                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4121


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

DECARDIO LAMONT GLISSON,

                Defendant – Appellant.



                             No. 10-4122


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

DERRICK LIONELL GLISSON,

                Defendant – Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Columbia.      Joseph F. Anderson, Jr.,
District Judge. (3:08-cr-00405-JFA-1; 3:08-cr-00405-JFA-2)


Argued:   October 28, 2011                 Decided:   January 5, 2012


Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed in part, vacated in part, and remanded in part by
unpublished per curiam opinion.    Judge Davis wrote an opinion
concurring in part and concurring in the judgment.


ARGUED: Jonathan McKey Milling, MILLING LAW FIRM, LLC, Columbia,
South Carolina; Robert Sneed, ROB SNEED LAW FIRM, LLC,
Greenville, South Carolina, for Appellant.       Jeffrey Mikell
Johnson, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.   ON BRIEF: William N. Nettles, United
States Attorney, Robert F. Daley, Jr., Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Brothers Decardio Glisson (“Decardio”) and Derrick Glisson

(“Derrick”) appeal their convictions and sentences on an eight-

count      indictment         charging     them    with      various    narcotics    and

firearms offenses under 21 U.S.C. §§ 841 and 846, and 18 U.S.C.

§§ 2, 922, and 924. In this consolidated appeal, the Glissons

raise a total of eleven issues alleging pretrial, trial, and

sentencing          errors.    In   this    opinion,      we    address    only   three:

whether       the    affidavit,     which    contained         false   information   and

which was submitted in support of the search warrant, supported

a finding of probable cause; whether the district court properly

admitted a redacted version of the statement Derrick had given

to the police; and whether the district court correctly held

that Derrick’s conviction under 18 U.S.C. § 922(g)(9) did not

violate his Second Amendment rights. 1 For the following reasons,

we affirm Decardio’s conviction and sentence, and we affirm in

part    and    vacate     and    remand     in    part    Derrick’s     conviction   and

sentence.

                                              I

       The     circumstances        leading       to   the     Glissons’   convictions

arose out of several incidents that occurred in Sumter, South


       1
       We have reviewed the remaining issues and find them to be
without merit.



                                              3
Carolina, in the summer of 2007. Early on the day of June 14,

2007,    there    was     gunfire      on       St.   Paul    Church       Road   in   Sumter.

Several rounds of ammunition were fired into two residences, and

witnesses indicated the perpetrators were traveling by vehicle.

     Later       that    day,    Derrick         arrived      at     the   Tuomey      Regional

Medical Center in a Dodge Ram pickup truck (the "truck") and

reported that he had been shot in his right hand. Local law

enforcement was notified that a gunshot victim had come to the

hospital for treatment. Officers from Sumter County arrived at

the hospital shortly thereafter. In the process of interviewing

several bystanders (one of whom was Decardio) near a truck which

was parked in the Tuomey parking lot, the officers learned that

Decardio and Derrick had been riding in the truck when Derrick

was shot in the hand. The officers also observed three shell

casings on the ground next to the truck. Standing outside the

truck,   the     officers       were    also         able    to    observe    blood     on   the

interior floorboard and a shell casing in the truck bed.

     Believing          that    Derrick’s         wound      might    be     linked     to   the

earlier shooting incident, the officers sought a search warrant

for the truck. However, the affidavit which was submitted in

application       for    the    search          warrant      contained       numerous    false

statements. After the search warrant was procured, the truck was

towed,    and     a     subsequent      search          by    the     officers      recovered

marijuana,       cash,    a    knife,       a    loaded      Glock    .40     caliber     semi-

                                                 4
automatic pistol, a loaded Smith & Wesson 9mm semi-automatic

pistol, two spent 9mm cartridge casings, and a total of 152.71

grams of powder cocaine and 9.01 grams of crack cocaine. The

following day, an officer returned to the hospital and obtained

a    sworn   statement      from    Derrick    which    indicated,          among    other

things, that he had been a passenger in the truck the previous

day when he was shot in the hand and that Decardio had been the

driver of the truck.

       Two months later, on August 23, 2007, Decardio was stopped,

while driving the same truck, for routine traffic violations. As

the officer approached the truck, he smelled the odor of burning

marijuana and observed in plain view a bag containing marijuana

on    Decardio's    lap.     Decardio    was     arrested      for     possession           of

marijuana and a search incident to that arrest revealed a gun,

marijuana,     drug    paraphernalia,         over    $1,000     in    cash,      and   1.4

grams of crack cocaine.

