United States v. Mohamed Abusnena

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 2, 2023
• Docket: 22-4216
• Status: Unpublished

Opinion

USCA4 Appeal: 22-4216 Doc: 44 Filed: 02/02/2023 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4216

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MOHAMED MAGI ABUSNENA,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Richard E. Meyers, II, Chief District Judge. (5:20-cr-00301-M-1)

Submitted: January 31, 2023 Decided: February 2, 2023

Before NIEMEYER and HEYTENS, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Eugene E. Lester III, LESTER LAW, Greensboro, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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PER CURIAM:

A jury convicted Mohamed Magi Abusnena of possession of a firearm by a felon,

in violation of 18 U.S.C §§ 922(g)(1), 942(a)(2). The district court sentenced Abusnena to

two years’ imprisonment followed by three years’ supervised release. On appeal,

Abusnena challenges the district court’s denial of his suppression motion and his motion

to dismiss the charge against him. We affirm.

The Fourth Amendment provides for “[t]he right of the people to be secure in their

persons . . . and effects, against unreasonable searches and seizures.” U.S. Const. amend.

IV. A search or seizure that is conducted without first obtaining a warrant is “per se

unreasonable . . . subject only to a few specifically established and well-delineated

exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). Among the exceptions to

the warrant requirement is a search incident to a lawful arrest. Arizona v. Gant, 556 U.S.

332, 338 (2009).

Under the Fourth Amendment, a police officer may lawfully arrest a defendant

absent a warrant when the officer has probable cause to believe that a defendant committed

an offense. Maryland v. Pringle, 540 U.S. 366, 370 (2003). Probable cause exists where

the “facts and circumstances within the officer’s knowledge . . . are sufficient to warrant a

prudent person, or one of reasonable caution, in believing, in the circumstances shown, that

the suspect has committed, is committing, or is about to commit an offense.” Michigan v.

DeFillippo, 443 U.S. 31, 37 (1979). Whether the officer has probable cause is a fact-based

inquiry that considers the totality of the circumstances. United States v. Humphries, 372

F.3d 653, 657 (4th Cir. 2004).

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Abusnena argues that the district court erred in finding that the search incident to

arrest exception applied here. He argues his arrest was unlawful because Keeny lacked

either reasonable suspicion to stop him or probable cause to arrest him. We disagree. The

district court correctly found that the arresting officer had probable cause—and thus also

reasonable suspicion—to believe that Abusnena discharged a firearm in violation of a local

ordinance. Further, we conclude that the district court correctly found it was reasonable

for the officers to believe that evidence relevant to discharging a firearm might be found

within Abusnena’s car. See United States v. Davis, 997 F.3d 191, 196-97 (4th Cir. 2021).

In sum, the district court correctly held that the search incident to arrest exception applied

here.

Next, Abusnena argues that the district court erred by denying his motion to dismiss

his charge because, after he was indicted for felon in possession of a firearm, his predicate

felony conviction was expunged. But as this court has held, a conviction for felon in

possession of a firearm is valid even if the predicate conviction has been expunged, so long

as the predicate conviction was in effect when the defendant possessed the firearm or

ammunition. United States v. Kahoe, 134 F.3d 1230, 1234-35 (4th Cir. 1998). Abusnena

invites us to overrule Kahoe, but “one panel [of this Court] cannot overrule a decision

issued by another panel.” United States v. Williams, 808 F.3d 253, 261 (4th Cir. 2015)

(internal quotation marks omitted).

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Accordingly, we affirm. 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.

AFFIRMED