United States v. Michael Carr

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-2455
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Michael Patrick Carr
lllllllllllllllllllllDefendant - Appellant
___________________________
No. 17-2548
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jonathan Leroy Homedew
lllllllllllllllllllllDefendant - Appellant
___________
Appeals from United States District Court
for the Southern District of Iowa - Des Moines
____________
Submitted: January 12, 2018
Filed: July 20, 2018
____________
Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
____________
SMITH, Chief Judge.
This is a consolidated appeal of two drug coconspirators’ cases. Jonathan Leroy
Homedew was convicted of conspiracy to distribute methamphetamine, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(a), and 846. He appeals the district court’s1 denial
of his motion to suppress and alleges that his trial counsel’s ineffective assistance led
to the denial of his motions to dismiss the indictment for violation of his speedy trial
rights. Michael Patrick Carr was convicted of possession of methamphetamine, in
violation 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). He appeals the substantive
reasonableness of his prison sentence. We affirm.
I. Background
On September 7, 2016, United States Postal Inspector Kevin Marshall
identified a suspicious package while conducting a routine examination of parcels at
the United States Postal Service’s facility in south Des Moines, Iowa. After a drug-
sniffing dog alerted to the presence of a controlled substance, Marshall obtained a
1
The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
-2-
search warrant to open the package.2 He found that the parcel contained
approximately one kilogram of methamphetamine.
Law enforcement conducted a controlled delivery of the package to its intended
address. Shortly after the package was delivered, Carr arrived in a vehicle registered
to Homedew. Carr retrieved the package and drove off. The authorities arrested Carr
shortly thereafter. He chose to cooperate with police. Carr disclosed that he had a
business relationship with “Jon.” Carr stated that he anticipated receiving another
approximately 27 pounds of methamphetamine from Jon that had already been
shipped. Carr also told police that Jon was flying into town the next evening. Using
text messages Carr showed them, Jon’s cell phone number, and a social media search,
law enforcement concluded that Jon was Jonathan Homedew.
On September 8, about ten law enforcement officers positioned themselves
around the Des Moines airport in anticipation of Homedew’s arrival. They spotted
him leaving the airport with a backpack. Police arrested Homedew and took
possession of his backpack. The backpack was not immediately searched. Officers
escorted Homedew to a police vehicle, and when asked, Homedew disclosed that he
had checked one bag. Officer Ben Carter asked Homedew for permission to look in
the backpack to retrieve the baggage claim receipt. Homedew told him to “go ahead,”
and said the receipt would be in the top pouch. United States v. Jonathan Leroy
Homedew, No. 4:16-cr-0145-JAJ-HCA-1, slip op. at 3 (S.D. Iowa Dec. 22, 2016),
ECF No. 130. While looking for the baggage receipt, Carter noticed three postal
receipts commingled with other papers in the pouch. Given what he knew about the
2
The search warrant application, which the district court’s order on the motion
to suppress references, lists a number of factors in support of Marshall’s belief that
the package was suspicious. For example, it was an Express Mail package that
weighed about one pound, when most parcels sent express are less than half that
weight; the label was handwritten; and the sender, recipient, and return address
appeared to be fictitious.
-3-
case to that point, he surmised that the postal receipts could contain incriminating
information and seized them as well. Carter then began opening another zipper,
prompting Homedew to withdraw his consent to look in the bag. Carter stopped the
search. Upon Homedew’s and the officers’ arrival at the police station, Carter made
copies of the receipts and went online to track their progress. He also provided copies
to Marshall, the postal inspector.
After being transported to the police station, Homedew consented in writing
to a police interview. He was Mirandized and told that he was not obligated to
participate in or continue the interview. Homedew expressed his belief that the search
of his backpack at the airport had exceeded the scope of his consent. Nonetheless, he
eventually consented to the search of his backpack and checked bag. Notes found in
his checked luggage corroborated information Carr gave police about the drug
operation.
Using the postal receipts, Marshall retrieved eight more packages containing
methamphetamine—seven at the Des Moines postal station, and one at the post office
in Winterset, Iowa.
