United States v. Christian Sweat , 573 F. App'x 292 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4703
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTIAN SWEAT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Mark S. Davis, District
Judge. (4:13-cr-00028-MSD-TEM-1)
Submitted: May 1, 2014 Decided: May 30, 2014
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mark Diamond, Richmond, Virginia, for Appellant. Dana J.
Boente, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia; Jonathan A. Ophardt,
Special Assistant United States Attorney, UNITED STATES
DEPARTMENT OF JUSTICE, Newport News, Virginia; Meghan Leibold,
Third Year Law Student, WASHINGTON UNIVERSITY SCHOOL OF LAW, St.
Louis, Missouri, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christian Sweat (Sweat) appeals his conviction for
possession of a firearm by a convicted felon, 18 U.S.C.
§ 922(g)(1). On appeal, he presses three claims: (1) the
district court abused its discretion when it denied, as
untimely, his motion to suppress; (2) there is insufficient
evidence in the record to support his conviction; and (3) the
sentence imposed by the district court is procedurally
unreasonable. For the reasons stated below, we affirm.
I
A
Around 11:40 p.m. on February 1, 2013, Newport News Police
Officer Joseph Cavanaugh (Officer Cavanaugh) was alone in his
marked police cruiser while patrolling 39th Street in Newport
News, Virginia. As Officer Cavanaugh proceeded down 39th Street
just east of Marshall Avenue, a pickup truck traveled towards
him. Because the pickup truck had only one operable headlight,
Officer Cavanaugh executed a U-turn and followed the pickup
truck onto Marshall Avenue. Officer Cavanaugh activated his
blue lights and pulled the pickup truck over just after it
turned onto 44th Street.
Officer Cavanaugh approached the pickup truck on the
driver’s side and noticed three occupants inside. Sweat was the
- 2 -
driver. While Officer Cavanaugh was explaining to Sweat the
reason for the stop, he smelled marijuana. As a result, he
returned to his police cruiser to request an additional officer
to assist him with the stop. After Newport News Police Officer
Curt Whittlesey (Officer Whittlesey) arrived on the scene, the
two officers approached the pickup truck and asked the three
occupants to exit. Sweat was placed in handcuffs and escorted
by Officer Cavanaugh to his police cruiser, where Sweat was
instructed to sit on the police cruiser’s front bumper.
Officer Cavanaugh began to explain to Sweat what was going
to transpire with the stop. While this was happening, one of
the passengers began to struggle with Officer Whittlesey. Upon
seeing the struggle, Officer Cavanaugh left Sweat alone to
assist Officer Whittlesey. The passenger broke away from
Officer Whittlesey and fled. At this point, Officer Cavanaugh
turned back toward Sweat and, noticing him beginning to walk
away from the police cruiser, ordered him to stop. In response
to this order, Sweat ran from the scene.
Sweat ran down 44th Street, with Officer Cavanaugh in
pursuit. Sweat failed to stop despite multiple demands from
Officer Cavanaugh. When Officer Cavanaugh was approximately
five feet behind Sweat, Officer Cavanaugh observed an object
fall from Sweat. From the sound he heard when the object hit
the pavement, Officer Cavanaugh immediately knew the object was
- 3 -
a firearm. Officer Cavanaugh then stopped, picked up the
firearm, ejected the magazine, and removed a round of ammunition
from the chamber. Sweat continued to flee.
A few minutes later, Newport News Police Lieutenant Morgen
Tietjens (Lieutenant Tietjens), responding to a report that
another officer was involved in a foot pursuit, spotted the
handcuffed Sweat and apprehended him. Officer Cavanaugh
responded to Lieutenant Tietjens’ location, identified Sweat as
the person who had dropped the firearm while fleeing, and
arrested him.
B
On March 12, 2013, a federal grand jury sitting in the
Eastern District of Virginia returned a one-count indictment
charging Sweat with being a felon in possession of a firearm.
Id. On April 19, 2013, Sweat entered a plea of not guilty and
asked for a jury trial. On that date, a United States
Magistrate Judge set a May 3, 2013 pretrial motions deadline and
a June 12, 2013 trial date. On May 31, 2013, the district court
entered an ordering moving the trial date to June 13, 2013.
