United States v. Bird , 149 F. App'x 157 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4334
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KING SOLOMON BIRD,
Defendant- Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (CR-03-989)
Submitted: July 29, 2005 Decided: September 15, 2005
Before LUTTIG, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jill E.M. HaLevi, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. J. Strom Thurmond, Jr., United
States Attorney, Carlton R. Bourne, Jr., Assistant United States
Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
King Solomon Bird appeals from his conviction and
sentence imposed for violation of 21 U.S.C. § 841(b)(1)(B) (2000).
Bird assigns error to the district court’s denial of his motion to
suppress evidence and imposition of a sentence in violation of the
Sixth Amendment. Finding no error, we affirm.
After a traffic stop and continued questioning, Bird
consented to a search of his vehicle. Cocaine was found during the
search in a cupholder compartment. Bird moved to suppress the
drugs found during the search. The district court denied the
motion. We review the district court’s factual findings underlying
a motion to suppress for clear error and its legal determinations
de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996);
United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). When
a motion to suppress has been denied, this court construes the
evidence in the light most favorable to the government. United
States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
Bird first argues that the additional questioning after
completion of the traffic stop was impermissible. The district
court found that the continued encounter with the state trooper was
consensual. Once a traffic stop has concluded, a continued
conversation between an officer and suspect can be a consensual
encounter if a reasonable person would have felt free to leave.
- 2 -
See, e.g., United States v. Weaver, 282 F.3d 302, 309 (4th Cir.
2002).
We have found consent to be voluntary on facts similar to
those in the case at hand. In United States v. Lattimore, 87 F.3d
647 (4th Cir. 1996), as here, a trooper stopped a suspect and
escorted him to his car after a traffic violation. Id. at 649.
Moreover, after checking the suspect’s license and returning it to
him, while the suspect was exiting the car, the officer asked if he
could search the vehicle. Id. Finally, the suspect orally
consented and the resulting search turned up illegal narcotics.
Id. at 649-50. The court found the consent voluntary because the
totality of the circumstances indicated that a reasonable person
would have felt free to decline the request for consent. Id. at
651. In addition, circumstances present in Lattimore and in Bird’s
case are that the stop occurred on a highway during the daytime,
and the questioning was casual in nature. Id..
In this case, Bird voluntarily gave consent without
prompting by the trooper, although the trooper did continue to ask
whether there were illegal drugs in the vehicle. This court has
also held that a search was consensual even though an officer
repeatedly asked questions about the presence of illegal items in
the vehicle after returning a suspect’s license at the conclusion
of the traffic stop. United States v. Sullivan, 138 F.3d 126, 133
(4th Cir. 1998). We therefore do not find error in the district
- 3 -
court’s factual finding that the continued encounter was
consensual.
Bird next argues that his consent to search the vehicle
did not extend to all compartments in the minivan. As to the scope
of the search, the Supreme Court has established that the
appropriate test is an objective one — what a reasonable person
would have understood the exchange between the officer and the
individual to encompass. Florida v. Jimeno, 500 U.S. 248, 251
(1991). Individuals may limit the scope of their consent, but
when, as here, a suspect does not expressly limit the scope of the
search, the test remains what a reasonable person would believe to
be included within the scope of the consent. Id. at 252.
In Jimeno, the Court concluded that once Jimeno gave
consent to search his car without limitation, it was reasonable to
search in a paper bag on the floor of the car because the officer
informed Jimeno that he was looking for drugs, and a reasonable
person would expect to find drugs inside a container. Id. at 251.
Similarly, Trooper Housand specifically asked Bird about drugs, so
it was reasonable for Bird to assume that the trooper would be
looking for drugs in hidden areas in his minivan, and not merely
“take a look,” as Bird argues. Because the conversation between
Trooper Housand and Bird indicated that the trooper was looking for
drugs, Bird has no colorable contention that the search exceeded
the scope of his consent. We therefore conclude that the district
- 4 -
court did not err in denying Bird’s motion to suppress the drugs
seized during the search.
Bird next argues that his sentence is illegal in light of
Blakely v. Washington, 542 U.S. 296 (2004). In United States v.
Booker, 125 S. Ct. 738 (2005), the Supreme Court held that Blakely
applies to the federal Sentencing Guidelines and that the mandatory
Guidelines scheme, which provided for sentence enhancements based
on facts found by the court, violated the Sixth Amendment. 125 S.
Ct. at 746-48, 755-56 (Stevens, J., opinion of the Court). The
Court remedied the constitutional violation by severing and
excising the statutory provisions that mandate sentencing and
appellate review under the Guidelines, thus making the Guidelines
advisory. Id. at 756-57 (Breyer, J., opinion of the Court).
Subsequently, in United States v. Hughes, 401 F.3d 540 (4th Cir.
2005), this Court held that a sentence that was imposed under the
pre-Booker mandatory sentencing scheme and was enhanced based on
facts found by the court, not by a jury or, in a guilty plea case,
admitted by the defendant, constitutes plain error that affects the
defendant’s substantial rights and warrants reversal under Booker
when the sentence “exceeded the maximum allowed based on the facts
found by the jury alone” and the record does not disclose what
discretionary sentence the district court would have imposed under
an advisory guideline scheme. Hughes, 401 F.3d at 546-47, 556
(citing United States v. Olano, 507 U.S. 725, 731-32 (1993)).
- 5 -
In this case there is no constitutional violation because
the guideline range was not enhanced based on any judicial fact-
finding. Bird’s base offense level was 26, pursuant to U.S.
Sentencing Guidelines Manual § 2D1.1(c)(7) (2003), based on the 500
grams or more of cocaine found by the jury. He received no other
enhancements. He had a criminal history category of II, and
therefore the resulting guideline range was 70-87 months of
imprisonment. USSG Ch.5 Pt.A. The district court imposed an
eighty-month term of imprisonment. Therefore, there was no error
under Hughes.
Bird argues that the fact that he was sentenced using the
Sentencing Guidelines, without an alternative sentence, renders his
sentence illegal. To the extent that Bird challenges the court’s
application of the Guidelines as a mandatory rather than an
advisory sentencing scheme, he has not made any attempt to show
that this error affected his substantial rights, i.e., that the
error actually affected the sentence imposed. See United States v.
White, 405 F.3d 208, 223 n.10 (4th Cir. 2005) (citing Hughes, 401
F.3d at 551); see also Olano, 507 U.S. at 734-35 (under plain error
test, defendant bears burden of proving that error affected
substantial rights).
We therefore affirm the conviction and sentence. We
dispense with oral argument because the facts and legal contentions
- 6 -
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
- 7 -