Filed: Feb. 23, 2010
Latest Update: Feb. 21, 2020
Summary: Case: 09-40278 Document: 00511033627 Page: 1 Date Filed: 02/23/2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED February 23, 2010 No. 09-40278 Charles R. Fulbruge III Clerk UNITED STATE OF AMERICA Plaintiff-Appellee v. EARNEST LYNN ROSS Defendant-Appellant Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:08-CR-143-1 Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges. GARWOOD, Circuit Ju
Summary: Case: 09-40278 Document: 00511033627 Page: 1 Date Filed: 02/23/2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED February 23, 2010 No. 09-40278 Charles R. Fulbruge III Clerk UNITED STATE OF AMERICA Plaintiff-Appellee v. EARNEST LYNN ROSS Defendant-Appellant Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:08-CR-143-1 Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges. GARWOOD, Circuit Jud..
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Case: 09-40278 Document: 00511033627 Page: 1 Date Filed: 02/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 23, 2010
No. 09-40278 Charles R. Fulbruge III
Clerk
UNITED STATE OF AMERICA
Plaintiff-Appellee
v.
EARNEST LYNN ROSS
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:08-CR-143-1
Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge:*
On November 21, 2008, a jury found defendant-appellant, Earnest
Lynn Ross (Ross), guilty on two counts of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). Ross was sentenced to 120
months imprisonment on each count, to run consecutively for a total of 240
months. He appeals his conviction and his sentence, arguing that the
prosecution’s use of a peremptory challenge and two challenges for cause
during voir dire violated his constitutional rights, that the evidence at trial
*
Pursuant to 5TH CIR . R.47.5 the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR . R. 47.5.4.
Case: 09-40278 Document: 00511033627 Page: 2 Date Filed: 02/23/2010
was insufficient to support the jury’s verdict, that the district court made
several errors at his sentencing, and that the search and seizure of his vehicle
was illegal. We affirm for the reasons herein below stated.
FACTS AND PROCEEDINGS BELOW
In June 2008, an informant named Sedric Autrey notified the police
that he, Ross, Courtney Farmer (Farmer), and Devin Stephen (Stephen) were
planning to stage a home invasion to rob a residence in Denton County,
Texas. According to Autrey, Ross had participated in numerous home
invasions over the past several years in which he and Autrey attempted to
identify homes with large stores of cash, impersonated police officers or
furniture deliverymen in order to gain entry, and then subdued the occupants
by threatening them with firearms and restraining them with zip-ties. The
police provided Autrey with a recording device, and he recorded several
incriminating conversations he had with Ross while they were planning their
next home invasion. The police photographed these meetings from concealed
positions.
On June 16, 2008, the night of the planned home invasion, the police
arrested the four conspirators when they gathered in the parking lot of a Wal-
Mart to drive to the residence they had decided to rob. The officers found a
locked suitcase inside the trunk of Ross’s vehicle, which they unlocked with a
key found on Ross’s key ring. Inside were a bag containing a Samozaryadniy
Karabin sistemi Simonova (SKS) rifle and a backpack containing a .40 caliber
pistol. They also found a Walther P22 pistol inside a laptop case like one
Ross had been seen carrying on previous occasions. Another .40 caliber pistol
was found in the front seat of the car on the passenger’s side. All of the
firearms’ magazines were loaded. However, Ross’s fingerprints were not
found on any of the guns.
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On June 17, 2008, the police executed a search warrant on Stephen’s
residence after learning that Ross had lived there prior to the June 16
robbery. The search produced two shotguns that had been stolen during a
home invasion on May 15, 2008. On the following day, Autrey told the police
that the conspirators had stored more stolen property in a garage in Irving,
Texas. The address of the garage was found in Ross’s wallet. When the
police searched the garage, they found another SKS rifle and several
handguns.
