UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4190
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM BYRON BOWMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:05-cr-00018-jlk)
Argued: October 26, 2006 Decided: February 1, 2007
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
ARGUED: Phillip Richard Lingafelt, GLENN, FELDMANN, DARBY &
GOODLATTE, Roanoke, Virginia, for Appellant. Edward Albert Lustig,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF: John L.
Brownlee, United States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Byron Bowman appeals his conviction in the Western
District of Virginia for possession of a firearm by a convicted
felon, in contravention of 18 U.S.C. § 922(g), and his resulting
sentence of 210 months’ imprisonment. With respect to his
conviction, Bowman maintains that the district court erred in
failing to suppress evidence obtained in an unconstitutional search
of his home. With regard to his sentence, Bowman asserts that the
court erroneously ruled that he had previously been convicted of
three serious drug offenses that had occurred on separate occasions
— a finding that rendered him subject to the enhanced sentencing
provisions of the Armed Career Criminal Act, 18 U.S.C. § 924(e)
(the “ACCA”). As explained below, we reject Bowman’s first
assignment of error, and thus affirm his conviction. We agree with
his second contention, however, and, as a result, vacate his
sentence and remand for further proceedings.1
1
Bowman has also appealed the district court’s denial of his
motion for a downward variance from the advisory Guidelines range
to which he was subject as an armed career criminal. Because we
vacate his sentence and the court’s finding that he is subject to
the ACCA, we need not address his contention on the downward
variance issue.
2
I.
A.
On November 18, 2003, a woman named Angela Prater, with whom
Bowman was romantically involved, called 911 to report that Bowman
had assaulted her at his home in Henry County, Virginia. Several
officers of the county Sheriff’s Department responded to the call.
When the officers arrived at the scene, Bowman was standing outside
his residence. The officers asked Bowman to accompany them to the
police station to answer questions about Prater’s allegation.
Bowman agreed to go with the officers, but said that he first
needed to go inside his home to put on a shirt and shoes.
What happened next is in dispute. According to Steven Wells,
one of the responding officers, he asked Bowman, “Do you mind if I
go [inside] with you?” and Bowman responded, “No.” J.A. 45.2
Bowman, however, denies that the officers requested permission to
enter his home. Rather, he asserts that the officers simply
informed him that “[w]e need to go with you inside to get your
shoes.” Id. at 35. The parties agree that officer Wells, along
with some other officers, did accompany Bowman into his residence.
Once inside, according to officer Wells, he asked Bowman, “Do you
mind if I look around?” and Bowman again gave his consent. Id. at
2
Citations herein to “J.A. ___” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
3
45. Bowman, though, denies that he gave the officers permission to
look around the house.
The remaining facts are not in material dispute. Inside
Bowman’s residence, Wells observed a homemade device used for
smoking crack cocaine (the device was a beer can that had been
adapted to that purpose). Upon discovering this drug
paraphernalia, Wells decided to apply for a warrant to search the
residence. Consistent with established Sheriff’s Department
procedures, the officers secured the scene by walking through the
residence and ensuring that no one remained inside while the search
warrant was being obtained. During that process, the officers
discovered the butts of two marijuana cigarettes in plain view, in
an ashtray on the bathroom counter.
Officer Wells then applied to the state magistrate court for
a search warrant, asserting probable cause on the basis of the
homemade crack-smoking device and the marijuana found in Bowman’s
residence. In the affidavit supporting his warrant application,
Wells stated that Bowman had given him permission to look around
the home. A state-court magistrate issued the requested search
warrant, and when the officers executed it, they found two twelve-
gauge shotguns. After the search of Bowman’s residence, the
officers requested, and Bowman granted, his written consent to
search a nearby garage that he owned.
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B.
