UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4539


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARLON CHRIS TAYLOR,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.    Jerome B. Friedman, Senior
District Judge. (2:10-cr-00192-JBF-TEM-1)


Submitted:   November 22, 2011            Decided:   December 7, 2011


Before KING, GREGORY, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David Charles Masselli, MASSELLI PC, Arlington, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Cameron M.
Rountree, Special Assistant United States Attorney, Norfolk,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Marlon Chris Taylor appeals from his conviction for

possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g)(1) (2006).           Taylor contends that the district

court erred in failing to suppress certain statements he made

concerning the firearm to ATF Task Force Officer Benjamin Newman

as   well    as   the   firearm   itself.    He   also    contends   that    the

district court improperly declined to instruct the jury on his

proffered justification defense.           For the reasons stated within,

we affirm.

             In May 2010, Taylor’s former girlfriend (and next-door

neighbor)     reported    to   the   Portsmouth,       Virginia   police     that

Taylor broke into her home and raped her.                Police officers were

dispatched to Taylor’s residence.             Upon their arrival, Taylor

attempted to flee but was subdued in his backyard.                    Officers

then entered his home to ensure that other individuals were not

present.      They did not report finding a firearm during this

sweep.      Officers then transported Taylor to the police station

to be interviewed, where he was advised of his Miranda rights.

Taylor invoked his right to counsel, whereupon the interview

ceased.      Subsequently,     officers     obtained     arrest   warrants    for

Taylor on numerous state charges, as well as a search warrant

for his residence.       The search warrant application did not refer

to the prior sweep of the residence.              In executing the search

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warrant, the officers found the handgun that is the subject of

this prosecution.

              Taylor was held in state custody continuously pending

trial    on    the    state      charges     until      November         2010,    when    those

charges     were     nolle       prossed   in       favor    of    federal       prosecution.

Immediately upon Taylor's release from state custody, Officer

Newman arrested Taylor on the federal charge and transported him

to    the     United       States      Marshals         Service          Office.          While

transporting him, Officer Newman advised Taylor of his Miranda

rights      and    asked   whether     he       would       like   to    talk     “about      the

situation      without       a    lawyer    present.”             Taylor      stated     he   was

willing to talk, and explained that he possessed the firearm in

question only for a “few minutes” and only as a result of an

argument with his former girlfriend.                     He stated further that she

“had the firearm in her waistband and showed it” to him as they

argued, but that she “wasn’t pointing it at him or threatening

him with it but she was just holding onto it.”                             At some point in

the   argument,       Taylor      stated,    he      knocked       the    weapon    from      her

hands and placed it atop a kitchen cabinet.                             He further advised

Newman that he did not know how the firearm ended up at his

residence.

              By     pretrial      motion,      Taylor       sought      to    suppress       the

statements he made to Officer Newman as well as the firearm

itself.       Specifically, Taylor contended that (1) Officer Newman

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did not advise him of his Miranda rights before questioning him,

and   (2)    the   firearm     was   improperly    obtained     during    the

warrantless    sweep   of    his   residence   immediately    following   his

arrest (rather than during the execution of the search warrant).

After conducting a hearing at which several police officers and

Taylor testified, the district court denied the motion.                   The

district court credited the testimony of the officers, and found

specifically that Officer Newman properly advised Taylor of his

Miranda rights during Taylor’s transfer into federal custody.

            At trial, Taylor asked the court to instruct the jury

on a justification defense.          After hearing arguments, the court

declined to give the instruction.          The jury found Taylor guilty.

Taylor now appeals.

