United States v. Brit McCullum , 469 F. App'x 194 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5037
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIT ALZONIA MCCULLUM,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00128-FDW-1)
Submitted: January 10, 2012 Decided: March 15, 2012
Before TRAXLER, Chief Judge, FLOYD, Circuit Judge, and J.
Michelle CHILDS, United States District Judge for the District
of South Carolina, sitting by designation.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Steven T. Meier, MEIER LAW, Charlotte, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, Mark T.
Odulio, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brit Alonzia McCullum was convicted and sentenced for
possession of a firearm by a felon, possession with intent to
distribute marijuana, and possession of a firearm in furtherance
of a drug trafficking crime. On appeal, McCullum challenges the
denial of his motion to suppress and his classification as a
career offender at sentencing. For the reasons that follow, we
affirm McCullum’s convictions, vacate his sentences, and remand
for resentencing in light of United States v. Simmons, 649 F.3d
237 (4th Cir. 2011) (en banc).
I.
On January 31, 2007, Officer Van Almen, a member of
the Charlotte-Mecklenburg Police Department (“CMPD”), was on
patrol in his police cruiser in an area of Charlotte known to
law enforcement for high crime and drug activity. He began
following a Dodge Ram pickup truck that had been reported
stolen. The pickup truck was occupied by three men. After
momentarily losing sight of the pickup truck, Van Almen found
the truck in a nearby parking lot and observed a man running
from the area. Van Almen decided not to pursue him. Instead,
he entered the parking lot to further investigate the pickup
truck and saw a person later identified as McCullum driving a
Cadillac Eldorado toward the parking lot exit. Recalling a
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report about a stolen Cadillac, Van Almen blocked the exit with
his police cruiser, preventing McCullum from leaving the parking
lot.
When McCullum realized he could not leave the parking
lot through the exit, he aggressively drove the Cadillac in
reverse approximately fifty yards at a high rate of speed past
open parking spaces and pulled the vehicle into the last
available parking space. Van Almen believed that McCullum was
trying to get away from him, so he drove toward the Cadillac.
McCullum got out of the Cadillac, began running, and did not
stop when Van Almen ordered him to do so. Van Almen therefore
chased McCullum, caught him, and, after a struggle, placed him
under arrest for resisting a police officer. A search of
McCullum incident to his arrest yielded $2,734 in cash and a set
of keys that belonged to the Cadillac. McCullum was handcuffed,
placed in the back seat of a patrol car, and transported back to
the area where the Cadillac was parked.
During this time, other officers had arrived and had
conducted a search of the Cadillac passenger compartment but
found nothing of note. Van Almen went to the Cadillac and used
one of the keys recovered from the search of McCullum to open
the trunk compartment. While Van Almen was searching the trunk,
a security guard patrolling the parking lot approached Van Almen
to speak with him. The parking lot where the Cadillac was
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parked was privately owned, and the security guard banned
McCullum from the premises and wanted the Cadillac removed as
well. Van Almen spoke with his supervising officer, Sergeant
Jones, and got permission to have the Cadillac towed. The
search of the trunk ultimately yielded a large bag of marijuana,
weighing 63.2 grams, and a 31-round magazine for a Glock pistol,
fully loaded with 9mm ammunition.
After searching the trunk compartment, Van Almen
discovered that the glove box was locked. The keys he had taken
from McCullum did not unlock it, and McCullum claimed that he
did not know how to open it. Van Almen consulted with Sergeant
Jones concerning whether the circumstances warranted using force
to open the glove box. Sergeant Jones gave McCullum permission
to open the glove box, concluding that the presence of the
marijuana, the clip of ammunition, and the large amount of U.S.
currency found on McCullum gave the officers probable cause to
go into the locked glove box. Van Almen then forced open the
glove box and found a fully-loaded Glock 19c handgun with a
laser beam sight attachment. Van Almen ultimately had the
Cadillac towed as requested by the security guard.
McCullum was charged with (1) possession of a firearm
by a felon, in violation of 18 U.S.C. § 922(g)(1); (2)
possession with intent to distribute marijuana, in violation of
21 U.S.C. § 841(a)(1); and (3) possession of a firearm in
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furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924 (c)(1)(A). Prior to his trial, McCullum filed a
motion to suppress the evidence recovered in the search of the
Cadillac. The district court denied the motion on two
alternative grounds. The court first concluded that Van Almen
had probable cause. According to the court, the money found on
McCullum’s person, the fact that he fled, and the fact that
McCullum was in a high-crime area, along with the background
evidence about the investigation of the stolen pickup truck,
amounted to probable cause to open the trunk of the Cadillac.