Because Bowman had been previously convicted of several
felonies, the discovery of the shotguns in his home led to his
federal indictment, on June 2, 2005, for possession of a firearm by
a convicted felon, in contravention of 18 U.S.C. § 922(g). On
August 22, 2005, Bowman moved to suppress the shotguns, asserting
that the search of his home violated the Fourth Amendment. In his
suppression motion, Bowman maintained that Wells had falsely
asserted, in his affidavit supporting the search warrant
application, that Bowman had given the officers permission to enter
his home and look around. Bowman contended that, absent Wells’s
false statement, the magistrate would have recognized that the
drugs and drug paraphernalia found during the initial entry into
the residence were the fruit of an unlawful search, and thus could
not serve to establish probable cause for the warrant. Because
probable cause would not have existed absent Wells’s alleged false
representation, Bowman maintained, the search warrant was invalid
and unconstitutional.
On August 29, 2005, the district court conducted an
evidentiary hearing on Bowman’s suppression motion. Bowman
testified that he had not given the officers permission to enter or
look around his home when they responded to Prater’s 911 call. He
also asserted that he did not trust the Henry County Sheriff’s
Department, having had unpleasant experiences with them in the
5
past, and that it was thus implausible that he would have allowed
them to enter or search his dwelling. The Government responded
with officer Wells’s testimony that Bowman had given him permission
to enter the residence and look around, as well as the evidence of
officer David Morris — who had been present during the search —
that Bowman had given Wells and the other officers permission to
enter. The Government also proffered Bowman’s written consent to
the search of his off-site garage, to rebut his contention that he
would not have consented to a search of his home because he
distrusted the Sheriff’s Department.
The district court denied Bowman’s suppression motion,
discrediting his testimony and crediting that of officers Wells and
Morris. The court found it significant that Bowman had given the
officers written consent to search his garage. That evidence, the
court concluded, undercut Bowman’s claim that he would not have
consented to a search because he distrusted the authorities. And,
more generally, the court found that “the officers’ account of what
happened is very lucid and logical,” and explained that, “frankly,
I just don’t believe Mr. Bowman.” J.A. 62. Thus, the court found
that the officers’ initial, limited search of Bowman’s home had
been conducted with Bowman’s consent. As a result, the shotguns
discovered there were admitted into evidence at his one-day jury
trial, conducted September 1, 2005, and he was found guilty as
charged.
6
C.
In preparation for Bowman’s sentencing, the probation officer
prepared a Presentence Investigation Report (the “PSR”), which was
submitted to the sentencing court on October 14, 2005. The PSR
took the position that Bowman was subject to an enhanced sentence
under the ACCA because he had three previous convictions for
serious drug offenses (as defined by the ACCA) committed on
occasions different from one another. The first of these three
ACCA-predicate convictions — the PSR’s characterization of which
Bowman does not challenge in this appeal — was a 1980 conviction
in Franklin County, Virginia, for distributing marijuana and
cocaine (the “Franklin County conviction”). The PSR specified that
Bowman had also been convicted in Henry County, Virginia, in 1980,
on two counts of distribution of marijuana, and that these two
offenses had occurred on separate occasions — March 14, 1979, and
January 13, 1980 (the “Henry County convictions”). The PSR
identified the Franklin County conviction, plus the two Henry
County convictions, as the three predicate convictions that
qualified Bowman as an armed career criminal under the ACCA.
At Bowman’s February 3, 2006 sentencing hearing, the probation
officer testified regarding how he had determined the nature of the
Henry County convictions. As evidence of the convictions
themselves, the officer had relied on two sentencing orders, both
dated November 5, 1980, which specified that Bowman had been
7
convicted of the offense of “Distribute Controlled Drug.” J.A.
