United States v. Preston Buie , 441 F. App'x 173 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4236
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PRESTON LEVONNE BUIE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00347-WO-1)
Submitted: July 13, 2011 Decided: July 27, 2011
Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. McClellan, IVEY, MCCLELLAN, GATTON & TALCOTT, LLP,
Greensboro, North Carolina, for Appellant. John W. Stone, Jr.,
Acting United States Attorney, Greensboro, North Carolina,
Graham T. Green, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Winston-Salem, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Preston Levonne Buie (“Buie”) appeals his conviction
and sentence for possession with intent to sell and deliver
cocaine under 21 U.S.C. §§ 841(a)(1) and (b)(1)(c). Buie
challenges the district court’s denial of his motion to
suppress, arguing that the officer who stopped him lacked the
requisite reasonable suspicion. Buie also challenges the
district court’s application of three two-level sentencing
enhancements for specific offense characteristics (firearms),
obstruction of justice, and reckless endangerment during flight,
under United States Sentencing Guidelines §§ 2D1(b)(1), 3C1.1,
and 3C1.2. For the reasons that follow, we affirm the district
court’s denial of Buie’s motion to suppress and its application
of the sentencing enhancements.
I.
The Winston Salem Police Department (“Police
Department”) learned of Buie during a criminal investigation of
Cedric Denard Ingram (“Ingram”), Buie’s passenger during the
incident leading to Buie’s arrest. In January 2008, the Police
Department initiated the investigation in response to receiving
information that Ingram was distributing narcotics in Winston-
Salem, North Carolina. Detective Cecilia Singletary
(“Singletary”) of the Police Department’s Narcotics Division led
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several officers and criminal informant Salahuddin Hall (“Hall”)
in the surveillance of Ingram. Hall placed Buie at Ingram’s
residence during the manufacture and distribution of cocaine and
in the car as Ingram’s driver during drug transactions. Hall
also noted that Ingram was frequently armed at home and during
drug transactions. A background check further revealed that
Ingram had previous charges for trafficking cocaine and a
history of fleeing when stopped by police personnel.
On May 5, 2008, the Police Department planned to have
Hall make a controlled cocaine purchase from Ingram. In
preparation, Singletary briefed law enforcement, including
Highway Patrolman James Pickard (“Pickard”), who would later
apprehend Buie. Singletary informed them of Ingram’s
outstanding warrants for drug possession and fleeing from the
police. She indicated that the drug purchase would involve an
informant, that Ingram might be armed, and that he would most
likely be driven by an older gentleman. Ultimately Hall was
unable to make contact with Ingram so no purchase occurred that
day.
On May 14, 2008, Singletary used Hall to arrange
another controlled cocaine purchase and again briefed both the
Police Department and Highway Patrol on the operation. She
informed them of the sale’s location and that Ingram would again
be driven by an older man in a gold Jeep.
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That afternoon, Singletary and other members of the
Police Department followed Hall to the meeting location. Hall
met with Ingram and the older man, who later identified himself
as Buie, in the gold Jeep and arranged for them to sell cocaine
to a purchaser in Boone, North Carolina. Hall then returned to
his own car to radio Singletary, informing her that Ingram was
armed and had drugs in the vehicle, and that he, Ingram, and
Buie planned to drive to Boone to distribute the drugs.
Singletary radioed this information to both Police and Highway
Patrol, including Pickard. Other officers informed Pickard, who
had positioned his patrol car near Highway 451, that the Jeep,
driven by Buie, was speeding toward the highway.
Pickard followed the vehicle onto the highway where he
estimated Buie was driving seventy miles an hour, five miles per
hour over the speed limit. Pickard intended to stop the vehicle
based on the information from Singletary. However, in
compliance with Highway Patrol protocol, which recommends that a
speeding violation be verified even if there is a preexisting
reason for a stop, Pickard used a monitoring device to determine
that the vehicle was in fact exceeding the speed limit. Pickard
turned on his blue lights and siren to signal Buie to pull over.
On the shoulder of the road, Pickard exited his patrol
car and approached Buie’s vehicle. Just before he reached it,
however, Buie drove away. Pickard returned to his car and
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followed. Other officers joined the pursuit and later testified
that at times Buie drove in excess of one hundred and ten miles
per hour. Pickard observed Ingram holding a bag out of the
passenger window and allowing the white powder it contained to
fall along the highway. Samples of the substance were collected
by the police shortly thereafter.
