Filed: Dec. 02, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5073 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LANCE WALKER, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:08-cr-00306-WDQ-1) Submitted: November 4, 2010 Decided: December 2, 2010 Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part; vacated and remanded in part by un
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5073 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LANCE WALKER, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:08-cr-00306-WDQ-1) Submitted: November 4, 2010 Decided: December 2, 2010 Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part; vacated and remanded in part by unp..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5073
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LANCE WALKER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:08-cr-00306-WDQ-1)
Submitted: November 4, 2010 Decided: December 2, 2010
Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Michael P. Kushner, Brooklyn, New York, for Appellant. Rod J.
Rosenstein, United States Attorney, Debra L. Dwyer, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lance Walker was convicted after a jury trial. He
appeals his convictions for various drug and firearm charges and
his resulting 480-month sentence. We affirm his convictions but
vacate his sentence and remand for resentencing.
I.
Walker first challenges the December 17, 2007 search
of his car. He asserts that the warrant lacked probable cause
and that no rational officer could state any basis for issuing
such a search warrant. The affidavit supporting the warrant
recounted the investigation into the October 30, 2007 death of
Marion Beckford, who was shot while allegedly attempting to
collect a debt from Walker. Walker was positively identified at
a photographic line-up, and text messages also tied Walker to
the shooting. Further, the shooter drove a dark SUV.
Investigation linked Walker to a Black Lincoln Navigator, and he
was arrested in that car. The officer also averred that the
firearm used in the shooting had not been found and that he
believed Walker carried a weapon in his vehicle for safety. On
the basis of this affidavit, the magistrate judge issued a
search warrant for Walker’s Navigator, permitting a search for
evidence relating to the murder of Beckford, including
“[h]andguns, ammunitions, CDS [controlled substances],
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photographs, directions, paperwork, personal papers and any and
all microscopic evidence.”
Walker points out that there was no mention of CDS in
the affidavit and argues that the source of the officer’s belief
that there would be a handgun in the car was absent. In
reviewing the propriety of issuing a search warrant, the
relevant inquiry is whether, under the totality of the
circumstances, the issuing judge had a substantial basis for
concluding that there was probable cause to issue the warrant.
Illinois v. Gates, 462 U.S. 213, 238 (1983). The facts
presented to the issuing judge need only convince a person of
reasonable caution that contraband or evidence of a crime will
be found at the place to be searched. Texas v. Brown,
460 U.S.
730, 742 (1983). Probable cause is a “flexible, common-sense”
standard.
Id. “[T]he nexus between the place to be searched
and the items to be seized may be established by the nature of
the item and the normal inferences of where one would likely
keep such evidence.” United States v. Anderson,
851 F.2d 727,
729 (4th Cir. 1988).
We conclude that the affidavit provided probable cause
to believe that firearms would be found in the car.
Specifically, the shooter drove a dark colored SUV to the crime
scene where he shot Beckford, Walker was identified as the
shooter who emerged from the SUV, Walker was seen driving a
3
black Lincoln Navigator SUV, and the murder weapon had not been
recovered. Probable cause can be inferred from the
circumstances, and the warrant was not invalid for failing to
produce direct evidence that a firearm was in Walker’s car. See
United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993)
(noting that test is whether it is “reasonable to believe that
the items to be seized will be found in the place to be
searched”).
The warrant’s permission to search for CDS is more
problematic. It is undisputed that the warrant’s inclusion of
CDS as an appropriate item to be seized was not supported by
probable cause. However, absent a showing of pretext or bad
faith on the part of the police or the Government, the
invalidity of part of a search warrant does not require the
suppression of all the evidence seized during its execution.
See United States v. Fitzgerald, 724 F.2d 633, 636-37 (8th Cir.
1983). Thus, even if the portion of the warrant permitting
seizure of CDS is invalid, the Fourth Amendment does not require
the suppression of anything described in the valid portions of
the warrant or “lawfully seized []on plain-view grounds, for
example-during their execution.”
Id. at 637; see also United
States v. George,
975 F.2d 72, 79 (2d Cir. 1992) (holding that,
where warrant as a whole is not invalid, a redacted warrant may
4
justify a police intrusion, permitting admission of items found
in plain view).
Here, the cocaine and marijuana were found hidden in
the same place as a loaded pistol, in an area around the
vehicle’s sunroof. The heroin was found inside the driver’s
door. Thus, had the warrant not included CDS as an appropriate
target of the search, the drugs would still have been found in
plain view during the execution of the warrant to search for
firearms. Walker does not argue that the error in the search
warrant was the result of bad faith or pretext. Moreover, he
does not contend that a proper search for handguns would not
have uncovered the drugs. Accordingly, we find that the
district court properly denied the motion to suppress with
regard to the search of Walker’s vehicle.
II.