On September 21, 2016, the government indicted Homedew and Carr, as well
as Sonya Rae Tucker and Amber Marie Shipp, with conspiracy to distribute over 50
grams of actual methamphetamine and 500 grams of a mixture or substance
containing a detectable amount of methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1) and 846. Carr, Tucker, and Shipp were also charged with a single
count of possession with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(C).
On November 7, 2016, Homedew’s appointed counsel moved to suppress
evidence obtained from the search of his backpack and seizure of the postal receipts,
-4-
including the fruits of the search of his checked baggage and other items, arguing that
the search and seizure violated his Fourth Amendment rights.
The court consolidated the defendants’ trial schedules and set trial for all four
defendants for November 28, 2016. On November 1, Shipp’s counsel moved to
continue the trial for three months, alleging that Shipp needed time to work out her
plea deal and that her codefendants had no objection. The court granted the motion
following a hearing and reset trial for February 13, 2017. The court, citing the ends
of justice, excluded the time between the filing of the motion and the new trial date
from consideration under the Speedy Trial Act. See 18 U.S.C. § 3161(h)(1)(7)(A).
On December 16, upon discovering the continuance, Homedew filed a pro se
motion claiming that his attorney had ignored his clear request to file an objection to
any continuance of his trial. Homedew asserted a violation of his right to a speedy
trial. He also requested that the court appoint him new counsel. He subsequently filed
a pro se motion to sever and a pro se motion to dismiss. The gravamen of both
motions was that delays in the case violated his right to a speedy trial under both the
Speedy Trial Act and the Sixth Amendment. The court appointed substitute counsel,
who also filed a motion to dismiss the indictment for violations of Homedew’s right
to a speedy trial. The pro se and counsel-filed motions to dismiss alleged that
Homedew’s previous counsel had failed him by consenting to a continuance against
his wishes.
The district court denied Homedew’s motion to suppress. First, it found that
Homedew had voluntarily consented to the search of his backpack. Second, the court
found that the search was properly undertaken incident to Homedew’s arrest. Third,
the court found that the plain view doctrine justified the seizure of the postal receipts.
Finally, the court denied the motion under the inevitable discovery doctrine. It
explained that even if the search was improper, the information possessed by the
-5-
police at that point would have, in concert with their investigative techniques,
resulted in the discovery of the remaining methamphetamine.
The court also denied the speedy trial motions, determining that fewer than 40
excludable days had elapsed since Homedew’s arraignment. It also noted that
Homedew had not provided any authority in support of his proposition that an
objection to the continuance should have prevented an otherwise justifiable resetting
of the trial date. A jury subsequently found Homedew guilty of the charged crime. He
was sentenced to 360 months’ imprisonment.
Whereas Homedew was held in custody pending resolution of his case, Carr
was granted pretrial release. Carr violated the conditions of that release by
absconding for over two months. After being arrested in Florida and returned to Iowa,
Carr pleaded guilty pursuant to a plea agreement to the possession count; the
conspiracy count against him was dismissed.
Carr’s presentence investigation report (PSR) charged him with responsibility
for 17.55 kilograms of actual methamphetamine. Due to Carr’s abscondment, the PSR
called for an obstruction-of-justice enhancement and denial of credit for acceptance
of responsibility. See U.S.S.G. § 3C1.1 (obstruction of justice); U.S.S.G. § 3E1.1
(acceptance of responsibility). The PSR set a total offense level of 40 and a criminal
history category of II. By normal calculation, Carr’s Guidelines range would have
been 324 to 405 months. Here, however, his Guidelines range was capped by the
statutory maximum of 240 months. See 21 U.S.C. § 841(b)(1)(C); U.S.S.G.
§ 5G1.1(c)(1).
Carr requested a downward variance to 120 months. He argued that his
extensive criminal history overstated his actual criminality. He attributed most of his
criminal behavior to an addiction to drugs. Furthermore, he asserted that his role in
the offense was relatively minor and was similar to that of codefendants Shipp and
-6-
Tucker, who respectively received sentences of 84 and 90 months. Additionally, he
stated that his assistance to law enforcement was valuable to the government. Finally,
he claimed he left the jurisdiction primarily to see his father for the first time in 30
years, not to avoid prosecution.
