United States v. Ira Taylor

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4176

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

IRA TAYLOR,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:13-cr-00078-JFM-1)

Submitted: November 25, 2014 Decided: December 9, 2014

Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Craig M. Sandberg, MUSLIN & SANDBERG, Chicago, Illinois, for
Appellant. Rod J. Rosenstein, United States Attorney, Scott A.
Lemmon, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Ira Taylor was convicted, following a jury trial, of

possessing a firearm after sustaining a felony conviction, in

violation of 18 U.S.C. § 922(g)(1) (2012) (“Count One”);

distribution of, and possession with intent to distribute, a

quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1)

(2012) (“Count Two”); and possessing and brandishing a firearm

in furtherance of a drug trafficking offense (particularly,

Count Two), in violation of 18 U.S.C. § 924(c) (2012) (“Count

Three”). The district court sentenced Taylor to 180 months’

imprisonment, consisting of ninety-six months on Counts One and

Two (concurrent), and a consecutive eighty-four-month term of

imprisonment on Count Three. Taylor timely noted this appeal.

Taylor presents five issues in his opening brief and

one issue in his reply brief. 1 As discussed in detail below, we

reject these arguments and affirm the amended criminal judgment.

1
Specifically, in the reply brief, Taylor asserts a
challenge to the computation of his Sentencing Guidelines range.
We reject counsel’s contention that he preserved the propriety
of the underlying Guidelines calculation by citing to Gall v.
United States, 552 U.S. 38 (2007), in the opening brief.
Accordingly, we conclude that Taylor has waived this argument by
raising it for the first time in his reply brief. See Equal
Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 604 n.4 (4th
Cir. 2010); United States v. Brooks, 524 F.3d 549, 556 n.11 (4th
Cir. 2008).

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 I.

The record, taken in the light most favorable to the

Government, see United States v. Washington, 743 F.3d 938, 940

(4th Cir. 2014), establishes the following facts.

On November 13, 2012, George Spradlin, who was using

his personal vehicle as an unauthorized taxi, drove two people

to a residential neighborhood in Baltimore. Spradlin asked his

passengers if they knew anyone from whom he could buy marijuana.

One of the passengers indicated that Taylor, who was on the

street, could sell Spradlin marijuana. Spradlin did not then

know Taylor’s identity.

Taylor approached Spradlin’s vehicle, spoke briefly

with Spradlin, and gave Spradlin a small bag of marijuana.

Before Spradlin paid for it, Taylor lifted up his shirt and

displayed a firearm. Taylor removed the gun and demanded that

Spradlin give him all of his money — $85 — as well as the

marijuana he had just provided Spradlin. Taylor pointed the gun

at Spradlin’s head, and Spradlin complied. Also on Taylor’s

order, Spradlin exited his car and began to walk down the

street. Spradlin repeatedly asked Taylor not to harm or kill

him. At some point, Taylor discharged his firearm, but did not

hit Spradlin.

Immediately thereafter, an unmarked police car turned

down the street. Spradlin flagged down the police car and told

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the officers that Taylor had robbed him and tried to kill him.

Spradlin identified Taylor, who was standing in the middle of

the street, as the man who had robbed him.

Taylor ran, and the officers gave chase. Within a few

moments, one of the officers, Detective Steven Rosier, exited

the car and pursued Taylor on foot. The other officer, Michael

Riser, continued the pursuit in the car. While Taylor was

running, Riser saw a firearm in Taylor’s left hand. Once they

came together again, Riser warned Rosier that Taylor was armed.

The officers later found Taylor lying face down

against a row of shrubs. Taylor initially resisted Riser’s

directive to put his hands on his head, but he eventually

capitulated. Pursuant to a search incident to arrest, Riser

seized two small baggies of a plant-like substance (which the

parties later stipulated was marijuana); $85 in cash, balled up;

and $19 in cash, folded neatly and placed along side Taylor’s

identification card and credit cards.

After Taylor was in custody, Spradlin again identified

Taylor as the man who had robbed him and threatened him with a

firearm. Rosier later returned to search the shrubs and found a

firearm lying 10-15 feet from where Taylor was apprehended.

There were four live rounds and one spent shell casing in the

chamber.

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 II.

Taylor moved to suppress all statements and admissions

he purportedly made, the evidence seized by Riser and the

firearm found by Rosier, and Spradlin’s identification of Taylor

as his assailant. The district court denied the motions.

Rosier, Riser, and Spradlin were among the witnesses

that testified at trial. At the close of the Government’s

evidence, defense counsel made a Fed. R. Crim. P. 29 motion for

a judgment of acquittal, which the court denied. The jury

convicted Taylor on the three charged counts and found, beyond a

reasonable doubt, that Taylor had brandished a firearm during

the course of the underlying drug trafficking crime.

At sentencing, the district court varied downward from

the advisory Guidelines range applicable to Counts One and Two

and imposed a ninety-six-month sentence on these counts, to be

followed by an eighty-four-month sentence on Count Three.

III.

