Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the
Clerk of any formal errors in order that corrections may be made before the
bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 6, 2011 Decided July 15, 2011
No. 10-3062
UNITED STATES OF AMERICA,
APPELLEE
v.
ANTWAN C. DELANEY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cr-00217)
Adam H. Kurland, appointed by the court, argued the cause
and filed the briefs for appellant.
John P. Gidez, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and Roy W. McLeese III, Elizabeth Trosman, and
John P. Dominguez, Assistant U.S. Attorneys.
Before: ROGERS, TATEL, and GRIFFITH, Circuit Judges.
2
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Following the denial of his motion
to suppress evidence seized from his car, Antwan Delaney
entered a conditional plea to unlawful possession of a firearm
and ammunition by a convicted felon, 18 U.S.C. § 922(g)(1),
possession with intent to distribute marijuana, 21 U.S.C.
§ 841(a)(1) & (b)(1)(D), and possession of a firearm during a
drug trafficking offense, 18 U.S.C. § 924(c)(1). On appeal, he
challenges the district court’s finding that he consented to the
search of his car, and the district court’s refusal at sentencing to
consider all of the proffered facts concerning his relevant history
and characteristics, see 18 U.S.C. § 3553(a)(1). Delaney fails to
show that the district court’s credibility finding with regard to
the police officers’ testimony that he gave consent was based on
“‘exceedingly improbable testimony’” and thus clearly
erroneous, United States v. Mapp, 476 F.3d 1012, 1017 (D.C.
Cir. 2007) (quoting United States v. Adamson, 441 F.3d 513,
519 (7th Cir. 2006)). A review of the record indicates that the
inconsistencies between the suppression testimony and one of
the officers’ prior statements were not so glaring — if, indeed,
they were inconsistencies at all — as to render incredible the
officers’ testimony that Delaney consented to the search of his
car. Nor did apparent violations of departmental protocols
unrelated to Delaney’s consent so undermine the officers’
credibility that it was clear error for the district court to credit
their testimony regarding Delaney’s consent.
A remand for resentencing, however, is required, see United
States v. Ayers, 428 F.3d 312, 315–16 (D.C. Cir. 2005), because
the district court must take into account all relevant facts related
to a defendant’s “history and characteristics,” 18 U.S.C.
§ 3553(a)(1). The sentencing record reflects that the district
court appears to have “misunderstood its sentencing authority”
to consider certain proffered facts, United States v. Mouling, 557
3
F.3d 658, 668 (D.C. Cir. 2009), even though the government
agrees Delaney properly requested the court do so.
I.
At 2:40 a.m. on July 11, 2009, two Metropolitan Police
Department (“MPD”) officers responded to a report of potential
domestic violence on the 500 block of D Street S.E. A female
motorist had reported a confrontation with her boyfriend and
worried that he might be headed to her home on D Street,
possibly to retrieve a sawed off shotgun. When Officers Gomez
and O’Donnell arrived at that location, they saw Delaney
standing in the street with other officers, in general proximity to
a Mercury Sable 4-door sedan. Delaney consented to a
pat-down, which revealed no weapons.
Officer Gomez testified before the grand jury1 that as other
police units were departing, “we decided to further investigate
the man with the shotgun call,” and “[w]e asked Mr. Delaney if
the vehicle, if the blue Mercury Sable was his vehicle,” to which
Delaney replied that it was. Grand Jury Hr’g Tr. 7. When
asked, “Now you asked Mr. Delaney if you could search his
vehicle?”, Officer Gomez responded: “Correct.” Then: “And he
responded what?” “He didn’t have a problem with it.” Id. at
7–8. According to Officer Gomez, Delaney was not in
handcuffs, but rather “[h]e was just standing there talking to us.”
Id. at 8. The prosecutor asked Officer Gomez “what was the
tone of voice you used” in asking consent to search the car, and
1
Officer Gomez’s grand jury testimony was apparently made
available to Delaney’s counsel in the district court and became part of
the public record in the district court. See FED. R. CRIM. P. 6(e)(2)(A)
& 6(e)(2)(B); Appellee’s Br. 23 n.17. Delaney has included three
relevant pages of the grand jury testimony as part of the public record
in this court.
