United States v. Mayes

Vacated by Supreme Court, January 24, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4672
MARK KEVIN MAYES,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CR-02-110)
Argued: May 7, 2004
Decided: July 12, 2004
Before WILKINSON, LUTTIG, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Terry N. Grimes, Roanoke, Virginia, for Appellant.
Anthony Paul Giorno, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appel-
lee. ON BRIEF: John L. Brownlee, United States Attorney, Roanoke,
Virginia, for Appellee.
2 UNITED STATES v. MAYES
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
A jury convicted Mark Kevin Mayes of possession of a firearm by
a convicted felon (18 U.S.C. § 922(g)(1)), possession with intent to
distribute methamphetamine (21 U.S.C. § 841), and possession of a
firearm in furtherance of a drug trafficking crime (18 U.S.C.
§ 924(c)(1)). The district court sentenced Mayes to a term of 220
months of imprisonment (plus eight years of supervised release).
Mayes now appeals his conviction and sentence. We affirm.
I
On September 4, 2002, at 2:55 a.m., officers of the Patrick County,
Virginia, Sheriff’s Office executed a warrant to search the residence
of Joel Hamm ("Joel") for drugs (specifically methamphetamine) and
drug paraphernalia. The warrant authorized the officers to search all
persons, vehicles, outbuildings and curtilage of the residence. The res-
idence is located in a rural area of Patrick County and is at the end
of an improved private gravel driveway that runs approximately 150
yards off the public road. An unimproved "field road" veers off the
driveway approximately 35 yards from Joel’s residence. Although the
officers who executed the search warrant were not aware of any other
residences that could be accessed from the driveway, Mayes was then
living on the property in a camper that was several hundred yards
down the field road. There was no electricity or water service to the
area where the camper was located, and the camper had only been on
the property for a short time prior to September 4.
Joel was not home when the officers began the search. Because the
officers had information that Joel would have drugs on him, and to
ensure their own safety, Sheriff David Hubbard instructed Deputy
Rick Rorrer to stay outside and stop any vehicles that came up the
driveway. Law enforcement vehicles were "stacked up several deep"
in the driveway while the search was conducted.
UNITED STATES v. MAYES 3
At approximately 3:25 a.m., while the search was ongoing, Mayes
was a passenger in a pickup truck that was traveling up the driveway
in the direction of Joel’s trailer. The truck was being driven by Joel’s
brother, Allen Hamm ("Allen"). Mayes was intoxicated, and Allen
was taking him to his camper.
Upon seeing the truck, Deputy Rorrer ran toward it with his flash-
light turned on and yelled for the driver to stop. Investigator Bruce
Pendleton, who was outside the trailer, followed behind Deputy Ror-
rer. The truck did not immediately stop but, instead, turned down the
field road and stopped just past the point where the field road veered
off the driveway. As the truck stopped, Deputy Rorrer saw Mayes
appear to reach for something on the seat next to him and was con-
cerned that he was reaching for a weapon or attempting to conceal or
destroy contraband. Deputy Rorrer ordered Mayes to show his hands
and open the passenger door, which was locked. Mayes tried, but was
unable, to open the door. Deputy Rorrer went to the driver’s side and
ordered Allen to exit the truck. Another officer took control of Allen,
and a search of him turned up no contraband. Deputy Rorrer entered
the truck from the driver’s side, reached across Mayes, and unlocked
the passenger door. Investigator Pendleton then removed Mayes from
the truck and asked for his identity, but Mayes responded in an inco-
herent manner.
While he was securing Mayes, Inspector Pendleton observed what
appeared to be the grip of a revolver on the front seat of the truck, and
he alerted the other officers. The suspected revolver was on the pas-
senger side of the center armrest, which was in the down position, and
it was next to a Crown Royal bag, which Sheriff Hubbard recognized
as being a common container for contraband. At that point, Mayes
stated that the gun belonged to him, that he had been fishing that night
and used the gun to shoot snakes, and that "everything" in the truck
belonged to him. Mayes later commented to Deputy Rorrer that the
events of that evening had startled him and that he had almost shot
Deputy Rorrer. Because of his intoxication, Mayes has no recollection
of any of the events relating to the stop and his subsequent arrest.
