US v. Lance Walker

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00306-WDQ-1 Copies to all parties and the district court/agency. [998476578] [08-5073]

US v. Lance Walker

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5073 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LANCE WALKER, Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:08-cr-00306-WDQ-1) Submitted: November 4, 2010 Decided: December 2, 2010

Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part; vacated and remanded in part by unpublished per curiam opinion. Michael P. Kushner, Brooklyn, New York, for Appellant. Rod J. Rosenstein, United States Attorney, Debra L. Dwyer, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Lance Walker was convicted after a jury trial. He

appeals his convictions for various drug and firearm charges and his resulting 480-month sentence. We affirm his convictions but

vacate his sentence and remand for resentencing.

I. Walker first challenges the December 17, 2007 search of his car. He asserts that the warrant lacked probable cause

and that no rational officer could state any basis for issuing such a search warrant. The affidavit supporting the warrant

recounted the investigation into the October 30, 2007 death of Marion Beckford, who was shot while allegedly attempting to

collect a debt from Walker.

Walker was positively identified at

a photographic line-up, and text messages also tied Walker to the shooting. Further, the shooter drove a dark SUV.

Investigation linked Walker to a Black Lincoln Navigator, and he was arrested in that car. The officer also averred that the

firearm used in the shooting had not been found and that he believed Walker carried a weapon in his vehicle for safety. the basis of this affidavit, the magistrate judge issued On a

search warrant for Walker's Navigator, permitting a search for evidence relating to the murder CDS 2 of Beckford, including

"[h]andguns,

ammunitions,

[controlled

substances],

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photographs, directions, paperwork, personal papers and any and all microscopic evidence." Walker points out that there was no mention of CDS in the affidavit and argues that the source of the officer's belief that there would the be a handgun of in the a car was absent. warrant, of In the the

reviewing relevant

propriety is

issuing under

search the

inquiry

whether,

totality

circumstances, the issuing judge had a substantial basis for concluding that there was probable cause to issue the warrant. Illinois v. Gates, 462 U.S. 213, 238 (1983). The facts

presented to the issuing judge need only convince a person of reasonable caution that contraband or evidence of a crime will be found at the place to be searched. 730, 742 (1983). standard. Id. Texas v. Brown, 460 U.S.

Probable cause is a "flexible, common-sense" "[T]he nexus between the place to be searched

and the items to be seized may be established by the nature of the item and the normal inferences of where one would likely keep such evidence." 729 (4th Cir. 1988). We conclude that the affidavit provided probable cause to believe that firearms would be found in the car. United States v. Anderson, 851 F.2d 727,

Specifically, the shooter drove a dark colored SUV to the crime scene where he shot Beckford, Walker was identified as the

shooter who emerged from the SUV, Walker was seen driving a 3

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black Lincoln Navigator SUV, and the murder weapon had not been recovered. Probable cause can be inferred from the

circumstances, and the warrant was not invalid for failing to produce direct evidence that a firearm was in Walker's car. See

United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993) (noting that test is whether it is "reasonable to believe that the items to be seized will be found in the place to be

searched"). The warrant's permission to search for CDS is more problematic. It is undisputed that the warrant's inclusion of

CDS as an appropriate item to be seized was not supported by probable cause. faith on the However, absent a showing of pretext or bad part of the police or the Government, the

invalidity of part of a search warrant does not require the suppression of all the evidence seized during its execution. See United States v. Fitzgerald, 724 F.2d 633, 636-37 (8th Cir. 1983). Thus, even if the portion of the warrant permitting

seizure of CDS is invalid, the Fourth Amendment does not require the suppression of anything described in the valid portions of the warrant or "lawfully seized []on plain-view grounds, for example-during their execution." Id. at 637; see also United

States v. George, 975 F.2d 72, 79 (2d Cir. 1992) (holding that, where warrant as a whole is not invalid, a redacted warrant may

4

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justify a police intrusion, permitting admission of items found in plain view). Here, the cocaine and marijuana were found hidden in the same place as a loaded pistol, in an area around the

vehicle's sunroof. door.

The heroin was found inside the driver's

Thus, had the warrant not included CDS as an appropriate

target of the search, the drugs would still have been found in plain view during the execution of the warrant to search for firearms. Walker does not argue that the error in the search Moreover, he

warrant was the result of bad faith or pretext.

does not contend that a proper search for handguns would not have uncovered court the drugs. Accordingly, the motion we to find that the with

district

properly

denied

suppress

regard to the search of Walker's vehicle.