4
Officer Gomez responded, “Same tone I’m using now, just a
casual conversation tone.” Id. But at the subsequent
suppression hearing, both Officers O’Donnell and Gomez
testified that it was Officer O’Donnell, not Officer Gomez, who
had asked and received Delaney’s consent to search the car.
Neither officer recalled the precise words Delaney used, but
Officer O’Donnell recalled that they were to the effect of:
“‘[T]hat’s fine, you can go ahead.’” Tr. Feb. 24, 2010, at 25.
Officer Gomez recalled that Delaney stated “almost
emphatically that he didn’t have a problem with us looking
through the vehicle.” Id. at 82. Both officers testified that as
they moved toward the car Delaney began to “weep” or “cry.”
Id. at 14, 72.
Notably, both officers initially spoke of the exchange with
Delaney as though they were a single unit: Officer O’Donnell,
before clarifying that he was the one who asked the questions,
testified that “myself and Officer Gomez asked [Delaney] if this
was his car,” and that “we further asked if he had a problem if
we took a look to make sure there were no firearms inside of the
vehicle.” Id. at 13. Similarly, Officer Gomez testified that
when they arrived at the scene, “We asked — we being
myself — ” before being interrupted and asked to answer only
on his own behalf. Id. at 70–71. But Officer Gomez continued
to respond in the same vein, stating that Delaney gave “us
permission to look into the vehicle,” that “[i]mmediately after
asking for permission, Mr. Delaney advised us that he didn’t
have a problem with us looking through the vehicle,” and that at
that point “[w]e began to walk to the vehicle.” Id. at 71–72.
Officer Gomez was again corrected, and thereafter answered in
the first person singular, and on cross-examination he explained
that it was Officer O’Donnell who had asked the questions.
Officer Gomez further testified at the suppression hearing
that after obtaining Delaney’s consent, Officer O’Donnell went
5
to the driver’s door while Officer Gomez shined his flashlight
through the tinted window of the right rear door and saw a
“large rectangular box” that was open on the end facing him,
and he saw the “stock” or “butt” of a rifle protruding from this
end. Id. at 72–73. Officer O’Donnell testified he was in the
process of opening the driver’s door when he heard Officer
Gomez give a numeric code prompting Officer O’Donnell to put
Delaney, who was standing with two officers, in handcuffs.
Officer Gomez entered the car, placed the box on the hood of
the car, and removed a semi-automatic rifle with a scope as well
as ammunition clips, loose ammunition, and four small bags of
marijuana (packaged, Delaney concedes, “in a manner indicative
of commercial distribution,” Appellant’s Br. 5). Officer Gomez
laid the items out on the hood of the car but did not photograph
them, an apparent violation of internal MPD protocol for crime
scene processing of weapons; another protocol was apparently
violated when the firearms were not kept in place until a crime
scene specialist arrived. Officer O’Donnell testified that he
called for a crime scene unit to process the weapon, and after
that was done he placed it on the Sixth District property book.
Delaney was indicted on three counts: being a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1), possession with
intent to distribute marijuana, 21 U.S.C. § 841(a)(1) &
(b)(1)(D), and possession of a firearm during a drug trafficking
offense, 18 U.S.C. § 924(c)(1). He moved to suppress the
evidence seized from his car on the ground that he did not
consent to the search and that there was no probable cause
justifying the search absent consent. The district court credited
the officers’ testimony notwithstanding Gomez’s allegedly
inconsistent grand jury hearing testimony and the apparent
protocol violations. Accordingly, the district court concluded
that Delaney consented to the car search and denied the motion
to suppress.
6
Subsequently, Delaney entered into a conditional plea
agreement pursuant to Federal Rule of Criminal Procedure
11(a)(2), preserving his right to appeal the suppression ruling.
In the agreement, Delaney acknowledged his understanding that
the government did not intend to file a motion for a downward
departure and likewise agreed “not to seek a downward
departure for any reason from the otherwise applicable guideline
range.” The district court imposed a sentence of 106 months,
representing the very bottom end of the Sentencing Guidelines
range and the sentence the government agreed to recommend
pursuant to the plea agreement.
II.
Valid consent constitutes an exception to the general
requirement of the Fourth Amendment of a warrant supported
by probable cause. See Schneckloth v. Bustamonte, 412 U.S.
