                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 12-4474


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MARVIN LEE FORD,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  John T. Copenhaver,
Jr., District Judge. (2:11-cr-00174-1)


Submitted:   December 11, 2012            Decided:   December 19, 2012


Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Lex A. Coleman, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant.     R. Booth
Goodwin II, United States Attorney, Hunter P. Smith, Jr.,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Marvin       Lee       Ford    was         charged    in     a     single-count

indictment with possession of a firearm as a convicted felon, in

violation    of    18    U.S.C.      §    922(g)(1)        (2006).           Ford   moved     to

suppress    the    firearm,        arguing        that    it   was     seized       during    an

unlawful search of his person during a traffic stop, when the

officer conducted a pat-down under Terry v. Ohio, 392 U.S. 1

(1968), not properly justified by reasonable suspicion.                                      The

district court denied the suppression motion, adopting the Sixth

Circuit’s holding in United States v. Street, 614 F.3d 228 (6th

Cir. 2010), and alternatively holding that the officer’s conduct

was justified by a reasonable, articulable suspicion that Ford

was armed and dangerous.                 Ford subsequently was convicted by a

jury and, based in part on the application of the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e) (2006), received a

within-Guidelines sentence of 188 months’ imprisonment.

            Ford timely appeals.                  On appeal, Ford challenges the

court’s    denial       of   his     motion       to     suppress      the    firearm,       its

evidentiary       rulings      and    jury    instructions,            the    propriety       of

prosecutorial statements made during closing argument, and the

sentence imposed by the district court.                          Finding no error, we

affirm.

            Ford first argues that the district court erred in

denying    his    suppression         motion,       asserting        that     the    district

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court misapplied Street and that the officer’s conduct qualified

as    a    Terry     frisk    unsupported           by    reasonable         suspicion.        In

reviewing the district court’s denial of a motion to suppress,

“[w]e review the district court’s legal determinations de novo

and       its   factual      determinations              for   clear    error[,]       .   .    .

constru[ing] the evidence in the light most favorable to the

government.”          United States v. Kelly, 592 F.3d 586, 589 (4th

Cir. 2010).          A court’s reasonable suspicion determination is a

legal conclusion to be reviewed de novo and determined on a

case-by-case         basis       under    the    totality       of     the    circumstances.

United States v. Powell, 666 F.3d 180, 186-87 (4th Cir. 2011).

                As   this    court       has    recently       reaffirmed,          “before    an

officer ‘places a hand on the person of a citizen in search of

anything,       he    must    have       constitutionally         adequate,         reasonable

grounds for doing so.’”               Id. at 185 (quoting Sibron v. New York,

392 U.S. 40, 64 (1968)).                 Under Terry, an officer may conduct a

protective         frisk    of    a   driver     or       passenger     if     he   “harbor[s]

reasonable suspicion that the person subjected to the frisk is

armed and dangerous.”                 Arizona v. Johnson, 555 U.S. 323, 327

(2009).         “The officer need not be absolutely certain that the

individual is armed; the issue is whether a reasonably prudent

man in the circumstances would be warranted in the belief that

his safety or that of others was in danger.”                           Terry, 392 U.S. at

27.       Reasonable suspicion “is not readily, or even usefully,

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reduced    to    a    neat    set    of     legal         rules,      but,      rather,      entails

common sense, nontechnical conceptions that deal with factual

and     practical       considerations               of    everyday          life.”           United

States v. Mason, 628 F.3d 123, 128 (4th Cir. 2010) (internal

quotation marks omitted), cert. denied, 132 S. Ct. 329 (2011).

