PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4789

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOVON LOVELLE MEDLEY,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:17−cr−00242−PWG−1)

Argued: January 29, 2020 Decided: May 11, 2022

Before GREGORY, Chief Judge, KING, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Chief Judge Gregory and Judge King joined.

ARGUED: Cullen Oakes Macbeth, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Burden Hastings Walker, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Robert K. Hur, United States Attorney, Baltimore, Maryland, Christian J. Nauvel, Special Assistant United States Attorney, Thomas M. Sullivan, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. QUATTLEBAUM, Circuit Judge:

This matter returns to us after being held in abeyance pending the Supreme Court’s

decision in Greer v. United States,

(2021) and the October 6, 2021 order of

this Court, sitting en banc, following that decision. Based on Greer, we held that appellant

Jovon Medley “is not entitled to plain-error relief for his unpreserved Rehaif claim, and we

affirm the judgment of the district court with respect to this issue.” The en banc court then

remanded the case to the originally assigned panel for consideration of the remaining issues

presented. In response to that order, we address the remaining issues Medley raises on

appeal.

I.

Jovon Medley appeals his felon in possession of a firearm conviction and sentence.

Regarding his conviction, Medley challenges the district court’s denial of his motion to

suppress statements he made to the police, without the benefit of counsel, about the gun

involved in the felon-in-possession charge. Regarding his sentence, he argues that the

district court’s application of a Sentencing Guidelines enhancement, based on its finding

that Medley used the firearm to commit a carjacking, violated his Sixth Amendment right

to a jury trial because it was based on acquitted conduct. For the reasons set forth below,

we reject these arguments and affirm the judgment of the district court.

2 II.

The remaining issues raised by Medley on appeal arise from his separate

prosecutions by the District of Columbia and the federal government. Because of their

importance to the analysis of the issues on appeal, we describe these prosecutions in detail.

On December 30, 2016, Prince George’s County, Maryland police officials responded to a

report of a carjacking and shooting at an apartment complex. At the scene, they discovered

Elton Wright, who had multiple gunshot wounds to his leg and hip. Wright had been

walking to his car when a masked man with a gun confronted him and demanded his keys.

When Wright tried to flee, the man shot him, took the keys and fled in Wright’s car. Wright

did not recognize the man, but noted that the gun appeared to be “a .45 . . . or some type of

Glock.” J.A. 1815.

The next day, Washington, D.C police on a routine patrol saw Medley nervously

move away from a group of friends as they approached. Medley was not at that time a

person of interest related to the carjacking. But when the officers identified themselves as

police and began to follow Medley, he ran into a nearby house. Medley eventually

responded to the officers’ calls to exit the house and was detained.

The resident of the house told the officers that he did not know Medley, and that

Medley entered his home without permission. The resident allowed the officers to search

the part of the home where Medley had hidden. There, the officers recovered a .45 caliber

semi-automatic handgun made by the Rock Island Armory (“Rock Island Firearm”) and a

Glock, model 17, 9mm. They arrested Medley for carrying a firearm without a license, in

violation of District of Columbia law.

3 On January 2, 2017, Medley was charged in D.C. Superior Court with Unlawful

Possession of a Firearm by a convicted felon, in violation of 22

(a)(1),

(b)(1). That same day, the court appointed Medley a lawyer. Three days later, at his

preliminary hearing, the court appointed a new lawyer at Medley’s request.

Several weeks later, Darren Dalton, a detective involved with the Prince George’s

Country Police Department’s investigation of the Maryland carjacking, received a

notification from the National Integrated Ballistic Information Network database that shell

casings recovered from the scene of the carjacking were possibly linked to the Rock Island

Firearm recovered during Medley’s arrest. Dalton asked the county’s Firearms

Examination Unit for an official comparison and, a few days later, they reported that the

shell casings “were identified as having been fired” from the Rock Island Firearm. J.A.

