US v. SED, 09-1489.

• Decision Date: 06 April 2010
• Docket Number: No. 09-1489.,09-1489.
• Citation: 601 F.3d 224
• Court: U.S. Court of Appeals — Third Circuit
• Parties: UNITED STATES of America v. James R. SED, Appellant.

601 F.3d 224

UNITED STATES of America v. James R. SED, Appellant.

No. 09-1489.

United States Court of Appeals, Third Circuit.

Argued November 30, 2009.

Filed April 6, 2010.

Robert L. Eberhardt, Argued, Laura S. Irwin, Troy Rivetti, Office of the United States Attorney, Pittsburgh, PA, for Appellee.

William C. Kaczynski, Argued, Pittsburgh, PA, for Appellant.

Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

James Sed appeals his judgment of conviction, claiming the Pennsylvania State Police violated his Fourth Amendment rights when they arrested him in Ohio. Sed also claims the District Court erred when it failed to reduce his sentence because of "sentencing entrapment" or "sentencing factor manipulation."

I.

In 2006 Sed became the subject of a Pennsylvania State Police investigation into cocaine trafficking by Mark Grannison. Believing that Grannison supplied crack cocaine to Sed, the State Police twice arranged for an informant named Tyrone Offie to solicit Sed to sell drugs to State Trooper Michael Poulos, who was acting undercover.

The first controlled purchase occurred on April 21, 2006. On that date, Sed was traveling by car with his girlfriend, Stacie Hickman, when they met up with Poulos and Offie, who were traveling in an unmarked police van. During this initial meeting, Poulos "fronted" Sed $2400 to purchase two ounces of cocaine and Sed in turn placed a call to his supplier (Grannison). Soon after Grannison returned Sed's phone call, the two vehicles proceeded to the parking lot of Alisa's Café in Sharon, Pennsylvania, very near the Ohio border. Although there had been discussion about the deal occurring in Trumbull County, Ohio, Poulos explained to Offie that the recording device they were using in the investigation was authorized for use only in Pennsylvania. In response to Poulos's demand that they remain in Pennsylvania, Offie told Sed that he refused to enter Ohio because he was facing criminal charges there. Consequently, Poulos and Offie waited in the parking lot of Alisa's Café while Sed took the $2400 Poulos had given him and rode with Hickman into Ohio to meet Grannison. Meanwhile, Pennsylvania State Troopers monitoring the situation observed Sed and Hickman meet with Grannison at the South Side Market in Ohio before returning to Pennsylvania to deliver almost 47.1 grams of crack cocaine to Poulos.

Six days later, intending to do a "buy bust," Poulos asked Sed to meet him at the Shenango Valley Mall in Hermitage, Pennsylvania so he could buy a larger quantity of crack cocaine. Unwilling to "front" the $5250 necessary to make the purchase, Poulos told Sed he wanted to meet Sed's supplier (Grannison) at the mall. Sometime after that conversation, Sed called Poulos and changed the location of the deal to a gas station at the Hermitage Plaza, a few miles from the Shenango Valley Mall. In anticipation of the deal, Poulos had assembled a "take-down" team composed of Pennsylvania State Police and local police from Sharon, Pennsylvania who stationed themselves near the gas station to make the arrest. That plan was foiled, however, when Sed insisted that the deal transpire in the same manner as the first deal. In light of this change in plans, the take-down team proceeded to the state line. Some officers established surveillance at the South Side Market in Ohio where Sed had met Grannison on April 21, while others watched the parking lot at Alisa's Café where Sed had delivered the crack cocaine to Poulos.

After they left the gas station at the Hermitage Plaza, Poulos and Offie followed Sed and Hickman to Alisa's Café. When they arrived there, Sed exited his vehicle, went to Poulos's van, obtained $5230 for the deal¹, and said he would be right back. Sed and Hickman then drove to the South Side Market in Ohio to meet Grannison. Before Sed returned with the crack cocaine, Poulos saw Grannison drive a green Buick LeSabre into the parking lot of Alisa's Café to have a look at Poulos before returning to the South Side Market. Upon Grannison's return, Sed entered the green Buick LeSabre, and the two left the South Side Market. When the police believed Grannison and Sed had re-entered Pennsylvania, they stopped Grannison's car and seized 124 grams of crack cocaine. Sed was arrested and taken to the Sharon Police Department. It was later determined that Grannison's car was stopped in Ohio, less than one hundred yards from the Pennsylvania border.

