United States v. Marcus Hill

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4889
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCUS HILL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:09-cr-00446-WDQ-1)
Argued: March 23, 2012 Decided: April 19, 2012
Before DAVIS and DIAZ, Circuit Judges, and Jackson L. KISER,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Davis wrote the opinion,
in which Judge Diaz and Senior Judge Kiser joined.
ARGUED: Meghan Suzanne Skelton, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. Tonya Nicole
Kelly, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public
Defender, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Christopher M. Mason,
Special Assistant United States Attorney, Alee Pagnotti, Second
Year Law Student, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DAVIS, Circuit Judge:
Appellant Marcus Hill was charged in a single count
indictment with possessing a firearm after having been convicted
of a felony, in violation of 18 U.S.C. § 922(g)(1). Hill filed a
motion to suppress the firearm (and other evidence) based on the
Fourth Amendment. After a hearing, the district court denied
the motion to suppress. Hill proceeded to trial, at the
conclusion of which the district court denied his Rule 29 motion
for judgment of acquittal, which was based on his contention
that the government adduced insufficient evidence of his knowing
possession of the firearm. The jury returned a guilty verdict on
the single charge. At sentencing, over Hill’s objection, the
district court applied the Armed Career Criminal Act, 18 U.S.C.
§ 924(e) (ACCA), and imposed a mandatory minimum sentence of 180
months of imprisonment. Hill filed this timely appeal.
Before us, Hill contends the district court erred in (1)
denying the motion to suppress; (2) denying the motion for
judgment of acquittal; and (3) applying the ACCA. For the
following reasons, we affirm.
I.
A.
On January 13, 2009, around 3:00 a.m., Hill drove in his
silver Buick Park Avenue, which he had owned for two to three
3
months, to pick up his girlfriend, Nekia Bennett, who had ended
her shift as an employee of a contract firm that transported
detainees and inmates for the Baltimore County Police
Department. 1 As required by her job, Bennett carried a handgun,
which that morning was holstered on her left side.
When Hill arrived to pick up Bennett, she was in a
transport vehicle with a male co-worker with whom Hill had
previously argued. When Bennett entered Hill’s car, she noticed
he was upset. He told her that the disagreement with her male
co-worker was getting out of control and that the co-worker had
been threatening him. The argument escalated. Hill yelled,
punched the steering wheel, and pushed Bennett’s shoulder to get
her to look at him. At one point Hill put Bennett’s hand on the
pocket of his sweatpants and she felt a hard object. Hill
stated, “You see how they got me out here?” J.A. 97. Based on
this statement, Bennett believed the object in Hill’s pocket was
a gun.
Bennett was exhausted, having just finished her night
shift, and had had only six hours of sleep in the preceding
1
We set forth the facts in the light most favorable to the
government’s view of the case as the government prevailed both
on the motion to suppress, United States v. Hernandez–Mendez,
626 F.3d 203, 206 (4th Cir. 2010), cert. denied, 131 S.Ct. 1833(2011), as well as at trial, United States v. Herder, 594 F.3d
352, 358 (4th Cir.), cert. denied, 130 S.Ct. 3440 (2010).
4
thirty hours. Hill had never been violent, had never hit her,
and had never been abusive in any way; still, Bennett wanted to
avoid arguing with him, and so she asked him to stop at a 7-
Eleven, apparently intending to make small purchases.
As the Buick pulled up to the 7-Eleven, Hill and Bennett
observed a marked police car in the parking lot. As Bennett
turned to get out of the car, Hill grabbed her wrist and said,
“Don’t play with me.” J.A. 102. Once inside the 7-Eleven,
Bennett walked past two police officers, Sergeant Byron Conaway
and Sergeant Amado Alvarez, standing at the cashier’s counter.
Conaway and Alvarez were twelve-year veterans of the Baltimore
Police Department (“BPD”). They had finished their shift for the
night and had stopped at the 7-Eleven for refreshments. As
Bennett walked past the officers, Conaway noticed that Bennett
had a handgun holstered on her left hip and alerted Alvarez. The
officers concluded (erroneously) that Bennett was a state
correctional officer based on the uniform pants she was wearing,
and paid no further attention to her at that time.
Bennett picked up an item and, just two minutes after
entering the store, took the item to the cashier, near where the
officers were standing, to Bennett’s left. While paying for her
item, Bennett asked the cashier for a pen. She took a receipt,
turned it over, and wrote the word “Help” on the back. She slid
the receipt down the counter to Conaway and then, without saying
5
a word to the officers, exited the store. The officers did not
stop her or ask her any questions. Bennett later testified that
she passed the note to the officers “because of the situation
[she] was in . . . with Mr. Hill,” J.A. 105, explaining, “I just
wanted the situation that we was going through to be resolved.”
J.A. 106.
Conaway showed the note to Alvarez. Believing Bennett was
in “distress” and possibly in a situation “a little bit more
than what she could handle,” J.A. 163, 213, they followed
Bennett out to the parking lot, where she had already reentered
Hill’s car on the front passenger side. Conaway drew his weapon
as he exited the store, even before seeing anyone in the vehicle
with Bennett. Knowing that Bennett was armed and that the gun
she was carrying was on her left side - which would be the side
closer to the driver, Hill - the officers approached the front
of the car. With guns drawn, and standing just a few feet from
the sides of the car, they ordered Hill and Bennett to show
their hands and exit the vehicle. Conaway testified that he took
these actions immediately without first investigating in some
other manner because he did not understand why Bennett needed
help. “I couldn’t understand why she would need help, being as
though she was an armed person, so that kind of sparked my
interest a bit.” J.A. 212.
6
Hill did not immediately comply with the order to show his
hands. Conaway testified that he saw Hill reach to his right
side, next to the center console and near where Bennett’s gun
was holstered; Alvarez testified that he saw Hill reach toward
his waist. Neither officer saw Hill with a weapon. Conaway and
Alvarez continued to order Bennett and Hill to show their hands.
Bennett complied and exited the vehicle, but Hill did not.
Conaway then fired his weapon twice; one shot missed and the
other hit Hill in the abdomen. Hill collapsed over the passenger
seat. Conaway testified that less than twenty seconds elapsed
between when he exited the 7-Eleven and when he fired his
weapon.
Having just been shot, Hill showed his hands. Alvarez
pulled Hill from the car, laid him on the ground, handcuffed
him, and patted him down. He found no weapon, only Hill’s
paycheck stub. Alvarez also did a preliminary search of the
interior of the car, including the floor and the seats (although
without a flashlight), and found nothing. Alvarez and Conaway
called for back-up and for medics. Hill was transported by
ambulance to the hospital, under police guard.
Detectives assigned to the BPD Homicide Unit arrived and
took control of the scene, as is standard procedure in all
shootings involving police. The detectives began investigating
the circumstances that led Conaway to shoot Hill; at that point,
7
they had no information suggesting or indicating that Hill had
committed any crime or possessed any weapons or contraband.
Bennett was transported to BPD headquarters. She was
ordered to surrender her purse, her keys, her work-issued
firearm, and other personal effects to the police. She was
frazzled, crying, and traumatized by what had happened to Hill.