The government conceded that Carr had been helpful at the outset of the case
but intimated that it likely would have been able to make its case even without his
help. It also emphasized the depth of Carr’s involvement in the crime, noting that
Carr played a major role in moving a large quantity of illegal drugs across the
country. The government also underscored the seriousness of Carr’s two-month flight
from the jurisdiction. It nonetheless requested that Carr receive the full three-level
reduction for acceptance of responsibility and advocated for a sentence on the low
end of the Guidelines range.
The court granted Carr the full acceptance of responsibility reduction, resulting
in a Guidelines range of 235 to 240 months. In pronouncing sentence, the court set
forth a number of factors affecting its decision. It mentioned the “staggering amount
of very pure methamphetamine”; the “extent to which [Carr’s role was]
addiction-driven and the extent to which it exceeds addiction-driven behavior”; the
need for just punishment; and Carr’s criminal history, including a previous felony
drug conviction. Transcript of Sentencing Hearing at 10–11, United States v. Carr,
No. 4:16-cr-00145-JAJ-HCA-2 (S.D. Iowa June 21, 2017), ECF No. 238. The court
also noted the “extent to which the obstruction of justice enhancement perhaps
overstates the culpability or the seriousness of that behavior in this case.” Id. at 11.
The court rejected Carr’s disparity argument, concluding, “I don’t find [Shipp and
Tucker] to be similarly situated in terms of the drug quantity associated with them,
and their role in the offense was not as aggravated.” Id. The court imposed a below-
Guidelines range sentence of 190 months’ imprisonment.
-7-
II. Discussion
On appeal, Homedew argues that the district court erred in denying his motion
to suppress. He also raises an argument regarding ineffective assistance of counsel
with regard to his assertion of his speedy trial rights. Carr challenges his sentence as
substantively unreasonable. We review each appeal in turn.
A. Homedew
1. Motion to Suppress
“We review the denial of a motion to suppress de novo but the underlying
factual determinations for clear error, giving due weight to inferences drawn by law
enforcement officials.” United States v. Hayden, 759 F.3d 842, 846 (8th Cir. 2014)
(citation omitted). “We affirm . . . unless the district court’s decision 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. Corrales-
Portillo, 779 F.3d 823, 829 (8th Cir. 2015) (ellipsis in original) (quoting United
States v. Wallace, 713 F.3d 422, 426 (8th Cir. 2013)).
“A consensual search does not violate the Fourth Amendment if the consent
was given voluntarily and without coercion.” United States v. Meza-Gonzalez, 394
F.3d 587, 592 (8th Cir. 2005) (citing United States v. Martinez, 168 F.3d 1043, 1046
(8th Cir. 1999)). The government must prove voluntary consent by a preponderance
of the evidence. Id. (citations omitted). Whether a defendant consented to a search is
a factual matter reviewed for clear error. Id. at 591 (citation omitted).
At the suppression hearing, Carter testified that he asked Homedew, “Do you
mind if I look through your backpack?” and that Homedew replied, “Go ahead.”
Transcript of Suppression Hearing at 51, United States v. Homedew, No. 4:16-cr-145-
JAJ-HCA-1 (S.D. Iowa Nov. 22, 2016), ECF No. 252. Further, an exchange during
the custodial interview suggests that Homedew acknowledged having consented to
the search that resulted in the seizure of the receipts. The district court stated: “The
-8-
interviewing officer reminded the defendant that he had consented to the retrieval of
his baggage claim receipt, ‘You told us we could look in there to get the . . . ’ at
which point the defendant cut off the officer stating ‘You had the receipt . . . you still
kept looking.’” Slip Op. at 4 (ellipses in original). The government’s representation
that Homedew gave the officer permission to search his bag without a warrant is
“coherent and facially plausible” and “not contradicted by extrinsic evidence.” United
States v. Mendoza, 677 F.3d 822, 827 (8th Cir. 2012) (quoting Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 575 (1985)). Accordingly, we find no error in the
district court’s decision to accept that version of events.
