which     the       contraband         was    concealed.”

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United States v. Herder, 594 F.3d 352, 358 (4th Cir.), cert.

denied,    130    S.       Ct.    3440    (2010).            “Proof    of    constructive

possession requires proof the defendant had knowledge of the

presence of the contraband, but constructive possession may be

established by either circumstantial or direct evidence.                             Either

way, a fact finder may properly consider the totality of the

circumstances surrounding the defendant’s arrest and his alleged

possession.”          Id.    (internal         citations,        quotation       marks,   and

alteration omitted).

            After      review      of    the       record,    we    conclude      that    the

evidence was sufficient to support Ford’s conviction on count

one.   Ford was the driver and owner of the vehicle and does not

contest    that       he    exercised,     or       had    the     power    to    exercise,

dominion and control over the drugs found therein.                                 Further,

viewed in the light most favorable to the Government, there was

ample evidence from which the jury could infer Ford’s knowledge

of the drugs in the vehicle.                   Ford was nervous and talking at a

high   rate      of    speed       to    the       point   of      being    difficult     to

understand, admitted to Trooper Miller that anything found in

the vehicle was his responsibility, and urged him to place any

charges on him for anything found in the vehicle.                           Additionally,

because the evidence is sufficient to support Ford’s conviction

on count one, we reject his challenge to the sufficiency of the

evidence   supporting            count   two,       a   challenge     premised      on    the

                                               8
argument     that       the     evidence          is    insufficient            to    support       his

conviction on count one, the underlying drug offense.

             With       respect        to     Ford’s         challenge         to    the     district

court’s denial of his motion for a new trial, we review the

district court’s denial of a motion for a new trial, even when

predicated        on     an     alleged       violation            of     Brady      v.     Maryland,

373 U.S. 83 (1963), or Giglio v. United States, 405 U.S. 150

(1972), for abuse of discretion.                         See United States v. Stokes,

261 F.3d 496, 502 (4th Cir. 2001).                            Under this standard, “[we]

may   not    substitute         [our]       judgment         for        that   of     the    district

court; rather, we must determine whether the court’s exercise of

discretion, considering the law and the facts, was arbitrary or

capricious.”            United         States      v.    Mason,          52    F.3d       1286,    1289

(4th Cir. 1995).              In Ford’s view, the Government’s failure to

disclose to the defense the entire criminal complaint prepared

by Trooper Miller after Ford’s arrest contravened Brady.

             To        secure      a    new     trial         on    the        ground       that    the

Government contravened its obligations under Brady, Ford had the

burden      of    showing          that     (1)        the    undisclosed            evidence       was

favorable to him; (2) the evidence was material; and (3) the

prosecution possessed the evidence, yet failed to disclose it.

Stokes,     261    F.3d       at    502.        After        review       of    the       record,   we

conclude that Ford fails to make this showing.                                        The criminal

complaint Miller prepared was filed in state court and was a

                                                   9
court record available to both the Government and Ford, and no

record evidence support’s Ford’s contention that the Government

possessed the entire complaint but failed to disclose it to the

defense.

            Finally, with respect to Ford’s sentence, we review it

under   a   “deferential    abuse-of-discretion       standard.”      Gall   v.

United States, 552 U.S. 38, 41 (2007).                This review entails

appellate consideration of both the procedural and substantive

reasonableness of a sentence.          Id. at 51.      Ford, however, does

not contest the procedural reasonableness of his sentence.

            In    determining   whether     a   sentence    is   substantively

reasonable, this court “tak[es] into account the ‘totality of

the circumstances, including the extent of any variance from the

Guidelines range.’”        United States v. Pauley, 511 F.3d 468, 473

(4th Cir. 2007) (quoting Gall, 552 U.S. at 51).                    This court

accords a sentence within a properly-calculated Guidelines range

an appellate presumption of reasonableness.                 United States v.

Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008).                Such a presumption

is rebutted only by showing “that the sentence is unreasonable

when    measured     against    the   [18   U.S.C.]    § 3553(a)     [(2006)]

factors.”        United States v. Montes-Pineda, 445 F.3d 375, 379

(4th Cir. 2006) (internal quotation marks omitted).                   Further,

“[a] statutorily required sentence . . . is per se reasonable.”

Farrior, 535 F.3d at 224.

                                      10
           Here, the 33-month sentence on count one is within the

applicable      Guidelines     range,   see    U.S.     Sentencing      Guidelines

Manual   (2007),    and    Ford’s   citation     to    data    from    the    United

States   Sentencing       Commission    suggesting       that    a     defendant’s

general risk of recidivism declines with age does not establish

that   Ford’s    33-month      prison   sentence       was    unreasonable     when

measured against the factors listed at § 3553(a).                       Moreover,

Ford’s statutorily-required consecutive sentence on count two is

per se reasonable.          The sentence is substantively reasonable,

and we therefore conclude that the district court did not abuse

its discretion in sentencing Ford.

           Accordingly, we affirm the district court’s judgment.

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




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