United States v. Blanchard , 391 F. App'x 285 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4608
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAY A. BLANCHARD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:07-cr-00143-PJM-1)
Submitted: August 2, 2010 Decided: August 17, 2010
Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Edward C. Sussman, LAW OFFICE OF EDWARD C. SUSSMAN, Washington,
D.C., for Appellant. Rod J. Rosenstein, United States Attorney,
Steven M. Dunne, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ray A. Blanchard (“Appellant”) appeals his conviction
and sentence for unlawful possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922(g)(1) (2006). Appellant
challenges the district court’s denial of his motion to suppress
evidence recovered from his vehicle; admission of evidence of
narcotics and drug paraphernalia found in his vehicle, testimony
describing the scene of arrest, evidence regarding a bullet hole
found in his vehicle, testimony about his multiple felony
convictions, and testimony that he previously possessed and
fired a handgun; and application of U.S. Sentencing Guidelines
Manual § 4B1.4(b)(3)(A). Finding no error, we affirm.
Appellant first argues the district court improperly
denied his motion to suppress because the search did not qualify
for the automobile exception to the warrant requirement, which
permits warrantless vehicle searches if “probable cause exists
to believe [the vehicle] contains contraband” and the vehicle is
“readily mobile.” Pennsylvania v. Labron, 518 U.S. 938, 940
(1996). 1 Appellant contends that the searching officer lacked
1
Appellant also argues that the search was an impermissible
search incident to arrest under Arizona v. Gant, 129 S. Ct. 1710(2009). Because the search was supported by probable cause,
however, we need not reach this contention. See id. at 1721;
see also United States v. Dickey-Bey, 393 F.3d 449, 456-57 (4th
Cir. 2004).
2
probable cause. 2 On review of the denial of a motion to
suppress, we review the district court’s legal conclusions de
novo and its factual findings for clear error. Ornelas v.
United States, 517 U.S. 690, 699 (1996). The evidence is viewed
“in the light most favorable to the government,” who prevailed
below. United States v. Kelly, 592 F.3d 586, 589 (4th Cir.
2010), cert. denied, __U.S.__, 78 U.S.L.W. 3701 (U.S. June 1,
2010) (No. 09-10472).
Our review of the record confirms the district court’s
conclusion that the officer had ample probable cause to search
Appellant’s vehicle based on Appellant’s evasion conduct and the
presence of crack cocaine and drug paraphernalia in plain view.
Thus, the search was properly concluded pursuant to the
automobile exception to the warrant requirement.
Appellant also argues pursuant to Fed. R. Evid. 403,
404(b), that the district court erred by admitting evidence of
narcotics and drug paraphernalia found in his vehicle, testimony
describing the scene of arrest, evidence regarding a bullet hole
2
Appellant additionally argues that his vehicle was not
“readily mobile.” As Appellant failed to raise this argument
below, he has waived it on appeal. See United States v. Evans,
404 F.3d 227, 236 (4th Cir. 2005). Even if the argument were
preserved, it is unavailing. See United States v. Gastiaboro,
16 F.3d 582, 586 (4th Cir. 1994) (“[T]he justification to
conduct a warrantless search under the automobile exception does
not disappear merely because the car has been immobilized.”).
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found in his vehicle, testimony about his multiple felony
convictions, and testimony that he previously possessed and
fired a handgun. “A district court’s evidentiary rulings are
entitled to substantial deference and will not be reversed
absent a clear abuse of discretion.” United States v. Moore, 27
F.3d 969, 974 (4th Cir. 1994). We have reviewed the record and
conclude the district court did not abuse its discretion by
admitting this evidence.
Lastly, Appellant claims that the district court
improperly applied USSG § 4B1.4(b)(3)(A) during sentencing.
Specifically, Appellant challenges the sufficiency of the
evidence to support the one-point increase in his base offense
level for possession of a firearm in connection with a
controlled substance offense. “In considering challenges to a
sentencing court’s application of the Guidelines, we review
factual determinations for clear error and legal issues de
novo.” Elliott v. United States, 332 F.3d 753, 761 (4th Cir.
2003).
We conclude there was substantial evidence to support
the district court’s finding that Appellant possessed a
controlled substance with intent to distribute. Small amounts
of crack cocaine and marijuana were recovered from Appellant’s
vehicle, Appellant was previously convicted of a drug related
4
offense, 3 and Appellant admits that “the presence of a digital
scale [in Appellant’s vehicle] may provide some inference of
drug dealing.” (Appellant’s Br. at 48). Moreover, there is a
“settled connection between firearms and drug activities,”
United States v. Manigan, 592 F.3d 621, 629 (4th Cir. 2010), and
while not dispositive, close proximity between firearms and
narcotics supports a connection between the two. United States
v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002). Furthermore, the
firearms recovered were loaded handguns which, compared to other
types of firearms such as hunting rifles or shotguns, are
“indicia of drug dealing.” United States v. Ward, 171 F.3d 188,
195 (4th Cir. 1999). On this evidence, the district court did
not commit clear error when it determined that the firearms were
possessed in connection with a controlled substance offense, and
that Appellant qualified for the sentencing enhancement.
We affirm Appellant’s conviction and sentence. We
deny Appellant’s motions to file a pro se supplemental brief or
an informal brief. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
3
Appellant was convicted of attempt possession with intent
to distribute cocaine in the Superior Court for the District of
Columbia, and he was sentenced to imprisonment not to exceed
five years on April 28, 2000.
5
materials before the court and argument would not aid the
decisional process.
AFFIRMED
6