U.S. v. Delaney

Citation397 U.S.App.D.C. 133,651 F.3d 15
Decision Date15 July 2011
Docket NumberNo. 10–3062.,10–3062.
PartiesUNITED STATES of America, Appelleev.Antwan C. DELANEY, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

OPINION TEXT STARTS HERE

Appeal from the United States District Court for the District of Columbia (No. 1:09–cr–00217).Adam H. Kurland, appointed by the court, argued the cause and filed the briefs for appellant.John P. Gidez, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and Roy W. McLeese III, Elizabeth Trosman, and John P. Dominguez, Assistant U.S. Attorneys.Before: ROGERS, TATEL, and GRIFFITH, Circuit Judges.Opinion for the Court by Circuit Judge ROGERS.ROGERS, Circuit Judge:

Following the denial of his motion to suppress evidence seized from his car, Antwan Delaney entered a conditional plea to unlawful possession of a firearm and ammunition by a convicted felon, 18 U.S.C. § 922(g)(1), possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(1) & (b)(1)(D), and possession of a firearm during a drug trafficking offense, 18 U.S.C. § 924(c)(1). On appeal, he challenges the district court's finding that he consented to the search of his car, and the district court's refusal at sentencing to consider all of the proffered facts concerning his relevant history and characteristics, see 18 U.S.C. § 3553(a)(1). Delaney fails to show that the district court's credibility finding with regard to the police officers' testimony that he gave consent was based on ‘exceedingly improbable testimony’ and thus clearly erroneous, United States v. Mapp, 476 F.3d 1012, 1017 (D.C.Cir.2007) (quoting United States v. Adamson, 441 F.3d 513, 519 (7th Cir.2006)). A review of the record indicates that the inconsistencies between the suppression testimony and one of the officers' prior statements were not so glaring—if, indeed, they were inconsistencies at all—as to render incredible the officers' testimony that Delaney consented to the search of his car. Nor did apparent violations of departmental protocols unrelated to Delaney's consent so undermine the officers' credibility that it was clear error for the district court to credit their testimony regarding Delaney's consent.

A remand for resentencing, however, is required, see United States v. Ayers, 428 F.3d 312, 315–16 (D.C.Cir.2005), because the district court must take into account all relevant facts related to a defendant's “history and characteristics,” 18 U.S.C. § 3553(a)(1). The sentencing record reflects that the district court appears to have “misunderstood its sentencing authority” to consider certain proffered facts, United States v. Mouling, 557 F.3d 658, 668 (D.C.Cir.2009), even though the government agrees Delaney properly requested the court do so.

I.

At 2:40 a.m. on July 11, 2009, two Metropolitan Police Department (“MPD”) officers responded to a report of potential domestic violence on the 500 block of D Street S.E. A female motorist had reported a confrontation with her boyfriend and worried that he might be headed to her home on D Street, possibly to retrieve a sawed off shotgun. When Officers Gomez and O'Donnell arrived at that location, they saw Delaney standing in the street with other officers, in general proximity to a Mercury Sable 4–door sedan. Delaney consented to a pat-down, which revealed no weapons.

Officer Gomez testified before the grand jury 1 that as other police units were departing, we decided to further investigate the man with the shotgun call,” and [w]e asked Mr. Delaney if the vehicle, if the blue Mercury Sable was his vehicle,” to which Delaney replied that it was. Grand Jury Hr'g Tr. 7. When asked, “Now you asked Mr. Delaney if you could search his vehicle?”, Officer Gomez responded: “Correct.” Then: “And he responded what?” He didn't have a problem with it.” Id. at 7–8. According to Officer Gomez, Delaney was not in handcuffs, but rather [h]e was just standing there talking to us.” Id. at 8. The prosecutor asked Officer Gomez “what was the tone of voice you used” in asking consent to search the car, and Officer Gomez responded, “Same tone I'm using now, just a casual conversation tone.” Id. But at the subsequent suppression hearing, both Officers O'Donnell and Gomez testified that it was Officer O'Donnell, not Officer Gomez, who had asked and received Delaney's consent to search the car. Neither officer recalled the precise words Delaney used, but Officer O'Donnell recalled that they were to the effect of: [T]hat's fine, you can go ahead.’ Tr. Feb. 24, 2010, at 25. Officer Gomez recalled that Delaney stated “almost emphatically that he didn't have a problem with us looking through the vehicle.” Id. at 82. Both officers testified that as they moved toward the car Delaney began to “weep” or “cry.” Id. at 14, 72.

