UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-5053

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DONELLE KIRLEW, a/k/a Badass,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Leonie M. Brinkema, District

Judge. (1:07-cr-00183-LMB-1)

Submitted: July 23, 2008 Decided: September 5, 2008

Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Lana M. Manitta, RICH, GREENBERG, ROSENTHAL & COSTLE, LLP,

Alexandria, Virginia, for Appellant. Chuck Rosenberg, United

States Attorney, Patricia T. Giles, Assistant United States

Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Donelle Kirlew appeals his convictions and 156-month

sentence after being found guilty of possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000), and

possession of body armor by a convicted felon, in violation of 18

U.S.C. § 931 (2000). Kirlew claims the district court erred in

denying his motion to suppress evidence recovered from the car he

was driving prior to his arrest, asserting that police lacked

probable cause to search the locked trunk. Kirlew also contends

the district court violated his constitutional right to present a

defense by denying his request to call a witness to provide

exculpatory testimony. Finally, Kirlew claims his 156-month

sentence was unreasonable, as the district court erroneously

imposed an upward variance from the sentencing guidelines range

based on factors that were already taken into consideration.

Finding no error, we affirm.

In denying Kirlew’s motion to suppress, the district

court concluded that “a search incident to arrest in this case

would be justified, but even if that argument were not sufficient,

I think the abandonment theory . . . and inevitable discovery, I

think there are three powerful arguments . . . any one of which

would be sufficient.” Kirlew contends the search of his vehicle

was not incident to his arrest because the car was outside the area

of his immediate control at the time police placed him under
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arrest. Kirlew asserts that even if this exception applied, only

the passenger compartment could have been searched, as the police

lacked probable cause to open the trunk of the car. On appeal, we

review legal conclusions underlying the denial of a motion to

suppress de novo, and factual findings for clear error. United

States v. Moreland, 437 F.3d 424, 429 (4th Cir. 2006). The

evidence is construed in the light most favorable to the

Government, the prevailing party below. United States v. Seidman,

156 F.3d 542, 547 (4th Cir. 1998).

While Kirlew contends the police lacked probable cause to

search the trunk, he fails to address the preliminary issue of

whether he maintained any privacy interest in the car after jumping

out of the vehicle and leaving it in the middle of a public street.

The Fourth Amendment protects property for which an individual

maintains a “subjective expectation of privacy that society

recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33

(2001). A person who voluntarily abandons his property “loses any

reasonable expectation of privacy in the property and is

consequently precluded from seeking to suppress evidence seized

from the property.” United States v. Leshuk, 65 F.3d 1105, 1111

(4th Cir. 1995). In determining whether property has been

abandoned, we must consider “‘not whether all formal property

rights have been relinquished, but whether the complaining party

retains a reasonable expectation of privacy in the [property]
1While Kirlew was driving the car in question, he was not the

owner of the vehicle. See Stevenson, 396 F.3d at 546 (in making

abandonment determination, “it is still relevant to consider a

defendant’s property interest”).

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alleged to be abandoned.’” United States v. Stevenson, 396 F.3d

538, 546 (4th Cir. 2005) (quoting United States v. Haynie, 637 F.2d

227, 237 (4th Cir. 1980)) (alteration in original).

After being pursued by police during a dangerous highspeed chase, Kirlew jumped out of the still-moving vehicle and fled

on foot, as the car drifted down the road into oncoming traffic

before coming to a stop on the median. During the hearing on the

motion to suppress, Kirlew contended these actions did not qualify

as abandonment because he intended to flee from the police, not to

relinquish all rights to the vehicle. However, abandonment may be

found where a fleeing defendant “relinquishes an object to make his

flight easier.” United States v. Basinski, 226 F.3d 829, 837 (7th

Cir. 2000). Furthermore, the fact that Kirlew vacated his car in

an effort to evade capture by the police does not make his

abandonment of the vehicle involuntary. See United States v.

Flynn, 309 F.3d 736, 738 (10th Cir. 2002).

