United States v. Pope

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4420
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES O. POPE, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:05-cr-00305-HEH)
Argued: November 30, 2006 Decided: January 5, 2007
Before WIDENER and WILKINSON, Circuit Judges, and David A. FABER,
Chief United States District Judge for the Southern District of
West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Brian Jay Grossman, CROWGEY & GROSSMAN, Richmond, Virginia,
for Appellant. Stephen Wiley Miller, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee. ON BRIEF: Chuck Rosenberg, United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Defendant James O. Pope, Jr., was convicted of possession of
a firearm by a convicted felon, pursuant to 18 U.S.C. § 922(g)(1)
(2000). He received an increased penalty under 18 U.S.C.
§ 924(e)(1) (2000) as an armed career criminal with three prior
convictions for violent felonies or serious drug offenses.
Defendant appeals the district court’s denial of his motion to
suppress evidence relating to his encounter with two Richmond
sheriff’s deputies on the night of his arrest. He also challenges
the district court’s determination of his status as an armed career
criminal and its denial of a sentence reduction for acceptance of
responsibility. He further appeals his conviction on the basis of
ineffective assistance of counsel. We affirm the judgment of the
district court.
I.
On December 9, 2004, defendant was arrested for carrying a
concealed weapon without a permit at the Satellite Club in
Richmond, Virginia (“the Club”). Two uniformed, off-duty deputy
sheriffs of the Richmond City Sheriff’s Office, Howard Jackson and
Milton Byrd, were working as security officers at the Club that
evening. The Club prohibits patrons from carrying firearms, and
Deputies Jackson and Byrd were screening people coming into the
Club that evening to enforce this rule. Defendant Pope, however,
-2-
entered the Club while the deputies were on break and thus was not
screened.
Upon returning to duty at approximately 1:15 am, Deputy Byrd
noticed what appeared to be the outline of a firearm beneath
defendant’s sweater. He conferred with Deputy Jackson, who agreed
that defendant appeared to be concealing a gun. Deputy Byrd
approached defendant and asked to speak to him outside. Defendant
agreed. Once outside, Deputy Byrd asked defendant what was
concealed beneath his sweater. Defendant responded that he had a
gun and had forgotten to leave it in his car. Deputy Jackson then
reached under defendant’s sweater and removed a Ruger .40 caliber
semi-automatic pistol, containing a magazine with eleven rounds of
.40 caliber ammunition.
Defendant stated that his identification and concealed weapons
permit were in his car. The deputies allowed him to go to his car,
but defendant was unable to produce either identification or a
weapons permit. He also told the deputies at various times that
his name was Marvin Pope, Richard Pope, and James Pope. Upon
defendant’s failure to produce a weapons permit, the deputies
attempted to arrest him, at which point defendant began to struggle
and refused to be handcuffed. It required half a can of mace and
the assistance of backup officers to subdue and arrest defendant
Pope. The deputies subsequently learned Pope’s true name, along
with the fact that he was a multiple convicted felon.
-3-
After his indictment, defendant filed a motion to suppress the
firearm and his statements made to the deputies, on the grounds
that the deputies’ actions constituted a seizure unsupported by
reasonable, articulable suspicion of criminal conduct and that the
deputies improperly interrogated him without first providing
Miranda warnings. The district court denied the motion to
suppress. The court found that defendant willingly chose to step
outside at the deputies’ request; his encounter with them was
consensual; and in response to questions he volunteered that he had
a concealed firearm. The court also stated that both deputies
observed defendant carrying what they knew to be a firearm and that
this reasonable belief created sufficient articulable suspicion to
warrant an investigative detention. The court further found that
the deputies were justified in securing the firearm until they
could determine whether the defendant possessed it lawfully.
The defendant was tried and convicted at a bench trial on
January 3, 2006. At trial, the parties stipulated to the evidence,
including the testimony of the two deputies from the suppression
hearing. The parties also stipulated that, at the time of the
offense, defendant was a convicted felon and that the recovered
firearm was transported in interstate commerce.
