United States v. Timothy White

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0044n.06
FILED
No. 10-5068
Jan 12, 2012
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) On Appeal from the United States
) District Court for the Middle
TIMOTHY ORLANDO WHITE, ) District of Tennessee
)
Defendant-Appellant. )
Before: BOGGS and MCKEAGUE, Circuit Judges; and GOLDSMITH,* District Judge.
BOGGS, Circuit Judge. Defendant–appellant Timothy White was convicted and
sentenced to 200 months of imprisonment for being a convicted felon in possession of a firearm and
a convicted felon in possession of ammunition. White appeals his conviction and the sentencing
court’s determination that he qualified as an armed career criminal under the Armed Career Criminal
Act (ACCA). We affirm.
I
White makes two arguments on this direct appeal: first, that the district court erred when it
denied his two motions for reconsideration of the denial of his pre-trial motion to suppress the
handgun found in his car; second, that it erred in overruling his objection to the pre-sentence report’s
*
Hon. Mark A. Goldsmith, United States District Judge for the Eastern District of Michigan,
sitting by designation.
No. 10-5068
United States v. White
conclusion that he was an armed career criminal, based on its classification of his juvenile
adjudication as a violent felony under the ACCA.
White was arrested during a traffic stop in Nashville, Tennessee, which began when Officer
Wesley Terry of the Metro Nashville Police Department pulled White over for not wearing his
seatbelt. Terry testified that when he approached White’s car, he saw a “corner baggie”—a corner
of a plastic sandwich bag that has been cut off. Terry testified that, based on his experience, he knew
such a baggie was often used as a way to package drugs. When Terry asked White to step out of the
vehicle, he saw two marijuana blunts (marijuana rolled in cigar paper) between the door and the front
seat. Terry then performed a pat-down of White and felt a large bag of loose items that he said he
knew, based on his experience, were bullets. He retrieved the bag, which contained eleven .38-
caliber bullets. Terry then searched White’s other pocket and found a small amount of what he
believed to be marijuana. Terry moved White to his patrol car and another officer, Officer
Grindstaff, searched White’s car. Grindstaff found a .38-caliber handgun under the driver’s seat.
At that point, White was formally arrested and read his Miranda rights.
A federal grand jury charged White with one count of being a convicted felon in possession
of a firearm and one count of being a convicted felon in possession of ammunition, each in violation
of 18 U.S.C § 922(g)(1).
White made one pretrial motion to suppress the gun found in his car, one pretrial written
motion to reconsider the denial of his motion to suppress, and one oral motion at trial to reconsider
the denial of his motion to suppress. In his original motion to suppress, White argued that he was
wearing his seatbelt, so Officer Terry did not have probable cause to make the traffic stop that led
-2-
No. 10-5068
United States v. White
to the search of this car and the discovery of the gun. Alternatively, White suggested that Officer
Terry could not have seen that White was not wearing his seatbelt because of the location of Officer
Terry’s car. Therefore, White implied that Terry had not actually seen that White was not wearing
his seatbelt when he was pulled over.
At the suppression hearing, Officer Terry testified about his recollection of the stop, the
location of his car in relation to White’s, and how fast the cars were traveling. He stated that Officer
Grindstaff, in a separate car, had initially passed White’s car when White was parked on the side of
the road on 41st Avenue. Grindstaff noticed at that time that White and Hyde, his passenger, were
not wearing seatbelts. He radioed Officer Terry this information. Officer Terry said that he was
about half a block behind White when White then pulled away and started driving. He initially
estimated this distance as being fifty feet, qualifying the estimate by saying, “I would say it was
approximately that. Not too far behind [White’s car].” He testified that at a distance of one to two
car lengths behind White he could see that White was still not wearing his seatbelt. He testified that
he then activated his lights. He testified that White was slow to stop and turned the corner before
stopping. Tony Hyde, White’s passenger, also testified at the hearing, stating that he and White were
both wearing their seatbelts at the time of the stop. The district court explicitly credited Terry’s
version of events over Hyde’s. After the hearing, White’s motion to suppress the gun from evidence
was denied.
White filed his first motion for reconsideration eight months after the suppression hearing,
but several months before trial began. White asked the court to find that Officer Terry testified
falsely in the suppression hearing and that the stop had been unconstitutional. White’s main
-3-
No. 10-5068
United States v. White
argument was that Terry’s car was initially too far away from White’s to allow Terry to catch up to
White and see that he was not wearing a seatbelt in the few seconds that Terry said it took him to
catch up to White’s car. In support of the motion, White offered a hand-marked map, purporting to
show that the initial distance between Terry and White was 500 feet, not 50 feet as Terry had
estimated at the suppression hearing. The court denied the motion, stating that the evidence White
presented was not unavailable at the time of the suppression hearing and that White’s motion,
coming eight months later, was “too late without sufficient justification.”
