United States v. Prosise , 367 F. App'x 423 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4733
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RAY PROSISE, a/k/a Steiner, a/k/a Raymond Prosise,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:07-cr-00322-RLW-1)
Argued: January 27, 2010 Decided: February 26, 2010
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: James T. Maloney, MALONEY & DAVID, PLLC, Richmond,
Virginia, for Appellant. Michael Calvin Moore, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON
BRIEF: Dana J. Boente, Acting United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ray Prosise was convicted of five drug- and firearm-related
offenses in the Eastern District of Virginia and sentenced to
life plus sixty months’ imprisonment. In this appeal, Prosise
contends that the district court erred by denying his pretrial
motion to suppress evidence and in applying the Sentencing
Guidelines. As explained below, we affirm.
I.
On April 1, 2008, at the conclusion of a two-day trial in
Richmond, the jury returned verdicts of guilty as to all five
counts against Prosise in the operative indictment. 1 Those
counts were: conspiracy to distribute five kilograms or more of
cocaine hydrochloride (“cocaine”) and fifty grams or more of
cocaine base (“crack”), in contravention of 21 U.S.C. § 846(Count One); possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
(Count Two); possession of a firearm by a convicted felon, in
contravention of 18 U.S.C. § 922(g)(1) (Count Three); assault on
a federal officer, in violation of 18 U.S.C. § 111(a)(1) (Count
1
The operative indictment was the Second Superseding
Indictment of January 22, 2008, which is found at J.A. 138-42.
(Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.)
2
Four); and use of a communication facility in the commission of
a felony, in contravention of 21 U.S.C. § 843(b) (Count Seven).
On July 2, 2008, the district court sentenced Prosise to
life plus sixty months’ imprisonment. Prosise then timely noted
this appeal from the court’s final judgment. We possess
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291.
II.
In assessing a trial court’s ruling on a motion to
suppress, we review the court’s factual findings for clear error
and its legal determinations de novo. See United States v.
Kellam, 568 F.3d 125, 132 (4th Cir. 2009). In so doing, we must
construe the evidence in the light most favorable to the
prevailing party. See United States v. Branch, 537 F.3d 328,
337 (4th Cir. 2008). We review sentences under a deferential
abuse-of-discretion standard, “first ensur[ing] that the
district court committed no significant procedural error,”
including “improperly calculating[] the Guidelines range.” Gall
v. United States, 552 U.S. 38, 51 (2007). In assessing whether
a sentencing court properly applied the Guidelines, we review
factual findings for clear error and legal conclusions de novo.
See United States v. Chacon, 533 F.3d 250, 253 (4th Cir. 2008).
3
III.
A.
On October 5, 2007, prior to trial, Prosise filed his
motion to suppress evidence. The district court conducted a
hearing on the suppression motion on November 9, 2007, and
denied the motion by its Order of November 15, 2007, for reasons
explained in the accompanying Memorandum Opinion (the
“Opinion”). 2 In ruling on the suppression motion, the court made
the following findings of fact:
Since 2005, [Prosise] had been the subject of an on-
going investigation into alleged drug distribution.
Law enforcement had interviewed more than six
different informants or witnesses who had provided
information about the defendant’s alleged activities
over a period of approximately two years. An
informant referred to herein as Confidential Source
(“CS”) provided information to law enforcement in
August 2007. He told law enforcement that he had
assisted the defendant in transporting kilogram
quantities of cocaine in the past, and he provided
specific information regarding activities that had
taken place at various locations. On August 16, 2007,
the CS told law enforcement that Prosise was going to
North Carolina to pick up multiple kilograms of
cocaine and transport it back to Virginia in Prosise’s
green Suburban. Numerous conversations took place on
August 16 and 17 between the CS and law enforcement,
as the CS continued to update law enforcement on
Prosise’s alleged activities.
Several law enforcement agencies were involved in
the investigation, including agents from the Bureau of
Alcohol, Tobacco, Firearms, and Explosives (ATFE),
agents from the Drug Enforcement Agency (DEA), members
2
The Opinion is found at J.A. 127-34.
