United States v. Jordan
Decision Date | 03 March 2020 |
Docket Number | No. 17-4751,17-4751 |
Citation | 952 F.3d 160 |
Parties | UNITED STATES of America, Plaintiff – Appellee, v. Zavian Munize JORDAN, Defendant – Appellant. |
Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Leigh Schrope, LAW FIRM OF SHEIN & BRANDENBURG, Decatur, Georgia, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Marcia G. Shein, LAW FIRM OF SHEIN & BRANDENBURG, Decatur, Georgia, for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Before HARRIS, RICHARDSON, and QUATTLEBAUM, Circuit Judges.
Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Richardson and Judge Quattlebaum joined.
A jury convicted appellant Zavian Munize Jordan of two violations of 18 U.S.C. § 924(c), for possession of a firearm in furtherance of a drug-trafficking crime, and four other drug-trafficking and firearms-related offenses. The district court sentenced Jordan to a total of 420 months in prison, including a five-year mandatory consecutive sentence for his first § 924(c) conviction and a 25-year mandatory consecutive sentence for the second.
Jordan challenges both his conviction and his sentence, raising four principal arguments on appeal: (1) that under the Fourth Amendment, the district court erred in failing to suppress evidence gathered from the traffic stop that led to his arrest and subsequent incriminating statements; (2) that under the Sixth Amendment’s Confrontation Clause, the district court erred in admitting evidence relating to a recorded phone call between Jordan and an informant who did not testify at trial; (3) that the district court erred in failing to merge his two § 924(c) firearms convictions for sentencing purposes; and (4) that § 403 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5221–22 which was enacted while this appeal was pending, should apply to his case, where it would have the effect of substantially lowering the mandatory minimum sentence for his second § 924(c) conviction.1
Finding no error in the district court’s rulings and holding that § 403 of the First Step Act does not apply retroactively to cases pending on direct appeal when it was enacted, we affirm both Jordan’s conviction and his sentence.
Zavian Munize Jordan was the subject of a weeks-long investigation by the federal Drug Enforcement Administration ("DEA"). Jordan came to the attention of federal agents when another individual, Ricky Grant, was arrested for drug distribution and identified Jordan as his primary and long-standing source of heroin. Agency Task Force Officer Clint Bridges then instructed Grant to phone his heroin supplier, while officers monitored and recorded the call. Though Grant and Jordan did not refer to drugs by name during their conversation, the officers understood them to be using a kind of code describing a drug transaction. See S.J.A. 002 ( ); see also J.A. 161–62 ( ). Based on Grant’s statement and the contents of the call, the officers obtained a warrant to track the location of Jordan’s phone, and later, a second warrant to place a location-tracking device on Jordan’s truck.
The investigation came to a head on May 11, 2016, when federal agents who had Jordan under surveillance watched him enter and depart several locations over a short period of time, sometimes entering with one package and leaving with another. At that point, DEA Special Agent James Billings decided to conduct an investigatory stop of Jordan. He reached out to Detective Christopher Newman of the Charlotte-Mecklenburg Police Department, who had been assisting the DEA in its operation, and asked him to conduct a routine traffic stop. As Agent Billings explained to the district court, the DEA frequently asks local officers to find cause to pull over drug suspects for traffic violations: A suspect who believes he is the subject of a routine traffic stop is less likely to resist and create a danger to the public; and if the stop does not uncover evidence of criminal activity, the investigation can continue without the suspect having been alerted to it.
Detective Newman followed Jordan until he saw him turn through a red light without stopping, and then pulled him over. When he approached Jordan’s truck, Newman found Jordan on the phone and unwilling to engage with him, and saw several other cellphones in the vehicle. Newman asked Jordan to step out of the truck and patted him down, observing a rubber glove – which he knew to be common packaging for drugs – in Jordan’s pants pocket. By then, Jordan’s brother had arrived on the scene in a separate vehicle, attempting to "interject himself" into the stop. J.A. 132. Newman accordingly waited for about 11 minutes for back-up before walking his drug-detecting dog around the truck. The dog alerted, and Jordan admitted that he had cocaine in his possession. Detective Newman then found approximately 12 grams of cocaine in the rubber glove from Jordan’s pocket, along with roughly $2,000 in cash, also in Jordan’s pocket. After a search of the truck revealed six phones, $26,000 in cash, and a handgun, Jordan was arrested.
