United States v. Keithon Southerland , 442 F. App'x 767 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4939
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEITHON DERNARD SOUTHERLAND,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (7:09-cr-00068-FL-1)
Submitted: July 18, 2011 Decided: August 9, 2011
Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keithon Dernard Southerland appeals his conviction and
105-month sentence for one count of possession of a firearm and
ammunition by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1) (2006). On appeal he asserts that the district
court erred in denying his motion to suppress the firearm and
ammunition, that the Government breached the plea agreement, and
that the district court imposed an unreasonable sentence. For
the following reasons, we affirm.
Southerland’s indictment and conviction stemmed from
the robbery of a home in North Carolina. On October 25, 2008,
police responded to a report of an unlawful entry into a
residence. Resident Thomas Joseph Marino informed Wilmington,
North Carolina, police that while he was out walking his dog,
someone entered his home through an unlocked door and stole a
Toshiba laptop computer and a Samsung cell phone. Using GPS
features imbedded in the phone, police tracked its location to
the vicinity of 401 Henry Street.
Officer R.V. Dawson observed a silver Cadillac parked
in the driveway of the home located at 401 Henry Street. Dawson
peered into the vehicle, and observed in plain view, a phone and
a laptop matching the description of the items stolen from
Marino’s home. Dawson obtained Southerland’s consent to open
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the laptop computer, and when the computer loaded, the name “Tom
Marino” was listed as the primary user. Southerland was
arrested for possession of stolen property. After Southerland
was placed in a patrol car, Dawson and other officers searched
the Cadillac. In the course of the search, they found a jacket
located in the front passenger seat. In the pocket of the
jacket, Dawson found the magazine of a handgun. Shortly
thereafter, a second officer located a handgun near the back
seat of the vehicle.
Southerland moved to suppress the firearm and
ammunition seized from his vehicle. After the district court
denied the motion, Southerland entered a conditional guilty
plea, reserving the right to appeal from the denial of his
motion to suppress. Southerland memorialized his plea in a
written agreement with the Government. Pertinent to this
appeal, the Government agreed that it would “make known to the
[district court] at sentencing the full extent of the
Defendant’s cooperation, but the United States is not promising
to move for a departure pursuant to [U.S. Sentencing Guidelines
Manual] § 5K1.1, 18 U.S.C. § 3553(e) [(2006)], or Fed. R. Crim.
P. 35.”
The advisory Guidelines range calculated by the
Probation Office in Southerland’s presentence investigation
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report (“PSR”) was 30 to 37 months, based on an offense level of
15 and a criminal history category of IV. The Government moved
for an upward departure, arguing that Southerland’s Guidelines
criminal history category significantly underrepresented his
actual criminal history and likelihood of recidivism. At a
sentencing hearing, the district court granted the motion,
departed to an offense level of twenty-two and a criminal
history category of VI (carrying an advisory Guidelines range of
84 to 105 months), and imposed a 105-month sentence. This
timely appeal followed.
I. Motion to Suppress
In reviewing a district court’s denial of a
suppression motion, we review the district court’s factual
determinations for clear error and any legal determinations de
novo. See United States v. Kelly, 592 F.3d 586, 589 (4th Cir.),
cert. denied, 130 S. Ct. 3374 (2010). Because the district
court denied Southerland’s motion, we construe the evidence “in
the light most favorable to the government.” Id. (citation
omitted).
The Fourth Amendment guarantees “the right of the
people to be secure . . . against unreasonable searches and
seizures” and requires that “searches be conducted pursuant to a
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warrant issued by an independent judicial officer.”
