                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 14-4176


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

IRA TAYLOR,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:13-cr-00078-JFM-1)


Submitted:    November 25, 2014            Decided:   December 9, 2014


Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Craig M. Sandberg, MUSLIN & SANDBERG, Chicago, Illinois, for
Appellant. Rod J. Rosenstein, United States Attorney, Scott A.
Lemmon, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Ira Taylor was convicted, following a jury trial, of

possessing a firearm after sustaining a felony conviction, in

violation     of   18    U.S.C.     § 922(g)(1)    (2012)    (“Count   One”);

distribution of, and possession with intent to distribute, a

quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1)

(2012) (“Count Two”); and possessing and brandishing a firearm

in   furtherance    of   a   drug    trafficking   offense    (particularly,

Count Two), in violation of 18 U.S.C. § 924(c) (2012) (“Count

Three”).      The district court sentenced Taylor to 180 months’

imprisonment, consisting of ninety-six months on Counts One and

Two (concurrent), and a consecutive eighty-four-month term of

imprisonment on Count Three.         Taylor timely noted this appeal.

            Taylor presents five issues in his opening brief and

one issue in his reply brief. 1         As discussed in detail below, we

reject these arguments and affirm the amended criminal judgment.




      1
        Specifically, in the reply brief, Taylor asserts a
challenge to the computation of his Sentencing Guidelines range.
We reject counsel’s contention that he preserved the propriety
of the underlying Guidelines calculation by citing to Gall v.
United States, 552 U.S. 38 (2007), in the opening brief.
Accordingly, we conclude that Taylor has waived this argument by
raising it for the first time in his reply brief.      See Equal
Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 604 n.4 (4th
Cir. 2010); United States v. Brooks, 524 F.3d 549, 556 n.11 (4th
Cir. 2008).



                                       2
                                         I.

            The record, taken in the light most favorable to the

Government, see United States v. Washington, 743 F.3d 938, 940

(4th Cir. 2014), establishes the following facts.

            On November 13, 2012, George Spradlin, who was using

his personal vehicle as an unauthorized taxi, drove two people

to a residential neighborhood in Baltimore.                  Spradlin asked his

passengers if they knew anyone from whom he could buy marijuana.

One of the passengers indicated that Taylor, who was on the

street, could sell Spradlin marijuana.                  Spradlin did not then

know Taylor’s identity.

            Taylor    approached        Spradlin’s    vehicle,     spoke     briefly

with   Spradlin,     and   gave    Spradlin    a     small   bag   of     marijuana.

Before Spradlin paid for it, Taylor lifted up his shirt and

displayed a firearm.        Taylor removed the gun and demanded that

Spradlin give him all of his money — $85 — as well as the

marijuana he had just provided Spradlin.                Taylor pointed the gun

at Spradlin’s head, and Spradlin complied.                    Also on Taylor’s

order,    Spradlin    exited      his   car   and    began   to    walk    down   the

street.     Spradlin repeatedly asked Taylor not to harm or kill

him.     At some point, Taylor discharged his firearm, but did not

hit Spradlin.

            Immediately thereafter, an unmarked police car turned

down the street.       Spradlin flagged down the police car and told

                                          3
the officers that Taylor had robbed him and tried to kill him.

Spradlin identified Taylor, who was standing in the middle of

the street, as the man who had robbed him.

               Taylor ran, and the officers gave chase.                       Within a few

moments, one of the officers, Detective Steven Rosier, exited

the car and pursued Taylor on foot.                        The other officer, Michael

Riser,    continued         the    pursuit   in      the    car.      While     Taylor   was

running, Riser saw a firearm in Taylor’s left hand.                              Once they

came together again, Riser warned Rosier that Taylor was armed.

               The    officers       later      found       Taylor    lying     face     down

against    a    row    of    shrubs.        Taylor      initially     resisted     Riser’s

directive      to     put    his    hands    on      his    head,    but   he   eventually

capitulated.          Pursuant to a search incident to arrest, Riser

seized two small baggies of a plant-like substance (which the

parties later stipulated was marijuana); $85 in cash, balled up;

and $19 in cash, folded neatly and placed along side Taylor’s

identification card and credit cards.