Notably, both officers initially spoke of the exchange with Delaney as though they were a single unit: Officer O'Donnell, before clarifying that he was the one who asked the questions, testified that “myself and Officer Gomez asked [Delaney] if this was his car,” and that we further asked if he had a problem if we took a look to make sure there were no firearms inside of the vehicle.” Id. at 13. Similarly, Officer Gomez testified that when they arrived at the scene, We asked—we being myself—” before being interrupted and asked to answer only on his own behalf. Id. at 70–71. But Officer Gomez continued to respond in the same vein, stating that Delaney gave us permission to look into the vehicle,” that [i]mmediately after asking for permission, Mr. Delaney advised us that he didn't have a problem with us looking through the vehicle,” and that at that point [w]e began to walk to the vehicle.” Id. at 71–72. Officer Gomez was again corrected, and thereafter answered in the first person singular, and on cross-examination he explained that it was Officer O'Donnell who had asked the questions.

Officer Gomez further testified at the suppression hearing that after obtaining Delaney's consent, Officer O'Donnell went to the driver's door while Officer Gomez shined his flashlight through the tinted window of the right rear door and saw a “large rectangular box” that was open on the end facing him, and he saw the “stock” or “butt” of a rifle protruding from this end. Id. at 72–73. Officer O'Donnell testified he was in the process of opening the driver's door when he heard Officer Gomez give a numeric code prompting Officer O'Donnell to put Delaney, who was standing with two officers, in handcuffs. Officer Gomez entered the car, placed the box on the hood of the car, and removed a semi-automatic rifle with a scope as well as ammunition clips, loose ammunition, and four small bags of marijuana (packaged, Delaney concedes, “in a manner indicative of commercial distribution,” Appellant's Br. 5). Officer Gomez laid the items out on the hood of the car but did not photograph them, an apparent violation of internal MPD protocol for crime scene processing of weapons; another protocol was apparently violated when the firearms were not kept in place until a crime scene specialist arrived. Officer O'Donnell testified that he called for a crime scene unit to process the weapon, and after that was done he placed it on the Sixth District property book.

Delaney was indicted on three counts: being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(1) & (b)(1)(D), and possession of a firearm during a drug trafficking offense, 18 U.S.C. § 924(c)(1). He moved to suppress the evidence seized from his car on the ground that he did not consent to the search and that there was no probable cause justifying the search absent consent. The district court credited the officers' testimony notwithstanding Gomez's allegedly inconsistent grand jury hearing testimony and the apparent protocol violations. Accordingly, the district court concluded that Delaney consented to the car search and denied the motion to suppress.

Subsequently, Delaney entered into a conditional plea agreement pursuant to Federal Rule of Criminal Procedure 11(a)(2), preserving his right to appeal the suppression ruling. In the agreement, Delaney acknowledged his understanding that the government did not intend to file a motion for a downward departure and likewise agreed “not to seek a downward departure for any reason from the otherwise applicable guideline range.” The district court imposed a sentence of 106 months, representing the very bottom end of the Sentencing Guidelines range and the sentence the government agreed to recommend pursuant to the plea agreement.

II.

Valid consent constitutes an exception to the general requirement of the Fourth Amendment of a warrant supported by probable cause. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Delaney challenges the district court's finding that he consented to the search of his car that turned up the firearm and drugs that formed the basis for his convictions. As this finding was based on the district court's assessment of the credibility of Officers O'Donnell and Gomez, our review is for clear error, recognizing that the district court's credibility determination is ‘entitled to the greatest deference from this court on appeal.’ United States v. Broadie, 452 F.3d 875, 880 (D.C.Cir.2006) (quoting United States v. Hart, 324 F.3d 740, 747 (D.C.Cir.2003)); see also United States v. Wilson, 605 F.3d 985, 1027 (D.C.Cir.2010).

Relying on the principle that reversal is warranted when a district court credits “exceedingly improbable testimony,” United States v. Mapp, 476 F.3d 1012, 1017 (D.C.Cir.2007) (quoting United States v. Adamson, 441 F.3d 513, 519 (7th Cir.2006)), Delaney focuses on what he asserts is the government's failure to establish “consistent evidence on the fundamental issue as to which officer actually obtained the...

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