United States v. McGee

• Decision Date: 18 November 2013
• Docket Number: No. 12–4664.,12–4664.
• Citation: 736 F.3d 263
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Randall Justin McGEE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

736 F.3d 263

UNITED STATES of America, Plaintiff–Appellee,

v.Randall Justin McGEE, Defendant–Appellant.

No. 12–4664.

United States Court of Appeals,Fourth Circuit.

Argued: Sept. 20, 2013.

Decided: Nov. 18, 2013.

ARGUED: Jonathan D. Byrne, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant. Monica D. Coleman, Office of the United States Attorney, Charleston, West Virginia, for Appellee. ON BRIEF:Mary Lou Newberger, Federal Public Defender, Lex A. Coleman, Assistant Federal Public Defender, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, Office of the United States Attorney, Charleston, West Virginia, for Appellee.

Before DAVIS, KEENAN, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge DAVIS wrote the opinion, in which Judge KEENAN and Judge FLOYD joined.

DAVIS, Circuit Judge:

Randall Justin McGee was convicted in the Southern District of West Virginia of possession with intent to distribute oxycodone, in violation of 21 U.S.C. § 841(a)(1), and sentenced to fifty-five months of imprisonment. On appeal, McGee challenges the district court's denial of his motion to suppress drugs seized during a traffic stop. He also challenges his sentence on two grounds: Whether the district court (1) committed clear error in finding that a seizure of cash from McGee occurring approximately two weeks before his arrest arose from “relevant conduct” to the offense of conviction (and thereby increased his sentencing range); and (2) committed procedural error in failing to impose an individualized sentence. We reject McGee's contentions and affirm the judgment.

I.

A.

Law enforcement officers first encountered McGee on July 10, 2011, when police received a tip that a black male near a Greyhound bus station in Charleston, West Virginia, was acting suspiciously. Officers went to the station and approached the man, later identified as McGee, who agreed to speak with them. When first questioned, McGee said he was not traveling, but had come to the bus station to meet a childhood friend. The officers conducted a search of McGee's person and found a bus ticket in the name of Adam Lowe, for travel between Charleston, West Virginia, and Detroit, Michigan. When the officers discovered that McGee's name did not match the name on the bus ticket, they handcuffed him.

McGee denied that he was in possession of any contraband and consented to a search of his bag. Inside the bag, the police found $5,800 in cash. McGee stated he did not have a job and had not had one for over a year. He claimed he was traveling with $2,000 to see the mother of his child and/or his mother. The police determined that McGee did not have a reasonable explanation for his possession of the cash and seized the money.

Police contacted McGee's mother, who said that McGee did not yet have a child (though his girlfriend was pregnant at the time). She also reported that McGee was in West Virginia “earning money,” and that McGee was supposed to bring the money back with him. J.A. 313. Police also seized McGee's cell phone, which had several text messages. One message was from his brother, instructing McGee to have somebody else go into the bus station and buy a ticket using a different name, and to wait in the car while the ticket was purchased. Police believed other texts were “drug-related,” such as a text stating, “Are they moving? How many do you have left, and the total should be $6,075.00.” Id.

The police released McGee without arresting him.

B.

A little more than two weeks later, on July 26, 2011, South Charleston Police Officer Jonathan Halstead, a member of the Metro Drug Unit, stopped a Dodge Avenger on I–77. Halstead stopped the car after observing that the middle brake light (located in the center of the back windshield) was not working properly when the driver braked during a slowdown in traffic. Halstead had the driver, Kardell Moore, get out of the car; Moore volunteered to Halstead that his driver's license was suspended and the car was a rental. Halstead briefly spoke with McGee, then seated in the front passenger seat, in order to ascertain whether McGee had a valid driver's license. Halstead testified at the suppression hearing that McGee was nervous and his hands were shaking. Halstead obtained identifying information from McGee and called for backup. While Halstead was checking McGee's information, Officer David Richardson arrived on the scene.¹

Halstead told Richardson what he had observed regarding McGee, and Richardson agreed to speak with McGee. Richardson spoke briefly with McGee and asked him to get out of the car. McGee complied, and after exiting the vehicle he consented to a search of his person. During the search, Richardson felt items he believed were pills in McGee's shorts. Richardson put McGee in hand restraints, and shook a bag of pills out of McGee's shorts. The bag contained 246 oxycodone pills and 151 oxymorphone pills.

