United States v. Bethel , 52 F. App'x 609 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4677
DEON D. BETHEL,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-01-37)
Argued: October 31, 2002
Decided: December 12, 2002
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Edward Smith, Jr., Baltimore, Maryland, for Appellant.
Mark Vincent Talinao Odulio, Special Assistant United States Attor-
ney, Baltimore, Maryland, for Appellee. ON BRIEF: Thomas
DiBiagio, United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BETHEL
OPINION
PER CURIAM:
Deon D. Bethel appeals his conviction and sentence under 18
U.S.C. § 922(g) based on the district court’s denial of his motion to
suppress and the court’s refusal to make a downward departure by
one offense level pursuant to U.S.S.G. § 3E1.1(b)(2). Finding no
error, we affirm.
I.
On December 28, 2000, at 1:40 p.m., Baltimore City Police Offi-
cers Reginald Parker and Cory Jennings observed a black Lexus in
the middle of the road on a one-way street. The officers observed a
passenger exit the vehicle and enter a home on the street. The officers
then slowly drove around the vehicle and recognized the driver of the
Lexus as a person they had stopped the previous week for speeding.
They remembered that they had given the driver a warning for driving
without a license, but did not have time to write the driver a ticket.
Officer Parker instructed the driver, Deon D. Bethel, to pull over
to the curb, and Bethel complied. Parker then approached the vehicle
and asked Bethel for identification. Bethel informed the officer that
he did not have any identification on him. While Bethel’s window
was down, Parker smelled the distinct odor of marijuana coming from
the vehicle. Parker then asked Bethel to exit the vehicle, placed him
under arrest, and took him to the police station.1 At the station, Bethel
gave the police consent to search his bedroom in his mother’s home.
The police went to the home and found a firearm in his bedroom.2
On January 26, 2001, Bethel was indicted on one count of possess-
ing a firearm by a convicted felon in violation of 18 U.S.C.
1
The vehicle was impounded pursuant to Bethel’s arrest, and the police
found $8,325.00 in the car.
2
On December 28, 2000, Bethel was charged in state court with pos-
session of a handgun and knowingly possessing a firearm after being
convicted of a felony. Appellant’s Br. at 5. However, the state dismissed
all of its charges. Id.
UNITED STATES v. BETHEL 3
§ 922(g)(1). On March 21, 2001, Bethel filed a motion to suppress or
exclude evidence, arguing that the gun should be suppressed because
the weapon was seized pursuant to an unlawful arrest. After conduct-
ing a hearing on the motion, the district court held that the arrest was
lawful under MD. CODE ANN., [Transp.] § 26-202(a)(2)(i) (2000),
and denied the motion to suppress the gun. The district court
explained, "[T]he Maryland statute is clear. It permits an arrest for a
non-incarcerable offense, specifically here a traffic offense, if the per-
son does not furnish satisfactory evidence of identity. There’s no
exception . . . unless the officer knows who the person is." S.A. 60.
On April 17, 2001, Bethel filed a motion for reconsideration, which
the district court denied.3 On May 25, 2001, Bethel was rearraigned
and entered a guilty plea pursuant to a plea agreement. In the agree-
ment, Bethel reserved the right to appeal the district court’s denial of
his motion to suppress or exclude evidence. However, both Bethel
and the government agreed to "expressly waive all rights . . . to appeal
whatever sentence is imposed including any issues that relate to the
establishment of the guideline range, reserving only the right to
appeal from an upward or downward departure from the guideline
range that is established at sentencing." S.A. 81.
At sentencing, Bethel asked the court to decrease his offense level
by one level for entering a plea of guilty pursuant to U.S.S.G.
§ 3E1.1(b)(2). The court denied this motion because Bethel failed to
timely notify the government of his intention to plead guilty, causing
the government to prepare for trial. The court then established the
Offense Level at 18 and the Criminal History category at 5, which
resulted in a guideline range of 51 to 63 months imprisonment. The
district court then sentenced Bethel to 57 months imprisonment. This
appeal followed.
II.
We review legal conclusions in a denial of a motion to suppress de
novo and factual determinations for clear error only. United States v.
Carter, 300 F.3d 415, 421 (4th Cir. 2002). We review a waiver of a
3
Judge J. Frederick Motz heard Bethel’s motions, and Judge Herbert
N. Maletz presided over the sentencing.
4 UNITED STATES v. BETHEL
statutory right to appeal de novo. United States v. Brown, 232 F.3d
399, 402-03 (4th Cir. 2000); United States v. Wiggins, 905 F.2d 51,
53 (4th Cir. 1990).
III.
Bethel asserts that 1) the officers did not have probable cause to
arrest him; and 2) the district court erred in denying his request for
a one level downward departure at sentencing.
A.
Under Maryland law, "[a] police officer may arrest without a war-
rant a person for a violation of the Maryland Vehicle Law . . . if the
person has committed or is committing the violation within the view
or presence of the officer, and . . . the person does not furnish satisfac-
tory evidence of identity." MD. CODE ANN., [Transp.] § 26-
202(a)(2)(i). It is undisputed that 1) Officer Parker observed Bethel
operating his vehicle in violation of MD. CODE ANN., [Transp.]
§ 21-1004 (2000), which states that a vehicle’s right wheels must be
within 12 inches from the [right] curb when stopped or parked on a
one way street; and 2) that Officer Parker asked Bethel for identifica-
tion and Bethel provided no documentation.
Bethel contends that by giving his name and address to the officers,
along with the officers’ recollection of the prior week’s traffic stop,
he provided satisfactory evidence of his identity. Bethel, to no avail,
attempts to analogize his case to State v. Benbow, 587 A.2d 1110(Md. 1991). In Benbow, the Court of Appeals of Maryland held that
where the defendant violated the traffic code in the officer’s presence
and gave the officer his name and date of birth without providing a
driver’s license, the police had no authority to arrest him under § 26-
202.
This case, however, is distinguishable from Benbow because Ben-
bow’s identity was never in question. Id. at 1115. In Benbow, the
trooper accepted the defendant’s statements of his identity as satisfac-
tory evidence of his identity after entering the name and date of birth
the defendant gave him into a Maryland and Virginia police database.
UNITED STATES v. BETHEL 5
The database confirmed Benbow’s identity. In this case, the officers
did not enter Bethel’s name into any database and therefore did not
confirm his identity.
Bethel further asserts that the officers knew him because they had
arrested him 18 months prior to this offense and stopped him one
week prior to this offense. The record, however, does not establish
that the officers knew his identity, only that they recognized him.
Officer Parker testified, "I recognized him as the individual that
approximately a week prior to this incident, I had pulled over." S.A.
18 (emphasis added).4 Therefore, the record does not reflect that the
officers were familiar enough with Bethel to know his identity.
Because Bethel could neither provide any documentation of his
identity, nor prove that his identity was satisfactory to the police offi-
cers, the officers had the authority to arrest him.
B.
Bethel next contends that the sentencing judge’s refusal to depart
downward in sentencing was clearly erroneous. However, Bethel
waived his right to appeal issues regarding the establishment of the
sentencing guideline in his plea agreement, which is what he now
contests. He does not assert that his waiver was unknowing or invol-
untary. See United States v. Brown, 232 F.3d 399, 403 (4th Cir.
2000). Therefore, his waiver was valid, and he cannot appeal this
issue.
IV.
Accordingly, we affirm the judgment of the district court.
AFFIRMED
4
Bethel did not have any identification in the prior incident.