117, 120. One of the sentencing orders bore docket number CR-80-
0213 and ordered that Bowman serve five years in prison (the “First
Sentencing Order”). The other carried docket number CR-80-0214 and
also ordered five years’ imprisonment, but suspended two years of
that sentence (the “Second Sentencing Order”). The sentencing
orders themselves, however, did not establish that the offenses for
which Bowman was sentenced had occurred on separate occasions,
because they did not include the dates of his offense conduct. For
that information, the probation officer had examined two
indictments, both returned by the Henry County grand jury in
January 1980. One, labelled “Case A,” alleged that Bowman had
distributed marijuana on January 13, 1980 (the “Case A
Indictment”). The other, labelled “Case B,” alleged that Bowman
had distributed marijuana on March 14, 1979 (the “Case B
Indictment”). Significantly, neither of the two indictments bore
a docket number or any other information linked to either of the
sentencing orders. The probation officer testified, however, that
he had found the Case B Indictment in the same file folder as the
First Sentencing Order and the Case A Indictment in the same file
folder as the Second Sentencing Order. On that basis, he concluded
that the First Sentencing Order was for a conviction on the March
14, 1979 offense alleged in the Case B Indictment, and that the
Second Sentencing Order was for a conviction on the January 13,
8
1980 offense alleged in the Case A Indictment. The sentencing
court relied on the probation officer’s testimony as to the
circumstances in which he had located the indictments and
sentencing orders, and found that “the documents, together with the
testimony, bear out that the presentence report is accurate” in its
assertion that the two Henry County convictions were for offenses
that had occurred on separate occasions. J.A. 92. Bowman
objected, asserting that the court could not properly consider the
probation officer’s testimony in finding the foregoing facts
concerning Bowman’s prior convictions. The court overruled that
objection, however, and determined that Bowman was subject to an
enhanced sentence as an armed career criminal.
Because he was classified an armed career criminal, Bowman’s
offense level under the Guidelines was 33, which, together with his
criminal history category of V, produced an advisory sentencing
range of 210 to 262 months. The sentencing court’s application of
the ACCA also rendered Bowman subject to a mandatory minimum
sentence of 180 months. After denying Bowman’s motion for a
downward variance to the 180-month statutory minimum, the court
sentenced him to 210 months’ imprisonment, the bottom of his
Guidelines range. Had Bowman not been deemed an armed career
criminal, his statutory maximum sentence would have been 120
months, and his advisory Guidelines range would have been 33 to 41
months.
9
Bowman has appealed his conviction and sentence, and we
possess jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We review a district court’s findings of fact — including
those underlying the denial of a suppression motion — for clear
error. See United States v. Rusher, 966 F.2d 868, 873 (4th Cir.
1992). A finding of fact is clearly erroneous when, through our
review of the evidence, we are left with the definite and firm
conviction that a mistake has been committed. United States v.
Singh, 363 F.3d 347, 354 (4th Cir. 2004) (citing United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). In reviewing a
district court’s factual findings, we give great deference to the
court’s credibility determinations. See United States v. Feurtado,
191 F.3d 420, 424 n.2 (4th Cir. 1999). We review de novo the legal
rulings made by a sentencing court. United States v. Daughtrey,
874 F.2d 213, 217-18 (4th Cir. 1989).
III.
By this appeal, Bowman first contends that the district court
erred in finding that he consented to the initial search of his
home by the authorities, and thus erroneously denied his motion to
suppress the shotguns that were found pursuant to the search
warrant. Second, he maintains that the court erroneously relied on
10
the probation officer’s testimony to find that the two Henry County
convictions had occurred on separate occasions, and therefore erred
in sentencing him as an armed career criminal. We address these
contentions in turn.
A.
Bowman first maintains that the district court erred in
failing to suppress the shotguns found in the search of his
residence. He asserts that the search warrant under which the guns
were found and seized was invalid and unconstitutional, because it
depended on officer Wells’s statement — which Bowman contends was
false — that Bowman had consented to the initial, limited search
of his home. The nub of Bowman’s position in this regard, then, is
that the court erred in its factual finding that, when Bowman
entered his residence to get dressed, he gave the officers
permission to accompany him and look around.
Put simply, the court’s finding that Bowman consented to the
officers’ initial entry and search of his home is not clearly
erroneous. The evidence on whether the initial search was
consensual consists of the competing testimony of Bowman, on the
one hand, and officers Wells and Morris, on the other, plus
Bowman’s written consent — given to the authorities the same day
as the search of his residence — for a search of the nearby garage
that he owned. The court, based on its firsthand assessment of the
11
witnesses’ demeanor and veracity, found the officers’ testimony to
be credible and found that Bowman was not credible. The sole item
of non-testimonial evidence — Bowman’s written consent to the
search of his garage — supports the court’s finding. Moreover, we
agree with the court that the officers’ version of events is wholly
plausible. Bowman points to no evidence that would leave us with
a definite and firm conviction that the court made a mistake in
finding that he consented to the challenged search. In these
circumstances, we must conclude that the court did not err in
denying Bowman’s suppression motion.