II.

A.

McGee was charged with possession with intent to distribute oxycodone, in violation of 21 U.S.C. § 841(a)(1). He filed a motion to suppress the drugs seized during the traffic stop. Specifically, he disputed Halstead's claim that the car had a defective brake light. The court held a hearing, at which the three police officers present at the scene testified. Thereafter, the court issued an opinion denying the motion to suppress, finding that Halstead's testimony was “entirely credible” and that he had probable cause to believe the driver had committed a traffic violation by not having an operational brake light.² J.A. 160.

A few weeks later, McGee filed a renewed motion to suppress on the basis of newly obtained evidence. McGee again challenged the validity of the stop, this time proffering evidence resulting from an investigation into the condition of the rental car. That evidence tended to show that all the brake lights in the vehicle were operational in November 2011, and there was no record of a repair after the traffic stop in July 2011.

The court held another hearing on the matter. At the hearing, the court heard further testimony from Halstead; Patrick Kearns, an investigator with the Federal Defender's office; and Jason Tardiff, a risk manager with Enterprise Rent–a–Car. Halstead again testified that he saw the defective brake light prior to the traffic stop. Kearns testified that he found the rental car at Enterprise's car dealership in Kentucky, where he tested the brake lights and found them to be fully functional on November 18, 2011. Tardiff testified that it was customary for Enterprise to keep a record of all complaints and repairs made on any vehicle; there was no record of any complaints about the defective brake light or any repair for a defective brake light after the stop in July 2011.

The court denied McGee's renewed motion to suppress. The court noted that the government was relying exclusively on Halstead's testimony to meet its burden of showing by a preponderance of the evidence that Halstead had probable cause to stop the car. Specifically, the court held that “[a]lthough Defendant's evidence raises a serious factual issue, it is ultimately insufficient to overcome Officer Halstead's direct and unimpeached testimony that the Avenger's center brake light was indeed nonoperational on July 26, 2011.” J.A. 264. The court stated that Halstead was “frank and earnest, and his recollection of the events of July 26, 2011, was unwavering.” Id. The court pointed to two possible explanations, urged by the government, for the lack of repair and/or record of a repair: a temporary malfunction, such as an electric short, or that there was a repair, but no record of it.

B.

Having denied the motions to suppress, the court conducted a bench trial at which McGee did not contest the government's evidence. McGee only proceeded to trial in order to preserve his right of appeal, and did not feel comfortable accepting certain stipulations proposed by the government in plea negotiations. The court found McGee guilty as charged.

C.

In advance of sentencing, the presentence investigation report (“PSR”) laid out the “Offense Conduct,” describing the traffic stop and McGee's arrest, but also described the earlier incident at the bus station. In accordance with the Guidelines, the PSR converted the drugs seized from McGee during the traffic stop into a marijuana equivalency. Over McGee's timely objection, the PSR also converted the $5,800 seized from McGee at the bus station, stating the cash “is viewed as representing proceeds of drug distribution,” since McGee was later found with the drugs and “he has held no legitimate employment” since 2006. J.A. 353. McGee's base offense level under the Guidelines was 24 based on an equivalency calculation of 98.94 kg of marijuana, including the 19.3 kg added by the cash proceeds equivalent. Without the cash proceeds conversion, McGee's base offense level would have been 22. U.S.S.G. § 2D1.1(c)(9). After the reduction for acceptance of responsibility, the final Guidelines range was 51 to 63 months (including the cash proceeds), instead of 41 to 51 months (without including the cash proceeds).³

McGee objected to the inclusion of the drug equivalent for the cash seized at the bus station, arguing that there was no evidence to connect the funds to the July 26, 2011 stop. McGee argued specifically that his possession of a ticket in a different name and his lack of employment were insufficient to support such a finding. McGee pointed out that there were no drugs seized with the money and that McGee was never arrested or charged with anything related to the bus station incident.

The court held a sentencing hearing at which the government explained the bus station incident. McGee accepted the government's factual proffer, acknowledging that there were conflicting statements and suspicious behavior, but maintained that there was no legitimate connection...