United States v. Prosise, 022610 FED4, 08-4733

Docket Nº:08-4733
Opinion Judge:PER CURIAM:
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAY PROSISE, a/k/a Steiner, a/k/a Raymond Prosise, Defendant-Appellant.
Attorney:James T. Maloney, MALONEY & DAVID, PLLC, for Appellant. Michael Calvin Moore, OFFICE OF THE UNITED STATES ATTORNEY for Appellee. Dana J. Boente, Acting United States Attorney for Appellee.
Judge Panel:Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Case Date:February 26, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit



RAY PROSISE, a/k/a Steiner, a/k/a Raymond Prosise, Defendant-Appellant.

No. 08-4733

United States Court of Appeals, Fourth Circuit

February 26, 2010


Argued: January 27, 2010.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (3:07-cr-00322-RLW-1)


James T. Maloney, MALONEY & DAVID, PLLC, for Appellant.

Michael Calvin Moore, OFFICE OF THE UNITED STATES ATTORNEY for Appellee.


Dana J. Boente, Acting United States Attorney for Appellee.

Before NIEMEYER, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.


Ray Prosise was convicted of five drug- and firearm-related offenses in the Eastern District of Virginia and sentenced to life plus sixty months' imprisonment. In this appeal, Prosise contends that the district court erred by denying his pretrial motion to suppress evidence and in applying the Sentencing Guidelines. As explained below, we affirm.


On April 1, 2008, at the conclusion of a two-day trial in Richmond, the jury returned verdicts of guilty as to all five counts against Prosise in the operative indictment.1 Those counts were: conspiracy to distribute five kilograms or more of cocaine hydrochloride ("cocaine") and fifty grams or more of cocaine base ("crack"), in contravention of 21 U.S.C. § 846 (Count One); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Two); possession of a firearm by a convicted felon, in contravention of 18 U.S.C. § 922(g)(1) (Count Three); assault on a federal officer, in violation of 18 U.S.C. § 111(a) (1) (Count Four); and use of a communication facility in the commission of a felony, in contravention of 21 U.S.C. § 843(b) (Count Seven).

On July 2, 2008, the district court sentenced Prosise to life plus sixty months' imprisonment. Prosise then timely noted this appeal from the court's final judgment. We possess jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.


In assessing a trial court's ruling on a motion to suppress, we review the court's factual findings for clear error and its legal determinations de novo. See United States v. Kellam, 568 F.3d 125, 132 (4th Cir. 2009). In so doing, we must construe the evidence in the light most favorable to the prevailing party. See United States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008) . We review sentences under a deferential abuse-of-discretion standard, "first ensur[ing] that the district court committed no significant procedural error," including "improperly calculating [ ] the Guidelines range." Gall v. United States, 552 U.S. 38, 51 (2007) . In assessing whether a sentencing court properly applied the Guidelines, we review factual findings for clear error and legal conclusions de novo. See United States v. Chacon, 533 F.3d 250, 253 (4th Cir. 2008) .



On October 5, 2007, prior to trial, Prosise filed his motion to suppress evidence. The district court conducted a hearing on the suppression motion on November 9, 2007, and denied the motion by its Order of November 15, 2007, for reasons explained in the accompanying Memorandum Opinion (the "Opinion").2 In ruling on the suppression motion, the court made the following findings of fact:

Since 2005, [Prosise] had been the subject of an ongoing investigation into alleged drug distribution. Law enforcement had interviewed more than six different informants or witnesses who had provided information about the defendant's alleged activities over a period of approximately two years. An informant referred to herein as Confidential Source ("CS") provided information to law enforcement in August 2007. He told law enforcement that he had assisted the defendant in transporting kilogram quantities of cocaine in the past, and he provided specific information regarding activities that had taken place at various locations. On August 16, 2007, the CS told law enforcement that Prosise was going to North Carolina to pick up multiple kilograms of cocaine and transport it back to Virginia in Prosise's green Suburban. Numerous conversations took place on August 16 and 17 between the CS and law enforcement, as the CS continued to update law enforcement on Prosise's alleged activities.

