PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-5035
ANTHONY MCQUEEN,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 04-5129
ANTHONY MCQUEEN,
Defendant-Appellee.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CR-04-257)
Argued: March 15, 2006
Decided: April 25, 2006
Before LUTTIG and SHEDD, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part and vacated in part by published opinion. Judge Lut-
tig wrote the opinion, in which Judge Shedd and Senior Judge Hamil-
ton joined.
2 UNITED STATES v. MCQUEEN
COUNSEL
ARGUED: David Benjamin Smith, ENGLISH & SMITH, Alexan-
dria, Virginia, for Appellant/Cross-Appellee. Patrick Friel Stokes,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee/Cross-
Appellant. ON BRIEF: Paul J. McNulty, United States Attorney,
Alexandria, Virginia, for Appellee/Cross-Appellant.
OPINION
LUTTIG, Circuit Judge:
After a call from a reliable informant about a suspicious vehicle,
police officers came upon Anthony McQueen’s car in the parking lot
of a bar in Woodbridge, Virginia. G.S.A. 6. Although the car was run-
ning, McQueen appeared to be asleep inside. Id. at 6, 21, 43. The car
had a crushed rear bumper and out-of-state license plates. Id. at 6, 22-
23. The officers knocked on McQueen’s window, asked what he was
doing and if he was okay, and asked to see his license and registra-
tion. Id. at 7. After a check of McQueen’s papers came up with noth-
ing, the officers returned to the car and asked McQueen to follow
them to the rear of the vehicle. Id. at 9, 28-29, 54-55. They returned
his license and registration and told him there was no violation of the
law. Id. The officers then asked that McQueen consent to a search of
his car. Id. at 9-10, 55. McQueen consented, id., and the officers
found a handgun under the back seat, id. at 56.
McQueen was charged with being a felon in possession of a fire-
arm. J.A. 15-17. The district court denied McQueen’s motion to sup-
press the handgun, G.S.A. 65, and the jury convicted McQueen, J.A.
182. At sentencing, the district court declined to sentence McQueen
as an armed career criminal. See id. at 141. McQueen was sentenced
to 120 months imprisonment. Id. at 142. McQueen appeals on several
grounds. The government appeals the district court’s failure to sen-
tence McQueen as an armed career criminal. We affirm McQueen’s
conviction but vacate his sentence.
UNITED STATES v. MCQUEEN 3
I.
McQueen first assigns error to the district court’s failure to sup-
press the handgun found under the back seat of his car, arguing that
his consent to search the car was tainted by an unlawful Terry stop.
We do not believe that the initial stop was unlawful because there
was sufficient evidence to give rise to a reasonable suspicion that ille-
gal activity was afoot. A reliable informant phoned in a tip about a
suspicious car in a bar parking lot. G.S.A. 6. From a distance, the offi-
cers observed an unconscious man in the driver’s seat of the car. Id.
They could also see that the rear bumper of the car was bashed in and
that the car was running at idle. Id. at 6, 21. The car had out-of-state
license plates, id. at 22-23, and was parked in an area known for drug
and gang activity, id. at 14-15, 37. Under these circumstances, the
officers, in light of their experience, could have reasonably suspected
that McQueen, among other things, either had been or was about to
drive drunk or that McQueen had hit a car and driven away. In light
of these circumstances, the district court was correct to conclude that
the officers had the reasonable suspicion necessary for the Terry stop.
Therefore, McQueen’s consent to search his car was effective and the
district court did not err in refusing to suppress the handgun found
during the search.
II.
McQueen argues that the district court also erred in instructing the
jury on the "interstate nexus" element of his felon in possession
offense. McQueen requested a detailed jury instruction on the "in or
affecting interstate commerce" element of the felon in possession
charge. The district court rejected McQueen’s proposed instruction
and instead instructed the jury that "[t]he government may meet its
burden of proof on the question of being in or affecting commerce by
proving beyond a reasonable doubt that the firearm identified in the
indictment at any time had traveled across a state or country boundary
line." J.A. 91.
Jury instructions are reviewed to determine "whether, taken as a
whole, the instruction[s] fairly state[ ] the controlling law." United
States v. Cobb, 905 F.2d 784, 789 (4th Cir. 1990). McQueen argues
4 UNITED STATES v. MCQUEEN
that the district court should have instructed the jury that movement
of a firearm across a state line alone is not sufficient to satisfy the in-
or-affecting-commerce element. According to McQueen’s argument,
movement across state lines is sufficient only if the firearm in ques-
tion traveled "in interstate commerce," which McQueen distinguishes
from traveling across state lines in his car. However, this court has
held that "the Government may establish the requisite interstate com-
merce nexus by showing that a firearm was manufactured outside the
state where the defendant possessed it" and that United States v.
