United States v. Vincent Hill ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4556
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VINCENT ELOYD HILL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (7:10-cr-00053-BO-1)
Argued: May 18, 2012 Decided: July 17, 2012
Before KEENAN, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Keenan and Judge Floyd concurred.
ARGUED: John Keating Wiles, CHESHIRE, PARKER, SCHNEIDER, BRYAN &
VITALE, Raleigh, North Carolina, for Appellant. Yvonne Victoria
Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee. ON BRIEF: Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:
Vincent Eloyd Hill appeals his jury conviction of
conspiracy to possess heroin and marijuana with the intent to
distribute, possession of a firearm in furtherance of a drug
trafficking crime, possession of a firearm as a convicted felon,
and aiding and abetting the possession of heroin and marijuana
with intent to distribute; and his sentence of 240 months, a 60-
month upward deviation from the advisory Guidelines range. Hill
argues on appeal that the district court (1) erred by denying
his motion to suppress evidence seized from a traffic stop; (2)
abused its discretion by denying a motion to withdraw filed by
his court-appointed counsel; and (3) unreasonably imposed a 60-
month upward variance on his sentence. We find no error and
therefore affirm the conviction and sentence.
I.
A.
While driving on Route 74/76 toward Leland, North Carolina
on March 17, 2009, Officer William Kozak of the Leland Police
Department observed a green Chevrolet Tahoe repeatedly drift out
of its lane. Pulling alongside the vehicle, Officer Kozak
noticed that the driver was sitting very low in the seat and
appeared to be falling asleep. He also observed that there was
a passenger in the car who appeared to be asleep. Officer Kozak
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contacted a patrol officer, Officer Aaron Naughton, and
requested that Officer Naughton pull the Tahoe over if it
continued to drift out of its lane. Officer Naughton did so,
and Officer Kozak approached the car to speak with the driver.
When Officer Kozak approached the driver’s side of the car,
the driver, Hill, refused to look at the officer, instead
staring straight ahead. Officer Kozak informed Hill that he had
been stopped because he had repeatedly drifted into the left
lane. Officer Kozak asked Hill for his license and registration
and observed that Hill was extremely nervous. He described Hill
as having a visibly pounding heart and hands that were shaking
uncontrollably. At this point, Officer Kozak suspected that
“his actions were beyond the scope of a normal traffic stop.”
J.A. 145. He asked Hill to step out of the vehicle. Hill
refused, and Officer Kozak asked a second time. Hill again
refused, then Officer Kozak asked again, opened the door of the
vehicle, and told Hill to step out of the vehicle. At this
point, Hill exited the vehicle.
Officer Kozak separately questioned Hill and his passenger,
Nigel Hood. When questioned, Hill had a “broken speech pattern”
and continually shifted his weight back and forth. J.A. 146.
When questioned about whether there were drugs in the vehicle,
Hill looked directly at Officer Kozak and denied that he had
marijuana, cocaine, or methamphetamine in the vehicle. When
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asked whether there was any heroin in the car, however, he
dropped his head and looked at the ground, answering, “No, I
don’t do heroin.” J.A. 147. Hill and Hood gave conflicting
stories about the reason for their trip. Hood informed Officer
Kozak that they went to pick up a radiator and a fan belt,
whereas Hill indicated that he had been picking up a muffler.
There were no auto parts visible in the car.
Shortly thereafter, Officer Kozak called for assistance
from the Brunswick County Canine Unit. The canine unit arrived
between 30 and 45 minutes later, and a dog alerted the police to
the presence of narcotics. A search of the vehicle revealed a
ten-bag bundle containing 0.3 grams of heroin and a handgun.
Hill also had $3,135 in cash on his person. At the time of his
arrest, after being read his Miranda rights, Hill admitted to
the officers that the drugs belonged to him and that Hood had
“nothing to do with” them. J.A. 151.1
1
A second search occurred in November 2009, eight months
after the incident in question. A trooper pulled over a
speeding vehicle in which Hill was a passenger. The car smelled
of marijuana, and when searched by consent, marijuana and heroin
were found. While Hill moved to suppress this search as well,
he does not challenge the district court’s ruling against him in
this appeal.
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B.
