United States v. Pope

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4420

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES O. POPE, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:05-cr-00305-HEH)

Argued: November 30, 2006 Decided: January 5, 2007

Before WIDENER and WILKINSON, Circuit Judges, and David A. FABER,
Chief United States District Judge for the Southern District of
West Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Brian Jay Grossman, CROWGEY & GROSSMAN, Richmond, Virginia,
for Appellant. Stephen Wiley Miller, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee. ON BRIEF: Chuck Rosenberg, United States Attorney,
Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Defendant James O. Pope, Jr., was convicted of possession of

a firearm by a convicted felon, pursuant to 18 U.S.C. § 922(g)(1)

(2000). He received an increased penalty under 18 U.S.C.

§ 924(e)(1) (2000) as an armed career criminal with three prior

convictions for violent felonies or serious drug offenses.

Defendant appeals the district court’s denial of his motion to

suppress evidence relating to his encounter with two Richmond

sheriff’s deputies on the night of his arrest. He also challenges

the district court’s determination of his status as an armed career

criminal and its denial of a sentence reduction for acceptance of

responsibility. He further appeals his conviction on the basis of

ineffective assistance of counsel. We affirm the judgment of the

district court.

I.

On December 9, 2004, defendant was arrested for carrying a

concealed weapon without a permit at the Satellite Club in

Richmond, Virginia (“the Club”). Two uniformed, off-duty deputy

sheriffs of the Richmond City Sheriff’s Office, Howard Jackson and

Milton Byrd, were working as security officers at the Club that

evening. The Club prohibits patrons from carrying firearms, and

Deputies Jackson and Byrd were screening people coming into the

Club that evening to enforce this rule. Defendant Pope, however,

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entered the Club while the deputies were on break and thus was not

screened.

Upon returning to duty at approximately 1:15 am, Deputy Byrd

noticed what appeared to be the outline of a firearm beneath

defendant’s sweater. He conferred with Deputy Jackson, who agreed

that defendant appeared to be concealing a gun. Deputy Byrd

approached defendant and asked to speak to him outside. Defendant

agreed. Once outside, Deputy Byrd asked defendant what was

concealed beneath his sweater. Defendant responded that he had a

gun and had forgotten to leave it in his car. Deputy Jackson then

reached under defendant’s sweater and removed a Ruger .40 caliber

semi-automatic pistol, containing a magazine with eleven rounds of

.40 caliber ammunition.

Defendant stated that his identification and concealed weapons

permit were in his car. The deputies allowed him to go to his car,

but defendant was unable to produce either identification or a

weapons permit. He also told the deputies at various times that

his name was Marvin Pope, Richard Pope, and James Pope. Upon

defendant’s failure to produce a weapons permit, the deputies

attempted to arrest him, at which point defendant began to struggle

and refused to be handcuffed. It required half a can of mace and

the assistance of backup officers to subdue and arrest defendant

Pope. The deputies subsequently learned Pope’s true name, along

with the fact that he was a multiple convicted felon.

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 After his indictment, defendant filed a motion to suppress the

firearm and his statements made to the deputies, on the grounds

that the deputies’ actions constituted a seizure unsupported by

reasonable, articulable suspicion of criminal conduct and that the

deputies improperly interrogated him without first providing

Miranda warnings. The district court denied the motion to

suppress. The court found that defendant willingly chose to step

outside at the deputies’ request; his encounter with them was

consensual; and in response to questions he volunteered that he had

a concealed firearm. The court also stated that both deputies

observed defendant carrying what they knew to be a firearm and that

this reasonable belief created sufficient articulable suspicion to

warrant an investigative detention. The court further found that

the deputies were justified in securing the firearm until they

could determine whether the defendant possessed it lawfully.

The defendant was tried and convicted at a bench trial on

January 3, 2006. At trial, the parties stipulated to the evidence,

including the testimony of the two deputies from the suppression

hearing. The parties also stipulated that, at the time of the

offense, defendant was a convicted felon and that the recovered

firearm was transported in interstate commerce.