1297. Looking further into Medley’s D.C. case, Detective Dalton discovered that Medley

was being held in a D.C. jail.

Within days, Detective Dalton and two other officers from Prince George’s County

traveled to D.C. to interview Medley. Dalton introduced himself to Medley as a Prince

George’s County detective and explained that he wished to speak about the guns recovered

during his D.C. arrest. He said he was not from the D.C. police department and that he was

there to discuss a Maryland carjacking investigation, not the details of Medley’s D.C. case.

Detective Dalton advised Medley of his Miranda rights, and Medley indicated he

understood them. During the interview Medley did not mention his appointed counsel in

the D.C. case, ask for the conversation to stop or request a lawyer. Dalton testified that at

4 the time of the interview, he did not know that Medley was represented by an attorney in

his D.C. case.

Medley told Detective Dalton that he purchased the Rock Island Firearm four days

before his arrest in D.C. He stated that he was the only person to possess the gun during

that four-day period. When Medley became hesitant about answering more of Dalton’s

questions, Dalton stopped the interview.

Based in part on Medley’s statements, a federal grand jury in the District of

Maryland indicted Medley for carjacking resulting in serious bodily injury, in violation of

(2); using, brandishing, carrying and discharging a firearm during and in

relation to a crime of violence, in violation of

(c)(1)(A)(iii); and possessing

a firearm and ammunition as a felon, in violation of

(g)(1). The felon-in-

possession count listed the Rock Island Firearm recovered during Medley’s D.C. arrest as

the relevant firearm.

Medley moved to suppress the statements he made to Detective Dalton. He argued

that Dalton obtained those statements “in violation of . . . his right to counsel as guaranteed

by the Fifth and Sixth Amendments to the United States Constitution.” J.A. 8. The district

court denied Medley’s motion, holding that the officers did not violate Medley’s Fifth

Amendment rights or Sixth Amendment right to counsel because Medley voluntarily

waived those rights by answering Dalton’s questions without an attorney present after

receiving Miranda warnings. The district court explained that because Medley “didn’t ask

for counsel” and “didn’t invoke counsel” after receiving his Miranda warnings, the police

were free to question him. J.A. 599. Relying on Montejo v. Louisiana,

(2009),

5 the court held Medley’s waiver of his Miranda rights also waived his Sixth Amendment

right to counsel.

After a five-day trial, 1 the jury convicted Medley of the felon-in-possession charge,

but acquitted him of the two charges related to the carjacking. At sentencing, the

presentence investigation report (“PSR”) assigned Medley a base offense level of 20 under

U.S.S.G. § 2K2.1(a)(4)(A), based on a 1997 conviction for second degree murder. Medley

did not object to this base offense level. But he did object to Probation adding a four-level

enhancement under U.S.S.G. § 2K2.1(b)(6)(B) because Medley used the Rock Island

Firearm in connection with another felony—the carjacking of Elton Wright. This produced

a total offense level of 24 and a criminal history category of IV, yielding an advisory

Guidelines range of 77–96 months in prison. Medley argued that the § 2K2.1(b)(6)(B)

enhancement should not apply because he had been acquitted of the carjacking charges

and, therefore, the evidence did not establish that he committed the carjacking. Probation

disagreed and declined to amend the PSR.

The district court agreed with Probation finding, by a preponderance of the

evidence, that Medley used the Rock Island Firearm in connection with the carjacking of

Wright. It then adopted the PSR’s enhanced Guidelines calculations and sentenced Medley

to 78 months imprisonment, followed by three years of supervised release.

1 Before the trial in the District of Maryland, Medley pled guilty in D.C. Superior Court to the felon-in-possession of a firearm charge, in violation of 22

(a)(1), (b)(1). Medley agreed that if the case proceeded to trial, it would have been proven that he possessed the Rock Island Firearm on the date of the carjacking.