The object observed by Investigator Pendleton was found to be a
loaded .38 revolver, and the Crown Royal bag contained two plastic
bags which combined contained 33.3 grams of methamphetamine.
4 UNITED STATES v. MAYES
The officers also found on Mayes a plastic pen tube (which Mayes
admitted at trial can be used for ingesting methamphetamine) and
$721 cash. There was no fishing gear in the truck.
The officers arrested Mayes, and he was eventually indicted on the
methamphetamine and firearm charges. Before trial, Mayes moved to
suppress the physical evidence seized during the stop of the truck,
arguing that the truck was outside the scope of the search warrant and
that the officers lacked probable cause to stop and search the truck.1
Following an evidentiary hearing, the district court denied the motion
based on three alternative rulings: (1) the truck was covered by the
search warrant because it was a vehicle on the driveway of Joel’s resi-
dence, (2) the officers had the right to stop and search the truck
because of the suspicious circumstances they observed and because
the revolver was in plain view once the truck was stopped, and (3) the
officers acted in good faith reliance on the search warrant in searching
the truck.2
The case proceeded to trial, and the bulk of the government’s case
was evidence pertaining to the events of September 4. Additionally,
the government presented testimony from Sheriff Hubbard and two
other law enforcement officers concerning the customs of metham-
phetamine dealers. Mayes presented brief testimony from several wit-
nesses, including Allen, who stated on cross examination that Mayes
owned the revolver. Mayes also testified, and he denied ownership or
possession of the revolver and methamphetamine. The jury convicted
Mayes on all counts.
Before sentencing, the probation officer recommended in the pre-
sentence report (which the district court adopted) that the district
court enhance Mayes’ sentence under U.S.S.G. § 3C1.1 for obstruc-
tion of justice. The probation officer explained that Mayes’ trial
1
Mayes also unsuccessfully moved to suppress the statements he made
during the course of the stop and arrest, but he does not challenge the
district court’s ruling admitting his statements on appeal.
2
In addition to its other arguments, the government also argued that
Mayes lacked standing to challenge the search of the truck, but the dis-
trict court did not rule on that issue.
UNITED STATES v. MAYES 5
testimony, in which he denied ownership of the gun and methamphet-
amine, was willful, false testimony concerning a material fact. Mayes
objected to the enhancement, arguing that he should not be penalized
for taking the stand to defend himself by testifying that he is not
guilty. The district court overruled the objection and found the
enhancement to be warranted. The district court noted that while
Mayes had admitted on the night of his arrest that the guns and the
methamphetamine were his, he denied ownership of those items dur-
ing trial. The district court stated that Mayes’ right to defend himself
by testifying at trial does not include the right "to tell a lie." (J.A.
246).
II
On appeal, Mayes contends that the district court erred by denying
his suppression motion, admitting the testimony of Sheriff Hubbard
concerning the customs of methamphetamine dealers, and enhancing
his sentence for obstruction of justice. Mayes also argues that the evi-
dence is insufficient to support his conviction for possession with
intent to distribute methamphetamine.
A.
We first consider Mayes’ challenge to the denial of his suppression
motion. Relying on the fact that the truck was going to his camper and
was stopped near the point where the field road veers off the drive-
way, Mayes argues that the search of the truck was not within the cur-
tilage of Joel’s property and, therefore, exceeded the scope of the
search warrant. Mayes then points to the same set of facts to argue
that the good-faith exception to the exclusionary rule is inapplicable.
On our review of the denial of a suppression motion, we review the
district court’s legal conclusions de novo and factual findings for
clear error, and we view the evidence in the light most favorable to
the government. United States v. Jones, 356 F.3d 529, 533 (4th Cir.),
cert. denied, 124 S. Ct. 1694 (2004).
