UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5248
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRAD EVERETT FORD,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson,
District Judge. (5:07-cr-00061-sgw-1)
Submitted: October 6, 2010 Decided: November 30, 2010
Before NIEMEYER, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles A. Murray, Bonita Springs, Florida, for Appellant.
Julia C. Dudley, United States Attorney, Jeb T. Terrien,
Assistant United States Attorney, Harrisonburg, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brad Everett Ford was convicted after a jury trial of
one count of aiding and abetting the possession with the intent
to distribute marijuana, in violation of 18 U.S.C. § 2 (2006)
and 21 U.S.C. § 841(a)(1), (b)(1)(D) (2006) (“count one”), and
one count of aiding and abetting the possession of firearms in
furtherance of a drug trafficking crime, in violation of
18 U.S.C. §§ 2, 924(c)(1) (2006) (“count two”). The district
court sentenced Ford to 33 months’ imprisonment on count one and
a consecutive sentence of 60 months’ imprisonment on count two,
for a total sentence of 93 months’ imprisonment. On appeal,
Ford asserts that: (1) the district court erred in refusing to
grant his motion to suppress evidence and statements arising
from a September 2007 traffic stop; (2) the district court erred
in denying his Fed. R. Crim. P. 29 motion for judgment of
acquittal because the evidence is insufficient to support his
convictions; (3) the district court erred in denying his motion
for a new trial; and (4) the 93-month prison sentence is
substantively unreasonable. Finding no error, we affirm.
As to Ford’s challenge to the district court’s ruling
on the suppression motion, we review de novo the district
court’s legal conclusions and review for clear error its factual
determinations. United States v. Blake, 571 F.3d 331, 338
(4th Cir. 2009), cert. denied, 130 S. Ct. 1104 (2010). Because
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the district court denied the motion to suppress, we construe
the evidence in the light most favorable to the Government, the
party prevailing below. United States v. Farrior, 535 F.3d 210,
217 (4th Cir. 2008). Ford challenges the district court’s
denial of his motion to suppress on the ground that Trooper
Miller lacked probable cause to search his vehicle.
The Fourth Amendment permits a warrantless search of a
vehicle and any containers or compartments found within it,
where probable cause exists to search the vehicle. United
States v. Ross, 456 U.S. 798, 823-24 (1982); see also
California v. Acevedo, 500 U.S. 565, 570 (1991). This court has
held that the odor of marijuana, without more, emanating from a
properly-stopped vehicle, may provide the requisite probable
cause to support the warrantless search of both the vehicle and
the baggage therein. See United States v. Scheetz, 293 F.3d
175, 183-84 (4th Cir. 2002) (upholding as valid the search of a
knapsack in a car based on officers’ detection of odor of
marijuana); see also United States v. Humphries, 372 F.3d 653,
659 (4th Cir. 2004) (concluding that a police officer has
probable cause to arrest for marijuana possession if the officer
“smells the odor of marijuana in circumstances where the officer
can localize its source to a person”).
Here, Trooper Miller pulled Ford’s vehicle over for
speeding and changing lanes without signaling, and Ford does not
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suggest that Miller acted improperly in doing so. After the
vehicle’s passenger rolled down his window, Miller smelled the
odor of “burnt marijuana” emanating from the vehicle. He
searched the vehicle and the bags contained within it based on
the marijuana odor. Under prevailing Supreme Court and Fourth
Circuit case law, that testimony supports the district court's
conclusion that Miller had probable cause to search the inside
of the vehicle, as well as the bags contained within it.
Ford also challenges the district court’s denial of
the motion to suppress on the ground that Trooper Miller did not
advise him of his rights under Miranda v. Arizona, 384 U.S. 436
(1966), prior to his admission to Miller that he had smoked
marijuana and knew he was going to jail. 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
adequately informed the defendant of his Miranda rights and
obtained a wavier of those rights. United States v. Cardwell,
433 F.3d 378, 388-89 (4th Cir. 2005). To determine whether a
defendant was in custody for purposes of Miranda, 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,
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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). Courts view the inquiry objectively,
questioning whether “a reasonable [perso]n in the suspect’s
position would have understood his situation to be one of
custody.” Id. (internal quotation marks omitted).
We have reviewed the record and conclude that Ford was
not in custody when he told Miller that he had smoked marijuana
and knew he was going to jail. Although Ford made these
statements while sitting in Trooper Miller’s police vehicle with
its doors closed and the windows shut, the reason for detaining
him in that fashion--namely, that the heavy highway traffic and
Ford’s fast speech made Ford hard to hear when Miller initially
talked with him on the highway’s shoulder--militated against
“whatever coercive elements [we]re otherwise normally attendant”
in such a situation. United States v. Manbeck, 744 F.2d 360,
379 (4th Cir. 1984). Additionally, Ford does not point to
anything in Miller’s demeanor or the way in which he conducted
himself that would suggest that Ford was under arrest or being
detained as if he were under arrest. Miller never brandished
any weapon, had physical contact with Ford, threatened him, or
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told him that he was under arrest or otherwise not free to
leave. See Manbeck, 744 F.2d at 379 (concluding that defendant
was not in custody, in part, because officers did not handcuff,
threaten, or pressure defendant). Further, we reject Ford’s
attempt to liken his case to Florida v. Royer, 460 U.S. 491,
501-02 (1983), where the Supreme Court held that the defendant
was effectively “seized” under the Fourth Amendment where law
enforcement officials requested and examined his airline ticket
and identification, identified themselves as narcotics agents,
told the defendant he was suspected of transporting narcotics,
and asked him to accompany them to a police room, while
retaining the ticket and identification and without indicating
he was free to depart. Here, Ford was questioned by only one
officer and, contrary to his assertion, there is no indication
from the record that Trooper Miller retained Ford’s driver’s
license while the two were conversing. In view of the totality
of the circumstances, see United States v. Weaver, 282 F.3d 302,
310 (4th Cir. 2002), we conclude that the district court did not
err in denying Ford’s motion to suppress.
