                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4119


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MARCELLUS EDWARD CHEATHAM, III,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:12-cr-00111-HCM-LRL-1)


Submitted:   October 31, 2014             Decided:   February 10, 2015


Before MOTZ, KING, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Vaughan C. Jones, JOHNSON & JONES, LLP, Richmond, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Howard J.
Zlotnick, Assistant United States Attorney, Newport News,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Marcellus Edward Cheatham, III, was charged in a five-count

superseding indictment for interference with commerce by robbery

(count one); brandishing a firearm during a crime of violence

(count two); felon in possession of a firearm (count three);

felon in possession of ammunition (count four); and possession

with intent to distribute a schedule II controlled substance

(count five).   On the morning the trial was to begin, Cheatham

pleaded guilty to counts one and five and proceeded to trial on

the remaining counts.      Count three was dismissed under Federal

Rule of Criminal Procedure 29, and a jury found Cheatham guilty

of counts two and four.        He received a total sentence of 235

months.

     On appeal, Cheatham challenges the district court’s denial

of his motion for a mistrial based on improper remarks by the

prosecutor,   the    court’s   denial   of   his   motion   to    suppress

evidence, the sufficiency of evidence on the counts on which the

jury found him guilty, the sentencing enhancements for his role

in the offense and obstruction of justice, and the denial of a

sentencing reduction for acceptance of responsibility.             Finding

no error, we affirm.

     Cheatham first argues that the district court erred in not

granting his motion for a mistrial after the Assistant United

States    Attorney     questioned       Cheatham    about        sentencing

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consequences during his cross-examination.                           We review the denial

of a motion for mistrial for an abuse of discretion.                                   United

States v. Wallace, 515 F.3d 327, 330 (4th Cir. 2008); see also

United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997)

(“[D]enial of a defendant’s motion for a mistrial is within the

sound discretion of the district court and will be disturbed

only under the most extraordinary of circumstances.”).                              In order

to    show    an     abuse     of    discretion         in    denying    a   motion    for   a

mistrial, a defendant must show prejudice.                            No prejudice exists

“if    the       jury    could      make    individual        guilt     determinations       by

following the court’s cautionary instructions.”                               Wallace, 515

F.3d at 330 (quoting United States v. Dorsey, 45 F.3d 809, 817

(4th Cir. 1995)).

       “A prosecutor’s improper [remarks] may so infect the trial

with unfairness as to make the resulting conviction a denial of

due process.”             United States v. Lighty, 616 F.3d 321, 359 (4th

Cir.   2010)        (internal       quotation         marks    and    alteration     omitted)

(discussing         remarks        made    during      closing       argument).      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).          In    assessing     prejudice,

this court considers

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     (1) the degree to which the prosecutor’s remarks have
     a tendency to mislead the jury and to prejudice the
     accused; (2) whether the remarks were isolated or
     extensive; (3) absent the remarks, the strength of
     competent proof introduced to establish the guilt of
     the   accused;    (4)   whether    the    comments    were
     deliberately   placed   before   the    jury   to   divert
     attention to extraneous matters; (5) whether the
     prosecutor’s remarks were invited by improper conduct
     of   defense   counsel;   and   (6)    whether    curative
     instructions were given to the jury.

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

These factors are to be viewed in the context of the trial as a

whole, and no single factor is dispositive.                  Lighty, 616 F.3d

at 361.

     Our assessment of the record in light of the above factors

leads us to conclude that Cheatham was not so prejudiced by the

prosecutor’s    problematic     remarks    that   he   was    denied    a   fair

trial.    They were isolated and in response to defense counsel’s

questioning     of   Cheatham    on   direct      examination     about     the

potential punishment he faced.            Further, the court instructed

the jury that evidence where an objection was sustained by the

judge must be disregarded, that statements by lawyers are not

evidence, and that punishment “is a matter exclusively within

the province of the Court and should never be considered by the

jury in any way in arriving at an impartial verdict as to the

guilt or innocence of the accused.” J.A. 516.

