                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-5116


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BARRY MUREL,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:10-cr-00013-JFM-1)


Submitted:   October 16, 2012           Decided:   December 28, 2012


Before WILKINSON and    THACKER,   Circuit   Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Michael D. Montemarano, MICHAEL D. MONTEMARANO, PA, Columbia,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, John W. Sippel, Jr., Peter M. Nothstein, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Following a bench trial, Barry Murel (Murel) was convicted

on   two   counts     of    possession      with    the   intent      to   distribute

controlled substances, 21 U.S.C. § 841(a)(1), and one count of

possession of a firearm and ammunition by a convicted felon, 18

U.S.C. § 922(g)(1).          The district court sentenced him to a total

of 192 months’ imprisonment.                On appeal, Murel challenges his

convictions and sentence.            For the following reasons, we affirm.



                                           I.

       A controlled purchase of cocaine base on June 10, 2009,

from   Murel     by   a    confidential     informant     in    front      of    Murel’s

residence resulted in Murel’s arrest three days later on June

13, 2009.        A search of Murel’s person incident to his arrest

resulted    in    the     recovery    of,     inter   alia,     two    plastic      bags

containing       cocaine     base    and    three     plastic       bags   containing

heroin.     Based upon the June 10 controlled purchase, a search

warrant    was    issued     for    Murel’s     residence      on   June    12,    2009.

Execution of such search warrant the next day resulted in law

enforcement officers recovering a firearm and ammunition from

Murel’s bedroom.

       One of Murel’s two instant offenses for possession with the

intent to distribute a controlled substance stemmed from the

seizure    of    cocaine     base    from     his   person     during      the    search

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incident     to   his    arrest    on     June    13,    2009.        Murel’s     other

possession-with-the-intent-to-distribute                  offense     stemmed      from

the seizure of heroin from Murel’s person during the same search

incident to his arrest.           Murel’s instant offense for possession

of a firearm and ammunition by a convicted felon stemmed from

the recovery of the firearm and ammunition from Murel’s bedroom.

Notably, the controlled purchase by the confidential informant

on June 10, 2009, did not serve as the basis of any of Murel’s

three instant offenses.           Moreover, the government did not offer

evidence of such controlled purchase during Murel’s trial.



                                          II.

      Murel seeks reversal of all three of his convictions based

upon his argument that the district court erred by denying his

pretrial     motion     to   require      the    government      to    disclose    the

identity     of   the    confidential           informant    who      conducted    the

controlled    purchase       on   June    10,    2009.      Murel’s     argument     is

without merit.

      A district court’s decision to deny a defendant’s motion

for disclosure of the identity of a confidential informant is

reviewed for abuse of discretion.                  United States v. Gray, 47

F.3d 1359, 1363-64 (4th Cir. 1995).                Of relevance to the present

appeal, the qualified privilege of the government to withhold

the   identity    of    persons     who    furnish       information     of     illegal

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activity to law enforcement officers must give way “[w]here the

disclosure   of   an   informer’s    identity     . . . is     relevant    and

helpful to the defense of an accused . . . .”              Roviaro v. United

States, 353 U.S. 53, 60-61 (1957).           See also United States v.

Smith, 780 F.2d 1102, 1107 (4th Cir. 1985) (public’s interest in

encouraging persons to come forward with information that can

aid effective law enforcement and interest in maintaining the

safety and security of such persons must be balanced against

defendant’s right to present his defense).           The defendant bears

the burden of establishing an actual basis for entitlement to

disclosure of the identity of a confidential informant.               United

States v. D’Anjou, 16 F.3d 604, 609-10 (4th Cir. 1994).

     Below, Murel offered the district court no explanation as

to how disclosure of the identity of the confidential informant

would be relevant to any defense he sought to present at trial.