After waiting some time, she was interviewed by two BPD
detectives: Juan Diaz and Michael Moran. They asked her many
questions about firearms, but she had never seen Hill with a
gun, neither that night nor on any other occasion. After
questioning her for about an hour, the detectives turned on a
tape recorder and took a recorded statement. In that statement,
she told them about the argument she and Hill had had in the
car, and why she wanted to get out of the car. She said that
Hill “pulled my wrist and . . . patted his sweatpants, it was
like . . . don’t play with me. You know I don’t like the
police.” J.A. 547. Although by that point the police knew Hill
was unarmed when he was removed from the car, Bennett explained
that when Hill had had her pat his pocket, she felt an object
she thought might have been a gun.
By that point Hill’s car had been towed to the BPD crime
lab evidence bay. Diaz prepared an application for a warrant
authorizing a search of Hill’s vehicle. In four separate places
the application and warrant stated that the purpose of the
8
warrant was to seek evidence of a suspected murder. The
application stated that the police “have reason to believe” that
“there are now being concealed certain property, namely,
weapons, ammunitions, papers, or any item pertaining to the
crime of murder.” J.A. 28. The application states in a separate
place that the crime under investigation is “first degree
murder” and cites the Maryland Annotated Code section for first-
degree murder. Id. The warrant itself, which Diaz also filled
out, stated that the police were authorized to search for
evidence relating to the crime of first-degree murder. Diaz
later conceded that the police never believed they were
investigating a murder. He testified the references to homicide
were the result of an “honest mistake.” J.A. 315.
Notwithstanding the erroneous mentions of murder, the body
of the affidavit attached to the warrant application set forth a
substantially accurate narrative of the night’s events. Diaz
attested that the police had shot Hill in front of the 7-Eleven
after they had been “approached by a female asking them for
help.” J.A. 31. The affidavit states that the female left the
store and got into the passenger seat of a car in which Hill,
the registered owner, was sitting in the driver’s seat. Officers
then gave “verbal commands to both occupants [to] show[] their
hands and to please exited [sic] the vehicle.” Id. Diaz further
affirmed, “Marcus Hill refused to show his hands and exit the
9
vehicle. Subsequently, in fear for their safety, Marcus Hill was
shot while inside the vehicle.” Id. Diaz also wrote, “In
furtherance investigation [sic] after interviewing the witness,
investigators learned that moments before the shooting, the
female received an assault by threat with a possible gun by
Marcus Hill.” Id. Diaz presented the warrant application to a
judge of the District Court of Maryland for Baltimore City who
issued the warrant.
During the subsequent search of the car, officers found and
seized registration papers confirming that Hill was the owner of
the vehicle. Two utility bills and various financial documents
in Hill’s name were also in the car. Finally, they found a
Taurus PT-22 .22-caliber semi-automatic pistol inside a black
stocking behind the front passenger seat, wedged between the
seat and the floor. The officers removed the gun from the
stocking and found that it was entirely covered in rust. None of
the officers present were able to render the firearm safe
because of the extent of the rust. When they were eventually
able to extract the magazine, officers found that the magazine
and all of the cartridges were also covered in rust. At trial,
Special Agent Daniel Kerwin of the Bureau of Alcohol, Tobacco,
Firearms and Explosives explained that although the gun was
inoperable, it still met the definition of a firearm as that
term is defined in 18 U.S.C. § 921(a)(3).
10
B.
On August 13, 2009, Hill was indicted on one count under 18
U.S.C. § 922(g)(1) in the District of Maryland for possessing
the Taurus PT-22 firearm after having previously been convicted
of a felony. Hill moved to suppress the gun (and the other items
seized from the Buick) on the ground that the state search
warrant was invalid because the affidavit offered in support of
the warrant application did not provide probable cause, for
three reasons. First, he argued the affidavit, which was based
entirely on statements from the “female” [Bennett] who asserted
that she had “received an assault threat by possible gun by
Marcus Hill,” lacked evidence of the informant’s “veracity” or
the basis of her knowledge, and therefore lacked probable cause.
Second, he argued the false references to the crime of
murder in the affidavit rendered the warrant invalid. In the
section of the warrant describing the property to be seized, it
states “weapons, ammunition, papers of any item [sic] pertaining
to the crime of murder.” J.A. 29, 38, and yet “no evidence was
presented to the issuing Judge concerning a murder.” J.A. 17.
Thus, he argued, the warrant was insufficiently particularized,
and the search of Hill’s car was beyond the scope of the
warrant.
Third, and alternatively, Hill argued the warrant was
invalid under Franks v. Delaware, 438 U.S. 154 (1978), because
11
in the affidavit Diaz omitted the fact that Bennett’s stated
belief that Hill had a gun in his pocket had turned out to be
false (at least as of the time when Hill was removed from the
car). Including this information, Hill argued, would have
“diminished the probability that evidence of a crime was located
in the car.” J.A. 40.
Neither Hill’s motion nor his reply to the government’s
opposition argued that the officers’ actions in the 7-Eleven
parking lot constituted an unlawful seizure or otherwise
violated his Fourth Amendment rights.
In opposition to the motion, the government argued the
warrant was valid because Hill had threatened Bennett when he
“was possibly in possession of a handgun.” J.A. 23. The warrant
was necessary, the government argued, to “ascertain if Hill
possessed a gun as Bennett indic[a]ted, which would, in and of
itself, be a violation of Maryland law,” and also to “assist in
the determination of whether Hill should be prosecuted for an
assault on Bennett.” Id. While acknowledging the references to
the crime of murder were false, the government argued those
references did not invalidate the warrant for two reasons: (1)
“only the place to be searched and the persons or things to be
seized must be stated with particularity” and “any efforts to
expand this requirement to include other warrant provisions
ha[ve] been rejected,” J.A. 24 (citing United States v. Grubbs,
12
547 U.S. 90 (2006)); and (2) “the reference to murder was
nothing more than an ‘honest mistake,’” and therefore does not
require invalidation of the warrant, id. (citing United States
v. Owens, 848 F.2d 462, 463-64 (4th Cir. 1988)). Finally, the
government argued that even if the affidavit lacked probable
cause, the good faith exception to the exclusionary rule
applied.
On May 17, 2010, the first day of trial, the district court
held a hearing on Hill’s motion to suppress (in addition to
other motions not relevant to this appeal). Defense counsel
reiterated Hill’s arguments, noting that Hill’s argument “first
and foremost” was that the warrant affidavit failed to establish
probable cause. J.A. 57. Ultimately, the district judge denied
the motion from the bench, “[f]or reasons that will be explained
in a memorandum to be issued” at a later date. J.A. 67. On May
20, 2010, the court filed a Memorandum Opinion setting forth the
reasons for its denial of Hill’s motion to suppress. United
States v. Hill, 2010 WL 2038995 (D. Md. May 20, 2010).
The district court explained that the affidavit supporting
the warrant application established the following facts:
(1) a woman had requested help from two officers in a
7-Eleven store; (2) she had left the 7-Eleven and got
into a 2000 silver Buick parked in front of the store;
(3) Hill, the registered owner, was in the driver's
seat of that car; (4) Hill had threatened to assault
the woman with what she thought was a gun; (5) Hill
refused to comply with the officers' request that he
13
show his hands and leave the vehicle; and (6) Hill was
shot inside the car.
