United States v. Ezekiel Gardner , 823 F.3d 793 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4533
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EZEKIEL DONJA GARDNER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Fox, Senior
District Judge. (4:11-cr-00065-F-1)
Argued: March 24, 2016 Decided: May 18, 2016
Before MOTZ, GREGORY, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published
opinion. Judge Keenan wrote the opinion, in which Judge Motz
and Judge Gregory joined.
ARGUED: William Michael Dowling, BROOKS, PIERCE, MCLENDON,
HUMPHREY & LEONARD, L.L.P., Raleigh, North Carolina, for
Appellant. Phillip Anthony Rubin, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:
Ezekiel Gardner was tried by a jury and found guilty of
possession of a firearm by a felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924. The conviction was based on police officers’
recovery of a handgun from Gardner’s vehicle during a traffic
stop, after receiving a tip from a confidential informant that
Gardner, a felon, possessed a firearm. At sentencing, the
district court determined that Gardner was an armed career
criminal based on his three prior convictions for felony common
law robbery in North Carolina (North Carolina common law
robbery), and sentenced him to serve a term of 262 months’
imprisonment.
On appeal, Gardner challenges: (1) the district court’s
denial of his motion to suppress the search of his vehicle and
certain statements he made to the police; (2) the court’s denial
of his motion for a new trial; and (3) the court’s determination
at sentencing that he is an armed career criminal. Upon our
review, we affirm the district court’s denial of Gardner’s
motion to suppress and his motion for a new trial. However,
because we conclude that North Carolina common law robbery is
not categorically a violent felony, we hold that the district
court erred in sentencing Gardner as an armed career criminal.
Accordingly, we vacate Gardner’s sentence and remand for
resentencing.
2
I.
A.
The government’s evidence regarding the traffic stop showed
that on January 13, 2011, Detective Kenneth Adams of the police
department in Farmville, North Carolina, received a telephone
call from a reliable, confidential informant. The woman stated
that Gardner was a convicted felon who possessed a firearm, that
he was driving a white Lincoln Town Car, and that he presently
was located at a particular house on Thorne Street in Farmville.
Detective Adams already had a working relationship with this
informant, who had completed at least five controlled drug
purchases for a regional drug enforcement task force, and
consistently had provided accurate information.
Based on the informant’s telephone call, Detective Adams,
Lieutenant Paul McLawhorn, and Chief Donnie Greene proceeded in
a squad car to the identified house on Thorne Street and saw a
white Lincoln Town Car parked near the house. The officers
drove around the block, taking time to confirm that Gardner was
the registered owner of the vehicle. When the officers
approached the house again, they saw that Gardner had entered
the Lincoln and was driving toward a nearby intersection. The
officers observed Gardner make a three-point turn in the
intersection and begin driving in the opposite direction. The
3
officers turned to follow Gardner’s vehicle and initiated a
traffic stop.
Detective Adams observed that “as soon as the blue lights
come on, I saw [Gardner] dip down in the car, and I saw his
right shoulder disappear as if he was – he was either reaching
for something or putting something under the seat.” After
Gardner stopped his car, Adams and McLawhorn approached the car.
Adams held his gun at his side as he walked toward the driver-
side door. Chief Greene remained in the squad car to request
assistance.
Adams confirmed Gardner’s identity by examining his
driver’s license, and asked Gardner to step out of the vehicle.
Adams observed that Gardner appeared nervous and kept looking in
the direction of the vehicle’s floor. When Adams asked Gardner
if he had any weapons on his person, Gardner replied that he did
not. Upon conducting a patdown search of Gardner, Adams did not
find a weapon. Adams ordered Gardner to walk to the rear of the
vehicle, but did not place handcuffs on him at this time.
Adams informed Gardner that Adams had received information
that Gardner had a firearm in his possession. When Adams asked
Gardner if he had “anything illegal in his car,” Gardner
responded by hanging his head. Continuing, Adams asked, “What
is it that is illegal in your car[?].” Gardner replied, “I have
a gun.” When asked if he was allowed to possess a firearm,
4
Gardner stated that he was not and that he was a convicted
felon.
