United States v. Law

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 22, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 13-6180
v. (D.C. No. 5:12-CR-00258-D-1)
(W. D. Okla.)
ANDRE LAMARR LAW,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before GORSUCH, SEYMOUR, and PHILLIPS, Circuit Judges.

Andre Law entered a conditional plea of guilty to possession of a firearm

after a felony conviction, in violation of 18 U.S.C. § 922(g)(1), reserving his right

to appeal the district court’s denial of his motion to suppress evidence seized

during a traffic stop and its denial of his motion to dismiss the indictment for lack

of jurisdiction. He appeals, and we affirm.

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
 I

On July 15, 2012, based on police surveillance of Mr. Law and a

companion purchasing guns at a gun show, Sergeant Greg Bell and his partner

were asked to continue surveillance of the two men after they left the gun show

together in a car. It was suggested the officers should conduct a traffic stop if

possible.

They identified the car and followed it onto the interstate where there was

moderate traffic. The car, which was traveling between fifty and sixty miles per

hour, switched lanes and pulled within a car length of another car. When it

remained fifteen to twenty feet behind the other car for a span of four or five

blocks, the officers initiated a traffic stop based on their belief that the driver was

following too closely in violation of Okla. Stat. tit. 47, § 11-310. Sgt. Bell and

his partner approached the vehicle on either side, and from the passenger side Sgt.

Bell asked Mr. Law for identification, which he did not have. When Mr. Law’s

companion in the driver seat reached for the glove box, Mr. Law shifted,

revealing to Sgt. Bell the grip of a handgun inside Mr. Law’s pants pocket. Sgt.

Bell inquired about the gun, and Mr. Law admitted to having one. Sgt. Bell had

him exit the car, handcuffed him for officer safety and because he was carrying a

concealed firearm, and removed the gun from his pocket. Sgt. Bell also noticed

bullets on the floor below the passenger seat. After learning that Mr. Law had a

-2-
deferred sentence for a drug offense, 1 he arrested him.

Mr. Law was indicted for possessing a firearm after a prior felony

conviction in violation of § 922(g)(1). He filed motions to suppress the evidence

seized from the traffic stop and to dismiss the case for want of jurisdiction. After

the district court denied both motions, he entered a conditional guilty plea,

reserving the right to appeal the court’s denial of his motions. The district court

entered judgment, and Mr. Law timely appealed.

II

Mr. Law first contends the district court erred in denying his motion to

suppress based on its finding that Sgt. Bell had reasonable suspicion to conduct a

traffic stop under § 11-310(a). In reviewing the denial of a motion to suppress,

we view the evidence in the light most favorable to the government, accepting the

factual findings of the district court unless they are clearly erroneous. United

States v. Cash, 733 F.3d 1264, 1272-73 (10th Cir. 2013). We review the ultimate

determination of reasonableness under the Fourth Amendment de novo. Id. at

1273.

A traffic stop is proper where an officer has either “probable cause to

1
Mr. Law was charged on June 22, 2007, with possession of a controlled
substance with intent to distribute in violation of Okla. Stat. tit. 63, § 2-401. On
July 16, 2008, he pled guilty and received a five-year deferred sentence.

-3-
believe a traffic violation has occurred” or a “reasonable articulable suspicion”

that a driver has violated a traffic regulation. United States v. Winder, 557 F.3d

1129, 1134 (10th Cir. 2009). To have a reasonable articulable suspicion, an

officer must have “some minimal level of objective justification for making the

stop.” Id. (quoting United States v. Vercher, 358 F.3d 1257, 1261 (10th Cir.

2004)) (internal quotation marks omitted). The officer’s subjective motivation for

the stop is irrelevant to the determination of reasonableness under the Fourth

Amendment. Whren v. United States, 517 U.S. 806, 810-13 (1996). An officer is

not required to “‘rule out the possibility of innocent conduct’ as long as the

totality of the circumstances suffices to form ‘a particularized and objective basis’

for a traffic stop.” Vercher, 358 F.3d at 1261 (citations omitted).

