United States v. Henderson , 237 F. App'x 834 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5141
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT LEE HENDERSON, a/k/a Jessie James
Sykes,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Margaret B. Seymour, District
Judge. (5:05-cr-00375-MBS-1)
Submitted: June 25, 2007 Decided: July 30, 2007
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael Chesser, Aiken, South Carolina, for Appellant. Christopher
Todd Hagins, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Lee Henderson entered a conditional guilty plea to
one count of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1)
(2000). The district court sentenced Henderson to 180 months’
imprisonment. Henderson timely appealed.
Henderson’s attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that, in his
opinion, there are no meritorious issues for appeal, but
questioning whether the district court erred in denying Henderson’s
motion to suppress evidence or in sentencing Henderson pursuant to
the Armed Career Criminal Act, 18 U.S.C. § 924(e) (2000) (“ACCA”).
Henderson submitted a pro se supplemental brief in which he raises
many of the same issues counsel presented. For the reasons stated
below, we affirm the district court’s denial of Henderson’s motion
to suppress, as well as Henderson’s sentence.
I. Motion to Suppress
We review the district court’s factual findings
underlying a motion to suppress for clear error, and the district
court’s legal determinations de novo. United States v. Grossman,
400 F.3d 212, 216 (4th Cir. 2005). When a suppression motion has
been denied, we review the evidence in the light most favorable to
the government. Id.- 2 -
After receiving a report of a broken-down mini-van on a
highway, South Carolina State Trooper Larry Vanicek arrived on the
scene to assist the motorists. Vanicek noticed two men, three
women, and one child in the van. While speaking with Henderson,
who was sitting in the driver’s seat, Vanicek noticed a strong odor
of marijuana emanating from the van. After asking Henderson for
his driver’s license, Vanicek asked Henderson to step outside of
the vehicle. Vanicek asked Henderson whether he was driving and if
his license was valid; Henderson responded that he had not been
driving, but that his license was suspended. Informing Henderson
that he detected marijuana, Vanicek asked Henderson if he had been
smoking marijuana or had any narcotics on him. Henderson disclosed
that he had smoked marijuana, but that he did not have any on his
person.
Vanicek instructed Henderson to turn around so that
Vanicek could perform a protective pat-down. Vanicek asked
Henderson if he had any weapons or harmful objects on his person.
At this point, Henderson told Vanicek there was marijuana in his
coat pocket. After he located and seized the marijuana, Vanicek
instructed Henderson to return to the van; Vanicek then called for
back-up assistance in order to search the van.
After the local deputy arrived, Vanicek again asked
Henderson to exit the van. Vanicek asked Henderson and the van
owner’s granddaughter, one of the women in the van, for consent to
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search the van; both gave their consent to the search. Before
beginning to search the van, Vanicek again asked Henderson whether
he had any weapons or harmful objects on his person, to which
Henderson responded that he had a firearm in the waistband of his
pants. Henderson explained that the firearm had been in the van
during the first search. Vanicek located and seized the firearm
and its ammunition.
Henderson moved to suppress the firearm, arguing it was
seized in violation of the Fourth Amendment, and moved to suppress
his statements to Vanicek, arguing they were obtained in
contravention of Miranda v. Arizona, 384 U.S. 436 (1966). After
conducting a hearing on the issue, the district court denied
Henderson’s motion. Henderson subsequently entered a conditional
guilty plea, reserving the right to appeal the denial of his
suppression motion.
On appeal, Henderson first maintains that, in requesting
that he exit the van in the first instance, Vanicek violated
Henderson’s Fourth Amendment right to be free of unreasonable
seizures. Although Henderson makes much of the fact that Vanicek
originally approached the van simply because he received a report
of a disabled vehicle as opposed to pursuant to a traffic stop,
Henderson neglects to consider that this was not why Vanicek
requested that Henderson exit the vehicle. As Vanicek’s report on
the incident established, after approaching the vehicle, Vanicek
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noticed a “strong odor” of marijuana emanating from the vehicle.