       The Glissons were charged with conspiracy to distribute and

possess with intent to distribute cocaine base and cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B),

and    846   (Count    One);       possession    with     intent       to    distribute

cocaine      base     and    cocaine,      in        violation        of     21     U.S.C.

§§ 841(a)(1),       841(b)(1)(B),       841(b)(1)(C),       and       18    U.S.C.      §    2

(Count Two); and possession and use of a firearm in furtherance



                                          5
of a drug trafficking crime, in violation of 18 U.S.C. §§ 2 and

924(c)(1) (Count Three).

     In       addition,       Decardio       was    charged     with    two   counts       of

possession of a firearm after having been convicted of a felony,

in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)

(Count    Four        and     Count    Eight);       possession        with   intent       to

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

and 841(b)(1)(C) (Count Six); and possession of a firearm in

furtherance      of    a     drug    trafficking      crime,     in    violation      of   18

U.S.C.    §    924(c)(1)          (Count    Seven).    Derrick        was   charged    with

possession       of    a     firearm       after    having     been    convicted      of   a

misdemeanor      crime        of    domestic       violence,    in     violation      of   18

U.S.C. §§ 922(g)(9), 924(a)(2), and 924(e) (Count Five).



                                              II

   Before trial, the Glissons moved for a hearing pursuant to

Franks v. Delaware, 438 U.S. 154 (1978), and to suppress the

evidence seized as a result of the search of the truck. The

Glissons argued that the affidavit submitted in support of the

application      for        the    search    warrant    contained       numerous      false

statements and that without these statements, probable cause did

not exist to issue a search warrant for the truck. Thus, they

argued that the narcotics and firearms found in the truck, which

were discovered as the result of an invalid search and which

                                               6
formed the basis of some of the counts against them, should be

suppressed.

      Additionally, Decardio filed a pretrial motion, under Bruton

v. United States, 391 U.S. 123 (1968), to suppress the statement

Derrick    provided       to   the      police     which   linked    Decardio       to   the

truck.    Decardio        argued        that     Bruton     precluded    the       use     of

Derrick’s statement in their joint trial because Derrick would

be a non-testifying codefendant and Decardio would not have the

opportunity to cross-examine Derrick. Further, Derrick moved to

dismiss    Count     5    of   the      indictment,        which    charged       him    with

possessing a firearm after being convicted of a misdemeanor for

domestic violence, arguing that 18 U.S.C. § 922(g)(9) violates

his Second Amendment right to keep and bear arms.

      The district court orally denied Derrick’s motion to dismiss

Count 5. The district court then held an evidentiary hearing on

the Glissons’ motion to suppress the evidence found during the

search    of   the    truck.       In    its       subsequent    order   denying         that

motion, the district court found that the affidavit supported a

finding of probable cause even after the false statements had

been removed. The district court kept the Bruton motion under

advisement, but on the first day of the trial ruled in favor of

the    government    on    the     Bruton      issue      and   permitted     a   redacted

version of Derrick’s statement to be introduced into evidence.



                                               7
       After the district court denied motions for judgment of

acquittal, the jury returned a verdict finding Decardio guilty

on Counts One, Two, Three, Four, and Eight, but acquitting him

on Counts Six and Seven, and finding Derrick guilty of Counts

One,    Two,     Three,    and   Five.    The      district      court     overruled     the

Glissons’ objections to their pre-sentence report and sentenced

Derrick to 198 months imprisonment and Decardio to 226 months.



                                             III

                                              A

       On appeal, the Glissons argue the district court erred in

denying their motion to suppress the evidence seized from the

truck. We        review    de    novo   the    legal        conclusions    underlying     a

district       court's     decision     not       to   suppress      evidence,     and    we

review its factual findings for clear error. United States v.

Gary,      528   F.3d     324,   327    (4th       Cir.     2008).   Under    Franks      v.

Delaware, the district court must determine whether, after the

“material that is the subject of the alleged falsity or reckless

disregard is set to one side, there remains sufficient content

in   the     warrant      affidavit     to    support        a   finding    of   probable

cause.” 438 U.S. at 171-72. The false information “must do more

than    potentially       affect    the      probable       cause    determination:       it

must    be   necessary      to    the   finding        of    probable    cause.”   United



                                              8
States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990) (internal

quotation marks and citation omitted).

     We hold that the district court did not err in denying the

Glissons’ motion to suppress. Although it is undisputed that the

affidavit supporting the search warrant contained numerous false

statements, 2 the district court correctly found that after the

false statements are removed from the affidavit the remaining

information   in    the   affidavit    still      “informs    that   a   subject

arrived to the hospital with a gunshot wound, that there were

spent shell casings throughout the vehicle in which the subject

arrived, and that there had been a shooting earlier in the day.”

