United States v. Rashawn Long

United States Court of Appeals
For the Eighth Circuit
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No. 16-1419
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Rashawn Long
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: June 9, 2017
Filed: August 31, 2017
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Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.
Rashawn Long was convicted by a jury of one count of possession with intent
to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1), and one
count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).
Long was sentenced to 360 months’ imprisonment. He appeals, arguing the district
court1 erred by failing to suppress evidence discovered during an inventory search.
He also argues the district court erred in calculating his criminal history. We affirm
Long’s convictions and sentence.
I.
On October 26, 2013, Long parked his car in Valerie McCoy’s yard and left it
there. McCoy called the Kansas City, Missouri police at approximately 8:20 am.
When officers arrived, McCoy explained that a black male parked the car in her yard,
knocked on the door, and left when she did not answer. The officers found a 2013
silver Avenger parked in McCoy’s yard, ran the license plate number, and learned it
was a rental car. After an unsuccessful attempt to contact the rental company, the
officers called a tow truck to remove the car from McCoy’s property.
After the officers ordered the tow truck, Long ran towards them. Long gave
the officers his name, told the officers the name of the person who rented the car, and
explained that he had parked the car in McCoy’s yard. The officers handcuffed and
frisked Long and asked if they could look in the car. Long said it would be okay but
that the keys were at a nearby house. Officers ran Long’s name and a computer
search revealed two outstanding warrants for his arrest. Believing these warrants
were out of Kansas City, Missouri, the officers placed Long in a patrol vehicle. Soon
after, the officers learned the warrants were out of Kansas City, Kansas, and were
non-extraditable. The officers did not, however, remove Long’s handcuffs or release
him from the patrol vehicle.
1
The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri, adopting the Report and Recommendation of the Honorable John
T. Maughmer, United States Magistrate Judge for the Western District of Missouri.
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Officer Ballowe, one of the first officers on the scene, asked the patrol vehicle
driver to continue holding Long so he could “determine if there was anything illegal
in the car.” Around this time, Sergeant Hamilton, a member of the Kansas City Police
Department’s illegal firearms squad, arrived at the scene. He was called to the scene
because he was investigating Long as a possible suspect in several homicides and had
asked to be notified any time Long had an encounter with police. Sergeant Hamilton
was with Officer Ballowe for the entire vehicle search.
Because the car was locked, the tow truck driver used a “slim jim” to open the
car door. On the passenger seat of the car, Officer Ballowe found a backpack
containing pepper spray, a taser, and a coke can. The coke can felt hard and solid so
Officer Ballowe twisted the top of the can and discovered a bag containing a white
powder. At this point, Sergeant Hamilton told Officer Ballowe to stop the inventory
search in order to obtain a search warrant.
A field test of the substance revealed that the powder was not cocaine and had
an extremely weak reaction for amphetamines. Long was placed under arrest, the
vehicle was towed, and Long was issued a ticket for illegally parking the vehicle.
After obtaining the search warrant, officers discovered a camcorder in the car.
The camcorder contained clips of Long with a Glock pistol. Additionally, the white
powder was tested and determined to be 2-(Methylamino)-1-phenyl-1-butanone
(buphedrone), a Schedule I controlled substance. Long was subsequently indicted for
possession with intent to distribute a controlled substance and possession of a firearm
by a felon.
Before trial, Long moved to suppress the evidence against him. Following a
suppression hearing, the magistrate judge recommended denying the motion to
suppress, finding that the vehicle search was a valid inventory search and assuming,
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without deciding, that Long had standing to challenge the search. The district court
adopted that recommendation.
Long was convicted of both counts at trial. The initial Presentence
Investigation Report (“PSR”) calculated a Guidelines range of 92–115 months, based
on an offense level of 26 and a criminal history category of IV. Long objected to the
PSR’s computation of criminal history points. Specifically, the PSR assessed three
criminal history points for Long’s prior Missouri conviction for second-degree
murder, pursuant to United States Sentencing Guidelines (“U.S.S.G.”) § 4A1.1(a).
