United States v. Keen

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4015
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRYAN ANDRE KEEN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (CR-05-3)
Submitted: August 21, 2006 Decided: September 14, 2006
Before NIEMEYER and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Larry Gott, Danville, Virginia, for Appellant. John L. Brownlee,
United States Attorney, R. Andrew Bassford, Assistant United States
Attorney, Patrick Weede, Third Year Practice Law Student, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following the denial of his motion to suppress a firearm
as evidence, Bryan Andre Keen was convicted of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(2000). Keen now appeals, arguing that the district court erred in
denying his motion to suppress evidence of a firearm that was
seized from his person during a search incident to his arrest.
Keen asserts that he was initially seized without reasonable
suspicion of wrongdoing on his part. Finding no error, we affirm.
This court reviews the district court’s factual findings
underlying a motion to suppress ruling for clear error, and the
district court’s legal determinations de novo. Ornelas v. United
States, 517 U.S. 690, 699 (1996); United States v. Bush, 404 F.3d
263, 275 (4th Cir. 2005). When a suppression motion has been
denied, this court reviews the evidence in the light most favorable
to the Government. United States v. Grossman, 400 F.3d 212, 216
(4th Cir. 2005).
With these standards in mind, and having reviewed the
record and the parties’ briefs, we conclude that the officers who
seized Keen did so based on a reasonable articulable suspicion that
Keen was engaged in criminal activity. “[A]n officer may,
consistent with the Fourth Amendment, conduct a brief,
investigatory stop when the officer has a reasonable, articulable
suspicion that criminal activity is afoot.” Illinois v. Wardlow,
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528 U.S. 119, 123 (2000); see Terry v. Ohio, 392 U.S. 1, 30 (1968).
In this case the officers reasonably suspected that Keen was the
fugitive for whom they were searching, and their suspicion was
corroborated by Keen’s furtive behavior. Thus, the totality of the
circumstances establish reasonable suspicion supporting the
officers’ decision to approach Keen’s vehicle, and the officers
conducted a lawful Terry stop. See United States v. Sokolow, 490
U.S. 1, 8 (1999); see also United States v. Mayo, 361 F.3d 802,
807-08 (4th Cir. 2004).
The plain view presence of marijuana inside Keen’s
vehicle created probable cause for the officers to arrest Keen and
search him incident to arrest. Searches incident to arrest are a
well established exception to the warrant requirement. See United
States v. Thornton, 325 F.3d 189, 192 (4th Cir. 2003). Once Keen
was removed from the vehicle, he was properly searched and the
officers discovered the firearm.
Additionally, because the district court sentenced Keen under
an advisory guideline scheme, no Sixth Amendment error occurred.
See United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005) (in
post-Booker sentencing, district court should make all factual
findings appropriate to determination of advisory guideline range).
Therefore, Keen’s pro se Motion to Remand for Re-sentencing is
denied.
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Accordingly, we affirm Keen’s conviction and sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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