                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-4965


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MICHAEL AUGUSTUS COMSTOCK,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (2:07-cr-00025-F-1)


Argued:   October 29, 2010                 Decided:   February 25, 2011


Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.


Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Niemeyer and Judge Davis joined.


ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina; Keith Alan Williams, KEITH
A. WILLIAMS, PA, Greenville, North Carolina, for Appellant.
Kristine L. Fritz, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.    ON BRIEF: George E. B.
Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-
Parker, Assistant United States Attorneys, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:

     Defendant Michael Augustus Comstock was convicted by a jury

of possessing a firearm after having been convicted of a crime

punishable by imprisonment for more than a year in violation of

18 U.S.C. §§ 922(g)(1) & 924.            On appeal, he argues that the

district court erred by denying his motion to suppress certain

evidence seized from his home; admitting evidence that he had

guns and hunted on prior occasions; improperly calculating the

guidelines   range   at    sentencing;    and   imposing   a    procedurally

unreasonable   sentence.       We   disagree     and   affirm   Defendant’s

conviction and sentence.



                                    I.

     In 2007, the North Carolina Wildlife Resources Commission

was investigating Defendant for illegally hunting bears.             On May

1, 2007, officers conducting surveillance apprehended Defendant

as he exited a truck.        Defendant told the officers that there

was a gun in the truck, but that he did not know what kind of

gun it was or whether it was loaded.            Defendant stated that the

truck was not his, and that if his fingerprints were on the gun,

it was because he may have touched the gun when reaching into

the backseat to retrieve something else.               In a later-recorded

interview, Defendant told the officers that he thought the gun

was a pellet gun.         At trial, several witnesses testified that

                                     2
earlier in the day on May 1, 2007, Defendant fired the gun,

apparently killing a bear.

       On   June    26,    2007,     an      informant       advised     officers       that

Defendant had removed all his guns from his residence on May 1,

2007 and given them to his nephew.                          Relying in part on this

information,       officers      obtained         a   search   warrant      on   July    17,

2007, alleging probable cause to believe that evidence of gun

possession    would       be    found   in    Defendant’s       home.       The    warrant

specifically       included       “[f]irearms         and    other    items      that    are

pertaining to the possession of firearms[.]”                         Officers searched

Defendant’s house on July 18, 2007 and found one gun, as well as

ammunition, documents, and videos.

       Defendant moved to suppress the evidence obtained during

the execution of the warrant.                     A magistrate judge conducted a

hearing and recommended that Defendant’s motion be denied.                               The

district court adopted the magistrate judge’s recommendation and

denied Defendant’s motion to suppress.

       Before trial, the government filed a notice of its intent

to offer Rule 404(b) evidence relating to Defendant’s gun use

and possession before and after May 1, 2007, the date of the

alleged offense.          Defendant filed a motion in limine to exclude

that   evidence.          The    district         court     denied    the    motion      and

overruled Defendant’s objections to the evidence when it was

offered at trial.          The Rule 404(b) evidence included a twenty-

                                              3
second clip of a video seized from Defendant’s house.                 The video

depicted Defendant carrying a gun into the woods, followed by a

man and a young boy.       The district court also admitted testimony

from several witnesses who stated that Defendant had previously

used firearms to hunt game.

       Defendant was convicted, and the district court sentenced

him to a 78-month term of imprisonment and a 3-year term of

supervised release.



                                       II.

       Defendant first argues that the district court erred in

denying his motion to suppress the fruits of a search warrant

that    was   based   on    stale     and    untimely    information.       The

government    contends     that     Defendant   failed    to    preserve    this

argument by failing to object to the issue in the magistrate

judge’s report.

       “[T]o preserve for appeal an issue in a magistrate judge’s

report, a party must object to the finding or recommendation on

that issue with sufficient specificity so as reasonably to alert

the    district   court    of   the   true    ground    for    the   objection.”

United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007).

