United States v. Ernesto Pollard , 595 F. App'x 204 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4125
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERNESTO WILLIAMS POLLARD,
Defendant - Appellant.
No. 14-4151
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RUBEN DUTERVIL,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:13-cr-00037-WO-1; 1:13-cr-00037-
WO-2)
Submitted: October 15, 2014 Decided: December 24, 2014
Before KEENAN, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina; Thomas H. Johnson, Jr., GRAY JOHNSON BLACKMON
LEE & LAWSON, LLP, Greensboro, North Carolina, for Appellants.
Ripley Rand, United States Attorney, Terry M. Meinecke,
Assistant United States Attorney, Winston-Salem, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
After the district court denied their motions to
suppress evidence, Ernesto Williams Pollard and Ruben Dutervil
pled guilty pursuant to plea agreements to one count each of
possession with intent to defraud of fifteen or more counterfeit
or unauthorized access devices, in violation of 18 U.S.C. §§ 2,
1029(a)(3), (c)(1) (2012). The district court calculated
Pollard’s Guidelines range under the U.S. Sentencing Guidelines
Manual (2013) at thirty-three to forty-one months’ imprisonment
and sentenced him to thirty-five months’ imprisonment. The
court calculated Dutervil’s Guidelines range at eighteen to
twenty-four months’ imprisonment and sentenced him to twenty-one
months’ imprisonment. In their plea agreements, Pollard and
Dutervil (“Appellants”) preserved the right to challenge on
appeal the denial of their motions to suppress. Appellants
contend that the district court erred in denying their motions
to suppress and abused its discretion in imposing sentence. We
affirm.
I.
In reviewing the district court’s denial of
Appellants’ suppression motions, we review the court’s factual
findings for clear error and its legal conclusions de novo.
United States v. McGee, 736 F.3d 263, 269 (4th Cir. 2013),
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cert. denied, 134 S. Ct. 1572 (2014). Because the district
court denied Appellants’ motions, we construe the evidence in
the light most favorable to the Government. Id. We also defer
to the district court’s credibility determinations.
United States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008).
After reviewing the record and the parties’ briefs, we
conclude that the district court did not err in denying
Appellants’ motions to suppress. A vehicle driven by Dutervil
in which Pollard was a passenger left a gas station parking lot
after midnight and traveled less than one block before stopping
in the roadway on a two-lane road. The vehicle’s emergency
blinkers were then activated, and Dutervil leaned out of the
vehicle and gesticulated in a manner suggesting that he needed
assistance. Sergeant Stillwell and Officer Rowland stopped to
assist, and Stillwell observed marijuana seeds and residue,
cash, computers, and telephones in the vehicle’s interior and
smelled the odor of raw marijuana emanating from the vehicle.
Credit and gift cards and a magnetic card reader and writer were
later seized from the vehicle.
Appellants argue that the officers had neither the
requisite reasonable suspicion nor probable cause to justify
stopping and detaining the vehicle and, thus, that the evidence
against them was the product of an illegal seizure and search.
Contrary to Appellants’ assertion, however, the officers did not
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need to have reasonable suspicion or probable cause when they
stopped their patrol cars behind the vehicle driven by Dutervil.
An officer’s stop to assist a vehicle stopped in a
roadway does not typically implicate the Fourth Amendment as a
“seizure” requiring probable cause. See Florida v. Bostick, 501
U.S. 429, 434 (1991); United States v. Jones, 678 F.3d 293, 298-
300 (4th Cir. 2012); see also South Dakota v. Opperman, 428 U.S.
364, 370 n.5 (1976) (“The standard of probable cause is
peculiarly related to criminal investigations, not routine,
noncriminal procedures.”). Here, the vehicle had come to a stop
on the roadway under circumstances indicating that assistance
was required, and the officers parked their patrol cars behind
the vehicle and approached it to render assistance. The
officers did not display their weapons or touch Dutervil or
Pollard, and their patrol cars did not impede the stopped
vehicle from leaving the scene. Because the vehicle and its
occupants were neither stopped nor seized, the officers’ actions
did not implicate the Fourth Amendment.
We further conclude that the officers’ post-approach
investigation of Dutervil’s identity and the vehicle as a safety
measure was lawful because these actions occurred while the
officers were acting in a community-caretaking capacity. See
Cady v. Dombrowski, 413 U.S. 433, 441, 443, 446-47 (1973)
(articulating an exception to warrant searches in the case of
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police officers’ interactions with motor vehicles when the
officers are not engaged in a criminal investigation).
Accordingly, their acts in obtaining and investigating
Dutervil’s license and registration did not violate the Fourth
Amendment as to Dutervil or Pollard. *
II.
Appellants also challenge their sentences. We review
Appellants’ sentences for reasonableness “under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41, 51 (2007). We first review the sentences for
significant procedural error, and, if the sentences are free
from such error, we then consider their substantive
reasonableness. Id. at 51. Appellants do not contend that the
district court committed any significant procedural error in
imposing their sentences.
Substantive reasonableness is determined by
considering the totality of the circumstances. Id. If a
sentence is within the properly calculated Guidelines range,
this court applies a presumption on appeal that the sentence is
*
We decline to consider Appellants’ suggestion that
Stillwell’s stated reason for checking Dutervil’s license and
vehicle registration was pretextual because this contention is
raised for the first time in their reply brief. Yousefi v.
INS, 260 F.3d 318, 326 (4th Cir. 2001) (per curiam).
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substantively reasonable. United States v. Susi, 674 F.3d 278,
289 (4th Cir. 2012). Such a presumption is rebutted only if
Appellants show “that the[ir] sentence[s] [are] unreasonable
when measured against the [18 U.S.C.] § 3553(a) [(2012)]
factors.” United States v. Montes-Pineda, 445 F.3d 375, 379
(4th Cir. 2006) (internal quotation marks omitted).
Appellants claim summarily that their sentences are
unreasonable because the district court failed to consider
probationary sentences. We reject this contention because
Appellants do not point to the existence of any facts in the
record to support it.
To the extent that Appellants are suggesting that
their sentences are substantively unreasonable because sentences
of probation would have achieved the purposes of sentencing in
their cases, we reject this contention because it essentially
asks this court to substitute its judgment for that of the
district court. While this court may have weighed the § 3553(a)
factors differently had it imposed sentence in the first
instance, we defer to the district court’s decisions that a
thirty-five-month sentence and a twenty-one-month sentence
achieved the purposes of sentencing in Pollard’s and Dutervil’s
cases, respectively. See Gall, 552 U.S. at 51 (explaining that
appellate courts “must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole,
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justify” the sentence imposed). In light of the “extremely
broad” discretion afforded to a district court in determining
the weight to be given each of the § 3553(a) factors in imposing
sentence, United States v. Jeffery, 631 F.3d 669, 679 (4th Cir.
2011), Appellants fail to overcome the presumption on appeal
that their within-Guidelines sentences are substantively
reasonable.
Accordingly, we affirm the district court’s judgments.
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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