US v. Steven Hall

Filing 920090724

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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