United States v. Hall , 337 F. App'x 340 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5211
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVEN ALLEN HALL,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T.
Copenhaver, Jr., District Judge. (2:08-cr-00006-1)
Submitted: July 6, 2009 Decided: July 24, 2009
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Steven I. Loew, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven Allen Hall was convicted by a jury of
possession of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006). The district court sentenced Hall to thirty
months of imprisonment, and Hall appeals his conviction and
sentence. Finding no error, we affirm.
Hall first challenges the district court’s denial of
his suppression motions. Hall argues that the officer who
arrested him did not have reasonable suspicion to detain him.
“In reviewing a district court’s ruling on a motion to suppress,
we review the court’s factual findings for clear error, and its
legal conclusions de novo.” United States v. Cain, 524 F.3d
477, 481 (4th Cir. 2008) (citation omitted). When the district
court denies a defendant’s suppression motion, the court
construes “the evidence in the light most favorable to the
[G]overnment.” United States v. Grossman, 400 F.3d 212, 216
(4th Cir. 2005) (citation omitted).
“[A]n officer may, consistent with the Fourth
Amendment, conduct a brief, investigatory stop when the officer
has a reasonable, articulable suspicion that criminal activity
is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000)
(citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). The officer must
have “at least a minimal level of objective justification for
making the stop” and “must be able to articulate more than an
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inchoate and unparticularized suspicion or hunch of criminal
activity.” Id. at 123-24 (internal quotation marks and
citations omitted). Courts assess the legality of a Terry stop
under the totality of the circumstances, giving “due weight to
common sense judgments reached by officers in light of their
experience and training.” United States v. Perkins, 363 F.3d
317, 321 (4th Cir. 2004) (citations omitted). The court will
“credit the ‘practical experience of officers who observe on a
daily basis what transpires on the street.’” Id. (quoting
United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993)).
With these standards in mind, we have reviewed the
record and find that the district court’s conclusion that the
officer had reasonable suspicion that criminal activity might
have been afoot was not erroneous. We also find that Hall’s
reliance on the Second Amendment is misplaced, and that he
failed to preserve for our review his claims based upon the
state concealed weapon statute. Thus, the district court
properly denied Hall’s suppression motions.
Hall next challenges the district court’s denial of a
two-level reduction in offense level for acceptance of
responsibility under the guidelines. Following United States v.
Booker, 543 U.S. 220 (2005), a district court must engage in a
multi-step process at sentencing. After calculating the
appropriate advisory guidelines range, a district court should
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consider the resulting range in conjunction with the factors set
out in 18 U.S.C. § 3553(a) (2006), and determine an appropriate
sentence. United States v. Abu Ali, 528 F.3d 210, 259-60 (4th
Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009).
This court reviews a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007); see also
United States v. Seay, 553 F.3d 732, 742 (4th Cir. 2009),
petition for cert. filed (May 29, 2009) (No. 08-10729). In so
doing, the court first examines the sentence for “significant
procedural error,” including: “failing to calculate (or
improperly calculating) the [g]uidelines range, treating the
[g]uidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence . . . .”
Gall, 128 S. Ct. at 597. “If the district court decides to
impose a sentence outside the [g]uidelines range, it must ensure
that its justification supports ‘the degree of the variance’;
. . . .” United States v. Evans, 526 F.3d 155, 161 (4th Cir.),
cert. denied, 129 S. Ct. 476 (2008) (quoting Gall, 128 S. Ct. at
597). Finally, the court then “‘consider[s] the substantive
reasonableness of the sentence imposed.’” Id. (quoting Gall,
128 S. Ct. at 597). If the sentence is within the guidelines
range, the appellate court may apply a presumption of
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reasonableness. Rita v. United States, 551 U.S. 338, ___, 127
S. Ct. 2456, 2462-69 (2007) (upholding presumption of
reasonableness for within-guidelines sentence).
The guidelines provide for a two-level reduction in
offense level for a defendant who “clearly demonstrates
acceptance of responsibility.” U.S. Sentencing Guidelines
Manual (“USSG”) § 3E1.1(a) (2007). The defendant bears the
burden of proving that he is entitled to the reduction by a
preponderance of the evidence. United States v. Harris, 882
F.2d 902, 907 (4th Cir. 1989). In addition, this court will
review the district court’s determination of acceptance of
responsibility with “great deference.” See USSG § 3E1.1 cmt.
n.5. We have reviewed the record and conclude that the district
court did not err in concluding that Hall failed to demonstrate
acceptance of responsibility by a preponderance of the evidence.
Accordingly, we affirm the judgment of the district
court. 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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