United States v. Norman

• Decision Date: 15 August 2019
• Docket Number: No. 18-4214,18-4214
• Citation: 935 F.3d 232
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Thomas Edward NORMAN, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

935 F.3d 232

UNITED STATES of America, Plaintiff – Appellee,

v.Thomas Edward NORMAN, Defendant – Appellant.

No. 18-4214

United States Court of Appeals, Fourth Circuit.

Argued: May 7, 2019

Decided: August 15, 2019

ARGUED: Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Brook Bowers Andrews, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Sherri A. Lydon, United States Attorney, Columbia, South Carolina, Jennifer E. Wells, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.

Before MOTZ, KING, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Thacker joined. Judge King wrote an opinion concurring in part and dissenting in part.

DIANA GRIBBON MOTZ, Circuit Judge:

The district court found Thomas Edward Norman guilty of being a felon in possession of a firearm, possessing heroin and cocaine with intent to distribute, and possessing a firearm in furtherance of a drug trafficking crime. On the basis of his prior conviction for conspiracy to possess cocaine and cocaine base with intent to distribute, in violation of 21 U.S.C. § 846, the court applied an effective six-level enhancement to Norman’s sentence under United States Sentencing Guidelines (U.S.S.G.) § 2K2.1(a)(4)(A). Norman appeals the denial of his motion to suppress and the imposition of the enhancement. For the reasons that follow, we affirm.

I.

We relate the facts relevant to the suppression motion in the light most favorable to the Government, the prevailing party before the district court. See United States v. Bullette , 854 F.3d 261, 265 (4th Cir. 2017).

On December 7, 2016, officers with the United States Marshals Fugitive Task Force and the local sheriff’s office received information that Norman, wanted on an outstanding warrant for violating the terms of his supervised release, could be found in a black Camry on Archer Road in Spartanburg, South Carolina. Arriving on the scene, the officers approached the vehicle, removed Norman, and placed him under arrest pursuant to the outstanding warrant. They then searched Norman and found a large amount of cash and a cell phone in his pockets. The officers also removed and searched the sole passenger in the vehicle, Princess Harrison; they found a baggie in her hair, which she admitted contained cocaine residue.

When officers placed the cash seized from Norman’s person on the driver’s side seat of the Camry, they saw additional cash on the car’s floorboard. The officers later ascertained that the total amount of cash recovered from Norman’s person and the floorboard was $1,244. The officers also observed a small tied-up quarter baggie sitting behind the gear stick on the center console of the vehicle. One officer testified that, based on the baggie’s distinctive appearance and his seventeen years of experience with narcotics investigations, he believed the baggie contained contraband. The baggie’s contents later tested positive for heroin.

After arresting Norman and Harrison and observing the cash and baggie in plain view, the officers conducted an extensive search of the vehicle. They subsequently located packages containing cocaine and "molly" (a street term for powdered ecstasy) under a bag on the floor of the back seat and a firearm under the driver’s side seat.

On June 13, 2017, a federal grand jury indicted Norman on three counts: (1) possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e) ("Count 1"); (2) possession with intent to distribute a quantity of heroin and cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) ("Count 2"); and (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) ("Count 3").

The case proceeded to a bench trial. After the close of the Government’s case, Norman moved to suppress the drugs and firearm recovered from the Camry as fruits of an illegal search. The district court denied his motion, and later found Norman guilty on all three counts.

Following Norman’s conviction, the district court asked the United States Probation Office to prepare a Presentence Investigation Report ("PSR"). For Count 1, the Probation Office calculated a base offense level of 20. This included an effective six-level enhancement under U.S.S.G. § 2K2.1(a)(4)(A), on the basis that a prior conviction for "Conspiracy to [Possess with Intent to Distribute] Cocaine and Cocaine Base" under 21 U.S.C. § 846 constituted a "controlled substance offense." With an additional two-level enhancement for a stolen firearm and a criminal history category of VI, Norman’s resulting Guidelines range was 84 to 105 months’ imprisonment. Counts 1 and 2 were consolidated pursuant to U.S.S.G. § 3D1.2(c). Because Count 3 required a mandatory 60-month consecutive term of imprisonment, Norman’s effective Guidelines range under U.S.S.G. § 5G1.2(a) was 144 to 165 months.

