US v. Brit McCullum

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:07-cr-00128-FDW-1 Copies to all parties and the district court/agency. [998810226].. [09-5037]

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Date Filed: 03/15/2012

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-5037

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIT ALZONIA MCCULLUM,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
District Judge. (3:07-cr-00128-FDW-1)

Submitted:

January 10, 2012

Decided:

March 15, 2012

Before TRAXLER, Chief Judge, FLOYD, Circuit Judge, and J.
Michelle CHILDS, United States District Judge for the District
of South Carolina, sitting by designation.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Steven T. Meier, MEIER LAW, Charlotte, North Carolina, for
Appellant.
Anne M. Tompkins, United States Attorney, Mark T.
Odulio, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Brit Alonzia McCullum was convicted and sentenced for
possession of a firearm by a felon, possession with intent to
distribute marijuana, and possession of a firearm in furtherance
of a drug trafficking crime.

On appeal, McCullum challenges the

denial of his motion to suppress and his classification as a
career offender at sentencing.

For the reasons that follow, we

affirm McCullum’s convictions, vacate his sentences, and remand
for resentencing in light of United States v. Simmons, 649 F.3d
237 (4th Cir. 2011) (en banc).

I.
On January 31, 2007, Officer Van Almen, a member of
the

Charlotte-Mecklenburg

Police

Department

(“CMPD”),

was

on

patrol in his police cruiser in an area of Charlotte known to
law enforcement for high crime and drug activity.
following
stolen.

a

Dodge

Ram

pickup

truck

that

had

He began

been

The pickup truck was occupied by three men.

reported
After

momentarily losing sight of the pickup truck, Van Almen found
the truck in a nearby parking lot and observed a man running
from the area.

Van Almen decided not to pursue him.

Instead,

he entered the parking lot to further investigate the pickup
truck and saw a person later identified as McCullum driving a
Cadillac

Eldorado

toward

the

parking
2

lot

exit.

Recalling

a

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report about a stolen Cadillac, Van Almen blocked the exit with
his police cruiser, preventing McCullum from leaving the parking
lot.
When McCullum realized he could not leave the parking
lot

through

the

exit,

he

aggressively

drove

the

Cadillac

in

reverse approximately fifty yards at a high rate of speed past
open

parking

spaces

and

available parking space.

pulled

the

vehicle

into

the

last

Van Almen believed that McCullum was

trying to get away from him, so he drove toward the Cadillac.
McCullum got out of the Cadillac, began running, and did not
stop when Van Almen ordered him to do so.

Van Almen therefore

chased McCullum, caught him, and, after a struggle, placed him
under

arrest

for

resisting

a

police

officer.

A

search

of

McCullum incident to his arrest yielded $2,734 in cash and a set
of keys that belonged to the Cadillac.

McCullum was handcuffed,

placed in the back seat of a patrol car, and transported back to
the area where the Cadillac was parked.
During this time, other officers had arrived and had
conducted a search of the Cadillac passenger compartment but
found nothing of note.

Van Almen went to the Cadillac and used

one of the keys recovered from the search of McCullum to open
the trunk compartment.

While Van Almen was searching the trunk,

a security guard patrolling the parking lot approached Van Almen
to speak with him.

The parking lot where the Cadillac was
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parked

was

Date Filed: 03/15/2012

privately

owned,

and

Page: 4 of 12

the

security

guard

banned

McCullum from the premises and wanted the Cadillac removed as
well.

Van Almen spoke with his supervising officer, Sergeant

Jones,

and

got

permission

to

have

the

Cadillac

towed.

The

search of the trunk ultimately yielded a large bag of marijuana,
weighing 63.2 grams, and a 31-round magazine for a Glock pistol,
fully loaded with 9mm ammunition.
After

searching

the

trunk

compartment,

discovered that the glove box was locked.

Van

Almen

The keys he had taken

from McCullum did not unlock it, and McCullum claimed that he
did not know how to open it.

Van Almen consulted with Sergeant

Jones concerning whether the circumstances warranted using force
to open the glove box.
to

open

the

glove

box,

Sergeant Jones gave McCullum permission
concluding

that

the

presence

of

the

marijuana, the clip of ammunition, and the large amount of U.S.
currency found on McCullum gave the officers probable cause to
go into the locked glove box.

Van Almen then forced open the

glove box and found a fully-loaded Glock 19c handgun with a
laser

beam

sight

attachment.

Van

Almen

ultimately

had

the

Cadillac towed as requested by the security guard.
McCullum was charged with (1) possession of a firearm
by

a

felon,

in

violation

of

18

U.S.C.

§

922(g)(1);

(2)

possession with intent to distribute marijuana, in violation of
21

U.S.C.

§

841(a)(1);

and

(3)
4

possession

of

a

firearm

in

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furtherance

of

a

Date Filed: 03/15/2012

drug

trafficking

U.S.C. § 924 (c)(1)(A).

