UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4869
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL PHILLIP BOURQUE,
Defendant - Appellant.
No. 05-4267
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL PHILLIP BOURQUE,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-02-336)
Submitted: October 31, 2005 Decided: December 9, 2005
Before LUTTIG, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
C. Gordon McBride, Hartsville, South Carolina, for Appellant.
Jonathan S. Gasser, United States Attorney, A. Bradley Parham,
Assistant United States Attorney, District of South Carolina,
Thomas E. Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Michael Phillip Bourque was convicted by a jury of aiding
and abetting armed bank robbery, 18 U.S.C. §§ 2113(a), 2113(d), 2
(2000) (Count One), aiding and abetting the use of a firearm in a
crime of violence, 18 U.S.C.A. §§ 924(c), 2 (West 2000 & Supp.
2005) (Count Two), and possession of a firearm by a convicted
felon, 18 U.S.C.A. §§ 922(g)(1), 924(e) (West 2000 & Supp. 2005)
(Count Three). The court sentenced Bourque as an armed career
criminal, 18 U.S.C.A. § 924(e); U.S. Sentencing Guidelines Manual
§ 4B1.4 (2002), and departed upward from the guideline range under
USSG § 4A1.3. The court imposed the statutory maximum sentence of
300 months on Count One, a concurrent sentence of 447 months on
Count Three, and a consecutive sentence of eighty-four months
imprisonment on Count Two, to be followed by a five-year term of
supervised release. The court also ordered Bourque to pay
restitution in the amount of $349.50. Bourque appeals his
conviction and sentence. We grant his motions for leave to file
pro se supplemental briefs and affirm the conviction and sentence.
We dismiss the appeal of the district court’s decision not to
depart downward.
At Bourque’s trial, the government’s evidence showed
that, on March 14, 2002, Horry County, South Carolina, Police
Officer Anthony Mueller, heard a BOLO (“Be on the Lookout”)
dispatch for a white male in a black pickup truck believed to be
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involved in an armed bank robbery. As he drove toward the bank,
Mueller met a burgundy-colored truck driven by Bourque. The
passenger in the truck was Craig Crissman, who had robbed the bank
a few minutes earlier, masked and armed with a handgun, while
Bourque waited behind the wheel of Crissman’s pickup truck.
Mueller stopped the truck but, because it appeared to be the wrong
color, he immediately told Bourque and Crissman they could go.
Mueller then received another dispatch stating that the getaway
truck had big tires, as Crissman’s truck did. Mueller quickly
stopped the truck a second time, removed Bourque and Crissman from
the truck, and handcuffed them. After backup officers arrived,
Mueller checked the vehicle for weapons and saw two firearms inside
the cab of the truck. The truck was later searched pursuant to a
search warrant, and the following items were seized: two loaded
firearms, a ski mask, a pillowcase containing the proceeds from the
bank robbery including bait money, a cell phone, and the jacket
worn by the bank robber. While Bourque was being transported to
the detention center, Mueller thanked Bourque for not trying to
shoot him. Bourque responded that he had been about to shoot
Mueller when Crissman talked him out of it. Crissman confessed to
robbing the bank, and said that Bourque pressured him into doing it
by threatening to have his family harmed if he did not.
Before the trial, Bourque moved to suppress all evidence
seized from the truck and the statement he made to Mueller. The
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district court denied the motion to suppress, having determined,
first, that Officer Mueller’s information from the BOLO was
sufficient to support a reasonable suspicion that the truck was the
getaway vehicle, and justified the second investigative stop of
the truck under Terry v. Ohio, 392 U.S. 1 (1968). The court also
held that a limited protective search of the cab of the truck was
permissible under Michigan v. Long, 463 U.S. 1032 (1983).1
At sentencing, the district court grouped Counts One and
Three together and determined that a combined adjusted offense
level of 24 applied, which was increased to 34 because Bourque
qualified for sentencing as an armed career criminal. Although
Bourque had six criminal history points, his armed career criminal
status placed him in criminal history category VI. His guideline
range was 262-327 months. The district court departed upward based
on the serious nature of his prior criminal conduct and the
likelihood that he would commit future crimes, and imposed a
guideline sentence of 447 months imprisonment, with a consecutive
seven-year sentence for the § 924(c) conviction.
1
The court further held that Bourque’s statement to Mueller,
given without a Miranda warning, was admissible because Mueller’s
statement was not intended to elicit a response from Bourque, and
that the search warrant for the truck had not included any
intentional misstatements although the facts in the affidavit
varied somewhat from Mueller’s testimony; the court noted that the
location of the firearms in the truck was not material to the
magistrate judge’s finding of probable cause.