While Kirlew maintained he had a privacy interest in the

contents of the car,1 an individual’s expectation of privacy in his

automobile is less than in other property, particularly when the

vehicle is left in the street or another public area. See United

States v. Bellina, 665 F.2d 1335, 1340-41 (4th Cir. 1981). In this
2Fetters was charged with making false statements in

connection with her purchase of the firearm that she acquired for

Kirlew.

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case, the vehicle was found resting on the median of the street,

over 100 yards from where Kirlew jumped out. When the detective

opened the unlocked driver’s side door, he noted the car was still

in drive and the engine was still running. Accordingly, we find

that Kirlew’s actions indicate an absence of any reasonable

expectation of privacy in the contents of the vehicle. See United

States v. Tate, 821 F.2d 1328, 1330 (8th Cir. 1987) (citing United

States v. Walton, 538 F.2d 1348, 1354 (8th Cir. 1976)); United

States v. Edwards, 441 F.2d 749, 751 (5th Cir. 1971). Because

Kirlew abandoned his vehicle, the district court did not err in

denying his motion to suppress.

Kirlew next contends the district court erred by

excluding Edward Orenge as a witness, thereby violating Kirlew’s

constitutional right to effective assistance of counsel and to

present a defense. According to Kirlew’s proffer, Orenge would

have testified that Melanie Fetters, Kirlew’s girlfriend, purchased

two weapons from him during the relevant time period. Kirlew

contends this testimony would have rebutted Kristian Coffey’s

statement that she saw Brandi Cockrell go into a gun store and,

using a receipt and identification belonging to Fetters,2 return

with a firearm that she gave to Kirlew. Kirlew claims this

evidence was material because it would cast doubt on whether Coffey
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saw Kirlew in possession of the specific firearm charged in the

indictment.

A district court’s decision to admit or exclude evidence

is reviewed for abuse of discretion. United States v. Iskander,

407 F.3d 232, 236 (4th Cir. 2005). The relevant inquiry is whether

the district court’s exercise of discretion was arbitrary or

irrational. Id. Pursuant to Fed. R. Crim. P. 52(a), evidentiary

rulings are subject to harmless error review. United States v.

Weaver, 282 F.3d 302, 313 (4th Cir. 2002).

Despite Kirlew’s claims, the district court correctly

held that Orenge’s testimony had little relevance to the case, as

the testimony failed to address whether Kirlew exercised dominion

or control over the 9 millimeter handgun charged in the indictment.

While Kirlew asserts that Coffey may have seen him in possession of

a different firearm than the one charged in the indictment, this

issue was adequately addressed during Coffey’s testimony, as Coffey

conceded she did not remember any specific features of the gun,

only that it was “small” and “black.” Because Coffey could not

state with any degree of certainty that Kirlew had possessed the

same firearm charged in the indictment, further testimony about the

possibility of a second firearm would have been of little

consequence. See Fed. R. Evid. 401 (defining “relevant evidence”);

United States v. Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003).
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Furthermore, Orenge’s testimony would have opened the

door to additional inquiries regarding other firearms purchased or

possessed by Fetters. However, the district court had previously

granted Kirlew’s request to exclude evidence regarding another

firearm that was recovered by police during a search of Fetters’

residence. By excluding Orenge’s testimony, the district court

maintained a consistent position in regard to evidence of firearms

that were not identified in the indictment. Had Kirlew been

allowed to “open the door” on this matter, the Government might

have been permitted to introduce otherwise inadmissible evidence in

order to explain or refute Orenge’s testimony. See United

States v. Higgs, 353 F.3d 281, 329-30 (4th Cir. 2003).

Accordingly, the district court properly exercised its discretion

by preventing the introduction of irrelevant and possibly

prejudicial evidence. Even assuming the district court erred in

excluding Orenge’s testimony, Kirlew has failed to demonstrate this

ruling prejudiced his defense, as his claim that Fetters purchased

two firearms does little to address the strength of the

Government’s independent evidence demonstrating that he was in

possession of the handgun charged in the indictment. Therefore,

Kirlew’s claim is without merit.