Buie exited the highway and continued down residential
streets before stopping in the parking lot of an elementary
school. Buie exited the vehicle from the driver-side door,
after which two firearms were thrown from the same door. Ingram
then exited from the passenger-side door. Both men were quickly
apprehended. The white powder collected from the highway and
elementary school parking lot was later tested and determined to
be a form of cocaine.
On September 29, 2008, a grand jury indicted Buie on
one count of possession with intent to distribute approximately
260 grams of a mixture containing detectable amounts of cocaine
hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(c), one count of possession of a firearm in furtherance
of a drug trafficking scheme, in violation of 18 U.S.C. § 924(c)(1)(A)(I), and one count of felon in possession of a firearm,
in violation of U.S.C. § 922(g)(1).
On February 13, 2009, Buie filed a motion to suppress
evidence obtained during and after the initial stop of his
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vehicle, arguing the stop was not supported by reasonable
suspicion. Buie testified that upon entering the highway he
placed his car in cruise control at sixty-five miles an hour,
and therefore never exceeded the speed limit. Buie also
testified that he was unaware Ingram threw anything out of the
vehicle, and that he did not know Ingram well and had no
knowledge that the two firearms and cocaine were in the vehicle.
Buie explained that he ran from the police because of the
outstanding warrants for his arrest and because he was carrying
a crack pipe. The district court denied the motion on the
ground that Pickard had reasonable suspicion to believe Buie was
speeding, which alone was sufficient, and that he also “had
probable cause to believe that the defendant’s vehicle contained
contraband based upon the information conveyed to Trooper
Pickard by Detective Singletary and the police.” J.A. 139-40.
A jury subsequently found Buie guilty of possession
with intent to distribute. At sentencing, the district court
added three two-level enhancements to Buie’s sentence due to
specific offense characteristics (firearms) under U.S.S.G.
§ 2D1.1(b)(1), obstruction of justice under U.S.S.G § 3C1.1, and
reckless endangerment during flight under U.S.S.G. § 3C1.2, and
therefore increased his sentence to a total of 110 months. This
appeal followed.
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II.
On appeal, Buie challenges the denial of his motion to
suppress and the court’s application of each of the three two-
level sentencing enhancements. We consider each argument in
turn.
A.
Buie first challenges the district court’s denial of
his motion to suppress. When reviewing a district court’s
denial of a motion to suppress, “we review factual findings for
clear error and legal determinations de novo,” and view “the
evidence in the light most favorable to the Government.” United
States v. Green, 599 F.3d 360, 375 (4th Cir. 2010).
1.
Buie first argues that the district court erred by
concluding that Pickard’s stop was warranted. This argument is
unavailing. The stop was supported by reasonable suspicion once
Pickard witnessed Buie speeding on the highway. 1
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Although the district court found both probable cause and
reasonable suspicion, under the circumstances, the presence of
either justifies a vehicular stop. See Carroll v. United
States, 267 U.S. 132, 149 (1975); United States v. Griffin, 589
F.3d 148, 157 (4th Cir. 2009). Because the district court’s
findings support the conclusion that Pickard met the standard of
reasonable suspicion, there is no need to address the question
(Continued)
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To support a finding of 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, 335 (4th Cir. 2008)
(quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). Observing a
traffic violation satisfies this standard and allows a police
officer to proceed with a stop. Id. at 338. Here, Pickard
testified that he not only estimated Buie’s speed to be five
miles over the speed limit, but also verified it using an
official device. The district court’s decision to credit this
testimony over Buie’s is not clearly erroneous, and such a
speeding infraction supplies the requisite reasonable suspicion
to justify Pickard’s stop of Buie’s vehicle.
Based on our review of the facts as found by the
district court, we conclude that Pickard’s stop of Buie was
of probable cause. In any event, we find that the probable
cause standard is also met. An officer may stop a vehicle for
probable cause if he has the reasonable belief that “an
automobile or other vehicle contains that which by law is
subject to seizure and destruction.” Carroll, 267 U.S. at 149.
Pickard’s knowledge that Buie and Ingram were carrying
contraband and weapons justified his vehicular stop under this
standard. Buie’s contentions that this knowledge was
speculative and stale are unfounded. The information came from
a reliable informant and was radioed to Pickard moments before
the stop occurred.
