United States v. McGehee

• Decision Date: 22 February 2012
• Docket Number: No. 11–3068.,11–3068.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jonathan M. McGEHEE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

672 F.3d 860

UNITED STATES of America, Plaintiff–Appellee,

v.Jonathan M. McGEHEE, Defendant–Appellant.

No. 11–3068.

United States Court of Appeals, Tenth Circuit.

Feb. 22, 2012.

Dionne M. Scherff, Erickson Scherff, LLC, Overland Park, KS, for Defendant–Appellant.

Terra D. Morehead, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with her on the brief), Kansas City, KS, for Plaintiff–Appellee.

Before HARTZ and HOLMES, Circuit Judges, and EAGAN, District Judge. ^*HOLMES, Circuit Judge.

Defendant–Appellant Jonathan McGehee was found guilty, after a jury trial, of possessing with the intent to distribute a quantity of cocaine base in violation of 21 U.S.C. § 841(a)(1); possessing a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A); and being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He now appeals his conviction and sentence, arguing that: (1) the district court erred in denying his motion to suppress on the grounds that his Fourth Amendment rights were violated during a traffic stop where police discovered narcotics and a firearm; (2) the evidence at trial was insufficient as a matter of law to establish that he possessed the firearm in furtherance of a drug-trafficking offense; and (3) the district court erred by denying him a two-level reduction for acceptance of responsibility under § 3E1.1(a) of the U.S. Sentencing Guidelines (“U.S.S.G.”). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 12, 2008, Kansas City Patrol Officer Brandon Holloway observed a brown Lexus that appeared to be parked improperly on a residential street. The car was parked “just north of the intersection in front of” a house, R., Vol. 2, at 111 (Test. of Officer Brandon Holloway at Trial, held Oct. 12, 2010), that Officer Holloway knew from prior experience to be linked to drug-trafficking, see id. at 162 (noting testimony of Officer Holloway that he had “[r]eceived complaints of narcotics trafficking going on in that establishment” and that he “ha[d] made several arrests from parties coming from that house with narcotics”). The Lexus was parked facing the northbound direction of traffic on a street where the “proper parking” would have been facing southbound traffic. Id. at 15 (Test. of Officer Brandon Holloway at Mot. Suppress Hr'g, held July 29, 2010). This was a traffic infraction. Officer Holloway circled back around to conduct a traffic stop. However, while he was doing so, the vehicle began turning around, and proceeded to park correctly. At that point, Officer Holloway turned on his emergency equipment, and parked front-bumper to front-bumper with the vehicle.

Officer Holloway got out of his patrol car and approached the vehicle on foot. Mr. McGehee was a passenger in the vehicle. Officer Holloway made contact with the driver—later identified as Calvin Cofield—and asked for his driver's license. As soon as Officer Holloway made contact with the driver, he smelled a strong odor of Phencyclidine (“PCP”)—a controlled substance. He “could not distinguish if [the odor] was [coming] from [the driver's] person or the car.” Id. at 20. Mr. Cofield said that he did not have his driver's license with him, but gave his name. Officer Holloway then approached the passenger's side of the vehicle and asked for Mr. McGehee's driver's license. Mr. McGehee did not have any identification, but, like Mr. Cofield, also provided his name.¹

Officer Holloway asked central dispatch to conduct warrant checks on both Mr. Cofield and Mr. McGehee. While he awaited the results, Officer Holloway noticed inside the vehicle in a compartment around the driver's-side door “a clear, plastic [b]aggie, and inside of it [was] a vanilla extract bottle, which commonly is what PCP is stored in.” Id. at 22.

Other officers arrived to assist Officer Holloway. The back-up officers removed Mr. Cofield from the vehicle in order to arrest him, and simultaneously, Officer Holloway “observed in plain view [Mr. McGehee] kicking a gray handgun underneath the seat with [the] right heel of his foot.” Id. at 25. Officer Holloway then had Mr. McGehee step out of the vehicle, and placed him in handcuffs. Mr. McGehee was searched incident to his arrest, and officers discovered “a clear plastic baggie containing individual[ly] wrapped baggies of a white rocky substance [subsequently determined to be cocaine base, i.e., “crack”] as well as $149.00 cash.” Aplt. Opening Br. at 3.