The PSR assessed an additional point for Long’s Missouri conviction for armed
criminal action,2 pursuant to U.S.S.G. § 4A1.1(e). Long argued that his conviction
for armed criminal action is not a crime of violence and, thus, he should not be
assessed the additional criminal history point. At sentencing, the district court
concluded that armed criminal action is a crime of violence and that Long’s
Guidelines range was 92–115 months’ imprisonment. The district court concluded
an upward variance was appropriate based on the 18 U.S.C. § 3553(a) factors and
sentenced Long to 360 months’ imprisonment.
II.
On appeal, Long asserts the district court erred in denying his motion to
suppress. Long also contends that the Missouri offense of armed criminal action is
not a crime of violence and, thus, the district court erred in assessing a criminal
history point for that conviction. Alternatively, Long argues his sentence is
substantively unreasonable.
2
Mo. Rev. Stat. § 571.015(1).
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A.
“This Court reviews the facts supporting a district court’s denial of a motion
to suppress for clear error and reviews its legal conclusions de novo.” United States
v. Cotton, 782 F.3d 392, 395 (8th Cir. 2015). “This court will affirm the district
court’s denial of a motion to suppress evidence unless it is unsupported by substantial
evidence, based on an erroneous interpretation of applicable law, or, based on the
entire record, it is clear a mistake was made.” United States v. Hogan, 539 F.3d 916,
921 (8th Cir. 2008) (quoting United States v. Annis, 446 F.3d 852, 855 (8th Cir.
2006)).
Long argues that the district court should have suppressed the evidence
discovered during the search of his vehicle because the inventory search prior to
towing his vehicle was unconstitutional. The government contends that Long lacks
standing to challenge the legality of the search and, alternatively, that the inventory
search was proper.
The Fourth Amendment protects against unreasonable searches and seizures.
U.S. Const. amend. IV. In order to challenge evidence obtained in an unreasonable
search, however, “[t]he defendant moving to suppress bears the burden of proving he
had a legitimate expectation of privacy that was violated by the challenged search.”
United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995) (per curiam). In the
rental car context, we have held that a driver of a rental vehicle does not have
standing to challenge a search of the vehicle unless he can show he was the
authorized driver, i.e. the renter or lessee, or had the permission of the authorized
driver. United States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1998); Muhammad, 58
F.3d at 355. The driver must make an “affirmative showing of consensual possession
to satisfy the standing requirements.” Muhammad, 58 F.3d at 355.
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At the suppression hearing, Long presented the testimony of Latasha Phillips,
the renter of the 2013 Avenger Long parked in McCoy’s yard. Phillips testified that
she rented the car for her friend Roger to drive. She did not, however, put Roger’s
name on the rental contract as an authorized driver. She further testified that she did
not restrict what Roger could do with the car or who Roger could let use the car.
Phillips stated Roger told her that he allowed Long to drive the car but her testimony
was unclear whether she learned that Long was driving the car before or after the
search at issue in this case.
Long contends that Phillips’s testimony establishes that he had consensual
possession of the rental car and, thus, that he has standing to challenge the search.
This case, however, is not so straightforward because, unlike this circuit’s precedent,
any permission Long had to drive the vehicle was not given directly from Phillips, the
authorized driver. Rather, Roger, a driver not authorized by the lessor but permitted
by the lessee to drive the car, gave Long permission to drive the vehicle and Phillips
did not object. Stated differently, Roger acted as a “middleman” between the
authorized driver and Long.
This circuit has not yet determined whether a defendant can make an
affirmative showing of consensual possession when permission to drive a rental car
is not given directly from a contractually authorized driver.3 We now hold that there
is no reasonable expectation of privacy based on such an attenuated relationship
3
We note the existence of a circuit split as to whether even a driver with
permission directly from the contractually authorized driver has standing to challenge
a search of the rental vehicle. Compare United States v. Kennedy, 638 F.3d 159, 165
(3d Cir. 2011) (holding that an unauthorized driver with permission to drive the car
does not have standing); United States v. Wellons, 32 F.3d 117, 119 (4th Cir. 1994)
(same); United States v. Riazco, 91 F.3d 752, 754–55 (5th Cir. 1996) (same); United
States v. Roper, 918 F.2d 885, 887–88 (10th Cir. 1990) (same), with United States v.