J.A. 240. In light of this, we agree with the district court

that “there is a fair probability that contraband or evidence of

a crime will be found in a vehicle which has blood, firearm

shell casings, and an individual with a gunshot wound as its

cargo.”   J.A.     240.   Therefore,       we   find   that   when   the   false

information is excised from the affidavit, the remaining factual

allegations are sufficient for a magistrate to find probable

cause for a search warrant.




     2
       While the false statements are not determinative in this
case, the fact that law enforcement officials presented the
magistrate   with  an   affidavit  containing   these falsehoods
reflects unfavorably on the officials involved.



                                       9
                                               B

     In     his      statement     to    the       police    while       he    was       at    the

hospital, Derrick implicated Decardio as the driver of the truck

at the time of the shooting and the driver who drove Derrick to

Tuomey. Decardio argued below and continues to argue on appeal

that Derrick's statement, when combined with other testimony at

trial,     is     inculpatory         evidence       that        unfairly      incriminates

Decardio     as      possessing       the    contraband          found    in       the    truck.

Decardio argues, therefore, that the district court erred in

admitting       into       evidence      a   redacted         version         of     Derrick’s

statement       to   the    police      because      use    of    the    statement            would

violate his Sixth Amendment right to confront and cross-examine

Derrick regarding this statement.

     “We review the district court’s admission or exclusion of

evidence for an abuse of discretion.” United States v. Lighty,

616 F.3d 321, 351 (4th Cir. 2010). We hold that, in accordance

with Bruton v. United States, the district court did not abuse

its discretion by admitting a redacted version of the signed

statement       into       evidence.     The       references       to      Decardio          were

replaced     with      “another        person,”          “other    person,”         and       “the

driver.” J.A. 1014. Although the statements, when combined with

other evidence, may have incriminated Decardio, such inferential

incrimination        does    not   violate         the    Confrontation        Clause.          See

United States v. Akinkoye, 185 F.3d 192, 198 (4th Cir. 1999)

                                             10
(approving of neutral phrases in the redaction such as “another

person” or “another individual”); United States v. Vogt, 910

F.2d   1184,    1191-92    (4th    Cir.    1990)       (noting   that    a   redacted

statement, in which the co-defendant’s name was replaced with

the word “client,” did not on its face impermissibly incriminate

the    codefendant     even     though        the     incriminating      import    was

inferable      from    other      evidence          that   had   been     admitted).

Accordingly, we hold that the district court did not abuse its

discretion by admitting the redacted statement into evidence.



                                          C

       Finally, Derrick argues that 18 U.S.C. § 922(g)(9), which

prohibits the possession of firearms by a person convicted of a

misdemeanor crime of domestic violence, imposes an undue burden

on his Second Amendment rights under District of Columbia v.

Heller, 554 U.S. 570 (2008). Thus, he argues that the district

court erred in failing to dismiss his conviction under Count

Five and that his conviction should be vacated and remanded to

the district court for an individualized determination as to

whether § 922(g)(9) is unconstitutional as applied to him.

       In United States v. Chester, 628 F.3d 673 (4th Cir. 2010),

which was decided while this case was on appeal, we adopted a

two-step    approach      to   Second     Amendment        challenges:    First,    we

examine “whether the challenged law imposes a burden on conduct

                                          11
falling within the scope of the Second Amendment's guarantee.”

Id. at 680. Second, using an intermediate scrutiny standard, the

government then bears the burden of demonstrating a “reasonable

fit between the important object of reducing gun violence and

§ 922(g)(9)’s    permanent        disarmament   of   all   domestic-violence

misdemeanants.” Id. at 683. In Chester, we concluded that the

record   on   appeal   was   insufficient       to   determine     whether   the

government had met its burden, so we remanded the case in order

for both sides to “have an opportunity to present their evidence

and   their   arguments      to    the    district    court   in    the   first

instance.” Id.

      In light of Chester, we believe that remand of this issue

is appropriate in order for the district court to determine in

the first instance whether § 922(g)(9) is unconstitutional as

applied to Derrick’s conviction on Count Five. Therefore, we

vacate Derrick’s judgment and sentence as it relates to Count

Five and remand this issue to the district court.



                                         IV

      For the foregoing reasons, we affirm Decardio's conviction

and sentence. We affirm Derrick's conviction and sentence except

for the judgment and sentence on Count Five, which we vacate and




                                         12
remand to the district court for a hearing consistent with this

opinion.

                                              AFFIRMED IN PART,
                                               VACATED IN PART,
                                           AND REMANDED IN PART




                              13
DAVIS, Circuit Judge, concurring in part and concurring in the
judgment:

       I concur in part and concur in the judgment, but I write

separately to make two observations.