California v. Carney, 471 U.S. 386, 390 (1985). An established
exception to the warrant requirement is the “automobile
exception.” Kelly, 592 F.3d at 589. Under this exception,
police may search a vehicle without a warrant if “probable cause
exists to believe it contains contraband” and the vehicle is
“readily mobile.” Pennsylvania v. Labron, 518 U.S. 938, 940
(1996). If both conditions are met, police may conduct a
warrantless search “that is as thorough as a magistrate could
authorize in a warrant.” United States v. Ross, 456 U.S. 798,
800 (1982). Furthermore, such a search may cover all areas of
the vehicle, including any of its “secret compartments.” United
States v. Bullock, 94 F.3d 896, 899 (4th Cir. 1996).
The gravamen of Southerland’s objection to the search
of his vehicle is that it was not authorized in light of
Arizona v. Gant, 129 S. Ct. 1710 (2009). In that case, the
Supreme Court held that a search of a vehicle incident to the
arrest of the driver is justified “only when the arrestee is
unsecured and within reaching distance of the passenger
compartment at the time of the search” or when “it is
‘reasonable to believe evidence relevant to the crime of arrest
might be found in the vehicle.’” 129 S. Ct. at 1719 (quoting
Thornton v. United States, 541 U.S. 615, 632 (2004)).
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Gant did not, however, alter the long-standing rule
that if officers have “probable cause to believe a vehicle
contains evidence of criminal activity,” they may search any
area of the vehicle where evidence of criminal activity may be
found. Id. at 1721 (citing cases); see United States v. Dickey-
Bey, 393 F.3d 449, 456-57 (4th Cir. 2004) (“We need not,
however, decide whether the search of Dickey-Bey’s automobile
was properly incident to his arrest because we conclude that the
circumstances in this case provided officers independent
probable cause to search the automobile.”).
Probable cause exists “where the known facts and
circumstances are sufficient to warrant a [person] of reasonable
prudence in the belief that contraband or evidence of a crime
will be found.” Ornelas v. United States, 517 U.S. 690, 696
(1996). Probable cause “is a ‘commonsense’ conception that
deals with ‘the factual and practical considerations of everyday
life.’” Kelly, 592 F.3d at 592 (quoting Ornelas, 517 U.S. at
695). In assessing whether probable cause exists, courts must
“examine the facts from the standpoint of an objectively
reasonable police officer, giving due weight to inferences drawn
from those facts by local law enforcement officers.” Id.(internal quotation marks and ellipsis omitted).
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On these facts, we have no difficulty in concluding
that probable cause existed to search Southerland’s vehicle.
Police tracked the stolen property to the address where the
vehicle was located and items matching the stolen property were
seen in plain view inside the vehicle. When police confirmed
that the items were in fact stolen, they had ample probable
cause to search the remainder of the vehicle for additional
stolen items. This is particularly so here, as Marino had not
had time to inventory his possessions and thus could not be sure
that the laptop and phone were the only missing items.
Accordingly, the district court did not err in denying the
motion to suppress.
II. Breach of Plea Agreement
Southerland next argues that the Government breached
the plea agreement by failing to “make known to the Court at
sentencing the full extent of the Defendant’s cooperation.”
“It is settled that a defendant alleging the
Government’s breach of a plea agreement bears the burden of
establishing that breach by a preponderance of the evidence.”
United States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000).
Because Southerland did not raise his claim of breach in the
district court, we review it for plain error. See Puckett v.
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United States, 129 S. Ct. 1423, 1428-29 (2009). To prevail
under this standard, Southerland must show not only that the
Government plainly breached the plea agreement, but also that he
was prejudiced by the error and that “the breach was so obvious
and substantial that failure to notice and correct it [would
affect] the fairness, integrity or public reputation of the
judicial proceedings.” United States v. McQueen, 108 F.3d 64,
66 (4th Cir. 1997) (internal quotation marks omitted).
On appeal, the Government asserts that Southerland did
not cooperate or provide any information. Moreover, Southerland
has failed to even assert on appeal that he made any attempt to
cooperate with the Government. Under these circumstances, we
cannot find plain error.
III. Sentence
Southerland claims that the district court imposed an
unreasonable sentence. He claims that the district court did
not offer an adequate explanation for its decision to depart
from the Guidelines range indicated in the PSR. We do not
agree.