Adding the fully loaded, 31-round magazine found in the trunk
compartment to the above list of facts and evidence, according
to the court, gave Van Almen probable cause to then forcibly
open the glove box. Alternatively, the district court concluded
that the items recovered from the Cadillac would have been
inevitably discovered pursuant to CMPD’s inventory policy.
The case went to trial, and a jury returned a verdict
of guilty on all charges. At sentencing, the district court
accepted the presentence report’s (“PSR”) classification of
McCullum as a career offender based on three prior drug
offenses, see U.S.S.G. § 4B1.1(a) (2008), and sentenced him to
three consecutive 120-month sentences. On appeal, McCullum
contends that the district court erred in denying his motion to
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suppress and erred in classifying him as a career offender. We
address each claim in turn.
II.
We turn first to McCullum’s challenge to the denial of
his suppression motion. “In reviewing the denial of a motion to
suppress, we review the district court's legal conclusions de
novo and its factual findings for clear error.” United States
v. Phillips, 588 F.3d 218, 223 (4th Cir. 2009). “[W]e must
construe the evidence in the light most favorable to the
prevailing party, and give due weight to inferences drawn from
those facts by resident judges and law enforcement officers.”
United States v. Lewis, 606 F.3d 193, 197 (4th Cir. 2010)
(internal citation and quotation marks omitted). We may affirm
a district court’s ruling on a motion to suppress on any ground
apparent from the record. United States v. Smith, 395 F.3d 516,
519 (4th Cir. 2005).
“Generally, the exclusionary rule provides that
evidence obtained in violation of the Fourth Amendment cannot be
used in a criminal proceeding against the victim of the illegal
search and seizure.” United States v. DeQuasie, 373 F.3d 509,
519 (4th Cir. 2004) (internal quotation marks omitted). Under
the inevitable discovery exception to the exclusionary rule,
however, evidence that is illegally seized is nonetheless
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admissible if the government can prove “by a preponderance of
the evidence that the information ultimately or inevitably would
have been discovered by lawful means.” Nix v. Williams, 467
U.S. 431, 444 (1984). A routine inventory search policy may
serve as the basis for the admission of evidence under the
inevitable discovery doctrine. See United States v. George, 971
F.2d 1113, 1121 (4th Cir. 1992). For an inventory search to be
valid, “the search must have be[en] conducted according to
standardized criteria, such as a uniform police department
policy, and performed in good faith.” United States v.
Matthews, 591 F.3d 230, 235 (4th Cir. 2009) (alteration in
original, internal citation and quotation marks omitted).
In this case, Van Almen had the Cadillac towed because
McCullum had been banned from the premises where the vehicle was
parked and a representative of the owner of the parking lot
wanted the car taken off the lot. The government presented
evidence that CMPD has a policy of conducting an inventory
search on every vehicle that it has towed and that the inventory
searches include a search of all compartments that might contain
an item of value. The purpose of these inventory searches,
according to the government, is to document items of value
remaining within the vehicle. As the district court found, the
towing of the Cadillac would have triggered an inventory search
of the trunk regardless of whether probable cause for the search
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of the trunk existed or not. This inventory search would have
revealed the marijuana and the clip of ammunition.
Although the policy did not permit officers to force
open a locked glove compartment during an inventory search, the
ammunition discovered in the trunk would have provided probable
cause to conduct a warrantless search of the vehicle for the gun
associated with the seized ammunition. See Michigan v. Thomas,
458 U.S. 259, 260-62 (1982) (explaining that evidence seized
during an inventory search of a vehicle can provide probable
cause to search elsewhere in the vehicle for additional
contraband). The scope of that warrantless search would have
included “every part of the vehicle and its contents that may
[have] conceal[ed] the object of the search.” United States v.