Several law enforcement agencies were involved in the investigation, including agents from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATFE), agents from the Drug Enforcement Agency (DEA), members of the Richmond District Office High Intensity Drug Trafficking Area Task Force (TF), and members of the Sussex County, Virginia Sheriff's Department. On the morning of August 17, law enforcement received new information from the CS regarding Prosise's whereabouts, including information that the defendant had returned from North Carolina with a quantity of cocaine, that he was armed with a .40 caliber Glock handgun with a laser sight and another handgun, and that he was at the residence of his wife/girlfriend at 18813 Manson Church Road, McKenney, Virginia. After receiving that information, a group of law enforcement officers, including officers and agents from the ATFE, DEA, TF, and Sussex County Sheriff's Department, gathered near the residence at 18813 Manson Church Road, McKenney, Virginia, waiting while another officer and personnel in the U.S. Attorney's Office prepared documents to obtain a federal search warrant for that residence and another used by the defendant. The CS had also reported that it was anticipated that the defendant would remain at that residence until approximately 11:00 a.m.3 Based on that information, law enforcement had located the defendant's green Suburban at 18813 Manson Church Road, McKenney, Virginia. Law enforcement then developed a plan to stop the defendant in his vehicle if he left the residence before the search warrants were signed and executed. This plan was communicated to the various law enforcement officers, and the officers positioned themselves and their vehicles to carry out the plan.

At approximately 11:45, the defendant left the residence. The officers moved into position with two vehicles, driven by TF Officer Talbert and TF Officer Layman, blocking Lew Jones Road approximately one mile from where the defendant turned right onto Lew Jones Road from Manson Church Road. TF Supervisor Blackwood, who was driving a vehicle that was positioned immediately in front of the defendant on Lew Jones Road at a speed of approximately 25 m.p.h., activated his emergency lights, and began to slow down. DEA Agent Montgomery, who was driving a vehicle that was immediately behind the defendant's vehicle, moved in closer to the defendant's vehicle. The defendant moved his vehicle from side to side, attempting to get around Blackwood, but Blackwood slowed down even more, stopped, and then reversed slowly, attempting to contain the defendant's vehicle. At the same time, Montgomery tried to assist with vehicle containment from the rear and inadvertently bumped the defendant's car's rear bumper. The defendant then accelerated, turned left, and hit the rear driver's side of Blackwood's vehicle. The defendant then drove up the left side embankment of Lew Jones Road, with his right two tires in the drainage ditch and his left two tires on the top of the embankment of the road, near the fence. He stopped briefly at the beginning of an open driveway, where he appeared to be stuck in the drainage ditch. At this point, several officers got out of their vehicles, wearing bullet-proof vests with police insignia. Talbert and Layman were in the driveway, directly in front of the defendant's Suburban. Talbert and others gave commands to the defendant, identifying themselves as the police and ordering him out of the car. As Blackwood approached the passenger door of the defendant's car, the defendant accelerated, the engine raced, the car rose up several feet, and it headed for Talbert. As the car came toward him, Talbert fired four rounds into the passenger side rear tire and rim. The defendant made a sharp left turn into the driveway and drove across the property, followed by Blackwood and Montgomery in their vehicles. The defendant stopped at a pond, then appeared to drive purposefully straight into the pond. He disregarded the officers' instructions to come out of the vehicle, instead remaining in the vehicle and throwing what appeared to be 8 to 10 one-ounce baggies of white powder and other items out of the car into the pond for several minutes. He finally exited [through] the passenger side window, waded ashore, and was placed under arrest. The officers retrieved the baggies and a .40 caliber Glock handgun with a laser sight from the pond just outside the Suburban's driver's side door. They also found scales in the car.

Opinion 1-4 (footnote and citations omitted).

Prosise had moved "to suppress any and all evidence taken from [him] or his person or his automobile after he was illegally detained and searched in violation of his Constitutional rights." J.A. 16. Prosise...

To continue reading