       First, I am unable to join in Part III.A of the majority

opinion affirming the district court’s denial of the Glissons’

motion      to   suppress   under    Franks    v.    Delaware,    438    U.S.    154

(1978).     Instead,    I   conclude   that    the   longstanding       automobile

exception to the Fourth Amendment warrant requirement plainly

applies to the circumstances presented in this case and obviates

any necessity to examine the propriety of the district court’s

treatment of the Franks issue. While the government does not

rely   on    the   automobile      exception   on    appeal,     the    government

asserted the exception in opposition to the Glissons’ motion to

suppress below and we may affirm on any ground supported by the

record. See Allen v. Lee, 366 F.3d 319, 343 (4th Cir. 2004).

       Under     the   automobile    exception      to   the   Fourth   Amendment

warrant      requirement,    law    enforcement      officers    may    search    a

vehicle if it is “‘readily mobile’” and “‘probable cause exists

to believe it contains contraband,’” United States v. Kelly, 592

F.3d 586, 589 (4th Cir.) (quoting Pennsylvania v. Labron, 518

U.S. 938, 940 (1996)), cert. denied, 130 S. Ct. 3374 (2010), or

even mere evidence, Arizona v. Gant, 556 U.S. 332, ---, 129 S.

Ct. 1710, 1721 (2009) (“If there is probable cause to believe a


                                       14
vehicle contains evidence of criminal activity, United States v.

Ross, 456 U.S. 798, 820-821 (1982), authorizes a search of any

area of the vehicle in which the evidence might be found.”). The

scope     of   the   search   “is   as        broad    as   a   magistrate   could

authorize.” Kelly, 592 F.3d at 589. Therefore, “once police have

probable cause, they may search ‘every part of the vehicle and

its contents that may conceal the object of the search.’” Id. at

590 (quoting Ross, 456 U.S. at 825).

     Here, the truck was readily mobile ∗ and the officers had

probable cause to believe it contained evidence of one or more

criminal offenses. Specifically, the officers learned that (1)

the Glissons had been riding in the truck when Derrick suffered

a gunshot wound and (2) they had arrived at the hospital in the

truck. The officers observed three shell casings on the ground

next to the vehicle, as well as a shell casing in the bed of the

vehicle    and   blood   on   the   interior          floorboard.   Indisputably,

therefore, the record here shows that probable cause existed to


     ∗
       There was testimony that one of the officers parked his
car near or behind the truck, which the Glissons contend
“prevent[ed] access or movement of [the truck],” Appellant’s Br.
7, but this does not undermine application of the automobile
exception. See Kelly, 592 F.3d at 590-91 (rejecting defendant’s
argument that the automobile exception does not apply “because
the police exercised control over the vehicle and had therefore
eliminated any potential exigencies” as there was “little risk
that [the car] would be driven away” because “[the car] was
operational and therefore readily mobile”).



                                         15
believe     that         evidence       of     criminal     offenses       arising      from    a

felonious shooting, e.g., live and/or spent ammunition, bullet

fragments, shell casings, myriad microscopic evidence, evidence

of   ownership       and/or       use        of   the   vehicle     itself,      among       other

potential evidence, would be discovered in the vehicle.

        To be sure, officers are certainly to be applauded whenever

they seek a warrant in lieu of undertaking a warrantless search.

United States v. Srivastava, 540 F.3d 277, 288 (4th Cir. 2008)

(“Our    Court—as         well    as    the       Supreme   Court    and    other       judicial

bodies—has        consistently            encouraged        the     authorities         to    act

prudently      in        the     Fourth       Amendment     context,       and,     when      the

circumstances permit, to seek and secure the authorization of a

judicial officer—in the form of a warrant—before conducting a

search    or   seizure.”),             cert.      denied,   129     S.   Ct.     2826    (2009).

Nonetheless,         their        decision         here,    grounded       in     commendable

caution, to seek a warrant does not mean, as a matter of settled

law, they actually needed one to search the vehicle under the

circumstances confronting them in this case.

        Second,     our        remand     of      the   indictment       count    charging       a

violation      of    18        U.S.C.     § 922(g)(9)       in    Part     III.C     may      seem

puzzling in some sense in light of United States v. Staten, ---

F.3d ---, 2011 WL 6016976 (4th Cir. Dec. 5, 2011), but given the

disposition         of    this     appeal,         it   would     seem   likely      that      the



                                                   16
government   will   move   successfully   to   dismiss   that   charge

altogether upon remand.




                                 17