At trial, White made a second, oral, motion for reconsideration of the motion to suppress
after cross-examining Officer Terry. During cross-examination, White showed aerial photos of the
streets involved in the stop and showed Terry the map of 41st Avenue that he had provided in his
first motion to reconsider. He questioned Terry about the accuracy of his estimation at the
suppression hearing that he was “probably 50 foot” behind White when White pulled away from the
curb and began driving down the block. Terry admitted that the distance was more than 50 feet as
he looked at the photos, but stated that he had been estimating. The fact that Terry had only been
estimating in his suppression-hearing testimony was re-emphasized by the government on re-direct
examination. At the end of the re-direct examination, White made the oral motion to reconsider the
denial of the motion to suppress. After argument from both sides, the judge stated: “[T]here are what
might be charitably recognized as minor discrepancies as to time and distance or what was
characterized as an estimate by Officer Terry. But in the Court’s view, none of it is of such
proportion as to undermine the integrity of the prior ruling.” The court then denied the motion.
A jury found White guilty of both counts charged in the indictment.
-4-
No. 10-5068
United States v. White
At sentencing, White’s pre-sentence report (PSR) classified him as an armed career
criminal. The ACCA provides that if a defendant violates 18 U.S.C. § 922(g) and has three
previous convictions for a violent felony or a serious drug offense, or both, committed on
different occasions from one another, then the defendant will receive a mandatory minimum
sentence of fifteen years in prison. 18 U.S.C. § 924(e)(1). A “violent felony” is defined as
“any crime punishable by imprisonment for a term exceeding one year, or any act of
juvenile delinquency involving the use or carrying of a firearm, knife, or destructive
device that would be punishable by imprisonment for such term if committed by an
adult, that (1) has as an
element the use, attempted use, or threatened use of physical force against the person
of another;
or (2) is burglary, arson, or extortion, or otherwise involves conduct that presents a
serious
potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B) (emphasis added). White’s record contained two prior violent felonies,
undisputed on appeal, and a juvenile adjudication for aggravated assault. The sentencing judge
overruled White’s objection to the PSR’s classification of the juvenile adjudication as a violent
felony. The judge found that the adjudication was a violent felony, that White therefore had three
prior violent felonies, and that White therefore qualified as an armed career criminal. As such, he
was subject to the ACCA’s fifteen-year mandatory-minimum sentence. White was sentenced to 200
months of imprisonment.
II
A
On appeal, White argues that the district court erred in refusing to grant his two motions to
reconsider the denial of his original motion to suppress the handgun found in his car. This court
-5-
No. 10-5068
United States v. White
reviews a denial of a motion to reconsider the suppression of evidence for an abuse of discretion.
United States v. Smith, 421 F. App’x 572, 573 (6th Cir. 2011). We review the district court’s factual
findings for clear error and its legal conclusions de novo. United States v. Hinijosa, 606 F.3d 875,
880 (6th Cir. 2010).
White argues that new evidence introduced at trial—namely, the hand-marked map showing
that the original distance between White’s car and Officer Terry’s was 500 feet—disproved Officer
Terry’s testimony from the suppression hearing. White argues that Terry would have had to have
been driving implausibly fast to travel 500 feet and catch up with White’s car before seeing that
White was not wearing his seatbelt and activating his lights. White argues that the trial court abused
its discretion when it did not “closely scrutinize” this new evidence..
The decision to reopen a suppression hearing is left to the sound discretion of the court.
United States v. Carter, 374 F.3d 399, 405 (6th Cir. 2004), vacated on other grounds, Carter v.
United States, 543 U.S. 1111 (2005). Generally, a court should be reluctant to reopen a case, and
that principle has been applied to suppression hearings. See United States v. Blankenship, 775 F.2d
735, 740 (6th Cir. 1985) (stating that courts should be extremely reluctant to reopen cases); United
States v. Kithcart, 218 F.3d 213, 219–20 (3rd Cir. 2000) (applying this principle to suppression
hearings); Carter, 374 F.3d at 405 (citing with approval Kithcart’s application of the Blankenship
standard to a motion to reopen a suppression hearing). Carter and Blankenship instruct the court to
consider several factors in deciding whether or not to grant a motion to reconsider. First, the party
seeking to reopen must provide a reasonable explanation for failing to present the evidence initially.