               After Taylor was in custody, Spradlin again identified

Taylor as the man who had robbed him and threatened him with a

firearm.       Rosier later returned to search the shrubs and found a

firearm    lying      10-15       feet   from       where   Taylor    was     apprehended.

There were four live rounds and one spent shell casing in the

chamber.



                                                4
                                         II.

            Taylor moved to suppress all statements and admissions

he    purportedly    made,     the   evidence         seized    by   Riser     and   the

firearm found by Rosier, and Spradlin’s identification of Taylor

as his assailant.         The district court denied the motions.

            Rosier, Riser, and Spradlin were among the witnesses

that   testified     at    trial.     At       the    close    of   the   Government’s

evidence, defense counsel made a Fed. R. Crim. P. 29 motion for

a    judgment   of   acquittal,      which      the    court    denied.        The   jury

convicted Taylor on the three charged counts and found, beyond a

reasonable doubt, that Taylor had brandished a firearm during

the course of the underlying drug trafficking crime.

            At sentencing, the district court varied downward from

the advisory Guidelines range applicable to Counts One and Two

and imposed a ninety-six-month sentence on these counts, to be

followed by an eighty-four-month sentence on Count Three.

                                       III.

            Taylor first 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).       Because the district court denied the motions,

we construe the evidence in the light most favorable to the



                                           5
Government, the party prevailing below.              United States v. Black,

707 F.3d 531, 534 (4th Cir. 2013).

            Taylor first contends that the district court should

have   suppressed      a   statement   that   he    purportedly     made   on   his

arrest,    but     Taylor    does   not   identify    when,    if    ever,      this

statement was offered into evidence.                 Thus, any error in the

pre-trial ruling is of no consequence.

            Taylor next challenges the denial of his motion to

suppress the evidence seized pursuant to Taylor’s warrantless

arrest.        This evidence, which consisted of two small bags of

marijuana and $85 in balled up cash, was discovered on Taylor’s

person during the search incident to arrest conducted by Riser.

The Supreme Court has long since approved such searches.                        See

United States v. Robinson, 414 U.S. 218, 234-35 (1973) (holding

that, upon lawful warrantless arrest, police may conduct a full

search    of     an   arrestee’s    person    and   personal    items      in   his

possession and control, without any additional justification).

A warrantless arrest is valid so long as “there is probable

cause to believe that a criminal offense has been or is being

committed.”       Devenpeck v. Alford, 543 U.S. 146, 152 (2004).                Our

review of the hearing transcript reveals that the officers had

ample cause to arrest Taylor, thus undermining Taylor’s claim

that the seizure was unconstitutional.



                                          6
                 Taylor       also     contests         the     denial       of    his    motion       to

suppress the recovered firearm.                          However, Taylor abandoned any

privacy      interest          he    may     have       had     in    that     firearm         (or    the

ammunition)           by     discarding      it     in    the    shrubs.           Therefore,         the

abandoned gun was not the fruit of a seizure, and need not have

been    excluded.             California       v.       Hodari       D.,   499     U.S.        621,   629

(1991); see United States v. Stevenson, 396 F.3d 538, 546 (4th

Cir.    2005)         (“When    a    person       voluntarily          abandons          his    privacy

interest         in    property,       his    subjective             expectation         of     privacy

becomes      unreasonable,             and    he     is       precluded       from       seeking      to

suppress evidence seized from it.”).

                 Finally, Taylor challenges the court’s denial of his

motion to suppress Spradlin’s identification of Taylor as the

perpetrator.               “Due process principles prohibit the admission at

trial       of        an     out-of-court          identification             obtained          through

procedures ‘so impermissibly suggestive as to give rise to a

very substantial likelihood of irreparable misidentification.’”

United States v. Saunders, 501 F.3d 384, 389 (4th Cir. 2007)

(quoting Simmons v. United States, 390 U.S. 377, 384 (1968)).

But    it    is       clear     from    the       record       that     both       times       Spradlin

identified Taylor as the person who robbed and threatened him

were    entirely             spontaneous,         unprompted          by     any    questions          or

statements            from    either       Rosier        or    Riser.         Thus,       the     court



                                                    7
properly ruled that they were not the result of an impermissibly

suggestive identification process.