Taylor first challenges the denial of his motions to

suppress. We review factual findings underlying a district

court’s denial of a motion to suppress for clear error and legal

conclusions de novo. United States v. Foster, 634 F.3d 243, 246

(4th Cir. 2011). Because the district court denied the motions,

we construe the evidence in the light most favorable to the

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Government, the party prevailing below. United States v. Black,

707 F.3d 531, 534 (4th Cir. 2013).

Taylor first contends that the district court should

have suppressed a statement that he purportedly made on his

arrest, but Taylor does not identify when, if ever, this

statement was offered into evidence. Thus, any error in the

pre-trial ruling is of no consequence.

Taylor next challenges the denial of his motion to

suppress the evidence seized pursuant to Taylor’s warrantless

arrest. This evidence, which consisted of two small bags of

marijuana and $85 in balled up cash, was discovered on Taylor’s

person during the search incident to arrest conducted by Riser.

The Supreme Court has long since approved such searches. See

United States v. Robinson, 414 U.S. 218, 234-35 (1973) (holding

that, upon lawful warrantless arrest, police may conduct a full

search of an arrestee’s person and personal items in his

possession and control, without any additional justification).

A warrantless arrest is valid so long as “there is probable

cause to believe that a criminal offense has been or is being

committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). Our

review of the hearing transcript reveals that the officers had

ample cause to arrest Taylor, thus undermining Taylor’s claim

that the seizure was unconstitutional.

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 Taylor also contests the denial of his motion to

suppress the recovered firearm. However, Taylor abandoned any

privacy interest he may have had in that firearm (or the

ammunition) by discarding it in the shrubs. Therefore, the

abandoned gun was not the fruit of a seizure, and need not have

been excluded. California v. Hodari D., 499 U.S. 621, 629

(1991); see United States v. Stevenson, 396 F.3d 538, 546 (4th

Cir. 2005) (“When a person voluntarily abandons his privacy

interest in property, his subjective expectation of privacy

becomes unreasonable, and he is precluded from seeking to

suppress evidence seized from it.”).

Finally, Taylor challenges the court’s denial of his

motion to suppress Spradlin’s identification of Taylor as the

perpetrator. “Due process principles prohibit the admission at

trial of an out-of-court identification obtained through

procedures ‘so impermissibly suggestive as to give rise to a

very substantial likelihood of irreparable misidentification.’”

United States v. Saunders, 501 F.3d 384, 389 (4th Cir. 2007)

(quoting Simmons v. United States, 390 U.S. 377, 384 (1968)).

But it is clear from the record that both times Spradlin

identified Taylor as the person who robbed and threatened him

were entirely spontaneous, unprompted by any questions or

statements from either Rosier or Riser. Thus, the court

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properly ruled that they were not the result of an impermissibly

suggestive identification process.

IV.

Taylor next argues that the district court erred in

denying his Rule 29 motion for a judgment of acquittal on Counts

Two and Three. We review this ruling de novo. United States v.

Hickman, 626 F.3d 756, 762 (4th Cir. 2010).

“A defendant challenging the sufficiency of the

evidence to support his conviction bears a heavy burden.”

United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)

(internal quotation marks omitted). The jury verdict must by

sustained when “there is substantial evidence in the record,

when viewed in the light most favorable to the government, to

support the conviction.” United States v. Jaensch, 665 F.3d 83,

93 (4th Cir. 2011) (internal quotation marks omitted).

In reviewing a case for substantial evidence, we

evaluate “both circumstantial and direct evidence, and allow the

government all reasonable inferences that could be drawn in its

favor.” United States v. Harvey, 532 F.3d 326, 333 (4th Cir.

2008). We do not weigh the credibility of the evidence or

resolve any conflicts in the evidence. Beidler, 110 F.3d at

1067. “Reversal for insufficient evidence is reserved for the

rare case where the prosecution’s failure is clear.” Id.

(internal quotation marks omitted).

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 Count Two charged Taylor with knowingly distributing,

and possessing with intent to distribute, a quantity of

marijuana. Taylor argues that, because he possessed only 1.18

grams of marijuana, there was no basis for the jury’s finding of

an intent to distribute. We disagree. Although “[p]ossession

of a small quantity of drugs by itself is an insufficient basis

from which intent to distribute may be inferred[,]” United

States v. Fisher, 912 F.2d 728, 730 (4th Cir. 1990), this fact

did not stand alone. The Government’s evidence established that

the (admittedly small) quantity of marijuana that Taylor

possessed was individually packaged in a manner consistent with

the street-level distribution of drugs, Taylor engaged with

Spradlin in a manner consistent with selling drugs, and Taylor

possessed a loaded firearm. Taken together, these facts

satisfied the Government’s burden to show an intent to

distribute. See United States v. Collins, 412 F.3d 515, 518-19

(4th Cir. 2005) (affirming conviction for possession with intent

to distribute 2.59 grams of crack cocaine because, even in cases

involving relatively small drug quantities, an intent to

distribute can be inferred from the totality of the

circumstances).

