United States v. Marvin Ford

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4474
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARVIN LEE FORD,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:11-cr-00174-1)
Submitted: December 11, 2012 Decided: December 19, 2012
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Lex A. Coleman, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. R. Booth
Goodwin II, United States Attorney, Hunter P. Smith, Jr.,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marvin Lee Ford was charged in a single-count
indictment with possession of a firearm as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2006). Ford moved to
suppress the firearm, arguing that it was seized during an
unlawful search of his person during a traffic stop, when the
officer conducted a pat-down under Terry v. Ohio, 392 U.S. 1(1968), not properly justified by reasonable suspicion. The
district court denied the suppression motion, adopting the Sixth
Circuit’s holding in United States v. Street, 614 F.3d 228 (6th
Cir. 2010), and alternatively holding that the officer’s conduct
was justified by a reasonable, articulable suspicion that Ford
was armed and dangerous. Ford subsequently was convicted by a
jury and, based in part on the application of the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e) (2006), received a
within-Guidelines sentence of 188 months’ imprisonment.
Ford timely appeals. On appeal, Ford challenges the
court’s denial of his motion to suppress the firearm, its
evidentiary rulings and jury instructions, the propriety of
prosecutorial statements made during closing argument, and the
sentence imposed by the district court. Finding no error, we
affirm.
Ford first argues that the district court erred in
denying his suppression motion, asserting that the district
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court misapplied Street and that the officer’s conduct qualified
as a Terry frisk unsupported by reasonable suspicion. In
reviewing the district court’s denial of a motion to suppress,
“[w]e review the district court’s legal determinations de novo
and its factual determinations for clear error[,] . . .
constru[ing] the evidence in the light most favorable to the
government.” United States v. Kelly, 592 F.3d 586, 589 (4th
Cir. 2010). A court’s reasonable suspicion determination is a
legal conclusion to be reviewed de novo and determined on a
case-by-case basis under the totality of the circumstances.
United States v. Powell, 666 F.3d 180, 186-87 (4th Cir. 2011).
As this court has recently reaffirmed, “before an
officer ‘places a hand on the person of a citizen in search of
anything, he must have constitutionally adequate, reasonable
grounds for doing so.’” Id. at 185 (quoting Sibron v. New York,
392 U.S. 40, 64 (1968)). Under Terry, an officer may conduct a
protective frisk of a driver or passenger if he “harbor[s]
reasonable suspicion that the person subjected to the frisk is
armed and dangerous.” Arizona v. Johnson, 555 U.S. 323, 327
(2009). “The officer need not be absolutely certain that the
individual is armed; the issue is whether a reasonably prudent
man in the circumstances would be warranted in the belief that
his safety or that of others was in danger.” Terry, 392 U.S. at
27. Reasonable suspicion “is not readily, or even usefully,
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reduced to a neat set of legal rules, but, rather, entails
common sense, nontechnical conceptions that deal with factual
and practical considerations of everyday life.” United
States v. Mason, 628 F.3d 123, 128 (4th Cir. 2010) (internal
quotation marks omitted), cert. denied, 132 S. Ct. 329 (2011).
Ford asserts that the district court misconstrued
Street and misapplied it to the facts of his case. The
Government argues that this court should affirm the court’s
application of the Sixth Circuit’s reasoning. However, we
conclude that it is not necessary to determine whether the
reasoning of Street should apply here, as the district court’s
alternative rationale, denying the suppression motion under the
Terry mode of analysis, was sound. Crediting the district
court’s factual findings and viewing these facts together under
the totality of the circumstances, we conclude that the
officer’s limited physical contact with Ford was justified by a
reasonable, articulable suspicion that Ford was armed and
dangerous. Thus, the district court properly denied Ford’s
motion to suppress.
Ford next argues that the district court prevented him
from effectively presenting his defense by excluding as
irrelevant Ford’s brother’s city of residence and by refusing to
give Ford’s requested “theory of defense” jury instruction.
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Ford argues both that these errors are independently reversible
and that they constitute reversible cumulative error.
“We review evidentiary rulings for abuse of discretion
and will only overturn an evidentiary ruling that is arbitrary
and irrational.” United States v. Cloud, 680 F.3d 396, 401 (4th
Cir.) (internal quotation marks omitted), cert. denied, 133 S.
Ct. 218 (2012). Evidence is relevant if “it has any tendency to
make a fact [of consequence in determining the action] more or
less probable than it would be without the evidence.” Fed. R.
Evid. 401. “[R]elevance typically presents a low barrier to
admissibility. Indeed, to be admissible, evidence need only be
worth consideration by the jury, or have a plus value.” United
States v. Leftenant, 341 F.3d 338, 346 (4th Cir. 2003) (internal
quotation marks and citation omitted).
Here, the court excluded evidence that Ford’s brother,
another passenger in the vehicle at the time of the traffic stop
in question, lived in Huntington, West Virginia, approximately
two years after the firearm was purchased in that city by an
unrelated individual and fifteen months prior to the seizure of
the weapon from Ford. Without additional evidence suggesting a
connection between Ford’s brother and the firearm or its
original purchaser, however, we conclude that this evidence
possessed no “plus value” adequate to justify its admission.
