U.S. v. Branch, 06-5393.

• Citation: 537 F.3d 582
• Decision Date: 12 August 2008
• Docket Number: No. 06-5393.,06-5393.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Craig D. BRANCH, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

537 F.3d 582

UNITED STATES of America, Plaintiff-Appellee, v. Craig D. BRANCH, Defendant-Appellant.

No. 06-5393.

United States Court of Appeals, Sixth Circuit.

Argued: April 24, 2008.

Decided and Filed: August 12, 2008.

ARGUED: Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. J. Cam Barker, United States Department of Justice, Washington, DC, for Appellee. ON BRIEF: Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. J. Cam Barker, United States Department of Justice, Washington, DC, Terry M. Cushing, Amy M. Sullivan, Assistant United States Attorneys, Louisville, Kentucky, for Appellee.

Before: SUHRHEINRICH, CLAY, and COOK, Circuit Judges.

OPINION

SUHRHEINRICH, Circuit Judge.

Craig Branch ("Branch") entered a conditional guilty plea to one charge of possessing with the intent to distribute an amount of cocaine in excess of 500 grams, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii)(II); the plea agreement preserved his right to appeal the district court's denial of pretrial motions, which he now appeals. Branch also appeals his sentence. For the reasons that follow, we AFFIRM Branch's conviction and sentence.

I. Background

Officer Jerry Colston ("Colston") is a police officer of the Oldham County, Kentucky Police Department. On the evening of March 5, 2003, Colston stopped at a Thorntons Mini-Mart off Interstate Highway 71 in Oldham County, Kentucky. While taking a break there, he observed two men, Branch and Christopher Patterson ("Patterson"), who both seemed to actively avoid him. Colston followed the two men as they drove north on I-71. After observing their car exceed the speed limit and weave out of its lane, Colston pulled the car over.

Colston approached the car and requested Branch's insurance and vehicle registration. Branch responded that he did not have either document because he had rented the car, but handed Colston his driver's license and the rental agreement. Colston examined the rental agreement and noticed that the car was overdue by several weeks. Colston requested Patterson's driver's license, and noticed that although Branch and Patterson claimed to be from New York, their driver's licenses were from Tennessee and Florida, respectively. Back at the patrol car, Colston wrote Branch a warning citation for the speeding offense, ran radio checks on the car and its occupants, and called for security backup. Colston returned to the stopped car and asked Branch to step out. As Branch stepped outside, Colston noticed that Branch's level of nervousness "just shot through the ceiling all of a sudden." Colston handed Branch the warning citation, and returned the driver's license and rental documents.

Colston told Branch that he was free to leave, but asked if he would mind staying to answer a few more questions. Branch agreed, and, in response to Colston's question as to why he and Patterson were together that evening, stated he had flown from New York to Memphis to attend a party, and that Patterson had agreed to return with him to New York. Branch acknowledged that he did not know Patterson well and knew nothing about the rental car.

Colston requested consent from Patterson to search the car, which was rented in Patterson's name. Patterson gave his consent. Colston brought his drug-detection dog over to the car, and it became excited and signaled its alert to the scent of narcotics at several places on the car. Colston proceeded to search the car by hand and discovered a small canvas bag containing slightly less than ten thousand dollars in cash.

At this point, Colston and Officer Campbell, the backup officer, patted down Branch and Patterson for weapons. Colston felt a "large unusual hard object" around Branch's waistband. Branch said it was cocaine. Colston handcuffed Branch and retrieved a kilo brick of cocaine from Branch's waistband. After being Mirandized, Branch admitted that he had been transporting the cocaine for sale.

A video recorder in Colston's patrol car had automatically recorded the entire encounter. However, when Colston reviewed the tape, he discovered that the microphone unit had not been working, and that there was no audio track on the tape. With the belief that the tape had no evidentiary value, Colston sent the tape back to the police department's clerk's office for erasure.