Section 11-310(a) prohibits a driver from “follow[ing] another vehicle more

closely than is reasonable and prudent, having due regard for the speed of such

vehicles and the traffic upon and the condition of the highway.” Defendant

contends that § 11-310(a) is a subjective statute unable to provide the objective

justification necessary to support a lawful traffic stop. We disagree.

In Vercher, we held that an officer’s consideration of the high speed

(seventy miles per hour) and close distance between cars (twenty to twenty-five

feet) on a rural interstate, provided “the requisite minimal level of objective

justification to suspect that K.S.A. § 8-1523(a) had been violated.” 358 F.3d at

1259, 1262-63. The following-too-closely Kansas statute in Vercher, § 8-1523(a),

-4-
is identical to § 11-310(a). See id. at 1260. Like the officer in Vercher, Sgt. Bell

based his suspicion on the car’s speed and close following distance in the traffic

conditions present. 2 These factors—car speed, close following distance, and non-

busy traffic conditions—are sufficient to provide a “particularized and objective

basis” to conclude the car was following more closely than was “reasonable and

prudent.” Sgt. Bell’s subjective intent “play[s] no role” in determining the traffic

stop’s reasonableness. Whren, 517 U.S. at 813. Thus, Sgt. Bell had a reasonable

suspicion that the car in which Mr. Law was a passenger was following too

closely in violation of § 11-310(a), and the district court did not err in denying his

motion to suppress.

III

Mr. Law next contends the district court erred in denying his motion to

dismiss for want of jurisdiction, arguing his guilty plea followed by a deferred

sentence does not constitute a “conviction” for purposes of § 922(g). Whether a

deferred sentence constitutes a “conviction” under § 922(g)(1) is a question of

2
In Vercher, we noted that while the district court did not find the traffic
conditions were taken into account by the officer, the videotape showed the traffic
conditions—“relatively few vehicles driving on the road”—were “patently
apparent.” 358 F.3d at 1262. Here Sgt. Bell testified that there was “moderate”
traffic and that it was not “busy” as it was a weekend. Aplt. App., vol. II at 38.
In neither case, was there “commuter traffic on congested roads.” See Vercher,
358 F.3d at 1260 (noting the decision may have been different if there had been
“commuter traffic on congested roads”).

-5-
law we review de novo. See United States v. Farr, 701 F.3d 1274, 1286 (10th

Cir. 2012); cf. United States v. Ko, 739 F.3d 558, 560 (10th Cir. 2014).

Under § 922(g), a person “who has been convicted in any court of a crime

punishable by imprisonment for a term exceeding one year,” may not possess a

firearm or ammunition. What constitutes a predicate felony within the meaning

of § 922(g) is controlled by Oklahoma law. United States v. Fisher, 38 F.3d

1144, 1147 (10th Cir. 1994) (pursuant to 18 U.S.C. § 921(a)(20), courts look to

state law to determine whether a defendant has been convicted of a felony).

Under Oklahoma law there is a general first-time offender provision for

sentence deferrals, Okla. Stat. tit. 22, § 991c, and a specific first-time drug

offender provision for sentence deferrals, Okla. Stat. tit. 63, § 2-410. While, a

deferred sentence under § 991c is not a “conviction,” United States v. Stober, 604

F.2d 1274, 1276-78 (10th Cir. 1979) (applying Oklahoma law), a deferred

sentence under § 2-410 is a “conviction” “during th[e] deferral period.” Platt v.

State, 188 P.3d 196, 198-99 (Okla. 2008).

Section 2-410 initially provided deferred sentences only to defendants

found guilty of possession of a controlled substance under Okla. Stat. tit. 63,

§ 2-402. § 2-410 (1971). But in June 2008, § 2-410’s purview was extended to

any first-time violation of Oklahoma’s Uniform Controlled Dangerous Substances

Act, §§ 2-101 to -610. § 2-410 (2008).

