United States v. Ira Taylor , 594 F. App'x 784 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4176
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IRA TAYLOR,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:13-cr-00078-JFM-1)
Submitted: November 25, 2014 Decided: December 9, 2014
Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Craig M. Sandberg, MUSLIN & SANDBERG, Chicago, Illinois, for
Appellant. Rod J. Rosenstein, United States Attorney, Scott A.
Lemmon, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ira Taylor was convicted, following a jury trial, of
possessing a firearm after sustaining a felony conviction, in
violation of 18 U.S.C. § 922(g)(1) (2012) (“Count One”);
distribution of, and possession with intent to distribute, a
quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1)
(2012) (“Count Two”); and possessing and brandishing a firearm
in furtherance of a drug trafficking offense (particularly,
Count Two), in violation of 18 U.S.C. § 924(c) (2012) (“Count
Three”). The district court sentenced Taylor to 180 months’
imprisonment, consisting of ninety-six months on Counts One and
Two (concurrent), and a consecutive eighty-four-month term of
imprisonment on Count Three. Taylor timely noted this appeal.
Taylor presents five issues in his opening brief and
one issue in his reply brief. 1 As discussed in detail below, we
reject these arguments and affirm the amended criminal judgment.
1
Specifically, in the reply brief, Taylor asserts a
challenge to the computation of his Sentencing Guidelines range.
We reject counsel’s contention that he preserved the propriety
of the underlying Guidelines calculation by citing to Gall v.
United States, 552 U.S. 38 (2007), in the opening brief.
Accordingly, we conclude that Taylor has waived this argument by
raising it for the first time in his reply brief. See Equal
Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 604 n.4 (4th
Cir. 2010); United States v. Brooks, 524 F.3d 549, 556 n.11 (4th
Cir. 2008).
2
I.
The record, taken in the light most favorable to the
Government, see United States v. Washington, 743 F.3d 938, 940
(4th Cir. 2014), establishes the following facts.
On November 13, 2012, George Spradlin, who was using
his personal vehicle as an unauthorized taxi, drove two people
to a residential neighborhood in Baltimore. Spradlin asked his
passengers if they knew anyone from whom he could buy marijuana.
One of the passengers indicated that Taylor, who was on the
street, could sell Spradlin marijuana. Spradlin did not then
know Taylor’s identity.
Taylor approached Spradlin’s vehicle, spoke briefly
with Spradlin, and gave Spradlin a small bag of marijuana.
Before Spradlin paid for it, Taylor lifted up his shirt and
displayed a firearm. Taylor removed the gun and demanded that
Spradlin give him all of his money — $85 — as well as the
marijuana he had just provided Spradlin. Taylor pointed the gun
at Spradlin’s head, and Spradlin complied. Also on Taylor’s
order, Spradlin exited his car and began to walk down the
street. Spradlin repeatedly asked Taylor not to harm or kill
him. At some point, Taylor discharged his firearm, but did not
hit Spradlin.
Immediately thereafter, an unmarked police car turned
down the street. Spradlin flagged down the police car and told
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the officers that Taylor had robbed him and tried to kill him.
Spradlin identified Taylor, who was standing in the middle of
the street, as the man who had robbed him.
Taylor ran, and the officers gave chase. Within a few
moments, one of the officers, Detective Steven Rosier, exited
the car and pursued Taylor on foot. The other officer, Michael
Riser, continued the pursuit in the car. While Taylor was
running, Riser saw a firearm in Taylor’s left hand. Once they
came together again, Riser warned Rosier that Taylor was armed.
The officers later found Taylor lying face down
against a row of shrubs. Taylor initially resisted Riser’s
directive to put his hands on his head, but he eventually
capitulated. Pursuant to a search incident to arrest, Riser
seized two small baggies of a plant-like substance (which the
parties later stipulated was marijuana); $85 in cash, balled up;
and $19 in cash, folded neatly and placed along side Taylor’s
identification card and credit cards.
After Taylor was in custody, Spradlin again identified
Taylor as the man who had robbed him and threatened him with a
firearm. Rosier later returned to search the shrubs and found a
firearm lying 10-15 feet from where Taylor was apprehended.
There were four live rounds and one spent shell casing in the
chamber.
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II.
Taylor moved to suppress all statements and admissions
he purportedly made, the evidence seized by Riser and the
firearm found by Rosier, and Spradlin’s identification of Taylor
as his assailant. The district court denied the motions.
Rosier, Riser, and Spradlin were among the witnesses
that testified at trial. At the close of the Government’s
evidence, defense counsel made a Fed. R. Crim. P. 29 motion for
a judgment of acquittal, which the court denied. The jury
convicted Taylor on the three charged counts and found, beyond a
reasonable doubt, that Taylor had brandished a firearm during
the course of the underlying drug trafficking crime.
At sentencing, the district court varied downward from
the advisory Guidelines range applicable to Counts One and Two
and imposed a ninety-six-month sentence on these counts, to be
followed by an eighty-four-month sentence on Count Three.
