United States v. Ballard

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 3, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 05-5156
v. (N.D. Oklahoma)
TUXA TILTON BALLARD, (D.C. No. 04-CR-210-C)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK, Circuit
Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Tuxa Tilton Ballard was convicted, following a jury trial, of possession of a
firearm and ammunition while having prior felony convictions, in violation of 18
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
U.S.C. §§ 922(g)(1) and 924(e). He was sentenced to 240 months’ imprisonment,
followed by five years of supervised release, and assessed a fine of $5000 and a
special assessment of $100. He appeals his conviction and sentence. For the
reasons set forth below, we affirm.
BACKGROUND
On October 3, 2004, at approximately 10:30 p.m., Tulsa police officer Gene
Hogan was investigating an armed robbery on 62nd Street, east of Peoria Avenue,
when he heard a gunshot to his west. Shortly afterwards, according to Officer
Hogan’s later testimony, he “heard tires squealing” and saw a green Jeep turning
from Peoria eastbound onto 62nd Street, away from the direction of the gunshot,
and the Jeep then passed him “at an extremely high rate of speed.” Tr. of Mot. to
Suppress Hr’g at 7, R. Vol. III. According to Officer Hogan, the Jeep was
traveling “between 55 and 60 miles an hour” in a residential area, where the speed
limit was 25 miles per hour. Id. at 8.
Officer Hogan then pursued the Jeep, followed by Officer Adam Ashley in
a separate vehicle. The Jeep failed to stop at a stop sign and turned south onto a
dead end street, and Officer Hogan activated his emergency lights. The Jeep then
turned around to face the oncoming police car, leaving its headlights shining into
the police car and leaving its engine running. Officer Hogan stopped and
-2-
reported his location but could not read the Jeep’s license plate because of its
headlights. He then yelled to the driver, who was later identified as Ballard, to
turn the headlights off, but Ballard did not respond.
Officer Hogan testified that he did not want to approach the Jeep directly
for safety reasons. He therefore told Officer Ashley, who had pulled up beside
him, to cover him while Officer Hogan went through neighboring yards to
approach the Jeep from behind. Officer Ashley did so with his gun drawn. As
Officer Hogan approached the Jeep, with his gun also drawn, he saw that the rear
wing window on the driver’s side was broken. Officer Hogan testified that, based
on his training and experience, broken windows “can . . . be an indication that the
vehicle is stolen.” Id. at 11. Officer Hogan also observed on his approach to the
Jeep that Ballard had put his hands “up in a raised position.” Id. at 14. The
officer testified that in his experience it was uncommon for a driver to put his
hands up without being commanded, and that this made him think that Ballard
“maybe . . . had had some prior . . . contact with officers.” Id. at 15.
Officer Hogan then spoke to Ballard, asking him “why he was in such a
hurry.” Id. at 13. According to Officer Hogan’s testimony, Ballard responded
that he “was going to a friend’s apartment.” Id. Ballard further stated that the
Jeep belonged to “a friend.” Id. The officer testified that Ballard’s answers to
-3-
these questions were “slow in coming, delayed,” and made him suspect that
Ballard was “maybe under the influence of drugs or intoxicants.” Id. at 14.
Meanwhile, Officer Hogan had radioed in the license plate number on the
Jeep. Dispatch reported back that the license belonged to a 1985 Jeep and that
there was no report of its being stolen. However, Officer Hogan testified that,
based on his familiarity with his own 1988 Jeep, older Jeeps were “a lot more
square” whereas this Jeep was “more round.” Id. at 12-13. He was therefore
“certain that was not an ’85 Jeep,” id. at 13, and wanted to read the VIN number
on the Jeep’s dashboard in order to check whether the vehicle was stolen.
Based on his safety concerns in looking for the VIN number while Ballard
sat in the vehicle, Officer Hogan asked Officer Ashley to get Ballard out of the
Jeep. Officer Ashley testified that he asked Ballard to step out of the Jeep, and
Ballard did so. Officer Ashley then asked Ballard if he had any weapons and if
he “could pat him down for weapons.” Id. at 58. According to Officer Ashley,
Ballard said that he did not have any weapons and responded “no problem” to the
pat-down. Id. While performing the pat-down, Officer Ashley “felt a weapon” in
Ballard’s waistband. Id. at 59. The officer then “pinned [Ballard] up against the
vehicle and yelled ‘gun’” in order to alert Officer Hogan and other officers who
were then present. Id. As two officers started running towards them, Ballard
“started bucking . . . trying to fight” and continued fighting as they fell to the
-4-
ground, until three officers were able “to get handcuffs on him” and place him
under arrest. Id. at 59-60. The weapon was identified as a six-shot revolver and
contained five rounds of ammunition.
Ballard was indicted on December 9, 2004, on a charge of having violated
18 U.S.C. §§ 922(g)(1) and 924(e), based on his possession of a firearm and
ammunition after having been convicted of a number of felonies. He moved to
suppress the evidence of the gun and ammunition, alleging that the pat-down
search had been in violation of the Fourth Amendment. The district court denied
the motion. A jury trial was then held, and Ballard was convicted on April 18,
2005.
The United States Probation Office then prepared a presentence report
(“PSR”), discussing factors relevant to sentencing and sentencing options. The
PSR indicated that Ballard qualified as an Armed Career Criminal under 18
U.S.C. § 924(e) and therefore was subject to a fifteen-year statutory minimum
term of imprisonment. The PSR based this assessment on its conclusion that
Ballard had at least three prior “violent felony” convictions, based on two prior
convictions for escape from a penal institution, and two prior second-degree
burglary convictions. PSR ¶ 22, R. Vol. II.