Carter, 374 F.3d at 405. Then the timeliness of the motion, the character of the testimony, the effect
-6-
No. 10-5068
United States v. White
of granting the motion, and whether the opposing party will be prejudiced by reopening the hearing
should be considered. Blankenship, 775 F.2d at 741.
The district court did not abuse its discretion when it denied White’s motion to reconsider.
In its written order denying White’s first motion to reconsider, the court explicitly discussed the
relevant factors. Applying Carter and Blankenship, the court reasoned that the evidence White
introduced at trial had not been previously unavailable; after all, White could have cross-examined
Officer Terry about the relevant distances at the suppression hearing. The court further noted that
White filed the first motion to reconsider eight months after the suppression hearing, without giving
any reason for the delay. It noted that Officer Terry made it clear in his testimony that he was
estimating both distance and speed, and that the judge who held the pre-trial suppression hearing
expressly credited Officer Terry’s testimony over that of Tony Hyde, White’s passenger, who had
testified that both he and White were wearing their seat belts at the time of the stop. Finally, the
court stated that reopening the hearing would prejudice the government by forcing it to defend its
position again against evidence that could have been mustered at the first hearing. After weighing
these factors, the court denied White’s motion. Similarly, in response to White’s second, oral,
motion to reconsider, the judge stated that there were no new facts presented “or any other matter
that really casts a reasonable doubt on the pretrial ruling.” In so ruling, the trial court did not abuse
its discretion. Therefore, we hold that the district court properly denied White’s motions to
reconsider his motion to suppress the gun from evidence.
-7-
No. 10-5068
United States v. White
B
In the second and final issue raised on appeal, White argues that the sentencing judge erred
in overruling his objection to the PSR’s classification of his juvenile adjudication for aggravated
assault as a violent felony under the ACCA.
We review a trial court’s determination that a conviction was for a crime of violence for
purposes of the ACCA de novo. United States v. Wilson, 168 F.3d 916, 926 (6th Cir. 1999).
The ACCA states that if a defendant violates 18 U.S.C. § 922(g) and has three previous
convictions for a violent felony or a serious drug offense committed on different occasions from one
another, then the defendant will receive a mandatory minimum sentence of fifteen years in prison.
18 U.S.C. § 924(e)(1). A “violent felony” is defined as:
“any crime punishable by imprisonment for a term exceeding one year, or any act
of juvenile delinquency involving the use or carrying of a firearm, knife, or
destructive device that would be punishable by imprisonment for such term if
committed by an adult, that (1) has as an element the use, attempted use, or
threatened use of physical force against the person of another; or (2) is burglary,
arson, or extortion, or otherwise involves conduct that presents a serious potential
risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B) (emphasis added).
To determine whether a prior conviction or adjudication qualifies as a violent felony for
purposes of the ACCA, the Supreme Court requires a sentencing judge to use a “categorical
approach” to defining the offense at issue. See Taylor v. United States, 495 U.S. 575, 600 (1990)
(establishing the categorical approach in the context of offenses tried to a jury); Shepard v. United
States, 544 U.S. 13, 14 (2005) (modifying the categorical approach to accommodate non-jury
adjudications such as bench trials or guilty pleas). The categorical approach is a uniform method
-8-
No. 10-5068
United States v. White
of determining whether an act constitutes a violent felony for purposes of the ACCA. A sentencing
court may look only at certain documents in determining whether a prior offense was a violent
felony. See, e.g., Taylor, 495 U.S. at 601 (stating that an approach in which the sentencing court
could consider any document, including, for example, a police report, has “practical difficulties” and
is “potential[ly] unfair”). Under Taylor, a sentencing court must first look only to the fact of
conviction and the statutory definition of the prior offense to determine whether the conviction
necessarily included conduct that would qualify it as a violent felony. In cases where the jury was
actually required to find specific elements, Taylor stated that the court may go beyond the mere fact
of conviction and look to the charging paper and jury instructions to see if the verdict necessarily
rested on qualifying conduct. Shepard modified the categorical approach for prior offenses that
came from bench trials and plea agreements. Shepard stated that the categorical approach to
determining whether an offense tried in a bench trial is a violent felony for purposes of the ACCA
requires the sentencing judge to look only at the statutory definition of the offense, charging
documents, and the bench-trial judge’s formal rulings of law and findings of fact. Shepard, 544 U.S.
at 20.
