USCA4 Appeal: 21-4522 Doc: 61 Filed: 07/31/2023 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4522
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHAWN SCOTT FONVILLE,
Defendant - Appellant.
No. 21-4523
Appeals from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:18-cr-00185-D-1; 7:14-cr-00043-D- 1)
Submitted: March 29, 2023 Decided: July 31, 2023 USCA4 Appeal: 21-4522 Doc: 61 Filed: 07/31/2023 Pg: 2 of 7
Before WILKINSON, KING, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Murdoch Walker, II, Bingzi Hu, LOWTHER WALKER LLC, Atlanta, Georgia, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Philip L. Aubart, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2 USCA4 Appeal: 21-4522 Doc: 61 Filed: 07/31/2023 Pg: 3 of 7
PER CURIAM:
Shawn Scott Fonville appeals his convictions and 420-month sentence for various
drug and firearm charges. On appeal, Fonville disputes the district court’s denial of his
motion to suppress evidence obtained pursuant to the execution of a search warrant. Next,
he contends that the court plainly erred in allowing the Government to introduce evidence
of his prior convictions. Finally, Fonville raises a host of sentencing issues. For the reasons
that follow, we affirm. 1
On appeal from an order denying a motion to suppress, we review the district court’s
legal conclusions de novo, its factual findings for clear error, and the evidence in the light
most favorable to the Government. United States v. Sueiro, 59 F.4th 132, 139 (4th Cir.
2023). “Under the Fourth Amendment, a [search] warrant must be supported by probable
cause[,]” which “requires only a fair probability that contraband or evidence of a crime will
be found in a particular place.” Id. (internal quotation marks omitted). In other words,
“[t]here must . . . be some nexus between the suspected crime and the place to be searched.”
United States v. Orozco, 41 F.4th 403, 409 (4th Cir. 2022). “[W]hether a nexus exists is a
practical, commonsense determination” that “may be established by the normal inferences
of where one would likely keep the evidence being sought.” Id. (internal quotation marks
1 Fonville separately appealed the district court’s decision to revoke his supervised release and to impose a 24-month revocation sentence. Though that appeal has been consolidated with the appeal from Fonville’s convictions and 420-month sentence, Fonville does not raise any challenge to the revocation proceedings. For this reason, and because nothing in this opinion calls into question the bases for revoking Fonville’s supervised release, we affirm the revocation judgment.
3 USCA4 Appeal: 21-4522 Doc: 61 Filed: 07/31/2023 Pg: 4 of 7
omitted). “We afford great deference to a judicial officer who issues a search warrant and
ask only whether the judicial officer had a substantial basis for finding probable cause.”
Sueiro, 59 F.4th at 139 (internal quotation marks omitted).
Fonville argues that the probable cause affidavit filed in support of the search
warrant application failed to allege a sufficient nexus between his residence and other
evidence indicating that he was involved in trafficking heroin. We disagree. Initially, we
readily conclude—and Fonville does not appear to dispute—that the affidavit adequately
alleged that Fonville was involved in transporting heroin from New York to Wilmington,
North Carolina, and conducting individual sales of heroin, both personally and through his
associates. Regarding Fonville’s residence, the affidavit alleged that one of Fonville’s
dealers frequently drove Fonville’s car from the residence to a block where narcotics sales
were known to take place. And at the time the dealer was arrested, he had just left
Fonville’s residence, again in Fonville’s car, while carrying roughly 30 bags of heroin.
These allegations, coupled with the abundant evidence of Fonville’s involvement in heroin
trafficking, were more than enough to establish a connection between the suspected crime
and Fonville’s home. See United States v. Lull, 824 F.3d 109, 119 (4th Cir. 2016) (“In
previous drug trafficking cases, we have found the nexus requirement satisfied when there
was evidence that the suspect was involved in the crime, coupled with the reasonable
suspicion that drug traffickers store drug-related evidence in their homes.” (cleaned up)).
Turning to the prior convictions evidence, Fonville conceded in the district court
that the admission of such evidence was proper. Now, however, Fonville insists that the
evidence was irrelevant and unreliable. Because Fonville explicitly waived his right to
4 USCA4 Appeal: 21-4522 Doc: 61 Filed: 07/31/2023 Pg: 5 of 7
object below, we will not review his unpreserved arguments on appeal. See United States
v. Duroseau, 26 F.4th 674, 678 n.2 (4th Cir. 2022) (“Courts may review a forfeited claim
for plain error. But when a claim is waived, it is not reviewable on appeal, even for plain
error.” (internal quotation marks omitted)). 2
Finally, Fonville renews several objections aimed at the calculation of his
Sentencing Guidelines range. Rather than addressing each of Fonville’s Guidelines
arguments, we can simply proceed to an “assumed error harmlessness inquiry.” United
States v. McDonald, 850 F.3d 640, 643 (4th Cir. 2017) (internal quotation marks omitted).
