                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-5104


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

CARNELL DESHAWN KELLY, a/k/a Mookie,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:00-cr-00193-TDS-1)


Submitted:   June 22, 2011                 Decided:   July 12, 2011


Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Todd A. Smith, LAW FIRM OF TODD A. SMITH, Graham, North
Carolina, for Appellant.    Ripley Rand, United States Attorney,
Michael F. Joseph, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Carnell      Deshawn        Kelly    appeals       the      district     court’s

order   revoking      his       supervised       release       and    sentencing       him    to

twenty-eight        months’       imprisonment         and     thirty-two          months     of

supervised release.              On appeal, Kelly contends that there was

insufficient evidence to support the district court’s finding

that    he   violated       a    condition       of    his     supervised          release    by

committing a crime because the Government failed to prove he

intended to distribute the crack cocaine recovered from him.                                  We

affirm.

             In    reviewing       a    sentence       imposed       upon    revocation       of

supervised        release,       this    court        “takes    a     more     ‘deferential

appellate posture concerning issues of fact and the exercise of

discretion’        than         reasonableness          review        for      [G]uidelines

sentences.”          United       States v.       Moulden,         478      F.3d    652,     656

(4th Cir. 2007) (quoting United States v. Crudup, 461 F.3d 433,

439    (4th Cir. 2006)).               Because    Kelly      did      not    argue    in     the

district court that the Government failed to prove intent to

distribute, the Government contends that this issue should be

reviewed for plain error.                The district court’s conclusion that

Kelly possessed cocaine with intent to distribute is a factual

finding reviewed for clear error.                     See United States v. Benton,

627 F.3d 1051, 1054 (8th Cir. 2010).



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              To revoke supervised release, a district court need

only find a violation of a condition of supervised release by a

preponderance of the evidence.                      18 U.S.C. § 3583(e)(3) (2006).

This burden “simply requires the trier of fact to believe that

the existence of a fact is more probable than its nonexistence.”

United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010)

(internal quotation marks omitted).                    A defendant challenging the

sufficiency         of    the    evidence      faces       a    heavy     burden.        United

States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).                                        In

determining whether the evidence in the record is sufficient, we

view the evidence in the light most favorable to the government.

United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en

banc).

              We conclude that the district court did not clearly

err in determining that Kelly intended to distribute the crack

cocaine at issue.               In response to complaints of drug activity,

police conducted surveillance of an apartment.                             Police received

tips that a heavyset male was selling drugs.                                 They observed

approximately fifteen transactions in forty-five minutes at the

residence.       They watched as a heavyset black male in a red hat

and   red     shirt      exited    the    apartment         and    left    the    area    in    a

Chevrolet      Impala.           Police   saw       that       individuals    continued        to

knock    on    the       apartment     door,    but        no    one    answered.        Police

followed      the    Impala      and   witnessed       the       driver    drop     a   baggie,

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later determined to contain 3.5 grams of crack, from the window.

A   heavyset    black   male      wearing       a   red   hat   and   red    shirt    was

driving the Impala.         The man was Kelly.              The offense for which

Kelly is on supervised release included selling small amounts of

cocaine.

           Because      this     evidence       clearly     supports    the      factual

finding    at    issue,     we     reject       Kelly’s     argument        on   appeal.

Accordingly, we affirm the district court’s order.                          We dispense

with oral argument because the facts and legal contentions are

adequately      presented    in    the   materials         before     the    court   and

argument would not aid the decisional process.

                                                                                 AFFIRMED




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