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amply supported by reasonable suspicion and affirm the district
court’s denial of Buie’s motion to suppress.
B.
Buie next argues that the district court improperly
applied three two-level enhancements for specific offense
characteristics (firearms) pursuant to U.S.S.G. § 2D1.1(b)(1),
obstruction of justice pursuant to U.S.S.G. § 3C1.1, and
reckless endangerment during flight pursuant to U.S.S.G.
§ 3C1.2. We review the district court’s factual findings for
clear error and legal interpretations of the guidelines de novo.
United States v. Green, 599 F.3d 360, 375 (4th Cir. 2010).
1.
Buie argues that the enhancement for possession of a
firearm was improperly applied because he did not know firearms
were in the vehicle and the jury found him not guilty of gun
possession. This argument lacks merit.
Section 2D1.1(b)(1) of the U.S. Sentencing Guidelines
provides for a two-level enhancement to a defendant’s base
offense level “[i]f a dangerous weapon (including a firearm) was
possessed.” U.S.S.G. § 2D1.1(b)(1). Unless it is “clearly
improbable that the weapon was connected to the offense,”
possession only requires that the weapon be present during the
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relevant illegal activity. Id. at comment (n.3). Here, the
district court supportably found by a preponderance of the
evidence that two guns were present in the car Buie drove during
Ingram and Buie’s drug transaction. This fact alone is enough
to support application of the enhancement.
2.
Second, Buie argues that the district court erred in
applying an enhancement for obstruction of justice under
U.S.S.G. § 3C1.1. The district court applied this enhancement
because it found that Buie perjured himself through his
statements that he had no knowledge of the presence of weapons
or cocaine within the vehicle. Buie maintains that his
testimony was true.
Perjury occurs when a witness, “testifying under oath
or affirmation . . . gives false testimony concerning a material
matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty
memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993).
Because the district court’s finding of perjury is ultimately
based on a credibility determination that is not subject to
appellate review, United States v. Saunders, 886 F.2d 56, 60
(4th Cir. 1989), we find the district court did not err in its
application of U.S.S.G. § 3C1.1.
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3.
Buie finally argues that the district court erred in
its application of an enhancement for reckless endangerment
during flight pursuant to U.S.S.G. § 3C1.2. This enhancement is
appropriate “[i]f the defendant recklessly created a substantial
risk of death or serious bodily injury to another person in the
course of fleeing from a law enforcement officer.” U.S.S.G.
§ 3C1.2. Buie contends that since no accident occurred and no
person was harmed during the chase, his flight from police was
not reckless. However, the plain language of the guideline
provides for application of the adjustment when the defendant is
resisting arrest and creates a substantial risk of serious
bodily injury, even if no injury occurs. See United States v.
Carter, 601 F.3d 252, 255 (4th Cir. 2010).
Buie fled from police at speeds upwards of one hundred
miles per hour, during which he weaved between cars on the
highway. He continued his flight through residential streets
and to an elementary school parking lot. We agree with our
sister circuits that engaging in a high speed chase on the
highway and through residential streets is enough to create a
substantial risk of serious bodily injury. See, e.g., United
States v. Jimenez, 323 F.3d 320, 324 (5th Cir. 2003) (“[L]eading
police officers on a high speed chase . . . by itself created a
substantial risk of serious injury, which warranted an
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adjustment for reckless endangerment during flight.” (internal
quotations omitted)). 2 Thus, there was no error in the district
court’s application of this enhancement.
C.
For the foregoing reasons, the judgment of the
district court is affirmed. 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
2
See also United States v. Luna, 21 F.3d 874 (9th Cir.
1994)(finding that running three stop signs in a residential
area and leaving an unattended vehicle rolling constituted a
substantial risk of serious bodily injury or death to other
motorists or pedestrians); United States v. Chandler, 12 F.3d
1427, 1433 (7th Cir. 1994) (holding that travelling between 35
and 50 mph through a residential area, and swerving, constituted
reckless endangerment); United States v. Sykes, 4 F.3d 697, 700
(8th Cir. 1993) (holding that failure to pull over and thereby
compelling police to force defendant off the road constituted
reckless endangerment).
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