                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 16-4129


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KIRT OMAR GIBBS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, Senior District
Judge. (8:14-cr-00351-DKC-1)


Submitted:   February 17, 2017            Decided:   February 24, 2017


Before NIEMEYER, AGEE, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Columbia,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, Michael T. Packard, Deborah A. Johnston, Assistant
United States Attorneys, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       A jury convicted Kirt Omar Gibbs on several counts related

to his participation in a marijuana distribution conspiracy.                    On

appeal, Gibbs raises challenges to his conviction and sentence.

Finding no error, we affirm the district court’s judgment.

                                       I.

       Gibbs first challenges the district court’s order denying

his pretrial motion to suppress evidence seized after a traffic

stop.     Gibbs contends that the traffic statute relied on by the

officer to justify the stop, Md. Code Ann. Transp. § 21-310(a)

(Lexis    2009),      Maryland’s    following-too-closely        statute     (“the

statute”), is unconstitutionally vague.                 When considering the

denial of a motion to suppress, “[w]e review de novo a district

court’s    rulings      with   respect       to    reasonable    suspicion    and

probable cause.”         United States v. Palmer, 820 F.3d 640, 648

(4th Cir. 2016).

       However, we need not reach the constitutionality of the

statute.       Even if we were to conclude that the statute at issue

is vague, the officer was entitled to rely on the statute unless

it was “clearly unconstitutional.”                Illinois v. Krull, 480 U.S.

340, 349 (1987).         Our sister circuits have rejected arguments

similar to Gibbs’.           See, e.g., United States v. Gregory, 302

F.3d 805, 808-09 (8th Cir. 2002); United States v. Inocencio, 40

F.3d    716,    728   (5th   Cir.   1994).         Moreover,    law   enforcement

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officers had reasonable suspicion that Gibbs was engaged in drug

trafficking; that suspicion also supported the stop.                    Illinois

v.   Wardlow,    528    U.S.    119,   123-24     (2000);    United   States    v.

Massenburg, 654 F.3d 480, 492 (4th Cir. 2011).                  Thus, we affirm

the district court’s denial of the motion to suppress.

                                        II.

      Gibbs next challenges the admission into evidence of text

messages recovered from his cell phone.                  To the extent Gibbs

properly   objected     to     the   admission    of   the   text   messages,   we

review the district court’s “evidentiary rulings for abuse of

discretion.”      United States v. Faulls, 821 F.3d 502, 508 (4th

Cir. 2016).      To the extent Gibbs failed to object, or raises a

new argument with respect to that evidence on appeal, we review

for plain error.        United States v. Moore, 810 F.3d 932, 939 (4th

Cir. 2016).      “[W]e may reverse only on a finding that (1) there

was error, (2) that was plain, (3) that affected substantial

rights, and (4) that seriously affected the fairness, integrity,

or public reputation of judicial proceedings.”                 Id. (alterations

and internal quotation marks omitted).

      Gibbs     first    contends      that      the   Government     failed    to

adequately authenticate the text messages.                   Because Gibbs only

objected on hearsay grounds in the district court, we review

this contention for plain error.              In general, “[t]o satisfy the

requirement of authenticating an item of evidence, the proponent

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must produce evidence sufficient to support a finding that the

item is what the proponent claims it is.”                   Fed. R. Evid. 901(a).

“The burden to authenticate under Rule 901 is not high — only a

prima facie showing is required.”                 United States v. Vidacak, 553

F.3d     344,    349   (4th    Cir.    2009)          (internal    quotation        marks

omitted).       Here, the Government presented a sufficient basis to

conclude that the text messages were authored by Gibbs, and thus

the    district    court      did    not     plainly      err     in    admitting      the

messages.

       Gibbs    next   contends      that       the    district        court   erred    in

admitting incoming text messages from his phone, because they

were hearsay, offered for the truth of the matter asserted.                            See

Fed. R. Evid. 801(c)(2).            However, a statement is not hearsay if

it is offered to show its effect on the listener.                        United States

v. Safari, 849 F.2d 891, 894 (4th Cir. 1988).                          Gibbs’ outgoing

messages were admissible under Fed. R. Evid. 801(d)(2)(A), and

the incoming messages were admissible to show their effect on

Gibbs.     Thus, we conclude the district court did not abuse its

discretion in admitting the messages.

                                           III.

       Finally, Gibbs contends that the district court erred in

calculating his base offense level, because the rule of lenity

required the court to attribute to him only 50 kilograms of

marijuana, as opposed to the nearly 100 kilograms the district

                                            4
court attributed.        Because Gibbs’ argument is a legal one, we

review de novo the district court’s determination of the base

offense level. *     United States v. Horton, 693 F.3d 463, 474 (4th

Cir. 2012).       The rule of lenity only “applie[s] in the context

of the Sentencing Guidelines” if “there is a grievous ambiguity

or uncertainty in the language and structure of a [Guideline].”

United   States     v.   Cutler,    36   F.3d   406,    408     (4th   Cir.    1994)

(internal     quotation     marks     omitted).         Gibbs     points      to   no

ambiguity   in     the   Sentencing      Guidelines,    and     we   conclude      the

district court did not err in relying on the jury’s verdict in

attributing to Gibbs just under 100 kilograms of marijuana.

                                         IV.

     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

this court and argument would not aid the decisional process.



                                                                           AFFIRMED




     * Gibbs also contends that the district court erred in not
applying a 2-level reduction for acceptance of responsibility;
however, the district court did credit Gibbs for acceptance of
responsibility.



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