Ross’s trial began on November 18, 2008. During voir dire, Panelists 14
and 41 expressed doubt that they could hear the case impartially, and the
Government moved to strike them for cause. Ross objected, but the district
court overruled his objection and excused those panelists. The Government
then used a peremptory strike to remove Panelist 10, who was one of two
black panelists. Ross objected and demanded an explanation for the
government’s reason under Batson v. Kentucky, 106 S. Ct. 1712 (1986). The
district court asked Tracey Batson, the prosecutor, to explain her reason for
striking Panelist 10. Batson explained that Panelist 10 had fallen asleep
during voir dire, had previously sat on a criminal hung jury, and had given
her a “mean” look. The court found that these reasons were not
discriminatory and overruled the objection.
During the trial, the Government presented testimony from all of Ross’s
known co-conspirators. It also introduced the tapes of the conversations that
Autrey had secretly recorded, in which a voice identified as Ross’s could be
heard planning a home invasion. The proprietor of a military surplus store
testified that Ross had bought several firearms accessories there that were
later found with the guns when Ross was arrested. The proprietor also
testified that Ross’s wife had purchased a Walter P22 from his store. A
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Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) agent
testified that all of the guns Ross was accused of possessing listed in count
one and one of those listed in count two had moved in and affected interstate
commerce. Finally, two of Ross’s victims testified that the two shotguns
found in Stephen’s house had been stolen from their home.
The jury found Ross guilty on both counts of being a felon in possession
of firearms. At sentencing, Ross for the first time moved to suppress the
evidence that was seized during the search of his car. He also objected to
several recommendations in his Pre-Sentence Report (PSR), arguing that his
sentence should not be enhanced for being the leader of the planned robbery,
for possessing guns that were not listed in his indictment, or for planning to
use the firearms to commit the robbery he allegedly had been planning. The
district court overruled his objections and adopted the PSR’s
recommendations. Ross timely filed a notice of appeal.
DISCUSSION
Ross argues that the district court made seven errors. First, he argues
that he is entitled to a new trial, because the district court allowed the
Government to exercise a peremptory challenge against a black juror on the
basis of her race, in violation of his right to due process. Second, he argues
that he is entitled to a new trial because the district court erred in excusing
two jurors for cause when no cause existed. Third, he argues that his
conviction should be reversed, because the district court erred in denying his
motion for acquittal. His fourth, fifth, and sixth assignments of error concern
the district court’s calculation of his sentence pursuant to the United States
Sentencing Commission’s Guidelines Manual (Sentencing Guidelines or
Guidelines). Seventh, he argues that the district court erred by denying as
untimely his motion to suppress evidence. We discuss each issue in turn,
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along with its standard of review.
I. The Peremptory Challenge
Ross argues that the district court erred by overruling his Batson
objection to the Government’s use of a peremptory challenge against Panelist
10 at the conclusion of voir dire.
A. Standard of Review
We review a district court’s ruling on a Batson objection for clear error.
United States v. Davis, 393 F.3d 540, 544 (5th Cir. 2004). The district court’s
determination is entitled to great deference, because findings in this context
largely turn on an evaluation of the credibility or demeanor of the attorney
who exercises the peremptory challenge in question. United States v. Bentley-
Smith,
2 F.3d 1368, 1372–73 (5th Cir. 1993) (citing Batson v. Kentucky,
47
U.S. 79, 98 n.21,
106 S. Ct. 1712, 1724 n.21 (1986), and Hernandez v. New
York,
500 U.S. 352,
111 S. Ct. 1859, 1869 (1991) (plurality opinion)).
B. The Challenge
We follow a three-step process in determining whether or not
peremptory strikes have been applied in a discriminatory manner. Bentley-
Smith, 2 F.3d at 1373. First, the party making the Batson objection must
make a prima facie showing that the peremptory challenge was exercised on
the basis of race.
Id. Second, if this showing is made, the burden shifts to the
party accused of discrimination to articulate a race-neutral reason for its use
of the peremptory challenge.