At sentencing, the district court found that, due to
defendant’s 1989 conviction for malicious wounding and two 2001
convictions for distribution of cocaine base, he was an armed
-4-
career criminal and thus subject to an increased penalty pursuant
to 18 U.S.C. § 924(e)(1). The court also denied defendant a
reduction in offense level for acceptance of responsibility. The
court sentenced defendant to 252 months of imprisonment. Defendant
appeals.
II.
Defendant contends that the district court erred in denying
his motion to suppress evidence obtained during his encounter with
the deputies. Defendant argues that the request that he step
outside constituted a seizure unsupported by reasonable,
articulable suspicion that he was engaged in criminal conduct.
The district court was correct to find that this encounter did
not constitute a seizure. Officers may approach, address, and
question citizens without implicating the Fourth Amendment. See
Florida v. Bostick, 501 U.S. 429, 434 (1991); United States v.
Weaver, 282 F.3d 302, 309 (4th Cir. 2002). A seizure occurs only
when “in view of all the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to
leave.” Immigration & Naturalization Servs. v. Delgado, 466 U.S.
210, 215 (1984) (quoting United States v. Mendenhall, 446 U.S. 544,
554, (1980) (plurality opinion)). See Michigan v. Chesternut, 486
U.S. 567, 573 (1988); United States v. Gordon, 895 F.2d 932, 937
(4th Cir. 1990).
-5-
In this case, Deputy Byrd asked to speak to the defendant
outside the Club, and defendant voluntarily complied. The deputies
then asked him what was concealed beneath his sweater, and
defendant replied that it was a gun. The voluntary, noncoercive
nature of this interaction does not create a seizure under
Mendenhall’s totality of the circumstances standard. There was no
use of force or show of authority to which the defendant submitted.
See California v. Hodari D., 499 U.S. 621, 626-28 (1991); United
States v. Brown, 401 F.3d 588, 594 (4th Cir. 2005). The deputies
neither said nor did anything to suggest that compliance was
required or that defendant was not free to end the exchange. The
deputies simply made requests, to which defendant voluntarily
responded. Such an encounter does not constitute a seizure. See
Weaver, 282 F.3d at 312-13 (no seizure where defendant voluntarily
complied with officers’ requests); Gordon, 895 F.2d at 938 (same).
In any case, even if the encounter had not been consensual --
if defendant had not willingly complied with the requests -- the
deputies would have had a sufficient basis to seize the defendant.
Under Terry v. Ohio and its progeny, a brief seizure in the form of
an investigatory detention is lawful when based on a reasonable,
articulable suspicion that the subject is engaged in criminal
activity. See United States v. Arvizu, 534 U.S. 266, 273 (2002);
United States v. Sokolow, 490 U.S. 1, 7 (1989); Adams v. Williams,
407 U.S. 143, 145-46 (1972); Terry v. Ohio, 392 U.S. 1, 21 (1968).
-6-
The “level of suspicion required for a Terry stop is . . . less
demanding than that for probable cause,” Sokolow, 490 U.S. at 7,
and requires consideration of the “totality of the circumstances of
each case to see whether the detaining officer ha[d] a
particularized and objective basis for suspecting legal
wrongdoing,” Arvizu, 534 U.S. at 273 (internal quotation marks
omitted). An officer’s personal observations are a primary basis
for establishing reasonable suspicion. See, e.g., Illinois v.
Wardlow, 528 U.S. 119, 124-25 (2000); United States v. Sharpe, 470
U.S. 675, 682 n.3 (1985); Terry, 392 U.S. at 28; United States v.
Smith, 396 F.3d 579, 584-85 (4th Cir. 2005).
In this case, the personal observations of the deputies would
certainly have created a particularized and objective basis for an
investigative detention. Both Deputy Byrd and Deputy Jackson
personally observed what they knew to be the outline of a gun
concealed beneath defendant’s clothing. See Arvizu, 534 U.S. at
273 (officers may “draw on their own experience and specialized
training to make inferences” about what they observe). Not only
does the Club prohibit firearms inside, but possession of a
concealed weapon is a criminal offense in Virginia. See Va. Code
Ann. § 18.2-308 (2004).1 The deputies were thus justified in
1
“If any person carries about his person, hidden from common
observation, (I) any pistol, revolver, or other weapon designed or
intended to propel a missile of any kind by action of an explosion
of any combustible material . . . he shall be guilty of a Class 1
misdemeanor.” Va. Code Ann. § 18.2-308 (2004).
