UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-5248

UNITED STATES OF AMERICA, 

Plaintiff – Appellee, 

v. 

BRAD EVERETT FORD, 

Defendant – Appellant. 

Appeal from the United States District Court for the Western 

District of Virginia, at Harrisonburg. Samuel G. Wilson, 

District Judge. (5:07-cr-00061-sgw-1) 

Submitted: October 6, 2010 Decided: November 30, 2010

Before NIEMEYER, GREGORY, and KEENAN, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Charles A. Murray, Bonita Springs, Florida, for Appellant. 

Julia C. Dudley, United States Attorney, Jeb T. Terrien, 

Assistant United States Attorney, Harrisonburg, Virginia, for 

Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Brad Everett Ford was convicted after a jury trial of 

one count of aiding and abetting the possession with the intent 

to distribute marijuana, in violation of 18 U.S.C. § 2 (2006) 

and 21 U.S.C. § 841(a)(1), (b)(1)(D) (2006) (“count one”), and 

one count of aiding and abetting the possession of firearms in 

furtherance of a drug trafficking crime, in violation of 

18 U.S.C. §§ 2, 924(c)(1) (2006) (“count two”). The district 

court sentenced Ford to 33 months’ imprisonment on count one and 

a consecutive sentence of 60 months’ imprisonment on count two, 

for a total sentence of 93 months’ imprisonment. On appeal, 

Ford asserts that: (1) the district court erred in refusing to 

grant his motion to suppress evidence and statements arising 

from a September 2007 traffic stop; (2) the district court erred 

in denying his Fed. R. Crim. P. 29 motion for judgment of 

acquittal because the evidence is insufficient to support his 

convictions; (3) the district court erred in denying his motion 

for a new trial; and (4) the 93-month prison sentence is 

substantively unreasonable. Finding no error, we affirm. 

As to Ford’s challenge to the district court’s ruling 

on the suppression motion, we review de novo the district 

court’s legal conclusions and review for clear error its factual 

determinations. United States v. Blake, 571 F.3d 331, 338 

(4th Cir. 2009), cert. denied, 130 S. Ct. 1104 (2010). Because 
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the district court denied the motion to suppress, we construe

the evidence in the light most favorable to the Government, the 

party prevailing below. United States v. Farrior, 535 F.3d 210, 

217 (4th Cir. 2008). Ford challenges the district court’s 

denial of his motion to suppress on the ground that Trooper 

Miller lacked probable cause to search his vehicle. 

The Fourth Amendment permits a warrantless search of a 

vehicle and any containers or compartments found within it, 

where probable cause exists to search the vehicle. United 

States v. Ross, 456 U.S. 798, 823-24 (1982); see also

California v. Acevedo, 500 U.S. 565, 570 (1991). This court has 

held that the odor of marijuana, without more, emanating from a 

properly-stopped vehicle, may provide the requisite probable 

cause to support the warrantless search of both the vehicle and 

the baggage therein. See United States v. Scheetz, 293 F.3d 

175, 183-84 (4th Cir. 2002) (upholding as valid the search of a 

knapsack in a car based on officers’ detection of odor of 

marijuana); see also United States v. Humphries, 372 F.3d 653, 

659 (4th Cir. 2004) (concluding that a police officer has 

probable cause to arrest for marijuana possession if the officer 

“smells the odor of marijuana in circumstances where the officer 

can localize its source to a person”). 

Here, Trooper Miller pulled Ford’s vehicle over for

speeding and changing lanes without signaling, and Ford does not 
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suggest that Miller acted improperly in doing so. After the 

vehicle’s passenger rolled down his window, Miller smelled the 

odor of “burnt marijuana” emanating from the vehicle. He 

searched the vehicle and the bags contained within it based on 

the marijuana odor. Under prevailing Supreme Court and Fourth 

Circuit case law, that testimony supports the district court's 

conclusion that Miller had probable cause to search the inside 

of the vehicle, as well as the bags contained within it. 