Accordingly, Vanicek’s request that Henderson, who had been sitting
in the driver’s seat, exit the vehicle was not predicated on the
fact that the van was disabled, but on Vanicek’s recognition that
illegal drugs either were being, or had recently been, used.
“[W]hen the officer has a reasonable suspicion that illegal drugs
are in the vehicle, the officer may, in the absence of factors
allaying his safety concerns, order the occupants out of the
vehicle.” United States v. Sakyi, 160 F.3d 164, 169 (4th Cir.
1998). Accordingly, we conclude that Vanicek’s request that
Henderson exit the van did not violate the Fourth Amendment.
We further reject Henderson’s contention that Vanicek’s
initial pat-down search was illegal because Vanicek lacked a
reasonable belief that Henderson was armed. Pennsylvania v. Mimms,
434 U.S. 106, 110-11 (1977), authorizes a police officer to frisk
a vehicle’s driver or occupant if there is a reasonable belief that
they are armed and dangerous. As we have recognized, “[t]he
indisputable nexus between drugs and guns presumptively creates a
reasonable suspicion of danger to the officer.” Sakyi, 160 F.3d at
169. The noticeable presence of marijuana supported Vanicek’s
decision to frisk Henderson.1
1
Building on his contention that the initial seizure and
search were illegal, Henderson maintains that his continued
detention pending arrival of Vanicek’s back-up was likewise
illegal. This argument fails, however, because the initial seizure
and search were proper; thus, Vanicek had developed probable cause
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Henderson also claims that the second search of his
person was illegal because Vanicek had no reason to conduct another
protective pat-down. Because the search was illegal, Henderson
posits, the firearm seized during the course of that search should
have been suppressed as fruit of the poisonous tree.
We reject this argument. Vanicek permitted Henderson to
return to the van with the four other adults while awaiting the
arrival of back-up assistance. Because Henderson could have armed
himself or hidden contraband on his person during that time, it was
reasonable for Vanicek to conduct a second protective pat-down
search.
Lastly, Henderson maintains that the marijuana and the
firearm should have been suppressed because the incriminating
statements Henderson gave that led Vanicek to those items were
obtained in violation of Miranda. Henderson concedes that Miranda
warnings generally do not apply to routine traffic stops, but
argues that, because Vanicek’s initial contact with Henderson was
not pursuant to a traffic stop, Miranda was triggered.
Police officers are “required to give Miranda warnings
only where there has been such a restriction on a person’s freedom
as to render him in custody.” California v. Beheler, 463 U.S.
1121, 1124 (1983) (internal quotations and citation omitted).
“[T]he ultimate inquiry is simply whether there is a formal arrest
to support further detaining Henderson.
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or restraint on freedom of movement of the degree associated with
a formal arrest.” Id. at 1125 (internal quotations and citation
omitted).
Vanicek simply had no obligation to provide Miranda
warnings before questioning Henderson regarding whether he had any
weapons or harmful objects on his person. The uncontested
documents reflecting the course of events demonstrate that, on both
occasions Vanicek posed the challenged questions, Henderson was
neither under arrest nor was his freedom restricted to a degree
equivalent to arrest.2 Accordingly, we conclude the district court
properly denied Henderson’s motion to suppress in its entirety.3
II. Armed Career Criminal
Prior to sentencing, the probation officer prepared a
pre-sentence report (“PSR”), in which he recommended sentencing
Henderson pursuant to the ACCA. The probation officer concluded
that Henderson had five prior convictions for violent felony
offenses — burglaries — all of which were committed on separate
2
Even if Miranda was in fact implicated, as the district court
noted, there is a safety exception to the Miranda requirement.
“[T]he need for answers to questions in a situation posing a threat
to the public safety outweighs the need for the prophylactic rule
protecting the Fifth Amendment’s privilege against
self-incrimination.” New York v. Quarles, 467 U.S. 649, 657
(1984). Vanicek’s question twice posed to Henderson was well
within the bounds of this exception.
3
We have considered the other arguments raised in Henderson’s
pro se supplemental brief relevant to this issue and find them to
be without merit.