            Taylor, in a shift in theory on appeal, first contends

that he timely and unambiguously invoked his Miranda right to

counsel while in state custody, that there was no cognizable

break in custody when he was released into federal custody to

Officer Newman, and that he did not initiate communication with

Newman.     Thus, he contends, his statements to Newman should have

been suppressed.       See Edwards v. Arizona, 

(1981);

Maryland v. Shatzer, 

(2010).           We agree with the

government, however, that Taylor has waived this argument by

failing to raise it as a distinct ground in support of his



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motion to suppress.       See United States v. White, 

(10th Cir. 2009), cert. denied, 

(2010):

             Rule   12(b)(3)(C)   of   the   Federal   Rules  of
       Criminal Procedure requires that a party raise a
       motion to suppress before trial. A party who fails to
       do so “waives any Rule 12(b)(3) defense, objection, or
       request,” although “[f]or good cause, the court may
       grant relief from the waiver.” Fed.R.Crim.P. 12(e).
       This waiver rule applies not only when a defendant
       fails to file any pretrial motion to suppress, but
       also when a defendant fails to assert a particular
       argument in a pretrial suppression motion that he did
       file . . . . To avoid waiving a particular argument,
       the party must make “sufficiently definite, specific,
       detailed   and    nonconjectural    factual   allegations
       supporting his suppression claim” in his pretrial
       motion.

(emphasis added; citations omitted); see also United

States v. Lockett, 

, 212 (3d Cir. 2005)(“Therefore,

in the context of a motion to suppress, a defendant must have

advanced substantially the same theories of suppression in the

district court as he or she seeks to rely upon in this Court.”);

United States v. Schwartz, 

, 163 (2d Cir. 1976)(“The

Government very properly points out that the failure to assert a

particular ground in a pre-trial suppression motion operates as

a waiver of the right to challenge the subsequent admission of

evidence on that ground.”), cert. denied, 

(1977).

We can discern no good cause for Taylor’s failure to have raised

this   issue   below;   accordingly,       we   decline   to   consider   it   on

appeal.



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            Taylor next challenges the district court’s decision

not to suppress the firearm found in his residence.                     We review

the district court’s findings of fact for clear error and its

legal conclusions de novo.             United States v. Uzenski, 

, 704 (4th Cir. 2006).         Taylor’s argument -- that the firearm

was actually found during the sweep of his residence following

his arrest, which he contends was illegal -- is not persuasive.

Taylor offers no reason to upset the court’s findings that the

pre-warrant sweep of his residence was limited to ensuring that

no one else was present, and that the firearm was found when

officers were executing a search warrant that did not refer to

the prior sweep.

            Finally, Taylor contends that the district court erred

in declining to give a justification instruction.                     “A district

court   commits      reversible    error        in   refusing    to    provide    a

proffered jury instruction only when the instruction “(1) was

correct; (2) was not substantially covered by the court's charge

to the jury; and (3) dealt with some point in the trial so

important,    that    failure     to     give    the    requested      instruction

seriously    impaired    the    defendant's          ability    to    conduct    his

defense.”    United States v. Passaro, 

, 221 (4th Cir.

2009) (internal quotation marks omitted), cert. denied, 130 S.

Ct. 1551 (2010).        This court “review[s] the district court’s

decision to give or refuse to give a jury instruction for abuse

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of discretion.”            

entitled to a required instruction,

the party must establish a sufficient evidentiary foundation.

United States v. Lewis, 

, 33 n.8 (4th Cir. 1995).

             The     court       did    not    err    in     declining        to    give     the

justification instruction.                   To be entitled to the instruction,

Taylor was required to “produce evidence which would allow the

factfinder to conclude” that, among other things, he was under

an    “unlawful      and    present      threat      of    death    or       serious   bodily

injury,”      that    he     did       not    “recklessly         place      himself    in     a

situation where he would be forced to engage in” the conduct,

and   that    he     “had    no    reasonable        legal      alternative.”           United

States v. Ricks, 

, 202 (4th Cir. 2009) (internal

quotation marks omitted).               The only evidence Taylor offered as a

basis for the instruction, however, was his statement to Officer

Newman    that     his      former      girlfriend        had     the     firearm      in    her

waistband, and that he did not feel threatened by her.                                 As the

district      court        cogently      reasoned,         such    evidence,        even     if

accepted by the jury, does not provide a sufficient foundation

for the instruction.

             Accordingly, we affirm the judgment of the district

court.       We dispense with oral argument because the facts and

legal    contentions         are    adequately       presented          in   the    materials




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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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