Id. Finally, the trial court must determine
whether or not the party making the Batson objection has carried its burden
of proving purposeful discrimination.
Id. The shifting burden in this three-
part test is a burden of production only.
Id. The ultimate burden of
persuasion always lies with the party making the Batson objection.
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Batson stated that she exercised the Government’s peremptory
challenge, because Panelist 10 had fallen asleep during voir dire, had
previously sat on a criminal hung jury, and had given her a mean look. Ross
argues that these assertions were not supported by the record and were
therefore legally insufficient to establish a race-neutral reason for dismissing
Panelist 10. He relies on the panel opinion of the Eighth Circuit in United
States v. Wilson, 853 F.2d 606, 610–11 (8th Cir.), vacated,
861 F.2d 514 (8th
Cir. 1988) (en banc), which held that peremptory challenges violated Batson
where they were not supported by the trial record and thus could not be
verified. This opinion was vacated, and the en banc court reached the same
result under different reasoning in United States v. Wilson,
884 F.2d 1121
(8th Cir. 1989) (en banc). Nevertheless, Ross’s argument receives some legal
support from the Supreme Court’s opinion in Snyder v. Louisiana,
128 S. Ct.
1203, 1209 (2008). In Snyder, the prosecution exercised a peremptory
challenge against a panelist in part because he had seemed unusually
nervous during voir dire.
Id. The Court found that a Batson violation had
occurred because the record refuted the non-demeanor-based ground for the
strike, and the record did not reflect that the trial court had credited the
prosecution’s demeanor-based rationale. See
id. But see Thayler v. Haynes,
No. 09-273, 559 U.S. ___, slip op. at *6-7 (2010) (per curiam) (holding that
Snyder “do[es] not suggest that, in the absence of a personal recollection of
the juror’s demeanor, the judge could not have accepted the prosecution’s
[demeanor-based] explanation” for a peremptory strike).
The record in Ross’s case contains no such flaws. Batson stated that
her reasons for challenging Panelist 10 were that she was inattentive, had
served on a criminal hung jury, and had given Batson a mean look. The
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district court confirmed on the record that Panelist 10 “did say she was a
juror from a hung jury, and she didn’t seem particularly attentive . . . .” The
district court stated that it had not seen Panelist 10 give Batson any mean
looks, but that it did not believe, based on its observation of Batson that she
was attempting to exclude Panelist 10 based on her race. Therefore, the
record supports the district court’s determination that Batson’s reasons for
excluding Panelist 10 were race-neutral and that Ross did not satisfy his
burden of establishing purposeful discrimination. Accordingly, we hold that
the district court did not clearly err by denying Ross’s Batson objection.
II. Challenges for Cause
Ross’s second assignment of error is that the district court violated his
Sixth Amendment right to a fair trial by improperly excusing Panelists 14
and 41 for cause. He argues that, although both initially indicated during
voir dire that they had doubts about their ability to hear the case impartially,
he succeeded in rehabilitating them through further questioning. The
Government contends that the record supports the district court’s decision to
exclude both panelists.
A. Standard of Review
We review a district court’s ruling on a prospective juror’s impartiality
for manifest abuse of discretion. United States v. Wharton, 320 F.3d 526, 535
(5th Cir. 2003). The district court should excuse a panelist for cause if his
“views would prevent or substantially impair the performance of his duties as
a juror in accordance with his instructions and his oath.”
Id. (quoting Soria
v. Johnson,
207 F.3d 232, 242 (5th Cir. 2000) (quoting Wainwright v. Witt,
105 S. Ct. 844, 857 (1985))) (internal quotation marks omitted).
B. The Challenges
A defendant who appeals a district court’s decision to exclude a
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potential juror for cause cannot obtain reversal of his conviction unless he
shows that the jury actually selected was biased. United States v. Hickman,
331 F.3d 439, 445 (5th Cir. 2003). Ross has not alleged, much less shown,
that the jury ultimately empaneled in his case was biased. Therefore, we
decline to find any reversible error with respect to this issue. See
id.