218, 219 (1973). Delaney challenges the district court’s finding
that he consented to the search of his car that turned up the
firearm and drugs that formed the basis for his convictions. As
this finding was based on the district court’s assessment of the
credibility of Officers O’Donnell and Gomez, our review is for
clear error, recognizing that the district court’s credibility
determination is “‘entitled to the greatest deference from this
court on appeal.’” United States v. Broadie, 452 F.3d 875, 880
(D.C. Cir. 2006) (quoting United States v. Hart, 324 F.3d 740,
747 (D.C. Cir. 2003)); see also United States v. Wilson, 605 F.3d
985, 1027 (D.C. Cir. 2010).
Relying on the principle that reversal is warranted when a
district court credits “exceedingly improbable testimony,”
United States v. Mapp, 476 F.3d 1012, 1017 (D.C. Cir. 2007)
(quoting United States v. Adamson, 441 F.3d 513, 519 (7th Cir.
2006)), Delaney focuses on what he asserts is the government’s
failure to establish “consistent evidence on the fundamental
7
issue as to which officer actually obtained the alleged consent,”
Appellant’s Br. 15. He maintains that the purportedly
inconsistent testimony “concerned the sole core issue of the
case, an issue so fundamental that any incongruity or
inconsistency must be deemed fatal.” Id. at 8. He also points to
other irregularities, such as the officers’ procedural failures to
document the search and to inventory the rifle. The premise of
his main argument is flawed, however.
Specifically, Delaney contends that the “diametrically
inconsistent testimony” by Officer Gomez on the question of
who — himself or his partner, Officer O’Donnell — sought
Delaney’s consent for the search “exposes such a fundamental
inconsistency that [it] must result in the legal conclusion of
insufficient evidence to establish consent as a matter of law.”
Id. at 11–12. But this record does not reveal any major
inconsistency. All Delaney can point to are the moments in the
grand jury hearing where Officer Gomez is asked, “You asked
Mr. Delaney if you could search his vehicle?” and Officer
Gomez responds, “Correct,” Grand Jury Hr’g Tr. 7, and where,
when asked about the tone of voice “you” used, Officer Gomez
responds that it was the “[s]ame tone I’m using now.” Id. at 8.
As the government notes, the excerpt of Officer Gomez’s grand
jury testimony is replete with references to “we” and “us,”
including his response to the question “And what did you do?”
Id. (emphasis added). Further, the suppression hearing
testimony reflects that Officers O’Donnell and Gomez, as
partners, tended to describe their actions in the plural “we” even
when the action must by its nature have been singular, such as
in asking Delaney for consent. Because a fair reading of Officer
Gomez’s grand jury testimony indicates that he was generally
answering the questions on behalf of himself and his partner,
Officer O’Donnell, it need not be read as inconsistent with the
suppression hearing testimony in view of the context and the
inherent ambiguity of the pronoun “you” as to numerosity.
8
Delaney’s emphasis on the government’s failure to establish
with “consistent evidence” which officer obtained the alleged
consent, Appellant’s Br. 15, thus lacks force.
Delaney also identifies another alleged discrepancy and
contends it, too, is so significant as to undermine the officers’
accounts to the point of implausibility. He maintains that the
officers offered inconsistent testimony on whether the box
containing the shotgun and drugs was observed from the “rear”
or the “back” window of his car. Officer Gomez said he did not
distinguish between the terms “back” and “rear,” a claim
Delaney deems incredible on appeal. Delaney states that the
“back” window is the large window that spans the rear of the
car, whereas the “rear” windows are the two windows on the
sides of the rear section of a car. See Appellant’s Br. 13. But
Officer Gomez’s grand jury testimony indicates that he used the
terms interchangeably, referring to the “back rear passenger
compartment of the vehicle,” Grand Jury Hr’g Tr. 9, just as in
his suppression hearing testimony, suggesting that when he
referred during Delaney’s detention hearing to a “back” window
he was referring to the same window but simply failed to add the
word “passenger.”
Delaney further contends that the violations of protocols set
forth in an MPD General Order — moving the shotgun to the
hood of the car before a crime scene technician arrived, and
failing to photograph the items before removing them from the
car and also from the car’s hood — “fundamentally undermine
the officers’ credibility” and “so undermined the evidence
collection procedures so as to make corroboration of the
government’s version of events impossible.” Appellant’s Br.