Ballard filed two objections to the PSR. He first argued that the court’s
acceptance of its recommendation that he be sentenced as an Armed Career
-5-
Criminal would violate the Sixth Amendment, as interpreted by the Supreme
Court in Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v.
Booker, 543 U.S. 220 (2005). He also argued that his two prior convictions for
escape from a penal institution did not constitute “violent felon[ies]” for purposes
of § 924(e) and that he therefore did not qualify as an Armed Career Criminal.
The district court rejected both of these objections and, based on the factors
set forth in 18 U.S.C. § 3553(a), sentenced Ballard to 240 months’ imprisonment,
as indicated above. Ballard appeals, arguing that the district court erred in
denying his motion to suppress and in rejecting his two objections to the PSR.
DISCUSSION
I. Motion to Suppress
“When reviewing the district court’s denial of a motion to suppress, we
view the evidence in the light most favorable to the government and accept the
district court’s factual findings unless they are clearly erroneous.” United States
v. Grimmett, 439 F.3d 1263, 1268 (10th Cir. 2006). “The ultimate question of
reasonableness under the Fourth Amendment is a legal conclusion that we review
de novo.” Id. In the context of traffic stops, we determine reasonableness using
the framework set forth in Terry v. Ohio, 392 U.S. 1 (1968), “asking first
‘whether the officer’s action was justified at its inception,’ and second ‘whether it
-6-
was reasonably related in scope to the circumstances which justified the
interference in the first place.’” United States v. Bradford, 423 F.3d 1149, 1156
(10th Cir. 2005) (quoting Terry, 392 U.S. at 20).
Here, Ballard does not contest the reasonableness of the initial stop.
However, he argues, as he did below, that Officer Ashley’s pat-down search was
not justified. We disagree.
During the course of a traffic stop, police may “perform a ‘patdown’ of a
driver . . . upon reasonable suspicion that the[] [driver] may be armed and
dangerous.” Knowles v. Iowa, 525 U.S. 113, 118 (1998); see also United States
v. Dennison, 410 F.3d 1203, 1211 (10th Cir. 2005). “[R]easonableness is
measured in objective terms by examining the totality of the circumstances.”
United States v. Holt, 264 F.3d 1215, 1220 (10th Cir. 2001) (en banc) (internal
quotation omitted). There must exist “specific articulable facts” to support the
officer’s reasonable suspicion. United States v. Williams, 403 F.3d 1203, 1206
(10th Cir. 2005).
The district court held that the following facts justified Officer Ashley’s
patdown search in this case:
(1) [Ballard] pulled over facing the police car; (2) he put his hands in
the air . . . without being directed to do so; (3) he failed to follow
instructions; (4) he appeared to be under the influence of drugs; and
finally (5) he [had been] speeding through a residential
neighborhood, moving away from a location from whence the
officers had just moments earlier heard a gunshot.
-7-
Order at 5, R. Vol. I, doc. 30. Ballard argues that these facts do not support a
reasonable suspicion that he was armed and dangerous. He suggests that pulling
around to face the officers was natural based on the cul-de-sac nature of the road,
and that raising his hands in the air was a normal response to the officers’ having
drawn their guns. We have stated, however, that “[a] law enforcement officer
may rely upon his training and experience [to identify suspicious actions] without
inquiring of a defendant as to innocent explanations.” Williams, 403 F.3d at
1207.
Based on our de novo review, we conclude Officer Ashley had reasonable
suspicion to perform the patdown search. As the district court found, Ballard not
only left the headlights of the Jeep on but also left the engine running. The fact
that he stopped at all does not, as Ballard contends, strongly suggest his
willingness to comply with the officers’ instructions, given that he had turned into
a dead end street. The totality of the circumstances here, including these facts,
together with the gunshot, Ballard’s speeding away from the direction where the
shot was heard, and failing to comply with the officers’ orders to turn off his
headlights, were sufficient to raise a reasonable suspicion that Ballard might be
armed and dangerous. We therefore affirm the district court’s denial of Ballard’s
motion to suppress.
-8-
II. PSR Objections
The issues Ballard raises in regard to his sentence under the Armed Career
Criminal Act, 18 U.S.C. § 924(e), are legal issues subject to de novo review.
United States v. Dowell, 430 F.3d 1100, 1109 (10th Cir. 2005) (Sixth Amendment
issue); United States v. King, 422 F.3d 1055, 1057 (10th Cir. 2005) (issue
regarding qualification of “violent felony” under Armed Career Criminal Act).
However, as Ballard concedes, our review of these issues cannot result in a
resolution in his favor because both issues have already been decided to the
contrary in this circuit. See United States v. Brothers, 438 F.3d 1068, 1074 (10th
Cir. 2006) (“We cannot overturn [our] prior decisions barring en banc
reconsideration, a superseding contrary Supreme Court decision, or authorization
of all currently active judges on the court.” (internal quotation omitted)).
Specifically, Ballard’s argument that his prior convictions for escape from
a penal institution do not qualify as “violent felon[ies]” for purposes of the Act
was resolved to the contrary in United States v. Moudy, 132 F.3d 618, 620 (10th
Cir. 1998) (holding that the rationale “for holding escape to be a [violent felony]
appl[ies] to all escapes, whether or not violence was actually involved”).
Similarly, Ballard’s argument that the district court’s application of the Armed
Career Criminal Act to his sentence violates the Sixth Amendment and Apprendi
was resolved to the contrary in United States v. Moore, 401 F.3d 1220, 1225 (10th
-9-
Cir. 2005) (holding that “[b]ecause determining whether a given felony
constitutes a ‘violent felony’ is a question of law and not fact, the Sixth
Amendment does not require that determination to be made by a jury”). As
Ballard states that he raises these arguments here only for the purpose of
preserving them for further appeal, we need not address them further, and we
affirm the district court’s rejection of these objections.
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
-10-