White’s PSR listed two uncontested violent felonies and one juvenile adjudication for
aggravated assault. White argues that the sentencing court departed from the categorical approach
in classifying the juvenile adjudication as a violent felony. He argues that if the court had used the
categorical approach correctly it could not have determined that the adjudication was a violent felony
because those documents did not show that the offense was committed with a gun, knife, or
destructive device. Therefore, he argues, the court erred in determining that he had three prior
-9-
No. 10-5068
United States v. White
violent felonies and qualified as an armed career criminal. White is incorrect. The judge correctly
followed the categorical approach, and the documents that he properly examined were narrowly
drawn, covering only conduct that involved the use of a firearm; therefore, the juvenile adjudication
was properly designated to be a violent felony.
White’s juvenile adjudication was imposed by a judge without a jury, similar to a bench trial.
Closely observing Shepard, the sentencing judge in our case looked only at the statutory definition
of the offense, the charging documents, and the juvenile judge’s order of adjudication to determine
whether the juvenile adjudication was a violent felony for purposes of the ACCA.1 Formal rulings
of law and findings of fact by the juvenile judge, if any were made, were not in the record before the
sentencing court.2
We review these materials to determine whether the district judge properly categorized the
prior juvenile conviction as a violent felony. The definition of the aggravated-assault statute under
which White was convicted is, by itself, ambiguous. The crime can be accomplished with or without
the use of a firearm. A person may commit aggravated assault by committing simple assault and one
of the following: (A) causing serious bodily injury to another, (B) using or displaying a deadly
weapon, or (C) attempting or intending to cause bodily injury to another by strangulation. TENN .
CODE ANN . § 39-13-102(a)(1)(A)-(C). See also Wells, 473 U.S. at 649 (holding that the Tennessee
1
United States v. Wells, 473 F.3d 640, 649 (6th Cir. 2007), explicitly held that the
Taylor/Shepard categorical approach applies to prior juvenile adjudications.
2
The sentencing judge specifically disregarded other documents that he deemed to be outside
of the scope of the categorical approach: the arrest order, the probation officer’s report, and the
affidavit supporting the arrest order.
- 10 -
No. 10-5068
United States v. White
aggravated assault statute does not necessarily require proof of the use or display of a firearm, knife,
or destructive device). The charging petition charged White with violations of simple assault under
TENN . CODE ANN . § 39-13-101 and aggravated assault under TENN . CODE ANN . § 39-13-102 and
alleged the following:
[T]he subject intentionally or knowingly did cause [victim] to reasonably fear
imminent bodily injury by use of a deadly weapon, to wit: a handgun. The subject
intentionally, knowingly, or recklessly did cause bodily injury to [victim]. In
support of these allegations the petitioner alleges the following specific facts: At
Pearl-Cohn High School, the subject held a gun on Emanuel Leach, then hit him
in the mouth with the gun and caused an injury requiring stitches.
The order of adjudication indicates that the White pled not guilty, the juvenile judge found him
guilty of aggravated assault, and the judge dismissed the simple assault charge. Based on these
documents, the sentencing judge found that White’s adjudication necessarily involved the use of a
firearm. Only the charging document, and not the statutory definition of aggravated assault or the
juvenile judge’s order of adjudication, placed White’s offense squarely within the ACCA’s definition
of a violent felony.
As required by the ACCA, the sentencing judge next analyzed White’s juvenile conviction
to determine if the crime of aggravated assault would have been punishable by imprisonment for a
term exceeding a year, if the crime had been committed as an adult. The court found that aggravated
assault with a firearm is a Class C felony under Tennessee law, punishable “by not less than three
(3) and no more than fifteen (15) years in prison.” White, 683 F. Supp. at 621 (citing TENN . CODE
ANN . §§ 39-13-102(e)(1), 40-35-111(b)(3)). The sentencing court found that the crime charged in
- 11 -
No. 10-5068
United States v. White
the juvenile adjudication was a violent felony for purposes of the ACCA. White thus had committed
three prior violent felonies and was sentenced as an armed career criminal.
On appeal, White argues that the sentencing judge improperly expanded the categorical
approach when he looked at the portion of the charging document that mentioned a handgun. White
does not argue that the sentencing judge could not look at the charging document at all. Instead, he
tries to break up the charging document into parts. He argues that the “section” of the charging
document discussing the handgun was not “part and parcel of the formal charge” and the sentencing
court violated the categorical approach by looking at it. Shepard clearly states, though, that a
sentencing judge may look at the “charging document.” See Shepard, 544 U.S. at 16 (“[A] later
court determining the character of [an offense] is generally limited to examining the . . . charging
document . . . .”).