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Thus, the district court did not abuse its discretion in
excluding the evidence on this basis.
Turning to Ford’s challenge to the jury instructions,
we review for abuse of discretion a district court’s decision to
give or withhold a particular jury instruction. United
States v. Green, 599 F.3d 360, 377 (4th Cir. 2010). As a
general rule, a district court should instruct the jury as to
the defendant’s “theory of defense” if the proposed instructions
are supported by the evidence adduced at trial and, “taken as a
whole and in the context of the entire charge, the instructions
accurately and fairly state the controlling law.” Id. at 378.
This court will reverse the district court’s refusal to provide
a theory of defense instruction only if the instruction “(1) was
correct, (2) was not substantially covered by the court’s charge
to the jury, and (3) dealt with some point in the trial so
important that the failure to give the requested instruction
seriously impaired the defendant’s ability to conduct his
defense.” Id. (internal quotation marks omitted).
While Ford’s proposed instruction contained correct
statements of the law, its content was covered by the other
instructions provided by the court. Additionally, while Ford
argues that the proposed instruction was necessary to present a
coherent defense theory and to focus the jury’s attention on the
essential issue in dispute, Ford was able to forcefully argue
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his theory of defense during closing argument. Therefore, we
conclude that the district court did not abuse its discretion in
refusing to give Ford’s proposed instruction. Because we find
no error in the district court’s rulings regarding Ford’s theory
of defense, we likewise reject Ford’s invitation to find
cumulative error based on these rulings. See United States v.
Basham, 561 F.3d 302, 330 (4th Cir. 2009).
Ford next argues that the prosecutor made improper
comments during closing argument that denied Ford a fair trial.
“A prosecutor’s improper closing argument may so infect the
trial with unfairness as to make the resulting conviction a
denial of due process.” United States v. Chong Lam, 677 F.3d
190, 209 (4th Cir. 2012) (internal quotation marks and
alteration omitted). We will reverse a conviction based on
improper prosecutorial remarks only if “the remarks were, in
fact, improper, and . . . the improper remarks so prejudiced the
defendant’s substantial rights that the defendant was denied a
fair trial.” Id. (internal quotation marks omitted); see United
States v. Wilson, 624 F.3d 640, 656-57 (4th Cir. 2010)
(providing six-factor test for prejudice), cert. denied, 132 S.
Ct. 451 (2011).
During closing argument, the prosecution is permitted
to draw reasonable inferences from the evidence adduced during
the trial. United States v. Francisco, 35 F.3d 116, 120 (4th
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Cir. 1994). However, the prosecutor must adhere to the
“fundamental rule, known to every lawyer, that argument is
limited to the facts in evidence.” United States v. Lighty, 616
F.3d 321, 361 (4th Cir. 2010) (internal quotation marks
omitted), cert. denied, 132 S. Ct. 451 (2011).
We conclude that Ford has not demonstrated reversible
error on this basis. First, we conclude that the statements
made by the Government—drawing an inference regarding the amount
of time the gun may have been in Ford’s pocket—presented one of
several permissible inferences to be drawn from the available
evidence. In any event, we conclude that any error on this
basis did not render Ford’s trial fundamentally unfair. Thus,
we conclude that the prosecutor’s statements—even if assumed to
be erroneous—do not warrant reversal in this case.
Lastly, Ford argues that the sentence he received was
greater than necessary to meet the goals of sentencing. We
review a sentence for reasonableness, applying a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). If the sentence is free of significant
procedural error, * the court also reviews the substantive
*
Ford does not challenge the procedural reasonableness of
his sentence. See United States v. Palacios, 677 F.3d 234, 244
n.5 (4th Cir. 2011) (explaining that the defendant waives an
argument by failing to raise it in his opening brief), cert.
denied, 133 S. Ct. 124 (2012).
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reasonableness of the sentence. United States v. Lynn, 592 F.3d
572, 575 (4th Cir. 2010). The sentence imposed must be
“sufficient, but not greater than necessary, to comply with the
purposes” of sentencing. 18 U.S.C. § 3553(a) (2006). We
presume a within-Guidelines sentence to be reasonable on appeal,
and the defendant bears the burden to “rebut the presumption by
demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors.” See United States v.
Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).
Here, Ford argues that the ACCA enhancement overstated
his criminal history and unduly enhanced his sentence. While
Ford analogizes to United States v. Moreland, 437 F.3d 424, 436
(4th Cir. 2006), overruling on other grounds recognized by,
United States v. Diosdado-Star, 630 F.3d 359 (4th Cir. 2011), we
find this case readily distinguishable based on the severity of
the predicate convictions at issue. In sentencing Ford, the
district court identified these predicates and the need to
protect the public and to deter further criminal conduct,
concluding that a sentence at the bottom of the Guidelines
range—only eight months greater than the mandatory minimum
sought by Ford—was appropriate. Based on these factors, we
conclude that Ford has not rebutted the presumption of
reasonableness accorded his within-Guidelines sentence.
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Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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