-7-
investigating defendant’s apparent possession of a concealed
weapon, and they would have had a reasonable basis for effecting an
investigatory detention in order to do so. See United States v.
Mayo, 361 F.3d 802, 808 (4th Cir. 2004) (reasonable suspicion that
defendant carried concealed weapon sufficient to justify Terry stop
and pat-down).
Defendant’s contention that the deputies improperly seized
his firearm is similarly without merit. Defendant told the
deputies that he was carrying a firearm, making a pat-down
unnecessary.2 Upon receiving confirmation that defendant was
armed, the deputies were justified in seizing the firearm, both for
their own protection and on the basis of reasonable suspicion that
the concealed weapon was possessed illegally. See Adams, 407 U.S.
at 148; Mayo, 361 F.3d at 808. Indeed, at that point the deputies
had probable cause to arrest defendant. See Mayo, 361 F.3d at 808(officers “had probable cause to arrest [defendant]” when frisk
revealed concealed weapon).
Defendant also argues that the deputies extracted
incriminating statements from him without first providing Miranda
warnings. This contention too is unfounded. The safeguards of
Miranda apply to custodial interrogations, i.e., “where there has
2
Even if a pat-down had occurred, “a law enforcement officer,
for his own protection and safety, may conduct a patdown to find
weapons that he reasonably believes or suspects are then in the
possession of the person he has accosted.” Ybarra v. Illinois, 444
U.S. 85, 93 (1979); Mayo, 361 F.3d at 808.
-8-
been such a restriction on a person's freedom as to render him ‘in
custody.’” United States v. Sullivan, 138 F.3d 126, 130 (4th Cir.
1998) (citation omitted). An individual is “‘in custody’ for
purposes of Miranda either if the person has been arrested or if
his freedom of action has been curtailed to a degree associated
with arrest.” Id. It was not until defendant failed to produce a
concealed weapons permit that he was placed in custody, and it was
at this point that Miranda warnings became appropriate.3
Thus the officers’ actions on the night of defendant’s arrest
were appropriate and reasonable. Defendant voluntarily stepped
outside and told the deputies that he was carrying a gun. The
deputies properly removed the gun from defendant’s possession
pending his presentation of a concealed weapons permit. And when
defendant failed to produce such a permit, the deputies took him
into custody. The district court was correct to rule that this
sequence of events was proper and thus to deny defendant’s motion
to suppress.
3
In all events, defendant’s Miranda argument is unavailing
because the government conceded before trial that it did not intend
to use any statements made prior to defendant’s arrest. To the
extent that such statements were ultimately referenced at trial, it
was through the suppression hearing testimony of Deputies Jackson
and Byrd, upon which the court was allowed to rely by defendant’s
stipulation.
-9-
III.
Defendant also argues that the district court erred in
determining that defendant was an armed career criminal for
purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).
In reviewing the district court’s application of the Armed Career
Criminal Act, “we review its legal determinations de novo and its
factual findings for clear error.” United States v. Wardrick, 350
F.3d 446, 451 (4th Cir. 2003).
18 U.S.C. § 924(e)(1) provides enhanced penalties when a
defendant convicted of possession of a firearm by a prohibited
person under 18 U.S.C. § 922(g) has three prior convictions for
violent felonies or serious drug crimes. The statute requires that
the three prior offenses have been “committed on occasions
different from one another.” 18 U.S.C. § 924(e)(1). Defendant was
convicted in 1989 of malicious wounding and twice in 2001 of
distribution of cocaine base. Defendant does not challenge the
validity of these convictions. Instead, he argues that, under
Apprendi v. New Jersey, 530 U.S. 466 (2000), the fact that the
convictions arose from offenses committed on three separate
occasions should have required proof beyond a reasonable doubt.4
Apprendi required submission to a jury and proof beyond a
reasonable doubt of facts that increased a defendant’s penalty,
4
In this case, because defendant waived a jury trial, this
question would still have been decided by the court. The only
difference is the burden of proof that would have applied.