III.
Taylor first challenges the denial of his motions to
suppress. We review factual findings 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 motions,
we construe the evidence in the light most favorable to the
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Government, the party prevailing below. United States v. Black,
707 F.3d 531, 534 (4th Cir. 2013).
Taylor first contends that the district court should
have suppressed a statement that he purportedly made on his
arrest, but Taylor does not identify when, if ever, this
statement was offered into evidence. Thus, any error in the
pre-trial ruling is of no consequence.
Taylor next challenges the denial of his motion to
suppress the evidence seized pursuant to Taylor’s warrantless
arrest. This evidence, which consisted of two small bags of
marijuana and $85 in balled up cash, was discovered on Taylor’s
person during the search incident to arrest conducted by Riser.
The Supreme Court has long since approved such searches. See
United States v. Robinson, 414 U.S. 218, 234-35 (1973) (holding
that, upon lawful warrantless arrest, police may conduct a full
search of an arrestee’s person and personal items in his
possession and control, without any additional justification).
A warrantless arrest is valid so long as “there is probable
cause to believe that a criminal offense has been or is being
committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). Our
review of the hearing transcript reveals that the officers had
ample cause to arrest Taylor, thus undermining Taylor’s claim
that the seizure was unconstitutional.
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Taylor also contests the denial of his motion to
suppress the recovered firearm. However, Taylor abandoned any
privacy interest he may have had in that firearm (or the
ammunition) by discarding it in the shrubs. Therefore, the
abandoned gun was not the fruit of a seizure, and need not have
been excluded. California v. Hodari D., 499 U.S. 621, 629
(1991); see United States v. Stevenson, 396 F.3d 538, 546 (4th
Cir. 2005) (“When a person voluntarily abandons his privacy
interest in property, his subjective expectation of privacy
becomes unreasonable, and he is precluded from seeking to
suppress evidence seized from it.”).
Finally, Taylor challenges the court’s denial of his
motion to suppress Spradlin’s identification of Taylor as the
perpetrator. “Due process principles prohibit the admission at
trial of an out-of-court identification obtained through
procedures ‘so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification.’”
United States v. Saunders, 501 F.3d 384, 389 (4th Cir. 2007)
(quoting Simmons v. United States, 390 U.S. 377, 384 (1968)).
But it is clear from the record that both times Spradlin
identified Taylor as the person who robbed and threatened him
were entirely spontaneous, unprompted by any questions or
statements from either Rosier or Riser. Thus, the court
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properly ruled that they were not the result of an impermissibly
suggestive identification process.
IV.
Taylor next argues that the district court erred in
denying his Rule 29 motion for a judgment of acquittal on Counts
Two and Three. We review this ruling de novo. United States v.
Hickman, 626 F.3d 756, 762 (4th Cir. 2010).
“A defendant challenging the sufficiency of the
evidence to support his conviction bears a heavy burden.”
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)
(internal quotation marks omitted). The jury verdict must by
sustained when “there is substantial evidence in the record,
when viewed in the light most favorable to the government, to
support the conviction.” United States v. Jaensch, 665 F.3d 83,
93 (4th Cir. 2011) (internal quotation marks omitted).
In reviewing a case for substantial evidence, we
evaluate “both circumstantial and direct evidence, and allow the
government all reasonable inferences that could be drawn in its
favor.” United States v. Harvey, 532 F.3d 326, 333 (4th Cir.
2008). We do not weigh the credibility of the evidence or
resolve any conflicts in the evidence. Beidler, 110 F.3d at
1067. “Reversal for insufficient evidence is reserved for the
rare case where the prosecution’s failure is clear.” Id.
(internal quotation marks omitted).
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Count Two charged Taylor with knowingly distributing,
and possessing with intent to distribute, a quantity of
marijuana. Taylor argues that, because he possessed only 1.18
grams of marijuana, there was no basis for the jury’s finding of
an intent to distribute. We disagree. Although “[p]ossession
of a small quantity of drugs by itself is an insufficient basis
from which intent to distribute may be inferred[,]” United
States v. Fisher, 912 F.2d 728, 730 (4th Cir. 1990), this fact
did not stand alone. The Government’s evidence established that
the (admittedly small) quantity of marijuana that Taylor
possessed was individually packaged in a manner consistent with
the street-level distribution of drugs, Taylor engaged with
Spradlin in a manner consistent with selling drugs, and Taylor
possessed a loaded firearm. Taken together, these facts
satisfied the Government’s burden to show an intent to
distribute. See United States v. Collins, 412 F.3d 515, 518-19
(4th Cir. 2005) (affirming conviction for possession with intent
to distribute 2.59 grams of crack cocaine because, even in cases
involving relatively small drug quantities, an intent to
distribute can be inferred from the totality of the
circumstances).