Thomas, 447 F.3d 1191, 1199 (9th Cir. 2006) (an unauthorized driver with
permission to drive the car does have standing); Muhammad, 58 F.3d at 355 (same).
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between an authorized driver and an unauthorized driver. As a result, Long, an
unauthorized-driver-once-removed, with only indirect permission from the authorized
driver to drive the vehicle, does not have standing to challenge the search of the
vehicle. Thus, the district court did not err in denying Long’s motion to suppress the
evidence discovered during the search.
B.
Long also argues the district court erred in assessing an additional criminal-
history point because his prior conviction for armed criminal action is not a “crime
of violence.” We review a district court’s determination that a prior conviction is a
crime of violence under the Guidelines de novo. United States v. Maid, 772 F.3d
1118, 1120 (8th Cir. 2014).
Pursuant to U.S.S.G. § 4A1.1(e), a sentencing court “[a]dd[s] [one criminal-
history] point for each prior sentence resulting from a conviction of a crime of
violence that did not receive any points under [§ 4A1.1] (a), (b), or (c).” At
sentencing on March 25, 2016, the Guidelines provided that a “crime of violence”
was any crime punishable by more than one year in prison 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 of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a). The “or otherwise” clause is referred to as the residual clause.
On January 8, 2016, the sentencing commission announced that it had
unanimously voted to eliminate the residual clause of the Guidelines. That
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amendment, however, did not become effective until August 1, 2016. U.S.S.G. app.
C, amend. 798. And the Supreme Court recently held that the residual clause in
U.S.S.G. § 4B1.2(a)(2) is not unconstitutionally vague. Beckles v. United States, 137
S. Ct. 886, 890 (2017). Thus, at the time of Long’s sentencing, the residual clause
was still in effect, and we must now determine whether armed criminal action in
Missouri is a crime of violence under either the force clause or the residual clause.
See United States v. Benedict, 855 F.3d 880, 888–89 (8th Cir. 2017).
Here, the offense of conviction provides that “any person who commits any
felony under the laws of this state by, with, or through the use, assistance, or aid of
a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal
action.” Mo. Rev. Stat. § 571.015(1). Because this statute sets forth a single set of
elements, it is not divisible and we apply the categorical approach to determine
whether it is a crime of violence. See Descamps v. United States, 133 S. Ct. 2276,
2283 (2013) (categorical approach); State v. Jones, 479 S.W.3d 100, 106 (Mo. 2016)
(en banc) (stating that a person is guilty under this statute “if the evidence was
sufficient for the jury to find beyond a reasonable doubt any one of at least the . . .
nine permutations” of the three prepositions (by, with, or through) and the three
nouns (use, assistance, or aid)). Long argues a conviction under this statute is not a
crime of violence under the force clause because it does not require a person to use
a dangerous instrument or deadly weapon against the person of another; “any felony”
can include a property crime. Jones, 479 S.W.3d at 108 (“Armed criminal action
under section 571.015.1 does not require that the defendant actually attack or threaten
an imminent attack with the weapon.”). However, since we conclude the offense of
conviction is a crime of violence under the then-existing residual clause, we leave the
question of whether it also qualifies under the force clause for another day.
“To qualify as a crime of violence under the residual clause, [Long’s] prior
conviction must (1) ‘present[ ] a serious potential risk of physical injury to another,’
and (2) be ‘roughly similar, in kind as well as degree of risk posed,’ to the offenses
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listed in § 4B1.2(a)(2).” United States v. Watson, 650 F.3d 1084, 1092 (8th Cir.
2011) (second alteration in original) (quoting United States v. Boyce, 633 F.3d 708,
711 (8th Cir. 2011)). In Watson, this court held that an Oklahoma conviction under
a statute similar to the Missouri statute in this case is a crime of violence under the
residual clause. Id. at 1092–94.4 And other courts have held that convictions under
similar statutes in other states qualify as violent felonies under the now-
unconstitutional residual clause in the Armed Career Criminal Act. See, e.g., United
States v. Fife, 624 F.3d 441 (7th Cir. 2010) (analyzing 720 Ill. Comp. Stat. 5/33A-2);
United States v. Cordova, No. 7:13-CR-90-D, 2014 WL 4443294 (E.D.N.C. Sept. 9,
2014) (analyzing Mass. Gen. Laws ch. 265, § 18B).
