UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4227

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

XAVIER STANLEY EXUM,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Deborah K. Chasanow, Senior District 

Judge. (8:13-cr-00320-DKC-1)

Submitted: June 28, 2016 Decided: July 27, 2016 

Before WILKINSON, AGEE, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS, Baltimore, 

Maryland, for Appellant. Rod J. Rosenstein, United States 

Attorney, Gerald A. A. Collins, Nicholas J. Patterson, Special 

Assistant United States Attorneys, Greenbelt, Maryland, for 

Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Xavier Stanley Exum appeals his conviction and 78–month 

sentence for being a felon in possession of a firearm, in 

violation of 18 U.S.C. § 922(g)(1) (2012). Exum argues that the 

district court erroneously failed to suppress the fruits of a 

search of an apartment, his postarrest statements, and cell-site 

location information (“CSLI”). Exum also argues that the 

district court erred by allowing a Government expert witness to 

testify despite inadequate notice, denying his Fed. R. Crim. P.

29 motion, and applying a sentence enhancement for possessing a 

firearm in connection with a drug trafficking offense. We 

affirm.

I.

Exum challenges the denial of his motions to suppress. We 

review factual findings underlying a district court’s denial of 

a motion to suppress for clear error and legal conclusions de 

novo. United States v. Foster, 634 F.3d 243, 246 (4th Cir. 

2011). We also construe the evidence “in the light most 

favorable to the Government, as the party prevailing below.” 

United States v. Black, 707 F.3d 531, 534 (4th Cir. 2013). 

Exum first argues that the officers improperly entered the 

apartment where he was staying when they were seeking to arrest 

him for a parole violation. “[A]n arrest warrant founded on 
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probable cause implicitly carries with it the limited authority 

to enter a dwelling in which the suspect lives when there is 

reason to believe the suspect is within.” Payton v. New York, 

445 U.S. 573, 603 (1980). Although Exum argues that the 

officers had no reason to believe he was home at the time they 

entered the apartment, see United States v. Hill, 649 F.3d 258, 

262 (4th Cir. 2011) (providing standard), we disagree.

Assuming, without deciding, that probable cause is 

required,* courts use a “totality-of-the-circumstances approach” 

in making that determination. Illinois v. Gates, 462 U.S. 213, 

230 (1983). “[P]robable cause involves probabilities — judgment 

calls that are tethered to context and rooted in common sense.” 

United States v. White, 549 F.3d 946, 947 (4th Cir. 2008); see

Gates, 462 U.S. at 232 (describing probable cause as “fluid 

concept”). “Under this pragmatic, common sense approach, we

defer to the expertise and experience of law enforcement 

officers at the scene.” United States v. Dickey–Bey, 393 F.3d 

449, 453 (4th Cir. 2004).

Here, an officer found Exum’s vehicle parked near the 

apartment and saw someone peeking through the apartment’s 

 * As noted by the parties, courts disagree as to whether 

Payton’s “reason to believe” standard requires a showing of 

probable cause or something less, and we have not resolved the 

issue. Hill, 649 F.3d at 262-63.
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blinds. Moreover, the apartment manager told the officer that 

Exum spent his days at the apartment and that, if his car was 

there, Exum would be there. Based on this information, we 

conclude that the officers reasonably believed that Exum was 

home and that their entry into the apartment was proper.

Exum also argues that the officers exceeded the scope of 

their search when they moved a door and an air mattress to 

confirm the presence of firearms. Because the officers were 

lawfully present in the apartment and had a lawful right to 

access the firearms from their positions, and because the 

incriminating character of the firearms was immediately apparent 

due to Exum’s prior felony, we conclude that the seizure of the 

firearms under the plain-view doctrine was proper. See United 

States v. Green, 599 F.3d 360, 376 (4th Cir. 2010) (discussing 

doctrine and holding that officer seeking to execute arrest 

warrant could seize cash from under bed where cash was visible 

without moving bed). Accordingly, we affirm the district 

court’s denial of the motion to suppress the fruits of the 

apartment search.

Next, Exum challenges the district court’s failure to 

suppress all of his postarrest statements. Because Exum was in 

custody and had not been informed of his rights pursuant to 

Miranda v. Arizona, 384 U.S. 436 (1966), any statements that he 
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made as a result of interrogation must be suppressed. See Rhode 

Island v. Innis, 446 U.S. 291, 300-01 (1980) (defining 

interrogation); see also United States v. Johnson, 734 F.3d 270, 

277 (4th Cir. 2013) (“[W]hen the police have no reason to expect 

that a question will lead a suspect to incriminate himself, that 

question cannot constitute an interrogation under Miranda.”). 

