US v. Harold Smalls, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:09-cr-01339-PMD-1 Copies to all parties and the district court/agency. [999310868].. [13-4204]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4204

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HAROLD LEE SMALLS, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston.
Patrick Michael Duffy, Senior
District Judge. (2:09-cr-01339-PMD-1)

Submitted:

January 30, 2014

Before FLOYD and
Circuit Judge.

THACKER,

Decided:

Circuit

Judges,

and

March 7, 2014

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.

Jill E.M. HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston,
South Carolina, for Appellant.
William N. Nettles, United
States Attorney, Nick Bianchi, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Harold Smalls, Jr., pled guilty to possession of a
firearm

by

a

felon,

in

violation

of

18

U.S.C.

§

922(g)(1)

(2012), and possession with intent to distribute cocaine base
(“crack”),

in

violation

of

21

U.S.C.

§

841(a)

(2012),

conditioned on his right to appeal the district court’s denial
of his suppression motion.
to

180

months

of

The district court sentenced Smalls

imprisonment

and

Smalls

appealed.

On

the

Government’s motion, however, we remanded the case to allow the
district court to hold a second suppression hearing.
On

remand,

the

district

court

again

denied

Smalls’

suppression motion and also denied Smalls’ motion to dismiss the
indictment.

Smalls again pled guilty to the charges, reserving

his right to appeal the denials of his motions.
sentenced
appeals.

Smalls

to

180

months

of

The court again

imprisonment

and

he

now

For the reasons that follow, we affirm.
Smalls first argues that the district court erred in

denying

his

suppression

motion.

“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 477, 481 (4th Cir. 2008)

(citation

omitted).

When

the

district

court

has

denied

a

defendant’s suppression motion, we construe the evidence in the

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favorable

to

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the

government.

United

States

v.

Grossman, 400 F.3d 212, 216 (4th Cir. 2005).
“It is well established that the temporary detention
of individuals during the stop of an automobile by the police
. . . constitutes a seizure, no matter how brief the detention
or how limited its purpose.”

United States v. Branch, 537 F.3d

328, 335 (4th Cir. 2008) (internal quotation marks and citations
omitted).

However, “[o]bserving a traffic violation provides

sufficient

justification

offending

vehicle

for

as

incidents

traditional

for

of

(citations omitted).

a

police

long
a

as

officer

it

routine

takes

to
to

traffic

detain

the

perform

the

stop.”

Id.

We have reviewed the record and conclude

that the district court did not err in finding the stop of
Smalls’ vehicle was justified based on the violations of state
law witnessed by the officers.
Smalls next argues that the court erred in denying his
motion

to

dismiss

the

indictment

based

on

the

Government’s

failure to notify Smalls that a grand jury had been convened.
We review a district court’s denial of a motion to dismiss an
indictment de novo where the motion presents only a question of
law.
2009).

United States v. Hatcher, 560 F.3d 222, 224 (4th Cir.
Our

review

of

the

record

and

the

relevant

legal

authorities leads us to conclude that the court did not err in
denying Smalls’ motion.
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Smalls

next

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challenges

the

district

court’s

finding

that he qualified for enhanced penalties under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e) (2012).
that

the

court

erred

in

enhancing

the

Smalls argues

statutory

mandatory

minimum based on his prior convictions because they were not
alleged in the indictment, and argues that his prior burglary
convictions did not categorically qualify as violent felonies.
In Alleyne v. United States v. United States, ___ U.S. ___, 133
S. Ct. 2151 (2013), the Supreme Court determined that facts that
increase

a

statutory

minimum,

like

those

that

increase

a

statutory maximum, must be alleged in the indictment and either
admitted by the defendant or found by a jury beyond a reasonable
doubt.

Id. at 2159-64.

The Court was careful to note, however,

that the narrow exception to the general rule for the fact of a
prior exception, as recognized in Alemendarez-Torres, 523 U.S.
224 (1998), was “not revisit[ed]” in Alleyne.
2160 n.1.

133 S. Ct. at

See United States v. Blair, 734 F.3d 218, 227 (3d

Cir. 2013).
With
application

respect

of

the

to

ACCA,

Smalls’
while

other

Smalls

argument
challenged

regarding
the

ACCA

designation before the district court, he challenged only the
district

court’s

separate

consideration

of

his

ten

robbery

convictions, insisting that they should be counted as only one
conviction under the ACCA.

He did not, however, raise the issue
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he

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on

appeal,

that

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his

burglary

convictions

categorically qualify as violent felonies.
this issue for plain error.
also

United

2010).

States

v.

did

not

Therefore, we review

See Fed. R. Crim. P. 52(b); see

Lynn,

592

F.3d

572,

577-78

(4th

Cir.

To establish plain error, Smalls must show that an error

occurred,

the

error

substantial rights.
Under

was

plain,

and

the

error

affected

his

Id. at 577.

the

ACCA,

if

a

defendant

is

convicted

of

violating § 922(g) and has sustained three prior convictions for
violent felonies or serious drug offenses committed on occasions
different

from

one

another,

the

defendant

is

subject

to

a

statutory mandatory minimum of fifteen years of imprisonment.
18 U.S.C. § 924(e)(1).

A violent felony is defined as a “crime,

punishable by a term exceeding one year of imprisonment, . . .
that

.

.

.

has

as

an

element

the

use,

attempted

use,

or

threatened use of force against the person of another; or is
burglary . . . or otherwise involves conduct that presents a
serious

potential

risk

§ 924(e)(2)(B)(i)-(ii).

of

injury

to

another.”

18

U.S.C.

A serious drug offense is any offense

under state law that involves the distribution or possession
with intent to distribute a controlled substance for which a
maximum term of imprisonment of ten years or more is prescribed
by law.

18 U.S.C. § 924(e)(2)(A).

We have thoroughly reviewed

the record and the relevant legal authorities and conclude that
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the district court did not err in determining that Smalls had
sustained

at

least

three

prior

felonies

that

qualified

as

predicates under the ACCA.
Accordingly, we affirm the judgment of the district
court.
legal

We dispense with oral argument because the facts and
contentions

are

adequately

presented

in

the

materials

before this court and argument would not aid in the decisional
process.
AFFIRMED

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