Instead, Murel merely speculated in a conclusory manner that

such confidential informant “could potentially provide relevant

and helpful testimony for the defense concerning what occurred

and what the CI observed, if anything, at [his residence] in

connection with the alleged controlled buy on Jun[e] 10, 2009.”

(J.A.   148-49)    (Murel’s    Motion       to    Compel     Disclosure     of

Confidential Informant Information).

     After   reviewing   Murel’s     arguments,    the     record,   and   the

relevant legal authorities, we conclude Murel failed to carry

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his burden of establishing an actual basis for disclosure of the

identity        of    the        confidential             informant        who     conducted      the

controlled purchase from Murel on June 10, 2009.                                     Accordingly,

the   district        court           did    not   abuse     its      discretion      in    denying

Murel’s     motion          to        compel       disclosure         of    such     confidential

informant’s          identity.                Of     significant           importance       to    our

conclusion is the fact that although the confidential informant

participated          in        the     controlled         purchase         which    resulted      in

Murel’s    arrest          and        issuance       of    the    search         warrant    for   his

residence, Murel’s participation in the controlled purchase is

not the subject of his instant offenses.                                   Smith, 780 F.2d at

1108 (in determining whether defendant carried his burden of

establishing           entitlement              to        disclosure         of     identity       of

confidential informant, “[o]ne of the most important factors to

be    considered           is     the        materiality         of   the     evidence      to    the

defendant’s          particular             defense”).       Rather,        Murel     was   charged

with three criminal offenses stemming from evidence recovered

three days after the controlled purchase at issue.                                          In sum,

Murel has offered nothing more than rank speculation as to how

disclosure of the identity of the confidential informant would

have been relevant to his defense; therefore, he has failed to

carry     his    burden          on     this       issue.         See      id.    (disclosure      of

confidential informant’s identity only required after court has

determined such informant’s “testimony is highly relevant”).

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                                      III.

    Murel next challenges the district court’s conclusion that

he qualified for an enhanced sentence under the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e)(1).                 Under the ACCA, a

defendant is subject to a mandatory minimum of fifteen years’

imprisonment if his instant offense is a violation of § 922(g)

and he has at least three previous convictions “for a violent

felony   or   a     serious    drug   offense,       or   both,    committed   on

occasions different from one another . . . .”                Id. § 924(e)(1).

The government bears the burden of proving a defendant has three

predicate convictions under the ACCA by a preponderance of the

evidence.     United States v. Harcum, 587 F.3d 219, 222 (4th Cir.

2009).      Here,    the   district    court    determined        the   government

carried its burden of proving that Murel had three predicate

convictions under the ACCA.             We review this determination de

novo.    United States v. Brandon, 247 F.3d 186, 188 (4th Cir.

2001).

    Murel      concedes       that    his     2003    Maryland      state   court

conviction for possession with the intent to distribute heroin

is a serious drug offense as defined by the ACCA and, therefore,

qualifies as a predicate conviction.             He also concedes that his

1980 Maryland state court conviction for attempted robbery is a

violent felony as defined by the ACCA.               He argues, however, that

such conviction cannot serve as a predicate conviction under the

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ACCA because it occurred outside of the ten-year time limit set

forth   in        § 4A1.2(e)(2)              of     the     United       States      Sentencing

Guidelines         (USSG         or         Guidelines).                Pursuant     to      USSG

§ 4A1.2(e)(2),           when     computing          a    defendant’s        prior     criminal

history, a conviction which occurred more than ten years before

the instant offense is not counted.                               The fallacy in Murel’s

argument     is     that        the        ACCA    does     not    contain     the     temporal

restriction         on      prior            convictions          set      forth     in      USSG

§ 4A1.2(e)(2).           United States v. Presley, 52 F.3d 64, 69-70 (4th

Cir. 1995) (no temporal restrictions on prior convictions for

purposes of qualifying as a predicate conviction under ACCA).