Moreover, and in any event, we find no manifest abuse of discretion in the
district court’s rulings on these challenges.
III. Sufficiency of the Evidence
In his third assignment of error, Ross argues that the district court
erred by denying his motion for a judgment of acquittal. He argues that this
motion should have been granted, because the evidence was insufficient on
both counts to sustain the jury’s guilty verdict. The first count of Ross’s
indictment charged him with possession of “one or more of” the weapons
recovered from his vehicle immediately after his arrest. The second count of
his indictment charged him with possession of “one or more of” the weapons
recovered from Stephen’s house on the following day.
A. Standard of Review
We review the denial of a motion to acquit de novo. United States v.
McCowan, 469 F.3d 386, 390 (5th Cir. 2006). “The jury’s verdict will be
affirmed if a reasonable trier of fact could conclude from the evidence that the
elements of the offense were established beyond a reasonable doubt.”
Id.
(quoting United States v. Delgado,
256 F.3d 264, 273 (5th Cir. 2001)). The
reviewing court makes all reasonable inferences and credibility choices in
favor of the jury verdict. United States v. Deville,
278 F.3d 500, 505 (5th Cir.
2002).
B. Felon in Possession
In order to convict a defendant of having been a felon in possession of a
8
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firearm in violation of 18 U.S.C. § 922(g)(1),1 the government must prove
beyond a reasonable doubt (1) that the defendant was a convicted felon, (2)
that he possessed a firearm, and (3) that the firearm had traveled in and
affected interstate commerce. United States v. Guidry, 406 F.3d 314, 318 (5th
Cir. 2005). See 18 U.S.C.A. § 922(g)(1) (West 2000). Ross stipulated to the
first element, and the Government established the third element through the
uncontested testimony of its expert witness from the BATFE. Thus, the
second element, possession, was the only disputed element at trial.
Possession can be established by (1) actual, physical possession of the
firearm, (2) sole control and occupancy of a place where a firearm is found, or
(3) joint occupancy of a place where a firearm is found, combined with some
evidence of the defendant’s access to and knowledge of the firearm. United
States v. Anderson, 559 F.3d 348, 353 (5th Cir.), cert. denied,
129 S. Ct. 2814
(2009). Ross’s only argument on this point is that a reasonable trier of fact
could not have concluded beyond a reasonable doubt that he possessed any of
the firearms described in either count of his indictment, because there was no
physical evidence linking him to these firearms. He asserts that the only link
was established by the testimony of his co-conspirators.
Even if it were true that the only evidence linking Ross to the firearms
1
18 U.S.C. § 922 provides, in relevant part:
Ҥ 922. Unlawful Acts
***
(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year;
***
to ship or transport in interstate or foreign commerce, or possess in or
affecting commerce, any firearm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported in interstate or foreign
commerce.”
18 U.S.C.A. § 922(g)(1) (West 2000) (emphasis in original).
9
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described in his indictment was the testimony of his co-conspirators,2 we
would not be able to find that the district court erred by denying his motion to
acquit. Once a district court has charged the jury adequately with respect to
accomplice testimony, the jury may base its conviction entirely on the
testimony of accomplices. United States v. Mendoza, 522 F.3d 482, 489 (5th
Cir.), cert. denied,
129 S. Ct. 269 (2008); Peel v. United States,
316 F.2d 907,
911 (5th Cir. 1963). When reviewing a district court’s denial of a motion to
acquit, we make all credibility choices in favor of the jury verdict.
Deville,
278 F.3d at 505. Ross has not alleged any defect in the district court’s jury
charge regarding the accomplice testimony that was heard in his case or
otherwise. No error has been shown in the district court’s denial of Ross’s
motion to acquit.