4
of the Richmond District Office High Intensity Drug
Trafficking Area Task Force (TF), and members of the
Sussex County, Virginia Sheriff’s Department. On the
morning of August 17, law enforcement received new
information from the CS regarding Prosise’s
whereabouts, including information that the defendant
had returned from North Carolina with a quantity of
cocaine, that he was armed with a .40 caliber Glock
handgun with a laser sight and another handgun, and
that he was at the residence of his wife/girlfriend at
18813 Manson Church Road, McKenney, Virginia. After
receiving that information, a group of law enforcement
officers, including officers and agents from the ATFE,
DEA, TF, and Sussex County Sheriff’s Department,
gathered near the residence at 18813 Manson Church
Road, McKenney, Virginia, waiting while another
officer and personnel in the U.S. Attorney’s Office
prepared documents to obtain a federal search warrant
for that residence and another used by the defendant.
The CS had also reported that it was anticipated that
the defendant would remain at that residence until
approximately 11:00 a.m.[3] Based on that information,
law enforcement had located the defendant’s green
Suburban at 18813 Manson Church Road, McKenney,
Virginia. Law enforcement then developed a plan to
stop the defendant in his vehicle if he left the
residence before the search warrants were signed and
executed. This plan was communicated to the various
law enforcement officers, and the officers positioned
themselves and their vehicles to carry out the plan.
3
Although the district court found that the CS “reported
that it was anticipated that the defendant would remain at [the
Manson Church Road] residence until approximately 11:00 a.m.,”
Opinion 2, the record reflects that the CS informed the officers
that Prosise would remain there until approximately noon. See
J.A. 57-58 (hearing testimony of ATFE Special Agent Sean Netzel
that “[t]he informant told us that the . . . particular vehicle
Mr. Prosise was driving contained a large quantity of cocaine.
That that vehicle and Mr. Prosise were going to be at a specific
residence. And . . . that Mr. Prosise [was] going to stay at
that residence until approximately noon on Friday, at which
point [he] would leave and distribute this cocaine”).
5
At approximately 11:45, the defendant left the
residence. The officers moved into position with two
vehicles, driven by TF Officer Talbert and TF Officer
Layman, blocking Lew Jones Road approximately one mile
from where the defendant turned right onto Lew Jones
Road from Manson Church Road. TF Supervisor
Blackwood, who was driving a vehicle that was
positioned immediately in front of the defendant on
Lew Jones Road at a speed of approximately 25 m.p.h.,
activated his emergency lights, and began to slow
down. DEA Agent Montgomery, who was driving a vehicle
that was immediately behind the defendant’s vehicle,
moved in closer to the defendant’s vehicle. The
defendant moved his vehicle from side to side,
attempting to get around Blackwood, but Blackwood
slowed down even more, stopped, and then reversed
slowly, attempting to contain the defendant’s vehicle.
At the same time, Montgomery tried to assist with
vehicle containment from the rear and inadvertently
bumped the defendant’s car’s rear bumper. The
defendant then accelerated, turned left, and hit the
rear driver’s side of Blackwood’s vehicle. The
defendant then drove up the left side embankment of
Lew Jones Road, with his right two tires in the
drainage ditch and his left two tires on the top of
the embankment of the road, near the fence. He
stopped briefly at the beginning of an open driveway,
where he appeared to be stuck in the drainage ditch.
At this point, several officers got out of their
vehicles, wearing bullet-proof vests with police
insignia. Talbert and Layman were in the driveway,
directly in front of the defendant’s Suburban.
Talbert and others gave commands to the defendant,
identifying themselves as the police and ordering him
out of the car. As Blackwood approached the passenger
door of the defendant’s car, the defendant
accelerated, the engine raced, the car rose up several
feet, and it headed for Talbert. As the car came
toward him, Talbert fired four rounds into the
passenger side rear tire and rim. The defendant made
a sharp left turn into the driveway and drove across
the property, followed by Blackwood and Montgomery in
their vehicles. The defendant stopped at a pond, then
appeared to drive purposefully straight into the pond.
He disregarded the officers’ instructions to come out
of the vehicle, instead remaining in the vehicle and
throwing what appeared to be 8 to 10 one-ounce baggies
6
of white powder and other items out of the car into
the pond for several minutes. He finally exited
[through] the passenger side window, waded ashore, and
was placed under arrest. The officers retrieved the
baggies and a .40 caliber Glock handgun with a laser
sight from the pond just outside the Suburban’s
driver’s side door. They also found scales in the
car.
Opinion 1-4 (footnote and citations omitted).