6 Medley filed a timely notice of appeal, challenging both his conviction and his

sentence. As to the conviction, Medley contends the district court violated his Sixth

Amendment right to counsel by admitting the statements he made to Maryland police after

he was appointed counsel in his D.C. case. Regarding his sentence, Medley first argues that

the enhancement violated his Sixth Amendment right to a jury trial because it was based

on acquitted conduct. He also contends that the district court clearly erred by enhancing

his sentence after finding—based on a preponderance of the evidence—that he used the

Rock Island Firearm in connection with the Maryland carjacking. This Court has

jurisdiction under

and

.

III.

We first address Medley’s argument that the district court violated Medley’s Sixth

Amendment right to counsel by admitting the uncounseled statements made to Maryland

police after he was appointed counsel in his D.C. case. In doing so, we review the factual

findings underlying the district court’s motion to suppress for clear error and its legal

conclusions de novo. United States v. Lentz,

(4th Cir. 2008).

Medley acknowledges that he was not federally charged at the time of the interview,

but argues that the federal felon-in-possession charge constitutes the “same offense” as the

D.C. felon-in-possession charge for Sixth Amendment purposes. Therefore, he claims that

7 his Sixth Amendment right to counsel attached prior to his federal indictment. 2 Medley

also argues that the government did not show that he knowingly and voluntarily waived his

right to counsel when he answered Detective Dalton’s questions. Instead, he claims that

Dalton led him to believe that he was speaking “only about a separate investigation in

Maryland—not about his D.C. case.” Appellant’s Opening Brief at 34 (emphasis original).

As a result, Medley argues that the admission of his statements at trial violated the Sixth

Amendment.

A.

We begin by considering whether Medley’s Sixth Amendment right to counsel attached

to his federal felon-in-possession charge at the time of the interview. The Sixth

Amendment right to counsel guarantees a criminal defendant “the right to have counsel

present at all ‘critical’ stages of the criminal proceedings,” including interrogation by the

government. Montejo,

. This right, however, does not attach until

adversarial judicial proceedings commence “by way of formal charge, preliminary hearing,

indictment, information, or arraignment.” Texas v. Cobb,

, 167–68 (2001)

(quoting McNeal v. Wisconsin,

(1991)). Because this right is “offense

specific,” it can only be invoked regarding offenses for which the defendant has been

formally charged. Cobb,

(citing McNeil v. Wisconsin,

, 176

2 Although Medley argues that his D.C. and federal felon-in-possession charges are the “same offense” under double jeopardy analysis, he never claims that charging him for the same conduct under the D.C. and U.S. criminal codes constitutes punishing him twice for the same offense under the Fifth Amendment’s Double Jeopardy Clause. He only argues that the two offenses are “the ‘same’ for Sixth Amendment right-to-counsel purposes.” Appellant’s Opening Brief at 48. 8 (1991)); United States. v. Holness,

(4th Cir. 2013). There is no exception

that allows the right to be invoked for uncharged offenses that are merely “factually

related” to a charged offense. Cobb,

.

However, “when the Sixth Amendment right to counsel attaches, it does encompass

offenses that, even if not formally charged, would be considered the same offense under

the Blockburger test.” Cobb,

. Because this rule stems from Double

Jeopardy concerns, “the dual sovereignty doctrine [also] applies for the purposes of

defining what constitutes the same offense for right-to-counsel purposes.” Holness,

. Therefore, for the “same offense” exception to apply, the charged and

uncharged offenses must be prosecuted by the same sovereign and the Blockburger test

must be met.

As noted above, Medley concedes that he was not federally charged at the time of

his interview. However, he argues that the right to counsel nevertheless attached to his

federal felon-in-possession charge because it is the same offense as the D.C. felon-in-

possession charge. In evaluating this claim, we would first consider whether the District of

Columbia and federal government are the same sovereign before turning to whether the

D.C. and federal felon-in-possession statutes satisfy the Blockburger test. See Gamble v.

