UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4840
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARL HARRIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:12-cr-00144-FDW-1)
Submitted: September 25, 2014 Decided: October 16, 2014
Before GREGORY, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ross Hall Richardson, Acting Executive Director, Ann L. Hester,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carl Harris entered a conditional guilty plea to
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2012), and was sentenced under the Armed
Career Criminal Act (“ACCA”) to 180 months’ imprisonment.
Harris’ plea preserved his right to appeal the district court’s
order denying his motion to suppress. On appeal, Harris argues
that the district court erred in: applying the reasonable
suspicion standard set forth in Terry v. Ohio, 392 U.S. 1
(1968); concluding that reasonable suspicion supported the
officers’ Terry frisk; and categorizing Harris as an armed
career criminal.
Harris first argues that because the City of Charlotte
Municipal Code classifies discharging a firearm as a misdemeanor
rather than a felony, the officers were prohibited from
conducting a Terry frisk, even if supported by reasonable
suspicion. Harris, however, has waived this argument by failing
to raise it as a distinct ground in support of his motion to
suppress in the district court. See Fed. R. Crim. P. 12(b)(3),
(e); United States v. Ricco, 52 F.3d 58, 62 (4th Cir. 1995)
(concluding that “[a]ny failure to file a pre-trial motion to
suppress constitutes waiver of the defense or objection unless
the defendant can demonstrate just cause for the failure.”); see
also United States v. Horton, 756 F.3d 569, 574 (8th Cir. 2014)
2
(holding arguments not raised in motion to suppress are waived
on appeal), petition for cert. filed, __ U.S.L.W. __ (U.S. June
3, 2014) (No. 13-10476); United States v. Lockett, 406 F.3d 207,
212 (3d Cir. 2005) (“[I]n the context of a motion to suppress, a
defendant must have advanced substantially the same theories of
suppression in the district court as he or she seeks to rely
upon in this [c]ourt.”). Harris alleges no good cause for his
failure to raise this issue below, and we therefore decline to
consider it on appeal.
Harris next asserts that the district court erred in
concluding that reasonable suspicion supported the officers’
Terry frisk. “[A]n officer may, consistent with the Fourth
Amendment, conduct a brief, investigatory stop when the officer
has a reasonable, articulable suspicion that criminal activity
is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000).
“Moreover, if the officer has a reasonable fear for his own and
others’ safety based on an articulable suspicion that the
suspect may be armed and presently dangerous, the officer may
conduct a protective search of, i.e., frisk, the outer layers of
the suspect’s clothing for weapons.” United States v. Holmes,
376 F.3d 270, 275 (4th Cir. 2004) (internal quotation marks
omitted).
The officer must have “at least a minimal level of
objective justification for making the stop” and “must be able
3
to articulate more than an inchoate and unparticularized
suspicion or hunch of criminal activity.” Wardlow, 528 U.S. at
123-24 (internal quotation marks and citations omitted). Courts
assess the legality of a Terry stop under the totality of the
circumstances, giving “due weight to common sense judgments
reached by officers in light of their experience and training.”
United States v. Perkins, 363 F.3d 317, 321 (4th Cir. 2004)
(citation omitted). Applying these principles, we conclude
that, under the totality of the circumstances, the officers had
a reasonable suspicion to stop Harris and frisk him for weapons.
Finally, Harris asserts that his sentence under the
ACCA violates the Fifth and Sixth Amendments because his prior
convictions were not alleged in the indictment, proven to the
jury beyond a reasonable doubt, or admitted as part of his
guilty plea. As Harris acknowledges, this issue is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 228-35
(1998).
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 would not aid the decisional process.
AFFIRMED
4