United States v. Rochelle , 422 F. App'x 275 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4095
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OKANG KAREEN ROCHELLE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:05-cr-00112-WO-1)
Submitted: March 24, 2011 Decided: April 11, 2011
Before GREGORY, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Darren Byers, LAW OFFICES OF J. DARREN BYERS, P.A., Winston-
Salem, North Carolina, for Appellant. Anand P. Ramaswamy,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Okang Kareen Rochelle was found guilty of two counts
of being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2) (2006), following a jury trial.
The district court sentenced him to 220 months’ imprisonment and
three years of supervised release. Rochelle’s counsel filed a
brief in accordance with Anders v. California, 386 U.S. 738(1967), stating that, in counsel’s view, there are no
meritorious issues for appeal, but questioning whether the
district court erred in admitting evidence found in a search of
Rochelle’s car, whether the district court erred in denying
Rochelle’s motion to suppress, and whether the district court
erred in sentencing Rochelle in excess of the U.S. Sentencing
Guidelines range. Rochelle was informed of his right to file a
pro se supplemental brief, but has not done so. The Government
declined to file a responsive brief.
First, counsel questions whether the district court
erred in admitting the evidence found in the investigative stop
conducted on May 17, 2004. Rochelle did not move to suppress
this evidence. Motions to suppress evidence must be made before
trial. Fed. R. Crim. P. 12(b)(3)(C); United States v. Wilson,
115 F.3d 1185, 1190 (4th Cir. 1997). Failure to make a motion
to suppress before trial constitutes a waiver unless the trial
court grants relief from the waiver under Rule 12(e) for cause
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shown. Fed. R. Crim. P. 12(e); United States v. Ricco, 52 F.3d
58, 62 (4th Cir. 1995). The district court has not granted such
relief. Accordingly, Rochelle has waived consideration of this
issue.
Second, counsel questions whether the district court
erred in denying Rochelle’s motion to suppress two firearms
recovered in the November 2004 search of his car, specifically
in light of Arizona v. Gant, 129 S. Ct. 1710 (2009). When
considering a district court’s ruling on a motion to suppress
evidence, this court reviews the district court’s factual
findings for clear error and its legal conclusions de novo.
United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992).
When a suppression motion has been denied, this court construes
the evidence in the light most favorable to the government.
United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
“[W]here a police officer observes unusual conduct
which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot,” he is entitled
to conduct a brief, investigatory stop. Terry v. Ohio, 392 U.S.
1, 30 (1968). The court will determine if such a stop was
within the scope of the Fourth Amendment by considering the
totality of the circumstances and “whether the detaining officer
has a particularized and objective basis for suspecting legal
wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002)
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(internal quotation marks omitted). When assessing the totality
of the circumstances, even where “each factor alone is
susceptible of innocent explanation,” the totality of the
factors may be enough to provide reasonable suspicion,
justifying an investigative stop. Id. at 277-78.
In Arizona v. Gant, the Supreme Court substantially
limited its prior holdings in vehicle search cases. The Court
stated that “[p]olice may search a vehicle incident to a recent
occupant’s arrest only if the arrestee is within reaching
distance of the passenger compartment at the time of the search
or it is reasonable to believe the vehicle contains evidence of
the offense of arrest.” Gant, 129 S. Ct. at 1723. Our review
of the record leads us to conclude that the officers reasonably
believed that Rochelle’s vehicle contained evidence of the
offense of arrest—namely unlawful firearms possession—and
properly searched the vehicle. The district correctly denied
the motion to suppress.
Lastly, counsel questions whether the district court
erred in imposing Rochelle’s 220-month sentence. This court
reviews Rochelle’s sentence under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). In reviewing a sentence, this court must first
determine whether the district court committed any significant
procedural errors, examining the record for miscalculation of
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the Guidelines range, the treatment of the Guidelines as
mandatory, failure to consider the 18 U.S.C. § 3553(a) factors,
the selection of a sentence based on clearly erroneous facts,
and whether the court adequately explained the chosen sentence
and any deviation from the Guidelines. Id. at 51.
If we find no significant procedural error, we next
assess the substantive reasonableness of the sentence. United
States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010). In this
analysis, the court “tak[es] into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range.” United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007) (internal quotation marks and citation omitted).
After thoroughly reviewing the record, we conclude that
Rochelle’s variance sentence was both procedurally and
substantively reasonable.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Rochelle’s conviction and sentence. This
court requires that counsel inform Rochelle, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Rochelle requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
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representation. Counsel’s motion must state that a copy thereof
was served on Rochelle.
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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