McLawhorn searched the passenger compartment of the car,
and found a handgun underneath the driver’s seat. At that
point, Gardner was placed in handcuffs and was taken to the
police station.
After arriving at the station, Adams and Detective Rose
Edmonds advised Gardner of his Miranda rights, which Gardner
waived by signing a written waiver form. Gardner told the
officers that he had purchased the gun from “Cobe,” that Gardner
later loaned the gun to “Pudgy,” and that Gardner had received
the firearm back from “Pudgy” that day.
B.
Before trial, Gardner moved to suppress both the evidence
recovered from his car during the stop and the statements he
made at the police station following his arrest. The district
court denied the motion, concluding that the search was
justified by the “automobile exception” to the warrant
requirement of the Fourth Amendment, and that, therefore, any
post-arrest statements were lawfully obtained.
At trial, Gardner renewed his suppression motion. In
addition to restating his earlier arguments, he also sought
suppression of the statements he made to the police during the
traffic stop on the ground that he was not advised of his
5
Miranda rights. The district court again denied Gardner’s
motion, as well as his motion for judgment of acquittal. The
jury found Gardner guilty of the offense charged, and the
district court later denied Gardner’s motion for a new trial.
At sentencing, Gardner challenged his classification as an
armed career criminal. He argued that his predicate convictions
for North Carolina common law robbery did not qualify
categorically as violent felonies. The district court
disagreed, concluding that the convictions qualified as violent
felonies under the residual clause of the Armed Career Criminal
Act (the ACCA). See 18 U.S.C. § 924(e)(2)(B). The court
sentenced Gardner to serve a term of 262 months’ imprisonment,
which sentence fell at the bottom of the Sentencing Guidelines
range. This appeal followed.
II.
Gardner raises several issues on appeal, but primarily
challenges the legality of the search of his vehicle and his
classification as an armed career criminal. We first address
the legality of the search.
A.
Gardner argues that the police officers lacked reasonable
suspicion to initiate a stop of his vehicle. He contends that
the confidential informant was not a reliable source of
6
information, and that she did not provide sufficient detail
about Gardner such as predictive information regarding his
criminal behavior. Alternatively, Gardner asserts that even if
the initial stop was lawful, the stop evolved into an unlawful
arrest, and he should have been given Miranda warnings before
any questioning occurred. Thus, Gardner challenges as
inadmissible the statements he made after the stop and also
seeks to suppress the gun uncovered from his vehicle. We
disagree with Gardner’s arguments.
We review a district court’s factual findings in deciding a
motion to suppress for clear error, and the court’s legal
conclusions de novo. United States v. Black, 707 F.3d 531, 537
(4th Cir. 2013). We construe the evidence in the light most
favorable to the government, the prevailing party in the
district court. United States v. Farrior, 535 F.3d 210, 217
(4th Cir. 2008), abrogated on other grounds by United States v.
Williams, 808 F.3d 238 (4th Cir. 2015).
An officer must have reasonable suspicion of criminal
activity to perform an investigative stop authorized by Terry v.
Ohio, 392 U.S. 1 (1968). United States v. Branch, 537 F.3d 328,
336 (4th Cir. 2008). Under this standard, the officer must have
a “particularized and objective basis for suspecting the
particular person stopped of criminal activity.” Navarette v.
California, 134 S. Ct. 1683, 1687 (2014) (citation omitted).
7
This standard is less demanding than the probable cause
standard, and can be based on “information that is less reliable
than that required to show probable cause.” Alabama v. White,
496 U.S. 325, 330 (1990).
We have stated that when an investigative stop is based on
unverified information provided by a known informant, a tip of
this nature “may alone justify a reasonable suspicion of
criminal activity.” United States v. Singh, 363 F.3d 347, 355
(4th Cir. 2004). And when police obtain information
corroborating such a tip, this circumstance adds significant
support for a finding of reasonable suspicion. See
generally id.; United States v. Harris, 39 F.3d 1262 (4th Cir.