At sentencing, the district court found that, due to

defendant’s 1989 conviction for malicious wounding and two 2001

convictions for distribution of cocaine base, he was an armed

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career criminal and thus subject to an increased penalty pursuant

to 18 U.S.C. § 924(e)(1). The court also denied defendant a

reduction in offense level for acceptance of responsibility. The

court sentenced defendant to 252 months of imprisonment. Defendant

appeals.

II.

Defendant contends that the district court erred in denying

his motion to suppress evidence obtained during his encounter with

the deputies. Defendant argues that the request that he step

outside constituted a seizure unsupported by reasonable,

articulable suspicion that he was engaged in criminal conduct.

The district court was correct to find that this encounter did

not constitute a seizure. Officers may approach, address, and

question citizens without implicating the Fourth Amendment. See

Florida v. Bostick, 501 U.S. 429, 434 (1991); United States v.

Weaver, 282 F.3d 302, 309 (4th Cir. 2002). A seizure occurs only

when “in view of all the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to

leave.” Immigration & Naturalization Servs. v. Delgado, 466 U.S.

210, 215 (1984) (quoting United States v. Mendenhall, 446 U.S. 544,

554, (1980) (plurality opinion)). See Michigan v. Chesternut, 486

U.S. 567, 573 (1988); United States v. Gordon, 895 F.2d 932, 937

(4th Cir. 1990).

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 In this case, Deputy Byrd asked to speak to the defendant

outside the Club, and defendant voluntarily complied. The deputies

then asked him what was concealed beneath his sweater, and

defendant replied that it was a gun. The voluntary, noncoercive

nature of this interaction does not create a seizure under

Mendenhall’s totality of the circumstances standard. There was no

use of force or show of authority to which the defendant submitted.

See California v. Hodari D., 499 U.S. 621, 626-28 (1991); United

States v. Brown, 401 F.3d 588, 594 (4th Cir. 2005). The deputies

neither said nor did anything to suggest that compliance was

required or that defendant was not free to end the exchange. The

deputies simply made requests, to which defendant voluntarily

responded. Such an encounter does not constitute a seizure. See

Weaver, 282 F.3d at 312-13 (no seizure where defendant voluntarily

complied with officers’ requests); Gordon, 895 F.2d at 938 (same).

In any case, even if the encounter had not been consensual --

if defendant had not willingly complied with the requests -- the

deputies would have had a sufficient basis to seize the defendant.

Under Terry v. Ohio and its progeny, a brief seizure in the form of

an investigatory detention is lawful when based on a reasonable,

articulable suspicion that the subject is engaged in criminal

activity. See United States v. Arvizu, 534 U.S. 266, 273 (2002);

United States v. Sokolow, 490 U.S. 1, 7 (1989); Adams v. Williams,

407 U.S. 143, 145-46 (1972); Terry v. Ohio, 392 U.S. 1, 21 (1968).

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The “level of suspicion required for a Terry stop is . . . less

demanding than that for probable cause,” Sokolow, 490 U.S. at 7,

and requires consideration of the “totality of the circumstances of

each case to see whether the detaining officer ha[d] a

particularized and objective basis for suspecting legal

wrongdoing,” Arvizu, 534 U.S. at 273 (internal quotation marks

omitted). An officer’s personal observations are a primary basis

for establishing reasonable suspicion. See, e.g., Illinois v.

Wardlow, 528 U.S. 119, 124-25 (2000); United States v. Sharpe, 470

U.S. 675, 682 n.3 (1985); Terry, 392 U.S. at 28; United States v.

Smith, 396 F.3d 579, 584-85 (4th Cir. 2005).

