                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4978


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MARIO FITZGERALD PETTIFORD,

                  Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:08-cr-00005-WO-1)


Submitted:    June 29, 2009                 Decided:   July 24, 2009


Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


James B. Craven, III, Durham, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Anand P. Ramaswamy,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                   Mario    Fitzgerald            Pettiford         appeals    his       conviction,

following a jury trial, of possession with intent to distribute

9 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1)

(2006) (Count One), possession of a firearm in furtherance of a

drug         trafficking            crime,         in         violation        of        18       U.S.C.

§ 924(c)(1)(A)(i) (2006) (Count Two), possession of body armor

by   a       violent       felon,       in   violation         of    18   U.S.C.     § 931        (2006)

(Count        Three),       and     possession           of    a    firearm    by    a    felon,     in

violation of 18 U.S.C. § 922(g) (2006) (Count Four), and his

420-month imprisonment sentence. 1                            On appeal, he challenges the

district        court’s       denial         of    his    motion      to   suppress,          and   its

denial        of    his     Fed.    R.       Crim.      P.    29    motion     for   judgment         of

acquittal as to Counts One and Two.                            We affirm.

                   Pettiford was arrested when law enforcement officers

received a report from a woman identified as “K.S.” that, while

visiting           Pettiford       at    his      home,       Pettiford       produced        a   small

handgun, prevented her from leaving the house, raped her, then


         1
       Pettiford was sentenced at the low end of the advisory
Guideline range to 360 months’ imprisonment, followed by eight
years   of  supervised   release on  Count   One,  60  months’
imprisonment to run consecutive to Count One on Count Two, 36
months’ imprisonment to run concurrent to Count One on Count
Three, and 360 months’ imprisonment to run concurrent to Count
One on Count Four of the indictment, for a total term of
imprisonment of 420 months.



                                                     2
robbed her of six one-hundred dollar bills.                      K.S.’s husband was

a long-time friend of Pettiford, and was in jail at the time of

the incident.          Police videotaped their interview of K.S. and,

using the information she provided, obtained a search warrant of

Pettiford’s house, seeking evidence of the rape, robbery, and

kidnapping.           Pettiford      was    at     home   when    the     warrant    was

executed, in a bedroom.              In the top drawer of a dresser in the

bedroom in which Pettiford was located, police found a bag of

crack cocaine with a net weight of 9 grams, and $298.17 in

currency.       In another dresser in the same bedroom, police found

a   fully     loaded     .38   caliber      Taurus    revolver     (manufactured       in

Brazil), and a wallet containing $1000 in currency.                              Officers

also found a blue duffel bag containing a full-face ski mask,

black       gloves,   black    hooded      sweatshirt,    black     long-sleeved       T-

shirt,       black     nylon    cap,       and   ballistic       vest     body     armor.

Following       waiver    of   his     Miranda 2     rights,     police    interviewed

Pettiford, who claimed he had consensual sex with K.S., admitted

possession of the firearm, possession of the crack, possession

of the body armor, and acknowledged he sold drugs.                           Pettiford




        2
            See Miranda v. Arizona, 384 U.S. 436 (1966).



                                             3
was federally indicted as set forth above.                The jury convicted

Pettiford on all counts. 3

           Pettiford first challenges the district court’s denial

of his motion to suppress, specifically claiming the district

court erred in denying his motion for a full scale evidentiary

hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978),

advanced on the basis that the search warrant was based on false

information     provided   by    the    alleged   rape   victim.         We   review

legal conclusions underlying the denial of a motion to suppress

de novo, and factual findings for clear error.              United States v.

Moreland, 437 F.3d 424, 429 (4th Cir. 2006).                In reviewing the

legality   of   the   issuance     of    a   search   warrant,     the    relevant

inquiry is whether, under the totality of the circumstances, the

issuing judge had a substantial basis for concluding that there

was probable cause to issue the warrant.              Illinois v. Gates, 462

U.S. 213, 238 (1983).           We give great deference to the district

court’s determination of probable cause.              Id. at 236.

           There is a heavy burden on a defendant in establishing

the need for a Franks hearing.           United States v. Jeffus, 22 F.3d


     3
        At trial, there was no mention to the jury of the
allegations of K.S. as to the rape, robbery, or kidnapping, and
testimony included only that Pettiford’s home was searched with
a lawfully obtained search warrant.         The 68-minute video
recording of Pettiford’s interview with authorities was redacted
to remove any mention of the rape, kidnapping, and robbery.



                                         4
554, 558 (4th Cir. 1994).             A defendant must "make a substantial

preliminary      showing       that       a    false      statement     knowingly      and

intentionally, or with reckless disregard for the truth, was

included   by    the      affiant     in      the   warrant    affidavit.”       United

States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990) (quoting

Franks, 438 U.S. at 155-56).                   The “showing ‘must be more than

conclusory’     and    must    be     accompanied         by   a    detailed   offer   of

proof.”      Id. (quoting Franks, 438 U.S. at 171).                        Allegations

should be accompanied by a statement of supporting reasons, and

affidavits      or     sworn    or        otherwise       reliable      statements     of

witnesses should be furnished, or their absence satisfactorily

explained.      Franks, 438 U.S. at 171.