We conclude that armed criminal action in Missouri is a crime of violence
under the residual clause. Possessing a deadly weapon or dangerous instrument while
committing a felony “presents a serious potential risk of physical injury to another”
because it is likely that the offender will later use it if he encounters another person
during the commission of the felony. See United States v. Guiheen, 594 F.3d 589,
591 (8th Cir. 2010); United States v. Haney, 23 F.3d 1413, 1418–19 (8th Cir. 1994).
And that serious potential risk of physical injury is “similar, in kind as well as degree
of risk posed,” to the enumerated offenses. See Watson, 650 F.3d at 1092; Boyce,
633 F.3d at 711. As a result, the district court did not err in assessing an additional
criminal history point for Long’s Missouri conviction for armed criminal action.
4
The Oklahoma statute provided: “Any person who, while committing or
attempting to commit a felony, possesses a pistol, shotgun or rifle or any other
offensive weapon in such commission or attempt . . . in addition to the penalty
provided by statute for the felony committed or attempted, upon conviction shall be
guilty of a felony for possessing such weapon or device, which shall be a separate
offense from the felony committed or attempted.” Watson, 650 F.3d at 1092 (quoting
21 Okla. Stat. § 1287).
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Alternatively, Long argues his 360-month sentence is substantively
unreasonable. We review the substantive reasonableness of a sentence for abuse of
discretion. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).
Long asserts the 21-year upward variance was unduly harsh and unreasonable
because it relied too heavily on his history and characteristics and because it greatly
differs from sentences other defendants received for similar conduct.
“A district court abuses its discretion when it (1) fails to consider a relevant
factor that should have received significant weight; (2) gives significant weight to an
improper or irrelevant factor; or (3) considers only the appropriate factors but in
weighing those factors commits a clear error of judgment.” Id. (internal quotation
marks and citation omitted). If a district court deviates from the advisory Guidelines
range, it must “give serious consideration to the extent of any departure from the
Guidelines and must explain [its] conclusion that an unusually lenient or an unusually
harsh sentence is appropriate in a particular case with sufficient justifications.” Id.
at 462 (alteration in original) (quoting Gall v. United States, 552 U.S. 38, 46 (2007)).
The district court has discretion to rely more heavily on some sentencing factors than
others, United States v. Townsend, 617 F.3d 991, 994 (8th Cir. 2010) (per curiam),
and a defendant challenging the district court’s sentence “must show more than the
fact that the district court disagreed with his view of what weight ought to be
accorded certain sentencing factors.” Id. at 995.
In this case, the district court gave “substantial insight into the reasons for its
determination.” Feemster, 572 F.3d at 463 (internal quotation marks and citation
omitted). The district court addressed Long’s criminal history, observing that Long
had a drug conviction at 18 and pled guilty to second-degree murder at 20. The
district court made clear that it was considering the totality of the circumstances,
including Long’s history and characteristics. Addressing Long, the district court
stated, “You have shown through your conduct that you’re not able to conform to
society as we know it in terms of you being out [of jail]. And the problem here is
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people will get hurt if you are on the street.” Finally, the district court acknowledged
that it was imposing a significant upward variance, explaining, “I think this sentence
is appropriate, and arguably the Court could have ran as high as 40 years. I didn’t,
but I think this is a sentence that is not greater than necessary, but this is a sentence
that is certainly going to protect the public from you.”
The district court adequately explained the sentence it imposed on Long. The
court clearly addressed the § 3553(a) factors and, although the court focused most on
Long’s history and characteristics, there was no abuse of discretion. Long has not
shown “more than the fact that the district court disagreed with his view of what
weight ought to be accorded certain sentencing factors.” Townsend, 617 F.3d at 995.
III.
Based on the foregoing discussion, we affirm Long’s convictions and
sentence.5
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5
Long raised a number of other arguments in supplemental pro se briefing on
appeal. Finding those arguments to be without merit, we summarily affirm under
Eighth Circuit Rule 47B. Additionally, we deny Long’s pending Motion to File a
Supplemental Reply Brief and Motion for Production of Video and for In Camera
Inspection.
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