Homedew insists that if he did give consent, it was not voluntary and more
limited than the search actually conducted. He points out that when asked for
permission, he was “surrounded by police officers, was the focus of a particular
investigation, was hand cuffed and physically controlled by the officers, his back
pack was in possession of police, weapons were displayed and there was no
uncertainty that compliance was necessary.” Homedew’s Br. at 35–36.
We determine whether consent is voluntary by examining the totality of the
circumstances, including
(1) the individual’s age and mental ability; (2) whether the individual
was intoxicated or under the influence of drugs; (3) whether the
individual was informed of [his] Miranda rights; and (4) whether the
individual was aware, through prior experience, of the protections that
the legal system provides for suspected criminals. It is also important to
consider the environment in which an individual’s consent is obtained,
including (1) the length of the detention; (2) whether the police used
threats, physical intimidation, or punishment to extract consent; (3)
whether the police made promises or misrepresentations; (4) whether the
individual was in custody or under arrest when consent was given; (5)
whether the consent was given in public or in a secluded location; and
(6) whether the individual stood by silently or objected to the search.
-9-
United States v. Quintero, 648 F.3d 660, 667 (8th Cir. 2011) (quoting United States
v. Golinveaux, 611 F.3d 956, 959 (8th Cir. 2010)).
It is true that up to ten officers were on the scene and at least two officers were
in the immediate vicinity of the police car containing Homedew. Further, Homedew
was under arrest and handcuffed. But there is no evidence of any threat, physical
intimidation, or punishment. The area was a public airport and not secluded. When
an officer asked if he could search Homedew’s backpack for the baggage claim
receipt, Homedew gave an affirmative response. The record gives us no indication
that at the time of his arrest, Homedew was anything other than a sober, middle-aged
man with no mental defects. And though he was not read his rights before consenting,
he has an extensive criminal record and prior experience with the legal system.
Further, the record does not indicate that the length of his detention before he gave
his consent was of inordinate length. The district court found that Homedew “was
under arrest for only a few moments when he gave his consent.” Slip Op. at 6–7.
Homedew objected to the search once he thought the officers obtained not only the
baggage claim receipt but also the postal receipts. He withdrew his consent, and the
search ended.
The district court’s finding of voluntary consent was not clearly erroneous.
“Because we find the warrantless search valid on the basis of consent, we need not
address the alternative theories advanced by the Government to justify the search.”
United States v. Lumpkins, 687 F.3d 1011, 1014 n.3 (8th Cir. 2012). Accordingly, we
affirm the denial of the motion to suppress.
2. Speedy Trial
Homedew contends that if not for his attorney’s acquiescence to a continuance
requested by a codefendant and filing of a motion to suppress, both against his
wishes, he would have been able to obtain a dismissal under the Speedy Trial Act or
under the Sixth Amendment’s guarantee of a speedy trial.
-10-
Homedew’s argumentation of this issue is somewhat muddled. He makes a
passing reference to a belief that the district court improperly determined that the time
during which a detention motion pended was excludable. Homedew’s Br. at 29–30
(“It is Homedew’s position that the orders in regard to the revocation of the pretrial
status of Amber Shipp are also not the kinds of motions or order that affect the trial
matters, but merely concern where she would be held pending trial.”). However, at
its core, this argument is a claim of ineffective assistance of counsel. See id. at 28–30
(discussing speedy trial and ineffective assistance/habeas law, framing issue primarily
in terms of counsel’s deficiencies, and concluding section, “Homedew was deprived
of his right to a speedy trial as guaranteed by the Sixth Amendment and the Speedy
Trial Act by his attorney.”).
Homedew’s ineffective assistance of counsel claim is premature in this direct
appeal. We have stated:
While “[g]enerally, ineffective assistance of counsel claims are
better left for post-conviction proceedings,” this Court may decide an
ineffective assistance issue on direct appeal if the ineffectiveness is
“readily apparent or [the representation is] obviously deficient,” if
resolution on direct appeal will “avoid a plain miscarriage of justice,” or
if “the record has been fully developed.”
United States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006) (alterations in original)
(quoting United States v. Cook, 356 F.3d 913, 919–20 (8th Cir. 2004)).
