United States v. White , 61 F. App'x 832 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
HASHIM SHAHIM WHITE, a/k/a  No. 02-4748
Abdullah Hashim Mutee, a/k/a
Abdullah Hashim, a/k/a Hashim Al-
Quddus,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CR-02-48)
Submitted: February 25, 2003
Decided: March 24, 2003
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Frank W. Dunham, Jr., Federal Public Defender, Larry W. Shelton,
Supervisory Assistant Federal Public Defender, Norfolk, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, James Ashford
Metcalfe, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
2 UNITED STATES v. WHITE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Hashim Shahim White appeals his conviction and sentence on a
charge of being a felon in possession of a firearm and ammunition,
in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000).1 Over
White’s objection, the district court applied a two-point enhancement
to White’s offense level under U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(4) (2001), for "altered or obliterated serial number," and
sentenced White to 66 months’ imprisonment, a three-year term of
supervised release, and ordered White to pay the mandatory special
assessment of $100. White filed a timely notice of appeal in which he
claims: (1) the district court improperly enhanced his sentence under
USSG § 2K2.1(b)(4), for possession of a pistol with an obliterated
serial number when White had no knowledge that the serial number
was obliterated; (2) the vehicle stop violated his constitutional rights
because the police officers had no reasonable suspicion to conduct a
vehicle stop; and (3) the government was required to disclose the
identity of the informant who gave police preliminary information
concerning White. The last two issues are submitted by defense coun-
sel pursuant to Anders v. California, 386 U.S. 738 (1967). For the rea-
sons set forth below, we affirm White’s conviction and sentence.
White first claims the district court erred in enhancing his sentence
under USSG § 2K2.1(b)(4), which provides for a two-level increase
in the defendant’s offense level when any firearm possessed has an
obliterated serial number, because he was acquitted of the crime of
"knowing" possession of a gun with an obliterated serial number. This
court uses a sliding-scale standard of review for appeals involving
application of the Sentencing Guidelines. United States v. Daughtrey,
874 F.2d 213, 217 (4th Cir. 1989). Factual findings made by the dis-
1
White was acquitted of being in possession of a firearm with an oblit-
erated serial number, in violation of 18 U.S.C. § 922(k) (2000).
UNITED STATES v. WHITE 3
trict court in connection with a sentencing decision are reviewed for
clear error while legal interpretations of the Guidelines are reviewed
de novo. Id. This court’s review of this issue is de novo because it
involves the correct interpretation of § 2K2.1(b)(4), and the applica-
tion of the enhancement to the facts of this case.
A general verdict of not guilty is not a finding of fact or a rejection
of any fact, but only an acknowledgment that the government failed
to prove an essential element beyond a reasonable doubt. United
States v. Watts, 519 U.S. 148, 155 (1997) (citations omitted). Thus,
a verdict of acquittal does not prevent the sentencing court from con-
sidering conduct underlying the acquitted charge, so long as that con-
duct has been proved by a preponderance of the evidence.2 Id. at 157.
See also United States v. Murphy, 96 F.3d 846, 848-49 (6th Cir. 1996)
(holding lack of mens rea requirement in § 2K2.1(b)(4) does not vio-
late due process). Therefore, we find the district court was free to
find, by a preponderance of the evidence, that White possessed a fire-
arm with an obliterated serial number and to enhance his sentence
accordingly.
White next claims the police officers who stopped the vehicle in
which he was a back-seat passenger lacked a reasonable and articul-
able suspicion of past or present criminal activity and probable cause,
such that the stop violated his Fourth Amendment rights. This court
reviews de novo the district court’s determination of reasonable suspi-
cion and probable cause. Ornelas v. United States, 517 U.S. 690, 691
(1996); United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992).
An automobile stop constitutes a seizure within the meaning of the
Fourth Amendment, and is permissible if the officer has probable
cause to believe a traffic violation has occurred or has a reasonable
and articulable suspicion of past or present criminal activity. Whren
v. United States, 517 U.S. 806, 809-10 (1996); United States v. Hens-
ley, 469 U.S. 221, 226, 229 (1985); Terry v. Ohio, 392 U.S. 1, 20-22
(1968). An informant’s tip can provide the officers with the articul-
able suspicion to stop the vehicle. Hensley, 469 U.S. at 226. Police
2
White does not dispute the existence of proof by a preponderance of
the evidence relating to the acquitted charge on which the enhancement
was based.
