UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5050
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARSHALL MONROE,
Defendant - Appellant.
No. 08-5051
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES EDWARD TYER, a/k/a James Edward Tyler, a/k/a Tyer
Edward James, a/k/a Jay, a/k/a Tyler Edward James,
Defendant - Appellant.
No. 08-5052
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER ROGERS,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:08-cr-00043-CMH-1; 1:08-cr-00043-CMH-2;
1:08-cr-00043-CMH-3)
Submitted: August 19, 2010 Decided: September 20, 2010
Before MOTZ, SHEDD, and AGEE, Circuit Judges.
Affirmed in part, vacated and remanded in part by unpublished
per curiam opinion.
Paul P. Vangellow, PAUL P. VANGELLOW, PC, Falls Church,
Virginia, Bruce A. Johnson, Jr., Bowie, Maryland, Douglas A.
Steinberg, Alexandria, Virginia, for Appellants. Dana J.
Boente, Acting United States Attorney, Michael E. Rich,
Assistant United States Attorney, Tino M. Lisella, Allison
Ickovic, Special Assistant United States Attorneys, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Marshall Antonio Monroe, James Edward Tyer, and
Christopher Rondell Rogers were charged with numerous offenses
related to a series of robberies that occurred on October 28 and
30, 2007. A jury convicted them of Hobbs Act conspiracy, 18
U.S.C. § 1951 (2006) (Count One), and three Hobbs Act robberies,
18 U.S.C. § 1951 (Counts Two, Three, Four), in connection with
the October 28 robberies. Monroe and Tyer also were convicted
of Hobbs Act robbery in connection with the October 30 robbery
(Count Five), three counts of brandishing a firearm during a
crime of violence, 18 U.S.C.A. § 924(c)(1)(A)(ii) (West Supp.
2010) (Counts Six, Seven, Eight), in connection with the
October 28 robberies, and possession of an unregistered firearm,
26 U.S.C. §§ 5845(a), 5861(d), 5871 (2006) (Count Thirteen).
Monroe was convicted of an additional § 924(c)(1)(A)(ii)
violation (Count Nine) in connection with the October 30
robbery. Tyer was convicted on two counts of being a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1) (2006) (Counts
Eleven, Twelve). Finally, Rogers was convicted of one
§ 922(g)(1) violation (Count Ten).
On motion of the United States, the district court
dismissed Counts Six-Ten. Rogers was sentenced to 240 months in
prison. Tyer and Monroe each received an aggregate sentence of
3
300 months. In these consolidated appeals, the Appellants
challenge their convictions and sentences.
I
Tyer contends that the district court erred when it
denied his motion to suppress evidence seized during the search
of a vehicle in which he was a passenger on October 30, 2007.
We review the factual findings underlying a motion to suppress
for clear error, and the legal determinations de novo. United
States v. Wilson, 484 F.3d 267, 280 (4th Cir. 2007). When
evaluating the denial of a suppression motion, we consider the
evidence in the light most favorable to the Government, the
prevailing party below. United States v. Uzenski, 434 F.3d 690,
704 (4th Cir. 2006).
Brief investigatory stops of persons or vehicles that
fall short of traditional arrest are protected by the Fourth
Amendment. United States v. Arvizu, 534 U.S. 266, 273 (2002).
A stop satisfies the Fourth Amendment if the officer‟s action is
supported by reasonable suspicion to believe that criminal
activity „may be afoot.‟” Id. (quoting United States v.
Sokolow, 490 U.S. 1, 7 (1989)). To determine whether the
necessary reasonable suspicion existed, a court “must look at
the „totality of the circumstances‟ . . . to see whether the
4
detaining officer ha[d] a „particularized and objective basis‟
for suspecting legal wrongdoing.” Id. at 273. “Reasonable
suspicion” that criminal activity is afoot “need not rise to the
level required for probable cause, and it falls considerably
short of satisfying a preponderance of the evidence standard.”
Id.
Here, the totality of the circumstances justified the
traffic stop. The officer who initiated the traffic stop
observed the car immediately after officers investigating the
robbery of a Sunoco station broadcast a description of the
suspects and their vehicle. Although the car was described in
the broadcast as a Taurus, the officer knew that a Taurus and a
Sable are nearly identical. Further, the Sable was traveling
from the direction where the robbery had just occurred.
Finally, the stop occurred within minutes of the robbery. These
circumstances were sufficient to give rise to the requisite
reasonable suspicion justifying the stop of the vehicle.