       Defendant here argues that he preserved his staleness claim

with the following objection:



                                        4
     The affidavit does not contain any information which
     would leave [sic] an independent judicial official to
     conclude that the confidential informant was reliable
     and accurate as alleged.   Particularly, the affidavit
     does not disclose to the Magistrate Judge that he was
     one of the participants. Rather, the informant simply
     states that the defendant had guns in his house, but
     does not describe the basis of this knowledge.
     Further,   the  informant   does   not  disclose  that
     defendant has any other related accessories to the
     guns in his house or the basis for any such knowledge.
     In fact, the only thing the confidential informant
     relates is that on May 1st, some 2½ months earlier,
     any guns were taken out of the home.

Defendant contends that the above language “alerted the district

court     that     [he]     was     objecting           to     the        timeliness        of        the

information        used     to     establish        probable             cause       and    thereby

provided    ample     basis       for    the    district           court       to    rule    on       the

staleness issue.”            Reply Brief of Appellant at 4.                                 However,

Defendant    concedes        that       his    objection            does       not   contain          any

reference to staleness.

        Indeed,     the     only    reference           to      timing          appears         in     an

objection    directed       at     the    reliability              of    the    informant.             If

Defendant        intended     to    object         to        the        untimeliness        of        the

information, it was not stated with sufficient specificity to

preserve     the     issue.              See    Midgette,               478     F.3d       at        622.

Accordingly, we review Defendant’s claim for plain error only.

See United States v. Benton, 523 F.3d 424, 429 (4th Cir. 2008)

(reviewing claim waived under Midgette for plain error).




                                               5
    Upon reviewing for plain error, we now consider Defendant’s

arguments: (1) that the delay between the date of the alleged

offense (May 1) and the date the warrant was executed (July 18)

rendered    the       information      stale     absent      indicia     that   probable

cause had not lapsed; and (2) that the warrant was not supported

by probable cause because it revealed the absence of evidence at

his home.

    Probable cause means “a fair probability that contraband or

evidence    of    a    crime    will    be     found    in    a   particular      place.”

Illinois    v.    Gates,       462   U.S.    213,      238   (1983).       “The    fourth

amendment   bars       search    warrants        issued      on   less   than   probable

cause, and there is no question that time is a crucial element

of probable cause.”             United States v. McCall, 740 F.2d 1331,

1335 (4th Cir. 1984).                Accordingly, “[a] valid search warrant

may issue only upon allegations of ‘facts so closely related to

the time of the issue of the warrant as to justify a finding of

probable cause at that time.                 Whether the proof meets this test

must be determined by the circumstances of each case.’”                           Id. at

1335-36 (quoting Sgro v. United States, 287 U.S. 206, 210-11

(1932)).

    In McCall, we rejected a test of counting the number of

days to determine the vitality of probable cause.                         Id. at 1336.

“Rather, we must look to all the facts and circumstances of the

case, including the nature of the unlawful activity alleged, the

                                             6
length of the activity, and the nature of the property to be

seized.”      Id.        We also stated that when “the criminal activity

alleged    in      the    warrant     is    not   ongoing       in    nature,      nor    the

evidence sought intrinsically likely to remain at the location

where   it      was      originally    observed,        indicia       external      to    the

evidence itself should demonstrate that probable cause has not

lapsed.”     Id. at 1337.

     In this case, Defendant observes that he allegedly shot a

bear on May 1, 2007.              On July 17, more than eleven weeks after

the date of the alleged offense, officers obtained a warrant to

search his residence.               Defendant asserts that officers had no

indication that evidence of a crime would still be found at the

residence on July 17.             Defendant argues that applying the McCall

factors yields the conclusion that the government’s information

was stale by then.          We disagree.

     In      the      affidavit     attached      to    the     warrant,      an    officer

averred that individuals who purchase firearms retain certain

documents     relating       to     those    purchases.          Indeed,      many       items

referred to in the search warrant, including sales receipts,

factory    warranties,        and     cancelled        checks   are    items       that   one

would expect a person to retain at home.                        See United States v.

Farmer,    370      F.3d    435,    439-40       (4th    Cir.    2004)     (noting        that

documents like records of payment, canceled checks, and payment

receipts     are      the   types     of    records      that    are    not    ordinarily

                                             7
destroyed or moved from place to place).                                Thus, we are persuaded

to hold that it was reasonable for the magistrate to believe

that     such     evidence          of     gun      possession               would       be     found      at

Defendant’s residence, notwithstanding the passage of time.                                                Cf.

