United States v. Bass

• Decision Date: 11 May 2021
• Docket Number: No. 20-10588,20-10588
• Citation: 996 F.3d 729
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Clarence BASS, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

996 F.3d 729

UNITED STATES of America, Plaintiff—Appellee,

v.Clarence BASS, Defendant—Appellant.

No. 20-10588

United States Court of Appeals, Fifth Circuit.

Filed May 11, 2021

Ryan Patrick Niedermair, Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.

James Joseph Mongaras, Jr., Udashen Anton, Dallas, TX, for Defendant-Appellant.

Before Higginbotham, Southwick, and Engelhardt, Circuit Judges.

Kurt Engelhardt, Circuit Judge:

Clarence Bass was approached by police officers after a tip was received that he was illegally selling CDs outside of a store in a high-crime area. After Bass voluntarily opened the trunk of his vehicle, police arrested Bass for unlawful labeling of CDs and searched him and his vehicle, and discovered a loaded pistol, magazine, cash, drugs, and drug paraphernalia. Because Bass had 13 prior felony convictions, he was subsequently charged federally with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) & 924(e). Following a bench trial, Bass was convicted and sentenced to 180 months imprisonment. Bass appeals the district court's denial of his motion to suppress, the imposition of an Armed Career Criminal Act ("ACCA") enhancement, and the firearm sentencing enhancement. We AFFIRM.

I.

On May 25, 2016, an off-duty police officer observed Clarence Bass standing beside the open trunk of a parked vehicle in a convenience-store parking lot. The off-duty officer, Christopher Langlois, reported the activity to the police unit assigned to that high-crime area, explaining that Bass was standing next to a vehicle and appeared to be selling items from the truck. Based on this tip and a prior complaint that Officer Otoneal Boudet had received about Bass illegally selling CDs in front of local businesses from his purple Dodge Challenger with a red stripe, Officer Boudet was dispatched to respond to the suspicious activity in the area. While driving up to the scene, Officer Boudet activated his body camera to record the interaction.

When Officer Boudet approached Bass, Bass closed his car truck and disclosed that he was selling CDs and had more CDs in the trunk. When Officer Boudet asked Bass whether there was anything illegal in the vehicle, Bass answered, "Just the CDs." Bass also asked Officer Boudet about the complaint made against him, and explained he had been charged with illegally selling CDs before.

Based on the initial disclosure and suspecting that Bass was illegally selling CDs, Officer Boudet asked Bass for consent to search the vehicle. Another man who was observed talking with Bass, Mr. Floyd, was detained and told another officer at the scene, Officer Williams, that Bass gave him a CD without charge. This statement conflicted with what Bass had told Officer Boudet. In an appeal to Officer Boudet's leniency, Bass explained that he was currently on parole.

Officer Boudet again asked to search the vehicle. Bass was hesitant and informed Officer Boudet that the vehicle was registered to his wife. When Bass pulled out a cell phone to allegedly call his wife to seek consent to search the vehicle, Officer Boudet told Bass not to make any calls out of concern for the officers’ safety. Officer Boudet continued to question Bass and answered Bass's question as to why someone complained about his activity. After a back-and-forth dialogue that lasted several minutes, Bass offered to and then did open his trunk, where bootlegged CDs and DVDs were displayed.

When asked by Officer Boudet, Bass said he was not carrying any personal identification. Officer Boudet told Bass that he and Officer Williams saw illegally labeled CDs and DVDs in plain view in the trunk. At that point, Officer Boudet asked Bass to sit on the curb and told Bass that he was detained, and that they would search the vehicle. Bass was placed under arrest for unlawfully labeling CDs and DVDs. Officers searched the trunk of the vehicle where they found boxes and bags full of CDs and DVDs. Officer Boudet then started searching the inside of the vehicle around the driver's seat and found a backpack in the back of the vehicle that contained several small baggies of cocaine that totaled 1.5 grams, 442.9 grams of marijuana also wrapped in small baggies, and 221.5 grams of synthetic cannabinoids.

Before putting him in the police car, Officer Williams patted Bass down and searched him. In his pockets, police found a loaded pistol, a loaded handgun magazine, $477 in cash, several small baggies of marijuana, and 5.6 grams of codeine.