While Tyer had the right to challenge the traffic
stop, see Brendlin v. California, 551 U.S. 249, 259 (2007), he
had no right under the Fourth Amendment to challenge the ensuing
search of the vehicle because he lacked a legitimate expectation
of privacy with respect to the vehicle that belonged to its
driver, Nadia Childs. See Rakas v. Illinois, 439 U.S. 128, 148-
5
49 (1978); United States v. Rusher, 966 F.2d 868, 874 (4th Cir.
1992). We conclude that the search did not violate Tyer‟s
Fourth Amendment rights and that the denial of the suppression
motion was not an abuse of discretion.
II
The Appellants contend that there was insufficient
evidence to establish their identities as participants in the
October 28 robberies and Monroe‟s and Tyer‟s identities as the
October 30 robbers. They argue that the evidence against them
consisted primarily of the testimony of Childs, which they claim
was unreliable. Further, they attack the credibility of
prosecution witnesses Steven Scott and Delonte Green. They also
maintain that the only forensic evidence linking any of them to
the robberies, Monroe‟s thumb prints found at one crime scene,
should not have been admitted.
When a defendant challenges the sufficiency of the
evidence, we consider whether the evidence, when viewed in the
light most favorable to the Government, was sufficient for a
rational trier of fact to have found the essential elements of
the crime beyond a reasonable doubt. Glasser v. United States,
315 U.S. 60, 80 (1942); United States v. Cameron, 573 F.3d 179,
183 (4th Cir. 2009). We will sustain a verdict supported by
6
substantial evidence. Glasser, 315 U.S. at 80. We do not
review the credibility of witnesses, and we assume the jury
resolved all contradictions in the testimony in favor of the
Government. United States v. Sun, 278 F.3d 302, 312 (4th Cir.
2002).
The evidence was more than sufficient to prove beyond
a reasonable doubt that Monroe, Tyer, and Rogers1 robbed the
three 7-Eleven stores on October 28, and that Monroe and Tyer
robbed the Sunoco on October 30. Childs‟ testimony alone is
enough to establish identity. She testified that, on the night
of October 27, she drove Rogers to his home. He went inside and
returned with a black bag that contained a gun. They then drove
to Oxon Hill, Maryland, to pick up Tyer. As they drove, Rogers
mentioned “making a move”; Childs understood this turn of phrase
to mean that Rogers was planning a robbery. Monroe was with
Tyer when Childs and Rogers located Tyer. With Rogers driving
and Childs in the passenger seat, the four left for Virginia.
1
Although Rogers did not enter any of the 7-Elevens, he is
nonetheless guilty of Hobbs Act robbery. Whoever aids or abets
the commission of an offense against the United States is
punishable as a principal to the offense. 18 U.S.C. § 2 (2006).
Rogers not only supplied one of the guns used in the robberies,
but he also drove Childs‟ car during the robbery spree on
October 28 and received some of the robbery proceeds.
7
Childs testified that she was with Rogers, Tyer, and
Monroe when the three robberies were committed early in the
morning of October 28. Rogers served as the driver, and Monroe
and Tyer, who were both armed, entered and robbed the three
stores. Childs identified the jackets that Monroe and Tyer wore
during the robberies. Childs stated that she exited the car at
one 7-Eleven and identified a surveillance photograph of herself
at that store.
Childs testified that she was looking for Rogers late
at night on October 29, when she ran into Tyer. He joined her,
as did Monroe, Steven Scott, and Delonte Green. Tyer asked
Childs, who was driving, if she wanted to “make a move.” When
they approached the Sunoco early on October 30, Tyer told Childs
to turn in and park behind the building. Tyer and Monroe
entered the store. They were wearing the same jackets they had
worn on October 28. When they returned to the car, Childs drove
away. The car soon was stopped by the police.
The convictions could be sustained on Childs‟
testimony alone. Her testimony is supported by other evidence,
including a similar modus operandi in each robbery.
Additionally, the robbers who entered the stores wore the same
jackets during the four robberies, and Monroe and Tyer were
found in possession of those jackets when they were arrested.
8
Additionally, Scott and Green testified that Monroe and Tyer
committed the Sunoco robbery. Finally, Monroe‟s thumb prints
were found on the cash register drawer grabbed by a robber
during the second robbery. Contrary to Appellants‟ argument,
fingerprint evidence is admissible at trial. United States v.
Crisp, 324 F.3d 261 (4th Cir. 2003). Even if this evidence were
not properly admitted, however, the error would be harmless,
given the remaining evidence, which overwhelmingly established
identity.
