United States v. Lawing

• Decision Date: 31 December 2012
• Docket Number: No. 11–4896.,11–4896.
• Citation: 703 F.3d 229
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Talvin Taquane LAWING, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

703 F.3d 229

UNITED STATES of America, Plaintiff–Appellee,

v.Talvin Taquane LAWING, Defendant–Appellant.

No. 11–4896.

United States Court of Appeals,Fourth Circuit.

Argued: Oct. 26, 2012.

Decided: Dec. 31, 2012.

ARGUED:John Scott Coalter, McKinney Perry & Coalter, Greensboro, NC, for Appellant. Michael Francis Joseph, Office of the United States Attorney, Greensboro, NC, for Appellee. ON BRIEF:Ripley Rand, United States Attorney, Terri–Lei O'Malley, Assistant United States Attorney, Office of the United States Attorney, Greensboro, NC, for Appellee.

Before AGEE, WYNN, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge AGEE wrote the opinion, in which Judge WYNN and Judge FLOYD concurred.

OPINION

AGEE, Circuit Judge:

A jury convicted Talvin Taquane Lawing (“Lawing”) of one count of possession of ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) for which Lawing was sentenced to 100 months imprisonment. Lawing's conviction and sentence stem from the discovery of a sawed off shotgun and ammunition in his vehicle following a police stop initiated by a tip from a confidential informant (“CI”). On appeal, Lawing challenges the denial of his motion to suppress all evidence found during the stop and search of his vehicle and alleges multiplicitous counts of the indictment; he claims each error warrants reversal of his conviction. He also argues, in the alternative, that his sentence was procedurally unreasonable. For the following reasons, we affirm the judgment of the district court.

I.

On May 3, 2010, the CI informed Detective Jerry Alderman (“Alderman”) of the Special Investigations Unit in the Rowan County, North Carolina Sheriff's Office (“RCSO”) that he knew a man selling crack cocaine.¹ That afternoon, the CI met with Alderman and told the detective that he had previously purchased crack cocaine from an individual the CI identified as “Drew.” The CI described Drew as a black male with short hair in his late twenties or early thirties. In the presence of Detective Alderman and Detective Kevin Lee Myers (“Myers”), the CI telephoned Drew and ordered a quantity of crack cocaine, which Drew agreed to shortly bring to the CI's residence.² The officers recorded the telephone call between Drew and the CI.

The CI informed the detectives that Drew would deliver the crack cocaine to the CI's residence in about 20 minutes and that he would be driving a grey four-door Lexus automobile. The CI also told the detectives that Drew would travel to his residence by driving along Old Concord Road and turning left at Old Beatty Ford Road.

Alderman and Myers waited with the CI at his residence for Drew to arrive and positioned a team of RCSO officers in marked and unmarked cars along Drew's expected route of travel. These officers were provided with Drew's physical description, a description of Drew's vehicle, the predicted route, and expected arrival time at the CI's residence.

About twenty minutes later, Deputy Jason Naves (“Naves”), observed a four-door grey Lexus, driven by a black male matching the CI's description of Drew, turn left off Old Concord Road onto Old Beatty Ford Road. Naves followed the vehicle and effected a traffic stop of the vehicle about a half mile from the CI's residence.³ When Naves ran the license tag to check the registration of the Lexus, he determined the registration had expired and that the car was registered to Lawing, not a person with the given name of Drew. Naves then approached the Lexus and obtained the drivers' licenses of the driver, which bore Lawing's name, and the passenger, which bore Monica Lowe's name.

A few minutes later, Detective Gregory Bacote (“Bacote”), arrived at the scene and also approached Lawing's vehicle. Because the driver's license of the driver of the Lexus did not reflect the name of Drew, Bacote determined it was necessary to determine if Lawing was indeed Drew given that all the other predictive information from the C.I. had now been verified by the events leading to the stop of the Lexus. Bacote called the same telephone number the CI had used to call Drew. Lawing's cell phone rang within five seconds of when Bacote placed the call.⁴ Soon after, Alderman and Myers arrived at the scene. Alderman then called the telephone number used by the CI to call Drew and, once again, Lawing's cell phone rang immediately. After Lawing's phone rang a second time, officers concluded that Drew was in fact Lawing and requested a drug sniffing dog. The police officers then frisked and detained Lawing and began to search his vehicle.

