UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-5104

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

CARNELL DESHAWN KELLY, a/k/a Mookie,

Defendant – Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. Thomas D. Schroeder, 

District Judge. (1:00-cr-00193-TDS-1)

Submitted: June 22, 2011 Decided: July 12, 2011

Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Todd A. Smith, LAW FIRM OF TODD A. SMITH, Graham, North 

Carolina, for Appellant. Ripley Rand, United States Attorney, 

Michael F. Joseph, Assistant United States Attorney, Greensboro, 

North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Carnell Deshawn Kelly appeals the district court’s 

order revoking his supervised release and sentencing him to 

twenty-eight months’ imprisonment and thirty-two months of 

supervised release. On appeal, Kelly contends that there was 

insufficient evidence to support the district court’s finding 

that he violated a condition of his supervised release by 

committing a crime because the Government failed to prove he 

intended to distribute the crack cocaine recovered from him. We 

affirm.

In reviewing a sentence imposed upon revocation of 

supervised release, this court “takes a more ‘deferential 

appellate posture concerning issues of fact and the exercise of 

discretion’ than reasonableness review for [G]uidelines 

sentences.” United States v. Moulden, 478 F.3d 652, 656 

(4th Cir. 2007) (quoting United States v. Crudup, 461 F.3d 433, 

439 (4th Cir. 2006)). Because Kelly did not argue in the 

district court that the Government failed to prove intent to 

distribute, the Government contends that this issue should be 

reviewed for plain error. The district court’s conclusion that 

Kelly possessed cocaine with intent to distribute is a factual 

finding reviewed for clear error. See United States v. Benton, 

627 F.3d 1051, 1054 (8th Cir. 2010).
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To revoke supervised release, a district court need 

only find a violation of a condition of supervised release by a 

preponderance of the evidence. 18 U.S.C. § 3583(e)(3) (2006). 

This burden “simply requires the trier of fact to believe that 

the existence of a fact is more probable than its nonexistence.” 

United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010) 

(internal quotation marks omitted). A defendant challenging the 

sufficiency of the evidence faces a heavy burden. United 

States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). In 

determining whether the evidence in the record is sufficient, we 

view the evidence in the light most favorable to the government. 

United States v. Burgos

We conclude that the district court did not clearly 

err in determining that Kelly intended to distribute the crack

cocaine at issue. In response to complaints of drug activity, 

police conducted surveillance of an apartment. Police received 

tips that a heavyset male was selling drugs. They observed 

approximately fifteen transactions in forty-five minutes at the 

residence. They watched as a heavyset black male in a red hat 

and red shirt exited the apartment and left the area in a 

Chevrolet Impala. Police saw that individuals continued to 

knock on the apartment door, but no one answered. Police 

followed the Impala and witnessed the driver drop a baggie, 

, 94 F.3d 849, 862 (4th Cir. 1996) (en 

banc).
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later determined to contain 3.5 grams of crack, from the window. 

A heavyset black male wearing a red hat and red shirt was 

driving the Impala. The man was Kelly. The offense for which 

Kelly is on supervised release included selling small amounts of 

cocaine.

Because this evidence clearly supports the factual 

finding at issue, we reject Kelly’s argument on appeal. 

Accordingly, we affirm the district court’s order. 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