Filed: Dec. 06, 2013
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4329 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENYON DONTE DOCKERY, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:12-cr-00289-TDS-1) Submitted: November 25, 2013 Decided: December 6, 2013 Before MOTZ, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen III
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4329 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENYON DONTE DOCKERY, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:12-cr-00289-TDS-1) Submitted: November 25, 2013 Decided: December 6, 2013 Before MOTZ, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen III,..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4329
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENYON DONTE DOCKERY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:12-cr-00289-TDS-1)
Submitted: November 25, 2013 Decided: December 6, 2013
Before MOTZ, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, Gregory Davis,
Senior Litigator, Winston-Salem, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Lisa B. Boggs, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenyon Donte Dockery pled guilty to one count of
possession of a firearm after conviction of a crime punishable
by more than one year of imprisonment, in violation of 18 U.S.C.
§ 922(g), but reserved his right to appeal the district court’s
denial of his motion to suppress evidence seized from his
vehicle and statements he made to authorities after his arrest.
The district court subsequently sentenced Dockery to eighty-two
months’ imprisonment, which the court explained as both an
eleven-month upward departure pursuant to U.S. Sentencing
Guidelines Manual § 4A1.2 cmt. n.3 (2012), and an upward
variance from the Sentencing Guidelines range. On appeal,
Dockery contests the district court’s denial of his motion to
suppress, and argues that his sentence is unreasonable because
it is greater than necessary to accomplish the goals of
sentencing. We affirm.
Dockery first argues that, at the time Officer Malone
initially approached Dockery’s vehicle, he did not possess
sufficient information to provide reasonable suspicion of
criminal activity, and therefore his seizure of Dockery was
unlawful. He also argues that such suspicion did not exist at
the time the passenger exited the vehicle, and thus the search
of the passenger was unlawful and did not supply probable cause
to search the vehicle. This court reviews factual findings
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underlying a district court’s denial of a motion to suppress for
clear error and legal conclusions de novo. United States v.
Foster, 634 F.3d 243, 246 (4th Cir. 2011). Because the district
court denied the motion to suppress, we construe the evidence in
the light most favorable to the Government, the party prevailing
below. United States v. Farrior,
535 F.3d 210, 217 (4th Cir.
2008). The Government bears the burden of proof in justifying a
warrantless search or seizure. United States v. Watson,
703
F.3d 684, 689 (4th Cir. 2013).
When reviewing the constitutionality of a seizure, we
consider whether the totality of the circumstances gave the
officer a “particularized and objective basis for suspecting
legal wrongdoing.” United States v. Mayo, 361 F.3d 802, 805
(4th Cir. 2004) (internal quotation marks and citation omitted).
“In order to demonstrate reasonable suspicion, a police officer
must offer ‘specific and articulable facts’ that demonstrate at
least ‘a minimal level of objective justification’ for the
belief that criminal activity is afoot.” United States v.
Branch,
537 F.3d 328, 337 (4th Cir. 2008) (quoting Illinois v.
Wardlow,
528 U.S. 119, 123 (2000)).
Assuming, without deciding, that Dockery was seized
when Officer Malone approached his vehicle and requested
identification, we conclude that Malone possessed reasonable
suspicion of criminal activity. The informant described
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activity at Dockery’s vehicle that Malone characterized as
consistent with drug dealing, and the situation when Malone
arrived matched the informant’s description of the vehicle and
number of occupants. Additionally, the time of day
(approximately midnight), and the location in a high crime area
in which Malone had previously made arrests for drug activity,
further supported reasonable suspicion. See United States v.
Johnson, 599 F.3d 339, 343-44 (4th Cir. 2010) (officer’s
experience informs reasonable suspicion determination); United
States v. McCoy,
513 F.3d 405, 411 (4th Cir. 2008) (“[T]he
Supreme Court has often counseled lower courts to give ‘due
weight’ to the factual inferences drawn by police officers as
they investigate crime, for the reasonable suspicion analysis is
by its nature ‘officer-centered.’” (internal citations
omitted)). To the extent Dockery contests the reliability of
the informant, his argument is without merit. The informant was
not anonymous, but was known to Malone, and had provided
information on several previous occasions, some of which
resulted in arrests. Further, Malone testified that he had
never found any information provided by the informant to be
untruthful. See United States v. Christmas,
222 F.3d 141, 144
(4th Cir. 2000) (information from known informant more
trustworthy and reliable than anonymous tip).