III
Tyer contends that the district court improperly
prevented his attorney from thoroughly cross-examining witnesses
Scott and Green. Their testimony, Tyer argues, was crucial to
the Government‟s case. Through cross-examination, Tyer claims
that he would have established that both Scott and Green were
biased and motivated to offer testimony favorable to the
Government.
“[E]xposure of a witness‟ motivation in testifying is
a proper and important function of the constitutionally
protected right of cross-examination.” Delaware v. Van Arsdall,
475 U.S. 673, 678-79 (1986) (internal quotation marks omitted).
However, the district court has “wide latitude insofar as the
9
Confrontation Clause is concerned to impose reasonable limits on
such cross-examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the
witness‟ safety, or interrogation that is repetitive or only
marginally relevant.” Id. at 679. We review the district
court‟s limitations on cross-examination for abuse of
discretion. United States v. Ayala, 601 F.3d 256, 273 (4th Cir.
2010). “The critical question . . . is whether the defendant is
allowed an opportunity to examine a witness[‟] subjective
understanding of his bargain with the government, for it is this
understanding which is of probative value on the issue of bias.”
United States v. Ambers, 86 F.3d 173, 176 (4th Cir. 1996).
During cross-examination of Scott, Tyer‟s attorney
asked several questions that attacked Scott‟s credibility and
suggested bias. After Scott had denied having an “understanding
with the federal government as to what benefits” he might
receive for his testimony, counsel inquired whether the
Government had promised him anything in exchange for his
testimony. The court sustained the Government‟s objection to
this question. Tyer maintains that the court‟s ruling precluded
his attorney from thoroughly cross-examining Scott as to
possible bias and motive to fabricate. We find his argument
unpersuasive and conclude that the district court did not abuse
10
its discretion in sustaining the objection because the question
about promises from the Government was repetitive of the
preceding question.
Nor did the district court err in barring any
questions about Green‟s juvenile convictions and permitting only
questions about his adult offenses. First, the district court‟s
ruling was in accordance with Rule 609(d) of the Federal Rules
of Evidence. To the extent that Tyer contends that limiting his
cross-examination of Green violated his rights under the
Confrontation Clause, his claim has no merit. See United States
v. Ayala, 601 F.2d at 273.
IV
Tyer argues that the district court erred when it
failed to grant his motions for a new trial or a mistrial after
the prosecutor allegedly argued facts not in evidence during
closing argument. We review a claim of prosecutorial misconduct
to determine “‛whether the [misconduct] so infected the trial
with unfairness as to make the resulting conviction a denial of
due process.‟” United States v. Caro, 597 F.3d 608, 624 (4th
Cir. 2010) (quoting Darden v. Wainwright, 477 U.S. 168, 181
(1986)). To prevail under this standard, the defendant must
show that “the prosecutor‟s remarks or conduct were improper
11
and, second . . . that such remarks or conduct prejudicially
affected his substantial rights so as to deprive him of a fair
trial.” United States v. Scheetz, 293 F.3d 175, 185 (4th Cir.
2002).
We conclude that any misstatement by the prosecutor
did not constitute a denial of due process. The evidence of
guilt was overwhelming. Further, the remarks at issue were
isolated and not intentionally placed before the jury in bad
faith with an intent “to divert the jury‟s attention to
extraneous matters.” United States v. Wilson, 135 F.3d 291, 299
(4th Cir. 1998).
V
Rogers‟ advisory Guidelines range for the robbery
counts was 97-121 months,2 Monroe‟s was 63-78 months, and Tyer‟s
was 78-97 months. Rogers was sentenced to 240 months in prison.
2
The district court did not explicitly rule on those
objections. However, based on the court‟s finding that Rogers‟
advisory Guidelines range was 97-121 months, it appears that the
court implicitly agreed that Rogers should have been in criminal
history category II. It also appears that the court overruled
Rogers‟ objections to the enhancements to his offense level. On
remand, the district court should explain its calculation of
Rogers‟ Guidelines range.
12
Tyer and Monroe each received 240 months for the robbery counts
and a consecutive sixty-month sentence for the firearm offenses.
The Appellants argue that their sentences are
unreasonable under Gall v. United States, 552 U.S. 38, 51
(2007), because they did not receive the required individualized
assessments that Gall demands, the district court did not
properly analyze the 18 U.S.C. § 3553(a) (2006) sentencing
factors, and meaningful appellate review is therefore
impossible. We agree and therefore vacate the sentences and
remand for resentencing.