In the late afternoon of June 12, 2013, Sweat filed an
untimely motion to suppress. During an ensuing telephone status
conference that day, Sweat made an oral motion to continue the
trial. According to defense counsel, the motions were the
result of a fax he had received earlier that day from Sweat’s
- 4 -
mother. The fax contained a letter from a state motor vehicle
inspector who asserted he could testify that the headlights on
the pickup truck were operable and had not been changed since
the pickup truck had been assembled.
In response, the government objected to a continuance
because of witness availability issues and objected to holding a
suppression hearing immediately before trial because of the
impracticality of investigating Sweat’s belatedly disclosed
assertions of fact. The government also proffered that the
pickup truck had been in the control of Sweat’s family since it
was released from impoundment and noted that a recorded jail
call between Sweat and a woman contained an implicit admission
that the headlight was not working on the night of Sweat’s
arrest.
During the telephone status conference, the district court
inquired of defense counsel as to why a motion to suppress had
not been timely filed. Defense counsel explained that he had
determined a suppression motion would be fruitless unless
Sweat’s claim could be substantiated with some kind of witness
testimony, preferably testimony from an independent witness who
could verify that the headlight was working on the night of
Sweat’s arrest. Defense counsel informed Sweat’s family of his
legal opinion and the time limits governing suppression motions.
Having no information concerning an independent witness by the
- 5 -
motions deadline, defense counsel chose not to file a motion to
suppress.
In ruling on the motions, the district court concluded that
the proffered information did not provide a sufficient basis to
warrant a continuance or to consider an untimely motion to
suppress. Accordingly, the district court denied both the
motion to suppress and the motion for a continuance.
The following day, June 13, 2013, Sweat’s jury trial
commenced. At trial, the parties stipulated that the firearm
recovered by Officer Cavanaugh had not been manufactured in the
Commonwealth of Virginia and that Sweat was a convicted felon.
Thus, the only issue for the jury was whether Sweat knowingly
possessed the firearm. At the close of the government’s
evidence, Sweat moved for a judgment of acquittal pursuant to
Rule 29 of the Federal Rules of Criminal Procedure, contending
that the evidence presented by the government did not establish
that he possessed the firearm recovered by Officer Cavanaugh.
After the arguments of counsel, the district court denied the
motion. On June 14, 2013, the jury returned a verdict of
guilty.
Following the preparation of a Presentence Investigation
Report (PSR), the district court held a sentencing hearing on
September 13, 2013. The district court found that Sweat’s total
offense level was 16 and that his Criminal History Category was
- 6 -
III, producing an advisory sentencing range of 27 to 33 months’
imprisonment under the United States Sentencing Guidelines.
After considering Sweat’s allocution, the arguments of counsel,
and the 18 U.S.C. § 3553(a) factors, the district court
sentenced Sweat to 30 months’ imprisonment. Sweat noted a
timely appeal.
II
Sweat contends that the district court erred in denying, as
untimely, his motion to suppress. Under Rule 12 of the Federal
Rules of Criminal Procedure, a motion to suppress must be raised
prior to trial or by the deadline established by the district
court. Fed. R. Crim. P. 12(b)(3)(C), 12(c). A defendant waives
the right to file a suppression motion if he fails to file the
motion prior to the deadline set by the district court, unless
he can establish good cause for the waiver. Fed. R. Crim. P.
12(e). We have found good cause to excuse an untimely motion to
suppress where, for instance, the delay in filing the
suppression motion was caused by the government’s failure to
turn over the evidence sought to be suppressed. United States
v. Chavez, 902 F.2d 259, 263–64 (4th Cir. 1990).
We will not disturb a district court’s denial of an
untimely motion to suppress absent clear error. United States
v. Ruhe, 191 F.3d 376, 385 (4th Cir. 1999); Chavez, 902 F.2d at
- 7 -
263. Accordingly, we rarely grant relief from the denial of an
untimely suppression motion. See Ruhe, 191 F.3d at 386–87
(holding that no good cause was present to raise an untimely
suppression issue where the defendant could have with due
diligence discovered the information necessary to raise the
issue); Chavez, 902 F.2d at 263 (recognizing that appellate
courts generally deny relief from the denial of an untimely
suppression motion where the motion was made after the court-
imposed deadline and the defendant proffered only a “dubious
excuse”). After a careful review of the record, we conclude
that the district court did not commit error, clear or
otherwise, when it denied, as untimely, Sweat’s motion to
suppress. Both below and in this court, Sweat has failed to set
forth good cause under Rule 12(e) for the delay in filing the
motion to suppress.