Ford also contends that the district court erred in
denying his Rule 29 motion for judgment of acquittal because the
evidence is insufficient to support the jury’s verdict. We
review de novo the district court’s denial of a Rule 29 motion
for judgment of acquittal. United States v. Reid, 523 F.3d 310,
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317 (4th Cir. 2008). 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). This court will uphold the jury’s verdict “if viewing
the evidence in the light most favorable to the [G]overnment, it
is supported by substantial evidence.” Reid, 523 F.3d at 317.
“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, this court considers both circumstantial
and direct evidence and allows 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).
Ford asserts that the evidence is insufficient to
support his conviction for count one because the Government
failed to prove that he constructively possessed marijuana found
in his vehicle. A conviction for possession with the intent to
distribute may be based on constructive possession. United
States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992). “A person
may have constructive possession of contraband if he has
ownership, dominion, or control over the contraband or the
premises or vehicle in which the contraband was concealed.”
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United States v. Herder, 594 F.3d 352, 358 (4th Cir.), cert.
denied, 130 S. Ct. 3440 (2010). “Proof of constructive
possession requires proof the defendant had knowledge of the
presence of the contraband, but constructive possession may be
established by either circumstantial or direct evidence. Either
way, a fact finder may properly consider the totality of the
circumstances surrounding the defendant’s arrest and his alleged
possession.” Id. (internal citations, quotation marks, and
alteration omitted).
After review of the record, we conclude that the
evidence was sufficient to support Ford’s conviction on count
one. Ford was the driver and owner of the vehicle and does not
contest that he exercised, or had the power to exercise,
dominion and control over the drugs found therein. Further,
viewed in the light most favorable to the Government, there was
ample evidence from which the jury could infer Ford’s knowledge
of the drugs in the vehicle. Ford was nervous and talking at a
high rate of speed to the point of being difficult to
understand, admitted to Trooper Miller that anything found in
the vehicle was his responsibility, and urged him to place any
charges on him for anything found in the vehicle. Additionally,
because the evidence is sufficient to support Ford’s conviction
on count one, we reject his challenge to the sufficiency of the
evidence supporting count two, a challenge premised on the
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argument that the evidence is insufficient to support his
conviction on count one, the underlying drug offense.
With respect to Ford’s challenge to the district
court’s denial of his motion for a new trial, we review the
district court’s denial of a motion for a new trial, even when
predicated on an alleged violation of Brady v. Maryland,
373 U.S. 83 (1963), or Giglio v. United States, 405 U.S. 150
(1972), for abuse of discretion. See United States v. Stokes,
261 F.3d 496, 502 (4th Cir. 2001). Under this standard, “[we]
may not substitute [our] judgment for that of the district
court; rather, we must determine whether the court’s exercise of
discretion, considering the law and the facts, was arbitrary or
capricious.” United States v. Mason, 52 F.3d 1286, 1289
(4th Cir. 1995). In Ford’s view, the Government’s failure to
disclose to the defense the entire criminal complaint prepared
by Trooper Miller after Ford’s arrest contravened Brady.
To secure a new trial on the ground that the
Government contravened its obligations under Brady, Ford had the
burden of showing that (1) the undisclosed evidence was
favorable to him; (2) the evidence was material; and (3) the
prosecution possessed the evidence, yet failed to disclose it.
Stokes, 261 F.3d at 502. After review of the record, we
conclude that Ford fails to make this showing. The criminal
complaint Miller prepared was filed in state court and was a
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court record available to both the Government and Ford, and no
record evidence support’s Ford’s contention that the Government
possessed the entire complaint but failed to disclose it to the
defense.
Finally, with respect to Ford’s sentence, we review it
under a “deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41 (2007). This review entails
appellate consideration of both the procedural and substantive
reasonableness of a sentence. Id. at 51. Ford, however, does
not contest the procedural reasonableness of his sentence.
In determining whether a sentence is substantively
reasonable, this court “tak[es] into account the ‘totality of
the circumstances, including the extent of any variance from the
Guidelines range.’” United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007) (quoting Gall, 552 U.S. at 51). This court
accords a sentence within a properly-calculated Guidelines range
an appellate presumption of reasonableness. United States v.
Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008). Such a presumption
is rebutted only by showing “that the sentence is unreasonable
when measured against the [18 U.S.C.] § 3553(a) [(2006)]
factors.” United States v. Montes-Pineda, 445 F.3d 375, 379
(4th Cir. 2006) (internal quotation marks omitted). Further,
“[a] statutorily required sentence . . . is per se reasonable.”
Farrior, 535 F.3d at 224.
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Here, the 33-month sentence on count one is within the
applicable Guidelines range, see U.S. Sentencing Guidelines
Manual (2007), and Ford’s citation to data from the United
States Sentencing Commission suggesting that a defendant’s
general risk of recidivism declines with age does not establish
that Ford’s 33-month prison sentence was unreasonable when
measured against the factors listed at § 3553(a). Moreover,
Ford’s statutorily-required consecutive sentence on count two is
per se reasonable. The sentence is substantively reasonable,
and we therefore conclude that the district court did not abuse
its discretion in sentencing Ford.
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 the
court and argument would not aid the decisional process.
AFFIRMED
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