United States,

(2019) (“We have long held that a crime under one

sovereign’s laws is not “the same offence” as a crime under the laws of another sovereign

. . . a State may prosecute a defendant under state law even if the Federal Government has

prosecuted him for the same conduct under a federal statute.”)

9 B.

But we need not decide whether Medley’s District of Columbia and federal felon-

in-possession charges are the “same offense” under double jeopardy analysis, nor do we

need to analyze District of Columbia and federal government are the same sovereign for

purposes of this analysis. Even assuming, without deciding, that Medley’s Sixth

Amendment right to counsel had attached to his federal felon-in-possession charge on the

day that he was questioned by Detective Dalton, Medley waived the right because he never

made a clear, unambiguous assertion of the right to counsel after receiving his Miranda

warnings.

A defendant who wishes to invoke his Sixth Amendment right to counsel must

affirmatively do so. Montejo,

. Accordingly, the government is permitted

to initiate contact with a represented criminal defendant, subject only to the requirement

that the questioning stop if a defendant adequately asserts this right.

. While “a

defendant who does not want to speak to police without counsel present need only say as

much when he is first approached and given Miranda warnings,”

at 794–95, the request

for counsel must be clear and unambiguous. See, e.g., Montejo,

(holding

that a suspect is required to make “a clear assertion of the right to counsel.”); Davis v.

United States,

(1994) (holding “the suspect must unambiguously request

counsel.”). This standard is met if a defendant “articulate[s] his desire to have counsel

present sufficiently clearly that a reasonable police officer in the circumstances would

understand the statement to be a request for an attorney.” Davis,

(internal

citation omitted).

10 A defendant’s failure to invoke his Sixth Amendment right to counsel may

constitute a waiver of that right. However, such a waiver is only permitted if it is

“voluntary, knowing, and intelligent.” Montejo,

; see also Patterson v.

Illinois,

, 291–292 (1988). To determine if a Sixth Amendment waiver is

knowing and voluntary, courts look to whether the defendant received his Miranda

warnings and if he subsequently agreed to waive those rights. See Montejo, 556 U.S. at

798–99. An accused who has properly received his Miranda warnings “has been

sufficiently apprised of the nature of his Sixth Amendment rights, and of the consequences

of abandoning those rights, so that his waiver on this basis will be considered a knowing

and intelligent one.” Patterson,

; see also Montejo,

(“[W]hen a defendant is read his Miranda rights (which include the right to have counsel

present during interrogation) and agrees to waive those rights, that typically does the trick

. . .”). Because “the decision to waive need not itself be counseled . . . [t]he defendant may

waive the right whether or not he is already represented by counsel . . . .” Montejo,

.

Turning to the facts here, Medley never made a clear, unambiguous assertion of his

right to counsel after receiving his Miranda warnings. He did not request his attorney, ask

for the interview to stop or say anything that “a reasonable police officer in the

circumstances would understand . . . to be a request for an attorney.” Davis,

(internal citation omitted). Instead, Medley knowingly and intelligently waived his

right to counsel by voluntarily answering Dalton’s questions after being properly informed

of his Miranda rights. See Patterson,

.

11 That, however, does not end our waiver inquiry. A defendant who waives his Sixth

Amendment right to counsel may still challenge his waiver by establishing it was based on

misrepresentation or deception by the State. See Montejo,

. Medley argues

Detective Dalton misled him by stating that he was not interested in Medley’s D.C. case.

He claims that, because of Dalton’s statement, Medley did not understand that by

answering Dalton’s questions, he was waiving his right to counsel regarding his D.C. felon-

in-possession charge. Appellant’s Opening Brief at 38. As a result, Medley claims that he

“did not knowingly and intelligently waive his Sixth Amendment right to counsel in the

D.C. case.” Id. at 29 (emphasis original). However, this is an appeal from Medley’s federal

case and only concerns whether he waived his right to counsel regarding his federal

charges. The use of Medley’s statements in his D.C. case is not at issue here.