Our review of the record leads us to conclude that there is no 

evidence any of Exum’s unsuppressed, inculpatory statements were 

foreseeably precipitated by the officers’ remarks. Accordingly, 

we affirm the district court’s denial of the motion to suppress 

Exum’s postarrest statements.

Finally, Exum argues that the Government’s acquisition of 

his CSLI under 18 U.S.C. § 2703(d) (2012) was improper. Because 

Exum did not assert this argument below, our review is for plain 

error. United States v. Fuertes, 805 F.3d 485, 497 (4th Cir. 

2015), cert. denied, 136 S. Ct. 1220 (2016) (providing 

standard); see Henderson v. United States, 133 S. Ct. 1121, 

1126-27 (2013) (same). While this appeal was pending, we held 

that the Government is not required to obtain a warrant before 

procuring a defendant’s CSLI. United States v. Graham, __ F.3d 

__, __, Nos. 12-4659, 12-4825, 2016 WL 3068018, at *1, *3-4 (4th 

Cir. May 31, 2016). Accordingly, we affirm the denial of Exum’s 

motion to suppress his CSLI.
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II.

Exum argues that the district court erred by admitting the 

testimony of an expert witness who, Exum believes, had not been

timely disclosed pursuant to Fed. R. Crim. P. 16(a)(1)(G). 

Because “Rule 16 is silent as to the timing of expert witness 

disclosures” and “there is no pre-trial discovery order 

governing such timing in this case, our review considers whether 

the district court abused its discretion in finding that as a 

matter of general fairness, [the Government’s] disclosure was 

[]timely.” United States v. Holmes, 670 F.3d 586, 598 (4th Cir. 

2012) (affirming exclusion of expert witness who was disclosed 

“with only three days remaining before trial, two of which fell 

during the weekend”). 

The Government filed its expert disclosure 11 days before 

trial, and defense counsel acknowledged receipt 7 days before 

trial. Although Exum argues that the Government’s disclosure 

did not reveal this witness was an expert witness, the notice 

belies his claim. Accordingly, we hold that the district court 

did not abuse its discretion in allowing this expert’s 

testimony.

III.

Turning to Exum’s challenge to the sufficiency of the 

evidence, we review de novo the district court’s denial of a 
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Rule 29 motion. United States v. Royal, 731 F.3d 333, 337 (4th 

Cir. 2013). We will sustain the jury’s verdict “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). “Substantial evidence is evidence that a 

reasonable finder of fact could accept as adequate and 

sufficient to support a conclusion of a defendant’s guilt beyond 

a reasonable doubt.” United States v. White, 771 F.3d 225, 230 

(4th Cir. 2014) (internal quotation marks omitted), cert. 

denied, 135 S. Ct. 1573 (2015). 

Although Exum does not dispute that he had previously been 

convicted of a felony or that the firearms at issue had moved in 

interstate commerce, he argues that there is insufficient 

evidence that he possessed those firearms. See Royal, 731 F.3d 

at 337 (outlining elements of § 922(g) offense); see also United 

States v. Al Sabahi, 719 F.3d 305, 311 (4th Cir. 2013)

(discussing constructive possession). Here, the Government 

presented ample evidence that Exum was living at the apartment 

where the firearms were found. These firearms, which were 

located under an air mattress and behind a door, were not so 

well hidden to prevent the jury from reasonably concluding that 

Exum was aware of their presence. United States v. Shorter, 328 
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F.3d 167, 172 (4th Cir. 2003). Accordingly, we affirm the 

denial of Exum’s Rule 29 motion.

IV.

With regard to his sentence, Exum asserts that the district 

court erred by applying a sentence enhancement under U.S. 

Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (2013), for 

possessing firearms in connection with another felony. Here, it 

is undisputed that a handgun was stored under an air mattress in 

the living room of the apartment, a shotgun was stored behind 

the door of a nearby room, and drugs and drug paraphernalia were 

stored in the kitchen. United States v. McKenzie-Gude, 671 F.3d 

452, 463-64 (4th Cir. 2011) (discussing proof to satisfy “in 

connection with” requirement). Based on these facts, we hold

that the district court did not clearly err in finding that 

these firearms were stored in close enough proximity to the drug 

paraphernalia to warrant an inference that Exum possessed these 

firearms in connection with his drug activity. See United 

States v. Manigan, 592 F.3d 621, 629 (4th Cir. 2010); see also

United States v. Cox, 744 F.3d 305, 308 (4th Cir. 2014) (stating 

standard of review). 

V.

We affirm the judgment of the district court. We deny 

Exum’s motion to file a pro se brief. See United States v. 
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Penniegraft, 641 F.3d 566, 569 n.1 (4th Cir. 2011). 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