United States v. Henderson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-5141

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ROBERT LEE HENDERSON, a/k/a Jessie James
Sykes,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Margaret B. Seymour, District
Judge. (5:05-cr-00375-MBS-1)

Submitted: June 25, 2007 Decided: July 30, 2007

Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael Chesser, Aiken, South Carolina, for Appellant. Christopher
Todd Hagins, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Robert Lee Henderson entered a conditional guilty plea to

one count of possession of a firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1)

(2000). The district court sentenced Henderson to 180 months’

imprisonment. Henderson timely appealed.

Henderson’s attorney has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating that, in his

opinion, there are no meritorious issues for appeal, but

questioning whether the district court erred in denying Henderson’s

motion to suppress evidence or in sentencing Henderson pursuant to

the Armed Career Criminal Act, 18 U.S.C. § 924(e) (2000) (“ACCA”).

Henderson submitted a pro se supplemental brief in which he raises

many of the same issues counsel presented. For the reasons stated

below, we affirm the district court’s denial of Henderson’s motion

to suppress, as well as Henderson’s sentence.

I. Motion to Suppress

We review the district court’s factual findings

underlying a motion to suppress for clear error, and the district

court’s legal determinations de novo. United States v. Grossman,

400 F.3d 212, 216 (4th Cir. 2005). When a suppression motion has

been denied, we review the evidence in the light most favorable to

the government. Id.

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 After receiving a report of a broken-down mini-van on a

highway, South Carolina State Trooper Larry Vanicek arrived on the

scene to assist the motorists. Vanicek noticed two men, three

women, and one child in the van. While speaking with Henderson,

who was sitting in the driver’s seat, Vanicek noticed a strong odor

of marijuana emanating from the van. After asking Henderson for

his driver’s license, Vanicek asked Henderson to step outside of

the vehicle. Vanicek asked Henderson whether he was driving and if

his license was valid; Henderson responded that he had not been

driving, but that his license was suspended. Informing Henderson

that he detected marijuana, Vanicek asked Henderson if he had been

smoking marijuana or had any narcotics on him. Henderson disclosed

that he had smoked marijuana, but that he did not have any on his

person.

Vanicek instructed Henderson to turn around so that

Vanicek could perform a protective pat-down. Vanicek asked

Henderson if he had any weapons or harmful objects on his person.

At this point, Henderson told Vanicek there was marijuana in his

coat pocket. After he located and seized the marijuana, Vanicek

instructed Henderson to return to the van; Vanicek then called for

back-up assistance in order to search the van.

After the local deputy arrived, Vanicek again asked

Henderson to exit the van. Vanicek asked Henderson and the van

owner’s granddaughter, one of the women in the van, for consent to

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search the van; both gave their consent to the search. Before

beginning to search the van, Vanicek again asked Henderson whether

he had any weapons or harmful objects on his person, to which

Henderson responded that he had a firearm in the waistband of his

pants. Henderson explained that the firearm had been in the van

during the first search. Vanicek located and seized the firearm

and its ammunition.

Henderson moved to suppress the firearm, arguing it was

seized in violation of the Fourth Amendment, and moved to suppress

his statements to Vanicek, arguing they were obtained in

contravention of Miranda v. Arizona, 384 U.S. 436 (1966). After

conducting a hearing on the issue, the district court denied

Henderson’s motion. Henderson subsequently entered a conditional

guilty plea, reserving the right to appeal the denial of his

suppression motion.

On appeal, Henderson first maintains that, in requesting

that he exit the van in the first instance, Vanicek violated

Henderson’s Fourth Amendment right to be free of unreasonable

seizures. Although Henderson makes much of the fact that Vanicek

originally approached the van simply because he received a report

of a disabled vehicle as opposed to pursuant to a traffic stop,

Henderson neglects to consider that this was not why Vanicek

requested that Henderson exit the vehicle. As Vanicek’s report on

the incident established, after approaching the vehicle, Vanicek

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noticed a “strong odor” of marijuana emanating from the vehicle.

Accordingly, Vanicek’s request that Henderson, who had been sitting

in the driver’s seat, exit the vehicle was not predicated on the

fact that the van was disabled, but on Vanicek’s recognition that

illegal drugs either were being, or had recently been, used.