Id. at *2. Based on these facts, the district court concluded
the warrant was supported by probable cause. Id. The court also
concluded the references to “murder” did not invalidate the
warrant because “[n]either the Fourth Amendment nor Maryland law
requires the warrant to identify the alleged crime,” and the
Fourth Amendment “‘allow[s] some latitude for honest mistakes’
made in connection with warrants.” Id. (quoting Owens, 848 F.2d
at 464). “Because there was probable cause,” the court
concluded, “the warrant’s reference to ‘first degree murder’ was
[a] harmless error” by Detective Diaz. Id.The parties proceeded to trial, during which they
stipulated that Hill was prohibited from possessing a handgun
because of a prior felony conviction. At the close of the
government’s case and again at the close of all the evidence,
Hill moved for judgment of acquittal pursuant to Rule 29 of the
Federal Rules of Criminal Procedure, arguing the evidence
presented was insufficient to sustain a finding beyond a
reasonable doubt that Hill exercised knowing constructive
possession of the firearm seized from the Buick. J.A. 426, 444-
45. The district court denied both motions. On May 19, 2010, the
jury convicted Hill of the sole count with which he was charged.
14
C.
On August 9, 2010, the parties appeared for sentencing. A
probation officer had prepared a presentence report (PSR), which
detailed Hill’s criminal history, including the following state
court convictions:
(1) March 10, 2000: possession with intent to
distribute a controlled substance / possession of
a handgun;
(2) July 25, 2001: possession with intent to
distribute a controlled substance;
(3) April 17, 2007: distribution of a controlled
substance and possession with intent to
distribute a controlled substance (Alford plea)
J.A. 758-59.
As for the April 2007 conviction, the one Hill argues is
not an ACCA predicate, the indictment filed in state court
alleges, in pertinent part, that the defendant “did distribute a
certain Controlled Dangerous Substance of Schedule # II, to wit:
cocaine, which is a narcotic drug, . . . in violation of
Criminal Law Article, Section 5-602 . . . .” J.A. 698. A
conviction for distribution of cocaine carries a maximum penalty
of 20 years under Maryland law. Therefore, the PSR determined
that the 2007 conviction was (like the other two convictions
listed above) a “serious drug offense” as defined in 18 U.S.C. §
924(e)(2)(A). At the time Hill was arrested for the instant
offense, he was on probation for the 2007 convictions. The PSR
15
calculated Hill’s advisory guidelines range to be 210-262
months’ imprisonment. In support of the ACCA predicates, the
government provided certified copies of the state court
judgments of conviction related to Hill’s three prior ACCA
qualifying convictions, along with the docket entries and
charging documents for each.
Hill contested the ACCA determination. First, he argued the
Maryland possession-with-intent-to-distribute statute is not
categorically a serious drug offense, and that the government’s
documentation was insufficient to prove that Hill’s convictions
were actually ACCA predicates. Second, he argued (anticipating
our later decision in United States v. Alston, 611 F.3d 219(2010)) that because his April 2007 conviction was the result of
an Alford plea, it could not be considered an ACCA predicate
offense.
The court rejected Hill’s arguments and sentenced him to
the 180-month mandatory minimum, followed by five years of
supervised release. Hill filed a timely notice of appeal.
II.
On appeal, Hill argues the district court erred in denying
his motion to suppress, in denying his motion for a judgment of
acquittal, and in sentencing him as an armed career criminal. We
consider these issues in turn.
16
A.
1.
As noted above, in the course of the suppression hearing in
the district court, Hill argued the gun (and the other evidence
seized from the Buick) should be suppressed because the warrant
was invalid, for three reasons: (1) the affidavit in support of
the warrant application did not provide evidence of the
informant’s veracity or the basis of her knowledge, thereby
vitiating probable cause; (2) the warrant application falsely
stated that the purpose of the warrant was to investigate a
murder; and/or (3) the affidavit did not mention that Bennett
had believed Hill had a gun in his pocket, a belief that later
was proven wrong, and that omission rendered the warrant
invalid. In his written motion to suppress, he also argued:
4. Because the investigation of this case is
incomplete, Mr. Hill reserves the right to move for
suppression of evidence based on grounds not now
discernible such as, but not limited to, rights under
Franks v. Delaware, 438 U.S. 154 (1978). Mr. Hill also
reserves the right to supplement this Motion in the
future.
5. Any additional searches and seizures that occurred
in this matter, warrantless or otherwise, are also
illegal and in violation of the Fourth Amendment.
J.A. 17.
On appeal, Hill has shifted gears. He advances the
following contentions before us: (1) the warrant was facially
invalid based on the references to murder; and (2) the gun (and
17
other evidence) should have been suppressed because the officers
unlawfully seized Hill, i.e., without reasonable suspicion or
probable cause, (a) when they pointed their guns at him; and/or
(b) when they shot him, in either case thereby poisoning the
later-obtained warrant. There is a serious question, however,
whether Hill preserved his challenge to the admissibility of the
evidence obtained from the car as to these latter grounds.
Specifically, the issue presented is whether his arguments in
the district court were adequate to preserve the arguments based
on an alleged unconstitutional seizure (“seizure arguments”).
If the arguments were preserved, we review legal
determinations de novo and factual findings for clear error.
United States v. Kellam, 568 F.3d 125, 132 (4th Cir. 2009). As
to the arguments involving the existence or lack thereof of
reasonable suspicion, we review “determinations of historical
facts” for clear error; the “ultimate” question of whether there
was reasonable suspicion is reviewed de novo. Ornelas v. United
States, 517 U.S. 690, 691, 696-97 (1996). If the arguments were
not preserved, we review for plain error. Fed. R. Crim. P.
52(b).
Hill contends he preserved his seizure arguments based on
four theories:
First, he argues the arguments were preserved because he
satisfied Federal Rule of Criminal Procedure 51(b). See
18
Appellant’s Reply Br. at 2. Rule 51(b) provides that a party may
“preserve a claim of error” by informing the court of either
“the action the party wishes the court to take” or “the party’s
objection to the court’s action and the grounds for that
objection.” Hill argues that because the first option --
informing the court of the action the party wishes the court to
take (suppress the evidence) -- does not require a statement of
specific grounds, and because he moved to suppress the gun, he
preserved the argument that the gun should have been suppressed
based on Hill’s allegedly unlawful seizure in the parking lot.
Second, Hill argues he preserved the argument because his
motion to suppress the gun ended with the following: “Any
additional searches and seizures that occurred in this matter,
warrantless or otherwise, are also illegal and in violation of
the Fourth Amendment.” J.A. 17. Hill cites no cases specifically
addressing whether a catch-all, boilerplate argument like this
one is sufficiently specific to preserve a particular argument
in support of a motion to suppress.
Third, he argues he preserved his seizure arguments when he
separately moved to suppress any “statements, admissions, or
confessions” that may have been obtained unlawfully, although at
the time of the motion Hill’s counsel was not aware of any
statements Hill had made. The motion also stated, “Any
statements, admissions, or confessions were also the fruit of
19
Mr. Hill’s illegal arrest and in violation of the Fourth
Amendment of the United States Constitution.” 2
Fourth, in reliance on Yee v. City of Escondido, 503 U.S.
519 (1992), 3
2
Indeed, the district court denied the motion seeking
suppression of certain statements Hill made. See 2010 WL
2038995, at *2. He does not challenge that ruling on appeal.
3
In Yee, mobile park owners sued a municipality in state
court alleging that a local rent control ordinance constituted
an unconstitutional taking. 503 U.S. at 525. Their theory was
that the ordinance constituted a physical occupation of their
property, although portions of their complaint and briefing
could have been read “to argue a regulatory taking.” Id. at 534.