What is at issue is whether Dalton’s representations prevented Medley from making

a knowing or voluntary waiver of his Fifth or Sixth Amendment rights regarding his

subsequent federal charges. Medley does not even make this claim and, even if he had, we

see no support for it in this record. At the beginning of the interview, Dalton told Medley

that he was not interested in Medley’s D.C. case. Dalton testified that at the time of the

interview, the only charges he was investigating in relation to the Maryland carjacking

were “attempted murder, shooting and a[n] armed carjacking.” J.A. 345. Medley points to

nothing in the record suggesting this statement was not true.

Further, the subsequent federal indictment of Medley for both the carjacking and

felon in possession charges does not establish that Dalton’s representations to Medley were

false. Dalton was responsible for conducting a state carjacking investigation. The

12 subsequent federal decision to use Medley’s statements to add a felon-in-possession charge

does not show that Dalton tricked Medley into waiving his Sixth Amendment right to

counsel. Accordingly, even if Medley’s Sixth Amendment right to counsel attached to his

federal felon-in-possession charge at the time of the interview, which it had not, Medley

waived that right by answering Dalton’s questions after being informed of his Miranda

rights.

IV.

We now turn to Medley’s claim that the district court erred by enhancing his

sentence after finding—based on a preponderance of the evidence—that he used the Rock

Island Firearm in connection with the carjacking of Elton Wright. This argument has two

components. First, Medley claims that the sentencing enhancement violated his Sixth

Amendment right to a jury trial because it was based on acquitted conduct. Second, he

argues that the district court’s application of the Guidelines enhancement constituted clear

error because there was insufficient evidence to find that he committed the Maryland

carjacking. We address each issue in turn.

A.

Medley first argues that the sentencing enhancement violated his Sixth Amendment

right to a jury trial because it was based on acquitted conduct. “Sentencing judges may find

facts relevant to determining a Guidelines range by a preponderance of the evidence, so

long as that Guidelines sentence is treated as advisory and falls within the statutory

maximum authorized by the jury’s verdict” United States v. Grubbs,

, 799

13 (4th Cir. 2009) (quoting United States v. Benkahla,

(4th Cir. 2008)); see

also United States v. Slager,

(4th Cir. 2019) (“When sentencing courts

engage in fact finding, preponderance of the evidence is the appropriate standard of

proof.”) (internal citation omitted). Relevant here, this includes conduct for which a

defendant has been acquitted. “[C]lear Supreme Court and Fourth Circuit precedent hold

that a sentencing court may consider uncharged and acquitted conduct in determining a

sentence, as long as that conduct is proven by a preponderance of the evidence.” Grubbs,

585 F.3d at 798–99. In United States v. Watts,

(1997), the Supreme

Court clearly stated that “a jury’s verdict of acquittal does not prevent the sentencing court

from considering conduct underlying the acquitted charge, so long as that conduct has been

proved by a preponderance of the evidence.” Likewise, in United States v. Jones,

(4th Cir. 1994), this Court held that a “defendant need not be convicted of the

charges constituting relevant conduct for him still to be held accountable for them” at

sentencing if the government “establish[es] the existence of these other incidents by a

preponderance of the evidence.”

Following those cases, if the Guidelines are treated as advisory, and the sentence

does not exceed the statutory maximum, a court’s consideration of acquitted conduct

“‘does not violate the Sixth Amendment’ . . . because ‘as far as the law is concerned, the

judge could disregard the Guidelines and apply the same sentence . . . in the absence of the

special facts.’” Grubbs,

(quoting Rita v. United States,

,

2465–66 (2007)). As a result, while a “[a] defendant can challenge the district court’s

factual findings as well as the extent of the district court’s reliance on those findings as part

14 of his appeal . . . the court’s underlying ability to make factual findings regarding uncharged

[or acquitted] conduct does not violate the Sixth Amendment’s jury trial guarantee.”