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On appeal, Bourque first challenges the district court’s
denial of his motion to suppress. Bourque argues that, when
Officer Mueller stopped the truck for the second time, there was
insufficient evidence to give an objective police officer
reasonable suspicion that the occupants were involved in criminal
activity. He also contends that Mueller had no basis for a
warrantless search of the truck, i.e., opening the door of the
truck to inspect it, because the suspects had been handcuffed by
then and were being detained some distance from the truck.
We review the district court’s factual findings
underlying a motion to suppress ruling for clear error, and the
district court’s legal determinations de novo. Ornelas v. United
States, 517 U.S. 690, 699 (1996); United States v. Bush, 404 F.3d
263, 275 (4th Cir.), cert. denied, 126 S. Ct. 289 (2005). When a
suppression motion has been denied, this court reviews the evidence
in the light most favorable to the government. United States v.
Grossman, 400 F.3d 212, 216 (4th Cir. 2005). “The Fourth Amendment
protects ‘the people’ against ‘unreasonable searches and
seizures.’” United States v. Hylton, 349 F.3d 781, 785 (4th Cir.
2003) (quoting U.S. Const. amend. IV), cert. denied, 541 U.S. 1065
(2004).
An 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.”
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Illinois v. Wardlow, 528 U.S. 119, 123 (2000); Terry, 392 U.S. at
30. To conduct a Terry stop, there must be “at least a minimal
level of objective justification for making the stop.” Wardlow,
528 U.S. at 123; see also United States v. Hensley, 469 U.S. 221,
232 (1985). Reasonable suspicion requires more than a hunch but
less than probable cause. Id. at 123-24. In assessing police
conduct in a Terry stop, courts must look to the totality of the
circumstances. United States v. Sokolow, 490 U.S. 1, 8 (1989).
Officer Mueller made the second Terry stop after
receiving a report of an armed bank robbery in which the robber was
a white male and the getaway vehicle was believed to be a black
pickup truck with oversized tires. Within a few minutes after he
received the alert, Mueller encountered a dark-colored pickup truck
with large tires coming from the direction of the bank and occupied
by two white males. These facts provided Officer Mueller with a
reasonable and articulable suspicion that the occupants of the
truck were engaged in criminal activity, and justified his decision
to stop the truck, remove Bourque and Crissman from the truck, and
inspect the truck for other suspects or weapons. See Maryland v.
Wilson, 519 U.S. 408, 415 (1997) (no Fourth Amendment violation in
requiring defendant to exit car to be frisked); Michigan v. Long,
463 U.S. 1032, 1049 (1983) (no Fourth Amendment violation for
searching car’s passenger compartment where a gun may have been
secreted); United States v. Holmes, 376 F.3d 270, 280 (4th Cir.
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2004), (holding that Long authorizes protective search of vehicle
for weapons during Terry stop, even when suspect is outside vehicle
and effectively under police control), cert. denied, 125 S. Ct. 633
(2004).
Bourque argues that Mueller’s testimony at the
suppression hearing was not clear as to whether he could see the
guns from outside the truck or only after he opened the driver’s
side door. Mueller first testified that he was not sure whether
the door was open when he looked in the truck. On cross-
examination, he testified that the guns were plainly visible, but
only after the door was opened. Because Mueller had authority to
search the truck for weapons under Long and Holmes, whether he
could see the firearms before opening the truck door was not
significant. Because Mueller suspected Bourque and Crissman of
involvement in an armed robbery, and no weapon was discovered on
either suspect, a search of the truck for weapons was clearly
permissible. Therefore, the district court did not err in denying
the motion to suppress the evidence seized from the truck.
Bourque next argues that the evidence was insufficient to
establish that he was present at the bank during the robbery.
Bourque contends that the government’s case depended entirely on
Crissman’s claim that he committed the robbery under duress and
that Crissman’s testimony on this point was not credible. We
review the district court’s decision to deny a Rule 29 motion de
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novo. United States v. Lentz, 383 F.3d 191, 199 (4th Cir. 2004),
cert. denied, 125 S. Ct. 1828 (2005). Where, as here, the motion
was based on insufficient evidence, “[t]he verdict of a jury must
be sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.” Glasser v. United
States, 315 U.S. 60, 80 (1942). This court “ha[s] defined
‘substantial evidence,’ in the context of a criminal action, as
that evidence which ‘a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.’” United States v. Newsome, 322
F.3d 328, 333 (4th Cir. 2003) (quoting United States v. Burgos, 94
F.3d 849, 862 (4th Cir. 1996) (en banc)).
