United States v. Joshua Ford

Case: 16-40773 Document: 00514046834 Page: 1 Date Filed: 06/23/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-40773 FILED
Summary Calendar June 23, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSHUA MARK FORD,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:13-CR-215-1
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
Joshua Mark Ford appeals his conviction and sentence after a jury found
him guilty of two counts of possession with the intent to distribute
methamphetamine in violation of 21 U.S.C. § 841(a)(1), two counts of
possession with the intent to distribute gamma hydroxybutrate (GHB) in
violation of § 841(a)(1), two counts of possessing a firearm in furtherance of a
drug trafficking crime in violation of 18 U.S.C. § 924(c), and two counts of being
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On
appeal, Ford argues that (i) the evidence at trial was insufficient to support his
conviction for possession of a firearm in furtherance of a drug trafficking
offense; (ii) the district court erred in denying his two motions to suppress; and
(iii) the district court erred in applying a two-level enhancement to Ford’s base
offense level under U.S.S.G. § 3C1.2 for reckless endangerment during flight.
Ford’s convictions arise out of two separate incidents. The first incident
occurred in November 2012, when Ford was pulled over after an officer
observed a vehicle that Ford was driving swerve on the interstate and almost
collide with another vehicle. The arresting officer, believing that Ford and a
female passenger in the vehicle were intoxicated and that Ford might possess
a pocket knife, ultimately frisked Ford and found methamphetamine and a
loaded magazine for a .38 caliber handgun on his person. After Ford was
arrested, a search of his vehicle revealed a plethora of illicit drugs, two
firearms, and other indicia of drug trafficking.
The second incident occurred in June 2013, when a cooperating
witness—at the direction of law enforcement—set up a “buy-bust operation,”
whereby she arranged for Ford to sell her two gallons of GHB in exchange for
$2,000. When Ford arrived at the agreed location to complete the transaction,
officers converged on his vehicle. Ford attempted to escape by accelerating and
ramming his vehicle against a blocking vehicle, which was positioned by the
law enforcement officers to prevent Ford from escaping. Ford also drew a gun
and pointed it at the officers. A subsequent search of Ford’s vehicle revealed
illicit drugs and other indicia of drug trafficking.
Sufficiency of the Evidence
Ford claims that there was insufficient evidence to support his conviction
for possessing a firearm in furtherance of a drug trafficking crime in connection
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with the 2012 traffic stop. When considering the sufficiency of the evidence,
we evaluate all evidence, whether circumstantial or direct, “in the light most
favorable to the Government with all reasonable inferences to be made in
support of the jury’s verdict.” United States v. Terrell, 700 F.3d 755, 760 (5th
Cir. 2012) (internal quotation and citation omitted). We will uphold the verdict
if any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. See United States v. Vargas-Ocampo, 747 F.3d 299,
301 (5th Cir. 2014) (en banc).
In this case, the arresting officer recovered a Glock 9 millimeter handgun
under the driver’s seat and a .38 caliber handgun underneath the center
console of Ford’s vehicle. Not only were the firearms readily accessible to Ford
as the driver of the vehicle, but evidence was presented that, before being
asked to exit the vehicle, Ford initially reached under his seat—where the
loaded Glock 9 millimeter was located—before he stepped out of the vehicle.
The .38 caliber handgun, while not loaded, could have easily been loaded with
the .38 caliber magazine found in Ford’s pocket. Also found in the vehicle in
proximity to the firearms was a plethora of drugs (including
methamphetamine divided into small baggies), syringes, containers with white
powder substances, and other indicia of drug trafficking. Also significant is
the fact that the Ford possessed $1900 in cash, which the arresting officer
testified he believed were the “proceeds of narcotics sales.” Finally, Ford’s
possession of the firearms was unlawful because Ford was admittedly a
convicted felon. From these facts, a rational jury could reasonably construe
the evidence as establishing that that Ford possessed the firearms in
furtherance of drug trafficking activity. See United States v. Ceballos-Torres,
218 F.3d 409, 414-15 (5th Cir. 2000); United States v. Mitchell, 484 F.3d 762,
768 (5th Cir. 2007). Accordingly, Ford’s conviction for possession of a firearm
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in furtherance of a drug trafficking offense in connection with the 2012 traffic
stop is affirmed.
Motion to Suppress Regarding 2012 Traffic Stop
Ford contends that the arresting officer’s actions in connection with the
2012 traffic stop were not reasonably related in scope to the officer’s suspicion
that Ford was driving while intoxicated. He also argues that the length of the
stop was unreasonable. Finally, Ford claims in conclusory fashion that the
arresting officer did not pat him “down for his safety but to try to rummage
around in [Ford’s] clothing to see what he might find.”
The legality of a traffic stop is examined under the two-pronged analysis
described in Terry v. Ohio, 392 U.S. 1 (1968). United States v. Brigham, 382
F.3d 500, 506-07 (5th Cir. 2004) (en banc). The court must first examine
whether the initial official action was justified. Id. Under the second prong of
Terry, the “detention must be temporary and last no longer than is necessary
to effectuate the purpose of the stop.” Brigham, 382 F.3d at 507. An officer
may ask questions about the purpose and itinerary of the trip and ask
questions on subjects completely unrelated to the circumstances causing the
stop so long as those questions do not extend the stop’s duration. United States
v. Pack, 612 F.3d 341, 350 (5th Cir. 2010). “[I]f additional reasonable suspicion
arises in the course of the stop and before the initial purpose of the stop has
been fulfilled, then the detention may continue until the new reasonable
suspicion has been dispelled or confirmed.” United States v. Lopez-Moreno, 420
F.3d 420, 431 (5th Cir. 2005).