Prosise had moved “to suppress any and all evidence taken
from [him] or his person or his automobile after he was
illegally detained and searched in violation of his
Constitutional rights.” J.A. 16. Prosise relied on the same
suppression theory in the district court that he asserts on
appeal: that he was seized for Fourth Amendment purposes as of
the time the officers initiated the roadblock, and that, at that
point, there was no reasonable suspicion of criminal activity to
justify a Terry stop. See Illinois v. Wardlow, 528 U.S. 119,
123 (2000) (recognizing that, under Terry v. Ohio, 392 U.S. 1(1968), “an officer may, consistent with the Fourth Amendment,
conduct a brief, investigatory stop when the officer has a
reasonable, articulable suspicion that criminal activity is
afoot”).
The district court rejected the proposition that Prosise
was seized when the officers initiated the roadblock, as
“Prosise was not stopped by the roadblock set up by the
officers.” Opinion 6 (distinguishing Brower v. County of Inyo,
7
489 U.S. 593, 599 (1989), where the suspect “was meant to be
stopped by the physical obstacle of the roadblock — and . . .
was so stopped”). The court also rejected any notion that
Prosise was seized when his vehicle collided with those of
officers Montgomery and Blackwood, based on its findings “that
Agent Montgomery’s bumping of Prosise’s rear bumper was
inadvertent and that [Prosise] caused the crash into Blackwood’s
vehicle.” Id. at 6-7 (recognizing that, under Brower, 489 U.S.
at 597, police may effect seizure by intentionally sideswiping
suspect’s car and thereby producing crash that terminates
suspect’s freedom of movement). As such, the court concluded
that “there was no seizure of [Prosise] until he exited his
vehicle [into the pond], waded ashore, and submitted to the
officers.” Id. at 7.
Next, the district court ruled that, at the time they
initiated the roadblock, the officers “had reasonable suspicion
based on articulable facts that the defendant was engaged in
criminal activity.” Opinion 7. The court premised its
reasonable suspicion ruling on “the on-going investigation of
the defendant’s drug distribution activities, the historical
information that had been provided, and the up-to-the-minute
information being provided by the CS about the defendant’s
illegal activities in the hours just prior to this incident.”
Id. Indeed, the court recognized “that the information that law
8
enforcement had regarding the defendant was provided by numerous
informants and not just a single anonymous tip from an unknown
informant.” Id. (distinguishing Florida v. J.L., 529 U.S. 266,
270-71 (2000)). The court emphasized that “[t]he officers had
historical information provided by at least six different
informants and a CS who was providing up-to-the-minute
information regarding the defendant. Some of the information
provided by the CS was in fact corroborated by the observations
of various law enforcement officers.” Id. at 7-8.
We conclude that the district court properly denied
Prosise’s motion to suppress. First of all, Prosise’s theory of
illegal seizure rests on the proposition that he was seized as
of the time the officers initiated the roadblock, in that the
roadblock partially restrained his freedom of movement, even
though it did not stop him. Put simply, such proposition is
foreclosed by Supreme Court precedent. See California v. Hodari
D., 499 U.S. 621, 626 (1991) (“The narrow question before us is
whether, with respect to a show of authority as with respect to
application of physical force, a seizure occurs even though the
subject does not yield. We hold that it does not.”); Brower,
489 U.S. at 599 (“We think it enough for a seizure that a person
be stopped by the very instrumentality set in motion or put in
place in order to achieve that result.”). Moreover, Prosise
acknowledges that we must defer to the district court’s findings
9
— specifically that he was not stopped by the roadblock, but
rather intentionally drove into the pond, attempted for several
minutes to discard evidence, and only thereafter exited his
vehicle and surrendered to the officers — because such findings
are not clearly erroneous. Thus, there is no merit to Prosise’s
assertion that he was seized as soon as the roadblock began.
In any event, even if Prosise was seized when the officers
initiated the roadblock, the information provided by the CS was
sufficiently reliable to establish reasonable suspicion that
Prosise was currently engaged in criminal activity. The
officers had heard from at least five witnesses, in addition to
the CS, that Prosise was involved in drug trafficking; the
identities of the informant/witnesses were known to the
officers; the CS was giving the officers up-to-the-minute
information about Prosise’s activities, including information
that his vehicle contained a large quantity of cocaine that
Prosise intended to distribute on the day of his arrest; and the
officers corroborated several details of the CS’s information,
including the description of Prosise’s vehicle, the residence
where it was parked, and the fact that Prosise would leave the
residence in the vehicle at approximately noon on the day in
question. See supra note 3; see also Alabama v. White, 496 U.S.