II. Walker next contends that the district court failed to make any factual findings or legal conclusions regarding the items seized from his car on January 16, 2007. However, after

the testimony at the suppression hearing, Walker did not make any argument regarding the January 16 search. Nonetheless, the

court did find that the January stop and seizure were proper. In any event, the search of Walker's car was clearly proper as a search incident to arrest. 5 A police officer may

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search the passenger area of a vehicle incident to the lawful arrest of its occupant, even when the occupant has already been removed from the car and is under the control of the police. United States v. Milton, searches 52 F.3d 78, 80 (4th Cir. 1995). to the for

Moreover, arrest of

vehicle "recent

are of

permissible the

incident

occupants"

vehicle,

accounting

situations where the officer does not make contact until the person arrested has left the vehicle. See Thornton v. United

States, 541 U.S. 615, 621-23 (2004); Arizona v. Gant, 129 S. Ct. 1710, 1723 (2009) ("Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest."). While Walker was being pursued by police officers, he exited his car and attempted to run. The police apprehended

Walker and recovered the cocaine he had thrown from the car. The officers then searched the car. We find the warrantless

search of Walker's car was proper incident to Walker's arrest.

III. Walker claims joinder of the counts against him was not proper because the counts flowing from each of his three arrests were not related and there was nothing in the indictment 6

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tying stemmed

the

arrests three

with

one in

another. Baltimore,

Walker's

convictions in 2007:

from

arrests

Maryland,

January 16, May 22, and December 17. that he was prejudiced by the joinder

Walker further asserts because the jury was

permitted to hear about his involvement with other narcotics transactions. Fed. R. Crim. P. 8(a) provides that two or more

offenses may be charged in the same indictment when the offenses "are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme refusal or to plan." grant a We review de novo the to district determine

court's

misjoinder

motion

whether the initial joinder of the offenses was proper under Rule 8(a). Cir. 2003). United States v. Mackins, 315 F.3d 399, 412 (4th If joinder was proper, review of the denial of a

motion to sever is for abuse of discretion under Fed. R. Crim. P. 14. Id. Because of the prospect of duplicating witness additional joinder is jurors the or wasting rather limited the

testimony, judicial exception. Cir. 2009). is

impaneling resources,

rule

than

United States v. Hawkins, 589 F.3d 694, 700 (4th Joinder of multiple Id. 509, 514 charges at involving the same

statute States v.

"unremarkable". 52 F.3d

702-03 Cir.

(citing 1995)

United (courts

Acker,

(4th

7

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routinely allow joinder of bank robbery charges against the same defendant)). We permissible. conclude that the joinder of the counts was

In each arrest, all of which occurred within a

twelve month period, Walker was apprehended with a distributable amount of drugs in his car, packaged in separate bags. In two

of the arrests, Walker was found with ammunition or firearms, which are tools of the drug trade, and tally sheets, which

supported the conclusion that Walker sold cocaine and marijuana. See United States v. White, 875 F.2d 427, 433 (4th Cir. 1989) (firearms arrest, are commonly was used in drug business). with After intent each to

Walker

charged

with

possession

distribute CDS, among other charges.

Accordingly, the arrests See

each involved conduct of the same or similar character.

United States v. Quilling, 261 F.3d 707, 714 (7th Cir. 2001) (noting that joinder is proper where counts were temporally

related and charged under the same statute). Since joinder of the counts was proper, Walker must show that he was clearly prejudiced by the district court's

denial of his motion to sever. However, the overwhelming

See Acker, 52 F.3d at 514. against Walker shows that

evidence

there was no prejudice.

Officers testified that, after each Moreover,

arrest, Walker was found in possession of contraband.

the district court gave a limiting instruction, informing the 8

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jury that they must consider each count separately.

Because

joinder was proper and Walker cannot show clear prejudice, the district court did not abuse its discretion in denying the

motion to sever the counts.

IV. Next, Walker asserts that the district court

improperly denied his motion to continue the trial.

"[A] trial

court's denial of a continuance is . . . reviewed for abuse of discretion; even if such an abuse is found, the defendant must show that the error specifically prejudiced [his] case in order to prevail." Cir. 2006). We find that Walker has failed to show either an abuse of discretion or prejudice. First, Walker's assertion that he United States v. Williams, 445 F.3d 724, 739 (4th

twice moved for a continuance of trial is unsupported by the record. On August 8, 2008, the motions deadline, Walker filed a

written motion to continue the motions deadline, not the trial. Walker did not move to continue the trial until September 10, five days before trial, and on that date, Walker moved for the continuance in a untranscribed telephone conference. Because

Walker never filed a written motion to continue, the district court's reasoning for denial is not on the record. Given the

timing of Walker's motions and his failure to ensure that his 9

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motion to continue was heard on the record, the district court did not abuse its discretion in denying the motion. Moreover,

even if there were an abuse of discretion, Walker has failed to even allege prejudice.