Lopez, 514 U.S. 549 (1995), United States v. Morrison, 529 U.S. 598
(2000), and Jones v. United States, 529 U.S. 848 (2000), did not alter
this required showing. United States v. Gallimore, 247 F.3d 134, 138
(4th Cir. 2001). We do not find the factual distinctions between
McQueen’s case and Gallimore of such significance as to require a
different showing here. The district court’s jury instruction, which
tracks almost exactly the quoted language from Gallimore, was not
an erroneous statement of controlling law.
III.
The Presentence Report (PSR) assigned McQueen an offense level
of 24 and a criminal history category of VI. J.A. 213, 228. The guide-
line range was set at 100 to 120 months. Id. at 217. Both McQueen
and the government objected to the PSR. McQueen principally argued
that his sentence should not be enhanced on the basis of a 1995 guilty
plea. Id. at 94-96. The government argued that McQueen should be
sentenced as an armed career criminal. Id. at 114-19. The district
court overruled both objections and sentenced McQueen to 120
months imprisonment. Id. at 141-42. Both McQueen and the govern-
ment have appealed the sentence, and we consider their arguments in
turn.
A.
McQueen argues that no criminal history points should have been
added for his 1995 guilty plea to a charge of possession with intent
to distribute heroin because the plea was the result of a violation of
his right to counsel.
UNITED STATES v. MCQUEEN 5
McQueen had originally retained private counsel for the proceed-
ing that led up to the plea in question. Id. at 150. When that attorney
ended his representation of McQueen, the court appointed counsel. Id.
McQueen then fired his appointed lawyer and exercised his right to
proceed pro se. When McQueen elected to proceed pro se, the magis-
trate judge conducted an "extensive hearing" to advise him of the dan-
gers of proceeding pro se, and McQueen "assured" the judge that he
was "fully capable" of representing himself. Id. at 151. A month later,
on the day before trial, the district court asked McQueen if he was
sure that he wanted to represent himself, and McQueen said that he
"absolutely didn’t want a lawyer." Id. at 152-53. On the morning of
trial, the district court again asked McQueen if he wanted to represent
himself, and McQueen said that he did. Id. at 149. However, when
everyone entered the courtroom to begin jury selection, McQueen told
the district court that he wanted a lawyer, claiming that he had dimin-
ished mental capacity resulting from the stress of pretrial incarcera-
tion. Id. at 150. The district court denied McQueen’s request for
counsel, believing that McQueen’s request was made only to delay
proceedings: "You can’t jerk the court system around, young man."
Id. at 154 ("To do that would require sending this jury back home
with all the cost and expense involved of setting this case at some
later date. I don’t know when your mind is going to change again.
You have had ample opportunity and I see no choice but to pro-
ceed."). McQueen ultimately reached a plea agreement with the help
of a federal public defender.* McQueen argues that the district court
denied his right to counsel, that the denial caused him to plead guilty,
and, therefore, that the plea should not be considered in sentencing.
A defendant may collaterally challenge the use of a prior convic-
tion in sentencing if that conviction was obtained in violation of his
right to counsel. See Custis v. United States, 511 U.S. 485, 496
(1994). Here, it was not error for the district court to consider the
1995 plea in sentencing. First, McQueen was not denied his right to
counsel. The right to counsel is limited by the interest in proceeding
*The public defender was not officially designated as McQueen’s
counsel. The district court had asked someone from the public defender’s
officer to sit at the table with McQueen during jury selection, and that
public defender then acted as "messenger" in brokering the plea deal
between McQueen and the prosecution.
6 UNITED STATES v. MCQUEEN
with prosecutions on an orderly and expeditious basis. Cf. Sampley v.
Attorney Gen. of N.C., 786 F.2d 610, 613 (4th Cir. 1986) (holding
such in the context of a defendant’s ability to retain his own counsel).
It is not a denial of the right to counsel to refuse to indulge the defen-
dant’s transparent attempts at manipulation by requesting an attorney
on the day of trial. United States v. West, 877 F.2d 281, 286 (4th Cir.