In a related argument, Sweat contends that his trial
counsel rendered ineffective assistance when he failed to timely
file a motion to suppress. To prove a claim of ineffective
assistance of counsel, a defendant must show (1) “that counsel’s
performance was deficient,” and (2) “that the deficient
performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984). In evaluating counsel’s performance,
we indulge a strong presumption that counsel’s performance falls
within the wide range of reasonable professional assistance.
- 8 -
Id. at 689. Further, we must evaluate the reasonableness of
counsel’s performance within the context of the circumstances at
the time of the alleged error, rather than with the benefit of
hindsight. Id. at 690. To satisfy the second prong of
Strickland, a defendant must show a reasonable probability that,
but for counsel’s unprofessional error, the result of the
proceeding would have been different. Id. at 694.
We will address a claim of ineffective assistance of
counsel on direct appeal only if counsel’s ineffectiveness
conclusively appears on the record. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Having
thoroughly reviewed the record, we find that ineffective
assistance of counsel does not conclusively appear on the
record. Accordingly, we decline to address this claim on direct
appeal.
III
Sweat contends that the district court erred by denying his
motion for judgment of acquittal under Rule 29 of the Federal
Rules of Criminal Procedure. We review de novo a district
court’s decision to deny such a motion. United States v. Smith,
451 F.3d 209, 216 (4th Cir. 2006). Where, as here, the Rule 29
motion was based on a claim of insufficient evidence, “[t]he
verdict of a jury must be sustained if there is substantial
- 9 -
evidence, taking the view most favorable to the Government, to
support it.” Glasser v. United States, 315 U.S. 60, 80 (1942).
Substantial evidence is “evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc). In assessing whether the record contains substantial
evidence, we do not review the credibility of the witnesses, and
we assume the jury resolved all contradictions in the witness
testimony in favor of the government. United States v. Sun, 278
F.3d 302, 313 (4th Cir. 2002). We consider both circumstantial
and direct evidence and “allow the government the benefit of all
reasonable inferences from the facts proven to those sought to
be established.” United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982).
In order to convict Sweat under § 922(g)(1), the government
had to establish that: (1) he previously had been convicted of a
felony; (2) he knowingly possessed a firearm; and (3) the
possession was in or affecting interstate or foreign commerce at
some point during the firearm’s existence. United States v.
Moye, 454 F.3d 390, 395 (4th Cir. 2006) (en banc). As noted
above, at trial, the parties stipulated as to the first and
third elements. Consequently, the second element is the only
element in question.
- 10 -
Viewing the evidence in the light most favorable to the
government and resolving all contradictions in the testimony in
favor of the government, the evidence in the record shows that
Sweat tried to flee the stop while wearing handcuffs. Officer
Cavanaugh testified that, while Sweat was running, an object
fell from Sweat’s person and hit the pavement while Officer
Cavanaugh was only five feet away from Sweat. Officer Cavanaugh
testified that he recognized the object from the sound it made
when it hit the pavement and that he picked up the firearm
immediately after Sweat dropped it. Sweat was apprehended soon
after he dropped the firearm, still wearing handcuffs. From
this evidence, a jury could reasonably infer that Sweat
knowingly possessed the firearm recovered by Officer Cavanaugh.
IV
Finally, Sweat challenges the procedural reasonableness of
his sentence. We review a criminal sentence for reasonableness
using an abuse of discretion standard. United States v.
McManus, 734 F.3d 315, 317 (4th Cir. 2013); see also Gall v.
United States, 552 U.S. 38, 51 (2007).
Under the abuse of discretion standard, we first consider
whether the district court committed any significant procedural
error, such as improperly calculating the Guidelines range,
failing to consider the sentencing factors under § 3553(a), or
- 11 -
failing to adequately explain the sentence. United States v.
Allmendinger, 706 F.3d 330, 340 (4th Cir.), cert. denied, 133 S.
Ct. 2747 (2013). If the sentence is procedurally reasonable, we
then consider its substantive reasonableness, taking into
account the totality of the circumstances. Gall, 552 U.S. at
51. We presume that a sentence within a properly calculated
Guidelines range is substantively reasonable. United States v.
Susi, 674 F.3d 278, 289 (4th Cir. 2012).
In sentencing a defendant, the district court first must
correctly calculate the defendant’s sentencing range under the
Sentencing Guidelines. Allmendinger, 706 F.3d at 340. Next,
the district court is required to give the parties an
opportunity to argue for what they believe is an appropriate
sentence, and the district court must consider those arguments
in light of the factors set forth in § 3553(a). Id.