United    States        v.    Neal,      528     F.3d      1069,         1074      (8th       Cir.       2008)

(“Information that someone is suspected of possessing firearms

illegally       is     not    stale,       even         several         months       later,         because

individuals       who       possess       firearms         tend        to    keep       them       for    long

periods of time.”).

       Defendant        also       argues      that      the       warrant         was     so      facially

deficient that the officers could not reasonably presume that it

was    valid.        Defendant        notes         that      the      affidavit          submitted        to

obtain    the        warrant       was     based         on       an     informant’s            tip       that

Defendant       gave       all     his     guns      to       a    third          party       on    May    1.

Defendant argues that a person who divested himself of all his

firearms probably divested himself of all his firearm-related

items    as     well.        Defendant         contends           that       the     informant’s           tip

therefore could not furnish probable cause to look for even gun-

related materials.             We disagree.

       Defendant’s           argument          is       premised            on     the        unsupported

assumption       that        one    does    not         dispose         of       guns     without        also

discarding       all       related       items.         But,       as       the    magistrate            judge

observed,       “[t]he       confidential           informant            did      not     suggest         that

[Defendant]          had     removed       from         his       home       any     firearm-related

                                                    8
evidence   that    he   might     have    had.”        Insofar       as   the    warrant

specifically listed other evidence of gun possession, including

ammunition, spare parts, and various records, Defendant fails to

demonstrate that the affidavit was lacking in probable cause.

See United States v. Crews, 502 F.3d 1130, 1140 (9th Cir. 2007)

(“[I]t is reasonable to believe that ammunition, cleaning kits,

cases, and other evidence of firearm possession would have still

been present at Apartment 3 after only twelve days even if the

.22 revolver was discarded.”).

     In sum, the district court did not commit plain error in

adopting     the    magistrate         judge’s        recommendation           to     deny

Defendant’s motion to suppress.



                                         III.

     Defendant     next   argues       that     the   district       court      erred    in

admitting evidence that Defendant had guns and hunted on prior

occasions.

     “Evidence     of     other       crimes,     wrongs,       or     acts      is     not

admissible to prove the character of a person in order to show

action in conformity therewith.”              Fed. R. Evid. 404(b).              It may,

however,   be   admissible      for    other     purposes,      such      as    proof    of

intent, knowledge, or absence of mistake.                 Id.    To be admissible

under Rules 404 and 403, evidence of prior bad acts must be (1)

relevant to an issue other than character; (2) necessary “in the

                                          9
sense that it is probative of an essential claim or an element

of    the    offense;”      (3)    reliable;       and   (4)   more       probative   than

prejudicial.          United States v. Queen, 132 F.3d 991, 997 (4th

Cir.      1997).      We    review    a     challenge    to    the   admissibility       of

evidence under Rule 404(b) for abuse of discretion.                         Id. at 995.

          Defendant first argues that the Rule 404(b) evidence was

not relevant to any issue other than character or necessary to

the    government’s        case.       Defendant’s       intent,      however,     was   at

issue here.         Defendant was charged with possession of a firearm

in violation of 18 U.S.C. § 922(g)(1), and “a felon’s possession

of    a    firearm    must    be     both    voluntary    and    intentional        to   be

punishable under § 922(g)(1)[.]”                    United States v. Scott, 424

F.3d 431, 435 (4th Cir. 2005).                     Defendant contended that his

possession of the gun found in the truck he was driving on May

1, 2007 was neither voluntary nor intentional.                              We conclude,

therefore, that the Rule 404(b) evidence introduced in this case

was relevant to an issue other than character and necessary to

the government’s proof of intent.                   See United States v. Teague,

737 F.2d 378, 381 (4th Cir. 1984) (Rule 404(b) evidence was

admissible         when    defendant      denied    knowledge        of    gun   found   in

vehicle); but see United States v. Tate, 715 F.2d 864, 866 (4th

Cir. 1983) (Rule 404(b) evidence not admissible when defendant

denied knowledge of gun found in vehicle).



                                              10
       This    conclusion   is     supported   by    numerous      circuit   courts

that have considered the issue and held that past possession of

a firearm is relevant to proving intent.                    See United States v.

