United States v. Billingsley

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4248
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEITH BILLINGSLEY,
Defendant - Appellant.
No. 05-4257
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GREGORY ALLEN PRICE,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CR-03-395)
Submitted: July 11, 2006 Decided: July 20, 2006
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William B. Moffitt, COZEN O’CONNOR, Washington, D.C., for Appellant
Keith Billingsley; Drewry B. Hutcheson, Jr., MCGINLEY, ELSBERG &
HUTCHESON, P.L.C., Alexandria, Virginia, for Appellant Gregory
Allen Price. Chuck Rosenberg, United States Attorney, Jonathan L.
Fahey, Assistant United States Attorney, Paul Ahern, Special
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
A jury convicted Keith Billingsley and Gregory Price of
conspiracy to distribute 50 or more grams of crack cocaine within
1000 feet of a school in violation of 21 U.S.C. § 846. Price was
also convicted of possession with intent to distribute crack
cocaine in violation of 21 U.S.C. § 841(a)(1). The district court
sentenced Billingsley to 324 months’ imprisonment and Price to 262
months’ imprisonment. Both men filed timely appeals. For the
reasons below we affirm their convictions and sentences.
Billingsley challenges the district court’s denial of his
motion for a mistrial based on the Government’s failure to disclose
an inculpatory statement made by Billingsley to a detective
involved in the case, which Billingsley’s counsel elicited from the
detective on cross-examination. We review the denial of a motion
for a mistrial for abuse of discretion. United States v. Dorsey,
45 F.3d 809, 817 (4th Cir. 1995). Pursuant to Fed.R.Crim.P.
16(a)(1)(A), the Government must “disclose to the defendant the
substance of any relevant oral statement made by the defendant . .
. in response to interrogation by a person the defendant knew was
a government agent if the government intends to use the statement
at trial.” Fed.R.Crim.P. 16(d)(2) provides several remedies if a
party fails to comply with disclosure requirements, including
permitting the court to “enter any . . . order that is just under
the circumstances.” The district court denied Billingsley’s
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motion for a mistrial, but offered to give the jury instructions to
disregard the statement, which Billingsley’s counsel refused for
fear that such instructions would draw additional attention to the
statement. We hold that the district court did not abuse its
discretion in denying the motion for mistrial and offering instead
to provide a limiting instruction to the jury.
Billingsley next appeals the district court’s denial of his
motion to suppress evidence that he asserts was seized in violation
of the Fourth Amendment. Specifically, Billingsley claims that the
officers lacked reasonable suspicion to stop his car and this
unlawful stop tainted Billingsley’s consent to search the car.
Billingsley also argues that the officer lacked probable cause to
arrest him since the cocaine found in the car appeared after
Billingsley exited the vehicle. On appeal, we review the district
court’s factual findings for clear error and its legal conclusions
de novo. United States v. Perkins, 363 F.3d 317, 320 (4th Cir.
2004). “When an officer observes a traffic offense or other
unlawful conduct, he or she is justified in stopping the vehicle
under the Fourth Amendment.” United States v. Hassan El, 5 F.3d
726, 730 (4th Cir. 1993). The officer who stopped Billingsley’s
vehicle had a sufficient basis to support his action after
observing the vehicle stopped in the roadway in violation of
Virginia law. This traffic infraction provided the officer with
the basis to request that Billingsley step outside of the car. See
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Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977) (“Once a motor
vehicle has been lawfully detained for a traffic violation, the
police officers may order the driver to get out of the vehicle
without violating the Fourth Amendment’s proscription of
unreasonable searches and seizures.”). Furthermore, the officer
had sufficient probable cause to arrest Billingsley based on the
$500 in cash that he found on Billingsley’s person and the bag of
cocaine that he found in the front seat of the car after
Billingsley consented to both searches. Even if the cocaine was
first noticed by the officer after Billingsley exited the vehicle,
it is reasonable to infer that all of the occupants of the car “had
knowledge of, and exercised domain and control over, the cocaine.”
Maryland v. Pringle, 540 U.S. 366, 372 (2003) (finding sufficient
probable cause to arrest a front seat passenger in a car when a
search of the vehicle yielded $793 in rolled-up cash in the glove
box and “five plastic glassine baggies of cocaine . . . behind the
back-seat armrest and accessible to all three men”). We hold that
the district court did not err in denying Billingsley’s motion to
suppress.
Price appeals the district court’s decision to admit evidence
under Fed.R.Evid. 404(b) that he had a large amount of cash on his
person when he was remanded to jail after sentencing in a state
court matter. We review the district court’s evidentiary rulings
for abuse of discretion. United States v. Weaver, 282 F.3d 302,
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313 (4th Cir. 2002). We need not reach the merits of Price’s
claim, however, because the admission was harmless. See Id.(noting that “[e]videntiary rulings are subject to review for
harmless error”); see id. at 313-14 (finding the evidence to be
harmless “in light of the overwhelming evidence against the
defendant”). In the present case, the evidence pointing to Price’s
involvement in the drug conspiracy is overwhelming: multiple
witnesses testified that they purchased crack cocaine from Price,
Price was arrested in an area known for drug activity, the officer
who searched Price incident to the arrest found in his pockets cash
and two bags that the defense stipulated contained powdered cocaine
and crack cocaine, and two drug distributors testified that they
engaged in either crack cocaine transactions with Price. Because
there is overwhelming evidence to support the jury’s verdict of
guilty, we find that the admission of the evidence was harmless.
Billingsley and Price also challenge their sentences,
asserting that the district court did not adequately consider the
sentencing factors set forth in 18 U.S.C. § 3553(a), as required by
the Supreme Court’s decision in United States v. Booker, 543 U.S.
220 (2005). Although the Supreme Court’s decision in Booker
rendered the sentencing guidelines advisory, the sentencing court
must still consider the properly calculated guideline range in
addition to the factors set forth in § 3553(a). United States v.
Johnson, 445 F.3d 339, 345 (4th Cir. 2006). We review sentences
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under the advisory guidelines for reasonableness, and sentences
that fall within the guideline range are presumed to be reasonable.
Id. at 341. Billingsley and Price claim that their sentences are
unreasonable because the district court’s “analysis lack[ed] any
meaningful consideration of the § 3553(a) factors.” Brief of the
Appellants at 10. The district court, however, does not need to
“explicitly discuss every § 3553(a) factor on the record . . . .
particularly . . . when the district court imposes a sentence
within the applicable guidelines range.” Id. (internal quotations
and citations omitted). Because the district court properly used
the preponderance of the evidence standard to assess the drug
quantity attributable to the defendants, properly calculated the
guideline range, treated the guidelines as advisory, considered the
defendant’s arguments, and sentenced the defendants within the
guidelines range, we conclude that the defendants’ sentences are
reasonable. Therefore, we affirm the defendants’ sentences.
Accordingly, we affirm the convictions and sentences of
Billingsley and Price. 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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