Grubbs,

.

To his credit, Medley concedes that his Sixth Amendment challenge to the use of

acquitted conduct as the basis for his Guidelines sentence enhancement is foreclosed by

Supreme Court and Fourth Circuit precedent. However, consistent with a growing number

of critics of this practice, 3 he explains his objections to it. Whether or not we agree or

disagree with the precedent from the Supreme Court and this Court, we are bound to follow

it. See generally McMellon v. United States,

(4th Cir. 2004).

3 Jones v. United States,

(2014) (Scalia, J., joined by Thomas and Ginsburg, JJ., dissenting from denial of certiorari) (sentencing enhancements based on acquitted conduct “disregard[ ] the Sixth Amendment”); Watts,

(Kennedy, J., dissenting) (allowing district judges “to increase a sentence based on conduct underlying a charge for which the defendant was acquitted does raise concerns about undercutting the verdict of acquittal.”); United States v. Martinez, 769 Fed. App’x. 12 (2d Cir. 2019) (Pooler, J., concurring) (stating that the district court’s practice of using acquitted conduct to enhance a defendant’s sentence is “fundamentally unfair” and runs afoul of the Sixth Amendment); United States v. Bell,

(D.C. Cir. 2015) (Kavanaugh, J., concurring in denial of rehearing en banc) (“Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial.”);

(Millett, J., concurring in denial of rehearing en banc) (“[A]llowing judges to materially increase the length of imprisonment based on facts that were submitted directly to and rejected by the jury in the same criminal case is too deep of an incursion into the jury’s constitutional role.”) (emphasis original); United States v. Sabillon-Umana,

(10th Cir. 2014) (stating that whether the Constitution allows a district court to either decrease or increase a defendant’s sentence based on facts found “without the aid of a jury or the defendant’s consent” is “far from certain”); United States v. Canania,

(8th Cir. 2008) (Bright, J., concurring) (“[T]he consideration of ‘acquitted conduct’ to enhance a defendant’s sentence is unconstitutional.”); United States v. Faust,

(11th Cir. 2006) (Barkett, J., concurring specially) (“[S]entence enhancements based on acquitted conduct are unconstitutional under the Sixth Amendment, as well as the Due Process Clause of the Fifth Amendment.”). 15 Accordingly, the district court’s use of acquitted conduct as the basis for a

Guidelines sentencing enhancement did not violate Medley’s Sixth Amendment right to a

jury trial.

B.

Medley also argues that the district court’s application of this sentencing

enhancement, based on its finding that Medley used the Rock Island Firearm to carjack

Elton Wright, constituted clear error. Instead, he claims that “substantial evidence”

demonstrates that someone else committed the carjacking. Appellant’s Opening Brief at

57.

When evaluating a sentencing court’s calculation of the advisory Guidelines range,

this Court reviews “the district court’s factual findings, and its judgment regarding factual

disputes, for clear error.” United States v. Span,

(4th Cir. 2015). We

“will not reverse a lower court’s finding of fact simply because we would have decided the

case differently.”

(citations omitted). Instead, clear error occurs when the lower court’s

“factual findings are against the clear weight of the evidence considered as a whole.”

(citations and quotation marks omitted).

With that standard in mind, we turn to the district court’s decision. In support of its

finding that Medley used the Rock Island Firearm in the carjacking of Wright, the district

court pointed to the testimony of several eyewitnesses at the scene who identified Medley

as the carjacker. It also relied on the testimony of Scott McVeigh from the Prince George’s

County Police Department’s firearms examination unit. Without objection from Medley,

the district court qualified McVeigh as an expert in firearm toolmark analysis. McVeigh