IV. Sentencing Guidelines Issues
Ross’s fourth assignment of error is that the district court improperly
enhanced his sentence by including firearms found in the search of the garage
in Irving in its calculation of his offense level pursuant to the Sentencing
Guidelines, even though he was not charged with the possession of these guns
in either count of his indictment. His fifth assignment of error is that the
district court improperly enhanced his sentence four levels under the
Guidelines based on its finding that he had intended to use the firearms he
was convicted of possessing in connection with another felony offense. And in
his sixth assignment of error, he argues that the district court improperly
applied a two-level enhancement pursuant to the Sentencing Guidelines on
2
And the record indicates that this assertion is not true. The police found the guns
described in the first count of Ross’s indictment hidden in the trunk of Ross’s car, and at
least one of these guns was inside a locked suitcase, the key to which was found on Ross’s
key ring. Furthermore, the proprietor of the military surplus store testified that Ross had
purchased several accessories from the store that were found with the firearms.
10
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the ground that he had been a leader of criminal activity.
A. Standard of Review
A district court’s application of the Sentencing Guidelines is reviewed
de novo, and its findings of fact are reviewed for clear error. United States v.
Brummett, 355 F.3d 343, 344 (5th Cir. 2003) (per curiam). “A district court
may consider non-adjudicated offenses (offenses for which the defendant has
neither been charged nor convicted) . . . provided they constitute ‘relevant
conduct’ under U.S.S.G. § 1B1.3.”
Id. A district court’s determination of
relevant conduct is reviewed for clear error.
Id.
B. Sentence Enhancement for Firearms Not Charged
In calculating Ross’s offense level under § 2K2.1 3 of the Guidelines, the
district court included five firearms found in the garage in Irving in its tally
of the number of firearms that had been involved in Ross’s possession offense,
concluding that he had possessed a total of eleven firearms. Ross argues that
this was improper, because he was not charged with possession of the
3
The United States Sentencing Commission, Guidelines Manual, §2K2.1 (Nov.
2008), provides, in relevant part:
Ҥ2K2.1. Unlawful Receipt, Possession, or Transportation of
Firearms or Ammunition; Prohibited Transactions
Involving Firearms or Ammunition
(a) Base Offense Level (Apply the Greatest):
***
(2) 24, if the defendant committed any part of the instant
offense subsequent to sustaining at least two felony
convictions of either a crime of violence or a controlled
substance offense;
***
(b) Specific Offense Characteristics
(1) If the offense involved three or more firearms, increase
as follows:
Number of Firearms Increase in Level
(A) 3-7 add 2
(B) 8-24 add 4.”
USSG §2K2.1 (emphasis in original).
11
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firearms that were found in Irving.
A district court may consider non-adjudicated offenses as “relevant
conduct” under § 1B1.3 of the Guidelines.4 Brummett, 355 F.3d at 344.
Relevant conduct includes offenses that are part of the same course of conduct
or part of the same common scheme or plan as the offense of conviction.
Id.
Two or more offenses are part of a common scheme or plan when they are
“substantially connected to each other by at least one common factor, such as
common victims, common accomplices, common purpose, or similar modus
operandi.” USSG §1B1.3, comment. (n.9(A)). “Offenses that do not qualify as
part of a common scheme or plan may nonetheless qualify as part of the same
course of conduct if they are sufficiently connected or related to each other as
to warrant the conclusion that they are part of a single episode, spree, or
ongoing series of offenses.” USSG § 1B1.3, comment. (n.9(B)).
In United States v. Brummett, we determined that a district court had
not erred in calculating a defendant’s offense level for the offense of being a
4
USSG §1B1.3 provides, in relevant part:
Ҥ1B1.3. Relevant Conduct (Factors that Determine the Guideline
Range)
(a) Chapters Two (Offense Conduct) and Three (Adjustments).
Unless otherwise specified, (I) the base offense level where
the guideline specifies more than one base offense level, (ii)
specific offense characteristics and (iii) cross references in
Chapter Two, and (iv) adjustments in Chapter three, shall be
determined on the basis of the following:
(1) (A) all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or
willfully caused by the defendant . . . .
