United States v. Day ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4800
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID ALLEN DAY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. James C. Turk, Senior
District Judge. (CR-02-30064-JCT)
Submitted: March 31, 2006 Decided: May 9, 2006
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard A. Davis, Charlottesville, Virginia, for Appellant. John
L. Brownlee, United States Attorney; Craig J. Jacobsen, Assistant
United States Attorney; Linda Leigh Rhoads, Third-Year Practice Law
Student, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Allen Day was convicted after a jury trial of
conspiracy to possess with intent to distribute methamphetamine, in
violation of 21 U.S.C. § 846 (2000), distribution of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (2000),
possession of a firearm after being convicted of a misdemeanor
crime of domestic violence, in violation of 18 U.S.C. § 922(g)
(2000), and possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C.A. § 924(c) (West 2000
& Supp. 2005). He received a 481-month sentence.
Day’s conviction rested in part upon evidence seized
during a traffic stop conducted in Alabama. Day moved to exclude
the evidence of drugs, currency, and a firearm seized during the
stop. The district court denied the motion after a hearing on the
matter on the day trial began. This court reviews the district
court’s factual findings underlying a motion to suppress for clear
error and its legal determinations de novo. Ornelas v. United
States, 517 U.S. 690, 699 (1996); United States v. Rusher, 966 F.2d
868, 873 (4th Cir. 1992). When a motion to suppress has been
denied, the court construes the evidence in the light most
favorable to the government. United States v. Seidman, 156 F.3d
542, 547 (4th Cir. 1998).
Day first argues that the initial traffic stop of the van
in which he was traveling and owned was unlawful because the
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driver’s operation of the van was not in violation of the law. The
driver received a warning citation for violating Alabama Code
section 32-5A-88, for failure to remain in the marked lane. The
evidence demonstrates that the stop was valid. See United States
v. Scheetz, 293 F.3d 175, 183-84 (4th Cir. 2002) (an automobile
stop is reasonable where the police have probable cause to believe
that a traffic violation has occurred).
Day next argues that the additional questioning of him
and the driver, Greg Shifflett, after the traffic stop was complete
was impermissible. The district court made the factual finding
that their consent was valid and voluntary. Once a traffic stop
has concluded, a continued conversation between an officer and
suspect can be a consensual encounter if a reasonable person would
have felt free to leave. See, e.g., United States v. Weaver, 282
F.3d 302, 309 (4th Cir. 2002).
This court has found consent to be voluntary on facts
similar to those in the case at hand. See United States v.
Lattimore, 87 F.3d 647, 649-50 (4th Cir. 1996). Further, this
court gives due regard to the district court’s opportunity to judge
the credibility of witnesses and does not review credibility
determinations. See United States v. Lowe, 65 F.3d 1137, 1142 (4th
Cir. 1995). We therefore conclude that the district court did not
err in finding that Day and Shifflett consented to the search and
in denying the motion to suppress.
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Day argues that venue was not proper in Virginia because
the charges related to the Alabama stop did not occur in Virginia.
Day filed several pre-trial motions in the district court and did
not raise the issue of improper venue. He also moved for judgment
of acquittal under Fed. R. Crim. P. 29(c) and did not raise venue.
He challenges venue on the distribution of methamphetamine and
possession of a firearm in furtherance of a drug trafficking crime
charges for the first time on appeal.
Day has waived this claim by failing to object in the
district court. See United States v. Stewart, 256 F.3d 231, 238
(4th Cir. 2001) (“If an objection to venue is not raised in the
district court, the issue is waived on appeal.”). Moreover, an
offense “begun in one district and completed in another, . . . may
be inquired of and prosecuted in any district in which such offense
was begun, continued, or completed.” 18 U.S.C. § 3237(a) (2000).
Because Day’s van trip originated in the Western District of
Virginia, venue was proper in that district.
Day asserts the evidence is insufficient to sustain his
conviction on count six: possessing a firearm in furtherance of a
drug trafficking crime on February 7, 2002--the date of the Alabama
stop--in violation of 18 U.S.C.A. § 924(c)(1)(C)(i), because the
Government failed to establish that possession of the firearm
furthered the drug trafficking crime. To determine whether there
was sufficient evidence to support a conviction, this court
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considers whether, taking the evidence in the light most favorable
to the Government, any reasonable trier of fact could have found
the defendant guilty beyond a reasonable doubt. Glasser v. United
States, 315 U.S. 60, 80 (1942). After reviewing the evidence, we
conclude that the evidence was sufficient to support the
conviction. See United States v. Lomax, 293 F.3d 701, 705 (4th
Cir. 2002).
Finally, Day contends that the district court erred by
imposing a 121-month sentence, which was at the lowest end of the
Sentencing Guidelines range, on a count that carried a 120-month
minimum sentence, when the court had expressed dissatisfaction with
the severity of the sentence. Day argues that the aggregate
sentence imposed upon him was “unreasonable.” However, because he
was sentenced prior to the Sentencing Guidelines becoming advisory,
as outlined in United States v. Booker, 543 U.S. 220 (2005), his
sentence is not subject to a reasonableness review. Further, Day
does not cite Booker or its progeny to raise an argument that the
mandatory application of the Guidelines resulted in prejudicial
error. Thus, there is no basis to find district court error.
Accordingly, we affirm Day’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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