U.S.A v. Lewis, 09-4343

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: KING, Circuit
• Citation: 606 F.3d 193
• Parties: UNITED STATES of America, Plaintiff-Appellant,v.Derrick E. LEWIS, Defendant-Appellee.United States of America, Plaintiff-Appellee,v.Derrick E. Lewis, Defendant-Appellant.
• Docket Number: 09-4474.,No. 09-4343,09-4343
• Decision Date: 27 May 2010

606 F.3d 193

UNITED STATES of America, Plaintiff-Appellant,
v.
Derrick E. LEWIS, Defendant-Appellee.
United States of America, Plaintiff-Appellee,
v.
Derrick E. Lewis, Defendant-Appellant.

Nos. 09-4343, 09-4474.

United States Court of Appeals,
Fourth Circuit.

Argued March 24, 2010.
Decided May 27, 2010.

606 F.3d 194

ARGUED: David Brian Goodhand, Office of the United States Attorney, Alexandria, Virginia, for Appellant/Cross-Appellee. Paul Geoffrey Gill, Office of the Federal Public Defender, Richmond, Virginia, for Appellee/Cross-Appellant. ON BRIEF: Dana J. Boente, United States Attorney, Alexandria, Virginia, Kevin C. Nunnally, Special Assistant United States Attorney, Office of the United States Attorney, Richmond, Virginia, for Appellant/Cross-Appellee. Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia, for Appellee/Cross-Appellant.

Before KING and GREGORY, Circuit Judges, and JOSEPH R. GOODWIN, Chief United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge KING wrote the majority opinion, in which Judge GREGORY joined. Judge GOODWIN wrote a separate opinion concurring in part and dissenting in part.OPINIONKING, Circuit Judge:

Derrick E. Lewis appeals from his conviction and sentence in the Eastern District

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of Virginia for unlawful possession of a firearm by a convicted felon, in contravention of 18 U.S.C. § 922(g)(1). After Lewis committed the offense of conviction, but before he was sentenced, the Sentencing Guidelines were amended to include a higher base offense level for the offense, resulting in an advisory Guidelines range that was nearly double that calculated under the Guidelines in effect at the time of his offense. After determining that application of the amended 2008 Guidelines would contravene the Ex Post Facto Clause of the Constitution, the district court applied the 2005 Guidelines in effect at the time of the offense of conviction See United States v. Lewis, 603 F.Supp.2d 874 (E.D.Va.2009). The Government has appealed from the court's Ex Post Facto Clause ruling. Lewis has cross-appealed, contending that the court erred in denying his motion to suppress the firearm underlying his conviction. As explained below, we reject both contentions and affirm.I. A.

At approximately 11:00 p.m. on May 16, 2006, Lewis was sitting in the driver's seat of a vehicle parked in a residential area in Richmond, Virginia.¹ Three officers tasked with searching for illegal firearms-Richmond Police Officer Kevin Mills and two officers of the Virginia State Police-parked their cruiser on the opposite side of the street from Lewis's car. Immediately thereafter, other officers arrived on the scene, and several officers approached Lewis's vehicle. At that point, one of the officers looked into the vehicle's passenger window and observed an open beer bottle in the front portion of the vehicle. Upon learning of the open beer bottle, Officer Mills approached the driver-side window and requested Lewis's identification. When Lewis rolled down his window to comply, Officer Mills detected “a faint odor of burnt marijuana.” J.A. 42.² Mills immediately asked Lewis to exit the vehicle, but he refused; Officer Mills then removed Lewis from the vehicle. About thirty to sixty seconds had elapsed between the officers' arrival and Lewis's removal from the car.

After placing Lewis in handcuffs, the officers observed a semiautomatic, nine-millimeter handgun in plain view on the front driver-side floorboard of Lewis's vehicle. The firearm was loaded and had an extended, high-capacity magazine. Officer Mills then checked Lewis's criminal history and ascertained that he was a convicted felon. Because Virginia law prohibits felons from possessing firearms, Lewis was placed under arrest.

B.

On September 3, 2008, a superseding indictment was returned in the Eastern District of Virginia, charging Lewis with a single count of unlawfully possessing a firearm, in contravention of 18 U.S.C. § 922(g)(1) and (9). ³ On October 27, 2008, Lewis moved to suppress the evidence obtained

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from his vehicle. At a suppression hearing conducted on October 29, 2008, the district court denied the suppression motion. As an initial matter, the court concluded that the officers did not need any form of suspicion in order to approach Lewis's parked vehicle and ask questions. The court then specifically credited the testimony of Officer Mills, observing that only Mills had observed the entire encounter and that none of the defense witnesses' testimony was “necessarily inconsistent with that of” Mills. J.A. 133.

