UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4231


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DEMETRIUS ANTONIO MCKOY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:09-cr-00051-BO-1)


Submitted:   November 16, 2012            Decided:   November 20, 2012


Before GREGORY, SHEDD, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina,
for Appellant. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Demetrius Antonio McKoy appeals the district court’s

judgment sentencing him to 220 months’ imprisonment.                                   McKoy was

convicted of simple possession of marijuana in violation of 21

U.S.C. § 844(a) (2006), possession of a firearm by a felon in

violation of 18 U.S.C. §§ 922(g)(1), 924 (2006), and possession

with   intent      to    distribute         cocaine       in    violation       of     21    U.S.C.

§ 841(a)(1) (2006).             On appeal, McKoy argues that the district

court erred when it did not suppress evidence obtained by a

warrantless search of McKoy’s apartment, the evidence was not

sufficient as a matter of law to convict him of possession of a

firearm,      he     was       entitled      to      a     jury       instruction           on    the

lesser-included          offense       of   simple        possession       of    cocaine,         and

that   the    district         court    erred       when       it   sentenced        McKoy       as   a

career offender.           We affirm.

              McKoy first contends that the district court erred by

denying      his     motion      to    suppress          the    evidence        of    contraband

discovered      in      his    apartment.           When       considering       the    district

court’s denial of a motion to suppress, we “review the district

court’s      legal         determinations            de        novo    and       its        factual

determinations for clear error.”                         United States v. Kelly, 

, 589 (4th Cir. 2010).                      Where a motion to suppress has

been   denied,        we      “construe      the      evidence        in   the       light       most

favorable to the government.”                   Id.       We also note that “searches

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and seizures inside a home without a warrant are presumptively

unreasonable.”      Payton v. New York, 

, 586 (1980).

            For a warrantless entry to be reasonable under the

Fourth     Amendment,         it     must       be     the      result        of        exigent

circumstances,         situations      where         “police        officers       (1)        have

probable cause to believe that evidence of illegal activity is

present     and   (2)     reasonably        believe          that     evidence          may    be

destroyed    or     removed        before   they       could    obtain        a    warrant.”

United States v. Cephas, 

, 494-95 (4th Cir. 2001);

see United States v. Turner, 

, 528 (4th Cir. 1981)

(enumerating additional factors for determining exigency).                                     We

review the factual finding of exigent circumstances for clear

error.     United States v. Mowatt, 

, 399 (4th Cir.

2008).    Upon review of the record, we conclude that the district

court did not err in finding probable cause to search, based on

the    plainly      apparent        illegal      activity           occurring          in     the

apartment.        We    further       conclude        that    the     district          court’s

finding    that   the    warrantless        entry      was     justified          by    exigent

circumstances was well-supported by the evidence.

            McKoy      also    argues       that      there     was     not       sufficient

evidence to convict him of possession of a firearm.                                    A jury’s

verdict “must be sustained if there is substantial evidence,

taking the view most favorable to the Government, to support

it.”      Glasser v. United States, 

, 80 (1942); see

                                            3
United States v. Perkins, 

, 160 (4th Cir. 2006).

The crime of being a felon in possession of a firearm has three

elements: “(1) the defendant previously had been convicted of a

crime punishable by a term of imprisonment exceeding one year;

(2) the defendant knowingly possessed, transported, shipped, or

received the firearm; and (3) the possession was in or affecting

commerce.”     United States v. Moye, 

, 395 (4th Cir.

2006) (citing United States v. Langley, 

, 606 (4th

Cir.   1995)     (en     banc)).         Possession       may    be      actual     or

constructive.     Moye, 454 F.3d at 395.             Our review of the record

leads us to conclude that the evidence was sufficient for a

rational finder of fact to conclude that McKoy possessed the

firearm.

           McKoy contends that he was entitled to an instruction

that would have allowed the jury to find him guilty of the

lesser-included offense of simple possession of cocaine.                          “The

district     court     has   no    discretion        to   refuse      to    give     a

lesser-included        instruction       if   the    evidence      warrants        the

instruction and the defendant requests it.”                     United States v.

Baker, 

, 1259 (4th Cir. 1993).                  To be entitled to

the instruction, the defendant must present some “evidence from

which a reasonable jury could find that [defendant’s] intent was

to   possess    the    cocaine     for    personal    use,      rather     than    for

distribution.”        United States v. Wright, 

, 1112

                                          4
(4th Cir. 1997).          McKoy did not put on any evidence of his own

at trial, and we conclude that he did not elicit enough evidence

from the Government witnesses, in light of                             Wright, to require

the     district        court     to     give        the        lesser-included      offense

instruction.

            Finally,        McKoy       argues        that       the     district    court’s

application        of     the     career            offender       Guidelines       violated

Apprendi v. New Jersey, 

 (2000), because the fact of

the     prior    convictions           relied       on     to     support    the    sentence

enhancement was not pled in the indictment and proved before the

jury.     Because McKoy was sentenced below the statutory maximums

on each count, his argument is without merit.

            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

this court and argument would not aid the decisional process.



                                                                                    AFFIRMED




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