                                          IV.

               Taylor next argues that the district court erred in

denying his Rule 29 motion for a judgment of acquittal on Counts

Two and Three.        We review this ruling de novo.                  United States v.

Hickman, 626 F.3d 756, 762 (4th Cir. 2010).

               “A   defendant     challenging           the   sufficiency      of    the

evidence       to   support     his    conviction        bears    a    heavy   burden.”

United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)

(internal quotation marks omitted).                     The jury verdict must by

sustained when “there is substantial evidence in the record,

when viewed in the light most favorable to the government, to

support the conviction.”              United States v. Jaensch, 665 F.3d 83,

93 (4th Cir. 2011) (internal quotation marks omitted).

               In   reviewing    a     case       for   substantial      evidence,   we

evaluate “both circumstantial and direct evidence, and allow the

government all reasonable inferences that could be drawn in its

favor.”    United States v. Harvey, 532 F.3d 326, 333 (4th Cir.

2008).     We do not weigh the credibility of the evidence or

resolve any conflicts in the evidence.                        Beidler, 110 F.3d at

1067.     “Reversal for insufficient evidence is reserved for the

rare    case    where   the     prosecution’s           failure   is    clear.”      Id.

(internal quotation marks omitted).

                                              8
               Count Two charged Taylor with knowingly distributing,

and     possessing        with       intent     to     distribute,         a      quantity       of

marijuana.          Taylor argues that, because he possessed only 1.18

grams of marijuana, there was no basis for the jury’s finding of

an intent to distribute.                 We disagree.             Although “[p]ossession

of a small quantity of drugs by itself is an insufficient basis

from    which       intent      to    distribute       may    be     inferred[,]”         United

States v. Fisher, 912 F.2d 728, 730 (4th Cir. 1990), this fact

did not stand alone.             The Government’s evidence established that

the     (admittedly        small)       quantity        of    marijuana           that    Taylor

possessed was individually packaged in a manner consistent with

the    street-level        distribution         of     drugs,       Taylor     engaged         with

Spradlin in a manner consistent with selling drugs, and Taylor

possessed       a    loaded      firearm.            Taken        together,       these       facts

satisfied       the       Government’s         burden        to     show   an      intent       to

distribute.         See United States v. Collins, 412 F.3d 515, 518-19

(4th Cir. 2005) (affirming conviction for possession with intent

to distribute 2.59 grams of crack cocaine because, even in cases

involving       relatively           small     drug     quantities,          an     intent      to

distribute          can    be        inferred        from     the     totality           of     the

circumstances).

               Taylor next asserts that the Government’s evidence as

to     Count    Three      was       legally    insufficient.              But      Spradlin’s

testimony established that (1) the men were engaged in a drug

                                                9
trafficking offense in that Spradlin was attempting to purchase

marijuana from Taylor; (2) prior to paying Taylor, but after

Taylor gave the marijuana to Spradlin for his inspection, Taylor

lifted his sweatshirt to display his firearm; and (3) Spradlin

felt scared and intimidated.                This testimony thus demonstrated

that Taylor brandished his firearm in furtherance of the drug

trafficking      crime   of    distributing            marijuana.     See    18    U.S.C.

§ 924(c)(4) (defining “brandish” as “to display all or part of

the firearm, or otherwise make the presence of the firearm known

to     another    person,      in    order        to     intimidate    that       person,

regardless of whether the firearm is directly visible to that

person”).

            We note, briefly, that the Sixth Circuit’s decision in

United States v. Gibbs, 182 F.3d 408, 426 (6th Cir. 1999), does

not command a different result.                  Unlike the defendant in Gibbs,

who did not possess a firearm during either of the two actual

drug    sales    he   completed       with       the    undercover     agent,      Taylor

possessed       the   firearm       while    engaged        in   selling      drugs    to

Spradlin.       To be sure, the sale of marijuana was not consummated

and quickly evolved into a robbery, but the jury could have

reasonably concluded that, at the moment he initially displayed

the firearm, Taylor “considered the firearm to be critical to

his drug-trafficking activities, including the drug deal that he

was    conducting     with    [Spradlin]         that    day.”      United   States    v.