325, 332 (1990) (recognizing that even anonymous tip can justify
Terry stop where “significant aspects of the caller’s
10
predictions were verified”). In these circumstances, we affirm
the district court’s denial of Prosise’s motion to suppress
evidence.
B.
In sentencing Prosise, the district court adopted the
probation officer’s Presentence Investigation Report (the “PSR”)
without change. On combined Counts One, Three, Four, and Seven,
the PSR recommended a Guidelines offense level of 40, premised
on a drug quantity offense level of 38, see USSG § 2D1.1(c)(1),
and a two-level increase for possession of a dangerous weapon,
id. § 2D1.1(b)(1). 4 The PSR then assigned a six-level official
victim enhancement, id. § 3A1.2(c)(1); a four-level aggravating
role enhancement for being an organizer or leader in criminal
activity, id. § 3B1.1(a); and a two-level enhancement for
obstruction of justice, id. § 3C1.1. Accordingly, Prosise’s
total offense level was 52. The PSR initially calculated
Prosise’s criminal history category as IV, but elevated that
category to VI because of Prosise’s status as a career offender
under Guidelines section 4B1.1. The resulting Guidelines
sentence was life imprisonment — the sentence for any defendant
with an offense level of 43 or more. With respect to Count Two,
4
The PSR applied the 2007 edition of the Guidelines and the
May 1, 2008 supplement thereto.
11
the PSR recognized that the applicable Guidelines sentence was a
sixty-month consecutive term of imprisonment, as mandated by
statute. See 18 U.S.C. § 924(c)(1)(A), (D); USSG § 2K2.4(b).
After overruling Prosise’s objections to the PSR and denying his
motion for a downward departure, the district court imposed the
total sentence, as prescribed by the Guidelines, of life plus
sixty months’ imprisonment. 5
On appeal, Prosise challenges the district court’s
application of the Guidelines in four respects. More
specifically, he first contends that the court erred in
calculating drug quantity, resulting in an offense level of 38,
rather than what he asserts is the proper level of 34. Prosise
further maintains that the court erred by imposing the two-level
dangerous weapon enhancement, the four-level leadership
enhancement, and the two-level obstruction of justice
enhancement. Importantly, Prosise preserved his objections to
these purported errors at the time of sentencing. Nevertheless,
because Prosise had a total offense level of 52 and the
Guidelines sentence is life for level 43 or more, any errors
were harmless unless they collectively involve the incorrect
5
The total sentence was comprised of concurrent terms of
life on Count One, 120 months on Count Three, 96 months on Count
Four, and 96 months on Count Seven, and the consecutive term of
60 months on Count Two.
12
application of at least ten levels. See United States v. Lynn,
__ F.3d __, No. 08-5125(L), slip op. at 6 (4th Cir. Jan. 28,
2010) (recognizing, in wake of Gall, that properly preserved
objections to procedural sentencing errors can be subject to
harmlessness review pursuant to Federal Rule of Criminal
Procedure 52(a)); see also Williams v. United States, 503 U.S.
193, 203 (1992) (observing, pre-Gall, that misapplication of
Guidelines is harmless under Rule 52(a) if “the error did not
affect the district court’s selection of the sentence imposed”).
In summary, we conclude that the district court erroneously
applied the two-level dangerous weapon enhancement, but that the
court properly imposed the four-level leadership and the two-
level obstruction of justice enhancements. Accordingly, we need
not reach Prosise’s contention that the court should have
assigned him a drug quantity offense level of 34, rather than
38. Even if Prosise is correct on that issue, his total offense
level would yet be 46, rendering any error in the drug quantity
calculation harmless.
First of all, the Government concedes error with respect to
the two-level dangerous weapon enhancement, and we agree. The
district court imposed this enhancement, under Guidelines
section 2D1.1(b)(1), in calculating Prosise’s sentence on the
combined counts that included Count One, conspiracy to
distribute cocaine and crack, in contravention of 21 U.S.C.
13
§ 846. Significantly, Count One was the offense underlying
Count Two, possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).
