UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4589
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN A. BAKER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:06-cr-00219)
Submitted: March 25, 2009 Decided: April 21, 2009
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Paul G. Gill,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Richard D.
Cooke, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin A. Baker was convicted by a jury of possession
with intent to distribute cocaine base, possession of cocaine
base, and possession of a firearm by a felon, in violation of 18
U.S.C. § 922(g)(1); 21 U.S.C. §§ 841(a)(1), 844 (2006). Baker
was sentenced to a total of 262 months’ imprisonment. Finding
no error, we affirm.
On appeal, counsel contends that the district court
erred in denying the motion to suppress a firearm and cocaine
base recovered from the roadside following a chase by law
enforcement officers. We review the factual findings underlying
the denial of a motion to suppress for clear error and the
court’s legal conclusions de novo. United States v. Branch, 537
F.3d 328, 337 (4th Cir. 2008), cert. denied, 129 S. Ct. 943
(2009). The evidence is construed in the light most favorable
to the prevailing party below. United States v. Uzenski, 434
F.3d 690, 704 (4th Cir. 2006).
Counsel does not challenge the initial encounter
between law enforcement and Baker. Rather, counsel argues, as
he did in the district court, that the improper seizure occurred
when officers retained Baker’s identification card, surrounded
his vehicle, and threatened to physically remove him therefrom.
A seizure implicating the Fourth Amendment does not occur until
an “officer, by means of physical force or show of authority,
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has in some way restrained the liberty of” the individual.
Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968). Moreover, a seizure
requires submission to the physical force or show of authority.
California v. Hodari D., 499 U.S. 621, 626 (1991). Thus, the
individual “who flees the police in response to an assertion of
authority has not been seized . . . .” United States v. Brown,
401 F.3d 588, 594 (4th Cir. 2005).
When officers instructed Baker to exit his vehicle, he
rolled up the window, locked the door, and refused. Despite the
escalation of the situation, Baker continued to refuse.
Although he eventually rolled down his window slightly and
stated that the door was open, this was not a submission to
authority but rather a ruse to afford him the opportunity to
engage his gear shift and speed off. As it is clear that Baker
did not submit to the officers’ show of authority, a seizure did
not occur. Additionally, because Baker abandoned the firearm
and cocaine base by throwing them out of his window during the
pursuit, he cannot challenge their seizure. See United
States v. Stevenson, 396 F.3d 538, 546 (4th Cir. 2005). Thus,
we conclude the district court did not err in denying the motion
to suppress.
Counsel additionally contends that Baker’s sentence is
unreasonable because it “is much longer than necessary.” When
determining a sentence, the district court must calculate the
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appropriate advisory Guidelines range and consider it in
conjunction with the factors set forth in 18 U.S.C. § 3553(a)
(2006). Gall v. United States, 128 S. Ct. 586, 596 (2007).
Appellate review of a district court’s imposition of a sentence,
“whether inside, just outside, or significantly outside the
Guidelines range,” is for abuse of discretion. Id. at 591.
Sentences within the applicable Guidelines range may be presumed
by the appellate court to be reasonable. United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
The district court followed the necessary procedural
steps in sentencing Baker, appropriately treating the Sentencing
Guidelines as advisory, properly calculating and considering the
applicable Guidelines range, and referencing § 3553(a). While
Baker asserts that the court erred in failing to specifically
discuss the § 3553(a) factors, a district court need not
“robotically tick through . . . every subsection.” United
States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). The
materials in the joint appendix establish that the court
actively discussed the career offender guideline provision and
sentencing factors with counsel prior to imposing its chosen
sentence. Furthermore, Baker’s sentence, which is the low end
of the advisory Guidelines range and no greater than the
applicable statutory maximums, see 18 U.S.C. § 924(a)(2) (2006)
(prescribing ten-year maximum for § 922(g) violation); 21 U.S.C.
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§ 841(b)(1)(B) (prescribing forty-year maximum for offenses
involving 5 grams or more of cocaine base); 21 U.S.C. § 844
(prescribing twenty-year maximum for possession of cocaine
base), may be presumed reasonable.
Counsel, however, argues that the career offender
provision does not comport with the goals of sentencing detailed
in § 3553(a). The career offender guideline implements the
directive of 28 U.S.C. § 944(h) (2006), requiring the Sentencing
Commission to specify terms of imprisonment at or near the
applicable statutory maximum for defendants who have been
convicted of a crime of violence or a controlled substance
offense and have two or more prior convictions for crimes of
violence or controlled substance offenses. U.S. Sentencing
Guidelines Manual (“USSG”) § 4B1.1, comment. (backg’d) (2006).
In implementing this directive, the Sentencing Commission
modified the criteria set forth in § 944(h) “to focus more
precisely on the class of recidivist offenders for whom a
lengthy term of imprisonment is appropriate and to avoid
unwarranted sentencing disparities . . . .” Id. (internal
quotation marks and citation omitted). Baker’s prior
convictions of possession with intent to distribute cocaine on
or near school property and assault of a law enforcement officer
place him squarely within the category of defendants to which
the career offender provision applies. See USSG § 4B1.1(a).
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Thus, the district court did not abuse its discretion in
imposing the chosen sentence.
Accordingly, we affirm the judgment of 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
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