                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-5085



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


DONNELL ALEXANDER TAYLOR, a/k/a Juice,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:05-cr-00297-FDW-DCK-1)


Submitted:   May 22, 2008                     Decided:   July 8, 2008


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


Affirmed by unpublished per curiam opinion.


Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Cortney
Escaravage, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Donnell Alexander Taylor appeals his convictions by a

jury    and    540-month   sentence    for    possession   with   intent    to

distribute five grams or more of cocaine base, possession of a

firearm in relation to a drug trafficking offense, and possession

of a firearm by a convicted felon.            He argues on appeal that the

district court erred in denying his motion to suppress evidence,

the evidence was insufficient to support his convictions, the court

erred in denying his motion for a new trial, and his sentence is

procedurally and substantively unreasonable. Finding no reversible

error, we affirm.

              Taylor first argues the court erred in denying his motion

to suppress evidence uncovered in a search of his residence.                 We

review the factual findings underlying a district court’s motion to

suppress ruling for clear error, and the legal determinations de

novo.    United States v. McCoy, 513 F.3d 405, 410 (4th Cir. 2008),

petition for cert. filed, __ U.S.L.W. __ (U.S. Apr. 18, 2008) (No.

07-10497).      When a suppression motion has been denied, we review

the evidence in the light most favorable to the Government. United

States v. Colonna, 511 F.3d 431, 434 (4th Cir. 2007).

              “[A] search authorized by consent is wholly valid.”

Schneckloth     v.   Bustamonte,   412    U.S.   218,   222   (1973).      The

Government bears the burden of proving by a preponderance of the

evidence that consent was freely and voluntarily given.                    Id.;


                                      - 2 -
United   States      v.    Matlock,    415   U.S.   164,   177   (1974).     The

voluntariness of consent is a question of fact to be determined by

an examination of the totality of the circumstances.1              Id. at 233,

248-49; see Ohio v. Robinette, 519 U.S. 33, 39-40 (1996).                    Our

review of the record leads us to conclude the district court did

not clearly err in determining that Taylor’s consent to the entry

and search of his residence was voluntary.

             Taylor also contends that his custodial statement should

have been suppressed because he was not advised of his rights under

Miranda v. Arizona, 384 U.S. 436 (1966).               However, the district

court found the arresting officer asked Taylor only routine booking

questions     that        do   not    require   Miranda     warnings.        See

Pennsylvania v. Muniz, 496 U.S. 582, 601-02 (1990). The court also

concluded that Taylor spontaneously admitted to selling drugs, and

Miranda does not apply to statements not made in response to police

interrogation.       Rhode Island v. Innis, 446 U.S. 291, 300 (1980);

United States v. Payne, 954 F.2d 199, 203 (4th Cir. 1992).                 Thus,

the district court did not err in denying Taylor’s motion to

suppress.2


     1
      Taylor’s arguments that the burden of proof to establish
consent should be beyond a reasonable doubt and hearsay testimony
should not be admissible in a suppression hearing are contrary to
well-settled law. See Matlock, 415 U.S. at 177, 172-75.
     2
      We reject Taylor’s assertion that his confession was
inadmissible under Fed R. Evid. 403.  Taylor did not object at
trial to the admission of the statement and the court did not
plainly err in admitting the evidence.   There is no basis to

                                       - 3 -
          Taylor next argues that the evidence was insufficient to

prove that he knowingly possessed drugs, that he had the intent to

distribute drugs, and that the weapon found in the search met the

statutory definition of a firearm.        We review de novo the denial of

a Fed. R. Crim. P. 29 motion for judgment of acquittal.            United

States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005).            Where, as

here, the motion was based on a claim of insufficient evidence,

“[t]he verdict of a jury must be sustained if there is substantial

evidence, taking the view most favorable to the Government, to

support it.”   Glasser v. United States, 315 U.S. 60, 80 (1942).

          In   order     to   establish     possession   with   intent to

distribute cocaine base, in violation of 21 U.S.C. § 841(a) (2000),

the Government must prove beyond a reasonable doubt that the

defendant: (1) knowingly; (2) possessed the controlled substance;

(3) with the intent to distribute it.        United States v. Burgos, 94

F.3d 849, 873 (4th Cir. 1996) (en banc).        Possession may be actual

or constructive.   Id.   To establish constructive possession, there

must be evidence showing the defendant has ownership, dominion, or

control over the contraband itself or of the premises or vehicle

where the contraband is found.       United States v. Singleton, 441

F.3d 290, 296 (4th Cir. 2006); United States v. Rusher, 966 F.2d

868, 878 (4th Cir. 1992).


conclude that Taylor’s statement was unreliable, and Taylor cannot
establish that the evidence was unfairly prejudicial or that any
prejudice substantially outweighed its probative value.

                                  - 4 -
            Taylor does not dispute that he was the sole occupant of

the residence.       One of the bags containing cocaine base was in

plain view in his bedroom, as were digital scales and a plate with

cocaine residue and razor blades.            Additionally, Taylor admitted

that he sold drugs, and he had over $900 on his person.             Viewed in

the light most favorable to the Government, this evidence was

sufficient for a reasonable jury to conclude Taylor knowingly

possessed the drugs with intent to distribute.