In the Supreme Court, for the first time they argued that the
ordinance constituted a regulatory taking. Id. The Court held
the argument had not been forfeited because the park owners had
“unquestionably raised a taking claim in the state courts.” Id.The Court explained:
Once a federal claim is properly presented, a party
can make any argument in support of that claim;
parties are not limited to the precise arguments they
made below. Petitioners’ arguments that the ordinance
constitutes a taking in two different ways, by
physical occupation and by regulation, are not
separate claims. They are rather, separate arguments
in support of a single claim – that the ordinance
effects an unconstitutional taking. Having raised a
taking claim in the state courts, therefore,
petitioners could have formulated any argument they
like in support of that claim here.
Id. at 534 (emphases in original).
Hill apparently argues Yee means he properly preserved the
unlawful-seizure arguments because his request that the court
suppress the gun was a “claim,” and therefore the arguments he
made in support of that “claim” do not limit the arguments he
can raise on appeal.
20
and Illinois v. Gates, 462 U.S. 213, 219-220 (1983), 4 Hill
contends that “[a]ny differences between what trial counsel
urged orally at the motions hearing and the arguments in this
appeal are simply ones of reasoning, not of claims”; because the
“claim” is the same, the arguments are preserved. Id. at 3-4. He
cites these cases for the proposition that a different “legal
argument on appeal” does not render the argument unpreserved, so
long as “the claim was still the same.” Appellant’s Reply Br. at
4
In the seminal Gates opinion, a case on certiorari from
the Illinois state courts, the Court considered whether to
address an issue (namely, whether to fashion a good-faith
exception to the exclusionary rule) that had not been addressed
by the state courts. The Court declined to address the question
because of the Court’s practice of not addressing issues “not
pressed or passed upon below” in state court. 462 U.S. at 219-
20. It is true, as Hill notes, that the Court observed the
following:
[I]f the question were only an enlargement of the one
mentioned in the assignment of errors, or if it were
so connected with it in substance as to form but
another ground or reason for alleging the invalidity
of the [lower court’s] judgment, we should have no
hesitation in holding the assignment sufficient to
permit the question to be now raised and argued.
Parties are not confined here to the same arguments
which were advanced in the courts below upon a Federal
question there discussed.
Id. at 20 (quoting Dewey v. Des Moines, 173 U.S. 193, 197-198
(1899)). Of course, Justice White’s concurring opinion in Gates,
462 U.S. at 246, in which he fully developed the good faith
exception to the exclusionary rule, essentially became the
opinion for the Court in the term following Gates. See United
States v. Leon, 468 U.S. 897 (1984).
21
3-4 (citing Yee, 503 U.S. at 534, and Gates, 462 U.S. at 219-
20).
2.
We are not persuaded by any of Hill’s preservation
theories. We agree with the government that Hill failed to
preserve his seizure arguments because he did not raise them as
distinct grounds in support of his motion to suppress. See
United States v. Ellis, 326 F.3d 593, 599-600 (4th Cir.
2003)(“Ellis first claims that the district court erred in
denying his motions to suppress, arguing that the initial stop
by the FBI agents was invalid because these federal agents
lacked authority to stop him for violating a state traffic law.
In the district court, however, Ellis did not assert the FBI
agents’ lack of authority as a basis for suppression; rather, he
argued that the stop was primarily motivated by the agents’
desire to investigate him for narcotics activity. Thus, we
review Ellis’ claims regarding the scope of the agents’
authority for plain error.”). See also United States v. White,
584 F.3d 935 (10th Cir. 2009), cert. denied, ––– U.S. ––––, 130
S. Ct. 1721 (2010):
Rule 12(b)(3)(C) of the Federal Rules of Criminal
Procedure requires that a party raise a motion to
suppress before trial. A party who fails to do so
“waives any Rule 12(b)(3) defense, objection, or
request,” although “[f]or good cause, the court may
grant relief from the waiver.” Fed. R. Crim. P. 12(e).
This waiver rule applies not only when a defendant
22
fails to file any pretrial motion to suppress, but
also when a defendant fails to assert a particular
argument in a pretrial suppression motion that he did
file . . . . To avoid waiving a particular argument,
the party must make “sufficiently definite, specific,
detailed and nonconjectural factual allegations
supporting his suppression claim” in his pretrial
motion.
Id. at 948-49 (citations omitted) 5; United States v. Lockett, 406
F.3d 207, 212 (3d Cir. 2005) (“Therefore, in the context of a
motion to suppress, a defendant must have advanced substantially
the same theories of suppression in the district court as he or
she seeks to rely upon in this Court.”); United States v.
Schwartz, 535 F.2d 160, 163 (2d Cir. 1976) (“The Government very
properly points out that the failure to assert a particular
ground in a pre-trial suppression motion operates as a waiver of
the right to challenge the subsequent admission of evidence on
that ground.”), cert. denied, 430 U.S. 906 (1977); and see
United States v. Chandia, 514 F.3d 365, 375 (4th Cir. 2008) (“In
his motion to suppress filed in district court, Chandia did not
expressly request a Franks hearing. Therefore, we review for
plain error the issue of whether the district court should have
held such a hearing. See Fed. R. Crim. P. 52(b); United States
v. Olano, 507 U.S. 725, 731–32 (1993).”). Moreover, whereas
5
We note that, as contemplated by Rule 12, the district
court “granted Hill’s motion for leave to amend, supplement,
withdraw, or file additional motions.” See 2010 WL 2038995, at
*1, n.1.
23
Federal Rule of Criminal Procedure 51 governs the preservation
of most claimed errors in criminal cases, Federal Rule of
Evidence 103(a) governs objections to the admission or
suppression of evidence. Rule 103(a) expressly requires that, to
preserve a claim of error in the admission of evidence, the
party must “state[] the specific ground, unless it was apparent
from the context.” Fed. R. Evid. 103(a)(1)(B).
Thus, we are constrained to apply plain error review to
Hill’s argument that he was unlawfully seized in the 7-Eleven
parking lot, and that the gun (and the other evidence seized
from his car) constituted the fruit of that unlawful seizure
that should have been suppressed.
We grant relief on the basis of plain error to an appellant
such as Hill only when he establishes: (1) there was an error;
(2) the error is plain; (3) the error affects substantial
rights; and (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. United
States v. Wilkinson, 137 F.3d 214, 223 (4th Cir. 1998) (quoting
Olano, 507 U.S. at 732). An error is “plain” if it is “‘clear’
or, equivalently, ‘obvious.’” Olano, 507 U.S. at 734. As to the
validity of the warrant, the argument based on the affiant’s
“honest mistake” was preserved, so we would review the legal
determinations related to that question de novo and any factual
findings for clear error.
24
B.
1.
Hill argues the district court erred in admitting the gun
(and other evidence seized from the car) because the officers
unlawfully seized Hill when they pointed guns at him and when
they shot him; both seizures constituted arrests, not Terry
detentions; and in neither event was the seizure supported by
probable cause. Alternatively, he argues that even if the first
seizure (the officers’ drawing weapons accompanied by orders to
exit the vehicle) was a Terry detention, the officers lacked
reasonable suspicion. Further, he argues, the illegality of one
or both of those seizures “poisoned” the search warrant, and the
good faith exception does not apply.
The first question is whether, at the moment the officers
exited the 7-Eleven and drew their guns on Hill and Bennett,
Hill was under de facto arrest, or subject merely to a lesser
detention in the nature of an investigatory stop. This is a
potentially dispositive issue, because if the seizure amounted
to an arrest of Hill, then it was most assuredly unlawful; the
government concedes, and we agree, there was not probable cause
at that time to believe Hill had committed a crime.