Ford also challenges the district court’s denial of 

the motion to suppress on the ground that Trooper Miller did not 

advise him of his rights under Miranda v. Arizona, 384 U.S. 436 

(1966), prior to his admission to Miller that he had smoked 

marijuana and knew he was going to jail. Statements obtained 

from a defendant during custodial interrogation are 

presumptively compelled in violation of the Fifth Amendment, 

unless the Government shows that law enforcement officers 

adequately informed the defendant of his Miranda rights and 

obtained a wavier of those rights. United States v. Cardwell, 

433 F.3d 378, 388-89 (4th Cir. 2005). To determine whether a 

defendant was in custody for purposes of Miranda, courts are to 

determine “first, what were the circumstances surrounding the 

interrogation; and second, given those circumstances, would a 

reasonable person have felt he or she was not at liberty to 

terminate the interrogation and leave.” Thompson v. Keohane, 
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516 U.S. 99, 112 (1995) (footnote omitted). In other words, 

“[a]n individual is in custody when, under the totality of the 

circumstances, a suspect’s freedom from action is curtailed to a 

degree associated with formal arrest.” United States v. 

Colonna, 511 F.3d 431, 435 (4th Cir. 2007) (internal quotation 

marks omitted). Courts view the inquiry objectively, 

questioning whether “a reasonable [perso]n in the suspect’s 

position would have understood his situation to be one of 

custody.” Id. (internal quotation marks omitted).

We have reviewed the record and conclude that Ford was 

not in custody when he told Miller that he had smoked marijuana 

and knew he was going to jail. Although Ford made these 

statements while sitting in Trooper Miller’s police vehicle with 

its doors closed and the windows shut, the reason for detaining 

him in that fashion--namely, that the heavy highway traffic and 

Ford’s fast speech made Ford hard to hear when Miller initially 

talked with him on the highway’s shoulder--militated against 

“whatever coercive elements [we]re otherwise normally attendant” 

in such a situation. United States v. Manbeck, 744 F.2d 360, 

379 (4th Cir. 1984). Additionally, Ford does not point to 

anything in Miller’s demeanor or the way in which he conducted 

himself that would suggest that Ford was under arrest or being 

detained as if he were under arrest. Miller never brandished 

any weapon, had physical contact with Ford, threatened him, or 
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told him that he was under arrest or otherwise not free to 

leave. See Manbeck, 744 F.2d at 379 (concluding that defendant 

was not in custody, in part, because officers did not handcuff, 

threaten, or pressure defendant). Further, we reject Ford’s 

attempt to liken his case to Florida v. Royer, 460 U.S. 491, 

501-02 (1983), where the Supreme Court held that the defendant 

was effectively “seized” under the Fourth Amendment where law 

enforcement officials requested and examined his airline ticket 

and identification, identified themselves as narcotics agents, 

told the defendant he was suspected of transporting narcotics, 

and asked him to accompany them to a police room, while 

retaining the ticket and identification and without indicating 

he was free to depart. Here, Ford was questioned by only one 

officer and, contrary to his assertion, there is no indication 

from the record that Trooper Miller retained Ford’s driver’s 

license while the two were conversing. In view of the totality 

of the circumstances, see United States v. Weaver, 282 F.3d 302, 

310 (4th Cir. 2002), we conclude that the district court did not 

err in denying Ford’s motion to suppress.

Ford also contends that the district court erred in 

denying his Rule 29 motion for judgment of acquittal because the 

evidence is insufficient to support the jury’s verdict. We

review de novo the district court’s denial of a Rule 29 motion 

for judgment of acquittal. United States v. Reid, 523 F.3d 310, 
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317 (4th Cir. 2008). A defendant challenging the sufficiency of 

the evidence “bears a heavy burden.” United States v. Beidler, 

110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks 

omitted). This court will uphold the jury’s verdict “if viewing 

the evidence in the light most favorable to the [G]overnment, it 

is supported by substantial evidence.” Reid, 523 F.3d at 317. 

“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.” 

Id. (internal quotation marks omitted). In reviewing for 

substantial evidence, this court considers both circumstantial 

and direct evidence and allows the Government all reasonable 

inferences from the facts shown to those sought to be 

established. United States v. Harvey, 532 F.3d 326, 333 

(4th Cir. 2008). 

Ford asserts that the evidence is insufficient to 

support his conviction for count one because the Government 

failed to prove that he constructively possessed marijuana found 

in his vehicle. A conviction for possession with the intent to 

distribute may be based on constructive possession. United 

States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992). “A person 

may have constructive possession of contraband if he has 

ownership, dominion, or control over the contraband or the 

premises or vehicle in which the contraband was concealed.” 
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United States v. Herder, 594 F.3d 352, 358 (4th Cir.), cert. 

denied, 130 S. Ct. 3440 (2010). “Proof of constructive 

possession requires proof the defendant had knowledge of the 

presence of the contraband, but constructive possession may be 

established by either circumstantial or direct evidence. Either 

way, a fact finder may properly consider the totality of the 

circumstances surrounding the defendant’s arrest and his alleged 

possession.” Id. (internal citations, quotation marks, and 

alteration omitted).