On the sequence of events leading to Lewis's arrest, the district court found that Officer Mills knew that another officer had observed an open beer container inside the vehicle and that Mills had detected the odor of marijuana emanating from the vehicle when Lewis rolled down his window. According to the court, the marijuana odor alone provided “sufficient probable cause to search the vehicle. Certainly, it was adequate to require the defendant to step out and to detain him during the course of that search.” J.A. 135. Accordingly, the court ruled that the contested search and seizure was consistent with the Fourth Amendment and denied the motion to suppress.

C.

Following a one-day jury trial, conducted on December 4, 2008, Lewis was convicted of possession of a firearm by a convicted felon, in contravention of 18 U.S.C. § 922(g)(1).⁴ Thereafter, on January 28, 2009, the probation officer prepared and submitted a presentence investigation report (the “PSR”), applying the 2008 edition of the Guidelines. That edition called for a base offense level of 20, which-when coupled with Lewis's criminal history category of III-resulted in an advisory Guidelines range of 41 to 50 months of imprisonment. The PSR's base offense level calculation was predicated on section 2K2. 1(a)(4)(B)(i) of the 2008 edition of the Guidelines, which mandates an offense level of 20 if the offense involved a “semiautomatic firearm that is capable of accepting a large capacity magazine.” That provision had been added to the Guidelines as part of Amendment 691, effective November 1, 2006-after Lewis committed the offense of conviction. Thus, in a section of the PSR entitled “Ex Post Facto Consideration,” the probation officer noted that the 2005 Guidelines, which were in effect at the time of the offense of conviction, would prescribe a base offense level of 14 and an advisory Guidelines range of 21 to 27 months, rather than the 41- to 51-month range prescribed by the 2008 edition. J.A. 226.

At the sentencing hearing on March 6, 2009, Lewis objected to the PSR's application of the 2008 Guidelines, asserting that application thereof “essentially doubl[ed]” his applicable sentencing range, in contravention of the Ex Post Facto Clause. J.A. 151. In response, the Government maintained that the court's use of the amended 2008 Guidelines would not contravene the Ex Post Facto Clause, arguing that, after the Supreme Court rendered the Guidelines advisory in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), they were no longer “law” to which the Clause applies. Alternatively, the Government asked the court to vary upward to the sentencing range reflected in the 2008 Guidelines, asserting that the extended-capacity magazine possessed by Lewis posed “the same peril” to the community in 2006 as it did in 2008. J.A. 157.

606 F.3d 197

By its opinion of March 16, 2009, the district court ruled that application of the 2008 Guidelines would contravene the Ex Post Facto Clause. See United States v. Lewis, 603 F.Supp.2d 874 (E.D.Va.2009). Beginning with what the Guidelines refer to as “General Application Principles,” the court recognized that section 1B1.11 mandates use of the Guidelines in effect at the time of sentencing, unless the sentencing court “determines that use of [that edition] would violate the ex post facto clause of the United States Constitution.” USSG § 1B1.11(b)(1) (2008). In that event, the Guidelines instruct the court to apply the unamended Guidelines in effect on the date the offense of conviction was committed. See id.

Turning to the merits of the Ex Post Facto Clause contention, the sentencing court concluded that application of the 2008 Guidelines in this case would result in a significant risk of an increased sentence, thereby contravening the Ex Post Facto Clause. See Lewis, 603 F.Supp.2d at 879. The court acknowledged that it would be “nudged in the direction of the Guidelines” range if neither the PSR nor the arguments at sentencing yielded an “articulable basis to stray from the calculated guideline range.” Id. Consequently, the court calculated Lewis's advisory sentencing range under the 2005 Guidelines, which were in effect at the time of the offense of conviction, and imposed a 27-month sentence.

The Government timely noticed its appeal of the district court's Ex Post Facto Clause ruling, and Lewis pursues a cross-appeal on the denial of his motion to suppress. We possess jurisdiction pursuant to 18 U.S.C. § 3742(b) and 28 U.S.C. § 1291.

II.

In assessing a district court's decision on a motion to suppress, we review factual findings for clear error and legal determinations de novo. See United States v. Branch, 537 F.3d 328, 337 (4th Cir.2008). In so doing, we must construe the evidence in the light most favorable to the prevailing party, see id., and give “due weight to inferences drawn from those facts by resident judges and law enforcement officers,” United States v. Humphries, 372 F.3d 653, 657 (4th Cir.2004) (internal quotation marks omitted). We review de novo questions of law, including whether the application of a Guidelines amendment contravenes the Ex Post Facto Clause. See United States v. Nale, 101 F.3d 1000, 1003 (4th Cir.1996).

III.

We confront two issues in these appeals. First, in No. 09-4474, Lewis...