Hill was charged, on November 24, 2010, in five counts:
conspiracy to possess with the intent to distribute 100 grams or
more of heroin and a quantity of marijuana (“Count 1”);
possession with the intent to distribute a quantity of heroin
(“Count 2”); possession of a firearm in furtherance of a drug
trafficking crime (“Count 3”); possession of a firearm as a
convicted felon (“Count 4”); and possession with the intent to
distribute a quantity of heroin and a quantity of marijuana and
aiding and abetting (“Count 5”).
Before trial, Hill filed a motion to suppress evidence
seized on March 17, 2009 from Hill’s Chevrolet Tahoe. Hill
asserted that he was subjected to an unreasonable seizure
because the original traffic stop was unreasonably extended
while Officer Kozak waited for the canine unit to arrive. In
its response, the Government argued that the law enforcement
officer had a reasonable suspicion and probable cause to stop
the Chevrolet Tahoe and had a reasonable suspicion in further
detaining Hill beyond the original traffic stop.
Based on the written submissions by the parties, the
district court held that the March 17, 2009 search was valid and
denied Hill’s motion to suppress. The district court found that
the “traffic stop was valid as the officer had reasonable
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suspicion to delay the Defendant while waiting for canine
assistance.” J.A. 71.
Hill’s trial commenced on February 7, 2011. After
testimony from the police officers who conducted the searches,
as well as from two government witnesses who testified about
Hill’s drug dealing and trafficking activities, including David
Kirton, a heroine dealer, who testified that Hill sold heroin
and that he had purchased more than 400 grams of heroin from
Hill, Hill moved for a judgment of acquittal. The district
court denied the motion. Thereafter, Hill testified that he did
not know Kirton and that he had never sold drugs to Kirton.
Hill further testified that, before the traffic stop on March
17, 2009, he believed his felony drug possession had been
expunged and, therefore, he was not prohibited from possession
of firearms. On rebuttal, the Government introduced the
testimony of a long-time drug dealer, Billy Dunlap, who had been
in jail with Hill during the pendency of trial. Dunlap
testified that Hill admitted to him that he was a drug dealer
and that they had discussed how they packaged, cut, and sold
drugs.
Following the close of the evidence, Hill renewed his
motion for judgment of acquittal, which was also denied by the
district court. On February 9, 2011, the jury convicted Hill on
all five counts.
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C.
Before sentencing, around March ll, 2011, defense counsel
received a handwritten letter from Hill requesting that he
withdraw as Hill’s counsel. The letter explained that Hill’s
counsel had failed to “investigat[e] . . . all of [his] charges”
and to “support” him during the trial. J.A. 338. On March 14,
2011, Hill’s counsel filed a motion to withdraw. At the hearing
on the motion, defense counsel explained that Hill’s complaints
were based on his performance as trial counsel and that he
believed Hill could raise those issues on appeal or in a habeas
proceeding. Hill’s counsel noted that he discussed this with
Hill, along with the fact that there would be a delay if counsel
were substituted at this point. However, Hill continued to
express that he wanted a new attorney. Hill’s counsel
nevertheless stated that he could continue to proceed as Hill’s
attorney, that he knew the facts of the case better than anyone
else, and that he thus should not be substituted for new counsel
prior to sentencing.
In response—and without questioning Hill—the district court
stated, “I think that’s a very responsible and professionally
correct and honest way to present it,” and that it would be
“counterproductive to indulge the Defendant at this point before
sentencing.” J.A. 341-42. In denying the motion to withdraw,
the district court found that “no other lawyer would be better
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able to represent [Hill’s] interest at sentencing because no
other lawyer went through the trial and is closely familiar with
all of the nuances of the case.” J.A. 342. The district court
further found that there was no professional or ethical conflict
and that Hill had failed to show that counsel should be
substituted.
D.
Hill’s presentence investigation report (“PSR”) prepared by
his probation officer set forth Hill’s criminal history that
consisted of a felony conviction of knowingly/purposefully
making an explosion; a felony conviction of possession of
hollow-nose bullets; a misdemeanor theft conviction; a felony
conviction of possession of a controlled substance; and a
misdemeanor conviction of loitering to obtain/sell a controlled
dangerous substance in public, for a total of 2 criminal history
points. The PSR placed Hill at a total offense level of 28 with
a Guidelines range sentence of 120 months on Count 1 (based on
the statutory minimum), 87 to 108 months on Counts 2, 4, and 5,
and 60 months on Count 3.