We review a sentence for reasonableness, applying an
abuse-of-discretion standard. Gall, 552 U.S. at 51. In
conducting our review, we first examine the sentence for
“significant procedural error,” including “failing to calculate
(or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence—including
an explanation for any deviation from the Guidelines range.”
Id. With respect to the explanation of the sentence, we have
stated, “Regardless of whether the district court imposes an
above, below, or within-Guidelines sentence, it must place on
the record an individualized assessment based on the particular
13
facts of the case before it.” United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (internal quotation marks omitted).
A claim of procedural sentencing error is preserved
“`by informing the court—when the court ruling is made or
sought—of the action the party wishes the court to take, or the
party‟s objection to the court‟s action and the grounds for that
objection.‟” United States v. Lynn, 592 F.3d 572, 577-78 (4th
Cir. 2010) (quoting Fed. R. Crim. P. 51(b)). The standard of
review employed when assessing the procedural adequacy of a
sentence depends upon whether the error asserted was properly
preserved in the district court. “[I]f a party repeats on
appeal a claim of procedural sentencing error . . . which it has
made before the district court, we review for abuse of
discretion. If we find such abuse, we reverse unless we
conclude that the error was harmless.” Id. The Government
bears the burden of establishing that an error was harmless,
i.e., that the error did not affect the defendant‟s substantial
rights. United States v. Rodriguez, 433 F.3d 411, 415-16 (4th
Cir. 2006). An error affects a defendant‟s substantial rights
if the sentence imposed “was longer than that to which he would
otherwise be subject,” United States v. Angle, 254 F.3d 514, 518
(4th Cir. 2001); cf. Lynn, 592 F.3d at 580.
14
If we conclude that the sentence is procedurally
reasonable, we then “consider the substantive reasonableness of
the sentence imposed under an abuse-of-discretion standard.”
Gall, 552 U.S. at 51. At this stage, we “take into account the
totality of the circumstances.” Id.
Prior to sentencing, Monroe submitted a “Position on
Sentencing.” With respect to the § 3553(a) factors, Monroe
observed that the robbers used unloaded weapons and no victim
sustained a serious injury. Rogers submitted a sentencing
memorandum objecting to enhancements under U.S. Sentencing
Guidelines Manual §§ 2B3.1(b)(2)(B), § 2B3.1(b)(A) (2007) on the
ground that the enhancements were based on acquitted conduct,
the jury having found him not guilty on Counts Six-Eight. With
respect to the § 3553(a) factors, Rogers argued that he was
young, had worked for the majority of his young life, and was a
responsible family member. Rogers asked for a sentence at the
bottom of his advisory Guidelines range, which he claimed should
be 41-51 months.
The Defendants were sentenced at the same proceeding.
Rogers objected to the above enhancements and to his placement
in criminal history category III. Although Tyer had no
objections to his PSR, his attorney asked that he be sentenced
at the bottom of his Guidelines range, “tak[ing] into account
15
that he‟s a young man . . . and even a sentence at the bottom of
the guidelines will [be] a significant period of incarceration.”
Monroe‟s attorney referred to the position statement and
reminded the court that the weapons were unloaded and that
little money was stolen. He also described Monroe‟s “almost
catastrophic upbringing,” and noted that Monroe was young and
“relatively new to the criminal justice system.” Counsel asked
for a sentence at the low end of Monroe‟s Guidelines range.
The district court determined that Rogers‟ advisory
Guidelines range was “properly assessed at 97-121 months.”3 The
court then stated:
I also find that the guidelines in this case are too
low to meet the needs of punishment and deterrence for
the conduct that has occurred here.
I‟ve spent some . . . time going through the
guidelines and going upward in various steps, as I‟m
3
According to his PSR, Rogers‟ advisory Guidelines range
was 108-135 months, representing a total offense level of 29 and
a criminal history category of III. The district court did not
explicitly rule on Rogers‟ objections to his PSR. However,
based on the ruling that his advisory Guidelines range was 97-
121 months, it appears that the court implicitly sustained
Rogers‟ objection to his placement in criminal history category
III, agreeing that he should be in category II, and overruled
his objections to the offense level enhancements. A criminal
history category of II and offense level of 29 yields an
advisory Guidelines range of 97-121 months. On remand, the
court should explain its calculation of Rogers‟ Guidelines
range.
16
supposed to do, to find a range in those guidelines
that would properly address this conduct. There were
four robberies over two nights, the use of firearms,
the use of a sawed-off shotgun, one victim was
injured. It‟s just fortunate that all of them weren‟t
injured or someone killed.
