United States v. Franklin Alexander Mills , 457 F. App'x 251 ( 2011 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 10-4580
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    FRANKLIN ALEXANDER MILLS,
    Defendant – Appellant.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro. William L. Osteen,
    Jr., District Judge. (1:09-cr-00039-WO-1)
    Submitted:   September 29, 2011          Decided:   December 15, 2011
    Before MOTZ, KING, and AGEE, Circuit Judges.
    Affirmed in part, vacated in part, and remanded by unpublished
    per curiam opinion.
    Louis C. Allen III, Federal Public Defender, William S.
    Trivette, Assistant Federal Public Defender, Greensboro, North
    Carolina, for Appellant.     John W. Stone, Jr., Acting United
    States Attorney, Michael F. Joseph, Assistant United States
    Attorney, Greensboro, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    A jury convicted Franklin Alexander Mills of multiple
    drug and firearms offenses, 1 and the district court sentenced him
    to a total of 180 months’ imprisonment.              On appeal, Mills argues
    that the district court erred in denying his motion to suppress
    evidence,    improperly   sentenced       him   to    the   mandatory   minimum
    five-year term of imprisonment for violation of § 924(c) to run
    consecutively to the mandatory minimum sentence for violation of
    § 841(b)(1)(B), and improperly enhanced his sentence based on a
    prior North Carolina conviction.            We affirm Mills’ convictions
    but vacate his sentence in part and remand to the district court
    for resentencing.
    Mills argues that the district court erred in denying
    his motion to suppress the evidence recovered following a canine
    sniff of his vehicle.      In reviewing the district court’s denial
    of a motion to suppress, “[w]e review the district court’s legal
    determinations de novo and its factual determinations for clear
    error.”     United States v. Kelly, 
    592 F.3d 586
    , 589 (4th Cir.),
    cert. denied, 
    130 S. Ct. 3374
     (2010).                When the district court
    1
    The jury convicted Mills of possession with intent to
    distribute cocaine base and cocaine hydrochloride, in violation
    of 
    21 U.S.C.A. § 841
    (a)(1), (b)(1)(B), and (b)(1)(C) (West 1999
    & Supp. 2011), possession of a firearm in furtherance of a drug
    trafficking crime, in violation of 
    18 U.S.C.A. § 924
    (c)(1)(A)(i)
    (West 2000 & Supp. 2011), and possession of a firearm by a
    convicted felon, in violation of 
    18 U.S.C. § 922
    (g)(1) (2006).
    2
    has denied a suppression motion, “we construe the evidence in
    the light most favorable to the government.”                      
    Id.
        Our review of
    the record leads us to conclude that the district court did not
    err in denying Mills’ motion to suppress.                     See United States v.
    Farrior,    
    535 F.3d 210
    ,    220    (4th    Cir.    2008)    (concluding         that
    brief canine sniff after officer issued citation and returned
    license and registration was “a de minimis intrusion on [the
    defendant’s] liberty interest”).                   Therefore, we affirm Mills’
    convictions.
    Mills next argues that the district court erred in
    sentencing     him    to     a     mandatory       minimum       five-year      term    of
    imprisonment for violation of § 924(c) to run consecutively to
    the   ten-year       mandatory         minimum    sentence       for     violation      of
    § 841(b)(1)(B).       Mills’ argument is, however, foreclosed by the
    Supreme Court’s recent decision in Abbott v. United States, 
    131 S. Ct. 18
    , 23 (2010) (holding “that a defendant is subject to a
    mandatory, consecutive sentence for a § 924(c) conviction, and
    is not spared from that sentence by virtue of receiving a higher
    mandatory    minimum        on     a     different       count     of    conviction”).
    Therefore, we affirm this portion of Mills’ sentence.
    Finally,       Mills       argues    that   the   North      Carolina      drug
    conviction used to enhance his mandatory minimum sentence under
    § 841(b)(1)(B)       was   not     punishable      by    more     than    one   year     of
    imprisonment.        See 
    21 U.S.C. § 802
    (44) (2006) (defining felony
    3
    for purposes of § 841 as a crime “punishable by imprisonment for
    more       than    one    year”);    N.C.   Gen.       Stat.   §   15A-1340.17(c)-(d)
    (2007)      (setting      out     minimum   and    maximum     sentences   applicable
    under North Carolina’s sentencing scheme to offenses committed
    on or after Dec. 1, 1995, and before Dec. 1, 2009). 2                      When Mills
    raised this argument in the district court, it was foreclosed by
    our decision in United States v. Harp, 
    406 F.3d 242
     (4th Cir.
    2005).        Subsequently, however, we overruled Harp with our en
    banc decision in United States v. Simmons, 
    649 F.3d 237
     (4th
    Cir. 2011) (en banc), in which the defendant raised the same
    argument.          In view of Simmons, we vacate this portion of Mills’
    sentence          and    remand     the   case    to     the    district   court   for
    resentencing.
    Accordingly, we affirm Mills’ convictions, affirm his
    sentence in part and vacate his sentence in part, and remand for
    resentencing in accordance with Simmons.                       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 IN PART,
    VACATED IN PART,
    AND REMANDED
    2
    The statute subsequently was amended, but the amendments
    do not apply to Mills.
    4
    

Document Info

Docket Number: 10-4580

Citation Numbers: 457 F. App'x 251

Judges: Agee, King, Motz, Per Curiam

Filed Date: 12/15/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023