The Fourth Amendment guarantees "[t]he right of the people to be
secure in their persons . . . against unreasonable . . . seizures." The
temporary detention of an individual during a law enforcement stop
of an automobile, even if only for a brief period and for a limited pur-
6 UNITED STATES v. MAYES
pose, constitutes a "seizure" within the meaning of the Fourth
Amendment, and "[a]n automobile stop is thus subject to the constitu-
tional imperative that it not be ‘unreasonable’ under the circum-
stances." Whren v. United States, 517 U.S. 806, 809-10 (1996). A
passenger in a vehicle that is stopped ordinarily lacks standing to
challenge a search of the vehicle, but he does have standing to chal-
lenge the legality of his own detention and, if the detention is illegal,
to seek suppression of items found during the vehicle search. See
United States v. Carter, 300 F.3d 415, 421 (4th Cir. 2002) ("A pas-
senger in a car normally has no legitimate expectation of privacy in
an automobile in which he asserts neither a property interest nor a
possessory interest and where he disclaims any interest in the seized
object"); United States v. Rusher, 966 F.2d 868, 874 n.4 (4th Cir.
1992) ("Even though the Rushers cannot challenge the search of the
truck, they can challenge their own seizures. . . . This means that they
have standing to argue that the initial stop of the truck [was] . . . ille-
gal").
We conclude that the district court did not err in denying the sup-
pression motion. The officers were in the midst of executing a search
warrant at a suspected drug residence in a remote area during the
early hours of the morning, and the resident (i.e., Joel) was not at
home. The officers saw the truck approaching the residence on the
private driveway that was well off the main road, and the officers
were unaware of any other residences that could be accessed from this
driveway. The officers were thus presented with a situation in which
someone — quite possibly the resident — was coming upon them late
at night in a remote area as they attempted to conduct their search.
Under these potentially dangerous circumstances, the officers unques-
tionably had legitimate reasons (i.e., officer safety and identification
of the truck’s occupants) to stop the truck, and the stop therefore was
not unreasonable. See, e.g., United States v. Bohannon, 225 F.3d 615(6th Cir. 2000).3
3
In Bohannon, the Sixth Circuit extended the rule of Michigan v. Sum-
mers, 452 U.S. 692 (1981) (officers have a limited authority to detain
occupants of a premises while a proper search is being conducted) to a
situation that is nearly identical to this case, finding that the policy justi-
fications of Summers (particularly officer safety) made it reasonable for
officers to stop an individual who approached the scene of an ongoing
UNITED STATES v. MAYES 7
Having determined that the stop of the truck was reasonable, it is
questionable whether Mayes — the passenger — has standing to chal-
lenge the search of the truck. However, even assuming that Mayes
does have standing, he has presented no basis for suppression of the
evidence. During the execution of the stop, Deputy Rorrer observed
the truck make what appeared to him to be an evasive maneuver by
turning down the field road, and he also saw Mayes appear to reach
for something on the seat. Once the officers stopped the truck, they
observed the revolver and the Crown Royal bag (which they associ-
ated with contraband) in plain view on the front seat. Under these cir-
cumstances, the officers were clearly justified in conducting a
protective sweep of the truck, and this sweep produced the contra-
band. See United States v. Sakyi, 160 F.3d 164, 168 (4th Cir. 1998)
("in the context of a lawful automobile stop when the officer is pre-
sented with an objectively suspicious and potentially dangerous cir-
cumstance, the officer may conduct what amounts to a frisk of an
automobile for weapons" (citation and punctuation omitted)).
B.
We next consider Mayes’ challenge to the sufficiency of the evi-
dence for his possession with intent to distribute conviction. Mayes
argues that the evidence showed at most that although the metham-
phetamine was found in the truck, he was merely a passenger in the
truck and nothing linked him directly to the methamphetamine.
"When considering a sufficiency of the evidence challenge to a
guilty verdict, we must sustain the jury’s verdict ‘if there is substan-
tial evidence, taking the view most favorable to the Government, to
support it.’ In determining whether the evidence in the record is ‘sub-
stantial,’ we view the evidence in the light most favorable to the Gov-
ernment and inquire whether there is evidence that a reasonable finder
of fact could accept as adequate and sufficient to support a conclusion
search. 225 F.3d at 616-18; see also Baker v. Monroe Township, 50 F.3d
1186, 1192 (3d Cir. 1995) ("Although Summers itself only pertains to a
resident of the house under warrant, it follows that the police may stop
people coming to or going from the house if police need to ascertain
whether they live there").
8 UNITED STATES v. MAYES
of a defendant’s guilt beyond a reasonable doubt." United States v.
