United States v. Daquan Pridgen

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4864
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAQUAN MADRID PRIDGEN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Terrence W. Boyle, District Judge. (7:18-cr-00032-BO-2)
Submitted: August 30, 2022 Decided: October 3, 2022
Before RICHARDSON and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Rudolph A. Ashton, III, DUNN PITTMAN SKINNER & CUSHMAN,
PLLC, New Bern, North Carolina, for Appellant. G. Norman Acker, III, Acting United
States Attorney, Jennifer P. May-Parker, David A. Bragdon, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Daquan Madrid Pridgen appeals his convictions and life sentence following a jury
trial for armed bank robbery with forcible accompaniment and aiding and abetting, in
violation of 18 U.S.C. §§ 2, 2113(a), (d), (e) (Count 1); discharging a firearm during and
in relation to a crime of violence and aiding and abetting, in violation of 18 U.S.C. §§ 2,
924(c)(1)(A)(iii) (Count 2); and possession of a firearm by a convicted felon, in violation
of 18 U.S.C. §§ 922(g)(1), 924(a) (Count 4). On appeal, Pridgen argues that the district
court plainly erred by instructing the jury that armed bank robbery is a crime of violence;
erred by denying his motions to suppress evidence seized during the searches of his
getaway vehicle and phone and to suppress his statement to law enforcement; plainly erred
by failing to dismiss the indictment or instruct the jury on all the elements of Count 4 in
light of Rehaif v. United States, 139 S. Ct. 2191 (2019); erred by applying to his advisory
Sentencing Guidelines range an attempted murder cross-reference, a six-level enhancement
for assaulting a law enforcement officer, and a two-level reckless endangerment
enhancement; and plainly erred by informing him of a different statutory maximum penalty
for Count 1 prior to sentencing than it later determined applied to the offense. 1 We affirm.
1
Pridgen also argues that the district court erred in finding that 18 U.S.C. § 2113 is
a crime of violence under the force clause of § 924(c) and that the maximum sentence for
§ 2113(e) when death does not result is life imprisonment. However, as he acknowledges,
these arguments are foreclosed by our prior decisions in United States v. McNeal, 818 F.3d
141, 152 (4th Cir. 2016) (holding 18 U.S.C. § 2113(a), (d) is crime of violence under
§ 924(c)), and United States v. Turner, 389 F.3d 111, 121 (4th Cir. 2004) (holding statutory
penalty for forced accompaniment during bank robbery without resulting death is 10 years’
to life imprisonment), respectively.
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We generally “review a district court’s decision to give a particular jury instruction
for abuse of discretion, and review whether a jury instruction incorrectly stated the law de
novo.” United States v. Hassler, 992 F.3d 243, 246 (4th Cir. 2021) (internal quotation
marks omitted). Because Pridgen did not object to the jury instruction at trial, however,
our review is for plain error. See United States v. Ali, 991 F.3d 561, 572 (4th Cir.), cert.
denied, 142 S. Ct. 486 (2021). On plain error review, Pridgen must establish “(1) that the
[district] court erred, (2) that the error is clear and obvious, and (3) that the error affected
his substantial rights”; if he makes this showing, we may exercise our discretion to correct
the error only if it “seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotation marks omitted). The district court did not plainly err
by instructing the jury that armed bank robbery is a crime of violence under § 924(c)(3)(A).
See McNeal, 818 F.3d at 151; United States v. Adkins, 937 F.2d 947, 950 n.2 (4th Cir.
1991) (“Whether an offense is a crime of violence is a question of law for the court, and
not a question of fact for the jury.” (internal quotation marks omitted)).
Next, Pridgen argues that the district court erred by finding that he did not have a
reasonable expectation of privacy in either the getaway vehicle or his phone at the time
they were searched. We review de novo a district court’s legal conclusions made in
denying a motion to suppress and review its factual findings for clear error, viewing the
evidence in the light most favorable to the Government. United States v. Pulley, 987 F.3d
370, 376 (4th Cir. 2021). “The Fourth Amendment protects the right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures.” United States v. Small, 944 F.3d 490, 501 (4th Cir. 2019) (cleaned up).
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However, “[t]he law is well established that a person who voluntarily abandons property
loses any reasonable expectation of privacy in the property and is consequently precluded
from seeking to suppress evidence seized from the property.” United States v. Ferebee,
957 F.3d 406, 412 (4th Cir. 2020) (internal quotation marks omitted). In determining
whether a person has abandoned property, we “focus[] on objective evidence of the intent
of the person who is alleged to have abandoned the place or object.” Id. at 413 (internal
quotation marks omitted). “Intent to abandon may be inferred from words spoken, acts
done, and other objective facts.” Small, 944 F.3d at 502 (cleaned up). Our review of the
record leads us to conclude that the district court did not clearly err by finding that Pridgen
abandoned the getaway vehicle and his cell phone, and, thus, the court did not err by finding
that he lacked a reasonable expectation of privacy in those items when they were searched.