II.

Some ten months after the two controlled purchases, a four-count indictment was filed against Sed, Hickman, and Grannison. Sed was charged with: (1) conspiracy to distribute and possess with the intent to distribute fifty (50) grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), and 846 (Count 1); (2) distribution or possession with the intent to distribute five (5) grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii), and 18 U.S.C. § 2 (Count 2); and (3) possession with the intent to distribute fifty (50) grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), 846, and 18 U.S.C. § 2 (Count 3).

Before trial, Sed filed a motion to suppress evidence, claiming the arrest violated his Fourth Amendment right to be free from unreasonable searches and seizures. The District Court denied Sed's motion, and the case proceeded to trial by jury. Sed presented an entrapment defense, testifying that he had a history as a drug user and was not predisposed to sell drugs, but began selling crack cocaine only after an extended campaign of harassment by Offie. The jury was unpersuaded and convicted Sed on all three counts.

Following Sed's conviction, the Probation Office prepared a Presentence Investigation Report (PSR) which noted the statutory range for Sed's crimes of conviction was 120 months to life imprisonment. 21 U.S.C. § 841(b)(1)(A); 21 U.S.C. § 846. The PSR also calculated Sed's base offense level at 32 pursuant to § 2D1.1 of the United States Sentencing Guidelines (USSG). The PSR recommended a two-level enhancement for obstruction of justice under USSG § 3C1.1, to which Sed objected.

Consistent with the PSR, the District Court concluded that Sed "willfully gave false testimony ... in support of his entrapment defense." In the District Court's view, the "entire line of testimony" about Offie's harassment "clearly was fabricated by defendant to support his defense" because Sed "doggedly pursued the opportunities to complete the large crack cocaine transactions...." Based on this conclusion, the District Court imposed a two-level enhancement for obstruction of justice, which raised Sed's offense level to 34. Sed's criminal history category was I, which yielded an advisory Guidelines range of 151 to 188 months imprisonment. Based on Sed's lack of history in the drug trade and his relatively minor role in Grannison's distribution network, the District Court varied downward and imposed a 130-month term of incarceration.

Sed filed this timely appeal. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

III.

A.

Sed first challenges his conviction, claiming the Pennsylvania State Police violated his Fourth Amendment rights when they seized him in Ohio, beyond their jurisdiction. We review the District Court's findings of fact for clear error. United States v. Grier, 585 F.3d 138, 141 (3d Cir.2009). We exercise plenary review of the District Court's application of the law to the facts. United States v. Price, 558 F.3d 270, 276 (3d Cir.2009) (citations omitted).

Relying principally upon two sections of the Uniform Fresh Pursuit Act, as enacted at Ohio Rev.Code §§ 2935.30 and 2935.31, Sed asserts that his arrest in Ohio by Pennsylvania police violated Ohio law. Consequently, he argues that evidence against him must be suppressed because "the concept of reasonableness embodied in the Fourth Amendment logically and necessarily presumes an exercise of lawful authority by a police officer. The Pennsylvania officers' flagrant indifference to their jurisdictional limitations and Ohio's jurisdictional prerogatives requires suppression." This argument is contrary to the Supreme Court's decision in Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008), which Sed neglects to address in his initial brief or in his reply brief, despite the Government's heavy reliance upon the case.

In Moore, police arrested Moore for driving on a suspended license, even though Virginia law empowered them to issue only a summons for that offense. Id. at 1601-02. The question presented to the Supreme Court was "whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law." Id. at 1601. Like Sed, Moore argued that his arrest in violation of Virginia law constituted an ipso facto violation of the Fourth Amendment. The Supreme Court disagreed, noting: "A State is free to prefer one search-and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional." Id. at 1606. The Court concluded that "while States are free to regulate ... arrests however they desire, state restrictions do not alter the Fourth Amendment's protections." Id. at 1607. In light of Moore, Sed is plainly wrong when he argues that his arrest in violation of Ohio law renders the conduct of the State Police unreasonable per se under the Fourth Amendment.

Our rejection of Sed's categorical argument is not the end of the inquiry, however, because we still must determine whether the seizure was unreasonable under the Fourth Amendment. We review the reasonableness of a seizure under the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417...