I find that the maximum sentence in this case is the
least sentence that meets the needs of punishment and
deterrence. For that reason, Mr. Rogers, it will be
the sentence of the Court that as to Counts 1, 2, 3,
and 4, you be committed to . . . a term of 240 months.
. . .
The court next sentenced Tyer. The court stated:
Well, what I previously said applies to your case as
well, Mr. Tyer. I believe that the maximum sentence
for these robberies is the least sentence that meets
the needs of punishment and deterrence in this case.
As to Counts 1, 2, 3, 4, and 5, it will be the
sentence of the Court that you . . . serve a term of
240 months. . . . As to Counts 11 [through] 13, it
will be the sentence of the Court that you . . . serve
a term of 60 months.
The court then sentenced Monroe:
[F]or the reasons that I‟ve already stated, Mr.
Monroe, as to Counts 1, 2, 3, 4, and 5, it will be the
sentence of the Court that you . . . serve a term of
240 months. . . . As to Count 13, it will be the
sentence of the Court that you . . . serve a term of
60 months.
The Appellants complain that their sentences are
unreasonable under Gall. Rogers also contends, as he did below,
that his advisory Guidelines range was improperly calculated
because his offense level was enhanced based on acquitted
conduct.
17
By asking for sentences at the low end of their
respective advisory Guidelines ranges, Monroe and Tyer preserved
their claims of procedural Gall error. See United States v.
Lynn, 592 F.3d at 577, 581. The district court effectively
engaged in no individualized assessment but instead simply
incorporated the rationale used in sentencing Rogers into his
rationales for sentencing Tyer and Monroe. Nor did the court
address the arguments in support of the contention that certain
§ 3553(a) factors warranted the requested sentences. This
constitutes error. See United States v. Carter, 564 F.3d at
328. Further, the error affected Monroe‟s and Tyer‟s
substantial rights because their variant, 240-month sentences on
the robbery counts were significantly higher than their
respective advisory Guidelines ranges of 63-78 months and 78-97
months.
Rogers initially contends that the district court
improperly overruled his objections to the enhancements based on
acquitted conduct. The claim is without merit. We recently
observed that such an “argument is nullified by clear Supreme
Court and Fourth Circuit precedent holding that a sentencing
court may consider uncharged and acquitted conduct in
determining a sentence, as long as that conduct is proven by a
preponderance of the evidence.” United States v. Grubbs, 585
18
F.3d 793, 799 (4th Cir. 2009), cert. denied, S. Ct. ___
(2010) (No. 09-9104). This rule applies even after United
States v. Booker, 543 U.S. 220 (2005). Id. Here, a
preponderance of the evidence established that Rogers supplied
one of the guns used during the commission of the three October
28 robberies. Therefore, the sentencing enhancements at issue
were proper.
Rogers‟ request for a sentence at the low end of his
advisory Guidelines range preserved his claim of procedural Gall
error. See United States v. Lynn, 592 F.3d at 581. While the
district court gave a more extensive explanation for imposing a
variant sentence on Rogers than it did for Monroe and Tyer, we
conclude that the court nonetheless committed procedural error
by failing to make the required individualized assessment. The
rationale offered for Rogers‟ sentence describes the crime spree
as a whole, rather than Rogers‟ particular role within the
spree. In fact, the district court‟s words better describe
Monroe‟s and Tyer‟s actions than those of Rogers, who remained
in the getaway car during the three October 28 robberies and was
not with Childs and the others on October 30. For instance, in
sentencing Rogers, the court mentioned four robberies, even
though Rogers was only involved in the three October 28
robberies. Further, the court spoke of injuries to the victims,
19
but Rogers, who did not exit Childs‟ car, was not the person who
struck the clerks. Another factor influencing our conclusion
that there was an insufficient individualized assessment is the
failure of the court to address Rogers‟ argument that, in light
of certain § 3553(a) factors, he should be sentenced at the low
end of his Guidelines range. See Rita v. United States, 551
U.S. 338, 356 (2007).
Having found that the district court committed error,
our next task is to determine whether the error was harmless.
Considering that Rogers received a variant sentence that
exceeded the top of his Guidelines range by 119 months, we
conclude that the error was not harmless: it affected Rogers‟
substantial rights because he was sentenced well above his
advisory Guidelines range.
VI
We therefore affirm the convictions but vacate the
sentences and remand for resentencing.4 We dispense with oral
argument because the facts and legal contentions are adequately
4
We recognize that the Appellants were sentenced prior to
our decisions in Lynn and Carter and that the court therefore
did not have the benefit of those decisions to guide it at
sentencing.
20
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
21