1994).
In Singh, a confidential informant had reported that a
tractor-trailer, bearing Canadian license plates and being
driven by two men of Indian descent, contained a large amount of
marijuana and had become disabled on a highway in Greensboro,
North Carolina. 363 F.3d at 350. After police initially could
not find the truck at the described location, the informant
provided more precise information. Id. When officers arrived
at the specified location, they observed the tractor-trailer
being towed. Id. at 351. The officers halted the towing
operation, and ultimately found marijuana in the disabled
tractor-trailer. Id. at 351-52. The district court granted the
8
defendants’ motion to suppress, holding that the seizure of the
defendants was not supported by a reasonable suspicion of
criminal activity. Id. at 353.
In reviewing this decision on appeal, we observed that
before stopping the tractor-trailer, the officers had verified
its location, the source of its license plates, and the
description of the vehicle’s occupants. Id. at 355. Based on
this record, we concluded that the district court erred in
holding that the officers lacked reasonable suspicion to execute
the vehicle stop. Id. at 355-56.
The present case is governed by our decision in Singh. As
in Singh, the officers here received a tip from a known
informant that a certain convicted felon driving a white Lincoln
Town Car could be found at a particular location with a gun in
his possession. This tip alone may have supported a finding of
reasonable suspicion. 1 See id. at 355. But the officers in the
present case also had corroborated some of the information
provided by the informant, namely, the presence of a white
Lincoln Town Car at the described location and verification that
Gardner was the owner of that vehicle. While the officers did
not confirm that Gardner was a convicted felon before initiating
1
We find no merit in Gardner’s argument that the informant,
his former girlfriend, was unreliable given their prior
relationship and the fact that police had paid her for providing
the tip in question.
9
the stop, every detail provided by a tipster need not be
independently verified to support a finding of reasonable
suspicion. See White, 496 U.S. at 331-32. Accordingly, we hold
that the district court did not err in concluding that the
traffic stop was supported by reasonable suspicion. 2
We also disagree with Gardner’s alternative argument that
the encounter matured into a de facto arrest, requiring that
rights be given pursuant to Miranda v. Arizona, 384 U.S. 436
(1966), when the officers detained Gardner at the rear of his
vehicle. The Supreme Court has held that an individual is not
“in custody” for purposes of Miranda when an officer detains him
to ask “a moderate number of questions . . . to try to obtain
information confirming or dispelling the officer’s suspicions.”
Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984). In the
present case, the officers asked Gardner questions directly
related to their reasonable suspicion that he had a firearm in
2
We are not persuaded by Gardner’s reliance on the Fifth
Circuit’s decision in United States v. Roch, 5 F.3d 894 (5th
Cir. 1993). In the present case, the informant provided many of
the details that were lacking in Roch, such as the make and
model of the car, as well as the suspect’s full name. Moreover,
the Fifth Circuit relied heavily in its analysis on cases
regarding the need to corroborate information obtained from
anonymous informants. See id. at 898-99 (citing White, 496 U.S.
325). In contrast, the officers here relied on information
supplied by a known, reliable informant, which both this Court
and the Supreme Court have acknowledged may be sufficient, even
absent any corroboration, to support a finding of reasonable
suspicion. See Singh, 363 F.3d at 355; Adams v. Williams, 407
U.S. 143, 146-47 (1972).
10
his possession. The fact that Gardner did not feel free to
leave did not convert this brief period of questioning into the
functional equivalent of a “stationhouse interrogation” that
would require Miranda warnings. Id. at 438-39. We therefore
conclude that because Gardner’s interaction with the police
during the traffic stop did not evolve into a de facto arrest,
his statement concerning the gun was not obtained in violation
of his Fifth Amendment rights.