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The reasonable suspicion possessed by Officer Malone
when he approached the vehicle was buttressed by Dockery’s
actions when asked for identification. See United States v.
George, 732 F.3d 296, 299 (4th Cir. 2013) (“A suspect’s
suspicious movements can also be taken to suggest that the
suspect may have a weapon.”). Thus, to the extent that Officer
Malone seized Dockery when he pulled Dockery’s shoulder back,
such seizure was supported by reasonable suspicion of criminal
activity and the possibility that Dockery was armed.
After Malone asked Dockery to exit the vehicle,
Dockery consented to a search of his person but refused consent
to search the vehicle. At approximately the same time, another
officer arrested the passenger of the vehicle for possession of
drug paraphernalia, specifically a crack pipe. During a search
of the passenger, he swallowed what he admitted was a package of
crack cocaine. “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.” Arizona v. Gant, 556 U.S. 332, 351
(2009). In this case, we conclude that it was reasonable to
believe that evidence of drug possession and/or trafficking
would be found in the vehicle, based on the information known to
Officer Malone and the fact that the passenger was found with a
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crack pipe and swallowed a quantity of crack cocaine.
Therefore, the district court did not err in denying Dockery’s
motion to suppress.
Dockery next argues that his sentence is unreasonable
because it is greater than necessary to satisfy the goals of
sentencing as listed in 18 U.S.C. § 3553(a). We review a
sentence for procedural and substantive reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). The same standard applies whether the sentence
is “inside, just outside, or significantly outside the
Guidelines range.” United States v. Rivera-Santana,
668 F.3d
95, 100-01 (4th Cir.) (internal citation and quotation marks
omitted), cert. denied,
133 S. Ct. 274 (2012). In determining
procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Guidelines
range, gave the parties an opportunity to argue for an
appropriate sentence, considered the 18 U.S.C. § 3553(a)
factors, selected a sentence based on clearly erroneous facts,
and sufficiently explained the selected sentence.
Gall, 552
U.S. at 49-51. In reviewing any sentence outside the Guidelines
range, the appellate court must give due deference to the
sentencing court’s decision because it has “flexibility in
fashioning a sentence outside of the Guidelines range,” and need
only “set forth enough to satisfy the appellate court that it
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has considered the parties’ arguments and has a reasoned basis”
for its decision. United States v. Diosdado-Star, 630 F.3d 359,
364 (4th Cir. 2011); see also United States v. Carter,
564 F.3d
325, 328 (4th Cir. 2009) (sentencing court “must make an
individualized assessment based on the facts presented”)
(citation and emphasis omitted). If the sentence is free of
procedural error, we review it for substantive reasonableness,
taking into account the totality of the circumstances.
Gall,
552 U.S. at 51.
Dockery argues that the district court’s reliance on
his criminal history provided an inadequate basis for an upward
departure or variance. In explaining its sentence, the district
court noted Dockery’s prior robbery and kidnapping convictions,
and particularly highlighted the fact that they involved
violence. The court, however, placed greater emphasis on the
fact that, after his release from imprisonment, Dockery resumed
criminal activity rather quickly, and demonstrated a disregard
for his probationary sentence on repeated occasions. The court
then noted that the instant offense involved a loaded handgun
with a round in the chamber, which the court considered a
serious offense. To the extent Dockery asserts that the
district court procedurally erred, his argument is without
merit. The court thoroughly explained its consideration of not
only the robbery and kidnapping convictions, but also Dockery’s
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recidivism and the instant offense. The court specifically
discussed these facts in conjunction with the § 3553(a) factors.
The court adequately explained its sentence, and did not
otherwise procedurally err.
Moreover, the sentence is substantively reasonable.
The court varied upward eleven months above the top of the
Guidelines range, or approximately fifteen percent. Considering
the totality of the circumstances, and in light of Dockery’s
demonstrated propensity for criminal activity, we conclude that
this relatively modest upward variance did not result in a
sentence that is substantively unreasonable.
Accordingly, we affirm Dockery’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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