-10-
with the exception of the fact of a defendant’s prior convictions.
530 U.S. at 490. See also Blakely v. Washington, 542 U.S. 296, 301
(2004); United States v. Booker, 543 U.S. 220, 244 (2005). In this
case, the district court conducted an independent review of the
court documents pertaining to the 2001 convictions. Following the
Supreme Court in Shepard v. United States, 544 U.S. 13, 20-21
(2005), this court has held that the district court may consider “a
variety of conclusive court documents when determining the nature
of a prior conviction.” United States v. Thompson, 421 F.3d 278,
281 (4th Cir. 2005). These include “the charging document, the
terms of a plea agreement, the plea colloquy, the statutory
definition, or any explicit finding of the trial judge to which the
defendant assented.” United States v. Collins, 412 F.3d 515, 521
(4th Cir. 2005); see Shepard, 544 U.S. at 20-21. Here, the
district court concluded that defendant was a career criminal based
upon the indictments and sentencing orders relating to the prior
convictions. Those records establish that the two 2001 offenses
occurred over different time frames and involved drug distributions
to different individuals. The indictments were distinct, and each
offense was punished by a separate sentence. These facts plainly
establish the offenses as separate occasions for the purposes of 18
U.S.C. § 924(e)(1). The court thus did not exceed the scope of
permissible documentation. Rather, it properly found that
defendant was an armed career criminal.
-11-
IV.
Defendant also contends that the district court erred in
declining to reduce his sentence for acceptance of responsibility.
“A defendant’s credibility and demeanor play a crucial role in
evaluating whether he is genuinely contrite and has accepted
responsibility and the sentencing judge is in a unique position to
evaluate these factors.” United States v. Harris, 882 F.2d 902,
905 (4th Cir. 1989). Thus the court “review[s] a district court’s
decision to grant or deny an adjustment for acceptance of
responsibility for clear error.” United States v. Ruhe, 191 F.3d
376, 388 (4th Cir. 1999).
Section 3E1.1 of the now-advisory Sentencing Guidelines
authorizes a reduction in a defendant’s offense level for a clear
demonstration of acceptance of responsibility. See U.S. Sentencing
Guidelines Manual § 3E1.1 (2006). The Guidelines further note that
such a reduction will rarely be appropriate where, as here, a
defendant proceeds to trial. See id. § 3E1.1 cmt. n.2. Defendant,
however, claims that he should be treated as though he had pled
guilty, because he expressed a willingness to plead guilty and
proceeded to trial only to preserve his right to appeal the denial
of his motion to suppress.
This argument is not well taken. The facts here support the
district court’s denial of the reduction in any case. Besides the
dubious assertion that he would have been willing to plead guilty,
-12-
defendant can offer no evidence of acceptance of responsibility.
Instead, as the district court noted, “there is simply no evidence
of any manifestation of remorse or contrition.” United States v.
Pope, No. 3:05CR305-HEH, slip op. at 4 (E.D. Va. Apr. 10, 2006).
When confronted by the deputies about his concealed firearm,
defendant lied about his identity and his possession of a permit.
When the deputies moved to arrest him, defendant resisted so
violently that it required backup officers and half a can of mace
to subdue him. Such conduct in no way supports a finding of
acceptance of responsibility, and the district court did not err in
so concluding.5
For the foregoing reasons, the judgment of the district court
is hereby affirmed.
AFFIRMED
5
Defendant also contends that defense counsel’s recommendation
to go to trial on stipulated facts constituted ineffective
assistance of counsel. Such a claim may not be raised on direct
appeal unless the record conclusively shows counsel’s performance
fell below an objective level of performance. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). The record here
certainly does not contain such a showing.
-13-