In this case, the personal observations of the deputies would

certainly have created a particularized and objective basis for an

investigative detention. Both Deputy Byrd and Deputy Jackson

personally observed what they knew to be the outline of a gun

concealed beneath defendant’s clothing. See Arvizu, 534 U.S. at

273 (officers may “draw on their own experience and specialized

training to make inferences” about what they observe). Not only

does the Club prohibit firearms inside, but possession of a

concealed weapon is a criminal offense in Virginia. See Va. Code

Ann. § 18.2-308 (2004).1 The deputies were thus justified in

1
“If any person carries about his person, hidden from common
observation, (I) any pistol, revolver, or other weapon designed or
intended to propel a missile of any kind by action of an explosion
of any combustible material . . . he shall be guilty of a Class 1
misdemeanor.” Va. Code Ann. § 18.2-308 (2004).

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investigating defendant’s apparent possession of a concealed

weapon, and they would have had a reasonable basis for effecting an

investigatory detention in order to do so. See United States v.

Mayo, 361 F.3d 802, 808 (4th Cir. 2004) (reasonable suspicion that

defendant carried concealed weapon sufficient to justify Terry stop

and pat-down).

Defendant’s contention that the deputies improperly seized

his firearm is similarly without merit. Defendant told the

deputies that he was carrying a firearm, making a pat-down

unnecessary.2 Upon receiving confirmation that defendant was

armed, the deputies were justified in seizing the firearm, both for

their own protection and on the basis of reasonable suspicion that

the concealed weapon was possessed illegally. See Adams, 407 U.S.

at 148; Mayo, 361 F.3d at 808. Indeed, at that point the deputies

had probable cause to arrest defendant. See Mayo, 361 F.3d at 808

(officers “had probable cause to arrest [defendant]” when frisk

revealed concealed weapon).

Defendant also argues that the deputies extracted

incriminating statements from him without first providing Miranda

warnings. This contention too is unfounded. The safeguards of

Miranda apply to custodial interrogations, i.e., “where there has

2
Even if a pat-down had occurred, “a law enforcement officer,
for his own protection and safety, may conduct a patdown to find
weapons that he reasonably believes or suspects are then in the
possession of the person he has accosted.” Ybarra v. Illinois, 444
U.S. 85, 93 (1979); Mayo, 361 F.3d at 808.

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been such a restriction on a person's freedom as to render him ‘in

custody.’” United States v. Sullivan, 138 F.3d 126, 130 (4th Cir.

1998) (citation omitted). An individual is “‘in custody’ for

purposes of Miranda either if the person has been arrested or if

his freedom of action has been curtailed to a degree associated

with arrest.” Id. It was not until defendant failed to produce a

concealed weapons permit that he was placed in custody, and it was

at this point that Miranda warnings became appropriate.3

Thus the officers’ actions on the night of defendant’s arrest

were appropriate and reasonable. Defendant voluntarily stepped

outside and told the deputies that he was carrying a gun. The

deputies properly removed the gun from defendant’s possession

pending his presentation of a concealed weapons permit. And when

defendant failed to produce such a permit, the deputies took him

into custody. The district court was correct to rule that this

sequence of events was proper and thus to deny defendant’s motion

to suppress.

3
In all events, defendant’s Miranda argument is unavailing
because the government conceded before trial that it did not intend
to use any statements made prior to defendant’s arrest. To the
extent that such statements were ultimately referenced at trial, it
was through the suppression hearing testimony of Deputies Jackson
and Byrd, upon which the court was allowed to rely by defendant’s
stipulation.

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 III.

Defendant also argues that the district court erred in

determining that defendant was an armed career criminal for

purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).

In reviewing the district court’s application of the Armed Career

Criminal Act, “we review its legal determinations de novo and its

factual findings for clear error.” United States v. Wardrick, 350

F.3d 446, 451 (4th Cir. 2003).

18 U.S.C. § 924(e)(1) provides enhanced penalties when a

defendant convicted of possession of a firearm by a prohibited

person under 18 U.S.C. § 922(g) has three prior convictions for

violent felonies or serious drug crimes. The statute requires that

the three prior offenses have been “committed on occasions

different from one another.” 18 U.S.C. § 924(e)(1). Defendant was

convicted in 1989 of malicious wounding and twice in 2001 of

distribution of cocaine base. Defendant does not challenge the

validity of these convictions. Instead, he argues that, under

Apprendi v. New Jersey, 530 U.S. 466 (2000), the fact that the

convictions arose from offenses committed on three separate

occasions should have required proof beyond a reasonable doubt.4

Apprendi required submission to a jury and proof beyond a

reasonable doubt of facts that increased a defendant’s penalty,

4
In this case, because defendant waived a jury trial, this
question would still have been decided by the court. The only
difference is the burden of proof that would have applied.