See also USSG § 4B1.4 comment.(n.1) (time periods for counting

prior sentences under USSG § 4A1.2 not applicable to whether

defendant    is     subject           to     enhanced       sentence       under     § 924(e)).

Therefore, Murel’s 1980 conviction for attempted robbery was not

time barred and counts as a second predicate conviction under

the ACCA.

     This     brings        us        to     Murel’s      1998     Maryland        state   court

conviction        for      resisting              arrest.          Resisting        arrest     is

categorically a violent felony for ACCA purposes.                              United States

v. Jenkins, 631 F.3d 680, 682-85 (4th Cir. 2011); United States

v. Wardrick, 350 F.3d 446, 455 (4th Cir. 2003).                               Murel did not

argue otherwise below; rather he only argued that his resisting

arrest conviction could not be counted for ACCA purposes because

                                                  - 7 -
it was timed out.              Notably, Murel does not make any mention of

his    resisting     arrest         conviction      on   appeal.          Because      we    have

already     rejected           Murel’s       timed-out        argument          and    Murel’s

resisting arrest conviction is categorically a violent felony

for ACCA purposes, it serves as his third predicate conviction.

Accordingly, the district court did not err in determining that

Murel qualified for an enhanced sentence under the ACCA.



                                              IV.

       Murel contends the district court failed to explain the

extent to which the 18 U.S.C. § 3553(a) factors supported its

sentencing     him       to     a    192–month        term     of    imprisonment,           and

therefore, imposed a procedurally unreasonable sentence.

       Murel’s contention is without merit.                          Our review of the

record    discloses       the       district      court      met    its    obligations         of

procedural reasonableness with respect to the § 3553(a) factors

by placing on the record an individualized assessment of the

§ 3553(a) factors based on the particular facts of Murel’s case

and    explaining        the    extent       to   which       the   §     3553(a)      factors

supported its chosen sentence below his advisory range under the

Guidelines     in    a    manner       sufficient        to    permit      us    to    conduct

meaningful appellate review.                  See United States v. Carter, 564

F.3d    325,   329–30         (4th    Cir.    2009)      (district        court       need   not

robotically    tick       through       every     §   3553(a)       factor;      conversely,

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talismanic      recitation            of   every        §     3553(a)          factor       without

application to defendant being sentenced does not demonstrate

reasoned decision-making or provide adequate basis for appellate

review;      rather,        district         court           must        place         on     record

individualized assessment based on particular facts of case at

hand; such assessment need not be elaborate or lengthy, but must

provide    rationale        tailored        to        particular         case     at    hand       and

adequate to permit meaningful appellate review).



                                                 V.

       Having       concluded           Murel’s         sentence           is      procedurally

reasonable, we now consider Murel’s challenge to its substantive

reasonableness.            We    review     the       substantive         reasonableness            of

Murel’s sentence for abuse of discretion, examining the totality

of   the   circumstances,             including        the    extent       of     the       district

court’s downward variance to 192 months’ imprisonment from his

advisory    range     of    235       to   293    months’       imprisonment            under      the

Guidelines.        See United States v. Morace, 594 F.3d 340, 345–46

(4th    Cir.       2010)        (in     reviewing           sentence       for         substantive

reasonableness, appellate court must take into account totality

of   the   circumstances,             including        extent       of   any     variance         from

defendant’s     advisory          range     under       the     Guidelines).                We   have

reviewed     the     record       and      conclude          that    the        district         court

considered the parties’ arguments and adequately explained its

                                            - 9 -
chosen sentence pursuant to the § 3553(a) factors, particularly

the need to protect the community from Murel and the need to

deter   him    from    the   conduct    which     resulted      in   his    instant

convictions.        Murel    has    failed   to   demonstrate        an    abuse   of

discretion.         Accordingly,       we    uphold     Murel’s      sentence      as

substantively reasonable.



                                       VI.

     For      the     reasons      stated    herein,     we     affirm      Murel’s

convictions     and    sentence.       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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