United States v. Brown , 398 F. App'x 865 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4527
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY JEROME BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00253-TDS-1)
Argued: September 21, 2010 Decided: October 18, 2010
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: John Archibald Dusenbury, Jr., OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant.
Michael A. DeFranco, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee. ON BRIEF: Louis C.
Allen, Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This appeal arises from a conviction, pursuant to a
conditional guilty plea, on one count of being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1),
924(e). Appellant Anthony Jerome Brown challenges the district
court’s denial of his motion to suppress a handgun found on his
person and its decision to classify Brown as an armed career
criminal pursuant to 18 U.S.C. § 924(e). For the following
reasons, we affirm.
I.
Brown’s indictment resulted from an investigatory stop in
Durham, North Carolina. On May 17, 2008, a police officer
observed Brown and two other men standing in the street in an
area well known to Durham police for illegal drug sales and
violent crime. 1 Each male was standing within two feet of each
other. While the officer watched, the two other men exchanged
something hand-to-hand.
Suspecting that a drug transaction had just occurred, the
officer decided to investigate and called for back up. When the
1
Over 100 calls were made from this area to 911 for
emergency assistance in the first five months of 2008, and the
officer had received a complaint specifically about front-yard
drug dealing from the owner of the duplex closest to where the
three men were standing.
2
officers approached the group, Brown walked away from them
across a yard despite the prominent display of “no trespassing”
signs. Brown walked up to a nearby porch and began a hushed
conversation with the woman standing on the stoop. One of the
officers followed Brown and asked to speak with him. Brown
became belligerent and nonresponsive, refusing to state where he
lived. After three unsuccessful attempts to frisk Brown, the
officer grabbed Brown’s belt and arm and escorted him to the
patrol vehicle. Brown attempted to flee, but the officers
finally subdued him. They handcuffed Brown, resumed the frisk,
and discovered a loaded semi-automatic handgun on his person.
The district court denied Brown’s motion to suppress the
weapon, finding that the officer had “more than adequate reason
. . . to suspect not only that criminal activity was afoot, but
that Brown was armed or possessed illegal drugs.” J.A. 239.
Brown entered a conditional guilty plea to possession of a
firearm by a convicted felon, preserving his right to appeal the
district court’s denial of his suppression motion. At
sentencing, the district court found that three of Brown’s prior
offenses qualified him as an armed career criminal pursuant to
18 U.S.C. § 924(e): two convictions for breaking and entering a
commercial establishment in violation of N.C. Gen. Stat. § 14-
54(a) and another conviction for felony eluding arrest in
violation of N.C. Gen. Stat. § 20-141.5. This appeal followed.
3
II.
On appeal, Brown argues that the district court erred in
denying his motion to suppress the seized handgun because the
police officers lacked reasonable suspicion to detain and search
him. Brown further contends that the district court erred by
classifying him as an armed career criminal under 18 U.S.C.
§ 924(e), because his prior convictions for burglary of a
commercial building--in light of recent Supreme Court
precedent--no longer qualify as “violent felonies” under
§ 924(e). We address each argument in turn.
A.
We begin by considering Brown’s argument that the district
court erred by denying his motion to suppress the handgun found
on his person. We review the district court’s factual findings
underlying the denial of a motion to suppress for clear error
and its legal determinations de novo. United States v. Neely,
564 F.3d 346, 349 (4th Cir. 2009). When a suppression motion
has been denied, this court reviews the evidence in the light
most favorable to the government. Id.Brown contends that the officers violated his Fourth
Amendment rights because they lacked a reasonable, articulable
suspicion to detain and search him. Specifically, Brown argues
that he was an innocent bystander, and that because he was not
4
involved in the hand-to-hand transaction witnessed by police,
the officers lacked reasonable suspicion to believe he was
engaged in any illegal activity.
A police officer may conduct a brief investigatory stop
“when the officer has a reasonable, articulable suspicion that
criminal activity is afoot.” 2 Illinois v. Wardlow, 528 U.S. 119,
123 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)).
Whether there is reasonable suspicion to justify the stop
depends on the totality of the circumstances, including the
information known to the officer and any inferences to be drawn
therefrom. See United States v. Sokolow, 490 U.S. 1, 8 (1989).
The reasonable suspicion determination is a “commonsensical
proposition,” and deference should be accorded to police
officers’ determinations based on their experience of “what
transpires on the street.” See United States v. Foreman, 369
F.3d 776, 782 (4th Cir. 2004) (internal quotations omitted).
In light of what the officers knew or could reasonably
infer from the circumstances in this case, the district court
did not err in finding reasonable suspicion to detain Brown.
The officers testified that the area in which they observed
Brown was well known for illegal drugs and violent crime. See
Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (holding that a
2
Such stops are often referred to as “Terry stops.”
5
suspect’s presence in a high-crime area is a factor police may
take into consideration in making the reasonable suspicion
determination); United States v. Lender, 985 F.2d 151, 154 (4th
Cir. 1993) (explaining that, while a defendant’s mere presence
in a high-crime area does not, by itself, raise reasonable
suspicion, an area’s propensity for criminal activity may be
considered). Brown was standing in close proximity to the
individuals engaged in behavior suspected to be a drug
transaction. Because individuals engaged in such a transaction
would be unlikely to allow an uninvolved bystander to observe
them, the officers reasonably believed Brown to be a lookout or
armed security. See United States v. Perkins, 363 F.3d 317, 321
(4th Cir. 2004) (holding that due weight must be given “to
common sense judgments reached by officers in light of their
experience and training”). Brown’s subsequent evasive behavior
buttressed their suspicions. See United States v. Smith, 396
F.3d 579, 584 (4th Cir. 2005) (recognizing evasive behavior as a
factor relevant to the reasonable suspicion analysis); United
States v. Mayo, 361 F.3d 802, 807-08 (4th Cir. 2004) (same).