Walker next contends that the district court failed to
make any factual findings or legal conclusions regarding the
items seized from his car on January 16, 2007. However, after
the testimony at the suppression hearing, Walker did not make
any argument regarding the January 16 search. Nonetheless, the
court did find that the January stop and seizure were proper.
In any event, the search of Walker’s car was clearly
proper as a search incident to arrest. A police officer may
5
search the passenger area of a vehicle incident to the lawful
arrest of its occupant, even when the occupant has already been
removed from the car and is under the control of the police.
United States v. Milton, 52 F.3d 78, 80 (4th Cir. 1995).
Moreover, vehicle searches are permissible incident to the
arrest of “recent occupants” of the vehicle, accounting for
situations where the officer does not make contact until the
person arrested has left the vehicle. See Thornton v. United
States,
541 U.S. 615, 621-23 (2004); Arizona v. Gant,
129 S. Ct.
1710, 1723 (2009) (“Police 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.”).
While Walker was being pursued by police officers, he
exited his car and attempted to run. The police apprehended
Walker and recovered the cocaine he had thrown from the car.
The officers then searched the car. We find the warrantless
search of Walker’s car was proper incident to Walker’s arrest.
III.
Walker claims joinder of the counts against him was
not proper because the counts flowing from each of his three
arrests were not related and there was nothing in the indictment
6
tying the arrests with one another. Walker’s convictions
stemmed from three arrests in Baltimore, Maryland, in 2007:
January 16, May 22, and December 17. Walker further asserts
that he was prejudiced by the joinder because the jury was
permitted to hear about his involvement with other narcotics
transactions.
Fed. R. Crim. P. 8(a) provides that two or more
offenses may be charged in the same indictment when the offenses
“are of the same or similar character, or are based on the same
act or transaction, or are connected with or constitute parts of
a common scheme or plan.” We review de novo the district
court’s refusal to grant a misjoinder motion to determine
whether the initial joinder of the offenses was proper under
Rule 8(a). United States v. Mackins, 315 F.3d 399, 412 (4th
Cir. 2003). If joinder was proper, review of the denial of a
motion to sever is for abuse of discretion under Fed. R. Crim.
P. 14.
Id. Because of the prospect of duplicating witness
testimony, impaneling additional jurors or wasting limited
judicial resources, joinder is the rule rather than the
exception. United States v. Hawkins,
589 F.3d 694, 700 (4th
Cir. 2009). Joinder of multiple charges involving the same
statute is “unremarkable”.
Id. at 702-03 (citing United
States v. Acker,
52 F.3d 509, 514 (4th Cir. 1995) (courts
7
routinely allow joinder of bank robbery charges against the same
defendant)).
We conclude that the joinder of the counts was
permissible. In each arrest, all of which occurred within a
twelve month period, Walker was apprehended with a distributable
amount of drugs in his car, packaged in separate bags. In two
of the arrests, Walker was found with ammunition or firearms,
which are tools of the drug trade, and tally sheets, which
supported the conclusion that Walker sold cocaine and marijuana.
See United States v. White, 875 F.2d 427, 433 (4th Cir. 1989)
(firearms are commonly used in drug business). After each
arrest, Walker was charged with possession with intent to
distribute CDS, among other charges. Accordingly, the arrests
each involved conduct of the same or similar character. See
United States v. Quilling,
261 F.3d 707, 714 (7th Cir. 2001)
(noting that joinder is proper where counts were temporally
related and charged under the same statute).
Since joinder of the counts was proper, Walker must
show that he was clearly prejudiced by the district court’s
denial of his motion to sever. See Acker, 52 F.3d at 514.
However, the overwhelming evidence against Walker shows that
there was no prejudice. Officers testified that, after each
arrest, Walker was found in possession of contraband. Moreover,
the district court gave a limiting instruction, informing the
8
jury that they must consider each count separately. Because
joinder was proper and Walker cannot show clear prejudice, the
district court did not abuse its discretion in denying the
motion to sever the counts.
IV.
Next, Walker asserts that the district court
improperly denied his motion to continue the trial. “[A] trial
court’s denial of a continuance is . . . reviewed for abuse of
discretion; even if such an abuse is found, the defendant must
show that the error specifically prejudiced [his] case in order
to prevail.” United States v. Williams, 445 F.3d 724, 739 (4th
Cir. 2006).
We find that Walker has failed to show either an abuse
of discretion or prejudice. First, Walker’s assertion that he
twice moved for a continuance of trial is unsupported by the
record. On August 8, 2008, the motions deadline, Walker filed a
written motion to continue the motions deadline, not the trial.
Walker did not move to continue the trial until September 10,
five days before trial, and on that date, Walker moved for the
continuance in a untranscribed telephone conference. Because
Walker never filed a written motion to continue, the district
court’s reasoning for denial is not on the record. Given the
timing of Walker’s motions and his failure to ensure that his
9
motion to continue was heard on the record, the district court
did not abuse its discretion in denying the motion. Moreover,
even if there were an abuse of discretion, Walker has failed to
even allege prejudice.
