United States v. Kirlew , 291 F. App'x 536 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5053
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONELLE KIRLEW, a/k/a Badass,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (1:07-cr-00183-LMB-1)
Submitted: July 23, 2008 Decided: September 5, 2008
Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lana M. Manitta, RICH, GREENBERG, ROSENTHAL & COSTLE, LLP,
Alexandria, Virginia, for Appellant. Chuck Rosenberg, United
States Attorney, Patricia T. Giles, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donelle Kirlew appeals his convictions and 156-month
sentence after being found guilty of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000), and
possession of body armor by a convicted felon, in violation of 18
U.S.C. § 931 (2000). Kirlew claims the district court erred in
denying his motion to suppress evidence recovered from the car he
was driving prior to his arrest, asserting that police lacked
probable cause to search the locked trunk. Kirlew also contends
the district court violated his constitutional right to present a
defense by denying his request to call a witness to provide
exculpatory testimony. Finally, Kirlew claims his 156-month
sentence was unreasonable, as the district court erroneously
imposed an upward variance from the sentencing guidelines range
based on factors that were already taken into consideration.
Finding no error, we affirm.
In denying Kirlew’s motion to suppress, the district
court concluded that “a search incident to arrest in this case
would be justified, but even if that argument were not sufficient,
I think the abandonment theory . . . and inevitable discovery, I
think there are three powerful arguments . . . any one of which
would be sufficient.” Kirlew contends the search of his vehicle
was not incident to his arrest because the car was outside the area
of his immediate control at the time police placed him under
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arrest. Kirlew asserts that even if this exception applied, only
the passenger compartment could have been searched, as the police
lacked probable cause to open the trunk of the car. On appeal, we
review legal conclusions underlying the denial of a motion to
suppress de novo, and factual findings for clear error. United
States v. Moreland, 437 F.3d 424, 429 (4th Cir. 2006). The
evidence is construed in the light most favorable to the
Government, the prevailing party below. United States v. Seidman,
156 F.3d 542, 547 (4th Cir. 1998).
While Kirlew contends the police lacked probable cause to
search the trunk, he fails to address the preliminary issue of
whether he maintained any privacy interest in the car after jumping
out of the vehicle and leaving it in the middle of a public street.
The Fourth Amendment protects property for which an individual
maintains a “subjective expectation of privacy that society
recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33
(2001). A person who voluntarily abandons his property “loses any
reasonable expectation of privacy in the property and is
consequently precluded from seeking to suppress evidence seized
from the property.” United States v. Leshuk, 65 F.3d 1105, 1111
(4th Cir. 1995). In determining whether property has been
abandoned, we must consider “‘not whether all formal property
rights have been relinquished, but whether the complaining party
retains a reasonable expectation of privacy in the [property]
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alleged to be abandoned.’” United States v. Stevenson, 396 F.3d
538, 546 (4th Cir. 2005) (quoting United States v. Haynie, 637 F.2d
227, 237 (4th Cir. 1980)) (alteration in original).
After being pursued by police during a dangerous high-
speed chase, Kirlew jumped out of the still-moving vehicle and fled
on foot, as the car drifted down the road into oncoming traffic
before coming to a stop on the median. During the hearing on the
motion to suppress, Kirlew contended these actions did not qualify
as abandonment because he intended to flee from the police, not to
relinquish all rights to the vehicle. However, abandonment may be
found where a fleeing defendant “relinquishes an object to make his
flight easier.” United States v. Basinski, 226 F.3d 829, 837 (7th
Cir. 2000). Furthermore, the fact that Kirlew vacated his car in
an effort to evade capture by the police does not make his
abandonment of the vehicle involuntary. See United States v.
Flynn, 309 F.3d 736, 738 (10th Cir. 2002).
