Filed: July 2, 2004

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4854

(CR-02-248)

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

versus

HOLLIS BRANDON ROANE, a/k/a Brandon R. 

Hollis,

 Defendant - Appellant.

O R D E R

The court amends its opinion filed June 15, 2004, as

follows:

On the cover sheet, district court information -- the case

number is corrected to read “CR-02-248.”

For the Court - By Direction

/s/ Patricia S. Connor

 Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4854

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

HOLLIS BRANDON ROANE, a/k/a Brandon R. Hollis,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. Robert E. Payne, District

Judge. (CR-02-248)

Submitted: May 7, 2004 Decided: June 15, 2004

Before WIDENER, LUTTIG, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Edwin F. Brooks, EDWIN F. BROOKS, P.C., Richmond, Virginia, for

Appellant. Paul J. McNulty, United States Attorney, Michael J.

Elston, Stephen W. Miller, Assistant United States Attorneys,

Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Hollis Brandon Roane appeals from his conviction and 100-

month sentence imposed following a guilty plea to possession with

the intent to distribute more than five grams of cocaine base. See

21 U.S.C. § 841 (2000). On appeal, Roane challenges the district

court’s decision not to hold a suppression hearing, the denial of

his motion to suppress and the application of the sentencing

guidelines.

For the first time on appeal, Roane objects to the

district court’s decision to deny Roane’s motion to suppress

without holding a hearing. Therefore, his claim is subject to

plain error review. See United States v. Stockton, 349 F.3d 755,

761 (4th Cir. 2003), cert. denied, __ S. Ct. __, 2004 WL 264246

(Mar. 22, 2004) (No. 03-8858); Fed. R. Crim. P. 52(b). In order to

notice a putative error under Rule 52(b), Roane must show (1) that

an error occurred, (2) that the error was plain, and (3) that the

error affected his substantial rights. See Stockton, 349 F.3d at

761. Even when all three of these criteria are met, we will not

correct the error unless it seriously affects the fairness,

integrity and reputation of the proceedings. Id. at 761-62.

With regard to the suppression motion, Roane fails to

assert a genuine dispute of material facts. Further, he fails to

show how the district court’s decision to deny the motion without

a hearing affected his substantial rights. Because Roane fails to
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set forth a factual dispute, we cannot say that the district

court’s decision not to hold a hearing on the suppression issue was

erroneous. 

Additionally, Roane’s argument that the district court

erred in denying his suppression motion is similarly without merit.

In reviewing the denial of a motion to suppress, this Court reviews

the district court’s legal conclusions de novo and its factual

findings for clear error. United States v. Jones, 356 F.3d 529,

533 (4th Cir.), cert. denied, __ S. Ct. __, 2004 WL 264237 (2004).

This Court reviews the facts in the light most favorable to the

party that prevailed below. Id.

Roane was the subject of a Terry investigatory stop based

on a witness’ identification of him as the perpetrator in a recent

robbery. See Terry v. Ohio, 392 U.S. 1 (1968); United States v.

Quarles, 330 F.3d 650, 653 (4th Cir.), cert. denied, 124 S. Ct. 459

(2003). When several police officers attempted to stop Roane,

Roane assaulted one of the officers. He was then arrested for the

assault, and validly searched pursuant to that arrest. United

States v. LeFevre, 685 F.2d 897, 900 (4th Cir. 1982). The search

revealed the crack cocaine. The district court did not err in

denying Roane’s motion to suppress.

Finally, we find that the district court did not err in

refusing to run Roane’s federal sentence concurrently with his

undischarged and unrelated state sentence imposed for violation of
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his probation. When reviewing a district court’s application of

the sentencing guidelines, we review the lower court’s factual

findings for clear error and its legal conclusions de novo. United

States v. Williams, 342 F.3d 350, 357 (4th Cir. 2003), cert.

denied, 124 S. Ct. 1189 (2004). 

The Sentencing Guidelines dictate that if a defendant was

on state probation at the time he committed the federal offense,

his federal sentence should be imposed consecutively to “the term

imposed for the violation of probation . . . in order to provide an

incremental penalty for the violation of probation.” U.S.

Sentencing Guidelines Manual, § 5G1.3, Cmt. n.6 (2002). Therefore,

the district court did not err in imposing Roane’s federal sentence

consecutively to his state sentence for the probation violation.

Accordingly, we affirm Roane’s conviction 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 in the decisional process.

AFFIRMED