Bourque and Crissman were found together in the vehicle
seen leaving the bank a short time after the robbery, and the
robbery proceeds including bait money were discovered in the
vehicle. The jury found Crissman’s testimony that Bourque aided
and abetted the robbery credible. See United States v. Sun, 278
F.3d 302, 313 (4th Cir. 2002) (“[W]e do not review the credibility
of the witnesses and assume the jury resolved all contradictions in
the testimony in favor of the government.”). Therefore, this
evidence was sufficient to sustain Bourque’s conviction for aiding
and abetting the bank robbery and the related firearms counts.2
2
In his pro se supplemental brief, Bourque maintains that the
government failed to prove that the bank was a federally-insured
financial institution at the time of the robbery. We are satisfied
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Although Bourque acknowledges that we lack authority to
review the district court’s decision not to depart because the
court understood its authority to depart and exercised its
discretion not to depart, see United States v. Wood, 378 F.3d 342,
351 n.8 (4th Cir. 2004); United States v. Bayerle, 898 F.2d 28, 30-
31 (4th Cir. 1990), he seeks review of the sentencing court’s
decision. We dismiss this portion of the appeal for lack of
jurisdiction.
Bourque next contends that the district court abused its
discretion in departing upward because the sentence imposed was
disproportionate to the crime and thus violated the Eighth
Amendment prohibition on cruel and unusual punishment and because
Crissman received a lesser sentence. We disagree.
“Proportionality review is not available for any sentence less than
life imprisonment without the possibility of parole.” United
States v. Ming Hong, 242 F.3d 528, 532 (4th Cir. 2001). Because
Bourque has not been sentenced to life imprisonment, we will not
review his sentence for proportionality. And the fact that
Crissman received a lesser sentence does not make Bourque’s
sentence disproportionate to the crime, because “district courts
are not obliged to make comparisons of the relative harshness of
sentences imposed against various defendants.” United States v.
that the testimony of the bank vice president established that
fact.
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Foutz, 865 F.2d 617, 622 (4th Cir. 1989). But even if we would
examine the proportionality of Bourque’s sentence, it is not
disproportionate in light of his recidivism. See Ewing v.
California, 538 U.S. 11, 29-30 (2003) (sentence of twenty-five
years to life for recidivist did not violate Eighth Amendment).
Bourque also argues the district court violated his Sixth
Amendment rights when sentencing him. In United States v. Booker,
the Supreme Court held that the mandatory manner in which the
federal sentencing guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
of the evidence violated the Sixth Amendment. 125 S. Ct. 738, 746,
750 (2005).
Bourque was sentenced before the Supreme Court decided
Booker or its predecessor, Blakely v. Washington, 542 U.S. 296
(2004). Bourque does not allege that the district court erred in
applying the guidelines as mandatory, but in his supplemental brief
he does allege that the district court violated his Sixth Amendment
rights by sentencing him to a term of imprisonment greater than he
would have received under the guidelines based on facts found by
the jury or admitted by him. Bourque’s Sixth Amendment rights were
not violated, however, because the only facts the district court
considered when enhancing Bourque’s sentence were his prior
convictions, and the Sixth Amendment does not demand that prior
convictions be found by the jury or admitted by the defendant
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before they are used as the basis for enhancing a sentence. United
States v. Cheek, 415 F.3d 349, 354 (4th Cir. 2005). Because the
district court only referenced Bourque’s prior convictions for
facts justifying a sentence greater than the guideline range, we
conclude that no Sixth Amendment error occurred.
Last, Bourque contends that the loss of certain
photographs of the truck introduced into evidence by the government
at trial has deprived him of the opportunity for a full review of
the propriety of the warrantless search of the truck. He alleges
that a meaningful review of his conviction is not possible without
the photographs and that reversal of his conviction or a new trial
is required.
Under Fed. R. App. P. 10(a)(1), the record on appeal
includes original exhibits filed in the district court. A
defendant who seeks a new trial because the record is incomplete
must show that his appeal is prejudiced by the absence of the
missing portions of the record. United States v. Brown, 202 F.3d
691, 696 (4th Cir. 2000). If the record can be reconstructed by
the district court or if the district court determines that the
missing portions of the record are not relevant to issues the
defendant wishes to raise on appeal, a new trial will not be
granted. See United States v. Novaton, 271 F.3d 968, 993 (11th
Cir. 2001). We previously remanded this case for an evidentiary
hearing on this issue. The district court determined on remand
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that substitute photographs provided by the government from the
same series of photographs were adequate replacements for the
missing photographs. Bourque does not seriously challenge this
finding on appeal. Therefore, we conclude that he has not
demonstrated prejudice and that the loss of the trial photographs
does not warrant either reversal of his conviction or a new trial.3
We therefore affirm the conviction and sentence imposed
by 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 IN PART;
DISMISSED IN PART
3
We have considered the remaining issues raised in the pro se
supplemental briefs and find them to be without merit.
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