                                     UNPUBLISHED

                        UNITED STATES COURT OF APPEALS
                            FOR THE FOURTH CIRCUIT


                                        No. 17-4753


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

ADRIAN D. BRIGGS,

                     Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at Newport
News. Raymond A. Jackson, District Judge. (4:17-cr-00033-RAJ-RJK-1)


Submitted: August 31, 2018                                   Decided: November 15, 2018


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


Affirmed by unpublished per curiam opinion.


Sean S. Jung, PILGRIMS LAW GROUP, PLLC, Newport News, Virginia, for Appellant.
Tracy Doherty-McCormick, Acting United States Attorney, Alexandria, Virginia, Bethany
J. Lipman, Special Assistant United States Attorney, Baltimore, Maryland, Howard J.
Zlotnick, Managing Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Newport News, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

        A jury convicted Adrian D. Briggs of carjacking (Count 1), in violation of 18 U.S.C.

§ 2119 (2012), and brandishing or possessing a firearm during and in relation to a crime of

violence (Count 2), in violation of 18 U.S.C. § 924(c)(1)(A) (2012). The district court

sentenced him to 60 months on Count 1 and to a consecutive 84 months, the statutory

mandatory minimum sentence, for Count 2. He contends that on appeal the district court

erred in denying his motion to suppress, that he is entitled to a new trial, and that his

sentence is unreasonable. We affirm.

        In considering “a district court’s ruling on a motion to suppress, we review factual

findings for clear error and legal determinations de novo[,] . . . constru[ing] the evidence

in the light most favorable to the prevailing party.” United States v. Lull, 824 F.3d 109,

114-15 (4th Cir. 2016) (internal quotation marks omitted). We follow a two-step process

in determining whether an out-of-court identification should be excluded:          “(1) the

defendant must show that the photo identification procedure was impermissibly suggestive,

and (2) if the defendant meets this burden, a court considers whether the identification was

nevertheless reliable in the context of all of the circumstances.” United States v. Saint

Louis, 889 F.3d 145, 152 (4th Cir. 2018) (internal quotation marks omitted), petitions for

cert. filed,   U.S.L.W.   (U.S. July 31, 2018) (Nos. 18-5427, 18-5438); see United States v.

Greene, 704 F.3d 298, 305 (4th Cir. 2013). “A procedure is unnecessarily suggestive if a

positive identification is likely to result from factors other than the witness’s own

recollection of the crime.” Greene, 704 F.3d at 306 (internal quotation marks omitted).

“When the suggestiveness in the procedure does not reach the impermissible level, the


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potential for error (or potential for misidentification) is left for testing by a course of cross-

examination at trial.” United States v. Saunders, 501 F.3d 384, 389 n.1 (4th Cir. 2007)

(internal quotation marks omitted).

       Here, Briggs contends that the victim’s photo lineup identification of him was

impermissibly suggestive and should have been suppressed. Specifically, Briggs asserts

that, during an interview with the victim a few weeks before the photo lineup, police

implied Briggs’s photo would be included in the photo lineup when they asked the victim

if he knew Briggs. Briggs also points out that he was the only person in the lineup wearing

a white crewneck shirt. The lead investigator testified at the suppression hearing and at

trial that, after receiving results regarding certain fingerprints found in and on the victim’s

car, she asked the victim whether he knew a man named Adrian Briggs. Nearly two months

passed from that time to the time of the photo lineup, reducing any potential suggestiveness

from law enforcement. In addition, the detective who conducted the lineup told the victim

that the lineup might not contain the suspect and that all photos would be shown even if

the victim made an identification before the last photo. This admonishment further reduced

any potential suggestiveness from the lead investigator that police had found a suspect and

that he would be in the lineup. We do not believe that the fairly commonplace color and

style of Briggs’s shirt made his photo stand out from the other photos in the lineup in a way

that was impermissibly suggestive, especially given that another photo in the lineup

featured a collared white shirt. Therefore, we conclude the district court did not clearly err

in finding that the photo lineup was not unnecessarily suggestive and, thus, did not err in

denying Briggs’s motion to suppress.


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       Next, we review for an abuse of discretion a district court’s denial of a motion for a

new trial under Fed. R. Crim. P. 33. Saint Louis, 889 F.3d at 157. “A district court should

grant a new trial based on the weight of the evidence only when the evidence weighs

heavily against the verdict.” Id. (internal quotation marks omitted). “When considering

the motion, the district court is not required to view the evidence in the light most favorable

to the government, and it may evaluate the credibility of witnesses.” Id.

       Briggs contends that he is entitled to a new trial because, essentially, the victim’s

identification was unreliable and there was some evidence pointing to a different person as

the carjacker. We conclude, however, that ample evidence shows that Briggs was the one

who carjacked the victim. For example, the victim was completely certain that Briggs

carjacked him, Briggs’s fingerprints were found on a cigar wrapper in the victim’s car even

though the victim did not smoke cigars and did not know Briggs, and cell phone records

showed that someone called Briggs’s mother using the victim’s stolen phone in close

proximity to one location where the carjacker was seen on a surveillance camera. The lead

investigator also testified that the person to whom Briggs points as the perpetrator did not

look anything like the suspect in the surveillance videos or pictures and that person was

never a suspect during the investigation; further, the victim did not recognize that person.

Given the evidence pointing to Briggs as the perpetrator, the district court did not abuse its

discretion in denying Briggs’s motion.

       Finally, “[w]e review a sentence for reasonableness ‘under a deferential abuse-of-

discretion standard.’” United States v. McCoy, 804 F.3d 349, 351 (4th Cir. 2015) (quoting

Gall v. United States, 552 U.S. 38, 41 (2007)). This review entails appellate consideration


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of both the procedural and substantive reasonableness of the sentence. Gall, 552 U.S. at

51. In determining procedural reasonableness, we must consider whether the district court

properly calculated the Sentencing Guidelines range, treated the Guidelines as advisory

rather than mandatory, gave the parties an opportunity to argue for an appropriate sentence,

considered the 18 U.S.C. § 3553(a) (2012) factors, selected a sentence not based on clearly

erroneous facts, and sufficiently explained the chosen sentence. Id. at 49-51.

       If the district court’s sentencing decision is procedurally reasonable, then we must

consider whether the sentence imposed is substantively reasonable. Id. at 51. Substantive

reasonableness is based on “the totality of the circumstances.” Id. We presume that a

sentence imposed within a properly calculated Guidelines range is reasonable. United

States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).

       Briggs contends that his sentence is unreasonable because the court failed to analyze

his arguments that the mandatory minimum sentence was excessive and did not serve as a

useful deterrent. Our review of the record, however, convinces us that the court did

consider Briggs’s arguments and that its decision is procedurally reasonable. See Gall, 552

U.S. at 49-51. Substantively, Briggs’s sentence of 144 months is within the properly

calculated Guidelines range, and Briggs has not rebutted the presumption of reasonableness

accorded his within-Guidelines-range sentence. See Louthian, 756 F.3d at 306. We

therefore conclude that the sentence is substantively reasonable. See Gall, 552 U.S. at 51.

       Accordingly, we affirm the judgment of the district court. 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.


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    AFFIRMED




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