United States v. Ronnie Westmoreland

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4173

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

RONNIE GRAY WESTMORELAND,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00101-NCT-1)

Submitted: September 30, 2013 Decided: October 10, 2013

Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, Mireille P.
Clough, Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Andrew C. Cochran, Special Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Ronnie Gray Westmoreland was convicted after a jury

trial of being a felon in possession of a firearm, in violation

of 18 U.S.C. §§ 922(g)(1), 924(e) (2006). The district court

sentenced Westmoreland to 235 months’ imprisonment. On appeal,

Westmoreland asserts that: (1) the district court erred in

denying his motion to suppress statements made to law

enforcement officers; (2) the evidence was insufficient to

sustain a conviction; (3) his 235-month sentence is

unreasonable; (4) the district court erred in sentencing him

pursuant to the Armed Career Criminal Act (“ACCA”); and (5)

§ 922(g)(1) exceeds Congress’ authority under the Commerce

Clause. For the following reasons, we affirm.

(1) Motion to Suppress. Westmoreland first contends

that the district court erred in denying the motion to suppress

because he was entitled to, but did not receive, Miranda

warnings, see Miranda v. Arizona, 384 U.S. 436 (1966), during

questioning by law enforcement. We review factual findings

underlying the district court’s denial of a motion to suppress

for clear error and its legal conclusions de novo, United States

v. Foster, 634 F.3d 243, 246 (4th Cir. 2011), in the light most

favorable to the government, United States v. Farrior, 535 F.3d

210, 217 (4th Cir. 2008).

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“Statements obtained from [a] defendant during

custodial interrogation are presumptively compelled,” in

violation of the Fifth Amendment, unless the government shows

“that law enforcement officers (1) adequately informed the

defendant of his Miranda rights and (2) obtained a waiver of

those rights.” United States v. Cardwell, 433 F.3d 378, 388-89

(4th Cir. 2005) (footnote omitted). To determine whether a

defendant was in custody for Miranda purposes, courts are to

determine “first, what were the circumstances surrounding the

interrogation; and second, given those circumstances, would a

reasonable person have felt he or she was not at liberty to

terminate the interrogation and leave.” Thompson v. Keohane,

516 U.S. 99, 112 (1995) (footnote omitted). In other words,

“[a]n individual is in custody when, under the totality of the

circumstances, a suspect’s freedom from action is curtailed to a

degree associated with formal arrest.” United States v.

Colonna, 511 F.3d 431, 435 (4th Cir. 2007) (internal quotation

marks omitted).

The testimony presented at the suppression hearing

establishes that police officers encountered Westmoreland at a

private residence, that Westmoreland agreed to speak with an

officer, and that he followed the requesting officer into the

kitchen for a relatively brief conversation. There is no

evidence that the officers limited Westmoreland’s freedom of

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movement in any way or drew their firearms, and the record

reflects that the officer who spoke to Westmoreland did so in a

cordial and non-threatening tone of voice. Because a reasonable

person in Westmoreland’s position would have understood that he

was free to leave and was not in custody, the district court did

not err in denying Westmoreland’s motion to suppress.

(2) Sufficiency of the Evidence. Westmoreland next

contends that without fingerprint or DNA evidence from the

firearm, insufficient evidence supported his conviction. “A

defendant challenging the sufficiency of the evidence . . .

bears a heavy burden.” United States v. Beidler, 110 F.3d 1064,

1067 (4th Cir. 1997) (internal quotation marks omitted). We

will uphold the jury’s verdict “if, viewing the evidence in the

light most favorable to the government, it is supported by

substantial evidence.” United States v. Reid, 523 F.3d 310, 317

(4th Cir. 2008). “Substantial evidence is evidence that a

reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.” Id. (internal quotation marks omitted).

In reviewing for substantial evidence, we consider both

circumstantial and direct evidence and allow the government all

reasonable inferences from the facts shown to those sought to be

established. United States v. Harvey, 532 F.3d 326, 333 (4th

Cir. 2008).

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“To show a § 922(g)(1) violation, the government must

prove three elements: (i) that the defendant was a convicted

felon at the time of the offense; (ii) that he voluntarily and

intentionally possessed a firearm; and (iii) that the firearm

traveled in interstate commerce at some point.” United States

v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001) (internal

quotation marks omitted). Our review of the trial evidence

convinces us that sufficient evidence supports Westmoreland’s

conviction. ∗

(3) Sentence. Westmoreland next asserts that his

235-month sentence is unreasonable. Specifically, Westmoreland

contends that the district court erred in failing to properly

consider the factors set forth in 18 U.S.C. § 3553(a) (2006).