Under that approach, an allegedly erroneous application of the Guidelines does not require
reversal if we can determine that the asserted errors are harmless. Id. To reach this
conclusion, we must find that “(1) the district court would have reached the same result
even if it had decided the Guidelines issue[s] the other way, and (2) the sentence would be
reasonable even if the Guidelines issue[s] had been decided in the defendant’s favor.”
United States v. Mills, 917 F.3d 324, 330 (4th Cir. 2019) (cleaned up).
Here, the district court expressly stated that, irrespective of the correct Guidelines
range, a 420-month variance sentence was warranted under the pertinent 18 U.S.C.
§ 3553(a) factors. Because the “court made it abundantly clear that it would have imposed
2 Even if we were to review this issue for plain error, we would conclude that the evidence was relevant to Fonville’s charge for possessing a firearm in furtherance of a drug trafficking crime, see United States v. Lomax, 293 F.3d 701, 705 (4th Cir.
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USCA4 Appeal: 21-4522 Doc: 61 Filed: 07/31/2023 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4522
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHAWN SCOTT FONVILLE,
Defendant - Appellant.
No. 21-4523
Appeals from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:18-cr-00185-D-1; 7:14-cr-00043-D- 1)
Submitted: March 29, 2023 Decided: July 31, 2023 USCA4 Appeal: 21-4522 Doc: 61 Filed: 07/31/2023 Pg: 2 of 7
Before WILKINSON, KING, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Murdoch Walker, II, Bingzi Hu, LOWTHER WALKER LLC, Atlanta, Georgia, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Philip L. Aubart, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2 USCA4 Appeal: 21-4522 Doc: 61 Filed: 07/31/2023 Pg: 3 of 7
PER CURIAM:
Shawn Scott Fonville appeals his convictions and 420-month sentence for various
drug and firearm charges. On appeal, Fonville disputes the district court’s denial of his
motion to suppress evidence obtained pursuant to the execution of a search warrant. Next,
he contends that the court plainly erred in allowing the Government to introduce evidence
of his prior convictions. Finally, Fonville raises a host of sentencing issues. For the reasons
that follow, we affirm. 1
On appeal from an order denying a motion to suppress, we review the district court’s
legal conclusions de novo, its factual findings for clear error, and the evidence in the light
most favorable to the Government. United States v. Sueiro, 59 F.4th 132, 139 (4th Cir.
2023). “Under the Fourth Amendment, a [search] warrant must be supported by probable
cause[,]” which “requires only a fair probability that contraband or evidence of a crime will
be found in a particular place.” Id. (internal quotation marks omitted). In other words,
“[t]here must . . . be some nexus between the suspected crime and the place to be searched.”
United States v. Orozco, 41 F.4th 403, 409 (4th Cir. 2022). “[W]hether a nexus exists is a
practical, commonsense determination” that “may be established by the normal inferences
of where one would likely keep the evidence being sought.” Id. (internal quotation marks
1 Fonville separately appealed the district court’s decision to revoke his supervised release and to impose a 24-month revocation sentence. Though that appeal has been consolidated with the appeal from Fonville’s convictions and 420-month sentence, Fonville does not raise any challenge to the revocation proceedings. For this reason, and because nothing in this opinion calls into question the bases for revoking Fonville’s supervised release, we affirm the revocation judgment.
3 USCA4 Appeal: 21-4522 Doc: 61 Filed: 07/31/2023 Pg: 4 of 7
omitted). “We afford great deference to a judicial officer who issues a search warrant and
ask only whether the judicial officer had a substantial basis for finding probable cause.”
Sueiro, 59 F.4th at 139 (internal quotation marks omitted).
Fonville argues that the probable cause affidavit filed in support of the search
warrant application failed to allege a sufficient nexus between his residence and other
evidence indicating that he was involved in trafficking heroin. We disagree. Initially, we
readily conclude—and Fonville does not appear to dispute—that the affidavit adequately
alleged that Fonville was involved in transporting heroin from New York to Wilmington,
North Carolina, and conducting individual sales of heroin, both personally and through his
associates. Regarding Fonville’s residence, the affidavit alleged that one of Fonville’s
dealers frequently drove Fonville’s car from the residence to a block where narcotics sales
were known to take place. And at the time the dealer was arrested, he had just left
Fonville’s residence, again in Fonville’s car, while carrying roughly 30 bags of heroin.