14–15. Although there are cases where an officer’s credibility
is so impugned as to require exclusion of his testimony, in those
cases the problems with the officer’s account are numerous and
bear directly on the contested issue. See, e.g., United States v.
9
Henderson, 463 F.3d 27, 44 (1st Cir. 2006). The district court
could reasonably conclude that the policy violations alleged here
are collateral to the consent issue and simply do not undermine
the credibility of the officers’ account of Delaney’s consent to
the vehicle search.
The issues identified by Delaney, then, do not render the
accounts of his consent to search his car so “exceedingly
improbable” that the district court clearly erred. Mapp, 476 F.3d
at 1017; see also United States v. Johnson, 519 F.3d 478, 482
(D.C. Cir. 2008). This is neither a case in which empirical
evidence contradicts the testimony heard by the district court (as
in Henderson, 463 F.3d at 44), nor a case in which there is such
clear contradiction between the witnesses as would demonstrate
clear error to credit either or both witnesses’ testimony. The
district court acknowledged Delaney’s suggestion that it should
be very skeptical of the officers’ testimony in view of Officer
Gomez’s grand jury and preliminary hearing testimony2 and the
protocol violations. But upon noting that the more important
protocol instructed that the firearm be left in place, the district
court concluded that “[d]espite the dents in the government’s
presentation,” the court had “no reason to doubt the testimony
. . . by both of the[] officers, that Mr. Delaney gave consent to
search the car.” Tr. Feb. 25, 2010, at 73. In the district court’s
words: “The testimony is very clear as to what they said under
oath.” Id. Moreover, unlike this court, the district court had the
opportunity to assess the officers’ credibility during the
suppression hearing. For these reasons we conclude that
Delaney has not met his heavy burden to show the district
2
In the district court, Delaney also mentioned a separate D.C.
Superior Court detention hearing in which Officer Gomez referred to
the “back” window without the qualifications “rear” or “passenger.”
See Tr. Feb. 25, 2010, at 9. This transcript is not part of the record on
appeal and we therefore do not consider it.
10
court’s credibility determination was clearly erroneous. See
Broadie, 452 F.3d at 880.3
III.
Delaney’s other challenge is persuasive. He does not
dispute the substantive reasonableness of the sentence he
received. Rather, he presents the purely legal question whether
“the district court misunderstood its sentencing authority,”
United States v. Mouling, 557 F.3d 658, 668 (D.C. Cir. 2009).
Section 3553(a) requires courts to take into account relevant
facts related to a defendant’s history and characteristics. Other
circuits have referenced such matters as a defendant’s criminal
history (or lack thereof), United States v. Panice, 598 F.3d 426,
443 (7th Cir. 2010); age, United States v. Hernandez, 604 F.3d
48, 53–54 (2d Cir. 2010); efforts at rehabilitation, id.; and any
efforts to cooperate with the government, United States v.
Fernandez, 443 F.3d 19, 33 (2d Cir.), cert. denied, 549 U.S. 882
(2006). Indeed, “[n]o limitation shall be placed on the
information concerning the background, character, and conduct
of a person convicted of an offense which a court of the United
States may receive and consider for the purpose of imposing an
appropriate sentence,” 18 U.S.C. § 3661; see United States v.
Anderson, 632 F.3d 1264, 1270 (D.C. Cir. 2011) (citing 18
U.S.C. § 3661; United States v. Tucker, 404 U.S. 443 (1972)).
A review of the authorities Delaney cites, including our own, as
well as the sealed sentencing hearing, reveals that Delaney has
3
The court does not reach the government’s alternative
argument, raised only in a footnote, see Am. Wildlands v. Kempthorne,
530 F.3d 991, 1001 (D.C. Cir. 2008); see also Bush v. District of
Columbia, 595 F.3d 384, 388 (D.C. Cir. 2010), that this court should
affirm because the weapon was visible in “plain view” from the rear
passenger side window.
11
made “some record showing,” Mouling, 557 F.3d at 668, that
“leaves us in doubt as to whether the court considered [all] the
. . . sentencing factors in § 3553(a), Ayers, 428 F.3d at 315.
[REDACTED:
12
13
END]
Accordingly, we affirm the judgment of conviction with
regard to Delaney’s challenge to the denial of his motion to
14
suppress and we vacate the sentence and remand the case to the
district court for resentencing. See Ayers, 428 F.3d at 315–16.