U.S. v. Brothers, 05-5062.

• Decision Date: 23 February 2006
• Docket Number: No. 05-5062.,05-5062.
• Citation: 438 F.3d 1068
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clifford Earl BROTHERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1068

438 F.3d 1068

UNITED STATES of America, Plaintiff-Appellee, v. Clifford Earl BROTHERS, Defendant-Appellant.

No. 05-5062.

United States Court of Appeals, Tenth Circuit.

February 23, 2006.

Submitted on the briefs: James Fatigante, Tulsa, OK, for Defendant-Appellant.

David E. O'Meilia, United States Attorney, Kevin Danielson, Assistant United States Attorney, Tulsa, OK, for Plaintiff-Appellee.

Before TACHA, Chief Circuit Judge, and ANDERSON and BALDOCK, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Clifford Earl Brothers was convicted, following a jury trial, of being a convicted felon and armed career criminal in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), and was sentenced to 240 months' imprisonment followed by five years' supervised release. He appeals his conviction and sentence, arguing that the district court erred (1) by dismissing a juror for cause, (2) by denying his motion to suppress evidence found during the search of his truck, (3) by determining that Brothers' prior convictions constituted "violent felonies" under the Armed Career Criminal Act, 18 U.S.C. § 924, and (4) by holding that the Armed Career Criminal Act is constitutional. For the reasons set forth below, we affirm.^*

BACKGROUND

On June 15, 2004, seeking to execute an Oklahoma felony warrant against Brothers, Tulsa Police Officers Mark Kennedy and Victor Regalado, together with U.S. Deputy Marshal Johnny Larkin, all in separate vehicles, set up surveillance at a house where Officer Kennedy had received a tip that Brothers might be located. They observed two individuals exiting the house and approaching a pickup truck. According to his testimony in the motion to suppress hearing, Officer Regalado, who was in a separate vehicle to the west of the house, drove past the truck and was able to identify Brothers based on a photograph and previous contacts with Brothers. Officer Regalado informed Officer Kennedy and Deputy Larkin of his identification of Brothers by radio. Brothers entered the passenger side of the truck and the person with him, a female who was later identified as Jamie Kimbrel, began driving the truck eastbound. At the hearing, Officer Kennedy testified that he decided to let the truck drive into an open area before stopping it so that Brothers "couldn't run back in the house or . . . get . . . deeper into the neighborhood." Hr'g Tr. at 13, R. Vol. III.

Approximately two minutes later, Officer Kennedy further testified, he observed the truck pull into a Dollar General parking lot and observed "[t]he suspect, Mr. Brothers, . . . in the passenger's seat, and he was making movements down underneath the bench seat of the pickup like he was getting underneath the seat." Id. at 14. Officer Kennedy then activated the emergency equipment on his vehicle, exited the vehicle, and asked Brothers to step out of the pickup truck. Officer Kennedy and Deputy Larkin then approached the truck and placed Brothers in handcuffs, and Officer Kennedy did a pat-down search of Brothers. During the search, Officer Kennedy found "a bag that had a wad of something" he could not immediately identify. Id. at 16. He "pulled [the bag] out of [Brothers'] pocket" and found it to be a Crown Royal bag that was "loaded down with several rounds of nine-millimeter ammo." Id. According to Officer Kennedy, suspects often "put drugs, ammo, guns, and several illegal items into Crown Royal bags." Id. After Officer Kennedy found the ammunition, Brothers volunteered "that people had been after him, shooting at him." Id. at 17.

Officer Kennedy testified that, based on the movement he observed in the truck, the ammunition, Brothers' statement, and his personal knowledge that Brothers had a prior conviction for pointing a deadly weapon, Officer Kennedy "was worried about a handgun" in the truck and therefore searched the vehicle. Id. The search took place two or three minutes after Brothers had been handcuffed and his pockets searched. During the search, a handgun was discovered in the middle area underneath the seat.

An indictment was subsequently issued, charging Brothers with knowing possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The indictment listed three prior convictions for Brothers in Tulsa County district court of offenses punishable by imprisonment for more than one year: first degree burglary, on February 23, 1998; first degree rape, on March 5, 1993; and feloniously pointing a weapon, on February 23, 1998. Prior to trial, Brothers moved to suppress the firearm as evidence, arguing that it was the fruit of an illegal search of the pickup truck. Following a hearing, the district court denied Brothers' motion, holding that the search of the truck was lawful as a search incident to Brothers' arrest or, alternatively, because Officer Kennedy had probable cause to believe the truck contained a weapon.