           In this case, Pettiford’s motion to suppress contained

merely the same arguments of unreliability he asserts on appeal. 4

No   affidavits      or    sworn     or       otherwise    reliable     statements     of

witnesses accompanied the motion and the absence of any offer of

proof was not explained, as is required under Franks.                           Without

such preliminary showing of falsity, Pettiford failed to meet

his burden to mandate a Franks hearing.                            Hence, the district


      4
       He claims the information on which the warrant was based
was unreliable because:      (1) K.S. waited five days before
reporting the alleged rape to the police; (2) her husband and
Pettiford had served time together in prison and knew each
other; and (3) she was unworthy of belief because she did not
want her husband to know she had consensual sex with Pettiford.



                                               5
court did not err in denying Pettiford his request for a Franks

hearing, nor did it err in denying his motion to suppress the

evidence obtained from the search warrant.

               Nor do we find merit to Pettiford’s challenge to the

district court’s denial of his Rule 29 motion for judgment of

acquittal relative to Counts One and Two of the indictment.                               We

review de novo a district court’s denial of a motion for a

judgment of acquittal.             United States v. Alerre, 430 F.3d 681,

693    (4th    Cir.    2005).        In    conducting        such    a    review,    we   are

obliged to sustain a guilty verdict if, viewing the evidence in

the    light    most   favorable          to   the    prosecution,        the   verdict   is

supported by substantial evidence.                     United States v. Burgos, 94

F.3d    849,    862    (4th    Cir.    1996)        (en    banc)    (citing     Glasser   v.

United    States,      315    U.S.    60,      80     (1942)).       We    have     “defined

‘substantial evidence’ as ‘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.’”

Alerre, 430 F.3d at 693 (quoting Burgos, 94 F.3d at 862).                                 We

“consider circumstantial as well as direct evidence, and allow

the government the benefit of all reasonable inferences from the

facts proven to those sought to be established,” United States

v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982), and we assume

that the jury resolved all contradictions in the testimony in

favor of the Government.              United States v. Brooks, 524 F.3d 549,

                                               6
563 (4th Cir.), cert. denied, 129 S. Ct. 519 (2008).                              We “can

reverse    a    conviction      on    insufficiency          grounds    only    when    the

prosecution’s failure is clear.”                    United States v. Moye, 454

F.3d    390,    394   (4th    Cir.    2006)       (en   banc)     (internal    quotation

marks and citation omitted).

               To   establish       guilt    on     Count     One,     possession      with

intent to distribute a controlled substance, the Government must

have proven, beyond a reasonable doubt, that Pettiford:                                 (1)

knowingly; (2) possessed a controlled substance; (3) with the

intent to distribute it.             United States v. Burgos, 94 F.3d 849,

873 (4th Cir. 1996).             The discovery of the crack cocaine and

money     by    police,      together       with    Pettiford’s        statements,      in

response to police questioning as to whether he sold drugs, that

he “hustle[d] a little bit” and that he obtained body armor by

trading drugs for the item, plus the failure to discover any

evidence of personal use of crack cocaine in Pettiford’s house,

was    circumstantial        evidence       which   amply     supported     the     jury’s

determination that Pettiford possessed the crack cocaine with

the intent to distribute it.

               To establish guilt on Count Two, the Government was

required       to   prove    that    “possession        of    a   firearm      furthered,

advanced, or helped forward a drug trafficking crime.”                              United

States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002).                               Factors

upon which a fact-finder may conclude that a firearm was used in

                                             7
furtherance of a drug trafficking activity include the type of

drug        activity    that     is   being     conducted,       accessibility         of   the

firearm,        the    type     of    weapon,    whether     the     weapon      is   stolen,

whether        the     weapon    is     legitimately        or   illegally       possessed,

whether the gun is loaded, proximity of the firearm to drugs or

drug profits, and the time and circumstances under which the gun

is found.        Id.

                In this case, we find that the evidence of Pettiford’s

illegal possession of a loaded handgun, in a holster for wear on

the person, found in a drawer with his wallet in the same room

as   Pettiford,          crack       cocaine,    and    a    large    amount      of    cash,

together with his admission of drug-selling, is sufficient, when

viewed in the light most favorable to the Government, 5 to support

the jury’s conclusion that Pettiford possessed the firearm in

furtherance of a drug trafficking crime.                           Thus, the district

court did not err in denying Pettiford’s Rule 29 motion relative

to Counts One and Two of the indictment.

                Accordingly,          we   affirm      Pettiford’s        conviction        and

sentence.        We dispense with oral argument because the facts and

legal        contentions       are    adequately       presented     in    the    materials




        5
            See Burgos, 94 F.3d at 862.



                                                8
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




                                    9