Page: 5 of 12

crime,

in

violation

of

18

Prior to his trial, McCullum filed a

motion to suppress the evidence recovered in the search of the
Cadillac.

The

district

alternative grounds.
had probable cause.

court

denied

the

motion

on

two

The court first concluded that Van Almen
According to the court, the money found on

McCullum’s person, the fact that he fled, and the fact that
McCullum was in a high-crime area, along with the background
evidence about the investigation of the stolen pickup truck,
amounted to probable cause to open the trunk of the Cadillac.
Adding the fully loaded, 31-round magazine found in the trunk
compartment to the above list of facts and evidence, according
to the court, gave Van Almen probable cause to then forcibly
open the glove box.
that

the

items

Alternatively, the district court concluded

recovered

from

the

Cadillac

would

have

been

inevitably discovered pursuant to CMPD’s inventory policy.
The case went to trial, and a jury returned a verdict
of guilty on all charges.
accepted

the

McCullum

as

presentence
a

career

At sentencing, the district court
report’s

offender

(“PSR”)

based

on

classification
three

prior

of
drug

offenses, see U.S.S.G. § 4B1.1(a) (2008), and sentenced him to
three

consecutive

120-month

sentences.

On

appeal,

McCullum

contends that the district court erred in denying his motion to

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suppress and erred in classifying him as a career offender.

We

address each claim in turn.

II.
We turn first to McCullum’s challenge to the denial of
his suppression motion.

“In reviewing the denial of a motion to

suppress, we review the district court's legal conclusions de
novo and its factual findings for clear error.”

United States

v. Phillips, 588 F.3d 218, 223 (4th Cir. 2009).
construe

the

evidence

in

the

light

most

“[W]e must

favorable

to

the

prevailing party, and give due weight to inferences drawn from
those facts by resident judges and law enforcement officers.”
United

States

v.

Lewis,

606

F.3d

193,

197

(4th

(internal citation and quotation marks omitted).

Cir.

2010)

We may affirm

a district court’s ruling on a motion to suppress on any ground
apparent from the record.

United States v. Smith, 395 F.3d 516,

519 (4th Cir. 2005).
“Generally,

the

exclusionary

rule

provides

that

evidence obtained in violation of the Fourth Amendment cannot be
used in a criminal proceeding against the victim of the illegal
search and seizure.”

United States v. DeQuasie, 373 F.3d 509,

519 (4th Cir. 2004) (internal quotation marks omitted).

Under

the

rule,

inevitable

however,

discovery

evidence

that

exception
is

to

illegally
6

the

exclusionary

seized

is

nonetheless

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admissible if the government can prove “by a preponderance of
the evidence that the information ultimately or inevitably would
have been discovered by lawful means.”
U.S. 431, 444 (1984).
serve

as

the

basis

A routine inventory search policy may

for

the

admission

inevitable discovery doctrine.

“the

search

must

have

standardized

criteria,

such

policy,

performed

in

Matthews,

and
591

F.3d

230,

evidence

under

the

For an inventory search to be
be[en]

as
good

235

of

See United States v. George, 971

F.2d 1113, 1121 (4th Cir. 1992).
valid,

Nix v. Williams, 467

a

conducted

uniform

faith.”

(4th

Cir.

according

to

police

department

United

States

v.

(alteration

in

2009)

original, internal citation and quotation marks omitted).
In this case, Van Almen had the Cadillac towed because
McCullum had been banned from the premises where the vehicle was
parked and a representative of the owner of the parking lot
wanted the car taken off the lot.
evidence

that

CMPD

has

a

policy

The government presented
of

conducting

an

inventory

search on every vehicle that it has towed and that the inventory
searches include a search of all compartments that might contain
an item of value.
according

to

the

The purpose of these inventory searches,
government,

remaining within the vehicle.

is

to

document

items

of

value

As the district court found, the

towing of the Cadillac would have triggered an inventory search
of the trunk regardless of whether probable cause for the search
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of the trunk existed or not.

Page: 8 of 12

This inventory search would have

revealed the marijuana and the clip of ammunition.
Although the policy did not permit officers to force
open a locked glove compartment during an inventory search, the
ammunition discovered in the trunk would have provided probable
cause to conduct a warrantless search of the vehicle for the gun
associated with the seized ammunition.

See Michigan v. Thomas,

458 U.S. 259, 260-62 (1982) (explaining that evidence seized
during an inventory search of a vehicle can provide probable
cause

to

search

contraband).

elsewhere

in

the

vehicle

for

additional

The scope of that warrantless search would have

included “every part of the vehicle and its contents that may
[have] conceal[ed] the object of the search.”
Ross, 456 U.S. 798, 825 (1982).

United States v.

Because a glove box can conceal

a gun, the glove box of the Cadillac was obviously within the
scope of the warrantless probable cause search.

The fact that

the glove box was locked would not prevent us from upholding the
lawfulness of its search.

