United States v. Wright ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5084
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VICTOR WARDELL WRIGHT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(8:06-cr-00038-DKC)
Submitted: January 28, 2008 Decided: February 19, 2008
Before NIEMEYER and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Brian W. Stolarz, KIRKPATRICK & LOCKHART PRESTON GATES ELLIS,
L.L.P., Washington, D.C., for Appellant. Rod J. Rosenstein, United
States Attorney, Barbara S. Skalla, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Victor Wright was convicted for
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2000), and sentenced to 235 months in prison.
Wright appeals, contending that: (1) the district court erred in
denying the motion to suppress the firearm seized from the car; (2)
the district court erred in denying the motion to reopen the case
to hear additional testimony; (3) the evidence was insufficient to
convict him; and (4) the district court erred by sentencing him to
235 months in prison. Finding no error, we affirm.
Wright first argues that the district court erred by
denying his motion to suppress the firearm. Wright’s vehicle was
disabled in a travel lane of the Capital Beltway in Maryland, and
an officer stopping to assist Wright spotted an illegal firearm
between the passenger and driver’s seats. He argues that the
officer, Sergeant Rivers, had neither the requisite reasonable
suspicion nor probable cause to justify the seizure of Wright,
thus, the firearm was a product of an illegal search. This court
reviews 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). We consider the evidence in the light most
favorable to the party who prevailed in the district court. United
States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
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Contrary to Wright’s assertion, Sergeant Rivers did not
need to have reasonable suspicion or probable cause when he stopped
on the roadway behind Wright. Wright’s vehicle was broken down in
a travel lane of a busy highway, impeding traffic and causing
delays, and Sergeant Rivers stopped to assist Wright. Sergeant
Rivers’ stop to assist the disabled vehicle does not implicate the
Fourth Amendment; thus, Wright was not seized. See Florida v.
Bostick, 501 U.S. 429, 434 (1991). As Rivers was walking past
Wright’s car to speak with Wright, who was standing near the front
of the car, Rivers looked through the open window and saw a firearm
in plain view. Under the plain view doctrine, Sergeant Rivers was
authorized to make a warrantless seizure of the handgun from the
vehicle because he possessed probable cause that the vehicle
contained evidence of a crime. See Texas v. Brown, 460 U.S. 730,
741 n.6 (1983); United States v. Jackson, 131 F.3d 1105, 1109 (4th
Cir. 1997).1
To the extent Wright argues that Rivers’ testimony should
be discredited because photographs taken of the front seat and the
weapon are inaccurate as items had been moved, the court heard
testimony about this contention, and Rivers was thoroughly
questioned about seeing the weapon. The district court, after
hearing the evidence at the suppression hearing, determined that
1
Under Md. Code Ann., Crim. Law, § 4-203 (2006), it is illegal
to transport a handgun, subject to certain exceptions not
applicable here.
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Rivers’ testimony was credible. Credibility determinations are
within the province of the trier of fact and are not reviewable on
appeal. See United States v. Saunders, 886 F.2d 56, 60 (4th Cir.
1989). Accordingly, we conclude the seizure of the handgun was
lawful and the court properly denied the suppression motion.
Wright next argues that the district court erred when it
refused to reopen the defense case to permit a witness to testify.
During trial, an unsubpoenaed witness for the defense, Bobby
Thompson, was scheduled to testify but failed to appear at the
courthouse at the appointed time. The district court instructed
defense counsel to tell Thompson to return to the courthouse, but
Thompson did not arrive before the close of evidence. Counsel
moved to reopen the defense case to allow Thompson to testify the
following morning, but the court denied the motion, finding that
Thompson was not a critical witness.
The district court’s denial of a motion to reopen a case
is reviewed for abuse of discretion. United States v. Abbas, 74
F.3d 506, 510-11 (4th Cir. 1996). In making its determination, the
court must consider factors such as the timeliness of the motion,
character of the testimony, and the effect of granting the motion.
Id. Specifically, the moving party must provide a reasonable
explanation for failing to present the evidence in the case-in-
chief, the evidence should be relevant, admissible, or helpful to
the jury, and the reopening of the case should not imbue the
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evidence with distorted importance, prejudice the opposing party’s
case, or preclude the adversary from meeting the evidence offered.
Id.Here, defense counsel stated that Thompson was not in the
courthouse because a detective involved in the case asked to meet
Thompson at his home, and he left to comply. The court instructed
counsel to tell Thompson to return to the court, but Thompson did
not comply in a timely fashion. Also, the district court
determined that the proffered testimony would not be helpful to the
jury in assessing whether the gun was in the car when Nena Smith,
the car’s owner, bought it. There was no suggestion in the case-
in-chief that Thompson had any information about the firearm.
