United States v. Derick Legardy , 616 F. App'x 615 ( 2015 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 14-4504
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    DERICK LAMONT LEGARDY,
    Defendant - Appellant.
    No. 14-4670
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    CHARLES RONNELL WILLIAMS,
    Defendant - Appellant.
    No. 14-4718
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    ALTON TREVON SIMS,
    Defendant - Appellant.
    Appeals from the United States District Court for the Middle
    District of North Carolina, at Greensboro. Catherine C. Eagles,
    District   Judge.    (1:13-cr-00370-CCE-2; 1:13-cr-00370-CCE-4;
    1:13-cr-00370-CCE-3)
    Submitted:   June 30, 2015                    Decided:   July 8, 2015
    Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
    Carolina;   Leza   L.    Driscoll,   Raleigh, North  Carolina;
    Jorgelina E. Araneda, ARANEDA LAW FIRM, P.C., Raleigh, North
    Carolina, for Appellants. Ripley Rand, United States Attorney,
    Andrew C. Cochran, Special Assistant United States Attorney,
    Winston-Salem, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
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    PER CURIAM:
    In these consolidated appeals, codefendants Derick Lamont
    Legardy, Charles Ronnell Williams, and Alton Trevon Sims appeal
    their sentences after pleading guilty to robbing a bank that had
    FDIC-insured    deposits,   in    violation   of    
    18 U.S.C. § 2113
    (a)
    (2012).     Pursuant to a conditional plea agreement, Williams also
    challenges     the   district    court’s   denial    of    his     motion   to
    suppress.    Finding no error, we affirm.
    Williams’ motion to suppress challenged the investigative
    stop and frisk that preceded his arrest.                 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. Hill, 
    776 F.3d 243
    , 247 (4th Cir. 2015).                 Consensual
    encounters between a citizen and the police do not implicate the
    Fourth Amendment, Florida v. Bostick, 
    501 U.S. 429
    , 434 (1991),
    but nonconsensual encounters must be supported by a reasonable
    suspicion of criminal activity.          Terry v. Ohio, 
    392 U.S. 1
    , 21,
    27 (1968).     A seizure occurs when a “[police] officer, by means
    of physical force or show of authority, terminates or restrains
    [an individual’s] freedom of movement.”         Brendlin v. California,
    
    551 U.S. 249
    , 254 (2007) (internal quotation marks omitted);
    accord United States v. Mendenhall, 
    446 U.S. 544
    , 554 (1980).
    Whether there is reasonable suspicion to justify a stop
    depends on “the totality of the circumstances,” including the
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    information known to the officer and any reasonable inferences
    to be drawn at the time of the stop.                     United States v. Foster,
    
    634 F.3d 243
    , 246 (4th Cir. 2011).                     “[I]f the officer has a
    ‘reasonable fear for his own and others’ safety’ based on an
    articulable      suspicion      that    the      suspect     may     be       ‘armed    and
    presently      dangerous,’      the    officer      may    conduct        a    protective
    search   of,    i.e.,    frisk,       the   outer      layers   of     the      suspect’s
    clothing for weapons.”           United States v. Holmes, 
    376 F.3d 270
    ,
    275 (4th Cir. 2004) (quoting Terry, 
    392 U.S. at 30-31
    ).
    Our de novo review of the record confirms that the district
    court did not err in finding that, until the officers asked
    about weapons, Williams’ encounter was consensual and did not
    implicate     the    Fourth    Amendment.         We   agree    with      the    district
    court that Williams was seized for Fourth Amendment purposes
    when the officers inquired about weapons and that, based on the
    totality of the circumstances, the officers had a reasonable,
    articulable suspicion of criminal activity at the time of that
    seizure.        We    therefore       conclude      that     the     district          court
    correctly denied Williams’ motion to suppress.
    Turning to Defendants’ challenges to their sentences, our
    review   is    “under    a    deferential       abuse-of-discretion            standard.”
    Gall v. United States, 
    552 U.S. 38
    , 41 (2007).                       We must “ensure
    that   the    district       court    committed     no    significant          procedural
    error,   such    as   . . .     improperly       calculating[]       the       Guidelines
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    range.”        
    Id. at 51
    .              If there is no significant procedural
    error,      then          we        consider        the       sentence’s          substantive
    reasonableness under “the totality of the circumstances.”                                 
    Id.
    We    presume     that         a     sentence       within     a    properly      calculated
    Sentencing Guidelines range is reasonable.                               United States v.
    Louthian, 
    756 F.3d 295
    , 306 (4th Cir.), cert. denied, 
    135 S. Ct. 421
     (2014).          A defendant can rebut this presumption only “by
    showing that the sentence is unreasonable when measured against
    the 
    18 U.S.C. § 3553
    (a) factors.”                    
    Id.
    After     reviewing          the   presentence         reports       and   sentencing
    transcripts,         we    conclude        that      Defendants’         within-Guidelines
    sentences      are    both         procedurally      and     substantively        reasonable.
    The    district        court          correctly      calculated          each     Defendant’s
    advisory Guidelines range, listened to the parties’ arguments,
    considered       the       
    18 U.S.C. § 3553
    (a)          (2012)    factors,     and
    articulated its reasons for giving each Defendant a sentence
    within his Guidelines range.                      See Gall, 
    552 U.S. at 51
    .                 In
    addition, no Defendant has made the showing necessary to rebut
    the presumption of reasonableness accorded a within-Guidelines
    sentence.      See Louthian, 756 F.3d at 306.
    Accordingly, we affirm the judgments of the district court.
    We    dispense     with        oral    argument      because       the   facts     and   legal
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    contentions   are   adequately   presented   in   the   materials   before
    this court and argument would not aid the decisional process.
    AFFIRMED
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