     Cheatham    next   challenges        the   district      court’s   ruling

denying his motion to suppress evidence based on the arresting

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officers conducting a protective sweep of his residence prior to

the arrival of police with a search warrant.                He argues that the

entry of Richmond police officers into his home to conduct a

protective sweep was an illegal search.             We review the district

court’s factual findings regarding the motion to suppress for

clear error, and the court’s legal conclusions de novo.                   United

States v. Burgess, 684 F.3d 445, 452 (4th Cir. 2012); United

States v. Edwards, 666 F.3d 877, 882 (4th Cir. 2011).                   When, as

here, a motion to suppress has been denied, the court views the

evidence    presented      in     the   light     most   favorable      to    the

government.     United States v. McBride, 676 F.3d 385, 391 (4th

Cir. 2012).

      The need to preserve evidence and the concern for officer

safety are important law enforcement goals.                  United States v.

Watson, 703 F.3d 684, 693 (4th Cir. 2013).                    With respect to

officer    safety,   “the       protection   of    police    officers    is   of

particular concern in cases in which both drugs and firearms are

the   subject   of   a   pending    search   warrant.”        Id.    “[P]olice

officers need to be assured that the persons with whom they are

dealing are not ‘armed with, or able to gain immediate control

of, a weapon that could unexpectedly and fatally be used against

[the officers].’”        Id. (quoting Maryland v. Buie, 494 U.S. 325,

333-34 (1990) (holding that a protective sweep when executing an

arrest warrant at a residence does not require probable cause)).

                                        5
       We conclude that the district court did not clearly err in

determining that, considering the totality of the circumstances,

police legally conducted a protective sweep of the residence.

The denial of the motion to suppress was therefore proper.

       Cheatham next challenges the sufficiency of the evidence to

support the jury verdicts.               For his conviction for brandishing a

firearm during a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1) (2012),          Cheatham claims that there was insufficient

evidence to prove that he brandished a real firearm and not a

simulated     one.         As     to    his       conviction    for    possession        of

ammunition     by    a    convicted      felon,      in   violation      of    18   U.S.C.

§ 922(g)(1) (2012), Cheatham argues that there was insufficient

evidence to suggest that he exercised dominion or control over

the ammunition.

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

made    pursuant     to    Rule    29    of   the     Federal    Rules    of    Criminal

Procedure for judgment of acquittal. United States v. Alerre,

430    F.3d   681,   693    (4th       Cir.   2005).      We    must   uphold       a   jury

verdict “if there is substantial evidence, viewed in the light

most favorable to the Government,” to support it.                               Burks v.

United States, 437 U.S. 1, 17 (1978).                      “[S]ubstantial 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. Burgos, 94

                                              6
F.3d 849, 862 (4th Cir. 1996).           “In applying this standard of

review, we must remain cognizant of the fact that ‘[t]he jury,

not the reviewing court, weighs the credibility of the evidence

and resolves any conflicts in the evidence presented, and if the

evidence   supports   different,     reasonable    interpretations,   the

jury decides which interpretation to believe.’”             Id. (quoting

United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994)).

      After reviewing the evidence as a whole, we conclude that

there was sufficient evidence to support the jury’s findings

that Cheatham brandished a firearm and possessed the ammunition

found during the execution of the search warrant.           The jury was

entitled to reject Cheatham’s testimony that he brandished a

simulated firearm in the form of a cell phone and that he did

not exercise dominion or control over the ammunition.          It is the

jury’s function to weigh the credibility of witnesses and to

resolve conflicts in the evidence.          United States v. Dinkins,

691 F.3d 358, 387 (4th Cir. 2012).           The jury’s determinations

regarding witness credibility and conflicting evidence will not

be disturbed if supported by substantial evidence, “even if we

were inclined to draw contrary inferences.”            United States v.

Gomez-Jimenez, 750 F.3d 370, 379 (4th Cir.), cert. denied, 135

S. Ct. 305 (Oct. 6, 2014) (No. 14-5921) & 135 S. Ct. 384 (Oct.

14, 2014) (No. 14-6102).       Here, substantial evidence supported

the   jury’s   decision   on   the   brandishing    count   because   the

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pharmacist       testified      that    Cheatham       robbed        him    at     gunpoint.