***
that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility
for that offense . . . .”
USSG §1B1.3(a)(1) (emphasis in original).
12
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felon in possession of a firearm where it had counted firearms he had not
been indicted for possessing. Brummett, 355 F.3d at 344–45. The district
court included firearms that had been discovered in the nine months
following the possession for which the defendant was indicted as relevant
conduct in its calculation of his sentence.
Id. at 344. We held that, despite
the amount of time that had elapsed between the offenses, they were part of
the same ongoing series of offenses and thus were relevant conduct.
Id. at
345.
The amount of time that elapsed between the discovery of the last of the
firearms which Ross was indicted for possessing and the discovery of the
firearms in Irving was a single day. Ross concedes that Brummett controls
the outcome of this issue if it is still good law. However, he argues that
Brummett was abrogated by the Supreme Court in Blakely v. Washington,
124 S. Ct. 2531 (2004), and Apprendi v. New Jersey,
120 S. Ct. 2348 (2000).
In Blakely, the Court held that a state court had violated a defendant’s
Sixth Amendment rights by departing from the maximum sentence
prescribed by a state sentencing regime and enhancing the defendant’s
sentence based on facts to which he had not pleaded guilty and which had not
been found by a jury. 124 S. Ct. at 2536 (“Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” (quoting
Apprendi, 120 S. Ct. at 2362–63)). At
the time Blakely was decided, there was some concern that it would prevent
judges from applying enhancements under the federal Sentencing Guidelines,
since the Guidelines, like the state sentencing regime reviewed in Blakely,
were mandatory.
See 124 S. Ct. at 2538 n.9. See also
id. at 2548–50
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(O’Connor, J., dissenting). However, the Court’s subsequent decision in
United States v. Booker, 125 S. Ct. 738 (2005), which held that the Guidelines
were not mandatory, provided grounds for distinguishing Blakely. See United
States v. Rita,
127 S. Ct. 2456, 2465–67 (2007). In 2007, in Rita, the Court
confirmed that Blakely and Apprendi did not prevent district courts from
enhancing sentences under the Guidelines.
Rita, 127 S. Ct. at 2465–66.
Therefore, Brummett remains good law, and the district court did not
err by including the firearms found in Irving in its calculation of Ross’s
offense level under the Guidelines. See Rita, 127 S. Ct. at 2465–66;
Brummett, 355 F.3d at 345.
C. Sentence Enhancement for Using the Firearms to Commit
Another Felony Offense
Ross’s fifth assignment of error is that the district court improperly
enhanced his sentence four levels under § 2K2.1(b)(6)5 of the Sentencing
Guidelines based on its finding that he had intended to use the firearms he
was charged with possessing in connection with another felony offense.
Specifically, he argues that the government did not introduce sufficient
5
Section 2K2.1 provides, in relevant part:
Ҥ2K2.1. Unlawful Receipt, Possession, or Transportation of
Firearms or Ammunition; Prohibited Transactions
Involving Firearms or Ammunition
***
(b) Specific Offense Characteristics
***
(6) If the defendant used or possessed any firearm or
ammunition in connection with another felony offense;
or possessed or transferred any firearm or ammunition
with knowledge, intent, or reason to believe that it
would be used or possessed in connection with another
felony offense, increase by 4 levels. If the resulting
offense is less than level 18, increase to level 18.”
USSG §2K2.1(b)(6) (emphasis in original).
14
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evidence that he intended to commit another felony offense for the district
court to make this finding and enhance his sentence.
The district court need only find facts relevant to its application of the
Sentencing Guidelines by a preponderance of the evidence. United States v.
Lewis, 476 F.3d 369, 389 (5th Cir. 2007). The findings of fact made by the
district court at sentencing are reviewed for clear error.