1989) (holding that it was not error for the district court to deny a pro
se defendant’s request for counsel because of the "interest in proceed-
ing on schedule") (quoting United States v. Solina, 733 F.2d 1208,
1211-12 (7th Cir. 1984) ("If at the last minute he gets cold feet and
wants a lawyer to defend him he runs the risk that the judge will hold
him to his original decision in order to avoid the disruption of the
court’s schedule.")). Second, it is not at all clear (or necessarily true)
that McQueen agreed to the 1995 plea bargain because the district
court would not appoint counsel. It could just as well have been that
McQueen agreed to the plea because he was offered a good deal.
Because McQueen was not denied counsel for his 1995 guilty plea,
the district court did not err in enhancing the sentence based on
McQueen’s plea to possession with intent to distribute heroin.
B.
The government argues that McQueen should have been sentenced
as an armed career criminal. Had McQueen been sentenced as an
armed career criminal, the minimum sentence would have exceeded
the sentence imposed by sixty months. See 18 U.S.C. § 924(e)(1)
(providing for a minimum sentence of fifteen years). The district
court rejected the government’s request to sentence McQueen as an
armed career criminal without any analysis. Id. at 141 ("I find that the
Government’s additional request for an enhancement is not justi-
fied.").
A person who has three previous convictions for "violent felon-
[ies]" or "serious drug offense[s]" is subject to a mandatory minimum
sentence of 180 months. 18 U.S.C. § 924(e)(1). A "serious drug
offense" is defined as a drug offense under federal or state law "for
which a maximum term of imprisonment of ten years or more is pre-
scribed by law." 18 U.S.C. § 924(e)(2)(A)(i)-(ii). The term "violent
felony" is defined to include "any crime punishable by imprisonment
UNITED STATES v. MCQUEEN 7
for a term exceeding one year." 18 U.S.C. § 924(e)(2)(B). However,
for purposes of calculating the number of predicate offenses:
Any conviction which has been expunged, or set aside or for
which a person has been pardoned or has had civil rights
restored shall not be considered a conviction for purposes of
this chapter, unless such pardon, expungement, or restora-
tion of civil rights expressly provides that the person may
not ship, transport, possess, or receive firearms.
18 U.S.C. § 921(a)(20).
McQueen has two serious drug offenses: an April 1993 conviction
for possession with intent to deliver cocaine (10 year sentence) and
the August 1995 plea to possession with intent to distribute heroin (16
year sentence). J.A. 201-02. The question here is whether any of
McQueen’s other state convictions is sufficient to classify McQueen
as an armed career criminal under the statute and subject him to the
fifteen year mandatory minimum sentence.
McQueen argues that none of his other state convictions can serve
as a predicate offense because his civil rights, including his right to
possess a firearm, had been restored for all of the potentially relevant
state convictions. In this circuit, "a state conviction for a violent fel-
ony is not excluded from consideration under § 924(e) by the provi-
sions of § 921(a)(20) until the law of the relevant state effectively
restores to the defendant the right to possess firearms." United States
v. Clark, 993 F.2d 402, 405 (4th Cir. 1993). And under Clark, we
count as predicate offenses any violent felony convictions since the
last date that a defendant was allowed to possess a firearm under state
law.
Since the time that state law last allowed McQueen to possess a
firearm, McQueen was convicted of a violent felony: common law
robbery (in 1988). J.A. 197; see also United States v. Presley, 52 F.3d
64, 69 (4th Cir. 1995) (holding that common law robbery under Vir-
ginia state law was a violent felony for purposes of section 924(e)).
Even if the prohibition on possession of a firearm that arose as a
result of the common law robbery conviction had expired, McQueen
was convicted of other felonies during the prohibition period, which
8 UNITED STATES v. MCQUEEN
convictions have prevented the restoration of McQueen’s right to pos-
sess a firearm through the current date. In other words, because of his
repeated felony offenses over time, at no time since he committed the
common law robbery has McQueen been permitted under state law to
possess a firearm. Accordingly, McQueen is properly classified as an
armed career criminal under section 924(e).
Because McQueen does, in fact, have the three required predicate
offenses, it was error for the district court not to sentence McQueen
as an armed career criminal. McQueen’s sentence is, therefore,
vacated and the case is remanded for resentencing.
CONCLUSION
For the reasons stated herein, we affirm McQueen’s conviction and
vacate his sentence.
AFFIRMED IN PART AND VACATED IN PART