At the sentencing hearing, Hill’s counsel raised several
objections to the PSR, which were overruled by the district
court. The district court also found that an upward variance of
Hill’s sentence was warranted under the circumstances because
8
Hill’s testimony at trial had been “completely dishonest and not
anything close to approaching the truth.” J.A. 351. The
district court found that Hill was unrepentant and disrespectful
of the trial process, and that as an “armed repeat offender,”
was likely to relapse into “drug trafficking and violent crime
in the future” unless punished more severely. J.A. 353. The
district court noted that the sentence would give Hill
opportunities for educational and vocational training. As a
result, the district court sentenced Hill to concurrent 180
month sentences on Counts 1, 2, and 5, which constituted a 60-
month variance from the advisory range. The district court also
sentenced Hill to a term of imprisonment of 120 months on Count
1 to be served concurrently with the sentence imposed on Counts
1, 2 and 5, and to a term of imprisonment of 60 months on Count
3, to be served consecutively. Hill timely filed this appeal.
II.
A.
On appeal, Hill contends that the district court erred when
it denied his motion to suppress the evidence seized in the
March 17, 2009 traffic stop because he was detained longer than
was reasonably necessary to diligently investigate the
justification for the stop. We disagree.
9
In reviewing the district court’s denial of Hill’s motion
to suppress, “we review questions of law de novo and findings of
. . . fact and reasonable inferences drawn from those findings
for clear error.” United States v. Holmes, 376 F.3d 270, 273
(4th Cir. 2004) (quotation marks and citation omitted). Absent
clear error, we consider evidence presented at the suppression
hearing “in the light most favorable to the government.” Id.While a police officer conducts the normal activities
associated with a traffic stop, such as “requesting a driver's
license and vehicle registration, running a computer check, and
issuing a ticket,” the officer may ask questions or undertake
additional actions that are not “solely and exclusively focused
on the purpose of that detention.” United States v. Digiovanni,
650 F.3d 498, 507 (4th Cir. 2011) (citation omitted).
“If a police officer seeks to prolong a traffic stop to
allow for investigation into a matter outside the scope of the
initial stop, he must possess reasonable suspicion” of
additional criminal activity. Id. While there is no “precise
articulation of what constitutes reasonable suspicion, . . . a
police officer must offer specific and articulable facts that
demonstrate at least a minimal level of objective justification
for the belief that criminal activity is afoot.” United States
v. Branch, 537 F.3d 328, 336 (4th Cir. 2008) (internal quotation
marks and citation omitted). Officers may use their “training
10
and expertise” to identify sets of factors which are
“individually quite consistent with innocent travel” yet “taken
together, produce a reasonable suspicion of criminal activity.”
Id. at 336-37 (internal quotation marks and citation omitted).
In examining Officer Kozak’s conduct, it is well
established that a law enforcement officer is “objectively
justified” in asking a person detained for a traffic violation
to “get out of the car.” Ohio v. Robinette, 519 U.S. 33, 40
(1996) (citing Pennsylvania v. Mimms, 34 U.S. 106, 111 n.6
(1977) (“[O]nce a motor vehicle has been lawfully detained for a
traffic violation, the police officers may order the driver to
get out of the vehicle without violating the Fourth Amendment’s
proscription of unreasonable searches and seizures.”)).
Therefore, in asking Hill to get out of the Tahoe, Officer Kozak
had not unconstitutionally extended the traffic stop.
Similarly, Officer Kozak’s questioning of Hill did not violate
the Fourth Amendment’s proscription against unreasonable
searches and seizures. Although his questions were not strictly
related to Hill’s alleged traffic violation, the questions
lasted only a few minutes and thus did not measurably extend the
stop.
By the time Officer Kozak began questioning Hood, and
certainly by the time he called for a canine unit, we conclude
that he had a reasonable suspicion of criminal activity. From
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the initiation of the stop, Hill acted in a manner potentially
consistent with criminal activity when he shook uncontrollably,
stared straight ahead without looking at Officer Kozak, and
refused to cooperate with lawful requests to exit the vehicle.