Whether a person is under arrest or merely subjected to a
temporary detention depends on whether “the suspect’s freedom of
action is curtailed to a degree associated with formal arrest.”
25
United States v. Elston, 479 F.3d 314, 319 (4th Cir. 2007)
(quoting Park v. Shiflett, 250 F.3d 843, 850 (4th Cir. 2001)).
This is a two-part inquiry, one pertaining to time and the other
to scope. First, the seizure must have “last[ed] no longer than
necessary to verify or dispel the officer’s suspicion.” United
States v. Leshuk, 65 F.3d 1105, 1109 (4th Cir. 1995) (citing
Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion),
and United States v. Sinclair, 983 F.2d 598, 602 (4th Cir.
1993)). Second, the actions of the officers must have been
“necessary to protect their safety, maintain the status quo, and
confirm or dispel their suspicions.” Id. at 1110.
A person is not necessarily under arrest even if a
“reasonable person would have felt free to leave in the
circumstances of his initial detention.” Elston, 479 F.3d at
319. “A brief but complete restriction of liberty [can be] valid
under Terry.” Leshuk, 65 F.3d at 1109. “Terry stops customarily
involve detentions where the person detained is not technically
free to leave while the officer pursues the investigation.” Id.(internal quotation marks omitted). “[W]e have concluded that
drawing weapons, handcuffing a suspect, placing a suspect in a
patrol car for questioning, or using or threatening to use force
does not necessarily elevate a lawful stop into a custodial
arrest for Miranda purposes.” Id. at 1109-10.
26
Hill argues the parking lot encounter was a full-blown
arrest because “[a] reasonable person in Hill’s position in the
early morning of January 13, 2009, would not have believed that
he was free to leave or terminate the encounter when, seated in
a parked car, Conaway and Alvarez pulled their weapons and
pointed them at him.” Appellant’s Br. at 17. The seizure quickly
escalated to the level of an arrest, he argues, because of “the
nature of the police intrusion and the level of restraint on
Hill’s freedom.” Id. at 18. Furthermore, in reliance on United
States v. Mendenhall, 446 U.S. 544 (1980), he argues “the
threatening stance of the police, combined with the weapons
pointed at a seated man,” along with the facts that Conaway was
“yelling demands and orders” and that Hill “made no attempt to
flee,” establish that the seizure was an arrest, not an
investigatory stop. Appellant’s Br. at 19. We reject Hill’s
contention.
As a legal matter, Hill’s argument confuses the standard
for a “seizure” and an “arrest.” Most importantly, Mendenhall is
inapposite, because it addressed when an officer’s encounter
with a person rises to the level of a Terry stop, requiring
reasonable suspicion -- not when a Terry stop rises to the level
of an arrest. The government does not dispute that Hill was
seized from the moment the officers drew their weapons, which
required at least reasonable suspicion; the question is whether
27
the seizure was an arrest or a Terry stop. As to that question,
the standard is that discussed in Elston and Leshuk.
As a factual matter, our review is hampered by the fact
that Hill did not argue before the district court that (1) he
was under arrest at the time and (2) the arrest was unlawful.
Because he did not make these arguments, we have no factual
findings on which to decide either of these questions. We know
that less than twenty seconds elapsed between the moment when
Conaway exited the 7-Eleven and when he fired his weapon,
because Conaway testified to that timing apparently without
contradiction. And we have the surveillance video from the 7-
Eleven, which shows the officers exiting the store and drawing
their weapons, although there is no footage of the car itself.
But the district court was never asked to determine, for
example, how much time (or what reasonable technique) was
reasonably “necessary to verify or dispel the officer’s
suspicion” that Hill was armed or otherwise a threat, to Bennett
or to themselves. See Leshuk, 65 F.3d at 1109.
In the absence of such findings by the district court, the
question is thus: Is it “clear” or “obvious” from the record
before us, see Olano, 507 U.S. at 734, that Hill was under
arrest from the moment the officers drew their weapons? We think
not. For the reasons described above, drawing of weapons does
not necessarily convert a Terry detention into an arrest. The
28
entire encounter was less than 20 seconds. In the absence of a
further factual basis in the record, it is impossible for us to
say that it is clear or obvious that Hill was under arrest at
that time.
Thus, we have no hesitation in concluding that, on this
record, the officers’ initial seizure of Hill is properly
regarded as a Terry detention. The question then becomes whether
it is “clear” or “obvious” (in the absence of factual findings
by the district court) that, at the time the officers drew their
weapons, they lacked reasonable suspicion to believe Hill was
involved in criminal activity.
The Fourth Amendment’s requirement of reasonableness is
satisfied and a Terry detention is justified if the officer’s
action is supported by a reasonable articulable suspicion that a
person is engaged in, poised to commit, or has committed, a
criminal act. United States v. Hensley, 469 U.S. 221, 227 (1985)
(stating that a Terry detention is allowed “when the officer has
reasonable, articulable suspicion that the person has been, is,
or is about to be engaged in criminal activity”)(citation
omitted); United States v. Sokolow, 490 U.S. 1, 7 (1989); United
States v. Cortez, 449 U.S. 411, 417 (1981). This requires more
than an “inchoate and unparticularized suspicion or ‘hunch.’”
Terry v. Ohio, 392 U.S. 1, 27 (1968). The question of reasonable
suspicion is determined based on the information the officer(s)
29
had at the time. United States v. McCoy, 513 F.3d 405, 412 (4th
Cir. 2008).
The government argues Hill’s detention was supported by
reasonable suspicion because at the time the officers knew the
following: “a young female had passed them a note that read
‘help;’ that female was armed with a firearm that was holstered
on her left side; that female had just gotten into the car with
a man who was seated to her left, well within reach of the
firearm; and that . . . female - even though she was armed -
needed police intervention, and could not ask for such
intervention in a way that the male driver could see.” Gov’t Br.
at 25 (citing J.A. 160, 163-64). Furthermore, the government
argues, once the officers were near the car, they were justified
in continuing to point their guns at Hill because although “the
female immediately complied” with the commands to show their
hands, Hill did not. J.A. 161, 165.
Hill argues these facts did not rise to the level of
reasonable suspicion because they did not give the police
“reason to believe that Hill himself was involved in criminal
wrongdoing.” Appellant’s Br. at 22. “[W]hile these circumstances
might be odd,” says Hill, they only would have justified
“talking to the woman and investigating why the woman thought
she needed help.” Id. He points to Conaway’s testimony, in which
Conaway stated that he pulled his gun and began shouting orders
30
because “I couldn’t understand why she would need help, being as
though she was an armed person, so that kind of, you know,
sparked my interest a little bit.” J.A. 212 (emphasis added). He
explained, “I figured it was –- it might have been something a
little bit more than what she could handle at that point.” J.A.
213. Because this information was not “specifically about the
driver,” Hill argues, it does not constitute specific
articulable facts that Hill was involved in criminal activity.
Appellant’s Br. at 23.
Hill, however, did not make this argument in the district
court and so the district court made no factual findings as to
the existence of reasonable suspicion at the time the officers
drew their weapons. We are hard pressed to find that it is
“obvious” from the record that the officers lacked reasonable
suspicion. Again, there is no surveillance video of Hill’s
actions inside the car. All we can see (and there is no audio
accompanying the surveillance video) is one of the officers
(presumably Conaway) walk to the car with his hand on the gun in
its holster, un-holster the gun as he approached the car, and
then point the gun at the driver as the officer neared the car.