Bass was charged by the state of Texas with illegally labeling unauthorized records, possession of marijuana, possession of a controlled substance, possession with intent to deliver a controlled substance, and unlawful possession of a firearm by a felon. Bass had previously been convicted of possession of a controlled substance with intent to deliver, a felony under Arkansas law. Because Bass had 13 prior felony convictions, he was subsequently charged federally in the Northern District of Texas with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) & 924(e).

On July 2, 2017, Bass moved to suppress (1) all the items that were seized from him and his vehicle after he was detained by the two Dallas police officers on May 25, 2016, including the 9mm handgun found in his pocket, which forms the basis of Count One of the Indictment, and (2) all the statements he made during his encounter with the police on May 25, 2016, about previously selling CDs and being on parole, arguing the items were improperly obtained without reasonable suspicion for his detention, without probable cause, and without consent.

The district court held a hearing on November 29, 2017, and heard live testimony from Officers Boudet and Langlois. The Government also offered video from Officer Boudet's body camera. After the hearing, the district court denied the motion to suppress, explaining in a written order that police had reasonable suspicion to stop Bass, that he voluntarily opened the trunk of his car, that police had probable cause to arrest him and search him and his vehicle incident to that arrest, and that the statements he made to police were voluntarily made during the Terry stop and not the result of a custodial interrogation requiring a Miranda warning.

Bass waived his right to a jury and proceeded to an uncontested bench trial with counsel on December 18, 2017, to preserve his right to appeal the court's denial of his suppression motion. The Government offered a stipulation of evidence in which Bass stipulated to the admission of the testimony and exhibits from the suppression hearing, stipulated to the admission of the handgun that was found in his pocket, and to having previously been convicted of a crime punishable by imprisonment for a term exceeding one year. The Government admitted the gun and testimony from an ATF agent regarding its interstate nexus. The district court found Bass guilty of being a felon in possession of a firearm.

A probation officer prepared a presentence investigation report (PSR), which assigned a base offense level of 14. The initial PSR calculated his advisory guideline range at 188 to 235 based on a total offense level of 31 and a criminal history category of VI. The PSR then applied a four-level enhancement for possessing a firearm in connection with another felony offense under USSG § 2K2.1(b)(6)(B), which increased the base offense level to 18. Finding that Bass had at least three prior convictions for serious drug offenses, the PSR applied an enhancement under the ACCA to give Bass an offense level of 33.

With a two-level reduction for acceptance of responsibility and a criminal history category of VI, the amended final advisory guideline range was 188 to 235 months. At sentencing, the Government moved for an additional one-level reduction for acceptance of responsibility, which resulted in a final guideline range of 180 to 210 months. While Bass objected to the PSR's application of the firearm and ACCA enhancements, the court overruled those objections and sentenced Bass to the mandatory minimum sentence of 180 months.

Bass now appeals the district court's denial of his motion to suppress, the imposition of the ACCA enhancement, and the firearm sentencing enhancement.

II.

Bass first argues the district court erred in denying the motion to suppress after finding the police had reasonable suspicion to detain Bass and probable cause to arrest him and search his vehicle. In evaluating a district court's denial of a defendant's motion to suppress, we review factual findings, including credibility determinations, for clear error, and we review legal conclusions de novo. United States v. Gomez , 623 F.3d 265, 268–69 (5th Cir. 2010) (citing United States v. Solis , 299 F.3d 420, 435 (5th Cir. 2002) ). "Factual findings are clearly erroneous only if a review of the record leaves this Court with a ‘definite and firm conviction that a mistake has been committed.’ " United States v. Hearn , 563 F.3d 95, 101 (5th Cir. 2009) (quoting United States v. Hernandez , 279 F.3d 302, 306 (5th Cir. 2002) ). "A factual finding is not clearly erroneous as long as it is plausible in light of the record as a whole." United States v. Jacquinot , 258 F.3d 423, 427 (5th Cir. 2001).

"Where a district court's denial of a suppression motion is based on live oral testimony, the clearly erroneous standard is particularly strong because the judge had the opportunity to observe the demeanor of the witnesses." United States v. Santiago , 410 F.3d 193, 197 (5th Cir. 2005). Finally, we review the evidence in the light most favorable to the Government as the prevailing party. Id . The district court's ruling should be upheld if there is any reasonable view of the evidence to support it. United States v. Massi , 761 F.3d 512, 520 (5th Cir. 2014).

The Fourth Amendment

The Fourth Amendment provides: "The right of the...