Once an officer has a legally sufficient basis to make an
investigatory stop, the officer may conduct a search for weapons
for his own protection where he has “reason to believe that the
suspect is armed and dangerous.” Adams v. Williams, 407 U.S.
143, 146 (1972); Terry, 392 U.S. at 27. The officers here
6
testified that, based on their extensive experience with drug
investigations and arrests, most drug transactions involve the
presence of a firearm. This court has recognized that the
presence of drugs permits the inference of the presence of
firearms. See United States v. Sullivan, 455 F.3d 248, 260 (4th
Cir. 2006) (recognizing the “unfortunate reality that drugs and
guns all too often go hand in hand”) (citation omitted); United
States v. Stanfield, 109 F.3d 976, 984 (4th Cir. 1997) (“As we
have often noted, where there are drugs, there are almost always
guns.”); United States v. Perrin, 45 F.3d 869, 873 (4th Cir.
1995) (finding reasonable an officer’s belief that a person
selling drugs may be carrying a weapon for protection).
Viewing the evidence in the light most favorable to the
government, we conclude that the district court did not err in
denying Brown’s motion to suppress. Based on the totality of
the circumstances, the officers had a reasonable, articulable
suspicion to justify the Terry stop and the protective frisk.
Brown’s presence in a high crime area, his immediate proximity
to a suspected drug transaction, and his evasive and belligerent
conduct when confronted by police officers, gave police ample
reason to suspect that Brown was engaged in criminal activity
and that he was armed and dangerous.
7
B.
We next consider Brown’s argument that the district court
erred in sentencing him as an armed career criminal because his
two prior convictions for breaking and entering a commercial
establishment were not proper predicate offenses under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). 3 Under the
ACCA, a defendant is an armed career criminal if he violates 18
U.S.C. § 922(g)(1) and has three prior convictions for violent
felonies or serious drug offenses. See 18 U.S.C. § 924(e); U.S.
Sentencing Guidelines Manual § 4B1.4(a). We review de novo the
district court’s legal determination that a prior crime
constitutes a predicate “violent felony.” United States v.
Wright, 594 F.3d 259, 262-63 (4th Cir. 2010).
“Burglary” is one of the violent felonies specifically
enumerated in 18 U.S.C. § 924(e). For purposes of the ACCA, a
person has been convicted of burglary “if he is convicted of any
crime, regardless of its exact definition or label, having the
basic elements of unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a
crime.” Taylor v. United States, 495 U.S. 575, 599 (1990).
3
Brown does not challenge on appeal the district court’s
decision to count his conviction for eluding arrest as a
predicate offense under the ACCA. Therefore, if Brown’s two
breaking and entering convictions may be counted, the ACCA
requirement of three predicate convictions is satisfied.
8
The North Carolina burglary statute under which Brown was
twice convicted provides that “[a]ny person who breaks or enters
any building with intent to commit any felony or larceny therein
shall be punished as a Class H felon.” N.C. Gen. Stat. § 14-
54(a) (emphasis added). The statute defines a building as “any
dwelling, dwelling house, uninhabited house, building under
construction, building within the curtilage of a dwelling house,
and any other structure designed to house or secure within it
any activity or property.” N.C. Gen. Stat. § 14-54(c).
Brown argues that, in light of the Supreme Court’s decision
in Begay v. United States, his convictions for burglary of a
commercial building, as opposed to burglary of a residential
building, should no longer qualify as “violent felonies” for
purposes of 18 U.S.C. § 924(e). See Begay, 553 U.S. 137, 144-48
(2008) (concluding that New Mexico’s crime of “driving under the
influence” fell outside the scope of the ACCA’s “violent felony”
definition because it differed from the example crimes listed in
§ 924(e)(2)(b)(ii)--burglary, arson, and extortion--which
“typically involve purposeful, ‘violent,’ and ‘aggressive’
conduct”). Brown concedes, however, that we are presently bound
by Taylor, which decided this issue adversely to Brown’s
position by holding that § 924(e) “burglary” refers to “generic
burglary.” Taylor, 495 U.S. at 602. Taylor defined generic
burglary as “an unlawful or unprivileged entry into, or
9
remaining in, a building or other structure, with intent to
commit a crime.” Id. at 598. Therefore, the crime of breaking
and entering a commercial building qualifies as § 924(e)
“burglary” and must be a “violent felony” for ACCA purposes.
See United States v. Thompson, 421 F.3d 278, 284 (4th Cir.
2005); United States v. Bowden, 975 F.2d 1080, 1085 (4th Cir.
1992). Because burglary is an enumerated offense in 18 U.S.C.
§ 924(e), and Brown’s prior convictions qualify as § 924(e)
burglaries under Taylor, Brown’s claim fails.
III.
For the foregoing reasons, we affirm the judgment of the
district court and uphold Brown’s conviction and sentence.
AFFIRMED
10