Within a few seconds of questioning, he appeared nervous,
speaking with a broken speech pattern and shifting his weight as
though nervous. Within a few minutes, he looked at the ground
when questioned about whether he was transporting heroin and
gave an inconsistent statement from that of his passenger
regarding what type of part they had purchased. “[N]ervous and
evasive behavior” is relevant to establishing a reasonable
suspicion of criminal activity, Branch, 537 U.S. at 338, as are
false statements, id. at n. 1 (citation omitted). Thus, even if
Officer Kozak extended the traffic stop beyond its original
purpose, he did so with “reasonable suspicion” that Hill was
engaged in criminal activity. See id.
To support his contention that the traffic stop was
unreasonably extended, Hill relies heavily on this Court’s
opinion in Digiovanni, in which we affirmed the district court’s
grant of the defendant’s motion to suppress on the grounds that
the police had unreasonably extended the traffic stop and,
moreover, that the police lacked reasonable suspicion to turn
the traffic stop into a drug investigation. 650 F.3d at 515.
Digiovanni involved a defendant who was driving a rental car on
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a road frequented by drug traffickers, and only appeared to
“tremble” slightly when handing over his license and
registration. Digiovanni, 650 F.3d at 512. In this case, by
contrast, Hill exhibited, among other things, extreme
nervousness and gave an implausible story that was contradicted
by his passenger. Thus, Digiovanni is clearly distinguishable
from this case. Accordingly, the district court properly
concluded that, under the totality of the circumstances, the
officer’s detention of Hill was supported by reasonable
suspicion.
B.
Next, Hill asserts that the district court abused its
discretion when it denied the motion to withdraw filed by Hill’s
defense counsel. We disagree.
We review the district court’s denial of defense counsel’s
motion to withdraw for abuse of discretion. United States v.
Hanley, 974 F.2d 14, 17 (4th Cir. 1992). In evaluating the
defendant’s claim, we consider: “(1) the timeliness of the
motion; (2) the adequacy of the district court’s inquiry into
the defendant’s complaint; and (3) whether the attorney/client
conflict was so great that it had resulted in total lack of
communication preventing an adequate defense.” Id. We “weigh
these factors against the trial court’s interest in the orderly
13
administration of justice.” United States v. Reevey, 364 F.3d
151, 157 (4th Cir. 2004) (citation omitted).
Here, Hill attempts to emphasize the second factor, i.e.,
the adequacy of the district court’s inquiry, because the
district court did not question Hill about his motivations for
seeking new counsel and instead relied on his counsel’s
representations of the situation. Hill asserts that the
district court abused its discretion by declining to give him an
opportunity to explain in person his reasons for requesting new
counsel. At the hearing on the motion to withdraw, Hill’s
counsel explained that he had discussed the complaints with
Hill. During their discussion, Hill’s counsel informed Hill
that any concerns about the trial performance could be raised in
a habeas proceeding or on appeal. Hill’s counsel explained to
the district court that he believed he could represent Hill at
the sentencing hearing because he was thoroughly familiar with
the facts of the case. Based on this inquiry, the district
court denied the motion.
An abuse of discretion does not occur simply because “the
district court’s questioning” as to a defendant’s reasons for
requesting new counsel and the “level of communication between
him and [his lawyer] could have been more probing.” See United
States v. Hagen, No. 09-5096, 2012 WL 764429, at *9 (4th Cir.
Mar. 12, 2012) (unpublished). We agree with Hill that it is
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better practice for the district court to ask a defendant to
explain his reasons for requesting new counsel at a hearing on
such a motion. Nonetheless, failure to do so does not rise to
an abuse of discretion if the district court sufficiently
examines the factual record and alleged bases for requesting new
counsel. See United States v. Perez, 661 F.3d 189, 192 (4th
Cir. 2011) (holding that the district court did not abuse its
discretion by denying the defendant’s motion to substitute
counsel between trial and sentencing without a hearing); see
also Reevey, 364 F.3d at 157 (deeming the district court’s
inquiry adequate because “[t]he court was informed that
[defendant’s] counsel had spent an extensive amount of time with
[him] discussing various aspects of the case [and t]he court
also ensured that his lawyers were prepared [for upcoming
proceedings]”).