Mr. McGehee was charged in a three-count indictment. Specifically, he was charged with possessing with the intent to distribute a quantity of cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count One); using and carrying a firearm during and in relation to a drug-trafficking crime, and possessing a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Two); and being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Three).

Mr. McGehee filed a motion to suppress evidence obtained as a result of the July 12 stop. He argued that the stop was not justified at its inception and that the detention was not reasonably related in scope to the circumstances that gave rise to the stop. After a hearing, the district court denied the motion. Mr. McGehee then went to trial on all three counts but made “evidentiary stipulations related to the laboratory testing of the narcotics, [his] prior felony conviction, ... and the firearm interstate nexus.” Aplt. Opening Br. at 4.

At trial, the government introduced several “jail calls” recorded on July 14, 2008, involving Mr. McGehee. Detective Patrick Greeno testified to the content of these calls and noted that, during the calls, Mr. McGehee made references to trafficking in cocaine. See id. (noting that the testimony established that, during these calls, Mr. McGehee was “referring to ‘work’ as business or cocaine for sale” (citing R., Vol. 2, at 228 (Test. of Officer Patrick Greeno at Trial, held Oct. 13, 2010))). At the close of the evidence, the district court denied in part and granted in part Mr. McGehee's motion for judgment of acquittal. Specifically, the court denied the motion in full as to Counts One and Three, but granted it in part as to Count Two. As to that count, the court found sufficient evidence to support the possession-in-furtherance component, but did not permit the government to go forward on the use-or-carry component. The jury returned a verdict of guilty on all three counts.

The Probation Office prepared a Presentence Investigation Report (“PSR”).² As relevant here, the PSR did not recommend a downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1(a). The Probation Office disclosed the PSR to the parties and expressly indicated in an addendum to the PSR that the parties did not object to the PSR's recommendations (including the recommendation concerning denial of the acceptance-of-responsibility reduction). However, before sentencing, Mr. McGehee filed a sentencing memorandum requesting, inter alia, a two-level reduction in his offense level for acceptance of responsibility, primarily on the basis that “the overarching tenor of his conduct and his trial strategy was to NOT put the government to its burden in regards to Counts [One] and [Three].” R., Vol. 1, at 127 (Def.'s Sentencing Mem., filed Feb. 25, 2011).

At the sentencing hearing, the district court sought to clarify the parties' positions. It confirmed that neither Mr. McGehee nor the government objected to the PSR's recommendations (which included the recommendation to deny the adjustment for acceptance of responsibility). Apparently based on Mr. McGehee's confirmation that he did not object to the PSR's recommendations, the district court construed Mr. McGehee's argument based upon his alleged acceptance of responsibility as not seeking relief under the Guidelines per se (i.e., as not seeking to reverse the PSR's recommendation and to secure a downward adjustment under U.S.S.G. § 3E1.1), but rather as seeking a lesser sentence through a different route— viz., a downward variance. The district court expressly declined to grant him a variance. The court then sentenced him to a total term of 147 months' imprisonment: eighty-seven months on Counts One and Three, to run concurrently; and sixty months on Count Two, to run consecutive to Counts One and Three.³ Mr. McGehee now appeals.

II. DISCUSSION

Mr. McGehee raises three issues on appeal. He challenges the district court's denial of his motion to suppress. He also argues that there was insufficient evidence for the jury to convict him of possessing a firearm in furtherance of a drug-trafficking crime. Finally, he contends that the district court erred in rejecting his request for a two-level reduction for acceptance of responsibility under § 3E1.1 of the Guidelines. We address each argument in turn.

A. Motion to Suppress

Mr. McGehee filed a motion to suppress, arguing that the traffic stop that Officer Holloway conducted was improper, and that his detention violated the Fourth Amendment. The district court rejected his arguments, finding that there was a reasonable basis for the initial stop and the subsequent detention, and probable cause for Mr. McGehee's arrest. We agree with the district court.

1. Standard of Review

We recently have summarized succinctly the elements of the governing standard of review:

When we review a district court's denial of a motion to suppress, we review de novo the district court's ultimate determination of reasonableness under the Fourth Amendment, but we accept the district court's factual findings unless they are clearly erroneous and we view the evidence in the light most favorable to the prevailing party.

United States v. Ruiz, 664 F.3d 833, 838 (10th Cir.2012); see United States v. Kitchell, 653 F.3d 1206, 1216 (10th...