Stockton, 349 F.3d 755, 760-61 (4th Cir. 2003) (citations omitted),
cert. denied, 124 S. Ct. 1695 (2004). The elements necessary to prove
a conviction for possession with intent to distribute methamphetamine
are: (1) possession of the methamphetamine; (2) knowledge of this
possession; and (3) intention to distribute the methamphetamine. See
United States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc).
Intent to distribute a controlled substance may be inferred from a vari-
ety of circumstantial factors, including possession of a quantity larger
than needed for personal use, the manner in which the controlled sub-
stance is packaged, and possession of a firearm or a large amount of
cash. United States v. Fisher, 912 F.2d 728, 730-31 (4th Cir. 1990).
The evidence presented at trial established that the officers found
on the seat of the truck next to where Mayes had been sitting a quan-
tity of methamphetamine that was inconsistent with personal use, and
the methamphetamine was packaged in a manner that is consistent
with distribution.4 Moreover, the officers found next to the metham-
phetamine a loaded revolver, and they also found a relatively large
sum of cash on Mayes. Mayes admitted to the officers that "every-
thing" in the truck was his, and he specifically admitted possession of
the revolver (Allen also testified at trial that the revolver belonged to
Mayes). Although Mayes denied at trial that the methamphetamine
and revolver were his, the jury obviously did not believe him. In light
of this evidence, we conclude that Mayes’ challenge to the jury’s ver-
dict is without merit.
C.
Finally, we turn to Mayes’ contention that the district court erred
by enhancing his sentence under U.S.S.G. § 3C1.1 for obstruction of
justice. Although at trial Mayes denied possession or ownership of the
revolver and methamphetamine, he argues that his testimony does not
rise to the level necessary to constitute obstruction of justice and that
4
Mayes also challenges the admission of trial testimony concerning
narcotics trafficking customs. Based on our review of the record, we are
satisfied that the district court did not err in admitting this testimony. See
United States v. Hopkins, 310 F.3d 145, 150-51 (4th Cir. 2002) (affirm-
ing admission of similar testimony), cert. denied, 537 U.S. 1238 (2003).
UNITED STATES v. MAYES 9
the district court did not specifically make the necessary findings to
support the enhancement. We review the district court’s application
of the sentencing guidelines for clear error in factual matters and de
novo for legal conclusions. United States v. Quinn, 359 F.3d 666, 679
(4th Cir. 2004).
Section 3C1.1 provides in pertinent part that a district court should
increase a defendant’s offense level by two points if the defendant
willfully obstructed or impeded, or attempted to obstruct or impede,
the administration of justice during the course of the prosecution of
the instant offense of conviction and the obstructive conduct related
to the defendant’s offense of conviction. "This enhancement applies
to a defendant who commits perjury during the course of his or her
prosecution, [and] . . . is appropriate if the sentencing court finds that
‘the defendant when testifying under oath (1) gave false testimony;
(2) concerning a material matter; (3) with the willful intent to deceive
(rather than as a result of confusion, mistake, or faulty memory).’"
Quinn, 359 F.3d at 681 (citation omitted).
We discern no error in the district court’s ruling. The district
court’s finding that Mayes willfully and falsely testified at trial about
ownership of the revolver and the methamphetamine is amply sup-
ported by the record, and this testimony — relating to the essential
elements of the charges against him — clearly concerns a material
matter. We note that although Mayes was intoxicated on the night of
his arrest and testified at trial that he could not recall the events of that
night, the trial testimony for which his sentence was enhanced (i.e.,
his denial of ownership or possession of the revolver and metham-
phetamine) cannot reasonably be attributed to his intoxication (i.e.,
"confusion, mistake, or faulty memory").5
5
The district court commented at one point in its oral ruling that Mayes
testified that he was "too drunk" to remember whether he made incrimi-
nating statements on the night of his arrest concerning the revolver and
methamphetamine. (J.A. 246). However, the pertinent issue is not
whether Mayes remembered making the incriminating statements but is,
instead, whether his denial at trial of ownership of the contraband was
willfully false and material.
10 UNITED STATES v. MAYES
III
Based on the foregoing, we affirm Mayes’ conviction and sentence.
AFFIRMED