United States v. Lee , 225 F. App'x 132 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4671
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TORAINE ANTON LEE,
Defendant - Appellant.
No. 06-4672
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TORAINE ANTON LEE,
Defendant - Appellant.
No. 06-4673
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TORAINE ANTON LEE,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte and Statesville. Lacy H.
Thornburg, District Judge. (3:01-cr-00085-1; 3:04-cr-00004-1;
5:05-cr-00210-ALL)
Submitted: April 6, 2007 Decided: May 7, 2007
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nikita V. Mackey, MACKEY & ASSOCIATES PLLC, Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Craig D. Randall, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In September 2001, Toraine Anton Lee pled guilty to
charges of bank fraud and mail theft and was sentenced to twenty-
seven months in prison and five years of supervised release. Lee
was released from prison in 2003, but committed additional crimes
during his supervised release. On January 30, 2004, Lee was
charged in an eleven-count indictment with one count of conspiring
to commit bank fraud and mail theft, in violation of 18 U.S.C.
§ 371; nine counts of bank fraud, in violation of 18 U.S.C. §§ 1344and 2; and one count of mail theft, in violation of 18 U.S.C.
§§ 1708 and 2. These charges stemmed from conduct occurring
between May 2003 and January 2004. On July 14, 2004, Lee pled
guilty to Counts One and Four of the indictment (the “2004
convictions”). Lee failed to appear at his sentencing hearing, and
the district court issued a warrant for his arrest on April 4,
2005.
A grand jury again indicted Lee, charging him with a
single count of theft and receipt of stolen mail, in violation of
18 U.S.C. §§ 1708 and 2 in May 2005. Lee pled not guilty, and a
jury convicted Lee of the count in September 2005 (the “2005
conviction”). During the period from Lee’s release from prison in
2003 through his reincarceration in 2005, Lee committed seven
violations of the terms of his supervised release.
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In June 2006, the court sentenced Lee on his 2004 and
2005 convictions and conducted a supervised release violation
hearing. The Government filed a motion for upward departure or
upward variance based upon Lee’s recidivism and the seriousness of
the crimes committed. The district court sentenced Lee to
concurrent terms of imprisonment of 60 months on Count One of his
2004 convictions, 60 months on his 2005 conviction, and 120 months
on Count Four of his 2004 convictions.
During the supervised release violation hearing stemming
from Lee’s 2001 conviction, the district court considered seven
alleged violations. Lee admitted to all violations. The district
court revoked Lee’s supervised release and sentenced him to
eighteen months, to run consecutively to the sentences imposed for
his 2004 and 2005 convictions.
Lee appealed all three convictions and sentences, and the
appeals have been consolidated. He contends that the district
court erred in denying his motion to suppress the evidence seized
following a search of the trunk of his car. Additionally, he
argues that his sentences were unreasonable because the district
court failed to consider all of the factors found in § 3553(a) and
erred in upwardly departing from the advisory guidelines range.
Finding no error, we affirm.
Lee contends the district court erred by denying his
motion to suppress evidence he contends was obtained in violation
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of the Fourth Amendment. Specifically, he argues that the police
did not have a valid reason to conduct a warrantless search of the
trunk of the car he was driving. The search recovered a
typewriter; analysis of the typewriter ribbon disclosed Lee used
the typewriter to commit mail fraud. This court reviews the
factual findings underlying the denial of a motion to suppress for
clear error and its legal conclusions de novo. United States v.
Johnson, 400 F.3d 187, 193 (4th Cir.), cert. denied, 126 S. Ct. 134(2005). The evidence is construed in the light most favorable to
the prevailing party below. United States v. Seidman, 156 F.3d
542, 547 (4th Cir. 1998).
Lee produced an expired driver’s license at a license
checkpoint. When running a check on the license, the officers
learned there was an outstanding warrant for Lee’s arrest. This
fact alone created probable cause for Lee’s arrest. Once the
officers had probable cause to arrest Lee, a search incident to
that arrest was proper, even if the search preceded the formal
arrest. See United States v. Miller, 925 F.2d 695, 698 (4th Cir.
1991). A search of the passenger area of the car revealed mail
that was not in the name of the driver or passenger and a rental
agreement in another person’s name.
Lee contends that the officers nevertheless did not have
the authority to search the trunk of the vehicle without a warrant.
Despite his contentions, an inventory search of an automobile is an
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exception to the warrant requirement. Once Lee was arrested and
placed in custody, the officers possessed the authority to impound
the vehicle; the search was routine and conducted pursuant to
standard procedure; and the purpose was to inventory items in the
car for liability purposes before towing it. See United States v.
Brown, 787 F.2d 929, 931-32 (4th Cir. 1986). The typewriter was
recovered from the trunk pursuant to a legitimate inventory search.
We therefore conclude the district court properly denied Lee’s
motion to suppress, and we affirm his 2005 conviction.
Lee also suggests the district court erred by imposing
his sentence without considering all of the § 3553(a) factors and
for upwardly departing from the guidelines range. After United
States v. Booker, 543 U.S. 220 (2005), a district court is no
longer bound by the range prescribed by the sentencing guidelines.
In reviewing a sentence outside the guideline range, we must
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 guideline range.” United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007).
A sentence is unreasonable if the “court provides an inadequate
statement of reasons or relies on improper factors in imposing a
sentence outside the properly calculated advisory sentence range.
. . .” Id. A departure pursuant to § 4A1.3 is encouraged,
provided that the criminal history category does not account
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adequately for the defendant’s past criminal conduct or the
likelihood that he will commit other crimes. United States v.
Dixon, 318 F.3d 585, 588 (4th Cir. 2003).
“The district court need not discuss each factor set
forth in § 3553(a) ‘in checklist fashion;’ ‘it is enough to
calculate the range accurately and explain why (if the sentence
lies outside it) this defendant deserves more or less.’” United
States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126
S. Ct. 2054 (2006)(quoting United States v. Dean, 414 F.3d 725, 729
(7th Cir. 2005)).
Here, the district court sentenced Lee post-Booker and
appropriately treated the guidelines as advisory. The court
sentenced Lee after considering and examining the sentencing
guidelines and the § 3553(a) factors, as instructed by Booker. The
district court accepted the facts found in the presentence
investigation report, and found his offense level to be 25 and his
criminal history score to be III. The corresponding advisory
guideline range was 70 to 87 months for both the 2004 and 2005
convictions.
The district court examined the § 3353(a) factors and
concluded they supported an upward departure from the guidelines
range. Specifically, the court noted: Lee’s criminal history
category under-represented his criminal record; Lee’s recidivism;
Lee’s failure to modify his conduct; and the need for a severe
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sentence to afford adequate deterrence. Thus, we conclude the
district court sufficiently articulated its reasons for the
departure from the guidelines range and find the sentences were
reasonable.
Finally, Lee asserts that his eighteen-month sentence
upon the revocation of supervised release was unreasonable. To
revoke supervised release, the district court need only find a
violation of release conditions by a preponderance of the evidence.
See 18 U.S.C. § 3583(e)(3)(2000). Because Lee admitted his guilt,
the district court did not err in finding he violated his
conditions of supervised release by the preponderance of the
evidence. This court will affirm a sentence imposed after
revocation of supervised release if it is within the prescribed
statutory range and not plainly unreasonable. See United States v.
Crudup, 461 F.3d 433, 437 (4th Cir. 2006), cert. denied, S. Ct.
, 2007 WL 789123 (U.S. Mar. 19, 2007). The court sentenced Lee
well below the statutory maximum of thirty-six months. While the
court did not explicitly reference the § 3553 factors in this
portion of the sentencing hearing, the court had already
extensively considered Lee’s history and characteristics and the
need for the sentence to afford adequate deterrence to criminal
conduct. Lee’s eighteen-month sentence was therefore not plainly
unreasonable.
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Accordingly, we affirm Lee’s convictions and sentences.
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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