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occasions. The probation officer cited Henderson’s conviction for
third-degree burglary of Hancock Buick on June 17, 1991, as well as
his conviction for second-degree burglary of Hancock Buick on
June 25, 1991 (collectively, “June 1991 burglaries”). The
probation officer also detailed Henderson’s convictions stemming
from a series of burglaries committed in November 1996. Those
offenses included third-degree burglary of Astro Electric Company
on November 15, 1996, and two counts of second-degree burglary for
unlawfully entering two different buildings on November 14, 1996
(collectively, “November 1996 burglaries”).
Henderson objected to the armed career criminal
designation, arguing that the June 1991 burglaries and the November
1996 burglaries were inter-related, and thus not crimes committed
on separate occasions. The district court rejected this argument,
finding that the June 1991 burglaries were “two separate
incidents.” The district court similarly rejected Henderson’s
argument with regard to the November 1996 burglaries.
On appeal, Henderson restates his argument that he does
not have the required three predicate felony convictions to support
being sentenced under the ACCA. A defendant with three prior
convictions for violent felony offenses committed on separate
occasions is subject to treatment as an armed career criminal. See
18 U.S.C. § 924(e)(1); United States Sentencing Guidelines Manual
§ 4B1.4 (2005) (“USSG”). The definition of a “violent felony”
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includes burglary. 18 U.S.C. § 924(e)(2)(B)(ii) (2000). In
Taylor v. United States, 495 U.S. 575, 598-99 (1990), the Supreme
Court held that “burglary,” for purposes of § 924(e), is limited to
“generic” burglary, that is, the “unlawful or unprivileged entry
into, or remaining in, a building or structure with intent to
commit a crime.”
Though the statute does not define “committed on
occasions different from one another[,]” we consider three factors
in determining whether offenses occurred on the same occasion and
thus should count as only one predicate offense: “whether the
offenses arose in different geographic locations; whether the
nature of the offenses was substantively different; and whether the
offenses involved multiple victims or multiple criminal
objectives.” United States v. Letterlough, 63 F.3d 332, 335-36
(4th Cir. 1995) (footnotes omitted). A conviction is considered to
have “occur[red] on occasions different from one another if each of
the prior convictions arose out of a separate and distinct criminal
episode.” Id. at 335 (internal quotations and citation omitted).
In making this determination, we consider, among other factors,
whether the time interval between the crimes underlying the
convictions allowed the accused sufficient time to “make a
conscious and knowing decision to engage in” subsequent criminal
acts. Id. at 337. Separate offenses are not made related simply
because the offenses were consolidated for sentencing or the
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defendant received concurrent sentences. United States v.
Breckenridge, 93 F.3d 132, 137-38 (4th Cir. 1996) (citations
omitted); United States v. Rivers, 929 F.2d 136, 140 (4th Cir.
1991).
We reject Henderson’s contention that his prior offenses
were not separate instances of criminal conduct. Although the
target of both of the June 1991 burglaries was the same, the date
of conviction was the same, and Henderson’s sentences were
concurrent, the two criminal acts underlying those convictions
occurred eight days apart from one another; thus, those criminal
offenses cannot be said to have been committed on the same
occasion. Henderson plainly made a “conscious and knowing
decision” to engage in the second criminal act. Letterlough, 63
F.3d at 337. Both of these burglary convictions were properly
counted.
With regard to the November 1996 burglaries, although it
appears that Henderson committed these three crimes within a short
time of one another, they each constitute a “separate and distinct
criminal episode.” Id. at 335. Each burglary involved a different
target, in a different geographic location. In his travels between
these locations, Henderson made conscious decisions to engage in
another criminal act. Even if, as Henderson contends, the two
burglaries committed on November 14 were committed “on the same
occasion” such that they only count as one prior conviction,
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Henderson nonetheless had three prior violent felony convictions
and thus was properly sentenced pursuant to the ACCA.4
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm Henderson’s conviction and
sentence. Moreover, we deny Henderson’s motion to supplement his
pro se supplemental brief. This court requires that counsel inform
his client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client requests
that a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on the client. 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
4
We have considered Henderson’s arguments relevant to the
armed career criminal designation and find them without merit and
requiring no substantive discussion.
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