“[I]f the police have probable cause

to believe that there is contraband . . . anywhere in the car
they

can

search

for

it

even

if

it

is

in

a

.

.

compartment such as the glove compartment . . . .”

.

locked
United

States v. Mazzone, 782 F.2d 757, 760 (7th Cir. 1986); see also
Ross, 456 U.S. at 823 (“The scope of a warrantless search based
on probable cause is no narrower . . . than the scope of a
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search authorized by a warrant supported by probable cause.”).
Accordingly, we affirm the district court’s denial of the motion
to suppress because the marijuana, the clip of ammunition, and
the gun would have been inevitably discovered. *

III.
McCullum
the

district

also

court

challenges

improperly

his

sentence,

characterized

arguing

him

as

a

that

career

offender pursuant to § 4B1.1(a) of the Sentencing Guidelines.
“We review de novo a question concerning whether a prior state
conviction

qualifies

as

a

prior

career offender provision.”

felony

conviction

under

the

United States v. Jones, 667 F.3d

477, 482 (4th Cir. 2012).
“A defendant is a career offender if (1) the defendant
was

at

least

eighteen

years

old

at

the

time

the

defendant

committed the instant offense of conviction; (2) the instant
offense . . . is a felony that is . . . a controlled substance
offense; and (3) the defendant has at least two prior felony
convictions of . . . a controlled substance offense.”
§

4B1.1(a).

For

the

purposes

of

§

4B1.1(a),

a

U.S.S.G.

“controlled

substance offense” is “an offense under federal or state law,
*

Given our conclusion that the evidence inevitably would
have been discovered, we express no opinion on whether Van
Almen’s search was supported by probable cause.

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punishable by imprisonment for a term exceeding one year.”

Id.

§ 4B1.2(b).
The PSR categorized three prior North Carolina drug
offenses

as

predicate

offenses

for

the

career

offender

guideline: a 1998 conviction for possession with intent to sell
and deliver cocaine; a 1999 conviction for delivery of cocaine;
and a 2002 conviction for possession with intent to sell and
deliver cocaine.

McCullum received 12 months’ probation for the

1998

suspended

offense;

a

6-8

month

sentence

for

the

1999

offense; and a 6-8 month sentence for the 2002 offense.
The sentences for McCullum’s three prior drug offenses
at issue were imposed pursuant to North Carolina’s structured
sentencing scheme, which establishes three sentencing ranges for
each defendant—mitigated, presumptive, and aggravated.

Based on

either mitigating or aggravating factors, the sentencing court
may depart from the presumptive range.

However, even if it

departs from the presumptive range, the sentencing court must
still

impose

a

sentence

below

a

maximum

level,

which

is

determined by the class of the offense committed by a defendant
combined with the defendant’s criminal history.
With regard to two of McCullum’s convictions deemed
predicate

offenses

by

the

district

court—the

1999

delivery

conviction and the 2002 possession conviction—McCullum received
sentences of less than one year based on his criminal history
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and the class of the respective offenses.
those

offenses

because,

cannot
on

based

serve

criminal

his

as

predicate

He contends that

history,

offenses
he

for

could

him

not

have

received a sentence exceeding one year for either offense, even
if he were sentenced within the aggravated range.

Therefore, he

argues, the convictions do not qualify as “controlled substance
offenses”

under

§

4B1.2(b),

and

the

district

court

erred

by

we

had

classifying him as a career offender.
At
rejected
North

the

time

of

sentencing

this

individualized

Carolina

conviction

in

was

for

a

case,

holding

approach,

this

“that

crime

a

prior

punishable

by

imprisonment for a term exceeding one year, if any defendant
charged with that crime could receive a sentence of more than
one year.”

United States v. Harp, 406 F.3d 242, 246 (4th Cir.

2005) (internal citation and quotation marks omitted).

After

sentencing in this case, however, we overruled Harp and held
that

under

North

Carolina’s

structured

sentencing

scheme,

an

offense is punishable for a term exceeding one year only if the
particular defendant before the court could have received such a
sentence based on his criminal history and the nature of his
offenses.

See United States v. Simmons, 649 F.3d 237, 241-45

(4th Cir. 2011) (en banc).
In
argument

a

letter

pursuant

to

submitted
Rule

28(j)
11

to
of

this
the

court
Federal

after
Rules

oral
of

Appeal: 09-5037

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Appellate

Date Filed: 03/15/2012

sentences

Procedure,
should

the

be

government

vacated

conceded

resentencing because of our intervening Simmons decision.

We

McCullum’s

case

McCullum’s
for

vacate

the

that

remanded

agree with the government.

and

Page: 12 of 12

Therefore, in light of Simmons, we

sentences

and

remand

the

case

for

resentencing.

IV.
For
convictions,

the
vacate

foregoing
his

reasons,

sentences,

and

we

affirm

remand

the

McCullum’s
case

for

resentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

12