The district court held a hearing on Homedew’s motion to substitute counsel.
Though trial counsel conceded that her client wanted no continuances, she also stated
that he had been fervent about the need to file a motion to suppress. Counsel stated
that she believed the continuance was necessary to make an adequate suppression
argument.
-11-
Additionally, the testimony at the hearing focused on whether the attorney-
client relationship had so degraded that a new attorney was necessary. The hearing
did not explore the quality of legal representation that had been provided. We
consider this record to be inadequate to enable appellate review of whether
Homedew’s first attorney failed to render effective assistance. See United States v.
Ramirez-Hernandez, 449 F.3d 824, 827 (8th Cir. 2006) (“A properly developed
record for purposes of determining a claim of ineffective assistance of counsel would
include cross-examination by [the defendant] of his counsel on the question of what
advice counsel gave him.”). Furthermore, counsel’s ineffectiveness was not “readily
apparent,” her representation was not “obviously deficient,” and no plain miscarriage
of justice is before the court. See Rice, 449 F.3d at 897.
Because none of the listed exceptions is present, this issue is best addressed in
a habeas petition. See United States v. McAdory, 501 F.3d 868, 872–73 (8th Cir.
2007) (noting that appellate court ordinarily defers ineffective assistance of counsel
claims to 28 U.S.C. § 2255 proceedings).
We therefore reject this claim without prejudice. See id.
3. Pro Se Supplemental Brief
Finally, Homedew has filed a motion for leave to file a pro se supplemental
brief and tendered his proposed brief for the court’s consideration. “It is Eighth
Circuit policy not to address issues raised by a defendant in pro se filings with this
Court when he is represented by counsel.” United States v. Benson, 686 F.3d 498,
504–05 (8th Cir. 2012) (citing United States v. Halverson, 973 F.2d 1415, 1417 (8th
Cir. 1992) (per curiam)). Notwithstanding this policy, we grant Homedew’s motion.
After review of Homedew’s supplemental materials, we conclude that these
additional arguments are without merit and do not raise additional issues warranting
discussion.
-12-
B. Carr
Carr argues on appeal that his sentence represents an unwarranted disparity
when juxtaposed with the sentences of codefendants Shipp and Tucker and is
therefore substantively unreasonable. See 18 U.S.C. § 3553(a)(6). We review this
contention under “a deferential abuse-of-discretion standard” and hold that it is
without merit. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)
(citations omitted).
Shipp received a sentence of 84 months’ imprisonment and Tucker received a
sentence of 90 months’ imprisonment. Carr’s Guidelines range was 235 to 240
months, yet he received a sentence of only 190 months. “When a district court varies
downward from a presumptively reasonable guideline sentence, ‘it is nearly
inconceivable that the court abused its discretion in not varying downward still
further.’” United States v. Zauner, 688 F.3d 426, 429 (8th Cir. 2012) (quoting United
States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009)).
Regarding sentencing disparity, our jurisprudence leaves some question as to
whether this factor is aimed at “national disparities . . . [or] differences among co-
conspirators.” United States v. Fry, 792 F.3d 884, 892 (8th Cir. 2015) (citations
omitted). However, there is no doubt that a sentencing disparity argument requires a
showing that the appellant and his comparators are similar in “conduct and record.”
United States v. Maxwell, 778 F.3d 719, 736 (8th Cir. 2015). Here, Carr’s PSR held
him responsible for a higher drug quantity than both Shipp and Tucker: 17.55
kilograms versus 5.67 kilograms for Shipp and 12.5 kilograms for Tucker.
Furthermore, Tucker and Shipp were the beneficiaries of motions for downward
departure due to substantial assistance. See U.S.S.G. § 5K1.1. No such motion was
filed on Carr’s behalf. That fact, as well as Carr’s greater drug quantity, distinguish
him from Shipp and Tucker. The district court did not abuse its discretion.
-13-
III. Conclusion
We grant Homedew’s motion to file a pro se supplemental brief and affirm the
district court’s denial of his motion to suppress. We affirm the judgment in Carr’s
case. We reject, without prejudice, Homedew’s ineffective assistance of counsel
claim.
______________________________
-14-