When rendering a sentence, the district court must make and
place on the record an individualized assessment based on the
particular facts of the case. United States v. Carter, 564 F.3d
325, 328, 330 (4th Cir. 2009). In explaining the sentence, the
“sentencing judge should set forth enough to satisfy the
appellate court that he has considered the parties’ arguments
and has a reasoned basis for exercising his own legal
decisionmaking authority.” Rita v. United States, 551 U.S. 338,
356 (2007). While a district court must consider the statutory
- 12 -
factors and explain its sentence, it need not explicitly
reference § 3553(a) or discuss every factor on the record.
United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).
As noted above, the PSR recommended a total offense level
of 16 and a Criminal History Category III, which produced an
advisory sentencing range of 27 to 33 months’ imprisonment under
the Sentencing Guidelines. The parties agree that the district
court correctly calculated the advisory sentencing range.
After the attorneys presented argument to the district
court, Sweat exercised his right to allocution. Of note, during
his allocution, Sweat professed his innocence, expressing the
opinion that the jury got it wrong because of the presence of
numerous inconsistences in the witness testimony that “were not
remembered in the case.” (J.A. 213).
Prior to imposing sentence, the district court, in a
commendably painstaking fashion, considered the § 3553(a)
factors. The district court: (1) recounted the nature and
circumstances of the § 922(g)(1) offense under § 3553(a)(1); (2)
summarized the history and characteristics of Sweat under
§ 3553(a)(1); (3) discussed the need for the sentence imposed to
reflect the seriousness of the offense, promote respect for the
law, and provide just punishment for the offense under
§ 3553(a)(2)(A); (4) discussed the need for the sentence imposed
to afford deterrence under § 3553(a)(2)(B); (5) discussed the
- 13 -
need for the sentence imposed to protect the public from further
crimes under § 3553(a)(2)(C); (6) discussed the need for the
sentence imposed to provide needed education or treatment under
§ 3553 (a)(2)(D); (7) discussed the kinds of available sentences
under § 3553(a)(3) and § 3553(a)(4); and (8) discussed the need
to avoid sentencing disparities under § 3553(a)(6). The
district court explicitly acknowledged Sweat’s argument
regarding factual disparities at trial and dismissed it because
the jury resolved these disparities against him.
After considering all of the relevant § 3553(a) factors,
the district court imposed a sentence of 30 months’
imprisonment, which fell in the middle of the advisory
sentencing range. In reaching this sentence, the district court
indicated that it did not see contrition from Sweat, although it
had initially considered a sentence at the bottom of the
advisory range. According to the district court, a higher
sentence was necessary “because I just don’t sense that you get
it.” (J.A. 223).
Sweat argues that his sentence is procedurally unreasonable
because the district court increased his sentence, in part,
based on the comments he made during his allocution. We reject
Sweat’s argument. Lack of remorse certainly is a fact that a
district court can consider in its evaluation of the § 3553(a)
factors. See, e.g., United States v. Cruzado-Laureano, 527 F.3d
- 14 -
231, 237 (1st Cir. 2008) (holding that the defendant’s lack of
remorse during allocution is an appropriate fact to be
considered in evaluating the § 3553(a) factors); United States
v. Smith, 424 F.3d 992, 1016-17 (9th Cir. 2005) (same).
To be sure, § 3553(a)(1) states that, in determining the
particular sentence to be imposed, the district court shall
consider “the nature and circumstances of the offense and the
history and characteristics of the defendant.” 18 U.S.C.
§ 3553(a)(1). The statute also directs the district court to
consider, inter alia, the need for the sentence imposed “to
reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense,” id.
§ 3553(a)(2)(A), and the need “to protect the public from
further crimes of the defendant,” id. § 3553(a)(2)(C). Sweat’s
refusal to acknowledge that he committed the § 922(g)(1) offense
is information that falls well within these guiding provisions,
giving relevant insight into his character and raising concerns
about his respect for the law and his future conduct.
Sweat also argues that his sentence is procedurally
unreasonable because the district court failed to provide an
individualized assessment of the applicable § 3553(a) factors.
However, our review of the record convinces us that the district
court considered the § 3553(a) factors, as noted above in a
- 15 -
commendably painstaking fashion, and rendered an individualized
assessment based on the particular facts of this case.
V
For the reasons stated herein, the judgment of the district
court is affirmed. 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
- 16 -