Substantial evidence also supported the jury’s determination on

the possession of ammunition count because Cheatham testified he

was   living      in    the     house     where    the        police       recovered          the

ammunition, and the ammunition “w[as] not so well hidden, as to

prohibit    a    reasonable      fact     finder    from      concluding          that     [the

defendant]       was    aware    of     [its]   presence.”           United       States       v.

Shorter, 328 F.3d 167, 172 (4th Cir. 2003).

      Cheatham         next     challenges         the        two-level           sentencing

enhancement applied for being a manager or supervisor under U.S.

Sentencing      Guidelines      Manual     § 3B1.1(c)         (2012).         A     defendant

qualifies       for    the    two-level     enhancement         “[i]f        [he]       was    an

organizer,       leader,      manager,     or     supervisor         in     any     criminal

activity    [that      did    not     involve   five     or    more        participants].”

USSG § 3B1.1(c).         Application of the enhancement is proper when

the   defendant        exercises       “[l]eadership          over     only       one     other

participant . . . as long as there is some control exercised.”

United States v. Rashwan, 328 F.3d 160, 166 (4th Cir. 2003).

The evidence supported the conclusion that Cheatham supervised

or organized the activities of at least “Zeek” Walton in their

dealings while planning and after the robbery.                             The government

introduced text messages in which Cheatham and Walton discussed

the location of the pharmacy to rob, who would drive, and how to

split the proceeds.             Cheatham also directed Walton to delete

                                            8
pictures        and    text          messages      from    his    phone.     Therefore,       the

district court did not clearly err in applying the enhancement.

See United        States v.            Kellam,      568    F.3d    125,    147-48    (4th   Cir.

2009) (stating standard of review).

      Next, Cheatham challenges the district court’s decision to

apply      an   enhancement             for     obstruction       of   justice      under   USSG

§ 3C1.1.        The court ruled that the enhancement applied based on

the fact that Cheatham arrived on the day of trial and withdrew

his   notice          of    an       alibi    defense      and    pleaded    guilty    to     the

robbery, that he committed perjury regarding whether he pointed

a   cell    phone          or    a    firearm      at     the    pharmacist,     and   that   he

directed a coconspirator to erase incriminating text messages

and photos from his phone.                       On appeal, Cheatham argues that he

should not be penalized for planning to utilize an alibi defense

and testifying on his own behalf, his actions did not impede the

government’s investigation, and there was insufficient evidence

that the messages and photos that Cheatham directed Walton to

erase were incriminating.

      Under       USSG          § 3C1.1,      an    enhancement        for   obstruction      of

justice is permitted if:

      (1) the defendant willfully obstructed or impeded, or
      attempted to obstruct or impede, the administration of
      justice    with   respect   to    the   investigation,
      prosecution, or sentencing of the instant offense of
      conviction, and (2) the obstructive conduct related to
      (A) the defendant’s offense of conviction and any


                                                    9
        relevant   conduct;          or     (B)         a     closely         related
        offense . . . .

Committing perjury qualifies a defendant for the enhancement.

USSG § 3C1.1 cmt. n.4(B).                 The adjustment for perjury is not

applicable      merely     because          the     defendant              testified    and

subsequently was convicted.               United States v. Dunnigan, 507 U.S.

87, 95 (1993).       Instead, the court must find that the defendant

gave false testimony under oath “concerning a material matter

with the willful intent to provide false testimony, rather than

as a result of confusion, mistake, or faulty memory.”                                Id. at

94; United States v. Smith, 62 F.3d 641, 646-57 (4th Cir. 1995).

     “In assessing whether a sentencing court properly applied

the Guidelines, we review the district court’s factual findings

for clear error and its legal conclusions de novo.”                                  United

States    v.   Osborne,   514    F.3d       377,    387       (4th    Cir.    2008).      We

conclude that, under the above authorities, the district court

correctly applied the enhancement.                      Cheatham’s           notice of an

alibi defense alleged that Cheatham was at his home at the time

of the robbery and offered the names of three witnesses who

would     testify    on   his    behalf,         including          his    mother.      The

government     was   forced     to   prepare       to       rebut    the    alibi    defense

because it was not withdrawn until the morning of trial, at

which time Cheatham admitted to the robbery.                              The false alibi

thus impeded the investigation.                   Cheatham also instructed his


                                            10
coconspirator       to    delete    text      messages    and   photos,       which    the

district court found as a fact was an attempt to obstruct the

prosecution of the case or impede the administration of justice.