Kirlew’s final claim is that his 156-month sentence is

unreasonable. Following United States v. Booker, 543 U.S. 220

(2005), a district court must engage in a multi-step process at
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sentencing. First, it must calculate the appropriate advisory

Guidelines range. It must then consider the resulting range in

conjunction with the factors set forth in 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2008) and determine an appropriate sentence.

Gall v. United States, 128 S. Ct. 586, 596 (2007). We review the

district court’s imposition of a sentence for abuse of discretion.

Id. at 597; see also United States v. Pauley, 511 F.3d 468, 473

(4th Cir. 2007). This court “must first ensure that the district

court committed no significant procedural error, such as failing to

calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen

sentence—including an explanation for any deviation from the

Guidelines range.” Gall, 128 S. Ct. at 597.

If there are no procedural errors, we then consider the

substantive reasonableness of the sentence. Id. “Substantive

reasonableness review entails taking into account the totality of

the circumstances, including the extent of any variance from the

Guidelines range.” Pauley, 511 F.3d at 473 (internal quotation

marks and citation omitted). While this court may presume a

sentence within the Guidelines range to be reasonable, we may not

presume a sentence outside the range to be unreasonable. Id.

Moreover, we must give deference to the district court’s decision
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that the § 3553(a) factors justify imposing a variant sentence and

to its determination regarding the extent of any variance. Id. at

473-74. “Even if we would have reached a different sentencing

result on our own, this fact alone is ‘insufficient to justify

reversal of the district court.’” Id. at 474 (quoting Gall, 128

St. Ct. at 597).

Kirlew does not claim his sentence was procedurally

unreasonable; rather, he asserts his sentence was substantively

unreasonable because the district court failed to identify any

factors justifying the considerable upward variance imposed.

However, Kirlew has failed to demonstrate the district court abused

its discretion in determining the § 3553(a) factors supported a

156-month sentence and justified a 41-month deviation from the

Guidelines range, as the court identified valid reasons for the

divergence. See Pauley, 511 F.3d at 473-74. While Kirlew contends

the district court improperly “re-counted” his criminal history and

the nature of the offense, § 3553(a)(1) directs the court to

consider “the nature and circumstances of the offense and the

history and characteristics of the defendant.” The district court

noted that Kirlew’s possession of body armor and a handgun

indicated he was “expecting to potentially be involved in a

shootout,” and that the “dangerous” nature of the offense

constituted an aggravating factor. Furthermore, the district court

properly accounted for Kirlew’s lengthy criminal history, noting he
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had “almost a lifetime career of criminal activity” and that his

juvenile record “literally had to [be] [brought] out in a cart.”

The district court also found that Kirlew had exhibited a

“propensity” for illegal activity and that there was a likelihood

of future dangerousness, as Kirlew committed the subject offenses

only two months after being released from prison. See 18 U.S.C.A.

§ 3553(a)(2)(C).

Kirlew contends the district court erred by considering

his lack of remorse because he pled not guilty to the charges.

However, the district court’s consideration of this factor was

appropriate in light of Kirlew’s allocution at sentencing, in which

he demonstrated a complete lack of contrition, downplayed his

criminal history, and failed to accept the dangerous nature of his

actions, claiming that his crime was simply “one possession of a

firearm by a convicted felon.” Following Kirlew’s statements, the

district court was well within its discretion to impose a higher

sentence in order to properly reflect the seriousness of the

offense and promote respect for the law. See 18 U.S.C.A.

§ 3553(a)(2)(A). Finally, while Kirlew claims there was little

consideration given to his need for mental health treatment, the

district court clearly evaluated this matter at sentencing, as the

court required Kirlew to receive mental health counseling and

recommended that he be designated to a facility where he could

obtain “extensive mental health treatment.” See United States v.
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Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006) (district court’s

explanation for sentence should indicate consideration of arguments

raised by both parties). Therefore, Kirlew has failed to

demonstrate his sentence was unreasonable.

Accordingly, we affirm Kirlew’s convictions 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 the decisional process.

AFFIRMED