16 testified that guns leave certain markings on bullets that they fire. Forensic firearm

examiners attempt to match bullets or shell casings from a crime scene to a particular gun

by comparing the marks on the recovered evidence—known as “toolmarks”—with marks

on those test-fired from the gun in question. McVeigh testified about his evaluation and

report that the shell casings found at the scene of the carjacking were fired from the Rock

Island Firearm. The district court also pointed to the testimony of Richard Fennern, an

agent with the Federal Bureau of Investigation’s Cellular Analysis Survey Team, regarding

the historical cell-site data of Medley’s cellphone. Without objection, the district court

qualified Agent Fennern as an expert in historical cell-site data. When Agent Fennern

performed historical cell-site analysis on a phone number linked to Medley, he determined

that on December 31, 2016, at about thirty minutes before the carjacking, Medley’s phone

placed a call in the cell-tower sector covering the apartment complex where the carjacking

took place.

Medley argues this evidence is insufficient to support the district court’s finding.

Medley first criticizes the testimony from eyewitnesses who identified him at the scene.

He emphasizes that Elton Wright—the carjacking victim—could not identify his assailant

due to the mask that he was wearing. Wright described the assailant as a heavier black male

who was a little over six-feet tall, a contrast from Medley’s shorter, leaner frame. Wright

also testified he had known Medley for about three years and saw him two to three times a

week and thus it would be easy for him to recognize Medley’s voice. J.A. 1823. However,

Wright did not recognize the voice, appearance or walk of the man who shot him. And

17 Medley also argues that Wright and the other eyewitnesses offered physical descriptions

of the assailant that did not clearly implicate Medley and were, at times, inconsistent.

Medley also attacks McVeigh’s testimony. Appellant’s Opening Brief at 62. Medley

criticized the subjective nature of McVeigh’s testimony, as well as his concession that there

were some inconsistencies between the shell markings and markings that would come from

the equipment at the Rock Island factory and the fact Medley’s testimony amounted only

to an opinion that the markings on the shell were consistent with a .45 caliber gun and not

the specific Rock Island Firearm. 4

Finally, Medley argues Fennern’s testimony was insufficient to support the district

court’s finding that he was the carjacker. He pointed to Fennern’s concession that cell-

tower data can be used to determine the “general location” of a cellphone at the time of a

specific call, J.A. 2046, and that he could not determine the exact location of a phone based

on the nearest cell towers. Therefore, Medley argues that the fact that his phone was in the

same “general location” of Wright’s apartment on the morning of the carjacking has

“minimal probative value.” Appellant’s Opening Brief at 63.

Medley’s arguments have some appeal. However, on this issue, we do not work

from a clean slate. We are bound to affirm the district court’s factual findings unless they

“are against the clear weight of the evidence considered as a whole.” Span,

(citations and quotation marks omitted). Clear error review requires deference to the trial

4 Medley’s arguments about McVeigh’s testimony go primarily to its reliability. But he did not make a Daubert motion. See Daubert v. Merrell Dow Pharms., Inc.,

(1993). Since no such motion was made, we will not address McVeigh’s qualifications or the reliability of his testimony. 18 court’s findings even if we may view certain issues differently.

Under that high

standard, we cannot say that the district court erred by enhancing Medley’s sentence when

it found, based on a preponderance of the evidence, that he used the Rock Island Firearm

in connection with the carjacking of Elton Wright.

V.

For the reasons set forth above, we conclude that the district court did not violate

Medley’s Sixth Amendment right to counsel by admitting the uncounseled statements that

he made to Maryland police after he was appointed counsel in his D.C. case. We also find

that Medley’s Sixth Amendment challenge to the use of acquitted conduct as the basis for

his Guidelines sentence enhancement is foreclosed by Supreme Court and Fourth Circuit

precedent. Finally, the district court did not err by enhancing Medley’s sentence when it

found, based on a preponderance of the evidence, that he used the Rock Island Firearm in

connection with the carjacking of Elton Wright. Accordingly, the district court’s judgment

is

AFFIRMED.

19