United States v. Franklin Alexander Mills , 457 F. App'x 251 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4580
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FRANKLIN ALEXANDER MILLS,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:09-cr-00039-WO-1)
Submitted: September 29, 2011 Decided: December 15, 2011
Before MOTZ, KING, and AGEE, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Louis C. Allen III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. John W. Stone, Jr., Acting United
States Attorney, Michael F. Joseph, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Franklin Alexander Mills of multiple
drug and firearms offenses, 1 and the district court sentenced him
to a total of 180 months’ imprisonment. On appeal, Mills argues
that the district court erred in denying his motion to suppress
evidence, improperly sentenced him to the mandatory minimum
five-year term of imprisonment for violation of § 924(c) to run
consecutively to the mandatory minimum sentence for violation of
§ 841(b)(1)(B), and improperly enhanced his sentence based on a
prior North Carolina conviction. We affirm Mills’ convictions
but vacate his sentence in part and remand to the district court
for resentencing.
Mills argues that the district court erred in denying
his motion to suppress the evidence recovered following a canine
sniff of his vehicle. In reviewing the district court’s denial
of a motion to suppress, “[w]e review the district court’s legal
determinations de novo and its factual determinations for clear
error.” United States v. Kelly, 592 F.3d 586, 589 (4th Cir.),
cert. denied, 130 S. Ct. 3374 (2010). When the district court
1
The jury convicted Mills of possession with intent to
distribute cocaine base and cocaine hydrochloride, in violation
of 21 U.S.C.A. § 841(a)(1), (b)(1)(B), and (b)(1)(C) (West 1999
& Supp. 2011), possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C.A. § 924(c)(1)(A)(i)
(West 2000 & Supp. 2011), and possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006).
2
has denied a suppression motion, “we construe the evidence in
the light most favorable to the government.” Id. Our review of
the record leads us to conclude that the district court did not
err in denying Mills’ motion to suppress. See United States v.
Farrior, 535 F.3d 210, 220 (4th Cir. 2008) (concluding that
brief canine sniff after officer issued citation and returned
license and registration was “a de minimis intrusion on [the
defendant’s] liberty interest”). Therefore, we affirm Mills’
convictions.
Mills next argues that the district court erred in
sentencing him to a mandatory minimum five-year term of
imprisonment for violation of § 924(c) to run consecutively to
the ten-year mandatory minimum sentence for violation of
§ 841(b)(1)(B). Mills’ argument is, however, foreclosed by the
Supreme Court’s recent decision in Abbott v. United States, 131
S. Ct. 18, 23 (2010) (holding “that a defendant is subject to a
mandatory, consecutive sentence for a § 924(c) conviction, and
is not spared from that sentence by virtue of receiving a higher
mandatory minimum on a different count of conviction”).
Therefore, we affirm this portion of Mills’ sentence.
Finally, Mills argues that the North Carolina drug
conviction used to enhance his mandatory minimum sentence under
§ 841(b)(1)(B) was not punishable by more than one year of
imprisonment. See 21 U.S.C. § 802(44) (2006) (defining felony
3
for purposes of § 841 as a crime “punishable by imprisonment for
more than one year”); N.C. Gen. Stat. § 15A-1340.17(c)-(d)
(2007) (setting out minimum and maximum sentences applicable
under North Carolina’s sentencing scheme to offenses committed
on or after Dec. 1, 1995, and before Dec. 1, 2009). 2 When Mills
raised this argument in the district court, it was foreclosed by
our decision in United States v. Harp, 406 F.3d 242 (4th Cir.
2005). Subsequently, however, we overruled Harp with our en
banc decision in United States v. Simmons, 649 F.3d 237 (4th
Cir. 2011) (en banc), in which the defendant raised the same
argument. In view of Simmons, we vacate this portion of Mills’
sentence and remand the case to the district court for
resentencing.
Accordingly, we affirm Mills’ convictions, affirm his
sentence in part and vacate his sentence in part, and remand for
resentencing in accordance with Simmons. 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 IN PART,
VACATED IN PART,
AND REMANDED
2
The statute subsequently was amended, but the amendments
do not apply to Mills.
4