Pridgen also argues that the district court erred by denying his motion to suppress
his statement to law enforcement because (a) the Miranda 2 warnings he was given did not
adequately explain his rights, and (b) his decision not to sign a written waiver form shows
that he did not consent to questioning. Confessions made during custodial interrogations
will be suppressed “unless a defendant is advised of his Fifth Amendment rights pursuant
to Miranda and voluntarily waives those rights.” United States v. Azua-Rinconada, 914
F.3d 319, 325 (4th Cir. 2019). “[N]o precise formulation of the warnings or talismanic
incantation is required to satisfy Miranda’s strictures.” United States v. Dire, 680 F.3d
446, 474 (4th Cir. 2012) (cleaned up); see Florida v. Powell, 559 U.S. 50, 60 (2010).
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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Rather, “[t]he relevant inquiry is simply whether the warnings reasonably convey[ed] to a
suspect his rights as required by Miranda.” Dire, 680 F.3d at 474 (internal quotation marks
omitted). Moreover, a valid waiver of those rights need not be explicit and may be inferred
from all the circumstances. See United States v. Cardwell, 433 F.3d 378, 389-90 (4th Cir.
2005). The district court did not err in finding that Pridgen was adequately advised of his
rights and validly waived them before making his statement to law enforcement.
Next, Pridgen argues that his § 922(g) conviction is invalid in light of Rehaif
because the indictment did not charge each element of the offense and the jury was not
instructed on each element of the offense. Because Pridgen did not raise these arguments
before the district court, our review is for plain error. United States v. Caldwell, 7 F.4th
191, 213 (4th Cir. 2021) (“[P]lain-error review applies to unpreserved Rehaif errors.”). To
succeed on a Rehaif claim on plain error review, a defendant must “make[] a sufficient
argument or representation on appeal that he would have presented evidence at trial that he
did not in fact know he was a felon.” Greer v. United States, 141 S. Ct. 2090, 2100 (2021).
In light of the evidence presented at trial and Pridgen’s arguments on appeal, we conclude
that he has not made such a showing.
Moving to Pridgen’s challenges to his sentence, Pridgen argues that the district court
erred by applying a cross reference for attempted first degree murder to determine his base
offense level, U.S. Sentencing Guidelines Manual §§ 2A2.1(a)(1), 2K2.1(c)(1)(A),
2X1.1(c)(1) (2018), a six-level enhancement for assaulting a law enforcement officer
during flight, USSG § 3A1.2(c)(1), and a two-level reckless endangerment enhancement,
USSG § 3C1.2, when calculating his advisory Guidelines range. “We review all
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sentences—whether inside, just outside, or significantly outside the Guidelines range—
under a deferential abuse-of-discretion standard.” United States v. McDonald, 28 F.4th
553, 561 (4th Cir. 2022) (internal quotation marks omitted). In reviewing whether a
sentence is reasonable, we first “ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly calculating) the Guidelines
range.” Id. (internal quotation marks omitted). “When evaluating a sentencing court’s
calculation of the advisory Guidelines range, this [c]ourt reviews the district court’s factual
findings, and its judgment regarding factual disputes, for clear error.” United States v.
Medley, 34 F.4th 326, 337 (4th Cir. 2022) (internal quotation marks omitted). The
government must show by a preponderance of the evidence that a Guidelines enhancement
applies. United States v. Arbaugh, 951 F.3d 167, 173 (4th Cir. 2020).
Pursuant to USSG § 3A1.2(c), a defendant qualifies for a six-level enhancement if,
knowing or having reasonable cause to believe that a person is a law enforcement officer,
he assaults the officer in a manner creating a substantial risk of serious bodily injury during
an offense or during immediate flight from the offense. USSG § 3A1.2(c)(1). There was
a distinct and sufficient factual basis for the application of this enhancement that was not
already accounted for by Pridgen’s § 924(c) convictions. See United States v. Robinson,
858 F. App’x 627, 630 (4th Cir. 2021) (No. 19-4943). We further conclude that there were
also distinct factual bases for the application of this enhancement and the reckless
endangerment enhancement under USSG § 3C1.2. Finally, because the attempted murder
cross-reference is not a specific offense characteristic, it is not expressly prohibited by the
commentary to the Guidelines on which Pridgen relies. See USSG § 2K2.4 cmt. n.4. Thus,
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we presume that any double-counting that resulted from the application of that provision
was permissible, and Pridgen has not rebutted that presumption. See United States v.
Hampton, 628 F.3d 654, 664 (4th Cir. 2010). Accordingly, Pridgen’s sentence is
procedurally reasonable.
Finally, Pridgen argues that the district court plainly erred by advising him of
different statutory penalties for Count 1 prior to sentencing than it ultimately determined
applied to that offense. Our review of the record reveals no basis to suggest that any
potential error affected Pridgen’s substantial rights. See Ali, 991 F.3d at 572 (noting that
error affects defendant’s substantial rights if it “affected the outcome of the district court
proceedings” (internal quotation marks omitted)).
We therefore 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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