US v. James Lesane

Filing 920100119

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5022

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES STEVEN LESANE, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Chief District Judge. (3:08-cr-00185-JRS-1)

Submitted:

December 30, 2009

Decided:

January 19, 2010

Before WILKINSON and Senior Circuit Judge.

MICHAEL,

Circuit

Judges,

and

HAMILTON,

Dismissed in part; affirmed in part by unpublished per curiam opinion.

James F. Sumpter, Richmond, Virginia, for Appellant. Dana J. Boente, United States Attorney, Elizabeth C. Wu, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: James conviction, pleading and Steven Lesane of appeals from a judgment of

sentence to

140

months' to

imprisonment, with

after to

guilty

conspiracy

possess

intent

distribute and distribution of 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846 (2006). 1 asserts district court error in: On appeal, Lesane

(1) its determination that a

conspiracy existed; (2) its refusal to grant Lesane's motion to suppress evidence from a December 4, 2007, stop in Spotsylvania County, Virginia; and (3) its refusal to grant Lesane's motion to suppress evidence from an April 26, 2007, stop in Cecil

County, Maryland. As a preliminary matter, we dismiss Lesane's appeal as to his claim of district court error relative to the existence of a conspiracy. This assignment of error is outside the scope

of Lesane's conditional plea, which reserved to Lesane the sole right to appeal the district court's denial of his motion to suppress. 2 His conclusory mention of the sufficiency of the

Lesane's guilty plea was conditional, allowing him to appeal the denial of his motion to suppress, which motion was denied by the district court following an evidentiary hearing. While Lesane's motion to suppress contains a single summary statement challenging the sufficiency of the evidence to support the conspiracy charge, and while Lesane's counsel advanced limited argument at the hearing on Lesane's motion to suppress supporting his present contention regarding the (Continued) 2
2

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evidence supporting the conviction and his limited argument on the issue during the hearing on the motion to suppress is

insufficient to preserve the issue on appeal.

Moreover, Lesane

is bound by the statements he made relative to his guilty plea and he may not now claim that the statements in which he

expressly acknowledged his guilt of the crime of conspiracy were untrue. See Blackledge v. Allison, 431 U.S. 63, 74 (1977).

Finally, as Lesane acknowledges on appeal, the issue relating to the existence of a conspiracy was not ruled upon by the district court. review. As such, it is not properly before this court for

Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993). As to Lesane's appeal of the district court's rulings

relative to the suppression of evidence from the December 4, 2007, stop in Spotsylvania County, Virginia, and the April 26, 2007, stop in Cecil County, Maryland, we construe the evidence in the light most favorable to the United States, the prevailing party below. Cir. 1998). United States v. Seidman, 156 F.3d 542, 547 (4th We and review review de novo for the clear district error court's its legal

conclusions

factual

conspiracy charge, the district court did not enter a ruling on the issue of the existence of a conspiracy at the suppression hearing, nor did it address the issue at all in its Memorandum Opinion denying the motion to suppress.

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determinations. Cir. 1992).

United States v. Rusher, 966 F.2d 868, 873 (4th

Lesane claims the December 4, 2007, police stop was pretextual. 3 We find no clear error in the district court's

factual determination crediting Deputy Taylor's testimony that Lesane failed to stop at a stop sign over the testimony of Jaime Coleman, Lesane's wife and a passenger in the vehicle, that she "believed" the car stopped. See Rusher, 966 F.2d at 873. The

failure to obey the stop sign provided Deputy Taylor with the requisite probable cause to stop the vehicle. v. Hassan El, test stop 5 for F.3d 726, 730 (4th Cir. See United States 1993) had (adopting probable which

objective cause to

determining The

whether ensuing

officer search,

vehicle).

during

contraband was discovered, did not offend the Fourth Amendment. Nor do we find merit to Lesane's assertion of district court error in its denial of Lesane's motion to suppress

evidence relative to the April 26, 2007, search of his toiletry bag. Lesane claims he had an expectation of privacy in his

toiletry bag, and that the officer's search of that bag exceeded the scope allowed by the probable cause from the smell of burnt marijuana.
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He asserts further that when the officer failed to

Lesane's argument that he was unaware of the bags of crack cocaine in the back of the vehicle next to him on the seat is not relevant to the validity of the stop.

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find contraband in his search of the interior of the car, the officer's probable cause was no longer supported, 4 and his

further search of the closed bag located on the backseat of the vehicle, without a warrant, violated Lesane's Fourth Amendment rights. The Fourth Amendment permits a warrantless search of a vehicle where and any containers cause exists or to compartments search the found within it,

probable

vehicle.

United

States v. Ross, 456 U.S. 798, 823 (1982); see also California v. Acevedo, 500 U.S. 565, 570 (1991). This court has held that the

odor of marijuana, without more, may provide requisite probable cause to support the warrantless search of a vehicle and baggage contained in that vehicle. 175, 184 (4th Cir. 2002). Here, speeding and the officer driving, pulled and he Lesane's testified car that over when for he He United States v. Scheetz, 293 F.3d

erratic

reached the window he "could smell the odor of marijuana."

searched the vehicle and the toiletry bag based on the marijuana odor. law, Under prevailing Supreme Court and Fourth Circuit case that testimony supports the district court's conclusion

that the officer had probable cause to search the inside of the

Lesane's conclusory assertion is offered without legal support.

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vehicle, as well as the toiletry bag contained in the vehicle. See Acevedo, 500 U.S. at 570; Scheetz, 293 F.3d at 184. Accordingly, we dismiss for lack of jurisdiction

Lesane's claims relating to the sufficiency of the evidence to support a conspiracy, affirm the district court's denial of

Lesane's motion to suppress, and affirm Lesane's conviction and sentence. We further deny Lesane's pro se motions to file pro We dispense with oral argument because

se supplemental briefs.

the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the

decisional process. DISMISSED IN PART; AFFIRMED IN PART

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