                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Xavier      Stanley    Exum    appeals        his    conviction         and    78–month

sentence    for    being    a    felon    in      possession      of    a    firearm,      in

violation of 18 U.S.C. § 922(g)(1) (2012).                    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.      United States v. Foster, 634 F.3d 243, 246 (4th Cir.

2011).      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.”                     Payton v. New York,

445   U.S.      573,    603   (1980).       Although        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.               Illinois v. Gates, 462 U.S. 213,

230 (1983).       “[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    U.S.    at   232   (describing       probable     cause    as   “fluid

concept”).        “Under this pragmatic, common sense approach, we

defer     to    the     expertise    and     experience       of   law     enforcement

officers at the scene.”             United States v. Dickey–Bey, 393 F.3d

449, 453 (4th Cir. 2004).

      Here,      an    officer    found    Exum’s     vehicle      parked    near   the

apartment       and    saw    someone      peeking    through      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.



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blinds.    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       bed).        Accordingly,          we   affirm       the   district

court’s    denial       of   the    motion    to     suppress     the    fruits     of   the

apartment search.

     Next,       Exum    challenges         the    district      court’s       failure    to

suppress all of his postarrest statements.                       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



                                              4
made as a result of interrogation must be suppressed.                       See Rhode

Island     v.    Innis,    446    U.S.       291,     300-01    (1980)      (defining

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.      denied,    136    S.      Ct.    1220     (2016)     (providing

standard);      see   Henderson   v.     United       States,   133   S.    Ct.   1121,

1126-27 (2013) (same).           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.



                                            5
                                         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.         Accordingly, we hold that the district court

did   not    abuse      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



                                          6
Rule 29 motion.          United States v. Royal, 731 F.3d 333, 337 (4th

Cir. 2013).           We will sustain the jury’s verdict “if there is

substantial       evidence,      taking      the   view      most    favorable         to     the

Government, to support it.”                 Glasser v. United States, 315 U.S.

60,    80   (1942).         “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.”          United States v. White, 771 F.3d 225, 230

(4th     Cir.    2014)    (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    is        insufficient

evidence that he possessed those firearms.                      See Royal, 731 F.3d

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

States      v.   Al    Sabahi,        719   F.3d     305,    311     (4th       Cir.     2013)

(discussing       constructive         possession).           Here,       the    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.                  United States v. Shorter, 328




                                             7
F.3d    167,    172       (4th   Cir.   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       by    applying     a   sentence        enhancement     under    U.S.

Sentencing          Guidelines     Manual        §   2K2.1(b)(6)(B)        (2013),    for

possessing firearms in connection with another felony.                         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.                              We deny

Exum’s motion to file a pro se brief.                         See United States v.



                                             8
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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