Taylor next asserts that the Government’s evidence as

to Count Three was legally insufficient. But Spradlin’s

testimony established that (1) the men were engaged in a drug

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trafficking offense in that Spradlin was attempting to purchase

marijuana from Taylor; (2) prior to paying Taylor, but after

Taylor gave the marijuana to Spradlin for his inspection, Taylor

lifted his sweatshirt to display his firearm; and (3) Spradlin

felt scared and intimidated. This testimony thus demonstrated

that Taylor brandished his firearm in furtherance of the drug

trafficking crime of distributing marijuana. See 18 U.S.C.

§ 924(c)(4) (defining “brandish” as “to display all or part of

the firearm, or otherwise make the presence of the firearm known

to another person, in order to intimidate that person,

regardless of whether the firearm is directly visible to that

person”).

We note, briefly, that the Sixth Circuit’s decision in

United States v. Gibbs, 182 F.3d 408, 426 (6th Cir. 1999), does

not command a different result. Unlike the defendant in Gibbs,

who did not possess a firearm during either of the two actual

drug sales he completed with the undercover agent, Taylor

possessed the firearm while engaged in selling drugs to

Spradlin. To be sure, the sale of marijuana was not consummated

and quickly evolved into a robbery, but the jury could have

reasonably concluded that, at the moment he initially displayed

the firearm, Taylor “considered the firearm to be critical to

his drug-trafficking activities, including the drug deal that he

was conducting with [Spradlin] that day.” United States v.

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Pineda, __ F.3d __, 2014 WL 5462658, at *3 (4th Cir. Oct. 29,

2014). Accordingly, we affirm the jury’s guilty verdict on

Count Three.

V.

Taylor next maintains that his sentence is illegal in

light of Alleyne v. United States, 133 S. Ct. 2151 (2013), and

unduly excessive given the scope of his criminal conduct, in

violation of the Eighth Amendment. But Alleyne is not

implicated here, because the jury made the factual finding

necessary to support the increased mandatory minimum. See 18

U.S.C. § 924(c)(1)(A)(ii).

Taylor’s Eighth Amendment claim fares no better. The

Eighth Amendment forbids cruel and unusual punishments and

implicitly requires that a criminal sentence be proportionate to

the crime or crimes of conviction. Solem v. Helm, 463 U.S. 277,

284 (1983). As this court recently clarified, proportionality

review is available for a term-of-years sentence. United States

v. Cobler, 748 F.3d 570, 579 (4th Cir.), cert. denied, 135 S.

Ct. 229 (2014).

In analyzing a claim that a sentence violates the

Eighth Amendment, we first decide whether a threshold comparison

of the gravity of a defendant’s offenses and the severity of his

sentence leads to the inference that his sentence is grossly

disproportionate to his crimes. Id. at 579-80. Taylor makes no

11
effort to show that his sentence, which included a downward

variance from the Guidelines range applicable to Counts One and

Two, presents the “rare case” sufficient to raise an inference

of gross disproportionality. Graham v. Florida, 560 U.S. 48, 60

(2010) (internal quotation marks omitted). And Taylor’s

recidivism, which was set forth in the presentence report and

was a clear concern to the district court, undermines Taylor’s

claim that the sentence is disproportionate. See Ewing v.

California, 538 U.S. 11 (2003) (holding sentence of twenty-five

years to life for theft of three golf clubs, valued at

approximately $1200, was not violative of the Eighth Amendment,

given defendant’s prior felony convictions). We thus reject

Taylor’s Eighth Amendment argument.

VI.

We turn, finally, to Taylor’s claim that the district

court should have sua sponte dismissed Count One because it

amounts to an unconstitutional infringement on his Second

Amendment right to bear arms. This argument is raised for the

first time on appeal, and we conclude that Taylor cannot show

any error, let alone plain error, see Fed. R. Crim. P. 52(b), in

the district court’s failure to sua sponte dismiss Count One.

This court has ruled that Ҥ 922(g)(1) is

constitutionally valid on its face.” United States v. Moore,

666 F.3d 313, 319 (4th Cir. 2012). But we left open the

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possibility that presumptively lawful measures could be

unconstitutional if confronted with a proper as-applied

challenge. Id. To rebut this presumption of lawfulness, Taylor

“must show that his factual circumstances remove his challenge

from the realm of ordinary challenges.” Id.

Taylor alleges that he was not participating in any

criminal conduct at the time of his arrest, but this contention,

which is contrary to the jury’s factual findings, is simply

inadequate to remove Taylor’s situation from the run-of-the-mill

challenge to the constitutionality of § 922(g)(1). Further, a

review of Taylor’s criminal history reveals that he “undoubtedly

flunks the law-abiding citizen requirement” of the Second

Amendment, which the Supreme Court recognized in Heller. 2 Id. at

320 (internal quotation marks omitted). Accordingly, we reject

Taylor’s claim of error on this point.

VII.

For the foregoing reasons, we affirm the amended

criminal 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

2
District of Columbia v. Heller, 554 U.S. 570 (2008).

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