B.
Bowman’s second contention is that the district court
erroneously relied on the probation officer’s testimony in finding
that the two Henry County offenses occurred on separate occasions.
Had the court not made that finding, Bowman asserts, he would not
have been classified an armed career criminal, and would not have
been subject to the resulting sentence enhancement. We agree with
Bowman’s position in this regard and thus vacate his sentence.
As pertinent here, the ACCA enhances the sentence of a felon
who possesses a firearm after having been convicted of three or
more serious drug offenses that occurred on separate occasions.
See 18 U.S.C. § 924(e)(1). The ACCA’s definition of “serious drug
offense” includes, inter alia, any state-law drug distribution
12
crime for which the longest possible prison term is at least ten
years. See id. § 924(e)(2)(A)(ii). If a defendant is deemed to be
armed career criminal under the ACCA, he is subject to a minimum
sentence of fifteen years in prison. See id. § 924(e)(1).
Moreover, such a defendant suffers serious consequences under the
advisory Guidelines: his offense level is set at a minimum of 33,
well more than double the base offense level of 14 that applies to
a felon in possession of a firearm who is not subject to the ACCA.3
See U.S.S.G. §§ 2K2.1(a)(6), 4B1.4(b)(3)(B).
Typically, a sentencing court, rather than a jury, makes the
factual finding on whether a defendant has previous convictions
qualifying him for enhanced sentencing under the ACCA. Like any
fact that increases a defendant’s possible punishment, however, the
fact that a defendant’s prior convictions bring him within the ACCA
must be established through a procedure consistent with his
constitutional right to trial by jury. See Apprendi v. New Jersey,
530 U.S. 466, 487-88 (2000); United States v. Thompson, 421 F.3d
278, 281-82 (4th Cir. 2005); United States v. Washington, 404 F.3d
834, 839 (4th Cir. 2005). Accordingly, in determining the fact of
an ACCA-predicate conviction, a court must rely only on records
that were generated in a prior judicial proceeding comporting with
the Sixth Amendment, and that conclusively establish facts either
3
The minimum base offense level of 33 for an armed career
criminal may be reduced by an adjustment for acceptance of
responsibility. See U.S.S.G. § 4B1.4(b)(3) & note.
13
admitted by the defendant or inherent in the previous conviction.
See Thompson, 421 F.3d at 281-82; see also Shepard v. United
States, 544 U.S. 13 (2005) (specifying sources eligible for
consideration in determining nature of conviction based on guilty
plea). Examples of the sources suitable for this purpose include
an earlier proceeding’s charging documents, jury instructions,
formal rulings of law and findings of fact, judgments, and plea
agreements. See Thompson, 421 F.3d at 281-82. We have deemed
unsuitable, by contrast, such sources as police reports and
transcripts of testimony, because assertions made therein are not
inherently confirmed by the prior conviction, and therefore have
not been properly established by an earlier judicial proceeding.
See id.
The application of this legal framework to the instant facts
is straightforward. The probation officer’s testimony was not a
source that the sentencing court should have considered in finding
facts concerning Bowman’s prior convictions in Henry County,
because it was not a record of a fact conclusively established in
an earlier judicial proceeding. Yet the court explicitly relied on
that testimony to find that the First and Second Sentencing Orders
represented convictions for the offenses alleged in the Case B and
Case A Indictments, respectively, and — by extension — that the
two Henry County offenses had occurred on separate occasions. The
court’s finding in that regard was thus erroneous. Because this
14
finding was essential to Bowman’s being sentenced as an armed
career criminal, we vacate his sentence and remand for such further
proceedings as may be appropriate.
IV.
Pursuant to the foregoing, we affirm Bowman’s conviction, but
vacate his sentence and remand.
AFFIRMED IN PART, VACATED
IN PART, AND REMANDED
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