Filed: Mar. 07, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4204 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. HAROLD LEE SMALLS, JR., Defendant -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 Decided: March 7, 2014 Before FLOYD and THACKER, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4204 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. HAROLD LEE SMALLS, JR., Defendant -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 Decided: March 7, 2014 Before FLOYD and THACKER, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam ..
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UNPUBLISHED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 Decided: March 7, 2014
Before FLOYD and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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. The district court sentenced Smalls
to 180 months of 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. The court again
sentenced Smalls to 180 months of imprisonment and he now
appeals. 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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light most favorable to 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 for a police officer to detain the
offending vehicle for as long as it takes to perform the
traditional incidents of a routine traffic stop.”
Id.
(citations omitted). 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. United States v. Hatcher, 560 F.3d 222, 224 (4th Cir.
2009). 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 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). Smalls argues
that the court erred in enhancing the 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. 133 S. Ct. at
2160 n.1. See United States v. Blair,
734 F.3d 218, 227 (3d
Cir. 2013).
With respect to Smalls’ other argument regarding
application of the ACCA, while Smalls challenged 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 raises on appeal, that his burglary convictions did not
categorically qualify as violent felonies. Therefore, we review
this issue for plain error. See Fed. R. Crim. P. 52(b); see
also United States v. Lynn, 592 F.3d 572, 577-78 (4th Cir.
2010). To establish plain error, Smalls must show that an error
occurred, the error was plain, and the error affected his
substantial rights.
Id. at 577.
Under 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 of injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(i)-(ii). 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. 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 in the decisional
process.
AFFIRMED
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