And, Prosise received a consecutive sixty-month term of
imprisonment on Count Two, as prescribed by Guidelines section
2K2.4(b) and mandated by statute. The Application Notes for
section 2K2.4 instruct that, “[i]f a sentence under this
guideline is imposed in conjunction with a sentence for an
underlying offense, do not apply any specific offense
characteristic for possession . . . of [a] firearm when
determining the sentence for the underlying offense.” USSG
§ 2K2.4 cmt. n.4. Furthermore, the Application Notes instruct
“not [to] apply any weapon enhancement in the guideline for the
underlying offense . . . if . . . in an ongoing drug trafficking
offense, the defendant possessed a firearm other than the one
for which the defendant was convicted under 18 U.S.C. § 924(c).”
Id. As such, the dangerous weapon enhancement was improperly
applied to Prosise with respect to his Guidelines sentence on
Count One, whether it was imposed for possession of the same or
a different firearm as that involved in Count Two. Cf. United
States v. Reevey, 364 F.3d 151, 158-59 (4th Cir. 2004)
(recognizing that defendant convicted and sentenced under
§ 924(c) was not subject to threat-of-death enhancement for use
14
of firearm during underlying carjacking offense (citing USSG
§ 2K2.4 cmt. n.4)).
As for the four-level leadership enhancement, such
enhancement applies “[i]f the defendant was an organizer or
leader of a criminal activity that involved five or more
participants or was otherwise extensive.” USSG § 3B1.1(a); see
United States v. Jones, 356 F.3d 529, 537-38 (4th Cir. 2004).
According to the Application Notes for section 3B1.1, to qualify
for the leadership enhancement, the defendant must have been the
organizer or leader “of one or more other participants” — with a
“participant” being defined as “a person who is criminally
responsible for the commission of the offense,” even if not
convicted. USSG § 3B1.1 cmt. nn.1-2. The district court agreed
with the probation officer that Prosise was the leader or
organizer of “multiple” participants, J.A. 538, including two
informants who testified at trial that Prosise “directed [them]
to transport and distribute narcotics,” id. at 566. The
informants’ testimony indeed reflects that Prosise was their
organizer or leader in the Count One conspiracy, as well as that
the conspiracy involved five or more participants. Accordingly,
the court did not err by imposing the leadership enhancement.
Finally, the two-level obstruction of justice enhancement
is applicable under Guidelines section 3C1.1 where “the
defendant willfully obstructed or impeded, or attempted to
15
obstruct or impede, the administration of justice with respect
to the investigation, prosecution, or sentencing of the instant
offense of conviction.” The Application Notes for section 3C1.1
specify, however, that if the obstructive “conduct occurred
contemporaneously with arrest (e.g., attempting to swallow or
throw away a controlled substance), it shall not, standing
alone, be sufficient to warrant [the enhancement] unless it
resulted in a material hindrance to the official investigation
or prosecution of the instance offense or the sentencing of the
offender.” USSG § 3C1.1 cmt. n.4(d). The PSR recommended the
obstruction of justice enhancement based on (1) Prosise’s
destruction of cocaine by throwing it into the pond at the time
of his arrest, and (2) his subsequent directive to his mother
and brother to distribute crack, hidden in a vehicle, that had
escaped detection during a post-arrest police search. The
district court found “that the defendant’s conduct in both of
these instances constituted obstructive behavior” and, thus,
imposed the enhancement. J.A. 538.
In challenging the obstruction of justice enhancement,
Prosise contends that “there was no evidence to suggest that
[his] request that his mother and brother sell undiscovered
narcotics was intended to or did obstruct law enforcement in any
manner,” Br. of Appellant 16, and that his destruction of
evidence in the pond at the time of his arrest, standing alone,
16
is an insufficient basis for the enhancement. The district
court did not clearly err, however, in finding that Prosise’s
directive to his mother and brother constituted a willful
obstruction of justice (even if there was another motive behind
the directive, such as profiting from the sale of the drugs).
Cf. United States v. Kiulin, 360 F.3d 456, 460-61 (4th Cir.
2004) (affirming obstruction of justice enhancement where court
inferred from recorded conversation that defendant agreed to lie
to police to exonerate accomplice). Consequently, Prosise’s
destruction of cocaine did not “stand alone” as reason for the
enhancement, which was properly applied.
IV.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
17