            Ford       asserts       that       the       district      court         misconstrued

Street    and    misapplied          it    to    the       facts      of     his      case.      The

Government      argues       that    this       court      should      affirm         the    court’s

application      of     the       Sixth    Circuit’s         reasoning.               However,   we

conclude    that       it    is    not    necessary         to     determine          whether    the

reasoning of Street should apply here, as the district court’s

alternative rationale, denying the suppression motion under the

Terry    mode    of    analysis,          was   sound.            Crediting        the      district

court’s factual findings and viewing these facts together under

the     totality       of    the     circumstances,              we    conclude          that    the

officer’s limited physical contact with Ford was justified by a

reasonable,      articulable             suspicion         that       Ford      was    armed     and

dangerous.           Thus,    the    district         court       properly        denied      Ford’s

motion to suppress.

            Ford next argues that the district court prevented him

from     effectively          presenting         his       defense         by      excluding     as

irrelevant Ford’s brother’s city of residence and by refusing to

give    Ford’s       requested      “theory          of    defense”        jury       instruction.



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Ford argues both that these errors are independently reversible

and that they constitute reversible cumulative error.

           “We review evidentiary rulings for abuse of discretion

and will only overturn an evidentiary ruling that is arbitrary

and irrational.”    United States v. Cloud, 680 F.3d 396, 401 (4th

Cir.) (internal quotation marks omitted), cert. denied, 133 S.

Ct. 218 (2012).    Evidence is relevant if “it has any tendency to

make a fact [of consequence in determining the action] more or

less probable than it would be without the evidence.”              Fed. R.

Evid. 401.    “[R]elevance typically presents a low barrier to

admissibility.     Indeed, to be admissible, evidence need only be

worth consideration by the jury, or have a plus value.”             United

States v. Leftenant, 341 F.3d 338, 346 (4th Cir. 2003) (internal

quotation marks and citation omitted).

           Here, the court excluded evidence that Ford’s brother,

another passenger in the vehicle at the time of the traffic stop

in question, lived in Huntington, West Virginia, approximately

two years after the firearm was purchased in that city by an

unrelated individual and fifteen months prior to the seizure of

the weapon from Ford.     Without additional evidence suggesting a

connection   between    Ford’s   brother   and     the   firearm   or   its

original   purchaser,   however,   we   conclude    that   this    evidence

possessed no “plus value” adequate to justify its admission.



                                   5
Thus,   the    district       court    did       not   abuse   its     discretion       in

excluding the evidence on this basis.

             Turning to Ford’s challenge to the jury instructions,

we review for abuse of discretion a district court’s decision to

give    or    withhold    a     particular         jury   instruction.          United

States v.     Green,    599     F.3d   360,      377   (4th    Cir.    2010).      As    a

general rule, a district court should instruct the jury as to

the defendant’s “theory of defense” if the proposed instructions

are supported by the evidence adduced at trial and, “taken as a

whole and in the context of the entire charge, the instructions

accurately and fairly state the controlling law.”                        Id. at 378.

This court will reverse the district court’s refusal to provide

a theory of defense instruction only if the instruction “(1) was

correct, (2) was not substantially covered by the court’s charge

to the jury, and (3) dealt with some point in the trial so

important that the failure to give the requested instruction

seriously     impaired     the     defendant’s         ability    to     conduct    his

defense.”     Id. (internal quotation marks omitted).

             While     Ford’s    proposed        instruction     contained      correct

statements of the law, its content was covered by the other

instructions provided by the court.                     Additionally, while Ford

argues that the proposed instruction was necessary to present a

coherent defense theory and to focus the jury’s attention on the

essential issue in dispute, Ford was able to forcefully argue

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his theory of defense during closing argument.                            Therefore, we

conclude that the district court did not abuse its discretion in

refusing to give Ford’s proposed instruction.                           Because we find

no error in the district court’s rulings regarding Ford’s theory

of     defense,       we   likewise     reject       Ford’s      invitation      to    find

cumulative error based on these rulings.                        See United States v.

Basham, 561 F.3d 302, 330 (4th Cir. 2009).

               Ford    next   argues     that      the   prosecutor      made    improper

comments during closing argument that denied Ford a fair trial.