Taylor next asserts that the Government’s evidence as
to Count Three was legally insufficient. But Spradlin’s
testimony established that (1) the men were engaged in a drug
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trafficking offense in that Spradlin was attempting to purchase
marijuana from Taylor; (2) prior to paying Taylor, but after
Taylor gave the marijuana to Spradlin for his inspection, Taylor
lifted his sweatshirt to display his firearm; and (3) Spradlin
felt scared and intimidated. This testimony thus demonstrated
that Taylor brandished his firearm in furtherance of the drug
trafficking crime of distributing marijuana. See 18 U.S.C.
§ 924(c)(4) (defining “brandish” as “to display all or part of
the firearm, or otherwise make the presence of the firearm known
to another person, in order to intimidate that person,
regardless of whether the firearm is directly visible to that
person”).
We note, briefly, that the Sixth Circuit’s decision in
United States v. Gibbs, 182 F.3d 408, 426 (6th Cir. 1999), does
not command a different result. Unlike the defendant in Gibbs,
who did not possess a firearm during either of the two actual
drug sales he completed with the undercover agent, Taylor
possessed the firearm while engaged in selling drugs to
Spradlin. To be sure, the sale of marijuana was not consummated
and quickly evolved into a robbery, but the jury could have
reasonably concluded that, at the moment he initially displayed
the firearm, Taylor “considered the firearm to be critical to
his drug-trafficking activities, including the drug deal that he
was conducting with [Spradlin] that day.” United States v.
10
Pineda, __ F.3d __, 2014 WL 5462658, at *3 (4th Cir. Oct. 29,
2014). Accordingly, we affirm the jury’s guilty verdict on
Count Three.
V.
Taylor next maintains that his sentence is illegal in
light of Alleyne v. United States, 133 S. Ct. 2151 (2013), and
unduly excessive given the scope of his criminal conduct, in
violation of the Eighth Amendment. But Alleyne is not
implicated here, because the jury made the factual finding
necessary to support the increased mandatory minimum. See 18
U.S.C. § 924(c)(1)(A)(ii).
Taylor’s Eighth Amendment claim fares no better. The
Eighth Amendment forbids cruel and unusual punishments and
implicitly requires that a criminal sentence be proportionate to
the crime or crimes of conviction. Solem v. Helm, 463 U.S. 277,
284 (1983). As this court recently clarified, proportionality
review is available for a term-of-years sentence. United States
v. Cobler, 748 F.3d 570, 579 (4th Cir.), cert. denied, 135 S.
Ct. 229 (2014).
In analyzing a claim that a sentence violates the
Eighth Amendment, we first decide whether a threshold comparison
of the gravity of a defendant’s offenses and the severity of his
sentence leads to the inference that his sentence is grossly
disproportionate to his crimes. Id. at 579-80. Taylor makes no
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effort to show that his sentence, which included a downward
variance from the Guidelines range applicable to Counts One and
Two, presents the “rare case” sufficient to raise an inference
of gross disproportionality. Graham v. Florida, 560 U.S. 48, 60
(2010) (internal quotation marks omitted). And Taylor’s
recidivism, which was set forth in the presentence report and
was a clear concern to the district court, undermines Taylor’s
claim that the sentence is disproportionate. See Ewing v.
California, 538 U.S. 11 (2003) (holding sentence of twenty-five
years to life for theft of three golf clubs, valued at
approximately $1200, was not violative of the Eighth Amendment,
given defendant’s prior felony convictions). We thus reject
Taylor’s Eighth Amendment argument.
VI.
We turn, finally, to Taylor’s claim that the district
court should have sua sponte dismissed Count One because it
amounts to an unconstitutional infringement on his Second
Amendment right to bear arms. This argument is raised for the
first time on appeal, and we conclude that Taylor cannot show
any error, let alone plain error, see Fed. R. Crim. P. 52(b), in
the district court’s failure to sua sponte dismiss Count One.
This court has ruled that Ҥ 922(g)(1) is
constitutionally valid on its face.” United States v. Moore,
666 F.3d 313, 319 (4th Cir. 2012). But we left open the
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possibility that presumptively lawful measures could be
unconstitutional if confronted with a proper as-applied
challenge. Id. To rebut this presumption of lawfulness, Taylor
“must show that his factual circumstances remove his challenge
from the realm of ordinary challenges.” Id.
Taylor alleges that he was not participating in any
criminal conduct at the time of his arrest, but this contention,
which is contrary to the jury’s factual findings, is simply
inadequate to remove Taylor’s situation from the run-of-the-mill
challenge to the constitutionality of § 922(g)(1). Further, a
review of Taylor’s criminal history reveals that he “undoubtedly
flunks the law-abiding citizen requirement” of the Second
Amendment, which the Supreme Court recognized in Heller. 2 Id. at
320 (internal quotation marks omitted). Accordingly, we reject
Taylor’s claim of error on this point.
VII.
For the foregoing reasons, we affirm the amended
criminal judgment. 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
2
District of Columbia v. Heller, 554 U.S. 570 (2008).
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