While Kirlew maintained he had a privacy interest in the
contents of the car,1 an individual’s expectation of privacy in his
automobile is less than in other property, particularly when the
vehicle is left in the street or another public area. See United
States v. Bellina, 665 F.2d 1335, 1340-41 (4th Cir. 1981). In this
1
While Kirlew was driving the car in question, he was not the
owner of the vehicle. See Stevenson, 396 F.3d at 546 (in making
abandonment determination, “it is still relevant to consider a
defendant’s property interest”).
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case, the vehicle was found resting on the median of the street,
over 100 yards from where Kirlew jumped out. When the detective
opened the unlocked driver’s side door, he noted the car was still
in drive and the engine was still running. Accordingly, we find
that Kirlew’s actions indicate an absence of any reasonable
expectation of privacy in the contents of the vehicle. See United
States v. Tate, 821 F.2d 1328, 1330 (8th Cir. 1987) (citing United
States v. Walton, 538 F.2d 1348, 1354 (8th Cir. 1976)); United
States v. Edwards, 441 F.2d 749, 751 (5th Cir. 1971). Because
Kirlew abandoned his vehicle, the district court did not err in
denying his motion to suppress.
Kirlew next contends the district court erred by
excluding Edward Orenge as a witness, thereby violating Kirlew’s
constitutional right to effective assistance of counsel and to
present a defense. According to Kirlew’s proffer, Orenge would
have testified that Melanie Fetters, Kirlew’s girlfriend, purchased
two weapons from him during the relevant time period. Kirlew
contends this testimony would have rebutted Kristian Coffey’s
statement that she saw Brandi Cockrell go into a gun store and,
using a receipt and identification belonging to Fetters,2 return
with a firearm that she gave to Kirlew. Kirlew claims this
evidence was material because it would cast doubt on whether Coffey
2
Fetters was charged with making false statements in
connection with her purchase of the firearm that she acquired for
Kirlew.
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saw Kirlew in possession of the specific firearm charged in the
indictment.
A district court’s decision to admit or exclude evidence
is reviewed for abuse of discretion. United States v. Iskander,
407 F.3d 232, 236 (4th Cir. 2005). The relevant inquiry is whether
the district court’s exercise of discretion was arbitrary or
irrational. Id. Pursuant to Fed. R. Crim. P. 52(a), evidentiary
rulings are subject to harmless error review. United States v.
Weaver, 282 F.3d 302, 313 (4th Cir. 2002).
Despite Kirlew’s claims, the district court correctly
held that Orenge’s testimony had little relevance to the case, as
the testimony failed to address whether Kirlew exercised dominion
or control over the 9 millimeter handgun charged in the indictment.
While Kirlew asserts that Coffey may have seen him in possession of
a different firearm than the one charged in the indictment, this
issue was adequately addressed during Coffey’s testimony, as Coffey
conceded she did not remember any specific features of the gun,
only that it was “small” and “black.” Because Coffey could not
state with any degree of certainty that Kirlew had possessed the
same firearm charged in the indictment, further testimony about the
possibility of a second firearm would have been of little
consequence. See Fed. R. Evid. 401 (defining “relevant evidence”);
United States v. Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003).
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Furthermore, Orenge’s testimony would have opened the
door to additional inquiries regarding other firearms purchased or
possessed by Fetters. However, the district court had previously
granted Kirlew’s request to exclude evidence regarding another
firearm that was recovered by police during a search of Fetters’
residence. By excluding Orenge’s testimony, the district court
maintained a consistent position in regard to evidence of firearms
that were not identified in the indictment. Had Kirlew been
allowed to “open the door” on this matter, the Government might
have been permitted to introduce otherwise inadmissible evidence in
order to explain or refute Orenge’s testimony. See United
States v. Higgs, 353 F.3d 281, 329-30 (4th Cir. 2003).
Accordingly, the district court properly exercised its discretion
by preventing the introduction of irrelevant and possibly
prejudicial evidence. Even assuming the district court erred in
excluding Orenge’s testimony, Kirlew has failed to demonstrate this
ruling prejudiced his defense, as his claim that Fetters purchased
two firearms does little to address the strength of the
Government’s independent evidence demonstrating that he was in
possession of the handgun charged in the indictment. Therefore,
Kirlew’s claim is without merit.