V.
Finally, Walker claims that his sentence was
procedurally unreasonable because the district court failed to
give sufficiently individualized reasoning for the chosen
sentence. Walker’s advisory Guidelines range was 420 months to
life in prison. At sentencing, Walker argued for a 420-month
sentence, contending that (1) he had never been convicted of a
crime of violence, (2) he had never been convicted of a
completed drug sale — all his convictions were for possession
with intent to distribute, (3) he had three small children, (4)
the Government intimidated his witnesses, and (5) he could still
contribute something positive to society. The court imposed a
480-month sentence without providing any reasoning.
In evaluating the sentencing court’s explanation of a
selected sentence, we have consistently held that, while a
district court must consider the statutory factors and explain
its sentence, it need not explicitly reference 18 U.S.C.
§ 3553(a) (2006), or discuss every factor on the record,
particularly when the court imposes a sentence within a properly
10
calculated Guidelines range. United States v. Johnson, 445 F.3d
339, 345 (4th Cir. 2006). But, at the same time, the district
court “must make an individualized assessment based on the facts
presented.” Gall v. United States,
552 U.S. 38, 50 (2007).
Moreover, the district court must state the individualized
reasons that justify a sentence, even when sentencing a
defendant within the Guidelines range. Rita v. United States,
551 U.S. 338, 356-57 (2007). The reasons articulated by the
district court for a given sentence need not be “couched in the
precise language of § 3553(a),” so long as the “reasons can be
matched to a factor appropriate for consideration . . . and
[are] clearly tied to [the defendant’s] particular situation.”
United States v. Moulden,
478 F.3d 652, 658 (4th Cir. 2007).
In United States v. Carter, 564 F.3d 325, 330 (4th
Cir. 2009), we held that, while the individualized assessment of
each defendant need not be elaborate or lengthy, it must provide
a rationale tailored to the particular case at hand and be
adequate to permit appellate review. Thus, a recitation of the
§ 3553 factors and purposes is insufficient. Likewise, a
conclusory statement that a specific sentence is the proper one
does not satisfy the district court’s responsibilities.
Id. at
328-29. In addition, we cannot presume that the district court
adopted the arguments of one of the parties while imposing
sentence; an appellate court may not guess at the district
11
court’s rationale. Id. at 329-30. Because Walker requested a
lower sentence than he received, his claim is reviewed for
harmless error. See United States v. Boulware,
604 F.3d 832,
838 (4th Cir. 2010).
Here, the court merely imposed a sentence without
referencing the Guidelines range, the statutory factors, or
Walker’s arguments. Prior to imposing a sentence, the district
court made some comments that illustrated the court’s view of
the case: (1) the court stated that it was going to ignore an
outstanding murder charge in imposing sentence, (2) the court
stated that it did not intend to impose a life sentence, (3) the
court expressed its belief that Walker’s witnesses were lying,
and (4) the court expressed bewilderment at Walker’s counsel’s
attempt to minimize Walker’s culpability based on the fact that
he had never been convicted of actually selling drugs. The
court did not address any of Walker’s other arguments.
This reasoning, which was culled from the entire
sentencing transcript so that some of the statements were made
prior to hearing full argument, is insufficient as it does not
reflect that the court specifically concluded that a Guidelines
sentence satisfied the statutory sentencing factors. See United
States v. Hernandez, 603 F.3d 267, 269 (4th Cir. 2010) (holding
on plain error review that, where defendant asked for the
sentence he received and the court stated only that a Guidelines
12
sentence was appropriate, sentence was not procedurally
unreasonable). We thus conclude that the district court abused
its discretion by failing to provide individualized reasoning
for the sentence imposed. Accordingly, Walker’s sentence should
be vacated unless the court finds that the error was harmless.
United States v. Lynn, 592 F.3d 572, 581 (4th Cir. 2010).
“To avoid reversal for non-constitutional,
non-structural errors like [the one presented here], the party
defending the ruling below . . . bears the burden of
demonstrating that the error was harmless, i.e. that it did not
have a substantial and injurious effect or influence on the
result.” Id. at 585. (internal quotation marks omitted.) The
Government makes no argument that any alleged error was
harmless, and the record does not conclusively show that
“explicit consideration of [Walker’s] arguments would not have
affected the sentence imposed.”
Id. Accordingly, we vacate
Walker’s sentence and remand for the district court to address
Walker’s arguments and give sufficient reasoning for its chosen
sentence.
Based on the foregoing, we affirm Walker’s convictions
and vacate his sentence and remand for resentencing. We
dispense with oral argument because the facts and legal
13
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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