Brummett, 355 F.3d
at 344. The record contains overwhelming evidence that Ross was planning
to use the firearms he was convicted of possessing to commit another felony
offense. In addition to the physical evidence recovered at the scene of his
arrest that suggested he was preparing to commit a home invasion, Autrey’s
tape recording of Ross planning the robbery recorded Ross stating that he
planned to bring his SKS:
“ROSS: You be there at 8:30. I pick y’all up at 8:35, then
we going to ride through and get in position.
AUTREY: Okay.
AUTREY: Yeah. Wait. So we going – you – you going to
bring your AK,6 you not going to bring your –
ROSS: Yeah, I bring it.”
Accordingly, we find that the district court had ample evidence upon which it
based its enhancement under §2K2.1(b)(6) of the Guidelines.
6
An earlier portion of the recording reveals that Ross had confused his SKS rifle for
an AK-47, due to the similar appearance of the two weapons:
“ROSS: Damn. (Inaudible) But the bitch – the drum [magazine] ain’t
fitting on the bitch. So now I’m starting to wonder, is the bitch an AK or a
SK.
***
AUTREY: You want me to bring my AK?
ROSS: Yeah, I want – I just want to see if the drum [magazine] will
fit yours.
AUTREY: Okay.
ROSS: Because if the drum will fit yours and don’t fit mine, that tells
me mine is an SK, not an AK. Because a lot of the configurations are the
same, but the load magazine is different.”
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D. Enhancement for Taking a Leadership Role in an Uncharged
Offense
Ross’s sixth assignment of error is that the district court improperly
applied a two-level enhancement pursuant to § 3B1.1 7 of the Sentencing
Guidelines on the ground that he had been a leader of criminal activity. Ross
argues that it was improper for the district court to enhance his sentence for
assuming a leadership role in the planned robbery, because he was ultimately
charged with being a felon in possession, not for any offense involving the
planning of the robbery. He then argues that, even if it might be permissible
to enhance a defendant’s sentence based on a leadership role in an uncharged
offense, there was insufficient evidence for the district court to do so in his
case. Both of these arguments lack merit.
The “Introductory Commentary” to § 3B1.1 makes it clear that
leadership roles in uncharged offenses may be used to enhance a defendant’s
sentence:
“This Part provides adjustments to the offense level based
upon the role the defendant played in committing the offense.
The determination of a defendant’s role in the offense is to be
made on the basis of all conduct within the scope of §1B1.3
(Relevant Conduct) . . . and not solely on the basis of elements
and acts cited in the count of conviction.” USSG Ch.3, Pt.B, intro.
comment (emphasis in original).
Relevant conduct includes offenses that are part of the same course of conduct
7
Section 3B1.1 provides, in relevant part:
Ҥ 3B1.1. Aggravating Role
Based on the defendant’s role in the offense, increase the offense
level as follows:
***
(c) If the defendant was an organizer, leader, manager, or
supervisor in any criminal activity other than described in (a)
or (b), increase by 2 levels.”
USSG §3B1.1(c) (emphasis in original).
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or part of the same common scheme or plan as the offense of conviction.
Brummett, 355 F.3d at 344. Two or more offenses are part of a common
scheme or plan when they are “substantially connected to each other by at
least one common factor, such as common victims, common accomplices,
common purpose, or similar modus operandi.” USSG §1B1.3, comment.
(n.9(A)). Ross’s possession of firearms was substantially connected to the
planned home invasion, because the two offenses shared a common purpose,
to rob the home’s occupants of their valuables. Thus, the planned robbery
was relevant conduct, and the district court did not err by enhancing Ross’s
sentence for his leadership role in it.
Ross’s contention that the district court lacked sufficient evidence upon
which it could conclude that Ross was a leader of the planned robbery is also
without merit. Whether or not a defendant was a leader of criminal activity
is a fact finding, which we review for clear error. Brummett, 355 F.3d at 344.
The district court must find facts relevant to its application of the Sentencing
Guidelines by a preponderance of the evidence.