“[W]hen the officer has a reasonable suspicion that illegal drugs

are in the vehicle, the officer may, in the absence of factors

allaying his safety concerns, order the occupants out of the

vehicle.” United States v. Sakyi, 160 F.3d 164, 169 (4th Cir.

1998). Accordingly, we conclude that Vanicek’s request that

Henderson exit the van did not violate the Fourth Amendment.

We further reject Henderson’s contention that Vanicek’s

initial pat-down search was illegal because Vanicek lacked a

reasonable belief that Henderson was armed. Pennsylvania v. Mimms,

434 U.S. 106, 110-11 (1977), authorizes a police officer to frisk

a vehicle’s driver or occupant if there is a reasonable belief that

they are armed and dangerous. As we have recognized, “[t]he

indisputable nexus between drugs and guns presumptively creates a

reasonable suspicion of danger to the officer.” Sakyi, 160 F.3d at

169. The noticeable presence of marijuana supported Vanicek’s

decision to frisk Henderson.1

1
Building on his contention that the initial seizure and
search were illegal, Henderson maintains that his continued
detention pending arrival of Vanicek’s back-up was likewise
illegal. This argument fails, however, because the initial seizure
and search were proper; thus, Vanicek had developed probable cause

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 Henderson also claims that the second search of his

person was illegal because Vanicek had no reason to conduct another

protective pat-down. Because the search was illegal, Henderson

posits, the firearm seized during the course of that search should

have been suppressed as fruit of the poisonous tree.

We reject this argument. Vanicek permitted Henderson to

return to the van with the four other adults while awaiting the

arrival of back-up assistance. Because Henderson could have armed

himself or hidden contraband on his person during that time, it was

reasonable for Vanicek to conduct a second protective pat-down

search.

Lastly, Henderson maintains that the marijuana and the

firearm should have been suppressed because the incriminating

statements Henderson gave that led Vanicek to those items were

obtained in violation of Miranda. Henderson concedes that Miranda

warnings generally do not apply to routine traffic stops, but

argues that, because Vanicek’s initial contact with Henderson was

not pursuant to a traffic stop, Miranda was triggered.

Police officers are “required to give Miranda warnings

only where there has been such a restriction on a person’s freedom

as to render him in custody.” California v. Beheler, 463 U.S.

1121, 1124 (1983) (internal quotations and citation omitted).

“[T]he ultimate inquiry is simply whether there is a formal arrest

to support further detaining Henderson.

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or restraint on freedom of movement of the degree associated with

a formal arrest.” Id. at 1125 (internal quotations and citation

omitted).

Vanicek simply had no obligation to provide Miranda

warnings before questioning Henderson regarding whether he had any

weapons or harmful objects on his person. The uncontested

documents reflecting the course of events demonstrate that, on both

occasions Vanicek posed the challenged questions, Henderson was

neither under arrest nor was his freedom restricted to a degree

equivalent to arrest.2 Accordingly, we conclude the district court

properly denied Henderson’s motion to suppress in its entirety.3

II. Armed Career Criminal

Prior to sentencing, the probation officer prepared a

pre-sentence report (“PSR”), in which he recommended sentencing

Henderson pursuant to the ACCA. The probation officer concluded

that Henderson had five prior convictions for violent felony

offenses — burglaries — all of which were committed on separate

2
Even if Miranda was in fact implicated, as the district court
noted, there is a safety exception to the Miranda requirement.
“[T]he need for answers to questions in a situation posing a threat
to the public safety outweighs the need for the prophylactic rule
protecting the Fifth Amendment’s privilege against
self-incrimination.” New York v. Quarles, 467 U.S. 649, 657
(1984). Vanicek’s question twice posed to Henderson was well
within the bounds of this exception.
3
We have considered the other arguments raised in Henderson’s
pro se supplemental brief relevant to this issue and find them to
be without merit.

