US v. Steven Hall

Filing 920090724

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5211 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. STEVEN ALLEN HALL, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:08-cr-00006-1) Submitted: July 6, 2009 Decided: July 24, 2009 Before WILKINSON, NIEMEYER, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Steven I. Loew, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Steven Allen Hall was convicted by a jury of possession of a firearm by a felon, in violation of 18 U.S.C. 922(g)(1) (2006). months of The district court sentenced Hall to thirty and Hall appeals his conviction and imprisonment, sentence. Finding no error, we affirm. Hall first challenges the district court's denial of his suppression motions. Hall argues that the officer who arrested him did not have reasonable suspicion to detain him. "In reviewing a district court's ruling on a motion to suppress, we review the court's factual findings for clear error, and its legal conclusions de novo." United States v. Cain, 524 F.3d When the district motion, the court to the 477, 481 (4th Cir. 2008) (citation omitted). court denies "the a defendant's in suppression the light construes evidence most favorable [G]overnment." United States v. Grossman, 400 F.3d 212, 216 (4th Cir. 2005) (citation omitted). "[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). The officer must have "at least a minimal level of objective justification for making the stop" and "must be able to articulate more than an 2 inchoate and unparticularized Id. at 123-24 suspicion (internal or hunch of criminal and activity." quotation marks citations omitted). Courts assess the legality of a Terry stop under the totality of the circumstances, giving "due weight to common sense judgments reached by officers in light of their experience and training." United States v. Perkins, 363 F.3d The court will 317, 321 (4th Cir. 2004) (citations omitted). "credit the `practical experience of officers who observe on a daily basis what transpires on the street.'" Id. (quoting United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993)). With these standards in mind, we have reviewed the record and find that the district court's conclusion that the officer had reasonable suspicion that criminal activity might have been afoot was not erroneous. reliance on the Second Amendment is We also find that Hall's misplaced, and that he failed to preserve for our review his claims based upon the state concealed weapon statute. Thus, the district court properly denied Hall's suppression motions. Hall next challenges the district court's denial of a two-level reduction in offense level for acceptance of responsibility under the guidelines. Following United States v. Booker, 543 U.S. 220 (2005), a district court must engage in a multi-step process at sentencing. After calculating the appropriate advisory guidelines range, a district court should 3 consider the resulting range in conjunction with the factors set out in 18 U.S.C. 3553(a) (2006), and determine an appropriate sentence. United States v. Abu Ali, 528 F.3d 210, 259-60 (4th Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009). This applying an court of reviews a sentence for reasonableness, Gall v. United abuse discretion standard. States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007); see also United States v. Seay, 553 F.3d 732, 742 (4th Cir. 2009), In so petition for cert. filed (May 29, 2009) (No. 08-10729). doing, the court first examines the sentence for "significant procedural improperly error," including: the "failing to range, calculate treating (or the calculating) [g]uidelines [g]uidelines as mandatory, failing to consider the 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence . . . ." Gall, 128 S. Ct. at 597. "If the district court decides to impose a sentence outside the [g]uidelines range, it must ensure that its justification supports `the degree of the variance'; . . . ." United States v. Evans, 526 F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct. 476 (2008) (quoting Gall, 128 S. Ct. at 597). Finally, the court then "`consider[s] the substantive Id. (quoting Gall, reasonableness of the sentence imposed.'" 128 S. Ct. at 597). range, the appellate If the sentence is within the guidelines court may 4 apply a presumption of reasonableness. S. Ct. 2456, Rita v. United States, 551 U.S. 338, ___, 127 2462-69 (2007) (upholding presumption of reasonableness for within-guidelines sentence). The guidelines provide for a two-level reduction in offense level of for a defendant who U.S. The "clearly Sentencing defendant demonstrates Guidelines bears the acceptance Manual responsibility." 3E1.1(a) (2007). ("USSG") burden of proving that he is entitled to the reduction by a preponderance of the evidence. F.2d 902, 907 (4th Cir. 1989). review the district court's United States v. Harris, 882 In addition, this court will of acceptance of determination responsibility with "great deference." n.5. See USSG 3E1.1 cmt. We have reviewed the record and conclude that the district court did not err in concluding that Hall failed to demonstrate acceptance of responsibility by a preponderance of the evidence. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are and adequately argument presented not in aid the the materials decisional would process. AFFIRMED 5

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