We review a sentence for reasonableness, applying a “deferential

abuse-of-discretion standard.” Gall v. United States, 552 U.S.

38, 41 (2007). This review requires consideration of both the

procedural and substantive reasonableness of a sentence. Id. at

51. Procedurally, after determining whether the district court

correctly calculated the advisory Guidelines range, we must

decide whether the court considered the § 3553(a) factors,

analyzed the arguments presented by the parties, and

∗
The parties stipulated to Westmoreland’s status as a
convicted felon.

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sufficiently explained the selected sentence. United States v.

Lynn, 592 F.3d 572, 575-76 (4th Cir. 2010); United States v.

Carter, 564 F.3d 325, 330 (4th Cir. 2009).

Once we have determined that the sentence is free of

significant procedural error, we then review its substantive

reasonableness, “tak[ing] into account the totality of the

circumstances.” Gall, 552 U.S. at 51. If the sentence is

within the appropriate Guidelines range, we apply a presumption

on appeal that the sentence is reasonable. United States v.

Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a

presumption is rebutted only when the defendant demonstrates

“that the sentence is unreasonable when measured against the

§ 3553(a) factors.” United States v. Montes-Pineda, 445 F.3d

375, 379 (4th Cir. 2006) (internal quotation marks omitted).

In this case, the district court correctly calculated

and considered the advisory Guidelines range and heard argument

from counsel and allocution from Westmoreland. The district

court considered the § 3553(a) factors and explained that the

within-Guidelines sentence of 235 months’ imprisonment was

warranted in light of Westmoreland’s history and

characteristics. Westmoreland offers no argument to rebut the

presumption on appeal that his within-Guidelines sentence is

substantively reasonable. Accordingly, we conclude that the

6
district court did not abuse its discretion in sentencing

Westmoreland.

(4) Armed Career Criminal Sentence. Westmoreland

next argues that the district court erred in sentencing him as

an armed career criminal. Because Westmoreland raises this

claim for the first time on appeal, our review is for plain

error. Lynn, 592 F.3d at 577-78. To establish plain error,

Westmoreland must demonstrate that an error occurred, the error

was plain, and the error affected his substantial rights. Id.

at 577.

A defendant convicted of being a felon in possession

of a firearm who has three prior convictions for a violent

felony or serious drug offense is subject to sentencing as an

armed career criminal. 18 U.S.C. § 924(e)(1); U.S. Sentencing

Guidelines Manual § 4B1.4 (2012). Westmoreland contends that

his prior North Carolina convictions for breaking and entering

are not qualifying convictions for purposes of the ACCA. We

have held to the contrary on several occasions. United States

v. Thompson, 588 F.3d 197 (4th Cir. 2009); United States v.

Thompson, 421 F.3d 278 (4th Cir. 2005) (same); United States v.

Bowden, 975 F.2d 1080 (4th Cir. 1992) (same). The Supreme

Court’s recent decision in Descamps v. United States, 133 S. Ct.

2276 (2013), does not affect our conclusion.

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(5) Commerce Clause. Finally, Westmoreland asserts

that 18 U.S.C. § 922(g) exceeds Congress’ authority under the

Commerce Clause because the mere fact that a weapon crossed a

state line is insufficient to demonstrate that it affected

interstate commerce. Although Westmoreland acknowledges that

this argument is foreclosed by our holding in United States v.

Gallimore, 247 F.3d 134 (4th Cir. 2001), he questions

Gallimore’s validity in light of the Supreme Court’s holdings in

United State v. Lopez, 514 U.S. 549 (1995), United States v.

Morrison, 529 U.S. 598 (2000), and Jones v. United States, 529

U.S. 848 (2000). In Gallimore, which was decided after Lopez,

Morrison, and Jones, we held that that the interstate nexus

component of § 922(g) is established when the Government can

demonstrate “that a firearm was manufactured outside the state

where the defendant possessed it.” Gallimore, 247 F.3d at 138.

One panel of this court may not overrule the precedent set by a

prior panel. United States v. Rivers, 595 F.3d 558, 564 n.3

(4th Cir. 2010). Thus, this claim lacks merit.

Accordingly, we affirm the district court’s judgment.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before

this court and argument will not aid the decisional process.

AFFIRMED