            Turning to the firearm offenses, to establish a violation

of   18   U.S.C.A.   §   924(c)(1)   (West     1999   &   Supp.   2008),   “the

government must prove that the defendant used or carried a firearm

during and in relation to a drug trafficking crime or possessed a

firearm in furtherance of a drug trafficking crime.”                   United

States v. Stephens, 482 F.3d 669, 673 (4th Cir. 2007).                      The

evidence revealed that Taylor had a shotgun in plain view within a

few feet of where the drugs were located.                 The evidence also

disclosed that according to the police officers’ training and

experience, drug distributors regularly possess weapons to protect

themselves and their supplies.          This evidence was sufficient to

support Taylor’s conviction under § 924(c).

            In order to convict Taylor under 18 U.S.C. § 922(g)(1)

(2000), the Government had to establish that “(1) the defendant

previously had been convicted of a [felony] . . . ; (2) the

defendant knowingly possessed . . . the firearm; and (3) the


                                     - 5 -
possession was in or affecting commerce, because the firearm had

traveled in interstate or foreign commerce at some point during its

existence.”    United States v. Moye, 454 F.3d 390, 395 (4th Cir.)

(en banc) (internal quotation marks and citation omitted), cert.

denied, 127 S. Ct. 452 (2006).          Taylor contends the evidence was

insufficient for a reasonable juror to conclude the shotgun found

in his bedroom was a firearm because the Government’s attorney did

not use the precise statutory language when asking the ATF agent to

identify the shotgun as a firearm.           Nevertheless, the evidence was

sufficient for the jury to conclude that the shotgun was a firearm

within the meaning of the statute.               Because the evidence was

sufficient to support all of Taylor’s convictions, we conclude the

district court did not err in denying the Rule 29 motion.

           Taylor also contends the district court erred in denying

his   motion   for   a   new   trial.    A    district   court   may   grant   a

defendant’s motion for a new trial “if the interest of justice so

requires.”     Fed. R. Crim. P. 33(a).             A district court must

sparingly exercise the discretion to grant a new trial, and “should

do so only when the evidence weighs heavily against the verdict.”

United States v. Singh, 578 F.3d 236, 239 (4th Cir. 2008) (internal

quotation marks and citation omitted).             This court reviews the

denial of a Rule 33 motion for abuse of that discretion.                United

States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006).




                                    - 6 -
            Taylor raised only evidentiary insufficiency in support

of his motion for a new trial.          We have found the evidence to be

sufficient to support each of Taylor’s convictions.                 On appeal,

Taylor suggests that the district court should have granted his

motion on the basis of improperly admitted, prejudicial hearsay

testimony.       At   trial,   the   police    officers    testified   about   a

drug-dealing complaint in order to explain why they initiated

contact with Taylor.       This evidence was not inadmissible because

“an out of court statement is not hearsay if it is offered for the

limited purpose of explaining why a government investigation was

undertaken.”3    United States v. Love, 767 F.2d 1052, 1063 (4th Cir.

1985).

             Finally, Taylor challenges his sentence.            He asserts the

sentence    is   procedurally    flawed       in   that   the   district   court

improperly applied the appellate standard in imposing Taylor’s

sentence.     It is well-settled that we presume a sentence imposed

within the properly calculated guidelines range is reasonable.

United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see Rita v.

United States, 127 S. Ct. 2456, 2462-68 (2007).                     However, a

district court may not use such a presumption in sentencing. Rita,




     3
      The district court correctly sustained Taylor’s objection to
an officer’s testimony about general “complaints about the
residence” prior to the complaint that instigated the police
contact on the night of the search.

                                     - 7 -
127 S. Ct. at 2465.             In sentencing a defendant after Booker,4 a

district court must engage in a multi-step process.                      First, the

court must correctly calculate the appropriate advisory guidelines

range.       Gall v. United States, 128 S. Ct. 586, 596 (2007).                    The

court then must consider that range in conjunction with the 18

U.S.C.A.         §   3553(a)    (West    2000   &   Supp.   2008)    factors.      Id.

Appellate review of a district court’s imposition of a sentence is

for abuse of discretion.                Id.; see also United States v. Pauley,

511 F.3d 468, 473 (4th Cir. 2007).

                 The district court did not procedurally err in imposing

Taylor’s sentence.             The court explicitly acknowledged its lawful

authority to impose a sentence outside of the guidelines range.

The language of the district court throughout sentencing confirms

that       the   court    did    not    apply   the   appellate      presumption   of

reasonableness in imposing a sentence within the guidelines range.

See Go, 517 F.3d at 219-20.

                 Taylor challenges the substantive reasonableness of his

540-month sentence. In its consideration of the § 3553(a) factors,

the district court determined that the sentence selected was

necessary to achieve the goals of sentencing, in particular to

protect the public from further crimes, to promote respect for the

law, and to deter others from criminal conduct.                     The court stated

that Taylor’s statements evinced a refusal to recognize that he had


       4
        United States v. Booker, 543 U.S. 220 (2005).

                                           - 8 -
led a “life of crime.”         Nothing in the record indicates the court

imposed a longer sentence in order to punish Taylor for his

insistence that the search of his home was unlawful.           In addition,

the transcript reveals that the court’s conclusion that Taylor had

led a life of crime was based on Taylor’s substantial criminal

history, which failed to demonstrate any “serious history of

rehabilitation.”       The district court did not abuse its discretion

in sentencing Taylor.

           Accordingly, we affirm Taylor’s convictions and sentence.

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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