Branch was indicted on one count of possessing with the intent to distribute an amount of cocaine in excess of 500 grams, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii)(II). Branch filed a motion to suppress the narcotics evidence, and the magistrate judge held an evidentiary hearing, issued a report finding facts, and concluded that the seizure of cocaine was constitutional. The magistrate's report provided notice to Branch that if he did not file objections to the report within ten days of service, he would waive the right to appeal the district court's adoption of the magistrate's findings and conclusions. Branch did not file objections to the report, and on September 9, 2005, the district court adopted the magistrate judge's findings of fact and conclusions of law, and denied Branch's motion to suppress the narcotics evidence.

Branch also filed a motion to dismiss for government misconduct based on Colston's destruction of the videotape. After an evidentiary hearing, the district court found that Colston had not acted in bad faith in failing to preserve the videotape and denied the motion.

Thereafter, Branch entered a conditional guilty plea to the charge, preserving his right to appeal the denial of the pretrial motions.

Branch's presentence report ("PSR") attributed two criminal history points for two prior convictions: one point for a 1996 conviction for possession of marijuana, and one point for a 2004 conviction for conspiracy to possess and distribute marijuana.¹

During the sentencing proceedings on February 16, 2006, the district court expressed a desire to sentence Branch below the statutory mandatory minimum. The district court observed that Branch had been on bond for three years, maintained a full-time job, and provided for his family. The court observed that Branch would be eligible for relief under the safety-valve exception to the statutory mandatory minimum sentence, 18 U.S.C. § 3553(f), if Branch had no more than one criminal history point. See § 3553(f)(1) (requiring that a defendant have no more than one criminal history point for safety-valve eligibility).

The district court stated its belief that the number of criminal history points recommended by the PSR "completely misrepresent[ed]" Branch's criminal history. The district court concluded that Branch's 1996 conviction for possession of marijuana was "so insignificant that it could not ... possibly rise to a level where it would be a criminal history point." The district court held that Branch's criminal history warranted only one criminal history point, and accordingly found Branch eligible for relief under the safety-valve. Finding a low likelihood of recidivism, the district court sentenced Branch to five years' probation and issued a $100 special assessment.

On February 23, 2006, the Government filed a motion to correct the sentence under Fed.R.Crim.P. 35(a). The Government argued that the district court misapplied the safety-valve provision, and that Branch should have received the statutory mandatory minimum sentence. The Government contended that Branch was ineligible to qualify for safety-valve relief because he had too many criminal history points, and the district court's finding to the contrary was clearly erroneous in light of this Court's holding in United States v. Penn, 282 F.3d 879 (6th Cir.2002).

On February 28, 2008, without a hearing, the district court entered a new order, finding that it had made a "clear error" in sentencing Branch below the statutory mandatory minimum, because it lacked authority to lower a defendant's criminal history score to qualify him for safety-valve relief. The district court also recognized that U.S.S.G. § 4A1.2(c) does not allow exclusion of Branch's marijuana conviction from its criminal history points computation. The district court imposed a corrected sentence of the statutory mandatory minimum sentence of five years' imprisonment, followed by four years' supervised release, and a $100 special assessment. At the same time, the district court stood "by its logic and findings of fact" and its belief that "its sentence [was] reasonable for all the reasons previously stated on the record."

II. Analysis

On appeal Branch argues that the district court erred in: (1) denying his motion to suppress; (2) denying his motion to dismiss for violation of his due process rights; and (3) changing his sentence under Fed.R.Crim.P. 35(a).

A. Motion to Suppress

Branch has forfeited his right to appeal the district court's denial of his suppression motion by failing to object to the magistrate judge's report and recommendation. The report clearly indicated that Branch had ten days to file an objection or waive further appeal. As the district court noted, Branch did not do so. The law in this Circuit is clear on this point. See United States v. Walters, 638 F.2d 947, 950 (6th Cir.1981); see also Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (holding that this Court's waiver rule is within its supervisory powers); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 508 (6th Cir.1991).²

Branch's challenge is without merit in any event, even if we reviewed it de novo. In reviewing a district court's denial of a motion to suppress, we review the factual findings for clear error and the legal conclusions de novo. United States v. Graham, 483 F.3d 431, 435 (6th Cir. 2007). "With regard to Terry-stop analysis in particular, although the standard of review on the ultimate reasonable suspicion inquiry is de novo, the district court is at an institutional advantage, having observed the testimony of the witnesses...