The officer then is in an aggressive posture, appears nervous,
and clearly is yelling. At some point he discharges his weapon,
twice. Especially because we cannot see Hill’s actions inside
the car, it is impossible to say that it was “clear” from the
31
record that the officers were not justified in drawing their
weapons.
If the initial seizure was supported by reasonable
suspicion, as we are left to conclude, the question becomes
whether the officers were justified in shooting Hill. The
parties do not dispute that at the time Hill was shot he was
effectively under arrest. See Gov’t Br. at 27. Thus, the
shooting -- and consequent seizure -- was lawful only if the
officers had probable cause that Hill had committed or was
committing an offense, and if the manner in which the arrest was
carried out was reasonable.
The Fourth Amendment’s requirement that a particular
seizure be reasonable “depends not only on when it is made, but
also on how it is carried out.” Graham v. Connor, 490 U.S. 386,
395 (citing Tennessee v. Garner, 471 U.S. 1, 7-8 (1985)). In the
context of an arrest (as opposed to an investigatory detention),
the reasonableness of “when” an arrest is made depends on
whether, under the totality of the circumstances, there were
“facts and circumstances within the officer’s knowledge [which]
would warrant the belief of a prudent person that the arrestee
had committed or was committing an offense.” United States v.
Manbeck, 744 F.2d 360, 376 (4th Cir. 1984). As to the
reasonableness of “how” an arrest is carried out, courts
“balance the nature and quality of the intrusion on the
32
individual’s Fourth Amendment interests against the importance
of the governmental interests alleged to justify the intrusion.”
Garner, 471 U.S. at 8.
To determine whether the means by which a particular arrest
was effected were reasonable, the Supreme Court has instructed
us to pay “careful attention to the facts and circumstances of
each particular case, including [1] the severity of the crime at
issue, [2] whether the suspect poses an immediate threat to the
safety of the officers or others, and [3] whether he is actively
resisting arrest or attempting to evade arrest by flight.”
Graham, 490 U.S. at 396. “Where the suspect poses no immediate
threat to the officer and no threat to others,” officers may not
use deadly force to apprehend the suspect. Garner, 471 U.S. at
11. But “[w]here the officer has probable cause to believe that
the suspect poses a threat of serious physical harm, either to
the officer or to others, it is not constitutionally
unreasonable to prevent escape by using deadly force.” Id.; see
also Culosi v. Bullock, 596 F.3d 195, 201 (4th Cir. 2010)
(stating the standard as whether there was “sound reason to
believe that a suspect poses a threat of serious physical harm
to the officer or others”). In any case, however, the
reasonableness of a particular use of force “must be judged from
the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Graham, 490 U.S. at
33
396. “The calculus of reasonableness must embody allowance for
the fact that police officers are often forced to make split-
second judgments -- in circumstances that are tense, uncertain,
and rapidly evolving -- about the amount of force that is
necessary in a particular situation.” Id.
Again, the argument that Hill was unlawfully seized when
Conaway shot him is raised for the first time on appeal, and
thus we are constrained to review for plain error. Moreover,
there is little in the record from which to make our own
determination of whether, for example, Hill “pose[d] an
immediate threat to the safety of the officer or others.”
The government argues there was probable cause to believe
Hill posed a threat of serious physical harm to the officers
because the officers knew the following:
a female had just passed him a note that read “help;”
that same female was armed with a firearm that was
holstered on her left side; that female had just
gotten into the car where the sole occupant was a man
who was seated to her left, well within reach of the
firearm; the female - even though she was armed -
needed police intervention, and could not ask for such
intervention in a way that the male driver could see;
the male driver repeatedly refused the officers’
commands to show his hands and exit the vehicle; and
the male continually reached to the floor of the
vehicle and to his right - the direction of the
female’s gun - even after being told to exit the
vehicle.
Gov’t Br. at 30-31. Moreover, the government argues, even
assuming “Conaway was mistaken in his belief that Hill posed a
34
threat, his mistake was undoubtedly a reasonable one under the
circumstances.” Id. at 31. Therefore, the government argues,
Conaway was justified in shooting Hill.
Hill argues that when we weigh the three factors enumerated
in Graham -- the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers
or others, and whether the suspect was actively resisting arrest
or attempting to evade arrest by flight -- it is apparent the
officers “did not have an objectively reasonable ground to shoot
Hill.” Appellant’s Br. at 25. As to the severity of the crime,
he argues it weighs in his favor because at no point did the
officers suspect Hill of having committed a crime; other than
knowing that Bennett had written “help” on the receipt and
herself carried a gun, all their information came from their
observations of Hill inside the car. As to the third factor, he
argues, Hill was not actively resisting arrest or attempting to
flee.
The reasonableness of the officers’ actions thus comes down
to whether Hill’s movements inside the car rendered reasonable
the officers’ belief that Hill posed an imminent threat to them,
justifying the use of deadly force. The government argues the
officers were justified in interpreting Hill’s movements as
evidence that he was reaching for a gun. Hill argues that belief
was unreasonable because “the movement of a suspect’s hands,
35
without more, while he is under arrest is insufficient to give
rise to an objectively reasonable basis for the police to use
deadly force.” Appellant’s Br. at 26. Only if “the police had
seen him with a gun, or had reliable and specific information
that he was known to be armed,” might this have been a
“significant factor,” he argues. Id. He also points out that the
officers’ descriptions of Hill’s precise movements were
inconsistent, and that it was Bennett, not Hill, whom the
officers knew was armed.
Here again, our problem is the absence of adequate
information to find that it was “obvious” that Hill did not pose
an imminent threat of serious physical harm to the officers. Had
Hill raised these issues in the district court, the risk of non-
persuasion on these issues would have been cast upon the
government to justify a warrantless seizure. See, e.g., United
States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000); United
States v. Burke, 605 F. Supp. 2d 688, 693-94 (D. Md. 2009). But
under the plain error standard we apply here, Hill must shoulder
the burden to prove the contrary. Without findings by the
district court on these and related issues, and particularly
inasmuch as the surveillance video does not show Hill’s
36
movements in the car, we may not plausibly notice plain error on
this record and we decline to do so. 6
2.
Finally, Hill has argued he is entitled to suppression of
the gun because of the false references to murder in the warrant
application. Even his arguments related to this point have
shifted, however. In his original motion to suppress, he argued
that the warrant was limited to searching for evidence of a
murder, and there never was a murder; therefore, any search of
the car was beyond the scope of the search warrant. He does not
press that argument on appeal. And while Hill argued below that
the warrant was invalid under Franks, he does not raise a Franks
argument on appeal.
The argument on appeal concerning the references to murder
relates to the potential applicability of the good-faith
exception to the exclusionary rule to justify denial of the
6
The government also argues that even if the shooting was
unlawful, a free-standing good-faith exception should apply,
because, in summary, excluding the evidence seized from the
Buick would not serve as a deterrent against the unreasonable
use of deadly force by BPD officers. We note that we have
applied the exclusionary rule where the nature and character of
a seizure, under the totality of the circumstances, militated in
favor of its application. See United States v. Edwards, 666 F.3d
877, 886-87 (4th Cir. 2011); but see id. at 891-92 (Diaz, J.,
dissenting). In the view we take of this case, we need not and
do not consider whether the exclusionary rule is applicable
here.