At his sentencing hearing on March 27, 2018, Norman’s sole objection was to the criminal history points associated with a 2005 conviction in state court. The court overruled that objection. The district court then sentenced Norman to 156 months of imprisonment, consisting of 96 months for Counts 1 and 2 and 60 consecutive months for Count 3, followed by a five-year term of supervised release.

This appeal followed.

II.

Norman first challenges the district court’s denial of his motion to suppress the fruits of the warrantless search of the Camry. We review the court’s legal conclusions de novo and its factual findings for clear error. Bullette , 854 F.3d at 265.

The district court denied Norman’s motion on the basis of two exceptions to the warrant requirement, finding both that the search was "incident to an arrest" and that the officers "had probable cause to search because ... there was in plain view evidence of drugs in the car." On appeal, the Government primarily maintains that the warrantless search was valid as a search incident to the arrest of Princess Harrison. Although Norman raises a host of arguments challenging the applicability of several exceptions to the warrant requirement, he offers no rebuttal to this argument and so has abandoned any challenge to it.

Even if that were not so, we would agree with the Government that the officers’ search of the Camry was a valid search incident to the arrest of Harrison. Police may conduct a warrantless search of a vehicle "incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Arizona v. Gant , 556 U.S. 332, 343, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (internal quotation marks omitted). After finding a bag of white powder in Harrison’s hair — which she admitted to the arresting officer was cocaine — and observing a suspicious baggie and a large amount of cash in plain view, the officers had a "reasonable basis" to believe they might find additional drugs in the Camry in which Harrison, an arrestee, was a passenger. Id. at 343, 129 S.Ct. 1710 ; see also Thornton v. United States , 541 U.S. 615, 631–32, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004) (Scalia, J., concurring in the judgment).

III.

Having concluded that Norman’s only challenge to his conviction fails, we turn to his challenge to the six-level Guidelines enhancement. Ordinarily, we review de novo whether a conviction qualifies as a predicate offense under the Guidelines. United States v. Dozier , 848 F.3d 180, 182–83 (4th Cir. 2017). However, because Norman failed to object to the application of the enhancement before the district court, we can review only for plain error. United States v. Carthorne , 726 F.3d 503, 509 (4th Cir. 2013) ; see also Fed. R. Crim. P. 52(b). To establish plain error, a defendant must demonstrate (1) that an error was made, (2) that it was plain, (3) that it affected his substantial rights, and (4) that it is the type of error that "seriously affects the fairness, integrity or public reputation of judicial proceedings." Henderson v. United States , 568 U.S. 266, 272, 133 S.Ct. 1121, 185 L.Ed.2d 85 (2013) (alterations and internal quotation marks omitted).

A.

1.

We first consider whether the district court erred in its Guidelines analysis.

The Sentencing Guidelines provide that a defendant convicted under 18 U.S.C. § 922(g)(1) will have a base offense level of 20 if he has a prior conviction for a "controlled substance offense." U.S.S.G. § 2K2.1(a)(4). "Controlled substance offense" is defined in U.S.S.G. § 4B1.2(b), id. § 2K2.1 cmt. n.1, the commentary to which defines "controlled substance offense" to include the offenses of "aiding and abetting, conspiring, and attempting to commit such offenses," id. § 4B1.2 cmt. n.1.

Courts employ a categorical approach to determine whether a conviction qualifies as a predicate offense under the Sentencing Guidelines. United States v. Seay , 553 F.3d 732, 737 (4th Cir. 2009) (citing Taylor v. United States , 495 U.S. 575, 600–02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). This approach involves two steps. The first requires us to distill a "generic" definition of the predicate offense. Taylor , 495 U.S. at 598, 110 S.Ct. 2143. The second requires us to determine whether the conviction at issue constitutes a conviction of that generic offense. Id. at 600, 110 S.Ct. 2143. We do this by comparing the elements of the generic offense to the elements of the defendant’s offense of conviction. If the offense of conviction criminalizes conduct broader than that encompassed by the generic offense, then the conviction does not categorically qualify under the Guidelines. United States v. Chacon , 533 F.3d 250, 254–55 (4th Cir. 2008).

In this case, the district court applied a base offense level of 20 on the basis of Norman’s 2008 conviction for conspiracy to possess cocaine and cocaine base with intent to...