Ross, 456 U.S. 798, 825 (1982). Because a glove box can conceal
a gun, the glove box of the Cadillac was obviously within the
scope of the warrantless probable cause search. The fact that
the glove box was locked would not prevent us from upholding the
lawfulness of its search. “[I]f the police have probable cause
to believe that there is contraband . . . anywhere in the car
they can search for it even if it is in a . . . locked
compartment such as the glove compartment . . . .” United
States v. Mazzone, 782 F.2d 757, 760 (7th Cir. 1986); see also
Ross, 456 U.S. at 823 (“The scope of a warrantless search based
on probable cause is no narrower . . . than the scope of a
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search authorized by a warrant supported by probable cause.”).
Accordingly, we affirm the district court’s denial of the motion
to suppress because the marijuana, the clip of ammunition, and
the gun would have been inevitably discovered. *
III.
McCullum also challenges his sentence, arguing that
the district court improperly characterized him as a career
offender pursuant to § 4B1.1(a) of the Sentencing Guidelines.
“We review de novo a question concerning whether a prior state
conviction qualifies as a prior felony conviction under the
career offender provision.” United States v. Jones, 667 F.3d
477, 482 (4th Cir. 2012).
“A defendant is a career offender if (1) the defendant
was at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the instant
offense . . . is a felony that is . . . a controlled substance
offense; and (3) the defendant has at least two prior felony
convictions of . . . a controlled substance offense.” U.S.S.G.
§ 4B1.1(a). For the purposes of § 4B1.1(a), a “controlled
substance offense” is “an offense under federal or state law,
*
Given our conclusion that the evidence inevitably would
have been discovered, we express no opinion on whether Van
Almen’s search was supported by probable cause.
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punishable by imprisonment for a term exceeding one year.” Id.
§ 4B1.2(b).
The PSR categorized three prior North Carolina drug
offenses as predicate offenses for the career offender
guideline: a 1998 conviction for possession with intent to sell
and deliver cocaine; a 1999 conviction for delivery of cocaine;
and a 2002 conviction for possession with intent to sell and
deliver cocaine. McCullum received 12 months’ probation for the
1998 offense; a suspended 6-8 month sentence for the 1999
offense; and a 6-8 month sentence for the 2002 offense.
The sentences for McCullum’s three prior drug offenses
at issue were imposed pursuant to North Carolina’s structured
sentencing scheme, which establishes three sentencing ranges for
each defendant—mitigated, presumptive, and aggravated. Based on
either mitigating or aggravating factors, the sentencing court
may depart from the presumptive range. However, even if it
departs from the presumptive range, the sentencing court must
still impose a sentence below a maximum level, which is
determined by the class of the offense committed by a defendant
combined with the defendant’s criminal history.
With regard to two of McCullum’s convictions deemed
predicate offenses by the district court—the 1999 delivery
conviction and the 2002 possession conviction—McCullum received
sentences of less than one year based on his criminal history
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and the class of the respective offenses. He contends that
those offenses cannot serve as predicate offenses for him
because, based on his criminal history, he could not have
received a sentence exceeding one year for either offense, even
if he were sentenced within the aggravated range. Therefore, he
argues, the convictions do not qualify as “controlled substance
offenses” under § 4B1.2(b), and the district court erred by
classifying him as a career offender.
At the time of sentencing in this case, we had
rejected this individualized approach, holding “that a prior
North Carolina conviction was for a crime punishable by
imprisonment for a term exceeding one year, if any defendant
charged with that crime could receive a sentence of more than
one year.” United States v. Harp, 406 F.3d 242, 246 (4th Cir.
2005) (internal citation and quotation marks omitted). After
sentencing in this case, however, we overruled Harp and held
that under North Carolina’s structured sentencing scheme, an
offense is punishable for a term exceeding one year only if the
particular defendant before the court could have received such a
sentence based on his criminal history and the nature of his
offenses. See United States v. Simmons, 649 F.3d 237, 241-45
(4th Cir. 2011) (en banc).
In a letter submitted to this court after oral
argument pursuant to Rule 28(j) of the Federal Rules of
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Appellate Procedure, the government conceded that McCullum’s
sentences should be vacated and the case remanded for
resentencing because of our intervening Simmons decision. We
agree with the government. Therefore, in light of Simmons, we
vacate McCullum’s sentences and remand the case for
resentencing.
IV.
For the foregoing reasons, we affirm McCullum’s
convictions, vacate his sentences, and remand the case for
resentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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