United States v. Underwood

• Decision Date: 12 March 2018
• Docket Number: No. 17-4494,17-4494
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAYMONT UNDERWOOD, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAYMONT UNDERWOOD, Defendant - Appellant.

No. 17-4494

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Submitted: February 28, 2018

March 12, 2018

UNPUBLISHED

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, District Judge. (3:16-cr-00018-MHL-1)

Before DUNCAN and FLOYD, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Patricia Palmer Nagel, THE LAW OFFICES OF PATRICIA PALMER NAGEL, PLC, Williamsburg, Virginia, for Appellant. Dana J. Boente, United States Attorney, Erik S. Siebert, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Daymont Underwood was convicted after a jury trial of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012) (count 1), possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D) (2012) (count 2), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2012) (count 3). The district court determined that Underwood was a career offender and calculated his advisory sentencing range under the U.S. Sentencing Guidelines Manual (2016) at 360 months to life imprisonment. The district court sentenced Underwood to 360 months' imprisonment. Underwood appeals and challenges his convictions and sentence. We affirm.

I.

Underwood argues that the district court erred in rejecting his claims that it lacked jurisdiction over his prosecution in light of his status as a sovereign citizen. We review challenges to the district court's jurisdiction de novo. United States v. Winfield, 665 F.3d 107, 109 (4th Cir. 2012). Underwood's jurisdictional challenge is without merit.

The citizenship of a criminal defendant is not the key ingredient for a district court's jurisdiction over a federal criminal prosecution. Rather, "'[t]he district courts of the United States shall have original jurisdiction . . . of all offenses against the laws of the United States[.]'" United States v. Eilertson, 707 F.2d 108, 109 (4th Cir. 1983) (per curiam) (quoting 18 U.S.C. § 3231 (2012)). "Subject-matter jurisdiction in every federal criminal prosecution comes from 18 U.S.C. § 3231, and there can be no doubt that Article III permits Congress to assign federal criminal prosecutions to federal courts.That's the beginning and the end of the 'jurisdictional' inquiry." Hugi v. United States, 164 F.3d 378, 380 (7th Cir. 1999), quoted in United States v. Hartwell, 448 F.3d 707, 716 (4th Cir. 2006). Additionally, personal jurisdiction in a federal criminal prosecution "is supplied by the fact that [the defendant] is within the territory of the United States." United States v. Burke, 425 F.3d 400, 408 (7th Cir. 2005); see United States v. Wilson, 721 F.2d 967, 972 (4th Cir. 1983). Further, courts have concluded that claims similar to Underwood's—asserting that an individual proclaiming himself a free and sovereign citizen not subject to the jurisdiction of federal courts—"ha[ve] no conceivable validity in American law." United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990).

Underwood was charged in the original and superseding indictments with criminal offenses against the United States, and his presence in the country supplied the prerequisite for personal jurisdiction. His sovereign citizen arguments did not support the conclusion that the district court lacked jurisdiction over his prosecution. The district court thus did not reversibly err in rejecting them.

II.

Underwood also raises challenges to the district court's denial of his motion to suppress. In reviewing a district court's ruling on a motion to suppress, we review its legal conclusions de novo and its factual findings for clear error. United States v. Stover, 808 F.3d 991, 994 (4th Cir. 2015). A factual finding is clearly erroneous if this court "on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. Harvey, 532 F.3d 326, 337 (4th Cir. 2008) (internal quotation marks omitted). However, "if the district court's account of the evidence isplausible in light of the record viewed in its entirety," this court will not reverse the district court's finding even if it would have "decided the fact differently." United States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (internal quotation marks and alteration omitted). In other words, when two views of the evidence are permissible, "the district court's choice between them cannot be clearly erroneous." Id. (internal quotation marks and alteration omitted).

We also defer to the district court's credibility determinations, "for it is the role of the district court to observe witnesses and weigh their credibility during a pre-trial motion to suppress." United States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008). Because the Government prevailed on Underwood's suppression motion, we construe the evidence in the light most favorable to it. Stover, 808 F.3d at 994. After review of the record and the parties' briefs, we conclude that Underwood fails to establish any reversible error in the district court's denial of his motion to suppress.