These allegations, coupled with the abundant evidence of Fonville’s involvement in heroin
trafficking, were more than enough to establish a connection between the suspected crime
and Fonville’s home. See United States v. Lull, 824 F.3d 109, 119 (4th Cir. 2016) (“In
previous drug trafficking cases, we have found the nexus requirement satisfied when there
was evidence that the suspect was involved in the crime, coupled with the reasonable
suspicion that drug traffickers store drug-related evidence in their homes.” (cleaned up)).
Turning to the prior convictions evidence, Fonville conceded in the district court
that the admission of such evidence was proper. Now, however, Fonville insists that the
evidence was irrelevant and unreliable. Because Fonville explicitly waived his right to
4 USCA4 Appeal: 21-4522 Doc: 61 Filed: 07/31/2023 Pg: 5 of 7
object below, we will not review his unpreserved arguments on appeal. See United States
v. Duroseau, 26 F.4th 674, 678 n.2 (4th Cir. 2022) (“Courts may review a forfeited claim
for plain error. But when a claim is waived, it is not reviewable on appeal, even for plain
error.” (internal quotation marks omitted)). 2
Finally, Fonville renews several objections aimed at the calculation of his
Sentencing Guidelines range. Rather than addressing each of Fonville’s Guidelines
arguments, we can simply proceed to an “assumed error harmlessness inquiry.” United
States v. McDonald, 850 F.3d 640, 643 (4th Cir. 2017) (internal quotation marks omitted).
Under that approach, an allegedly erroneous application of the Guidelines does not require
reversal if we can determine that the asserted errors are harmless. Id. To reach this
conclusion, we must find that “(1) the district court would have reached the same result
even if it had decided the Guidelines issue[s] the other way, and (2) the sentence would be
reasonable even if the Guidelines issue[s] had been decided in the defendant’s favor.”
United States v. Mills, 917 F.3d 324, 330 (4th Cir. 2019) (cleaned up).
Here, the district court expressly stated that, irrespective of the correct Guidelines
range, a 420-month variance sentence was warranted under the pertinent 18 U.S.C.
§ 3553(a) factors. Because the “court made it abundantly clear that it would have imposed
2 Even if we were to review this issue for plain error, we would conclude that the evidence was relevant to Fonville’s charge for possessing a firearm in furtherance of a drug trafficking crime, see United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (including “the status of the possession (legitimate or illegal)” in the factors a jury may consider), and that the jury was the sole arbiter of deciding whether the testimony concerning the prior convictions was credible, see United States v. Robinson, 55 F.4th 390, 404 (4th Cir. 2022).
5 USCA4 Appeal: 21-4522 Doc: 61 Filed: 07/31/2023 Pg: 6 of 7
the same sentence . . . regardless of the advice of the Guidelines,” United States v. Gomez-
Jimenez, 750 F.3d 370, 382 (4th Cir. 2014), the first prong of the assumed error
harmlessness inquiry is satisfied, id. at 383.
Turning to the second prong, we consider whether the sentence is substantively
reasonable, taking into account the Guidelines range that would have applied absent the
assumed errors. Mills, 917 F.3d at 331. To be substantively reasonable, a sentence must
be “sufficient, but not greater than necessary,” to satisfy the goals of sentencing. 18 U.S.C.
§ 3553(a). In reviewing a sentence outside the Guidelines range, we “may consider the
extent of the deviation, but must give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.” Gall v. United States,
552 U.S. 38, 51 (2007).
Had the district court sustained each of Fonville’s objections, his Guidelines range
would have been 77 to 96 months. So, at 420 months, Fonville’s sentence was more than
quadruple the high end of the range that would have applied without the assumed errors.
While undoubtedly a substantial variance, this sentence was, according to the district court,
necessary to serve most of § 3553(a)’s sentencing goals. Specifically, the court
emphasized the seriousness of heroin dealing, which, the court lamented, leads to dead
bodies and grieving families. And noting that Fonville had not fallen prey to substance
abuse, the court found that his illicit activities were the product of greed, not addiction.
The court also underscored that Fonville resolved to build a drug trafficking organization
despite his prior stint in federal prison and, remarkably, his own mother’s death from a
crack cocaine addiction. From this, the court observed that neither legal troubles nor
6 USCA4 Appeal: 21-4522 Doc: 61 Filed: 07/31/2023 Pg: 7 of 7
personal tragedy had successfully deterred Fonville from engaging in conduct that was
destroying parts of his own community. In light of the district court’s thorough sentencing
explanation and the deference we owe to the court’s sentencing discretion, we conclude
that Fonville’s significant upward variance sentence is substantively reasonable.
Accordingly, we affirm Fonville’s criminal judgment and his revocation judgment.
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