Lewis, 476 F.3d at 389. The
transcript of the recorded conversation between Autrey and Ross that was
played at trial provided ample evidence upon which the court could find that
Ross was a leader of the planned robbery. Therefore, the district court did
not err by enhancing Ross’s sentence based on its finding that he had been a
leader in the planned robbery.
V. Challenge to the Warrantless Search and Seizure
Ross’s seventh assignment of error is that the district court improperly
denied his motion to suppress the evidentiary fruits of the search and seizure
of his vehicle. He filed this motion pro se at sentencing, and it was deemed
untimely by the district court.
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Case: 09-40278 Document: 00511033627 Page: 18 Date Filed: 02/23/2010
A. Standard of Review
In reviewing a district court’s denial of a motion to suppress, we review
its factual findings for clear error and its conclusions of law de novo. United
States v. Fields, 72 F.3d 1200, 1212 (5th Cir. 1996).
B. Warrantless Search and Seizure
Rule 12 8 of the Federal Rules of Criminal Procedure requires a
defendant to move to suppress evidence before trial. Fed. R. Crim. P.
12(b)(3)(C). A defendant who fails to adhere to this requirement waives the
issue. Fed. R. Crim. P. 12(e). See also United States v. Chaves-Valencia, 116
F.3d 127, 129 (5th Cir. 1997) (“[T]he failure to raise a suppression issue at
trial forecloses a defendant from raising the issue for the first time on
appeal.”). Ross admits that his suppression issue is foreclosed by law, but
asserts that he presents his argument on the issue anyway to preserve it for
“FUTURE REVIEW.”
8
Rule 12 provides, in relevant part:
“Rule 12. Pleadings and Motions
***
(b) Pretrial Motions.
(3) Motions That Must Be Made Before Trial. The following
must be raised before trial:
***
(C) a motion to suppress evidence;
***
(c) Motion Deadline. The court may, at the arraignment or as soon
afterward as practicable, set a deadline for the parties to make pretrial
motions and may also schedule a motion hearing.
***
(e) Waiver of a Defense, Objection, or Request. A party waives any
Rule 12(b)(3) defense, objection, or request not raised by the deadline the
court sets under Rule 12(c) or by any extension the court provides. For good
cause, the court may grant relief from the waiver.”
Fed R. Crim. P. 12 (West 2008) (emphasis in original).
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Frankly, we are unable to determine what exactly Ross thinks he is
preserving. He begins his discussion of this issue by stating that the search
in which the weapons were found was an inventory search of his vehicle.9 He
then states that a properly performed inventory search is an exception to the
general rule that all searches must be performed pursuant to a warrant. He
says that inventory searches are proper when law enforcement officers follow
a standard procedure. One would then expect him to argue that the
particular search that discovered the firearms in Ross’s vehicle did not follow
a standard procedure. But he does not do this. Instead, he concludes the
discussion of this issue by stating that, “[d]uring the suppression hearing,10
there was testimony that the search was conducted pursuant to the policies of
the Denton County Sheriff’s Department . . . . It cannot be said that the
inventory search was unreasonable due to law enforcement’s failure to follow
standard procedures in conducting the inventory.” This is the end of his
discussion of this issue. Thus, his own brief fails to identify a single
argument upon which his motion to suppress could have been granted if it
had been raised timely.
Given that Ross’s suppression arguments were waived, and given that
even if they had not been waived, his briefing on them is entirely inadequate,
we hold that Ross has established no ground for reversal in this connection.
9
The Government argues that the search was not an inventory search, but was
instead a search pursuant to the “automobile exception” to the Fourth Amendment warrant
requirement. See generally, United States v. Fields, 456 F.3d 519, 523 (5th Cir. 2006) (“The
automobile exception allows police to search a vehicle if they have probable cause to believe
that the vehicle contains contraband.”). We need not reach this argument, as we find that
Ross’s argument was waived and is inadequately briefed.
10
There was no suppression hearing as such, but this apparently refers to testimony
at sentencing.
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CONCLUSION
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED.
20