Gardner’s acknowledgement of the gun, together with the
informant’s tip and Gardner’s furtive behavior, provided the
officers probable cause to search Gardner’s car. We therefore
conclude that the officers lawfully searched Gardner’s
automobile. 3 See United States v. Kelly, 592 F.3d 586, 589-90
(4th Cir. 2010). Accordingly, we hold that the district court
3 The officers also could have searched Gardner’s automobile
lawfully based solely on their reasonable belief that Gardner
was dangerous and might “gain immediate control” of a firearm in
the passenger compartment of his car. See Michigan v. Long, 463
U.S. 1032, 1049 (1983). The informant’s tip, along with Adams’s
observation that Gardner reached down below his seat and
nervously looked in the direction of the car floor,
independently justified the search of the car. Under this
analysis, the validity of the search is not affected by
Gardner’s detention at the rear of the vehicle during the
traffic stop. See id. at 1051-52.
11
did not err in denying Gardner’s motion to suppress his
statements and the weapon found in his car. 4
B.
Gardner also challenges his designation as an armed career
criminal under the ACCA. He argues that his three predicate
convictions for North Carolina common law robbery do not qualify
as “violent felonies” because: (1) the definition of a violent
felony under the ACCA’s “residual clause” is unconstitutional;
and (2) his robbery convictions do not qualify as violent
felonies under the “force clause” of the ACCA. The government
counters that Gardner’s convictions categorically are violent
felonies under the force clause because North Carolina common
law robbery, which requires the taking of property by means of
“violence” or “fear,” necessarily involves the “use, attempted
use, or threatened use of physical force against the person of
another.” 18 U.S.C. § 924(e)(2)(B)(i). We disagree with the
government’s argument.
1.
Gardner preserved this issue in the district court and,
therefore, we review de novo the question whether his prior
state convictions qualified as “predicate felony conviction[s]
4 We likewise affirm the district court’s denial of
Gardner’s motion for a new trial, which was based on the same
argument that the district court improperly admitted illegally
obtained evidence.
12
for purposes of a federal sentence enhancement.” United States
v. Valdovinos, 760 F.3d 322, 325 (4th Cir. 2014). A “violent
felony” is defined under the ACCA as any crime “punishable by
imprisonment for a term exceeding one year” that either “has as
an element the use, attempted use, or threatened use of physical
force against the person of another” (the force clause), or “is
burglary, arson, or extortion, [or] involves use of explosives”
(the enumerated language), or “otherwise involves conduct that
presents a serious potential risk of physical injury to another”
(the residual clause). 18 U.S.C. § 924(e)(2)(B)(i), (ii).
Because the Supreme Court recently held in Johnson v. United
States, 135 S. Ct. 2551, 2557 (2015), that the language of the
residual clause is unconstitutional, North Carolina common law
robbery can qualify as a “violent felony” only if it matches the
definition of a violent felony under the force clause. 5
5
Contrary to the government’s suggestion, North Carolina
common law robbery does not categorically match the crime of
extortion listed in the enumerated language of 18 U.S.C. §
924(e)(2)(B)(ii). North Carolina common law robbery involves
the non-consensual taking of money or property from another,
while the generic crime of extortion is defined as “obtaining
something of value from another with his consent induced by the
wrongful use of force, fear, or threats.” Scheidler v. Nat’l
Org. for Women, Inc., 537 U.S. 393, 409 (2003) (citation
omitted); see also 18 U.S.C. § 1951(b)(2) (defining Hobbs Act
extortion). The element of consent “is the razor’s edge that
distinguishes extortion from robbery.” United States v. Zhou,
428 F.3d 361, 371 (2d Cir. 2005). Notably, both North Carolina
and the federal government have codified extortion as a crime
(Continued)
13
North Carolina common law robbery is the “felonious, non-
consensual taking of money or personal property from the person
or presence of another by means of violence or fear.” North
Carolina v. Smith, 292 S.E.2d 264, 270 (N.C. 1982). Typically,
when determining whether a previous conviction qualifies as a
violent felony under the ACCA, we apply the “categorical
approach,” considering only the conviction itself and the
elements of the offense, not the particular facts of the crime.