Here, Hill’s counsel indicated that all of Hill’s
complaints involved counsel’s trial performance, and that none
of these issues would affect his ability to represent Hill at
sentencing. The district court found that there was no
“professional or ethical conflict” that would prevent Hill’s
counsel from adequately representing him at the sentencing
hearing. J.A. 342. Hill’s letter explaining his reasons for
requesting new counsel did not allege that there was any
conflict or breakdown in communication. Moreover, Hill’s
15
counsel indicated that he and Hill had discussed the issues Hill
had with counsel’s trial performance shortly before the hearing
on the motion to withdraw. Subsequently, at the sentencing
hearing, counsel indicated that he had explained the PSR and its
implications to Hill. Finally, the court properly considered
that substitution of counsel might delay the orderly
administration of justice. The court found that delay could
result from substitution of counsel because Hill’s trial counsel
had “an absolute thorough knowledge” of the “nuances of this
case.” J.A. 342.
In sum, the statements made by the district court when
denying the motion reflect that it thoughtfully considered the
reasons Hill sought new counsel, as well as the potential delay
to the proceedings and other appropriate factors. Thus, the
district court did not abuse its discretion in denying the
motion to withdraw.
C.
Finally, Hill asserts that the district court’s upward
variance of 60 months in Hill’s sentence was unreasonable. We
disagree.
“We review any sentence, whether inside, just outside, or
significantly outside the Guidelines range, under a deferential
abuse-of-discretion standard.” United States v. King, 673 F.3d
16274, 283 (4th Cir. 2012) (citation omitted). We first review
for “significant procedural error.” United States v. Evans, 526
F.3d 155, 162 (4th Cir. 2008). In choosing a sentence for a
defendant, the district court must conduct an “individualized
assessment of the facts presented” and “adequately explain the
chosen sentence—including an explanation for any deviation from
the Guidelines range.” King, 673 F.3d at 283 (quotation marks
and citation omitted). Second, we review the “substantive
reasonableness of the sentence.” Evans, 526 F.3d at 161(citation omitted). In this regard, we defer substantially to
the district court. See id. at 162 (“[T]he fact that an
appellate court might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal.”
(quotation marks and citation omitted)).
Hill asserts that the upward variance of 60 months punishes
him four times more harshly than he would have been, had the
“obstruction of justice” guideline been applied. Appellant Br.
at 26. Nevertheless, he acknowledges that “perhaps an
adjustment to [his] advisory sentencing range was warranted.”
Id. at 27 (citing U.S.S.G. § 3C1.1). Even assuming that the
district court did fail to properly look to U.S.S.G. § 3C1.1 to
address Hill’s false testimony, any such procedural error is
harmless, because an “upward variance based on the [18 U.S.C.] §
17
3553(a) factors justifie[s] the sentence imposed.” United
States v. Rivera–Santana, 668 F.3d 95, 104 (4th Cir. 2012).
Here, in imposing the upward variance, the district court
supported its sentence with reasons based on the relevant 18
U.S.C. § 3553(a) factors.2 Specifically, as the district court
pointed out:
The offense is a serious offense. He has shown no
respect for the law. The punishment at that level
[180 month sentence in Counts 1, 2, and 5] the Court
finds to be a just amount . . . given his age and his
2
18 U.S.C. § 3553 (a) states in relevant part:
Factors to be considered in imposing a sentence.--The court
shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph
The court, in determining the particular sentence to be imposed,
shall consider--
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes of the
defendant; [and]
(D) to provide the defendant with needed educational
or vocational training, medical care, or other
correctional treatment in the most effective
manner . . . .
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chronic criminal behavior and lack of reform shows,
under number 2, that this would be an adequate
deterrent. . . . under number 3, his repeat offender
history shows that the public needs to be further
protected from his crimes.
J.A. 355. The district court also found that Hill showed “great
disrespect” for the trial process by going “out of his way to
obstruct justice by testifying falsely on material facts to the
jury.” J.A. 353. The district court further noted that Hill
would have educational and vocational opportunities in prison
during his sentence.
In sum, we find the district court’s determination was both
procedurally and substantively reasonable. The district court
took into account the seriousness of Hill’s offense, his
criminal history, his disrespect for the trial process, and his
likelihood of recidivism in its decision to grant an upward
variance. Accordingly, because we must “give due deference to
the [d]istrict [c]ourt’s reasoned and reasonable decision that
the § 3553(a) factors, on the whole, justified the sentence” of
240 months of imprisonment, we hold that district court did not
abuse its discretion. Gall v. United States, 552 U.S. 38, 59–60
(2007).
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III.
For the foregoing reasons, we affirm the decision of the
district court.
AFFIRMED
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