In this case, given Ford’s slow movements, nonsensical answers to the
arresting officer’s questions, and erratic behavior, the record is clear that the
arresting officer justifiably had a particularized and reasonable suspicion that
Ford was driving while intoxicated. United States v. Chavez, 281 F.3d 479, 485
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(5th Cir. 2002). To further his investigation, the arresting officer asked Ford
to exit the vehicle. See Pennsylvania v. Mimms, 434 U.S. 106, 110-11 (1977).
After Ford exited the vehicle, Ford gave the arresting officer reason to believe
that Ford possessed a pocket knife. As a result, the arresting officer proceeded
to frisk Ford, and it was permissible for the arresting officer to do so. See
United States v. Michelletti, 13 F.3d 838, 840-41 (5th Cir. 1994) (en banc). In
the course of this frisk, the arresting officer recovered the magazine to a .38
caliber firearm and a baggy containing what the officer believed to be
methamphetamine. Upon recovering the methamphetamine, the officer had
probable cause to arrest Ford.
The 15 minutes that elapsed between when the officer stopped Ford’s car
and when the officer discovered the methamphetamine is not an impermissibly
lengthy stop in light of Ford’s continued erratic behavior, inconsistent and
nonsensical answers, and other signs of intoxication. See Pack, 612 F.3d at
350, 355. Finally, we note that Ford does not argue on appeal that the search
of his vehicle was unconstitutional due to lack of probable cause or a warrant.
Accordingly, Ford has abandoned that argument. See Sanders v. Unum Life
Ins. Co. of Am., 553 F.3d 926-27 (5th Cir. 2008).
Motion to Suppress Regarding 2013 Buy and Bust
Ford argues that the warrant obtained to search his car after the 2013
buy-and-bust operation was constitutionally deficient and that the automobile
exception to the warrant requirement is not applicable because the officers
created an exigent circumstance. We need not determine whether the warrant
was deficient, because we hold that the officers also had probable cause to
search Ford’s vehicle and recover all of its contents—including the gun and all
of the drugs contained therein–regardless of whether the warrant was
constitutional or not.
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It cannot be disputed that the officers had probable cause to arrest Ford
for attempted distribution of a controlled substance. See § 841; United States
v. Garcia, 179 F.3d 265, 268 (5th Cir. 1999). Officers also had probable cause
to believe that evidence relevant to an illegal narcotics transaction was in
Ford’s vehicle based on Ford’s acknowledgement that he intended to sell to a
cooperating witness two gallons of GHB. Additionally, officers had probable
cause to believe that a handgun, unlawfully possessed by Ford, was also in his
vehicle. See United States v. Hearn, 563 F.3d 95, 103 (5th Cir. 2009). For these
reasons alone, the officers’ search of Ford’s vehicle was not unconstitutional.
See Arizona v. Gant, 556 U.S. 332, 343 (2009). Ford’s argument that a
warrantless search under the automobile exception is not justified where
officers create an exigent circumstance has no merit. See Maryland v. Dyson,
527 U.S. 465, 466 (1999) (holding that the automobile exception has no
separate exigency exception).
U.S.S.G. § 3C1.2 Enhancement
At sentencing, the district court applied a two-level enhancement to
Ford’s base offense level for reckless endangerment during flight under
§ 3C1.2. The district court based the enhancement on its finding that, in
connection with the 2013 buy-and-bust operation, Ford had accelerated and
rammed his vehicle into a blocking vehicle in an attempt to escape and also
drew a firearm. On appeal, Ford argues that he could not have had the
requisite intent to knowingly act recklessly or to flee. He argues that his
reckless actions “were done in the insensate panic caused by the” detonation of
a distraction device (or “flash bang”), and the device could have elicited his
“flight-or-flight impulse.”
This court reviews the district court’s application of the Sentencing
Guidelines de novo. United States v. Reyna, 130 F.3d 104, 112 (5th Cir. 1997).
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It reviews the court’s factual findings, including the finding that the
defendant’s conduct constituted reckless endangerment, for clear error. Id.Findings will be upheld if plausible in light of the record as a whole. United
States v. Gould, 529 F.3d 274, 276 (5th Cir. 2008). The reckless endangerment
enhancement applies if the “defendant recklessly created a substantial risk of
death or serious bodily injury to another person in the course of fleeing from a
law enforcement officer.” § 3C1.2.
The district court’s implicit finding that Ford acted recklessly and
created a substantial risk of death or serious physical injury when he
repeatedly rammed his vehicle into the blocking vehicle and pulled a gun on
the officers is not clearly erroneous. Aside from the obvious risks to the officers’
safety that Ford’s conduct entailed, evidence was presented at trial that an
officer was in the direct path of the blocking vehicle as Ford accelerated into
the vehicle and eventually had to move because the situation was “unsafe.” See
Gould, 529 F.3d at 276-77; U.S.S.G. § 2A1.4, cmt. (n.1); see also § 3C1.2, cmt.
(n.2) (incorporating § 2A1.4 definition by reference). Additionally, the district
court’s finding that Ford engaged in the subject conduct in an attempt to flee
or avoid arrest is also not clearly erroneous. Although Ford did not testify that
he engaged in the subject conduct in an attempt to flee, the district court was
permitted to draw this inference from the fact that Ford possessed a plethora
of illicit drugs and would have certainly known that he would be facing arrest
and imprisonment if he was caught. See United States v. Caldwell, 448 F.3d
287, 290 (5th Cir. 2006). There is no evidence in the record—and Ford cites
none—that the flash bang device caused Ford to engage in the subject acts or
obviated his otherwise clear intent to ram the blocking vehicle and draw his
gun in an attempt to escape. Accordingly, Ford has failed to establish that the
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district court committed a clear error in overruling his objection to the § 3C1.2
enhancement.
Ford’s convictions and sentence are hereby AFFIRMED.
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