37
motion to suppress the items, including the firearm, seized from
the Buick. In other words, Hill argues that, assuming the stop
and/or arrest in the parking lot violated the Fourth Amendment,
the government cannot rely on the good-faith exception because
Leon expressly does not apply when the warrant-issuing judicial
officer was “misled by information in an affidavit that the
affiant knew was false or would have known was false except for
his reckless disregard of the truth.” Leon, 468 U.S. at 923
(citing Franks).
This argument is not without some force. Diaz knew the
warrant was not being sought to search the car in the course of
an investigation of a murder; it was to search the car for a gun
that was suspected to be (but in fact was not) in the pocket of
the driver, who had just been shot by a police officer. To the
extent deadly force was used, it was by the police, not by Hill.
Moreover, notwithstanding the outcome below, it would not
necessarily have been irrational for a judge taking evidence in
a hearing on a motion to suppress in this case to have found
that these were not “honest mistakes” that excuse their falsity,
as the government argues. 7 Even if Diaz copied and pasted
7
As mentioned previously, Hill did not request a Franks
hearing, but under our precedent, he may well have been entitled
to one. See United States v. Tate, 524 F.3d 449, 457 (4th Cir.
2008)(holding that defendant was entitled to a Franks hearing
where the warrant-issuing judge was not told that some of the
(Continued)
38
sections of the warrant application from other applications,
those errors -- repeated four times in the same application –
could be found to be material as well as other than “objectively
reasonable.” 8
Nonetheless, because we decline to notice plain error with
respect to the seizure arguments, we need not and do not reach
the applicability of the good-faith exception to the “murder
warrant.” And because that aspect of Hill’s challenge to the
warrant is the only one he has raised on appeal, we do not reach
the other questions raised below with respect to the warrant.
Accordingly, we discern no reversible error in the district
court’s denial of the motion to suppress.
C.
Hill next argues there was insufficient evidence for the
jury to find beyond a reasonable doubt that Hill knowingly (if
constructively) possessed the firearm that was found in his car.
We review the district court’s ruling on a motion for judgment
evidence included in affidavit on which the judge relied in
issuing a warrant might have been obtained in an
unconstitutional manner).
8
Notwithstanding the narrative set out in the body of the
affidavit, it takes no imagination to believe a judge reviewing
the affidavit in this case might easily conclude, erroneously,
that she was being asked to issue a warrant authorizing a search
for a murder weapon, and that Hill was the “person of interest”
in that murder.
39
of acquittal de novo and will uphold the verdict if, viewing the
evidence in the light most favorable to the government, it is
supported by substantial evidence. United States v. Alerre, 430
F.3d 681, 693 (4th Cir. 2005). Substantial evidence is “evidence
that a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant's guilt beyond
a reasonable doubt.” Id. (internal quotation marks omitted).
At trial the government sought to prove Hill exercised, or
had the power to exercise, dominion and control over the
firearm, and thereby constructively possessed it. See United
States v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1985). Hill
argues the government failed to prove constructive possession
because his two to three month ownership of the car was
insufficient to support an inference that he had knowing and
intentional control over all the personalty in the vehicle and
because there was no evidence of a “link between Hill and the
firearm – some physical evidence, statement, or conduct that
could establish that Hill had a ‘stake’ in the contraband.”
Appellant’s Br. at 37 (citing United States v. Daley, 107 Fed.
App'x. 334, 337 (4th Cir. 2004)). Moreover, he argues,
the gun could be described as a “paperweight” at best,
given its thoroughly rusted and unusable condition.
The gun was not lying in the open, but was inside a
tied, black stocking. How long that firearm had been
sitting around is anybody’s guess, and Hill owned the
vehicle for a matter of months. The back seat of the
vehicle was full of stuff and the only witness who had
40
seen the vehicle before that night testified that many
people had access to the car. The inference that Hill
knew the firearm was there was simply not a reasonable
inference.
Appellant’s Br. at 37-38 (citations to record omitted). 9
The problem with Hill’s argument is that the jury concluded
otherwise, and there was substantial evidence to support its
conclusion. As the government explains and the record read in
the light most favorable to the government shows:
Hill was the driver of the vehicle and the firearm was
found directly behind the front passenger seat near
the center console, which, according to Detective
Moran was within the reach of one’s right hand when
sitting in the driver’s seat. Moreover, both officers
saw Hill reaching toward the exact area that the
firearm was located.
There are several other undisputed facts that indicate
Hill was in constructive possession of the firearm.
First, he was the registered owner of the car and had
been since June 2008. Second, two BGE bills and other
financial documents in Hill’s name were located in . .
. either the glove compartment or the center console
of the vehicle. Third, Bennett testified that she had
never seen anyone else drive the car.
Gov’t Br. at 43-44 (citations to record omitted). 10
9
Hill’s citation to Daley, an unpublished case, is
unavailing, because the defendant there was a mere passenger of
a car he did not own and had never been in before. Hill, in
contrast, owned the vehicle and was the driver.
10
The government also cites the fact that Bennett believed
Hill had a gun in his pocket, but that is irrelevant to the
sufficiency of the evidence of constructive possession. At trial
the government never argued that the gun actually was in Hill’s
pocket when he put Bennett’s hand there, but once she went into
the 7-Eleven he proceeded to take the gun out of his pocket, put
(Continued)
41
Having carefully reviewed the record, we think it is too
much of a stretch to argue the jury could not reasonably
conclude from the evidence that Hill constructively possessed
the gun. The question of whether Hill knew the gun was in the
car and exercised dominion and control over it would have
depended largely on inferences arising from the credibility of
witnesses. Hill does not challenge the jury instructions, and
Hill argued in closing argument that he did not constructively
possess the weapon. The issues were for the jury, and the
district court did not err in denying the motion for judgment of
acquittal. United States v. Foster, 507 F.3d 233, 245 (4th Cir.
2007) (“A defendant challenging the sufficiency of the evidence
faces a heavy burden.”).
D.
Finally, we turn to the sentencing issue. As stated above,
Hill challenges the district court’s reliance on his April 17,
2007, conviction, pursuant to an Alford plea, to distribution of
a controlled substance and possession with intent to distribute
a controlled substance. Under the ACCA, if a person convicted
under 18 U.S.C. § 922(g)(1) has three previous convictions “for
it in a stocking, and wedge it under the seat. Rather, the
government’s theory was that even though the gun was in the
stocking behind the front passenger seat, Hill exercised
dominion and control over it.
42
a violent felony or a serious drug offense,” the mandatory
minimum term of imprisonment is fifteen years. 18 U.S.C. §
924(e)(1). If a prior drug conviction was under state law, it
qualifies as a “serious drug offense” if two elements are
satisfied: (1) the offense “involve[ed] manufacturing,
distributing, or possessing with intent to manufacture or
distribute” and (2) the maximum term of imprisonment for the
offense was ten years or more. Id. § 924(e)(2)(A)(ii).
