US v. Okang Rochelle

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:05-cr-00112-WO-1 Copies to all parties and the district court/agency. [998565095].. [10-4095]

Case: 10-4095

Document: 63

Date Filed: 04/11/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4095

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OKANG KAREEN ROCHELLE,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., District Judge. (1:05-cr-00112-WO-1)

Submitted:

March 24, 2011

Decided:

April 11, 2011

Before GREGORY, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

J. Darren Byers, LAW OFFICES OF J. DARREN BYERS, P.A., WinstonSalem, North Carolina, for Appellant. Anand P. Ramaswamy,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Case: 10-4095

Document: 63

Date Filed: 04/11/2011

Page: 2

PER CURIAM:
Okang Kareen Rochelle was found guilty of two counts
of being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2) (2006), following a jury trial.
The district court sentenced him to 220 months’ imprisonment and
three years of supervised release.
brief

in

(1967),

accordance
stating

meritorious

that,

issues

Anders

with

for

in

Rochelle’s counsel filed a
California,

v.

counsel’s

appeal,

but

U.S.

738

there

view,

386

are

no

whether

the

questioning

district court erred in admitting evidence found in a search of
Rochelle’s

car,

whether

the

district

court

erred

in

denying

Rochelle’s motion to suppress, and whether the district court
erred in sentencing Rochelle in excess of the U.S. Sentencing
Guidelines range.

Rochelle was informed of his right to file a

pro se supplemental brief, but has not done so.

The Government

declined to file a responsive brief.
First,

counsel

questions

whether

the

district

court

erred in admitting the evidence found in the investigative stop
conducted on May 17, 2004.
this evidence.

Rochelle did not move to suppress

Motions to suppress evidence must be made before

trial. Fed. R. Crim. P. 12(b)(3)(C); United States v. Wilson,
115 F.3d 1185, 1190 (4th Cir. 1997).

Failure to make a motion

to suppress before trial constitutes a waiver unless the trial
court grants relief from the waiver under Rule 12(e) for cause
2

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Page: 3

Fed. R. Crim. P. 12(e); United States v. Ricco, 52 F.3d

shown.

58, 62 (4th Cir. 1995).
relief.

The district court has not granted such

Accordingly, Rochelle has waived consideration of this

issue.
Second, counsel questions whether the district court
erred

in

denying

Rochelle’s

motion

to

suppress

two

firearms

recovered in the November 2004 search of his car, specifically
in light of Arizona v. Gant, 129 S. Ct. 1710 (2009).

When

considering a district court’s ruling on a motion to suppress
evidence,
findings

this
for

court

clear

reviews

error

and

the
its

district
legal

court’s

conclusions

factual
de novo.

United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992).
When a suppression motion has been denied, this court construes
the

evidence

in

the

light

most

favorable

to

the

government.

United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
“[W]here
which

leads

him

a

police

reasonably

officer
to

observes

conclude

in

unusual
light

conduct
of

his

experience that criminal activity may be afoot,” he is entitled
to conduct a brief, investigatory stop.
1, 30 (1968).
within

the

Terry v. Ohio, 392 U.S.

The court will determine if such a stop was

scope

of

the

Fourth

Amendment

by

considering

the

totality of the circumstances and “whether the detaining officer
has a particularized and objective basis for suspecting legal
wrongdoing.”

United States v. Arvizu, 534 U.S. 266, 273 (2002)
3

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Date Filed: 04/11/2011

(internal quotation marks omitted).
of

the

circumstances,

susceptible
factors

of

may

even

innocent

be

When assessing the totality

where

“each

explanation,”

enough

to

provide

justifying an investigative stop.

Page: 4

factor

the

alone

totality

reasonable

of

is
the

suspicion,

Id. at 277-78.

In Arizona v. Gant, the Supreme Court substantially
limited its prior holdings in vehicle search cases.

The Court

stated that “[p]olice 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.”

Gant, 129 S. Ct. at 1723.

Our review

of the record leads us to conclude that the officers reasonably
believed

that

offense

of

Rochelle’s

vehicle

arrest—namely

contained

unlawful

properly searched the vehicle.

evidence

firearms

of

the

possession—and

The district correctly denied

the motion to suppress.
Lastly, counsel questions whether the district court
erred in imposing Rochelle’s 220-month sentence.

This court

reviews

deferential

Rochelle’s

sentence

abuse-of-discretion standard.
38, 51 (2007).

under

a

Gall v. United States, 552 U.S.

In reviewing a sentence, this court must first

determine whether the district court committed any significant
procedural errors, examining the record for miscalculation of
4

Case: 10-4095

the

Guidelines

Document: 63

range,

the

Date Filed: 04/11/2011

treatment

of

the

Page: 5

Guidelines

as

mandatory, failure to consider the 18 U.S.C. § 3553(a) factors,
the selection of a sentence based on clearly erroneous facts,
and whether the court adequately explained the chosen sentence
and any deviation from the Guidelines.

Id. at 51.

If we find no significant procedural error, we next
assess the substantive reasonableness of the sentence.

United

States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010).

In this

analysis, the court “tak[es] into account the totality of the
circumstances, including the extent of any variance from the
United States v. Pauley, 511 F.3d 468, 473

Guidelines range.”

(4th Cir. 2007) (internal quotation marks and citation omitted).
After

thoroughly

Rochelle’s

reviewing

variance

the

sentence

record,
was

both

we

conclude

procedurally

that
and

substantively reasonable.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Rochelle’s conviction and sentence.

This

court requires that counsel inform Rochelle, in writing, of the
right to petition the Supreme Court of the United States for
further review.

If Rochelle requests that a petition be filed,

but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from

5

Case: 10-4095

representation.

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Date Filed: 04/11/2011

Page: 6

Counsel’s motion must state that a copy thereof

was served on Rochelle.
We dispense with oral argument because the facts and
legal
before

contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

6