Moran, 503 F.3d 1135, 1144 (10th Cir. 2007) (“[T]he fact that

[defendant] knowingly possessed a firearm in the past supports

the inference that he had the same knowledge in the context of

the charged offense.”); United States v. Walker, 470 F.3d 1271,

1274 (8th Cir. 2006) (“Evidence that a defendant possessed a

firearm on a previous occasion is relevant to show knowledge and

intent . . . .”); United States v. Jernigan, 341 F.3d 1273, 1281

(11th   Cir.    2003)    (“[T]he    caselaw    in    this    and   other   circuits

establishes clearly the logical connection between a convicted

felon’s knowing possession of a firearm at one time and his

knowledge that a firearm is present at a subsequent time (or,

put differently, that his possession at the subsequent time is

not mistaken or accidental).”); United States v. Cassell, 292

F.3d    788,    794-95    (D.C.     Cir.     2002)    (“A     prior   history    of

intentionally possessing guns . . . is certainly relevant to the

determination of whether a person in proximity to such a chattel

on the occasion under litigation knew what he was possessing and

intended to do so.”).

       Defendant next argues that the Rule 404(b) evidence was not

reliable because the government’s witnesses were not credible.

“Evidence is reliable for purposes of Rule 404(b) unless it is

                                        11
so preposterous that it could not be believed by a rational and

properly instructed juror.”           United States v. Siegel, 536 F.3d

306, 319 (4th Cir. 2008) (quotation marks and citation omitted).

Defendant does not contest the reliability of the video, which

showed him holding a firearm on a previous occasion.                   Rather, he

attacks   the      government’s    witnesses     as   either    inconsistent     in

their stories or biased due to a “falling out” with Defendant.

Defendant recognizes, however, that credibility determinations

rest with the jury.         Further, Defendant fails to show that the

evidence was so preposterous that it could not be believed by a

rational juror.        Defendant’s argument regarding the reliability

of the Rule 404(b) evidence is without merit.

       Defendant also argues that the Rule 404(b) evidence should

have been excluded because its tendency for unfair prejudice

outweighed any probative value.                 Defendant contends that the

evidence enticed the jury to convict him because of his tendency

to hunt with guns.

       “‘Evidence     is   unfairly      prejudicial    and    thus    should   be

excluded under Rule 403 when there is a genuine risk that the

emotions of a jury will be excited to irrational behavior, and

this   risk   is    disproportionate      to    the   probative   value   of    the

offered   evidence.’”        Id.    at    319    (quoting     United   States    v.

Williams, 445 F.3d 724, 730 (4th Cir. 2006)).



                                         12
     Here,      the     challenged             evidence   involved        conduct

substantially    similar     to    the    charged    offense,    lessening    the

danger that the jury would be provoked to behave irrationally.

See id.      Because the evidence was properly admitted to show

Defendant’s intent, we do not discern any error in the trial

court’s     finding   that      its      probative    value     outweighed    its

prejudicial effect.       See United States v. Aramony, 88 F.3d 1369,

1378 (4th Cir. 1996) (where evidence is probative, “the balance

under Rule 403 should be struck in favor of admissibility, and

evidence should be excluded only sparingly.”).

     In sum, we hold that the trial court did not abuse its

discretion in admitting the Rule 404(b) evidence.



                                         IV.

     Defendant next argues that the district court improperly

calculated     his    advisory        Guidelines      range     at    sentencing.

Specifically, Defendant contends that the district court used an

overbroad    definition    of     “relevant      conduct,”    which    mistakenly

allowed a prior conviction to be counted.                     In reviewing any

sentence, we apply a deferential abuse of discretion standard.

United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).

     Defendant’s      argument         revolves      around     United     States

Sentencing Guidelines Manual (“U.S.S.G.”) § 4A1.2.                   That section

states:

                                         13
       Any prior sentence of imprisonment exceeding one year
       and one month that was imposed within fifteen years of
       the defendant’s commencement of the instant offense is
       counted.      Also   count   any    prior   sentence   of
       imprisonment   exceeding   one   year   and  one   month,
       whenever imposed, that resulted in the defendant being
       incarcerated during any part of such fifteen-year
       period.