“A   prosecutor’s          improper    closing       argument     may    so   infect    the

trial    with     unfairness      as   to     make    the   resulting       conviction    a

denial of due process.”                United States v. Chong Lam, 677 F.3d

190,     209    (4th       Cir.   2012)       (internal         quotation     marks     and

alteration      omitted).         We   will       reverse   a    conviction     based    on

improper prosecutorial remarks only if “the remarks were, in

fact, improper, and . . . the improper remarks so prejudiced the

defendant’s substantial rights that the defendant was denied a

fair trial.”          Id. (internal quotation marks omitted); see United

States     v.     Wilson,      624     F.3d       640,   656-57     (4th      Cir.    2010)

(providing six-factor test for prejudice), cert. denied, 132 S.

Ct. 451 (2011).

               During closing argument, the prosecution is permitted

to draw reasonable inferences from the evidence adduced during

the trial.        United States v. Francisco, 35 F.3d 116, 120 (4th

                                              7
Cir.       1994).         However,     the       prosecutor        must    adhere      to     the

“fundamental         rule,     known       to    every      lawyer,     that       argument    is

limited to the facts in evidence.”                       United States v. Lighty, 616

F.3d       321,     361    (4th      Cir.       2010)       (internal     quotation         marks

omitted), cert. denied, 132 S. Ct. 451 (2011).

                We conclude that Ford has not demonstrated reversible

error on this basis.                 First, we conclude that the statements

made by the Government—drawing an inference regarding the amount

of time the gun may have been in Ford’s pocket—presented one of

several permissible inferences to be drawn from the available

evidence.          In any event, we conclude that any error on this

basis did not render Ford’s trial fundamentally unfair.                                     Thus,

we conclude that the prosecutor’s statements—even if assumed to

be erroneous—do not warrant reversal in this case.

                Lastly, Ford argues that the sentence he received was

greater than necessary to meet the goals of sentencing.                                       We

review      a     sentence     for   reasonableness,            applying       a   deferential

abuse-of-discretion standard.                    Gall v. United States, 552 U.S.

38,    51       (2007).        If    the     sentence         is   free    of      significant

procedural          error, *   the     court         also     reviews     the      substantive

       *
       Ford does not challenge the procedural reasonableness of
his sentence. See United States v. Palacios, 677 F.3d 234, 244
n.5 (4th Cir. 2011) (explaining that the defendant waives an
argument by failing to raise it in his opening brief), cert.
denied, 133 S. Ct. 124 (2012).


                                                 8
reasonableness of the sentence.                      United States v. Lynn, 592 F.3d

572,   575      (4th     Cir.    2010).           The      sentence       imposed     must   be

“sufficient, but not greater than necessary, to comply with the

purposes”       of    sentencing.           18       U.S.C.     § 3553(a)       (2006).      We

presume a within-Guidelines sentence to be reasonable on appeal,

and the defendant bears the burden to “rebut the presumption by

demonstrating that the sentence is unreasonable when measured

against      the       § 3553(a)       factors.”              See     United       States     v.

Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).

               Here, Ford argues that the ACCA enhancement overstated

his criminal history and unduly enhanced his sentence.                                    While

Ford analogizes to United States v. Moreland, 437 F.3d 424, 436

(4th   Cir.     2006),       overruling      on       other     grounds     recognized       by,

United States v. Diosdado-Star, 630 F.3d 359 (4th Cir. 2011), we

find this case readily distinguishable based on the severity of

the predicate convictions at issue.                           In sentencing Ford, the

district       court    identified       these         predicates         and   the   need   to

protect    the       public     and    to    deter         further    criminal        conduct,

concluding      that     a    sentence      at       the   bottom     of    the     Guidelines

range—only       eight       months    greater         than     the   mandatory       minimum

sought    by    Ford—was       appropriate.             Based    on   these       factors,   we

conclude       that     Ford     has     not         rebutted       the     presumption      of

reasonableness accorded his within-Guidelines sentence.



                                                 9
           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




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