United States v. Roane , 100 F. App'x 901 ( 2004 )

Filed: July 2, 2004
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4854
(CR-02-248)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HOLLIS BRANDON ROANE, a/k/a Brandon R.
Hollis,
Defendant - Appellant.
O R D E R
The court amends its opinion filed June 15, 2004, as
follows:
On the cover sheet, district court information -- the case
number is corrected to read “CR-02-248.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4854
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HOLLIS BRANDON ROANE, a/k/a Brandon R. Hollis,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (CR-02-248)
Submitted: May 7, 2004 Decided: June 15, 2004
Before WIDENER, LUTTIG, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Edwin F. Brooks, EDWIN F. BROOKS, P.C., Richmond, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Stephen W. Miller, Assistant United States Attorneys,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Hollis Brandon Roane appeals from his conviction and 100-
month sentence imposed following a guilty plea to possession with
the intent to distribute more than five grams of cocaine base. See
21 U.S.C. § 841 (2000). On appeal, Roane challenges the district
court’s decision not to hold a suppression hearing, the denial of
his motion to suppress and the application of the sentencing
guidelines.
For the first time on appeal, Roane objects to the
district court’s decision to deny Roane’s motion to suppress
without holding a hearing. Therefore, his claim is subject to
plain error review. See United States v. Stockton, 349 F.3d 755,
761 (4th Cir. 2003), cert. denied, __ S. Ct. __, 2004 WL 264246(Mar. 22, 2004) (No. 03-8858); Fed. R. Crim. P. 52(b). In order to
notice a putative error under Rule 52(b), Roane must show (1) that
an error occurred, (2) that the error was plain, and (3) that the
error affected his substantial rights. See Stockton, 349 F.3d at
761. Even when all three of these criteria are met, we will not
correct the error unless it seriously affects the fairness,
integrity and reputation of the proceedings. Id. at 761-62.
With regard to the suppression motion, Roane fails to
assert a genuine dispute of material facts. Further, he fails to
show how the district court’s decision to deny the motion without
a hearing affected his substantial rights. Because Roane fails to
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set forth a factual dispute, we cannot say that the district
court’s decision not to hold a hearing on the suppression issue was
erroneous.
Additionally, Roane’s argument that the district court
erred in denying his suppression motion is similarly without merit.
In reviewing the denial of a motion to suppress, this Court reviews
the district court’s legal conclusions de novo and its factual
findings for clear error. United States v. Jones, 356 F.3d 529,
533 (4th Cir.), cert. denied, __ S. Ct. __, 2004 WL 264237 (2004).
This Court reviews the facts in the light most favorable to the
party that prevailed below. Id.Roane was the subject of a Terry investigatory stop based
on a witness’ identification of him as the perpetrator in a recent
robbery. See Terry v. Ohio, 392 U.S. 1 (1968); United States v.
Quarles, 330 F.3d 650, 653 (4th Cir.), cert. denied, 124 S. Ct. 459(2003). When several police officers attempted to stop Roane,
Roane assaulted one of the officers. He was then arrested for the
assault, and validly searched pursuant to that arrest. United
States v. LeFevre, 685 F.2d 897, 900 (4th Cir. 1982). The search
revealed the crack cocaine. The district court did not err in
denying Roane’s motion to suppress.
Finally, we find that the district court did not err in
refusing to run Roane’s federal sentence concurrently with his
undischarged and unrelated state sentence imposed for violation of
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his probation. When reviewing a district court’s application of
the sentencing guidelines, we review the lower court’s factual
findings for clear error and its legal conclusions de novo. United
States v. Williams, 342 F.3d 350, 357 (4th Cir. 2003), cert.
denied, 124 S. Ct. 1189 (2004).
The Sentencing Guidelines dictate that if a defendant was
on state probation at the time he committed the federal offense,
his federal sentence should be imposed consecutively to “the term
imposed for the violation of probation . . . in order to provide an
incremental penalty for the violation of probation.” U.S.
Sentencing Guidelines Manual, § 5G1.3, Cmt. n.6 (2002). Therefore,
the district court did not err in imposing Roane’s federal sentence
consecutively to his state sentence for the probation violation.
Accordingly, we affirm Roane’s conviction and sentence.
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 in the decisional process.
AFFIRMED
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