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with the exception of the fact of a defendant’s prior convictions.

530 U.S. at 490. See also Blakely v. Washington, 542 U.S. 296, 301

(2004); United States v. Booker, 543 U.S. 220, 244 (2005). In this

case, the district court conducted an independent review of the

court documents pertaining to the 2001 convictions. Following the

Supreme Court in Shepard v. United States, 544 U.S. 13, 20-21

(2005), this court has held that the district court may consider “a

variety of conclusive court documents when determining the nature

of a prior conviction.” United States v. Thompson, 421 F.3d 278,

281 (4th Cir. 2005). These include “the charging document, the

terms of a plea agreement, the plea colloquy, the statutory

definition, or any explicit finding of the trial judge to which the

defendant assented.” United States v. Collins, 412 F.3d 515, 521

(4th Cir. 2005); see Shepard, 544 U.S. at 20-21. Here, the

district court concluded that defendant was a career criminal based

upon the indictments and sentencing orders relating to the prior

convictions. Those records establish that the two 2001 offenses

occurred over different time frames and involved drug distributions

to different individuals. The indictments were distinct, and each

offense was punished by a separate sentence. These facts plainly

establish the offenses as separate occasions for the purposes of 18

U.S.C. § 924(e)(1). The court thus did not exceed the scope of

permissible documentation. Rather, it properly found that

defendant was an armed career criminal.

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 IV.

Defendant also contends that the district court erred in

declining to reduce his sentence for acceptance of responsibility.

“A defendant’s credibility and demeanor play a crucial role in

evaluating whether he is genuinely contrite and has accepted

responsibility and the sentencing judge is in a unique position to

evaluate these factors.” United States v. Harris, 882 F.2d 902,

905 (4th Cir. 1989). Thus the court “review[s] a district court’s

decision to grant or deny an adjustment for acceptance of

responsibility for clear error.” United States v. Ruhe, 191 F.3d

376, 388 (4th Cir. 1999).

Section 3E1.1 of the now-advisory Sentencing Guidelines

authorizes a reduction in a defendant’s offense level for a clear

demonstration of acceptance of responsibility. See U.S. Sentencing

Guidelines Manual § 3E1.1 (2006). The Guidelines further note that

such a reduction will rarely be appropriate where, as here, a

defendant proceeds to trial. See id. § 3E1.1 cmt. n.2. Defendant,

however, claims that he should be treated as though he had pled

guilty, because he expressed a willingness to plead guilty and

proceeded to trial only to preserve his right to appeal the denial

of his motion to suppress.

This argument is not well taken. The facts here support the

district court’s denial of the reduction in any case. Besides the

dubious assertion that he would have been willing to plead guilty,

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defendant can offer no evidence of acceptance of responsibility.

Instead, as the district court noted, “there is simply no evidence

of any manifestation of remorse or contrition.” United States v.

Pope, No. 3:05CR305-HEH, slip op. at 4 (E.D. Va. Apr. 10, 2006).

When confronted by the deputies about his concealed firearm,

defendant lied about his identity and his possession of a permit.

When the deputies moved to arrest him, defendant resisted so

violently that it required backup officers and half a can of mace

to subdue him. Such conduct in no way supports a finding of

acceptance of responsibility, and the district court did not err in

so concluding.5

For the foregoing reasons, the judgment of the district court

is hereby affirmed.

AFFIRMED

5
Defendant also contends that defense counsel’s recommendation
to go to trial on stipulated facts constituted ineffective
assistance of counsel. Such a claim may not be raised on direct
appeal unless the record conclusively shows counsel’s performance
fell below an objective level of performance. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). The record here
certainly does not contain such a showing.

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