United States v. Wiggins , 240 F. App'x 594 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4903
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TOMMY WIGGINS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:05-cr-00059-BO)
Submitted: May 25, 2007 Decided: July 11, 2007
Before WILLIAMS, Chief Judge, and MICHAEL and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P.
May-Parker, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tommy Wiggins appeals his conviction and 188-month
sentence for possession of a firearm as a previously convicted
felon, a violation of 18 U.S.C. § 922(g)(1) and 924 (2000).
Wiggins was sentenced pursuant to the Armed Career Criminal Act, 18
U.S.C. § 924(e) (2000) (“ACCA”). On appeal, Wiggins asserts the
district court erred in admitting certain evidence obtained in
violation of the Fourth Amendment and contends his sentence
violates the Sixth Amendment. Finding no error, we affirm.
Wiggins first contends the police violated his Fourth
Amendment rights by stopping him without reasonable suspicion as
required under Terry v. Ohio, 392 U.S. 1 (1968). Taking into
account the collective knowledge of the officers involved in the
investigation, United States v. Hensley, 469 U.S. 221, 232 (1985),
we conclude the initial vehicle stop was supported by “specific and
articulable facts which, taken together with rational inferences
from those facts, reasonably warrant . . . intrusion” on a
suspect’s Fourth Amendment rights. Terry, 392 U.S. at 21.
Second, Wiggins argues that the police detained him for
an unreasonable period of time while a K-9 unit was called. We
find that the length of Wiggins’ detention fell within the scope of
a Terry stop. We have previously upheld the investigative
detention of an individual suspected of drug activity, along with
his luggage, for thirty-eight minutes while officers awaited the
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arrival of a K-9 unit to sweep for drugs. See United States v.
McFarley, 991 F.2d 1188, 1193-94 (4th Cir. 1993). In McFarley, we
found the scope of the detention reasonable because there was no
evidence that officers unduly extended the defendant’s detention or
failed to act with diligence in conducting their investigation.
Id. at 1194. The same reasoning controls here.
Third, Wiggins argues the offense he was charged with at
the scene could not support an arrest. However, the record
reflects Wiggins was arrested pursuant to North Carolina law
identifying as a Class Three misdemeanor the transport of
“spirituous liquor in the passenger area of a motor vehicle in
other than the manufacturer’s unopened original container.” N.C.
Gen. Stat. § 18B-401(a) (2005). Here, because Wiggins handed
police an opened bottle of liquor that police had seen under the
passenger seat of his vehicle, Wiggins’ arrest was lawful.
Ultimately, we find no error in the district court’s denial of
Wiggins’ motion to suppress evidence found subsequent to Wiggins’
stop, arrest and search.
With respect to his sentence, Wiggins contends it was
imposed in violation of the rule in Blakely v. Washington, 542 U.S.
296 (2004), for two reasons: first, because the predicate
convictions supporting his sentence under the ACCA were not
determined by a jury or admitted by him; and second, because the
district court did not make a specific finding that the criminal
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offenses were committed separately from one another. The former
position is foreclosed by United States v. Booker, 543 U.S. 220,
244 (2005), in which the Supreme Court stated that a district court
may rely on the fact of a prior conviction for sentencing purposes.
See also United States v. Cheek, 415 F.3d 349, 354 (4th Cir. 2005).
Wiggins’ latter position is precluded by United States v. Thompson,
421 F.3d 278 (4th Cir. 2005), in which we found that the date of a
conviction is inherent in the conviction itself and conclusive
judicial records. 421 F.3d at 286. Further, because one panel of
this court may not overrule another, we decline Wiggins’ invitation
to overrule Thompson. See United States v. Ruhe, 191 F.3d 376, 388
(4th Cir. 1999). We therefore find no error in the district
court’s classification of Wiggins as an armed career criminal.
Accordingly, we affirm Wiggins’ 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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