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
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procedural and substantive reasonableness of a sentence. Id.;
see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
After determining whether the district court properly calculated
the defendant’s advisory guideline range, we must decide whether
the district court considered the 18 U.S.C. § 3553(a) (2006)
factors, analyzed the arguments presented by the parties, and
sufficiently explained the selected sentence. Lynn, 592 F.3d at
575-76; see United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009). Properly preserved claims of procedural error
are subject to harmless error review. Lynn, 592 F.3d at 576.
If the sentence is free of significant procedural error, the
appellate court reviews the substantive reasonableness of the
sentence. Id. at 575; United States v. Pauley, 511 F.3d 468,
473 (4th Cir. 2007).
When the district court imposes a departure sentence,
we consider “whether the sentencing court acted reasonably both
with respect to its decision to impose such a sentence and with
respect to the extent of the divergence from the sentencing
range.” United States v. Hernandez-Villanueva, 473 F.3d 118,
123 (4th Cir. 2007). We have recognized, however, that a
district court’s error in applying a departure sentence is
harmless if the sentence is ultimately justified by the
§ 3553(a) sentencing factors. United States v. Evans, 526 F.3d
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155, 165 (4th Cir. 2008) (“[E]ven assuming the district court
erred in applying the Guideline departure provisions, [the
defendant’s] sentence, which is well-justified by [the]
§ 3553(a) factors, is reasonable).
Under USSG § 4A1.3(a)(1), the district court may
upwardly depart from the Guidelines sentence if the court
determines that “the defendant’s criminal history category
substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the
defendant will commit other crimes[.]” The court may consider
prior sentences not used in computing the criminal history
category. See USSG § 4A1.3(a)(2)(A).
Here, the decision to depart upwardly was reasonable.
The district court discussed at great length Southerland’s
criminal history and the possibility of recidivism. The court
noted that Southerland “lack[s] any constructive influence or
positive guidance, [lacks] any education, [lacks] any meaningful
work ethic[.]” The court stated that Southerland “has
completely flouted the law, failed to submit to supervision, has
even been censured in this district in federal court, and he
can’t figure out that he has to follow the rules.” The court
also discussed Southerland’s prior arrests: “motor vehicle
infractions, 15 counts of breaking and entering; 19 counts of
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misdemeanor larceny; weapons on an educational property; 11
counts of misdemeanor possession of stolen goods or property.”
In addition, the extent of the district court’s
departure was reasonable. In determining the extent of a
departure under USSG § 4A1.3, the district court must use an
incremental approach. See § USSG 4A1.3(a)(4)(A); United
States v. McNeill, 598 F.3d 161, 166 (4th Cir. 2010); United
States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007). The
incremental approach requires the district court to refer first
to the next higher category and explain why it fails to reflect
the seriousness of the defendant’s record before considering a
higher category. See United States v. Rusher, 966 F.2d 868, 884
(4th Cir. 1992). However, a sentencing judge is not required
“to move only one level, or to explain its rejection of each and
every intervening level.” Dalton, 477 F.3d at 199 (internal
quotations omitted).
Here, although not required to do so, the court
discussed each intervening offense level and explained why each
was insufficient to account for Southerland’s likelihood of
recidivism and dangerousness. (Vol. I J.A. 152-53). In
particularly strong terms, the court concluded that
Southerland’s
history is one of complete and utter disregard for any
rule or any societal norm evidenced in every area, be
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it school, be it in the workplace, be it in basic
interaction with persons, including respect for
personal property. The resort to weaponry is raising
the dangerousness, and the dabbling in drugs is, as
well.
(Vol. I J.A. 152-53). We thus conclude without difficulty that
the district court acted reasonably in departing in the manner
and to the extent that it did, and that the court fully
explained its rationale for imposing a departure sentence.
We therefore 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 the court and argument would not aid the decisional
process.
AFFIRMED
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