United States v. Green ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5196
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHAMONTE ARNELL GREEN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-05-84)
Submitted: March 22, 2007 Decided: March 28, 2007
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lisa S. Costner, Winston-Salem, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Robert A. J. Lang,
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Unpublished opinions are not binding precedent in this circuit.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:
A federal jury found Shamonte Arnell Green guilty of
being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e) (2000). The district court, after finding
that Green had used the firearm to commit two murders and other
crimes, sentenced Green to life imprisonment. Green raises several
challenges to his conviction and sentence. We affirm.
I.
Green first argues that the district court erred in denying
his motion to suppress the gun that he was convicted of possessing.
When examining the denial of a motion to suppress, we review the
district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Holmes, 376 F.3d 270, 273
(4th Cir. 2004).
After reviewing the record, we can only conclude that the
district court properly rejected the suppression motion. Police
officers observed Green waiting in the back of a restaurant parking
lot, speaking to the passenger of a white box van, while glancing
up and down the road, apparently looking for someone. After the
white van pulled away, the police saw another person drive into the
lot, leave his car, and hand Green a shoebox. Green took the
shoebox and then entered the driver’s side of another car parked in
the lot. The officers acted with reasonable suspicion in then
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approaching Green as he sat in the car. Upon doing so, the
officers saw a bag of marijuana on Green’s lap; this observation
provided them with probable cause to arrest Green. When, after his
arrest, the officers searched Green at the station house, the
search was lawful as incident to arrest, especially given that
Green had told the officers that he had a pistol on his person
immediately before the search.
II.
Green also contends that the district court erred in denying
his request to be jointly represented at sentencing by his federal
defender and his state defense attorneys. Because Green did not
object to the denial of this request before the district court, we
review for plain error. Even if the district court erred by
denying this motion (which we doubt), such error was certainly not
“plain.” Green cites no authority that would have required the
district court to grant his request.
III.
Green next challenges the district court’s application of the
cross reference in § 2K2.1(c) of the United States Sentencing
Guidelines Manual. Applying that provision, the court found that
Green used the designated firearm to commit two first-degree
murders and one felony assault with intent to kill, and increased
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his sentence accordingly. Green argues that application of the
cross-reference violated his Sixth Amendment rights and was
predicated on clearly erroneous factual findings.
Green’s Sixth Amendment argument fails. Because the
Guidelines are advisory after United States v. Booker, 543 U.S. 220(2005), the district court could increase Green’s Guidelines range
on the basis of facts not found by the jury without running afoul
of the Sixth Amendment. See United States v. Moreland, 437 F.3d
424 (4th Cir. 2006).
We review a sentencing court’s factual findings for clear
error. United States v. Tucker, 473 F.3d 556, 560 (4th Cir. 2007).
After reviewing the record, we conclude that the district court’s
factual findings were not clearly erroneous.
IV.
Lastly, Green argues that his Sixth Amendment rights were
violated when the district court sentenced him as an armed career
criminal even though his predicate offenses were neither charged in
the indictment nor found by the jury. We rejected this precise
argument in United States v. Cheek, 415 F.3d 349, 349 (4th Cir.
2005), and so deny Green’s claim.
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V.
For the reasons stated above, the judgment of the district
court is
AFFIRMED.
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