Kirlew’s final claim is that his 156-month sentence is
unreasonable. Following United States v. Booker, 543 U.S. 220(2005), a district court must engage in a multi-step process at
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sentencing. First, it must calculate the appropriate advisory
Guidelines range. It must then consider the resulting range in
conjunction with the factors set forth in 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2008) and determine an appropriate sentence.
Gall v. United States, 128 S. Ct. 586, 596 (2007). We review the
district court’s imposition of a sentence for abuse of discretion.
Id. at 597; see also United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007). This court “must first ensure that the district
court committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen
sentence—including an explanation for any deviation from the
Guidelines range.” Gall, 128 S. Ct. at 597.
If there are no procedural errors, we then consider the
substantive reasonableness of the sentence. Id. “Substantive
reasonableness review entails taking into account the totality of
the circumstances, including the extent of any variance from the
Guidelines range.” Pauley, 511 F.3d at 473 (internal quotation
marks and citation omitted). While this court may presume a
sentence within the Guidelines range to be reasonable, we may not
presume a sentence outside the range to be unreasonable. Id.Moreover, we must give deference to the district court’s decision
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that the § 3553(a) factors justify imposing a variant sentence and
to its determination regarding the extent of any variance. Id. at
473-74. “Even if we would have reached a different sentencing
result on our own, this fact alone is ‘insufficient to justify
reversal of the district court.’” Id. at 474 (quoting Gall, 128
St. Ct. at 597).
Kirlew does not claim his sentence was procedurally
unreasonable; rather, he asserts his sentence was substantively
unreasonable because the district court failed to identify any
factors justifying the considerable upward variance imposed.
However, Kirlew has failed to demonstrate the district court abused
its discretion in determining the § 3553(a) factors supported a
156-month sentence and justified a 41-month deviation from the
Guidelines range, as the court identified valid reasons for the
divergence. See Pauley, 511 F.3d at 473-74. While Kirlew contends
the district court improperly “re-counted” his criminal history and
the nature of the offense, § 3553(a)(1) directs the court to
consider “the nature and circumstances of the offense and the
history and characteristics of the defendant.” The district court
noted that Kirlew’s possession of body armor and a handgun
indicated he was “expecting to potentially be involved in a
shootout,” and that the “dangerous” nature of the offense
constituted an aggravating factor. Furthermore, the district court
properly accounted for Kirlew’s lengthy criminal history, noting he
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had “almost a lifetime career of criminal activity” and that his
juvenile record “literally had to [be] [brought] out in a cart.”
The district court also found that Kirlew had exhibited a
“propensity” for illegal activity and that there was a likelihood
of future dangerousness, as Kirlew committed the subject offenses
only two months after being released from prison. See 18 U.S.C.A.
§ 3553(a)(2)(C).
Kirlew contends the district court erred by considering
his lack of remorse because he pled not guilty to the charges.
However, the district court’s consideration of this factor was
appropriate in light of Kirlew’s allocution at sentencing, in which
he demonstrated a complete lack of contrition, downplayed his
criminal history, and failed to accept the dangerous nature of his
actions, claiming that his crime was simply “one possession of a
firearm by a convicted felon.” Following Kirlew’s statements, the
district court was well within its discretion to impose a higher
sentence in order to properly reflect the seriousness of the
offense and promote respect for the law. See 18 U.S.C.A.
§ 3553(a)(2)(A). Finally, while Kirlew claims there was little
consideration given to his need for mental health treatment, the
district court clearly evaluated this matter at sentencing, as the
court required Kirlew to receive mental health counseling and
recommended that he be designated to a facility where he could
obtain “extensive mental health treatment.” See United States v.
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Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006) (district court’s
explanation for sentence should indicate consideration of arguments
raised by both parties). Therefore, Kirlew has failed to
demonstrate his sentence was unreasonable.
Accordingly, we affirm Kirlew’s convictions 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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