U.S.S.G. § 4A1.2(e)(1) (2009).                 Commentary notes that “the term

‘commencement        of    the    instant      offense’       includes     any    relevant

conduct.”     U.S.S.G. § 4A1.2, cmt. n.8.

       Defendant was convicted in January 1986 for assault with a

deadly weapon with intent to kill inflicting serious injury.                            He

was    paroled   on       May    27,   1988.       Regarding      the    present     case,

Defendant concedes that he engaged in relevant conduct as far

back   as   2001.         “The    ‘Bear      Hunting    2001’    video,”     he    states,

“established     a    2001       beginning      date    for     relevant    conduct[.]”

Brief of Appellant at 33.                 Defendant argues, however, that the

district court erred in assigning criminal history points to his

assault     offense       because      the    starting    point     of    his     relevant

conduct in 2001 could have been more than fifteen years after

his state court felony conviction in 1986.

       Defendant’s argument fails due to the second sentence of

U.S.S.G.     § 4A1.2(e)(1).             The    Guideline        there    instructs    the

sentencing court to “count any prior sentence of imprisonment

exceeding     one     year       and   one     month,     whenever       imposed,    that

resulted in the defendant being incarcerated during any part of


                                              14
such    fifteen-year       period.”          U.S.S.G.    § 4A1.2(e)(1)         (emphasis

added).     Counting back fifteen years from 2001, the district

court could consider any conviction that resulted in Defendant’s

incarceration since 1986, including his incarceration until 1988

for his 1986 conviction.               The district court therefore properly

counted Defendant’s 1986 conviction in calculating Defendant’s

advisory sentencing range.



                                             V.

        Finally, Defendant argues that the district court erred by

failing    to    explain        its    reasons    for   imposing       his    particular

sentence,       as    required    by    18   U.S.C.     § 3553.        The    government

contends that Defendant’s failure to make this argument below

requires us to apply plain error review.

       “The court, at the time of sentencing, shall state in open

court     the    reasons        for    its    imposition     of        the    particular

sentence[.]”          18 U.S.C. § 3553(c).         “When rendering a sentence,

the district court must make an individualized assessment based

on the facts presented.                 That is, the sentencing court must

apply     the        relevant     §    3553(a)     factors        to    the    specific

circumstances of the case before it.”                    Carter, 564 F.3d at 328

(quotation marks and citation omitted).                    We recently held that

plain error review applies to a claim of procedural sentencing

error raised for the first time on appeal.                         United States v.

                                             15
Lynn, 592 F.3d 572, 577 (4th Cir. 2010).                A party preserves his

claim below “[b]y drawing arguments from § 3553 for a sentence

different than the one ultimately imposed . . . .”                 Id. at 578.

       Defendant contends he preserved his claim here because he

argued    various    aspects   of   18     U.S.C.   §    3553(a)     before   the

district court.       Indeed, Defendant persuaded the district court

to grant him supervised release so that he could have surgery,

and to deny the government’s motion for an upward departure.

There is no indication, however, that Defendant argued for “a

sentence different than the one ultimately imposed[.]”                  Id.    On

the contrary, the district court granted Defendant every request

Defendant made with regard to his sentence.               Defendant therefore

failed to preserve his objection to the district court’s lack of

explanation for his sentence, and we review for plain error.

       To establish plain error, Defendant must demonstrate that

the lack of explanation in this case constituted plain error

affecting his substantial rights.           Id. at 580.      “In other words,

even     if   we   assume   that    the    district      court’s    very   brief

explanation constituted clear error, Rule 52(b) requires that

[Defendant] also show that this explanation had a prejudicial

effect on the sentence imposed.”           Id.   Defendant does not allege

any prejudice resulting from the district court’s failure to

provide an explanation for his sentence.                 Defendant’s argument

that the district court’s failure to state its consideration of

                                      16
the section 3553 factors justifies reversal of his sentence is

therefore without merit. Cf. United States v. Hernandez, 603

F.3d 267, 272-73 (4th Cir. 2010) (holding no plain error in

brief explanation of sentence when district court imposed the

within-Guidelines sentence requested by the defendant).

                                                          AFFIRMED




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