United States v. Baxter, 642 F.3d 475, 476 (4th Cir. 2011).
Only in a “narrow range of cases,” when a crime is
divisible, do we employ the “modified categorical approach,” in
which a court may consider a limited set of documents to
determine the basis of a defendant’s conviction. See Descamps
v. United States, 133 S. Ct. 2276, 2283-85 (2013). A crime is
divisible when it includes multiple “alternative elements” that
create different versions of the crime, at least one of which
would qualify under the federal definition and at least one of
which would not. See id.; Omargharib v. Holder, 775 F.3d 192,
197-98 (4th Cir. 2014).
A crime is not divisible simply because it may be
accomplished through alternative means, but only when
distinct from robbery. See N.C. Gen. Stat. § 14-118.4 (2015);
18 U.S.C. § 1951(b)(1), (2).
14
alternative elements create distinct crimes. Omargharib, 775
F.3d at 198. Alternative elements of a crime, as opposed to
alternative means of committing a crime, are “factual
circumstances of the offense that the jury must find unanimously
and beyond a reasonable doubt.” Id. (citation and internal
quotations omitted). Therefore, when determining the
divisibility of a crime, we may consider how “courts generally
instruct juries with respect to that offense.” See United
States v. Royal, 731 F.3d 333, 341 (4th Cir. 2013).
Under North Carolina’s pattern jury instructions, the final
element of common law robbery requires “that the taking was by
violence or by putting the person in fear.” N.C. Pattern
Instructions—Crim. 217.10. Thus, the jury need not agree
unanimously that the felonious taking was committed by the use
of violence or by instilling fear, only that one of the two
means was employed. Accordingly, North Carolina common law
robbery may be committed by the alternate means of violence or
fear that do not constitute different elements of distinct
crimes. The crime, therefore, is an indivisible offense, in
which the modified categorical approach “has no role to play.”
Descamps, 133 S. Ct. at 2285.
2.
We turn now to apply the categorical approach. To qualify
as a categorical match with the force clause, North Carolina
15
common law robbery necessarily must have as an element the “use,
attempted use, or threatened use of physical force against the
person of another.” 18 U.S.C. § 924(e)(2)(B)(i). “Physical
force” for purposes of the force clause does not include the
“slightest offensive touching” that might sustain a misdemeanor
battery conviction under some state laws. See Johnson v. United
States, 559 U.S. 133, 139 (2010). Instead, “physical force”
within the context of the ACCA means “violent force—that is,
force capable of causing physical pain or injury to another
person.” Id. at 140 (emphasis in original).
In determining whether North Carolina common law robbery
necessarily requires the use, attempted use, or threatened use
of “physical force,” within the meaning of the ACCA, we focus on
“the minimum conduct necessary for a violation” under state law.
Castillo v. Holder, 776 F.3d 262, 267 (4th Cir. 2015). Such
minimum culpable conduct includes any conduct to which there is
a “realistic probability, not a theoretical possibility,” that a
state would apply the law. Moncrieffe v. Holder, 133 S. Ct.
1678, 1684-85 (2013) (citation omitted). When considering a
North Carolina common law crime, our analysis of minimum
culpable conduct is informed by decisions of the Supreme Court
of North Carolina, while decisions of North Carolina’s
intermediate appellate court “constitute the next best indicia
16
of what state law is.” See Castillo, 776 F.3d at 268 & n.3
(citation omitted).
As we noted above, North Carolina common law robbery may be
committed by the alternative means of violence or fear.
Accordingly, if either means of committing this crime does not
require the “use, attempted use, or threatened use” of “physical
force,” then North Carolina common law robbery does not
categorically match the force clause of the ACCA. See
Omargharib, 775 F.3d at 197. We first address North Carolina
common law robbery by means of “violence.”