In the course of searching the vehicle, Alderman found a loaded sawed-off 12–gauge shotgun under the carpet covering the spare tire in the trunk with one shell in the chamber. Two additional shotgun shells were found in the vehicle's glove box. No narcotics were found in the vehicle; however, Naves found a small specimen of white powder, in a compartment near the steering wheel, which field tested positive for cocaine.

Lawing was then arrested and later charged in a superseding indictment with possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count I); possession of ammunition by a convicted felon, also in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count II); ⁵ and possession of an unregistered shotgun modified having an overall length of less than 26 inches, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871 (Count III).

Lawing filed a motion to suppress all evidence seized during the stop and search of his vehicle under the Fourth and Fourteenth Amendments.⁶ The district court denied Lawing's motion based on its findings that the government demonstrated by a preponderance of the evidence that the officers (1) had a reasonable, articulable suspicion sufficient to stop Lawing's car, (2) established that Lawing was the person with whom the CI arranged the drug deal, and (3) consequently, had probable cause to search Lawing's vehicle. The district court also found that the police did not search Lawing's cell phone for any information but only seized it temporarily to confirm that Lawing was Drew.

During trial, the government called Naves, Myers, and Alderman, who had also testified at the suppression hearing, as witnesses. The officers testified about the stop and search of Lawing's vehicle, and their testimony echoed that provided during the suppression hearing. The government also called Special Agent Darren Soloman to testify about the manufacturers of the shotgun and ammunition (to establish an interstate nexus to the offense).

Upon the conclusion of the government's case in chief, Lawing moved to dismiss all charges under Rule 29 of the Federal Rules of Criminal Procedure contending the evidence was insufficient to prove his guilt. The district court denied the motion, finding that the government's evidencewas sufficient upon which a reasonable jury could convict Lawing.

Lawing then presented his evidence by calling passenger Monica Lowe, who testified that two other people had recently driven the Lexus before the day of Lawing's arrest and that she had never seen Lawing possess a firearm or ammunition. Lawing again made a Rule 29 motion to dismiss all charges, which the district court also denied, and the case went to the jury on all three counts. The jury returned a verdict finding Lawing guilty of Count II (possession of ammunition by a convicted felon), but acquitted him of Counts I and III.

The Presentence Investigation Report (“PSR”) determined that because Lawing's offense involved a firearm described in 26 U.S.C. § 5845(a), and because Lawing committed the offense subsequent to two felony convictions for a crime of violence, his base offense level, for sentencing guidelines purposes was 26. United States Sentencing Guidelines Manual (“USSG”) § 2K2.1(a)(1). The PSR gave no enhancements or adjustments to the base offense level which, when combined with a criminal history category of IV, resulted in an advisory Guidelines range of 92 to 105 months imprisonment.

At sentencing, Lawing objected to the PSR's calculation of his base offense level as 26 and argued instead that his base offense level should be 24. The district court found by a preponderance of the evidence that Lawing's conduct involved a firearm as described in 26 U.S.C. § 5845(a), and thus adopted the base offense level of 26 as recommended in the PSR. The district court then adopted the PSR without change, including the 92 to 105 months' imprisonment Guidelines range. The court imposed a within-Guidelines sentence of 100 months imprisonment.

Lawing noted a timely appeal, and this court has jurisdiction pursuant to 28 U.S.C. § 1291.

II.

On appeal, Lawing raises four issues: (1) the district court committed reversible error by denying his motion to suppress all evidence seized during the search of his car; (2) the district court erred in denying his Rule 29 motions; (3) the district court plainly erred by allowing the government to proceed at trial on two counts under 18 U.S.C. § 922(g)⁷; and (4) the district court abused its discretion at sentencing in finding by a preponderance of the evidence that his offense involved the possession of a sawed-off shotgun as described by 26 U.S.C. § 5845(a).

A.

An appellate court reviews a district court's factual findings in a motion to suppress for clear error and its legal findings de novo. United States v. Day, 591 F.3d 679, 682 (4th Cir.2010). When the district court denies a motion to suppress, the appellate court views the facts in the light most favorable to the government. United States v. Matthews, 591 F.3d 230, 234 (4th Cir.2009).

Lawing first argues the district court committed reversible error by denying his motion to suppress all evidence seized during the search of his car including the ammunition that formed the basis for the sole count of conviction under Count II. We conclude the district court did not err in...