United States v. Steven Burton ( 2018 )

FILED
NOT FOR PUBLICATION MAY 4 2018
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50451
Plaintiff-Appellee, D.C. No.
3:16-cr-00746-AJB-1
v.
STEVEN DOYLE BURTON, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Argued and Submitted April 13, 2018
Pasadena, California
Before: SCHROEDER, CLIFTON, and M. SMITH, Circuit Judges.
Defendant-Appellant Steven Doyle Burton appeals from his final judgment
of conviction for possession of cocaine base with intent to distribute, in violation
of 21 U.S.C. § 841(a)(1), and being a felon in possession of a firearm and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
ammunition, in violation of 18 U.S.C. § 922(g)(1). Our appellate jurisdiction rests
on 28 U.S.C. § 1291, and we AFFIRM.
1. The district court did not err in denying Mr. Burton’s motion to suppress
the drugs, weapons, and money found as a result of the probation search of his
residence, because the search was reasonable under the circumstances. See United
States v. Lara, 815 F.3d 605, 610 (9th Cir. 2016). Officers Medina and Williams
observed Mr. Burton commit two traffic violations, giving them probable cause to
initiate a traffic stop and investigate the violations. See Whren v. United States,
517 U.S. 806, 810 (1996). A routine records check conducted during the stop
revealed that Mr. Burton was driving with a suspended license and was subject to
an active Fourth Amendment waiver. See Rodriguez v. United States, 135 S. Ct.
1609, 1615 (2015). The officers possessed a reasonable suspicion that Mr. Burton
was reoffending, and their interests in searching his person outweighed his already
diminished expectation of privacy. See United States v. Knights, 534 U.S. 112,
118–19 (2001); Lara, 815 F.3d at 612.
2. The discovery of marijuana on Mr. Burton’s person provided sufficient
suspicion of criminal activity to justify the subsequent search of his home, which
was located approximately a house length away from where Mr. Burton and the
officers were stopped. See Knights, 534 U.S. at 121 (“When an officer has
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reasonable suspicion that a probationer subject to a search condition is engaged in
criminal activity, there is enough likelihood that criminal conduct is occurring that
an intrusion on the probationer’s significantly diminished privacy interests is
reasonable.”).
3. We decline to review the merits of Mr. Burton’s claim for ineffective
assistance of counsel stemming from his attorney’s opening statement, but this
does not foreclose Mr. Burton from bringing this claim in a habeas proceeding.
See United States v. Dewey, 599 F.3d 1010, 1014 (9th Cir. 2010). “Collateral
review is preferable because in such a proceeding a record may be developed to
show what counsel did and any resulting prejudice.” United States v. Simas, 937
F.2d 459, 463 (9th Cir. 1991).
4. This Court’s decision in Pasterchik v. United States, 400 F.2d 696 (9th
Cir. 1968) forecloses Mr. Burton’s argument that conviction records bearing his
name were insufficient to establish the prior felony conviction element of the felon
in possession counts.
5. The evidence was sufficient to support the jury’s unanimous finding that
the government, by a preponderance of the evidence, had established a nexus
between the $35,700 and the possession of cocaine base with intent to distribute
charge. Congress, in 21 U.S.C. § 853(a)(2), “plainly provided for forfeiture of
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property even where only a portion of it was used for the prohibited purposes.”
United States v. Littlefield, 821 F.2d 1365, 1367 (9th Cir. 1987). The jury heard
testimony that Mr. Burton kept his belongings in the garage, that Mr. Burton was
often seen standing near the outdoor planter where drugs and drug paraphernalia
were found, that drug dealing is a cash business, and that it is common for drug
dealers to keep a working sack nearby, with the larger stash hidden in a more
secure location. The government thus presented the jury with sufficient evidence
that at least a portion of the $35,700 was used “in any manner or part, to commit,
or to facilitate the commission of” the drug offense for which Mr. Burton was
convicted. 21 U.S.C. § 853(a)(2).
AFFIRMED.
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