                                            10
Pineda, __ F.3d __, 2014 WL 5462658, at *3 (4th Cir. Oct. 29,

2014).      Accordingly,      we   affirm     the    jury’s       guilty   verdict    on

Count Three.

                                         V.

            Taylor next maintains that his sentence is illegal in

light of Alleyne v. United States, 133 S. Ct. 2151 (2013), and

unduly excessive given the scope of his criminal conduct, in

violation    of    the    Eighth     Amendment.             But    Alleyne    is     not

implicated    here,      because   the     jury      made    the    factual   finding

necessary to support the increased mandatory minimum.                          See 18

U.S.C. § 924(c)(1)(A)(ii).

            Taylor’s Eighth Amendment claim fares no better.                         The

Eighth   Amendment       forbids    cruel     and     unusual       punishments      and

implicitly requires that a criminal sentence be proportionate to

the crime or crimes of conviction.                Solem v. Helm, 463 U.S. 277,

284 (1983).       As this court recently clarified, proportionality

review is available for a term-of-years sentence.                      United States

v. Cobler, 748 F.3d 570, 579 (4th Cir.), cert. denied, 135 S.

Ct. 229 (2014).

            In    analyzing    a   claim      that    a     sentence   violates      the

Eighth Amendment, we first decide whether a threshold comparison

of the gravity of a defendant’s offenses and the severity of his

sentence leads to the inference that his sentence is grossly

disproportionate to his crimes.             Id. at 579-80.           Taylor makes no

                                         11
effort    to        show   that     his   sentence,          which      included     a     downward

variance from the Guidelines range applicable to Counts One and

Two, presents the “rare case” sufficient to raise an inference

of gross disproportionality.                   Graham v. Florida, 560 U.S. 48, 60

(2010)     (internal             quotation       marks       omitted).           And       Taylor’s

recidivism, which was set forth in the presentence report and

was a clear concern to the district court, undermines Taylor’s

claim    that        the    sentence      is     disproportionate.              See      Ewing    v.

California, 538 U.S. 11 (2003) (holding sentence of twenty-five

years     to        life    for    theft       of        three    golf    clubs,       valued    at

approximately $1200, was not violative of the Eighth Amendment,

given defendant’s prior felony convictions).                                   We thus reject

Taylor’s Eighth Amendment argument.

                                                 VI.

               We turn, finally, to Taylor’s claim that the district

court    should        have      sua   sponte       dismissed       Count      One   because     it

amounts        to     an    unconstitutional              infringement         on    his     Second

Amendment right to bear arms.                        This argument is raised for the

first time on appeal, and we conclude that Taylor cannot show

any error, let alone plain error, see Fed. R. Crim. P. 52(b), in

the district court’s failure to sua sponte dismiss Count One.

               This        court       has       ruled           that     “§    922(g)(1)        is

constitutionally valid on its face.”                              United States v. Moore,

666   F.3d      313,       319    (4th    Cir.      2012).          But   we   left      open    the

                                                    12
possibility          that     presumptively        lawful       measures     could      be

unconstitutional            if     confronted      with     a    proper      as-applied

challenge.       Id.     To rebut this presumption of lawfulness, Taylor

“must show that his factual circumstances remove his challenge

from the realm of ordinary challenges.”                   Id.

               Taylor alleges that he was not participating in any

criminal conduct at the time of his arrest, but this contention,

which    is    contrary      to    the   jury’s    factual      findings,    is    simply

inadequate to remove Taylor’s situation from the run-of-the-mill

challenge to the constitutionality of § 922(g)(1).                          Further, a

review of Taylor’s criminal history reveals that he “undoubtedly

flunks    the        law-abiding      citizen      requirement”      of     the     Second

Amendment, which the Supreme Court recognized in Heller. 2                         Id. at

320 (internal quotation marks omitted).                     Accordingly, we reject

Taylor’s claim of error on this point.

                                            VII.

               For    the    foregoing      reasons,      we    affirm     the    amended

criminal 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

     2
         District of Columbia v. Heller, 554 U.S. 570 (2008).



                                             13