Hill was charged under Md. Code Ann. Crim. Law § 5-602,
which makes it unlawful to “distribute or dispense a controlled
dangerous substance” or to “possess a controlled dangerous
substance in sufficient quantity reasonably to indicate under
all circumstances an intent to distribute or dispense a
controlled dangerous substance.” The penalty for a violation of
§ 5-602 depends on the substance distributed or possessed with
intent to distribute. A violation of § 5-602 “with respect to a
Schedule I or Schedule II narcotic drug” is subject to a term of
imprisonment “not exceeding 20 years.” Id. § 5-608(a). A
violation of § 5-602 involving certain other controlled
substances carries only a five-year maximum term of
imprisonment. Id. § 5-607(a). Because the maximum penalty for a
violation of Maryland’s drug distribution statute depends on the
drug distributed, the parties agree the modified categorical
approach applies to determine whether Hill’s conviction (1)
43
“involve[ed] manufacturing, distributing, or possessing with
intent to manufacture or distribute” and (2) was subject to a
maximum term of imprisonment of ten years or more.
At sentencing the government provided certified copies of
the indictment charging Hill with distribution of a controlled
substance. The indictment alleged in Count One, the count to
which Hill tendered his Alford plea, that Hill “did distribute a
certain Controlled Dangerous Substance of Schedule # II, to wit:
cocaine, which is a narcotic drug, . . . in violation of
Criminal Law Article, Section 5-602. . . .” J.A. 698. Count Two
charged possession with intent to distribute cocaine; Count
Three charged simple possession of cocaine. The government also
provided a certified copy of the hand-written docket entry,
which noted that Hill pled guilty to Count One. The district
court found that these documents satisfied Shepard and
established that the 2007 conviction was for distribution of
cocaine, thereby satisfying the two elements of a serious drug
offense for ACCA purposes.
Hill does not dispute the fact of his conviction, the
contents of the indictment, or the fact that the maximum penalty
for the charged offense was 20 years. He also does not dispute
that he pled guilty (albeit pursuant to an Alford plea) to Count
One of the operative indictment, the distribution count.
Finally, he has not argued that the government’s compilation of
44
documents from the state court fail to comprise “Shepard-
approved documents” as we have employed that term in our case
law.
Rather, in reliance on United States v. Alston, 611 F.3d
219 (2010), Hill argues the 2007 conviction is not an ACCA
predicate because his guilty plea in that case was an Alford
plea, and so he did not “confirm the factual basis for the
plea.” Appellant’s Br. at 41. In Alston, the defendant had
previously been charged under a Maryland statute that was not
categorically an ACCA predicate, and entered an Alford plea to
the charge. Although during the plea colloquy the state
prosecutor had proffered evidence that Alston pointed a gun at
three victims and threatened to kill them, we held the
sentencing court could not rely on the prosecutor’s proffer
because the defendant’s Alford plea did not “necessarily rest on
facts establishing his participation in a type of assault that
qualifies as a violent felony,” and “such facts are not inherent
in a Maryland conviction for second-degree assault.” 611 F.3d at
221. Thus, the transcript of the plea colloquy -- the only
relevant Shepard-approved document provided in that case -- was
insufficient to support a finding that the defendant pled guilty
to an ACCA predicate offense. Id. at 221.
Here, unlike in Alston, the government did not rely on the
plea colloquy to “narrow[] the charge to a crime that amounts to
45
a predicate offense.” Id. at 226. Rather, the government relied
solely on the indictment and the April 17, 2007, certified
docket entry identifying the count to which Hill pled guilty.
The indictment and docket sheet are both Shepard-approved
documents, as Hill concedes. See Shepard v. United States, 544
U.S. 13, 20-21 (2005). Therefore, the problem in Alston -- that
the Alford plea did not conclusively determine that the
defendant pled guilty to an ACCA predicate -- is not present
here. Rather, the plea establishes the fact of conviction; the
Shepard-approved documents establish the “nature” of the
offense. Therefore, Hill’s circumstances are materially
distinguishable from Alston’s.
Moreover, in United States v. Washington, 629 F.3d 403,
(4th Cir. 2011), the defendant had previously been convicted
under the same statute as the one here: Md. Code Ann. Crim. Law
§ 5-602. As here, the count of the charging document to which
Washington had pled guilty charged him with possession with
intent to distribute a controlled substance, and specified the
alleged substance: “to wit: Cocaine.” J.A. 698; Washington, 629
F.3d at 414. This statement in the charging document in
Washington, combined with other court records confirming the
count to which the defendant had pled guilty, was sufficient to
support the district court’s finding (by a preponderance) that
Washington had “faced a twenty-year maximum sentence that
46
rendered his later plea an ACCA predicate.” 629 F.3d at 414.
Although the guilty plea in Washington was not an Alford plea,
that distinction is not material, for the reasons stated above.
Here, Hill pled guilty, and the determination of which count of
the underlying multi-count indictment he pled guilty to was
confirmed by court records other than the transcript of his plea
colloquy. See also United States v. Vinton, 631 F.3d 476, 486
(8th Cir. 2011) (holding that a conviction pursuant to an Alford
plea constituted a crime of violence for Sentencing Guidelines
purposes where the charging document tracked the language of
Missouri’s second-degree assault statute, because “[a] precisely
drawn charging document can indicate the basis for conviction
whether or not the conviction was accompanied by an admission of
guilt”). 11
11
There is one theory on which Hill might possibly succeed
on his sentencing contention. If Hill could make a plausible
argument that he pled guilty to a lesser-included offense in
Count One, such as mere possession (rather than distribution) of
cocaine, this case would be similar to United States v. Cruz,
2012 WL 836135 (4th Cir. March 14, 2012) (unpublished), which
Hill cites in his 28(j) letter.
In Cruz (which of course is non-precedential), the disputed
prior offense was a 2002 Oklahoma conviction for assault and
battery on a police officer. The criminal information alleged
that Cruz “knowingly commit[ted] an assault and battery upon the
person of one T.K. Talley[,] a police officer for the City of
Tulsa[,] by head butting and contending with him while he was
then and there engaged in the performance of his duties as a
police officer.” Id. at *1. Cruz pled nolo contendere to the
charge. Id. We held that the conviction was not an ACCA
(Continued)
47
III.
For the reasons set forth, the judgment is
AFFIRMED.
predicate because, for the plea to satisfy Shepard, Cruz would
have had to admit the facts charged in the indictment, which he
did not, because the plea was nolo contendere. In other words,
the court concluded that, even though the information charging
Cruz with assault and battery narrowed the charge, through its
factual description of the assault, to a crime that would amount
to a predicate offense, we were not permitted to “consider the
facts alleged in the state information . . . because Oklahoma
law does not posit that a defendant who enters a plea of nolo
contendere admits such facts.” Id. at *5. Put differently, the
assault and battery might well have occurred in some other
manner, and thus we were constrained to conclude that “it rested
on the least serious of the acts encompassed by Oklahoma’s
assault statute.” Id. at *6.
In the case at bar, however, the indictment included a
separate count for possession; thus, if Hill had intended to
plead guilty to possession (rather than distribution) of
cocaine, he would have pled guilty to Count Three, not Count
One. Count One of Hill’s 2007 indictment charged one and only
one offense, distribution of cocaine. Thus, the charging
document sufficiently narrowed the charge so that it became a
“serious drug offense” and solely a “serious drug offense” under
the ACCA.
Moreover, unlike the situation in Cruz, Hill’s indictment
was entirely devoid of factual allegations that, by virtue of
Hill’s Alford plea, he did not admit. In short, Hill pleaded
guilty to distribution of cocaine, a Schedule II narcotic, and
the indictment here provides us no more than the “bare fact of
conviction,” id. at *2, which, Alford plea or not, we may rely
on for purposes of applying ACCA enhancements.
48