Underwood contends first that there was no objectively reasonable basis for the traffic stop of the sedan he was driving. The district court based its conclusion that the stop of the sedan was lawful on suppression hearing testimony it credited that Underwood violated the law by failing to stop the sedan at a stop sign. "Absent compelling evidence to the contrary, this [c]ourt declines to overturn a factual determination founded on witness demeanor and credibility." United States v. Locklear, 829 F.2d 1314, 1317 (4th Cir. 1987) (per curiam); see United States v. Jones, 356 F.3d 529, 533 n.* (4th Cir. 2004). Underwood, we conclude, fails to proffer such evidence.

Underwood challenges the district court's determination that reasonable suspicion supported his removal from the sedan and police officers' efforts to pat him down after the initial stop of the vehicle. "[A]n officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile's occupants is armed may frisk that individual for the officer's protection and the safety of everyone on the scene." United States v. Robinson, 846 F.3d 694, 696 (4th Cir.) (en banc), cert. denied, 138 S. Ct. 379 (2017); see United States v. Sakyi, 160 F.3d 164, 169 (4th Cir. 1998). Contrary to his arguments on appeal, however, Underwood was not stopped merely because marijuana had been in the sedan on a prior occasion and was not placed under arrest immediately after stepping out of the sedan. Additionally, the district court determined that a constellation of factors - including Underwood's nervous demeanor, the smell of marijuana emanating from the sedan, presence in a high-crime area, and suppression hearing testimony from one of the police officers that it credited regarding the likelihood that a firearm would be recovered during the stop - provided reasonable suspicion supporting Underwood's removal from the sedan and the efforts of the police officers to pat him down. On appeal, however, Underwood does not present specific argument explaining how or why this constellation of factors did not support the district court's determination on reasonable suspicion.

Underwood also challenges the search of the sedan and its contents as unreasonable in light of what he contends was his mere presence in a place where contraband not in plain view was present and the failure of the police officers to determine who had rented the sedan he was driving. This challenge is raised for the firsttime on appeal, however, and, given the absence of any claim that refusal to consider the issue would be plain error or would result in a fundamental miscarriage of justice, we decline to consider it. Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993). We further reject as without merit Underwood's challenge to the district court's reliance on the inevitable discovery doctrine. See Nix v. Williams, 467 U.S. 431, 440-50 (1984); United States v. Allen, 159 F.3d 832, 838 (4th Cir. 1998).

III.

Next, Underwood challenges the district court's pre-trial termination of his right to self-representation. We review de novo a district court's denial of a defendant's right to self-representation. United States v. Bush, 404 F.3d 263, 270 (4th Cir. 2005). Findings of fact supporting such a ruling are reviewed for clear error. Id.

The Sixth Amendment guarantees not only the right to be represented by counsel but also the right to self-representation. Faretta v. California, 422 U.S. 806, 807, 818-34 (1975). The right to self-representation, however, "is not absolute." Indiana v. Edwards, 554 U.S. 164, 171 (2008). Rather, the district court may terminate self-representation by a defendant "who deliberately engages in serious and obstructionist misconduct." Faretta, 422 U.S. at 834 n.46. "The right of self-representation is not a license to abuse the dignity of the courtroom." Id. It also is not "a license not to comply with relevant rules of procedural and substantive law." Id. The right further does not exist "to be used as a tactic for delay, for disruption, for distortion of the system, or for manipulation of the trial process." United States v. Frazier-El, 204 F.3d 553, 560 (4th Cir. 2000) (internal citations omitted).

Underwood's challenge to the district court's termination decision, which is made in wholly summary fashion, fails to appreciate that the decision was based on his obstructionist conduct in the proceedings below. This conduct included his continued advancement of his sovereign-citizen-based challenges to the court's jurisdiction, his disruptive outbursts and disrespectful...