Mr. Law contends his sentence was deferred under § 991c rather than

-6-
§ 2-410 because § 2-410 was limited to § 2-402 offenses when he was charged in

2007 with violating § 2-401. But this argument is based on the flawed

assumption that the charging date is the date from which we determine the

applicable law. Instead, the date a defendant pleads guilty and receives a deferred

sentence is the “material date” that determines which version of § 2-410 governs

his deferral. See Hefner v. State, 542 P.2d 527, 531 (Okla. 1975) (using date

defendant pled guilty and received deferred sentence as date from which to

determine effective law). Mr. Law pled guilty to possession of marijuana with

intent to distribute, a violation of Oklahoma’s Uniform Controlled Dangerous

Controlled Substances Act, and received a five-year deferred sentence on July 16,

2008, see supra note 1, more than a month after the amended § 2-410 became

effective. The amended § 2-410 therefore applies to his deferred sentence, which

means that during his five-year deferral period Mr. Law had a “conviction” for

the purpose of satisfying the predicate felony requirement for the crime of felon

in possession of a firearm or ammunition.

Mr. Law also contends that applying § 2-410 to him is an unconstitutional

application of ex post facto law. We decline to address the merits of this

argument as it does not fall within the scope of the appellate rights Mr. Law

reserved. Where a defendant agrees to a conditional plea, reserving the right to

appeal the district court’s denial of a motion, we refuse to consider other theories

beyond those presented to the district court. United States v. Anderson, 374 F.3d

-7-
955, 958 (10th Cir. 2004) (“[W]e refuse[] to consider on appeal specific

suppression-of-the-evidence theories not presented to the district court, even

though the parties had raised a different suppression-of-the-evidence argument

below.”). Mr. Law did not raise his ex post facto argument below, placing it

beyond the scope of his motion to dismiss for lack of jurisdiction and not

preserved for appeal.

IV

Finally, Mr. Law asserts that he was not provided proper notice of his

status as a convicted felon. Even assuming this is true, such knowledge is not

required for a defendant’s conviction under § 922(g). See United States v.

Games-Perez, 667 F.3d 1136, 1140 (10th Cir. 2012) (“Our circuit has expressly

held that ‘the only knowledge required for a § 922(g) conviction is knowledge

that the instrument possessed is a firearm.’” (quoting United States v. Capps, 77

F.3d 350, 352 (10th Cir. 1996))).

Mr. Law also contends he was entitled to more process than he received

before his deferred sentence was deemed a conviction. A defendant’s entry of a

guilty plea that results in a conviction by operation of law violates due process if

the plea is not voluntary and knowing. Boykin v. Alabama, 395 U.S. 238, 243 n.5

(1969). But Mr. Law does not claim his plea was involuntary or unknowing. He

received the process required for his “conviction” when he pled guilty and

-8-
received a deferred sentence under § 2-410.

V

We AFFIRM the district court’s denial of defendant’s motion to suppress

and motion to dismiss.

ENTERED FOR THE COURT

Stephanie K. Seymour
Circuit Judge

-9-
13-6180, United States v. Law

GORSUCH, Circuit Judge, concurring.

Two significant questions lurk just beneath the surface of this appeal.

First, my colleagues correctly note that — under controlling circuit precedent —

the government didn’t have to prove Mr. Law knew he was a felon in order to

convict him for violating 18 U.S.C. § 922(g) and § 924(a). But while we must

obey this precedent, that doesn’t make it right. In fact, our precedent is

impossible to square with the plain language of the governing statutes. See

United States v. Games-Perez, 667 F.3d 1136, 1142-46 (10th Cir. 2012) (Gorsuch,

J., concurring). And as this case shows, the issue (and our error) recurs regularly.

Second, we might have had a more difficult time resolving this case if

Mr. Law had challenged Oklahoma’s “following too closely” traffic ordinance on

the ground that it failed to afford a reasonable person in his shoes notice that his

conduct was illegal. As it is, though, Mr. Law didn’t press a Fourteenth

Amendment due process void-for-vagueness challenge but only a Fourth

Amendment search-and-seizure argument. And, as my colleagues explain, respect

for circuit precedent — United States v. Vercher, 358 F.3d 1257 (10th Cir. 2004)

— compels us to reject that particular argument as well.