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occasions. The probation officer cited Henderson’s conviction for

third-degree burglary of Hancock Buick on June 17, 1991, as well as

his conviction for second-degree burglary of Hancock Buick on

June 25, 1991 (collectively, “June 1991 burglaries”). The

probation officer also detailed Henderson’s convictions stemming

from a series of burglaries committed in November 1996. Those

offenses included third-degree burglary of Astro Electric Company

on November 15, 1996, and two counts of second-degree burglary for

unlawfully entering two different buildings on November 14, 1996

(collectively, “November 1996 burglaries”).

Henderson objected to the armed career criminal

designation, arguing that the June 1991 burglaries and the November

1996 burglaries were inter-related, and thus not crimes committed

on separate occasions. The district court rejected this argument,

finding that the June 1991 burglaries were “two separate

incidents.” The district court similarly rejected Henderson’s

argument with regard to the November 1996 burglaries.

On appeal, Henderson restates his argument that he does

not have the required three predicate felony convictions to support

being sentenced under the ACCA. A defendant with three prior

convictions for violent felony offenses committed on separate

occasions is subject to treatment as an armed career criminal. See

18 U.S.C. § 924(e)(1); United States Sentencing Guidelines Manual

§ 4B1.4 (2005) (“USSG”). The definition of a “violent felony”

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includes burglary. 18 U.S.C. § 924(e)(2)(B)(ii) (2000). In

Taylor v. United States, 495 U.S. 575, 598-99 (1990), the Supreme

Court held that “burglary,” for purposes of § 924(e), is limited to

“generic” burglary, that is, the “unlawful or unprivileged entry

into, or remaining in, a building or structure with intent to

commit a crime.”

Though the statute does not define “committed on

occasions different from one another[,]” we consider three factors

in determining whether offenses occurred on the same occasion and

thus should count as only one predicate offense: “whether the

offenses arose in different geographic locations; whether the

nature of the offenses was substantively different; and whether the

offenses involved multiple victims or multiple criminal

objectives.” United States v. Letterlough, 63 F.3d 332, 335-36

(4th Cir. 1995) (footnotes omitted). A conviction is considered to

have “occur[red] on occasions different from one another if each of

the prior convictions arose out of a separate and distinct criminal

episode.” Id. at 335 (internal quotations and citation omitted).

In making this determination, we consider, among other factors,

whether the time interval between the crimes underlying the

convictions allowed the accused sufficient time to “make a

conscious and knowing decision to engage in” subsequent criminal

acts. Id. at 337. Separate offenses are not made related simply

because the offenses were consolidated for sentencing or the

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defendant received concurrent sentences. United States v.

Breckenridge, 93 F.3d 132, 137-38 (4th Cir. 1996) (citations

omitted); United States v. Rivers, 929 F.2d 136, 140 (4th Cir.

1991).

We reject Henderson’s contention that his prior offenses

were not separate instances of criminal conduct. Although the

target of both of the June 1991 burglaries was the same, the date

of conviction was the same, and Henderson’s sentences were

concurrent, the two criminal acts underlying those convictions

occurred eight days apart from one another; thus, those criminal

offenses cannot be said to have been committed on the same

occasion. Henderson plainly made a “conscious and knowing

decision” to engage in the second criminal act. Letterlough, 63

F.3d at 337. Both of these burglary convictions were properly

counted.

With regard to the November 1996 burglaries, although it

appears that Henderson committed these three crimes within a short

time of one another, they each constitute a “separate and distinct

criminal episode.” Id. at 335. Each burglary involved a different

target, in a different geographic location. In his travels between

these locations, Henderson made conscious decisions to engage in

another criminal act. Even if, as Henderson contends, the two

burglaries committed on November 14 were committed “on the same

occasion” such that they only count as one prior conviction,

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Henderson nonetheless had three prior violent felony convictions

and thus was properly sentenced pursuant to the ACCA.4

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. Accordingly, we affirm Henderson’s conviction and

sentence. Moreover, we deny Henderson’s motion to supplement his

pro se supplemental brief. This court requires that counsel inform

his client, in writing, of his right to petition the Supreme Court

of the United States for further review. If the client requests

that a petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move this court for leave to

withdraw from representation. Counsel’s motion must state that a

copy thereof was served on the client. 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

4
We have considered Henderson’s arguments relevant to the
armed career criminal designation and find them without merit and
requiring no substantive discussion.

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