United States v. Aaron Overton ( 2022 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 19, 2022
Decided June 13, 2022
Before
JOEL M. FLAUM, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 21-2973
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Indiana.
v. No. 4:19-cr-00023
AARON OVERTON, Sarah Evans Barker,
Defendant-Appellant Judge.
ORDER
In August 2019 police officers in Jeffersonville, Indiana attempted to stop Aaron
Overton—who they suspected of drug dealing and triple homicide—for a traffic
violation. Overton did not immediately pull over and kept driving away from the
police. He eventually stopped and was arrested for resisting arrest. A drug-sniffing dog
circled the perimeter of Overton’s car and alerted, leading the police to search the car
and find a gun. The district court denied a motion to suppress the gun. Overton pled
guilty to possessing a gun as a felon, and the district court sentenced him to 92 months’
imprisonment. Seeing no error in the district court’s Fourth Amendment ruling or
sentence, we affirm.
No. 21-2973 Page 2
I
A
Shortly after 7:00 p.m. on August 8, 2019, officers from the Jeffersonville Police
Department were surveilling Overton. Upon seeing Overton turn without signaling,
Officer Thomas O’Neil attempted a traffic stop. But Overton did not stop in response to
the police lights and sirens. He instead drove away into oncoming traffic. Officer O’Neil
radioed for assistance and other officers blocked the road ahead of Overton, forcing him
to stop.
Seconds after the car stop, Sergeant Denver Leverett arrived with a drug-sniffing
dog named Flex. Leverett ordered Overton to exit his vehicle. In stepping out, Overton
left open the driver’s-side door. Leverett and O’Neil placed Overton under arrest for
resisting law enforcement by failing to stop when signaled to do so. Overton did not
have a valid driver’s license and his car obstructed traffic, so the officers planned to
impound and search the vehicle pursuant to department policies.
Within two or three minutes of the arrest, Sergeant Leverett directed the dog to
circle and sniff Overton’s car. As the dog approached the closed front passenger door,
he sat on the ground, an alert for the smell of drugs. The dog then walked to the open
driver’s-side door and spontaneously jumped into the car. Once inside, the dog alerted
twice more—first near the center console and a second time to a cell phone on the
driver’s seat. The police then searched the car. They did not find drugs but located a
loaded pistol in the center console.
A federal gun charge then followed. See 18 U.S.C. § 922(g)(1).
B
Overton moved to suppress the gun uncovered during the search of his car,
contending both that the traffic stop was unlawfully prolonged to give the dog time to
sniff and that the dog impermissibly entered the vehicle. The district court denied the
motion without an evidentiary hearing, determining that “Mr. Overton has not raised a
non-conjectural dispute as to any material facts.”
The district court concluded that the police did not prolong the stop, as Sergeant
Leverett ordered the dog sniff within two or three minutes of Overton’s arrest. And
Overton, the district court emphasized, had identified “no evidence of an alternate
timeframe to counter or undermine Sgt. Leverett’s account.” The district court similarly
No. 21-2973 Page 3
found that the dog’s jumping into the car was spontaneous and consequently not an
impermissible search.
Overton then entered a conditional guilty plea, preserving his right to appeal the
denial of his motion to suppress. At sentencing, Overton objected to the Guidelines
calculation in the Presentence Investigation Report, arguing that there was
impermissible double counting because a conviction for robbery committed when he
was 17, but for which he was tried as an adult, increased both his criminal history
category and offense level under the Guidelines. The district court disagreed,
explaining that “[t]he law is pretty well established with respect to permitting the use of
a conviction to establish the base offense level as well as the defendant’s criminal
history.” And the Sentencing Commission, the district court added, provided no
exception for adult convictions committed while the defendant was a juvenile. After
considering the 18 U.S.C. § 3553(a) factors, the district court sentenced Overton to 92
months’ imprisonment, the low end of the advisory range.
Overton then appealed.
II
A
Settled law defeats Overton’s Fourth Amendment challenge to the police’s search
of his car. “Under the inevitable discovery doctrine, illegally seized evidence need not
be suppressed if the government can prove by a preponderance of the evidence that the
evidence inevitably would have been discovered by lawful means.” United States v.
McGill, 8 F.4th 617, 624 (7th Cir. 2021) (internal quotations omitted). The government
has met this burden.
Overton’s gun would have been inevitably discovered during an inventory
search after his car was impounded. “An inventory search is lawful if (1) the individual
whose possession is to be searched has been lawfully arrested, and (2) the search is
conducted as part of the routine procedure incident to incarcerating an arrested person
and in accordance with established inventory procedures.” United States v. Cartwright,
630 F.3d 610, 613 (7th Cir. 2010). Both prongs are satisfied here. Overton was lawfully
arrested for resisting arrest. And the police conducted the search pursuant to the
Jeffersonville Police Department’s established procedures, which provide for the
impoundment and search of vehicles that obstruct traffic following the arrest of a
driver.
No. 21-2973 Page 4
The uncontroverted statements of the arresting officers indicate that Overton’s
car presented a traffic hazard. Sergeant Leverett observed that Overton’s car “was
positioned in a manner to obstruct traffic and was in peril.” Officer O’Neil included in
his report that “the vehicle was a roadway hazard blocking the northbound lane of
travel.” Even more, Overton did not have a valid driver’s license, so he could not legally
drive the car away from the scene.
Because the vehicle would be impounded under the Jeffersonville Police
Department’s policies, it would have also been subject to an inventory search at the
station house. The gun would have therefore been inevitably discovered. See Cartwright,
630 F.3d at 615–16 (affirming application of inherent discovery doctrine for vehicle
towed pursuant to a “sufficiently standardized” police policy). We can stop here. We do
not need to consider whether the stop was unlawfully prolonged or if the dog’s
spontaneous jump into the car somehow violated Overton’s Fourth Amendment rights.
Because all material facts are undisputed, the district court did not abuse its
discretion in declining to hold a hearing on Overton’s suppression motion. See United
States v. Curlin, 638 F.3d 562, 564 (7th Cir. 2011) (“District courts are required to conduct
evidentiary hearings only when a substantial claim is presented and there are disputed
issues of material fact that will affect the outcome of the motion.”).
B
Finally, Overton renews his argument that “the district court [at sentencing]
double counted his robbery conviction for an offense which occurred while he was a
juvenile [at age 17].” The district court determined that this conviction warranted the
assignment of three points to Overton’s criminal history calculation and a four-level
increase in his base offense level from 22 to 26 under U.S.S.G. § 2K2.1(a)(1)—the career
offender Guideline.
There was no Guidelines error. To the contrary, the district court applied the
Guidelines as written. “[D]ouble counting is generally permissible unless the text of the
guidelines expressly prohibits it.” United States v. Vizcarra, 668 F.3d 516, 519 (7th Cir.
2012). The double counting here was not expressly prohibited—rather, it is expressly
directed by the Guidelines. “Prior felony conviction(s) resulting in an increased base
offense level under subsection (a)(1) . . . are also counted for purposes of determining
criminal history points pursuant to Chapter Four, Part A (Criminal History).” U.S.S.G.
§ 2K2.1, cmt. n.10. This is true even if the conviction is for an offense committed when
the defendant is younger than 18, so long as the conviction “is classified as an adult
No. 21-2973 Page 5
conviction under the laws of the jurisdiction in which the defendant was convicted.”
U.S.S.G. § 2K2.1, cmt. n.1.
For these reasons, we AFFIRM.