Trial proceedings began on January 18, 2005. After the jury was impaneled and sworn, the court informed the parties that one of the jurors was "upset about something related to jury selection and maybe the fact that she didn't disclose something to us." Trial Tr. at 3, R. Vol. IV. The juror in question was then brought before the court and counsel, and she informed them that she had a twin brother who had been imprisoned at the age of eighteen and had served thirteen years before being released three years prior, and that her grandfather had recently been killed in a dispute at her child's school. The juror indicated that she did not want to "be[] in here . . . around this kind of stuff" or to "decide someone's fate." Id. at 5.

The prosecutor moved to strike the juror for cause. Brothers' counsel objected "because [he] d[id]n't think at this point there's a specific bias one way or the other or any reason that she could not listen to the evidence and deliberate." Id. at 7. The court then asked the juror, "do you feel that because of the things that happened to your brother and to you and to your grandfather, that you would be unable to be fair to both sides?" Id. The juror responded that she had "no comments on that" but that "there's so much things that have happened, [she] d[id]n't want to say he's guilty; [she] d[id]n't want to say he's not guilty." Id. She further indicated that being in the courtroom made her "flash back on everything that went down with" her, and that she would not be able to concentrate on the trial. Id. at 8. The court responded, "So you have more than just an issue with regard to deciding someone's fate. It's hard for you to even just sit here. . . ." Id. The court then excused the juror for cause.

At the conclusion of the trial, the jury found Brothers guilty of the offense charged in the indictment. The United States Probation Office then prepared a Presentence Report ("PSR"). The PSR indicated that Brothers' three prior convictions qualified as convictions for a violent felony, as defined in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2), and that Brothers was therefore an armed career criminal under that Act, leading to a mandatory minimum sentence of fifteen years and a sentencing level of 33 under United States Sentencing Commission, Guidelines Manual ("USSG"), § 4B1.4(b)(3)(B) (2004). Combined with a criminal history category of VI, this sentencing level produces a guideline range for imprisonment of 235 to 293 months.

Brothers objected to the PSR's determination that he was subject to the Armed Career Criminal Act, first on the basis that the government had offered no evidence at trial, nor had the jury found, that Brothers had three violent felony convictions; and second on the basis that the Armed Career Criminal Act was unconstitutional under the Sixth Amendment, the Double Jeopardy Clause, and the reasoning of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Brothers' first objection focused on whether his prior conviction of feloniously pointing a weapon qualified as a violent felony under the Act. Considering that a legal issue, the district court ruled that the offense of feloniously pointing a weapon, as defined in Okla. Stat. Ann. tit. 21, § 1289.16, "clearly has as an element the threatened use of physical force against another person and meets the statutory definition of violent felony." Sentencing Hr'g Tr. at 13, R. Vol. V. The court also held that Brothers' constitutional challenge failed under settled Tenth Circuit law. Considering the guideline range as advisory in accord with Booker, and taking into account the factors set forth in 18 U.S.C. § 3553(a), the court sentenced Brothers to 240 months' imprisonment, followed by five years' supervised release, and imposed a $5000 fine. Brothers appealed his conviction and sentence, raising the arguments set forth above.

DISCUSSION

I. DISMISSAL OF JUROR

Brothers first argues that the district court erred when it dismissed a juror for cause after the jury was impaneled. Where, as here, the district court relied on its own face-to-face credibility assessment of a juror in determining whether the juror should be excused, we review the court's decision for an abuse of discretion. United States v. Chanthadara, 230 F.3d 1237, 1269 (10th Cir.2000).

We have stated that the determination of "whether to excuse a juror rests on whether the juror can remain impartial." United States v. Black, 369 F.3d 1171, 1176 (10th Cir.2004) (internal quotation omitted). This rule is based on a defendant's Sixth Amendment right to a fair trial "by an impartial jury." U.S. Const. amend. VI; see United States v. Scull, 321 F.3d 1270, 1278 (10th Cir.2003). The Supreme Court has defined an impartial jury in this context as "a jury capable and willing to decide the case solely on the evidence before it." Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)....