See United States v. Malki, 609 F.3d 503, 511 (2d Cir. 2010)

(finding the obstruction enhancement supported by, among other

things,    the     defendant      deleting      cell    phone   records       before    an

interview with government agents and erasing emails afterward).

Finally,     the    court’s      finding      of   perjury    based    on     Cheatham’s

testimony     also    supports      the    enhancement.         The     jury    did    not

believe Cheatham’s testimony that he did not possess a firearm

at the time of the robbery, which was a material matter and was

intended to deceive the court and jury.                      The jury also did not

believe Cheatham’s testimony that he did not possess or control

the ammunition found in his home.                   See United States v. Curry,

461 F.3d 452, 461 (4th Cir. 2006) (noting that the sentencing

court   is   bound       to    accept   the     facts    implicit      from    the    jury

verdict).

      Finally, Cheatham argues that the district court erred in

denying a reduction for acceptance of responsibility when he

pleaded guilty to two counts and acknowledged his associated

criminal conduct.             He submits that the court (1) improperly did

not   give   its     reasons      and   (2)     should   not    have    withheld       the

reduction because he decided to go to trial on the remaining

three counts, one of which was dismissed.

                                           11
       As to Cheatham’s first contention, the district court must

make “adequate findings as to a controverted matter.”                                   United

States v. Morgan, 942 F.2d 243, 245 (4th Cir. 1991).                                 If “the

district court fails to resolve a disputed factual matter on

which    it   necessarily          relied     at      sentencing,       this      court    must

vacate the sentence and remand for resentencing.”                            Id.     Although

the district court in this case did not explain why it denied

the reduction, it did make an express finding that Cheatham did

not    qualify    for       acceptance      of    responsibility.            It    also    made

factual    findings         when   discussing         the   obstruction           enhancement

that relate to acceptance of responsibility.

       Turning     to       Cheatham’s      second       contention,         the     district

court’s determination that a defendant is not entitled to an

adjustment       for       acceptance    of      responsibility         is    reviewed      for

clear error.           United States v. Knight, 606 F.3d 171, 177 (4th

Cir.    2010).         A    guilty   plea        generally    is    an       indication      of

acceptance of responsibility; however, conduct that results in

an adjustment for obstruction of justice “ordinarily indicates

that    the   defendant        has   not      accepted      responsibility           for    his

criminal      conduct,”        although          in   “extraordinary           cases”      both

adjustments may apply.             USSG § 3E1.1 cmt. n.4.               The “question of

whether a defendant who obstructed justice is entitled to an

acceptance-of-responsibility                reduction       [is]    a    largely      factual



                                              12
matter to be determined by the district court.”                 Knight, 606

F.3d at 176.

     We conclude that the district court did not err in denying

the reduction for acceptance of responsibility where Cheatham

committed     perjury     and    the   court    determined    that     he   had

obstructed justice.        Although the application of § 3C1.1 does

not automatically disqualify the defendant from receiving the

§ 3E1.1 reduction, it is rare that both Guidelines provisions

apply.      USSG § 3E1.1 cmt. n.2.           Cheatham argues that United

States v. Hargrove, 478 F.3d 195 (4th Cir. 2007) demonstrates

that it is error to deny the reduction where a defendant has

pleaded     guilty   to   some    charges,     but   denied   other     related

charges.     In Hargrove, we remanded to the district court when

the court stated that it could not apply both the obstruction of

justice and acceptance of responsibility provisions.                  Hargrove,

478 F.3d at 201-02.        Here, the district court acknowledged that

it had the discretion to apply both provisions, but determined

that the facts did not support it.             We therefore conclude that

the court did not err in denying the reduction.

     Accordingly, we affirm the 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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