Finally, reopening the case to permit Thompson to testify would
have placed a distorted weight on Thompson’s testimony. The court
had already instructed the jury that the evidence was closed and
the case would be moving on to a different phase. We conclude the
district court did not abuse its discretion when it denied the
defense motion to reopen the case.
Wright next asserts that there was insufficient evidence
to convict him of being a felon in possession of a firearm. A
jury’s verdict 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). This court has
“defined ‘substantial evidence’ as ‘evidence that a reasonable
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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. Smith, 451 F.3d 209, 216 (4th Cir.) (quoting
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc)), cert. denied, 127 S. Ct. 197 (2006). This court “must
consider circumstantial as well as direct evidence, and allow the
government the benefit of all reasonable inferences from the facts
proven to those sought to be established.” United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). In evaluating the
sufficiency of the evidence, this court does not review the
credibility of the witnesses and assumes that the jury resolved all
contradictions in the testimony in favor of the Government. United
States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998). This court
“can reverse a conviction on insufficiency grounds only when the
prosecution’s failure is clear.” United States v. Moye, 454 F.3d
390, 394 (4th Cir.) (internal quotation marks and citation
omitted), cert. denied, 127 S. Ct. 452 (2006).
To prove that Wright was a felon in possession of a
firearm, under 18 U.S.C. § 922(g)(1), the Government needed to
demonstrate that: (1) Wright previously had been convicted of a
crime punishable by a term of imprisonment exceeding one year; (2)
Wright knowingly possessed, transported, or received the firearm;
and (3) the possession was in or affecting commerce, because the
firearm had traveled in interstate or foreign commerce. See United
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States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc).
Wright stipulated that he had previously been convicted of a crime
punishable by imprisonment for a term exceeding one year. ATF
Agent Hermann testified as to the firearm’s movement in interstate
and foreign commerce. Finally, Sergeant Rivers stopped to assist
Wright’s disabled vehicle and saw the firearm in plain view as he
walked past the vehicle. Wright argues that Sergeant Rivers’
testimony was not credible, and the defense witnesses’ testimony
that the firearm had been in the car for weeks, and did not belong
to Wright, was credible. Again, this court will not review a
factfinder’s credibility assessments on appeal. See United
States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989) (citations
omitted). We conclude there was sufficient evidence to support the
jury’s verdict.
Finally, Wright contends that his sentence was unlawful
because it was based upon erroneous findings of fact about his
criminal record and was improperly enhanced for obstruction of
justice and drug-related activity. The presentence report assigned
a base offense level of 24, with a two-level increase because the
handgun was stolen, see U.S. Sentencing Guidelines Manual (USSG)
§ 2K2.1(b)(4) (2005), and a two-level enhancement for obstruction
of justice for subornation of perjury. See USSG § 3C1.1. Because
Wright qualified as an armed career offender, his offense level was
raised to 33, his criminal history score was VI, and his Sentencing
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Guidelines range was 235 to 293 months in prison. Wright was
sentenced to 235 months--the bottom of the advisory guidelines
range.
The district court did not enhance Wright’s sentence
based upon obstruction of justice or other drug-related activity.
While the presentence report recommended applying the obstruction
of justice enhancement, the only enhancement applied at sentencing
that affected Wright’s ultimate sentence was the finding of armed
career criminal status, which automatically raised his offense
level to 33, rather than the lower calculated level. See § 4B1.4.
Wright’s argument that his sentence was improperly enhanced based
upon obstruction of justice and drug-related activity is meritless.
As to the finding that Wright was an armed career
criminal, the court relied on two distribution of cocaine charges
and one assault with intent to prevent lawful apprehension charge.
Wright did not object at sentencing to the use of these three
felonies to enhance his sentence.2 He now contends that the court
erred because it did not rely on “conclusive court documents when
determining the nature of a prior conviction,” and the court made
conclusory statements without referencing the precise convictions.
2
Wright contends in his reply brief that trial counsel was
ineffective for failing to raise objections at sentencing. Because
ineffective assistance claims are generally not cognizable on
direct appeal, United States v. King, 119 F.3d 290, 295 (4th Cir.
1997), and because new claims may not be raised in reply briefs,
Hunt v. Nuth, 57 F.3d 1327, 1338 (4th Cir. 1995), we decline to
consider this claim.
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Wright does not argue that the predicate offenses do not qualify.
The presentence report made it abundantly clear that Wright had
three felony convictions and outlined the dates and place of each
conviction. Wright’s argument that the court was required to
reiterate the specifics of each conviction at sentencing is
meritless.
We affirm Wright’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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