After review of the record, we conclude that the 

evidence was sufficient to support Ford’s conviction on count 

one. Ford was the driver and owner of the vehicle and does not 

contest that he exercised, or had the power to exercise, 

dominion and control over the drugs found therein. Further, 

viewed in the light most favorable to the Government, there was 

ample evidence from which the jury could infer Ford’s knowledge 

of the drugs in the vehicle. Ford was nervous and talking at a 

high rate of speed to the point of being difficult to 

understand, admitted to Trooper Miller that anything found in 

the vehicle was his responsibility, and urged him to place any 

charges on him for anything found in the vehicle. Additionally, 

because the evidence is sufficient to support Ford’s conviction 

on count one, we reject his challenge to the sufficiency of the 

evidence supporting count two, a challenge premised on the 
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argument that the evidence is insufficient to support his 

conviction on count one, the underlying drug offense.

With respect to Ford’s challenge to the district 

court’s denial of his motion for a new trial, we review the 

district court’s denial of a motion for a new trial, even when 

predicated on an alleged violation of Brady v. Maryland, 

373 U.S. 83 (1963), or Giglio v. United States, 405 U.S. 150 

(1972), for abuse of discretion. See United States v. Stokes, 

261 F.3d 496, 502 (4th Cir. 2001). Under this standard, “[we]

may not substitute [our] judgment for that of the district 

court; rather, we must determine whether the court’s exercise of 

discretion, considering the law and the facts, was arbitrary or 

capricious.” United States v. Mason, 52 F.3d 1286, 1289 

(4th Cir. 1995). In Ford’s view, the Government’s failure to 

disclose to the defense the entire criminal complaint prepared 

by Trooper Miller after Ford’s arrest contravened Brady.

To secure a new trial on the ground that the 

Government contravened its obligations under Brady, Ford had the 

burden of showing that (1) the undisclosed evidence was 

favorable to him; (2) the evidence was material; and (3) the 

prosecution possessed the evidence, yet failed to disclose it. 

Stokes, 261 F.3d at 502. After review of the record, we 

conclude that Ford fails to make this showing. The criminal 

complaint Miller prepared was filed in state court and was a 
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court record available to both the Government and Ford, and no 

record evidence support’s Ford’s contention that the Government 

possessed the entire complaint but failed to disclose it to the 

defense.

Finally, with respect to Ford’s sentence, we review it

under a “deferential abuse-of-discretion standard.” Gall v. 

United States, 552 U.S. 38, 41 (2007). This review entails 

appellate consideration of both the procedural and substantive 

reasonableness of a sentence. Id. at 51. Ford, however, does 

not contest the procedural reasonableness of his sentence.

In determining whether a sentence is substantively 

reasonable, this court “tak[es] into account the ‘totality of 

the circumstances, including the extent of any variance from the 

Guidelines range.’” United States v. Pauley, 511 F.3d 468, 473 

(4th Cir. 2007) (quoting Gall, 552 U.S. at 51). This court 

accords a sentence within a properly-calculated Guidelines range 

an appellate presumption of reasonableness. United States v. 

Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008). Such a presumption 

is rebutted only by showing “that the sentence is unreasonable 

when measured against the [18 U.S.C.] § 3553(a) [(2006)] 

factors.” United States v. Montes-Pineda, 445 F.3d 375, 379 

(4th Cir. 2006) (internal quotation marks omitted). Further, 

“[a] statutorily required sentence . . . is per se reasonable.” 

Farrior, 535 F.3d at 224.
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Here, the 33-month sentence on count one is within the 

applicable Guidelines range, see U.S. Sentencing Guidelines 

Manual (2007), and Ford’s citation to data from the United 

States Sentencing Commission suggesting that a defendant’s 

general risk of recidivism declines with age does not establish 

that Ford’s 33-month prison sentence was unreasonable when 

measured against the factors listed at § 3553(a). Moreover, 

Ford’s statutorily-required consecutive sentence on count two is 

per se reasonable. The sentence is substantively reasonable, 

and we therefore conclude that the district court did not abuse 

its discretion in sentencing Ford.

Accordingly, we affirm the district court’s judgment. 

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