With respect to the commission of robbery by means of
“violence,” the Supreme Court of North Carolina has explained:
“Although actual force implies personal violence, the degree of
force used is immaterial, so long as it is sufficient to compel
the victim to part with his property.” State v. Sawyer, 29
S.E.2d 34, 37 (N.C. 1944). This definition, therefore, suggests
that even de minimis contact can constitute the “violence”
necessary for a common law robbery conviction under North
Carolina law.
Later decisions by North Carolina’s intermediate appellate
court support the conclusion that even minimal contact may be
sufficient to sustain a robbery conviction if the victim
forfeits his or her property in response. For example, the
North Carolina Court of Appeals has held that a defendant’s act
17
of pushing the victim’s hand off of a carton of cigarettes was
sufficient “actual force” to uphold a common law robbery
conviction. See State v. Chance, 662 S.E.2d 405, at *3-4 (N.C.
Ct. App. June 17, 2008) (unpublished). Also, the Court of
Appeals upheld a conviction when a defendant pushed the shoulder
of an electronics store clerk, causing her to fall onto shelves
while the defendant took possession of a television. State v.
Eldridge, 677 S.E.2d 14 (N.C. Ct. App. June 2, 2009)
(unpublished).
Based on these decisions from North Carolina’s appellate
courts, we conclude that the minimum conduct necessary to
sustain a conviction for North Carolina common law robbery does
not necessarily include the use, attempted use, or threatened
use of “force capable of causing physical pain or injury to
another person,” as required by the force clause of the ACCA.
Johnson, 559 U.S. at 140. Therefore, we hold that North
Carolina common law robbery does not qualify categorically as a
“violent felony” under the ACCA. 6
Our analysis is not altered by decisions of this Court
interpreting the crime of robbery in other jurisdictions. See
6Because we conclude that North Carolina common law robbery
committed by means of “violence” does not require the use,
attempted use, or threatened use of “physical force,” within the
meaning of the ACCA, we need not consider whether robbery
committed by means of “fear” otherwise would require the use,
attempted use, or threatened use of “physical force.”
18
United States v. Presley, 52 F.3d 64, 69 (4th Cir. 1995)
(concluding that Virginia common law robbery, which requires the
taking of property “by violence or intimidation,” is a violent
felony under the force clause); United States v. Wilson, 951
F.2d 586, 588 (4th Cir. 1991) (explaining that Maryland common
law robbery is a “crime of violence” under the force clause of
the career offender guidelines). The decisions in Presley and
Wilson do not inform our decision today, because they pre-date
the Supreme Court’s decision in Moncrieffe, and do not evaluate
the minimum conduct to which there is a realistic probability
that a state would apply the law.
Moreover, the definitions of common law robbery in Maryland
and Virginia have little or no relevance to North Carolina
appellate courts’ interpretation of North Carolina law. As this
Court recently has explained, “a State is entitled to define its
crimes as it sees fit.” 7 United States v. McNeal, -- F.3d --,
2016 WL 1178823, at *10 (4th Cir. Mar. 28, 2016). And North
Carolina has defined common law robbery to encompass cases
involving the use of minimal force, which does not satisfy the
condition of “violent force” required by federal law for
application of the ACCA enhancement. Accordingly, we hold that
7Likewise, this Court’s decision in McNeal does not impact
our decision, because that case addressed the federal crime of
armed bank robbery.
19
the district court erred in applying the ACCA enhancement based
on Gardner’s convictions for North Carolina common law robbery,
and we vacate Gardner’s sentence and remand the case for re-
sentencing. 8
III.
For these reasons, we affirm Gardner’s conviction. We
vacate Gardner’s sentence based on the district court’s
erroneous application of the ACCA enhancement and remand for re-
sentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
8 Because we vacate Gardner’s sentence, we do not address
his other arguments challenging his sentence.
20