4 UNITED STATES v. WHITE
officers can stop and briefly detain a person for investigative purposes
if the officer reasonably suspects that criminal activity may be afoot.
Illinois v. Wardlow, 528 U.S. 119, 123 (2000); see also Terry v. Ohio,
392 U.S. 1, 30 (1968). In evaluating police conduct in a Terry stop,
courts must consider the totality of the circumstances known to the
officer at the time of the stop. United States v. Sokolow, 490 U.S. 1,
8 (1989). Once reasonably suspicious, the police are entitled to con-
duct a frisk and search for weapons when conducting a Terry stop.
Hensley, 469 U.S. at 235. When the occupant of a vehicle is arrested,
the passenger compartment and any containers therein may be
searched without a warrant or further showing of probable cause. New
York v. Belton, 453 U.S. 454, 460-61 & n.4 (1981); United States v.
Milton, 52 F.3d 78, 80 (4th Cir. 1995). A passenger can challenge the
legality of the stop of a vehicle. Rusher, 966 F.2d at 874 n.4, 875.
Here, Officer Thompson was informed that there were outstanding
warrants for White in the State of New Jersey. He verified this infor-
mation through the National Crime Information Center and by check-
ing police reports. Officer Thompson, along with several other
officers from the Norfolk Police Department, conducted surveillance
on the residence where they were informed that White was located.
When the officers encountered White, he ran off. Officer Thompson
later recognized White as a back-seat passenger in a vehicle being
driven by his sister, the same vehicle the officers observed his sister
drive from the residence. During their attempt to stop the vehicle, the
officers saw what appeared to be cocaine being thrown from the car.
After the stop and arrest of White and the detention of the other occu-
pants, officers found a loaded pistol in the glove compartment.
We find without difficulty that the combination of circumstances
in this case justified an investigative stop. First, the officers responded
to information provided by a confidential informant that White was
wanted in New Jersey for weapons and "possible" drug charges, and
that he was staying at a particular location. Police then verified the
outstanding warrants, and further verified that the address at which
White was located was his mother’s residence. Officers had a descrip-
tive recognition, followed by positive identification of White when he
took off running, and then recognized White in the vehicle being
driven by his sister. Officer Thompson reasonably relied on his
knowledge of the existence of the outstanding warrants for White.
UNITED STATES v. WHITE 5
Once Officer Thompson observed White in the vehicle which he had
seen White’s sister drive from the same residence where the officers
had previously encountered White, he had the requisite reasonable
suspicion and probable cause to stop the vehicle and detain White in
order to investigate. Sokolow, 490 U.S. at 8; United States v. Critten-
don, 883 F.2d 326, 328 (4th Cir. 1989). The investigative stop in this
case was proper. White’s arrest, and the search which yielded the fire-
arm, likewise were proper.
White’s final claim is that his rights were violated because he was
not afforded an opportunity to confront the witness against him whom
Officer Thompson testified provided him with preliminary informa-
tion regarding White, including the facts that White had outstanding
warrants from New Jersey, and that he possessed a firearm. A legal
distinction exists regarding the privilege of nondisclosure between an
informant who is an active participant in an offense and a mere tipster
"who supplies a lead to law enforcement officers to be pursued in
their investigation of crime." McLawhorn v. North Carolina, 484 F.2d
1, 5 (4th Cir. 1973). The privilege of nondisclosure ordinarily is appli-
cable where the informant is a mere tipster, because the identity of the
informant is not essential in the preparation of a defense. Id.; United
States v. Price, 783 F.2d 1132, 1138 (4th Cir. 1986).
It is clear that the information received by Officer Thompson in
this case was a tip. In addition, there was no allegation or evidence
that the informant was an actual participant in the charges ultimately
brought against White, nor was there a request for or showing that the
name of this person was essential to White’s defense. The information
given by the informant was fully and independently verified by the
officers through independent sources. Accordingly, we find that the
public interest in protecting the identity of the informant in this case
clearly outweighed any benefit to White of knowing the informant’s
identity. Roviaro v. United States, 353 U.S. 53, 60-62 (1957).
We affirm White’s conviction and sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED