United States v. Rashawn Long , 906 F.3d 720 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-1419
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Rashawn Long
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: June 13, 2018
Filed: October 12, 2018
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Before LOKEN and MELLOY, Circuit Judges.1
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MELLOY, Circuit Judge.
Rashawn Long was convicted by a jury of one count of possession with intent
to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1), and one
1
Judge Murphy had been assigned to the panel that originally heard this matter
and issued an opinion dated August 31, 2017. Judge Murphy passed away on May
16, 2018 and did not participate in this panel rehearing.
count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).
Long was sentenced to 360 months’ imprisonment. He appeals, arguing the district
court2 erred by failing to suppress evidence discovered during an inventory search.
He also argues the district court erred in calculating his criminal history. We affirm
Long’s convictions and sentence.
I.
On October 26, 2013, Long parked his car in the backyard of Valerie McCoy’s
house. Long did not know McCoy. He approached McCoy’s door, knocked,
received no answer, and left on foot, leaving the car parked in her backyard without
permission. McCoy was home at the time and had observed Long park his car. Out
of fear due to the unusual situation, and because she did not recognize Long, she did
not answer the door. Instead, she locked herself in her bedroom and called the
Kansas City, Missouri police.
When officers arrived at the scene of the apparent trespassing and vehicle
abandonment, McCoy explained that a black male parked the car in her yard, knocked
on the door, and left when she did not answer. The officers found a 2013 silver
Avenger parked in McCoy’s backyard, ran the license plate number, and learned it
was a rental car. After an unsuccessful attempt to contact the rental company, the
officers called a tow truck to remove the car from McCoy’s property.
After officers had already ordered the tow truck, Long ran towards them from
another property. He gave the officers his name, told the officers the name of the
person who had rented the car, and explained that he had parked the car in McCoy’s
2
The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri, adopting the Report and Recommendation of the Honorable John
T. Maughmer, United States Magistrate Judge for the Western District of Missouri.
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yard to hide the car so that he could visit the nearby home of a girlfriend without
being seen. Recognizing the strangeness of the situation, the officers handcuffed and
frisked Long and asked if they could look in the car. Long said it would be okay but
that the keys were at a nearby house. He did not otherwise provide assistance to the
officers to obtain the keys or enable a search.
Officers ran Long’s name, and a computer search revealed two outstanding
warrants for his arrest. Believing these warrants were out of Kansas City, Missouri,
the officers placed Long in a patrol vehicle. Soon after, the officers learned the
warrants were out of Kansas City, Kansas, and were non-extraditable. The officers
did not, however, remove Long’s handcuffs or release him from the patrol vehicle.
Officer Ballowe, one of the first officers on the scene, asked the patrol vehicle
driver to continue holding Long so he could “determine if there was anything illegal
in the car.” Around this time, Sergeant Hamilton, a member of the Kansas City Police
Department’s illegal firearms squad, arrived at the scene. He was called because he
was investigating Long as a possible suspect in several homicides and had asked to
be notified any time Long had an encounter with police. Sergeant Hamilton was with
Officer Ballowe for the entire vehicle search.
Because the car was locked, the tow-truck driver used a “slim jim” to open the
car door. On the passenger seat of the car, Officer Ballowe found a backpack
containing pepper spray, a taser, and a Coke can. The can felt hard and solid, so
Officer Ballowe twisted the top of the can and discovered a bag containing a white
powder. At this point, Sergeant Hamilton told Officer Ballowe to stop the inventory
search in order to obtain a search warrant.
Long was placed under arrest, the vehicle was towed, and Long was issued a
ticket for illegally parking the vehicle. After obtaining the search warrant, officers
discovered a camcorder in the car. The camcorder contained clips of Long with a
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Glock pistol. Additionally, the white powder was tested and determined to be 2-
(Methylamino)-1-phenyl-1-butanone (buphedrone), a Schedule I controlled
substance. Long was subsequently indicted for possession with intent to distribute
a controlled substance and possession of a firearm by a felon.
Before trial, Long moved to suppress the evidence against him. Following a
suppression hearing, the magistrate judge recommended denying the motion to
suppress, finding that the vehicle search was a valid inventory search and assuming,
without deciding, that Long had standing to challenge the search. The district court
adopted that recommendation.
Long was convicted of both counts at trial. The initial Presentence
Investigation Report (“PSR”) calculated a Guidelines range of 92–115 months’
imprisonment, based on an offense level of 26 and a criminal history category of IV.
Long objected to the PSR’s computation of criminal history points. Specifically, the
PSR assessed three criminal history points for Long’s prior Missouri conviction for
second-degree murder, pursuant to United States Sentencing Guidelines (“U.S.S.G.”)
§ 4A1.1(a). The PSR assessed an additional point for Long’s Missouri conviction for
armed criminal action,3 pursuant to U.S.S.G. § 4A1.1(e). Long argued that his
conviction for armed criminal action is not a crime of violence and, thus, he should
not be assessed the additional criminal history point. At sentencing, the district court
concluded that armed criminal action is a crime of violence and that Long’s
Guidelines range was 92–115 months’ imprisonment. The district court concluded
an upward variance was appropriate based on the 18 U.S.C. § 3553(a) factors and
sentenced Long to 360 months’ imprisonment.
On appeal, we affirmed, holding that Long lacked standing to challenge the
vehicle search. We noted the existence of a circuit split as to whether a person not
3
Mo. Rev. Stat. § 571.015(1).
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named in a car rental agreement has a Fourth Amendment expectation of privacy
when driving a rental car with consent received directly from the named renter. As
to that issue, the Eighth Circuit had already determined that such a driver with first-
person consent enjoyed a protectable expectation of privacy. United States v. Best,
135 F.3d 1223, 1225 (8th Cir. 1998). We held, however, that Long’s claim to a
privacy expectation was too far removed because he had merely obtained second-
hand permission from such a consent driver; the renter of the vehicle had not given
permission directly to Long. We also affirmed as to the sentencing issues Long raised
on appeal.
Subsequently, the Supreme Court took up the issue posed in the circuit split
and resolved the issue consistently with our circuit’s law: there is no per se rule that
the driver of a rental vehicle, who has received consent directly from the listed renter,
lacks a protected expectation of privacy in that vehicle. United States v. Byrd, 138
S. Ct. 1518, 1527–28 (2018). In its opinion, however, the Court raised additional
questions concerning the scope of privacy expectations in the context of rental
vehicles. See id. at 1531. We read Byrd as indicating, at a minimum, that privacy
expectations in rental vehicles are not subject to easily articulated bright-line rules.
Because Byrd arguably calls into question the standing determination upon which we
based our initial opinion in this case, we now vacate our prior opinion and affirm for
the reasons stated herein.
II.
On appeal, Long asserts the district court erred in denying his motion to
suppress. Long also contends that the Missouri offense of armed criminal action is
not a crime of violence and, thus, the district court erred in assessing a criminal
history point for that conviction. Alternatively, Long argues his sentence is
substantively unreasonable.
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A.
We assume without deciding that Long has standing to challenge the search
of the rental vehicle. In reviewing a challenged search, “[t]his Court reviews the facts
supporting a district court’s denial of a motion to suppress for clear error and reviews
its legal conclusions de novo.” United States v. Cotton, 782 F.3d 392, 395 (8th Cir.
2015). “This court will affirm the district court’s denial of a motion to suppress
evidence unless it is unsupported by substantial evidence, based on an erroneous
interpretation of applicable law, or, based on the entire record, it is clear a mistake
was made.” United States v. Hogan, 539 F.3d 916, 921 (8th Cir. 2008) (quoting
United States v. Annis, 446 F.3d 852, 855 (8th Cir. 2006)).
Long argues that the district court should have suppressed the evidence
discovered during the search of his vehicle because the inventory search prior to
towing his vehicle was unconstitutional. We disagree. While we acknowledge
Long’s concerns that officer comments serve as evidence suggesting pretext, “[t]he
presence of an investigative motive does not invalidate an otherwise valid inventory
search.” United States v. Garner, 181 F.3d 988, 991 (8th Cir. 1999).
Here, the search was a reasonable inventory search of the vehicle—a vehicle
Long used to trespass on the private property of stranger and which he concealed
without permission in that person’s backyard before seemingly abandoning the
vehicle. In response to the homeowner’s understandable call for help in this
suspicious situation, and before Long returned to the scene, the officers determined
it was necessary and appropriate to tow the car. In fact, the officers had already
called the tow vehicle before Long came running back to the scene.
As of that point in time, an inventory search was fully justified. Nothing that
occurred after Long’s return lessened the need or the propriety of towing the vehicle
and performing an inventory search. Long’s behavior and explanations, including his
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claim of permission to drive the rented vehicle (unsupported by keys or by the ability
to reach the rental company or the purported renter), left officers with little assurance
that it would have been appropriate to release the vehicle to his control. In any event,
we review the propriety of an inventory search under a totality-of-the-circumstances
test. United States v. Marshall, 986 F.2d 1171, 1174 (8th Cir. 1993) (“Thus, in the
Court’s view the central inquiry is whether the inventory search is reasonable under
all the facts and circumstances of the particular case.”). And given the unusual
circumstances in McCoy’s backyard, it was reasonable to conduct the search.
To the extent Long asserts that the inventory search was not properly
performed, or not in compliance with the police department’s inventory-search
protocols, his arguments are unavailing. He argues first that abandoned vehicles
cannot be towed under Kansas City Missouri Police Department written policies
unless a summons is presented to the owner or operator or affixed to the vehicle prior
to towing. The policy Long cites, however, recognizes discretion for officers in the
field. And, again, the decision to tow in this case was made in response to the
trespass report, before Long arrived on the scene, and in reference to a rental vehicle
when the rental company could not be reached and when the operator was unknown.
Long also asserts the search was not a valid inventory search because officers
did not open the glove box or trunk and did not write down items observed in the
backpack. The officers, however, do not claim to have completed their inventory
search. Rather, quickly after initiating the inventory search, officers discovered
probable cause for a search warrant and stopped their search. These arguable
deviations from the department’s written policy are understandable in context and are
not infirmities that make the inventory search unconstitutional. See United States v.
Mayfield, 161 F.3d 1143, 1145 (8th Cir. 1998) (rejecting challenges to an inventory
search even though “the inventory list started at the scene was not completed as it
should have been”); see also United States v. Garreau, 658 F.3d 854, 858 (8th Cir.
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2011) (holding that an officer’s “minor deviation from . . . policy was not sufficient
to render [an inventory] search unlawful”).
B.
Long also argues the district court erred in assessing an additional criminal-
history point because his prior conviction for armed criminal action is not a “crime
of violence.” We review a district court’s determination that a prior conviction is a
crime of violence under the Guidelines de novo. United States v. Maid, 772 F.3d
1118, 1120 (8th Cir. 2014).
Pursuant to U.S.S.G. § 4A1.1(e), a sentencing court “[a]dd[s] [one criminal-
history] point for each prior sentence resulting from a conviction of a crime of
violence that did not receive any points under [§ 4A1.1] (a), (b), or (c).” At
sentencing on March 25, 2016, the Guidelines provided that a “crime of violence”
was any crime punishable by more than one year in prison that:
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a). The “or otherwise” clause is referred to as the residual clause.
On January 8, 2016, the sentencing commission announced that it had
unanimously voted to eliminate the residual clause of the Guidelines. That
amendment, however, did not become effective until August 1, 2016. U.S.S.G. app.
C, amend. 798. And the Supreme Court recently held that the residual clause in
U.S.S.G. § 4B1.2(a)(2) is not unconstitutionally vague. Beckles v. United States, 137
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S. Ct. 886, 890 (2017). Thus, at the time of Long’s sentencing, the residual clause
was still in effect, and we must now determine whether armed criminal action in
Missouri is a crime of violence under either the force clause or the residual clause.
See United States v. Benedict, 855 F.3d 880, 888–89 (8th Cir. 2017).
Here, the offense of conviction provides that “any person who commits any
felony under the laws of this state by, with, or through the use, assistance, or aid of
a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal
action.” Mo. Rev. Stat. § 571.015(1). Because this statute sets forth a single set of
elements, it is not divisible and we apply the categorical approach to determine
whether it is a crime of violence. See Descamps v. United States, 133 S. Ct. 2276,
2283 (2013) (categorical approach); State v. Jones, 479 S.W.3d 100, 106 (Mo. 2016)
(en banc) (stating that a person is guilty under this statute “if the evidence was
sufficient for the jury to find beyond a reasonable doubt any one of at least the . . .
nine permutations” of the three prepositions (by, with, or through) and the three
nouns (use, assistance, or aid)). Long argues a conviction under this statute is not a
crime of violence under the force clause because it does not require a person to use
a dangerous instrument or deadly weapon against the person of another; “any felony”
can include a property crime. Jones, 479 S.W.3d at 108 (“Armed criminal action
under section 571.015.1 does not require that the defendant actually attack or threaten
an imminent attack with the weapon.”). However, since we conclude the offense of
conviction is a crime of violence under the then-existing residual clause, we leave the
question of whether it also qualifies under the force clause for another day.
“To qualify as a crime of violence under the residual clause, [Long’s] prior
conviction must (1) ‘present[ ] a serious potential risk of physical injury to another,’
and (2) be ‘roughly similar, in kind as well as degree of risk posed,’ to the offenses
listed in § 4B1.2(a)(2).” United States v. Watson, 650 F.3d 1084, 1092 (8th Cir.
2011) (second alteration in original) (quoting United States v. Boyce, 633 F.3d 708,
711 (8th Cir. 2011)). In Watson, this court held that an Oklahoma conviction under
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a statute similar to the Missouri statute in this case is a crime of violence under the
residual clause. Id. at 1092–94.4 And other courts have held that convictions under
similar statutes in other states qualify as violent felonies under the now-
unconstitutional residual clause in the Armed Career Criminal Act. See, e.g., United
States v. Fife, 624 F.3d 441 (7th Cir. 2010) (analyzing 720 Ill. Comp. Stat. 5/33A-2);
United States v. Cordova, No. 7:13-CR-90-D, 2014 WL 4443294 (E.D.N.C. Sept. 9,
2014) (analyzing Mass. Gen. Laws ch. 265, § 18B).
We conclude that armed criminal action in Missouri is a crime of violence
under the residual clause. Possessing a deadly weapon or dangerous instrument while
committing a felony “presents a serious potential risk of physical injury to another”
because it is likely that the offender will later use it if he encounters another person
during the commission of the felony. See United States v. Guiheen, 594 F.3d 589,
591 (8th Cir. 2010); United States v. Haney, 23 F.3d 1413, 1418–19 (8th Cir. 1994).
And that serious potential risk of physical injury is “similar, in kind as well as degree
of risk posed,” to the enumerated offenses. See Watson, 650 F.3d at 1092; Boyce,
633 F.3d at 711. As a result, the district court did not err in assessing an additional
criminal history point for Long’s Missouri conviction for armed criminal action.
Alternatively, Long argues his 360-month sentence is substantively
unreasonable. We review the substantive reasonableness of a sentence for abuse of
discretion. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).
Long asserts the 21-year upward variance was unduly harsh and unreasonable
4
The Oklahoma statute provided: “Any person who, while committing or
attempting to commit a felony, possesses a pistol, shotgun or rifle or any other
offensive weapon in such commission or attempt . . . in addition to the penalty
provided by statute for the felony committed or attempted, upon conviction shall be
guilty of a felony for possessing such weapon or device, which shall be a separate
offense from the felony committed or attempted.” Watson, 650 F.3d at 1092 (quoting
21 Okla. Stat. § 1287).
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because it relied too heavily on his history and characteristics and because it greatly
differs from sentences other defendants received for similar conduct.
“A district court abuses its discretion when it (1) fails to consider a relevant
factor that should have received significant weight; (2) gives significant weight to an
improper or irrelevant factor; or (3) considers only the appropriate factors but in
weighing those factors commits a clear error of judgment.” Id. (internal quotation
marks and citation omitted). If a district court deviates from the advisory Guidelines
range, it must “give serious consideration to the extent of any departure from the
Guidelines and must explain [its] conclusion that an unusually lenient or an unusually
harsh sentence is appropriate in a particular case with sufficient justifications.” Id.
at 462 (alteration in original) (quoting Gall v. United States, 552 U.S. 38, 46 (2007)).
The district court has discretion to rely more heavily on some sentencing factors than
others, United States v. Townsend, 617 F.3d 991, 994 (8th Cir. 2010) (per curiam),
and a defendant challenging the district court’s sentence “must show more than the
fact that the district court disagreed with his view of what weight ought to be
accorded certain sentencing factors.” Id. at 995.
In this case, the district court gave “substantial insight into the reasons for its
determination.” Feemster, 572 F.3d at 463 (internal quotation marks and citation
omitted). The district court addressed Long’s criminal history, observing that Long
had a drug conviction at 18 and pled guilty to second-degree murder at 20. The
district court made clear that it was considering the totality of the circumstances,
including Long’s history and characteristics. Addressing Long, the district court
stated, “You have shown through your conduct that you’re not able to conform to
society as we know it in terms of you being out [of jail]. And the problem here is
people will get hurt if you are on the street.” Finally, the district court acknowledged
that it was imposing a significant upward variance, explaining, “I think this sentence
is appropriate, and arguably the Court could have ran as high as 40 years. I didn’t,
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but I think this is a sentence that is not greater than necessary, but this is a sentence
that is certainly going to protect the public from you.”
The district court adequately explained the sentence it imposed on Long. The
court clearly addressed the § 3553(a) factors and, although the court focused most on
Long’s history and characteristics, there was no abuse of discretion. Long has not
shown “more than the fact that the district court disagreed with his view of what
weight ought to be accorded certain sentencing factors.” Townsend, 617 F.3d at 995.
III.
Based on the foregoing discussion, we affirm Long’s convictions and
sentence.5
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5
Long raised a number of other arguments in supplemental pro se briefing on
appeal. Finding those arguments to be without merit, we summarily affirm under
Eighth Circuit Rule 47B. Additionally, we deny Long’s Motion to File a
Supplemental Reply Brief and Motion for Production of Video and for In Camera
Inspection.
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