Jordan was advised of his rights and agreed to talk to the police, admitting that he was involved in cocaine trafficking and giving a detailed statement. After obtaining warrants, police officers conducted several searches. At the home of Jordan’s deceased grandmother, which Jordan had identified as the place he used to prepare and package drugs, they recovered 275 grams of heroin, digital scales and drug-packaging materials, and a gun and ammunition. At one of the residences Jordan had visited on the day he was stopped, at which Jordan admitted he regularly sold drugs, the police recovered about 750 grams of cocaine, marijuana, and another firearm. And at the residence Jordan shared with his girlfriend, the police found $24,000 in cash and more firearms.
Jordan was indicted on six counts of drug- and firearm-related offenses. Count One charged Jordan and others with conspiring to distribute heroin and cocaine. Counts Five and Six – the next counts involving Jordan – charged him with substantive drug offenses: possession with intent to distribute heroin and cocaine, and distribution of cocaine. Counts Eight and Nine each charged Jordan with possessing a firearm during and in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) ; Count Eight referred to the drug-trafficking conspiracy set out in Count One, and Count Nine, to the drug-trafficking offense in Count Six. Finally, Count Ten charged Jordan with possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
Before trial, Jordan moved to exclude the evidence seized from the traffic stop and his subsequent incriminatory statements, on the ground that Detective Newman violated the Fourth Amendment by unduly prolonging his traffic stop without the requisite reasonable suspicion. The district court denied the motion. Jordan also moved unsuccessfully to exclude from trial his recorded phone call with Ricky Grant, arguing that because Grant would not be testifying at trial, his statements were inadmissible hearsay and their introduction would violate the Sixth Amendment’s Confrontation Clause.
After a three-day trial, the jury found Jordan guilty of all charges against him. Before sentencing, Jordan moved to merge Counts Eight and Nine – the two § 924(c) firearm charges – or to vacate one for sentencing purposes, because "[n]othing in the jury verdict indicates that it found that [he] possessed different guns at different times." J.A. 465 (emphases added). The district court denied the motion, explaining that Jordan’s claim was foreclosed by United States v. Khan , 461 F.3d 477, 494 (4th Cir. 2006), in which this court held that a single use or possession of a firearm may be the basis for multiple consecutive § 924(c) sentences.
The district court sentenced Jordan to a total of 420 months, or 35 years, in prison: five years on the drug-conspiracy count, each of the drug-trafficking counts, and the felon-in-possession count (Counts One, Five, Six, and Ten), all to run concurrently; plus the mandatory five-year consecutive term on the first § 924(c) firearm offense (Count Eight) and the mandatory 25-year consecutive term on the second § 924(c) offense (Count Nine).
Jordan filed this timely appeal. While his appeal was pending and after briefs were filed, on December 21, 2018, Congress enacted the First Step Act. Pub. L. No. 115-391, 132 Stat. 5194. Section 403 of the First Step Act amended 18 U.S.C. § 924(c)(1)(C) in a way that is relevant to Jordan’s sentence: Under the new § 403, if an individual is convicted of two § 924(c) offenses in the same proceeding, as Jordan was here, the mandatory minimum sentence for the second offense drops from 300 months to 60 months. § 403(a), 132 Stat. at 5221–22. Section 403 expressly addresses its "applicability to pending cases," providing that the new penalties apply to offenses committed before its enactment "if a sentence for the offense has not been imposed" as of the date of enactment. § 403(b), 132 Stat. at 5222. In a letter to this court, Jordan argued that under the First Step Act, he no longer was eligible for the mandatory 300-month sentence he is serving on his second § 924(c) conviction. The government disagreed, and both parties filed supplemental briefs on the issue.
Jordan raises four arguments on appeal, two concerning his conviction and two concerning his sentence. We take...
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