V. Finally, Walker claims that his sentence was

procedurally unreasonable because the district court failed to give sufficiently individualized reasoning for the chosen

sentence.

Walker's advisory Guidelines range was 420 months to At sentencing, Walker argued for a 420-month

life in prison.

sentence, contending that (1) he had never been convicted of a crime of violence, (2) he had never been convicted of a

completed drug sale -- all his convictions were for possession with intent to distribute, (3) he had three small children, (4) the Government intimidated his witnesses, and (5) he could still contribute something positive to society. The court imposed a

480-month sentence without providing any reasoning. In evaluating the sentencing court's explanation of a selected sentence, we have consistently held that, while a

district court must consider the statutory factors and explain its sentence, it need or not discuss explicitly every reference on 18 the U.S.C. record,

§ 3553(a)

(2006),

factor

particularly when the court imposes a sentence within a properly 10

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calculated Guidelines range. 339, 345 (4th Cir. 2006).

United States v. Johnson, 445 F.3d But, at the same time, the district

court "must make an individualized assessment based on the facts presented." Moreover, reasons the that Gall v. United States, 552 U.S. 38, 50 (2007). district justify a court must state even the when individualized sentencing a

sentence,

defendant within the Guidelines range. 551 U.S. 338, 356-57 (2007).

Rita v. United States,

The reasons articulated by the

district court for a given sentence need not be "couched in the precise language of § 3553(a)," so long as the "reasons can be matched to a factor appropriate for consideration . . . and [are] clearly tied to [the defendant's] particular situation." United States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007). In United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009), we held that, while the individualized assessment of each defendant need not be elaborate or lengthy, it must provide a rationale tailored to the particular case at hand and be

adequate to permit appellate review. § 3553 factors and purposes is

Thus, a recitation of the insufficient. Likewise, a

conclusory statement that a specific sentence is the proper one does not satisfy the district court's responsibilities. 328-29. adopted Id. at

In addition, we cannot presume that the district court the an arguments appellate of one of may 11 the not parties guess while at the imposing district

sentence;

court

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court's rationale. lower sentence than

Id. at 329-30. he received,

Because Walker requested a his claim is reviewed for

harmless error.

See United States v. Boulware, 604 F.3d 832,

838 (4th Cir. 2010). Here, referencing the the court merely range, imposed the a sentence without or

Guidelines

statutory

factors,

Walker's arguments.

Prior to imposing a sentence, the district

court made some comments that illustrated the court's view of the case: (1) the court stated that it was going to ignore an outstanding murder charge in imposing sentence, (2) the court stated that it did not intend to impose a life sentence, (3) the court expressed its belief that Walker's witnesses were lying, and (4) the court expressed bewilderment at Walker's counsel's attempt to minimize Walker's culpability based on the fact that he had never been convicted of actually selling drugs. court did not address any of Walker's other arguments. This reasoning, which was culled from the entire The

sentencing transcript so that some of the statements were made prior to hearing full argument, is insufficient as it does not reflect that the court specifically concluded that a Guidelines sentence satisfied the statutory sentencing factors. See United

States v. Hernandez, 603 F.3d 267, 269 (4th Cir. 2010) (holding on plain error review that, where defendant asked for the

sentence he received and the court stated only that a Guidelines 12

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sentence

was

appropriate,

sentence

was

not

procedurally

unreasonable).

We thus conclude that the district court abused

its discretion by failing to provide individualized reasoning for the sentence imposed. Accordingly, Walker's sentence should

be vacated unless the court finds that the error was harmless. United States v. Lynn, 592 F.3d 572, 581 (4th Cir. 2010). "To avoid reversal for non-constitutional,

non-structural errors like [the one presented here], the party defending the ruling below . . . bears the burden of

demonstrating that the error was harmless, i.e. that it did not have a substantial and injurious effect or influence on the

result." Government harmless,

Id. at 585. makes and the no

(internal quotation marks omitted.) The argument does that not any alleged error show was that

record

conclusively

"explicit consideration of [Walker's] arguments would not have affected the sentence imposed." Id. Accordingly, we vacate

Walker's sentence and remand for the district court to address Walker's arguments and give sufficient reasoning for its chosen sentence. Based on the foregoing, we affirm Walker's convictions and vacate his sentence oral and remand because for the resentencing. facts and We legal

dispense

with

argument

13

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contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED IN PART; VACATED AND REMANDED IN PART

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