This Circuit, however, has considered both the statutory provisions and factual recitals in a
charging instrument to determine whether it sufficiently narrowed the charge to cover only qualifying
conduct. In United States v. Mendoza-Mendoza, 239 F. App’x 216 (6th Cir. 2007), this court
examined the charging papers “to determine which version of the aggravated assault statute
[defendant] was convicted under.” Id. at 219. The court then relied on information in the charging
document to determine that the defendant pleaded guilty to the provision § 39-13-102(a)(2)(B). Ibid.
(“The criminal information, which states that Mendoza acted ‘recklessly’ and committed aggravated
assault ‘by the use or display of a deadly weapon’ makes clear that he specifically pleaded guilty to
TENN . CODE ANN . § 39-13-102(a)(2)(B).”). See also Wells, 473 U.S. at 649 (noting that had
- 12 -
No. 10-5068
United States v. White
defendant pled guilty to the offense for which he was charged, rather than a lesser offense, “the
petition’s factual recitation could well have justified treating this juvenile adjudication as a predicate
offense for armed career criminal purposes.”). Thus, where a charging document is narrowed to
cover only conduct that qualifies as a violent felony under the ACCA, a guilty plea to the offense as
charged suffices to establish the offense as an ACCA predicate. Cf. In re Sealed Case, 548 F.3d
1085 (D.C. Cir. 2008) (holding that prior guilty plea was not crime of violence where charging
document described conduct that could qualify as both violent and nonviolent and the government
had failed to furnish transcript showing the factual basis of the plea).
In our case, the charging document is sufficiently narrowed to the firearm provision. It is
clear that White is being charged with aggravated assault under TENN . CODE ANN . § 39-13-
102(a)(1)(B), even though the petition cites to the whole provision, § 39-13-102. The language in
the petition tracks the language of § 102(a)( 1)(B) and clearly identifies the gun as the reason for
seeking an aggravated assault charge. The petition states that White committed an assault by
“intentionally, knowingly, or recklessly . . . caus[ing] bodily injury to [victim]” and that it was
aggravated because he “intentionally or knowingly did cause [victim] to reasonably fear imminent
bodily injury by use of a deadly weapon: to wit, a handgun.” The petition does not include any
language indicating another basis for seeking the aggravated charge.
However, White here pleaded not guilty, expressly disclaiming the information in the
charging document. The order of adjudication shows only that the juvenile judge found defendant
guilty of aggravated assault, not the specific prong on which the conviction rested. This would be
- 13 -
No. 10-5068
United States v. White
analogous to a situation in which the government presented a narrowed charging instrument and a
jury verdict but no jury instructions.
Other Circuits have held that a narrowly-drawn charging document suffices to establish the
factual predicate of the conviction even without clarifying jury instructions or an admission of guilt.
See United States v. Lujan, 9 F.3d 890 (10th Cir. 1993) (upholding ACCA enhancement where the
government failed to furnish jury instructions and defendant was charged under a burglary statute
that covered unlawful entry into both buildings and vehicles, but indictment made clear that
defendant was being charged only with unlawful entry into a building, thus qualifying the conviction
as a violent felony under the ACCA); United States v. Vinton, 631 F.3d 476, 486 (8th Cir. 2011) (“A
precisely drawn charging document can indicate the basis for conviction whether or not the
conviction was accompanied by an admission of guilt.”).
And Shepard itself confirms that a narrowed charging document by itself would be sufficient
to qualify a prior offense as a violent felony in any kind of case, whether guilt was admitted or not.
After listing the documents that a court may consider in applying the ACCA, Shepard states, “With
such materials in a pleaded case, a later court could generally tell whether the plea had necessarily
rested on the fact identifying the burglary as generic, just as the details of instructions could support
the conclusion in the jury case, or the details of a generically limited charging document would do
in any sort of case.” 544 U.S. at 20–21 (internal citation omitted) (emphasis added). The Shepard
Court reiterated that a bench trial’s findings and rulings would be necessary to confirm the factual
basis of the conviction ‘without a charging document that narrows the charge to generic limits.” Id.
at 25 (emphasis added). Here, we have such a narrowly drawn charging instrument; thus, the
- 14 -
No. 10-5068
United States v. White
charging petition and the fact of conviction alone are sufficient to determine that White’s juvenile
conviction included the use of a handgun, qualifying it as a violent felony under the ACCA.
III
For the foregoing reasons, we AFFIRM the judgment of the district court.
- 15 -