United States v. Page ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4451
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MANUEL L. PAGE,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CR-04-155)
Submitted: February 3, 2006 Decided: March 6, 2006
Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sante E. Boninsegna, Jr., BONINSEGNA LAW OFFICE, Pineville, West
Virginia, for Appellant. Charles T. Miller, Acting United States
Attorney, Monica K. Schwartz, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Emmanuel L. Page, a/k/a “Manuel Page,” was convicted by
a jury of one count of possession of a firearm by a felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000). Page was
sentenced to imprisonment for eighty-four months. We find no error
and affirm Page’s conviction and sentence.
Page first contends the district court erred when it
denied his motion to suppress evidence obtained during his
encounter with law enforcement officers. Page asserts there was no
basis for the officers to believe that he was a danger to anyone or
that he had committed a crime. Therefore, Page argues the seizure
was unreasonable and all evidence obtained pursuant thereto should
have been suppressed.
We review the factual findings underlying the denial of
a motion to suppress for clear error and the legal conclusions de
novo. United States v. Johnson, 400 F.3d 187, 193 (4th Cir.),
cert. denied, 126 S. Ct. 134 (2005). The evidence is construed in
the light most favorable to the prevailing party below. United
States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
“[T]he police can stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion
supported by articulable facts that criminal activity ‘may be
afoot,’ even if the officer lacks probable cause.” United
States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio, 392
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U.S. 1, 30 (1968)). In assessing the validity of a Terry stop, we
consider the totality of the circumstances, “giving due weight to
common sense judgments reached by officers in light of their
experience and training.” United States v. Perkins, 363 F.3d 317,
321 (4th Cir. 2004), cert. denied, 543 U.S. 1056 (2005).
Officer McDaniel testified he responded to a call that
shots had been fired in the vicinity of the Best One Tire parking
lot. When he arrived at the location, McDaniel observed a “very
irate” Page following several paces behind Doreen Newsome.
McDaniel was familiar with both Newsome and Page as he had
previously responded to domestic incidents at Newsome’s residence.
In view of these circumstances, we conclude the district court did
not clearly err in determining that the seizure was reasonable or
that the motion to suppress should therefore be denied.
Page next contends the evidence was insufficient to
support his conviction for violating 18 U.S.C. § 922(g)(1) (2000).
In reviewing a sufficiency challenge, “[t]he verdict of a jury must
be sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.” Glasser v. United
States, 315 U.S. 60, 80 (1942). “[S]ubstantial evidence is
evidence that a reasonable finder of fact could accept as adequate
and sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt.” United States v. Burgos, 94 F.3d 849,
862 (4th Cir. 1996) (en banc).
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In evaluating the sufficiency of the evidence, we do not
“weigh the evidence or review the credibility of the witnesses.”
United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Where
the evidence supports differing reasonable interpretations, the
jury decides which interpretation to believe. Id. (quotations
omitted). Furthermore, “[t]he Supreme Court has admonished that we
not examine evidence in a piecemeal fashion, but consider it in
cumulative context.” Burgos, 94 F.3d at 863 (citations omitted).
“The focus of appellate review, therefore, . . . is on the complete
picture, viewed in context and in the light most favorable to the
Government, that all of the evidence portrayed.” Id.To prove a violation of 18 U.S.C. § 922(g)(1), the
Government must establish that “(1) the defendant previously had
been convicted of a crime punishable by a term of imprisonment
exceeding one year; (2) the defendant knowingly possessed . . . the
firearm; and (3) the possession was in or affecting commerce,
because the firearm had travelled in interstate or foreign commerce
at some point during its existence.” United States v. Langley, 62
F.3d 602, 606 (4th Cir. 1995) (en banc). We have reviewed the
evidence in the light most favorable to the government and conclude
that substantial evidence supports the conviction. Though Page
contends that the district court’s admission of the certified
penitentiary packet under Fed. R. Evid. 803(6) was improper in
light of Crawford v. Washington, 541 U.S. 36 (2004), we conclude
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Crawford is not applicable as the challenged evidence is by its
nature nontestimonial. See id. at 56, 68.
Finally, Page contends the sentencing court erred in its
application of U.S. Sentencing Guidelines Manual § 3C1.2 (2004).
When reviewing the district court’s application of the Sentencing
Guidelines, this court accepts the findings of fact of the district
court unless they are clearly erroneous and gives due deference to
the district court’s application of the guidelines to the facts.
United States v. Cutler, 36 F.3d 406, 407 (4th Cir. 1994). Section
3C1.2 of the Sentencing Guidelines provides: “If 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, increase by 2 levels.” (Emphasis in
original). The term “reckless” is defined as “a situation in which
the defendant was aware of the risk created by his conduct and the
risk was of such a nature and degree that to disregard that risk
constituted a gross deviation from the standard of care that a
reasonable person would exercise in such a situation.” USSG
§ 2A1.4, comment. (n.1); see also § 3C1.2 comment. (n.2). Because
Page fled from police officers while holding a loaded firearm, we
conclude the district court did not clearly err in its application
of § 3C1.2.
Additionally, Page argues the sentencing “process”
violated United States v. Booker, 543 U.S. 220 (2005). However, in
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determining a sentence post-Booker, sentencing courts are still
required to calculate and consider the guideline range prescribed
thereby as well as the factors set forth in 18 U.S.C. § 3553(a)
(2000). United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
2005). Page does not argue that his sentence is unreasonable, but
rather that the “process” violated Booker. We conclude the
district court fully complied with our guidance in Hughes and find
no error.
Accordingly, we affirm Page’s conviction and sentence.
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
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