United States v. Decardio Glisson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4121

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DECARDIO LAMONT GLISSON,

Defendant – Appellant.

No. 10-4122

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DERRICK LIONELL GLISSON,

Defendant – Appellant.

Appeals from the United States District Court for the District
of South Carolina, at Columbia. Joseph F. Anderson, Jr.,
District Judge. (3:08-cr-00405-JFA-1; 3:08-cr-00405-JFA-2)

Argued: October 28, 2011 Decided: January 5, 2012

Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed in part, vacated in part, and remanded in part by
unpublished per curiam opinion. Judge Davis wrote an opinion
concurring in part and concurring in the judgment.

ARGUED: Jonathan McKey Milling, MILLING LAW FIRM, LLC, Columbia,
South Carolina; Robert Sneed, ROB SNEED LAW FIRM, LLC,
Greenville, South Carolina, for Appellant. Jeffrey Mikell
Johnson, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee. ON BRIEF: William N. Nettles, United
States Attorney, Robert F. Daley, Jr., Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Brothers Decardio Glisson (“Decardio”) and Derrick Glisson

(“Derrick”) appeal their convictions and sentences on an eight-

count indictment charging them with various narcotics and

firearms offenses under 21 U.S.C. §§ 841 and 846, and 18 U.S.C.

§§ 2, 922, and 924. In this consolidated appeal, the Glissons

raise a total of eleven issues alleging pretrial, trial, and

sentencing errors. In this opinion, we address only three:

whether the affidavit, which contained false information and

which was submitted in support of the search warrant, supported

a finding of probable cause; whether the district court properly

admitted a redacted version of the statement Derrick had given

to the police; and whether the district court correctly held

that Derrick’s conviction under 18 U.S.C. § 922(g)(9) did not

violate his Second Amendment rights. 1 For the following reasons,

we affirm Decardio’s conviction and sentence, and we affirm in

part and vacate and remand in part Derrick’s conviction and

sentence.

I

The circumstances leading to the Glissons’ convictions

arose out of several incidents that occurred in Sumter, South

1
We have reviewed the remaining issues and find them to be
without merit.

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Carolina, in the summer of 2007. Early on the day of June 14,

2007, there was gunfire on St. Paul Church Road in Sumter.

Several rounds of ammunition were fired into two residences, and

witnesses indicated the perpetrators were traveling by vehicle.

Later that day, Derrick arrived at the Tuomey Regional

Medical Center in a Dodge Ram pickup truck (the "truck") and

reported that he had been shot in his right hand. Local law

enforcement was notified that a gunshot victim had come to the

hospital for treatment. Officers from Sumter County arrived at

the hospital shortly thereafter. In the process of interviewing

several bystanders (one of whom was Decardio) near a truck which

was parked in the Tuomey parking lot, the officers learned that

Decardio and Derrick had been riding in the truck when Derrick

was shot in the hand. The officers also observed three shell

casings on the ground next to the truck. Standing outside the

truck, the officers were also able to observe blood on the

interior floorboard and a shell casing in the truck bed.

Believing that Derrick’s wound might be linked to the

earlier shooting incident, the officers sought a search warrant

for the truck. However, the affidavit which was submitted in

application for the search warrant contained numerous false

statements. After the search warrant was procured, the truck was

towed, and a subsequent search by the officers recovered

marijuana, cash, a knife, a loaded Glock .40 caliber semi-

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automatic pistol, a loaded Smith & Wesson 9mm semi-automatic

pistol, two spent 9mm cartridge casings, and a total of 152.71

grams of powder cocaine and 9.01 grams of crack cocaine. The

following day, an officer returned to the hospital and obtained

a sworn statement from Derrick which indicated, among other

things, that he had been a passenger in the truck the previous

day when he was shot in the hand and that Decardio had been the

driver of the truck.

Two months later, on August 23, 2007, Decardio was stopped,

while driving the same truck, for routine traffic violations. As

the officer approached the truck, he smelled the odor of burning

marijuana and observed in plain view a bag containing marijuana

on Decardio's lap. Decardio was arrested for possession of

marijuana and a search incident to that arrest revealed a gun,

marijuana, drug paraphernalia, over $1,000 in cash, and 1.4

grams of crack cocaine.

The Glissons were charged with conspiracy to distribute and

possess with intent to distribute cocaine base and cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B),

and 846 (Count One); possession with intent to distribute

cocaine base and cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(B), 841(b)(1)(C), and 18 U.S.C. § 2

(Count Two); and possession and use of a firearm in furtherance

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of a drug trafficking crime, in violation of 18 U.S.C. §§ 2 and

924(c)(1) (Count Three).

In addition, Decardio was charged with two counts of

possession of a firearm after having been convicted of a felony,

in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)

(Count Four and Count Eight); possession with intent to

distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1)

and 841(b)(1)(C) (Count Six); and possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1) (Count Seven). Derrick was charged with

possession of a firearm after having been convicted of a

misdemeanor crime of domestic violence, in violation of 18

U.S.C. §§ 922(g)(9), 924(a)(2), and 924(e) (Count Five).

II

Before trial, the Glissons moved for a hearing pursuant to

Franks v. Delaware, 438 U.S. 154 (1978), and to suppress the

evidence seized as a result of the search of the truck. The

Glissons argued that the affidavit submitted in support of the

application for the search warrant contained numerous false

statements and that without these statements, probable cause did

not exist to issue a search warrant for the truck. Thus, they

argued that the narcotics and firearms found in the truck, which

were discovered as the result of an invalid search and which

6
formed the basis of some of the counts against them, should be

suppressed.

Additionally, Decardio filed a pretrial motion, under Bruton

v. United States, 391 U.S. 123 (1968), to suppress the statement

Derrick provided to the police which linked Decardio to the

truck. Decardio argued that Bruton precluded the use of

Derrick’s statement in their joint trial because Derrick would

be a non-testifying codefendant and Decardio would not have the

opportunity to cross-examine Derrick. Further, Derrick moved to

dismiss Count 5 of the indictment, which charged him with

possessing a firearm after being convicted of a misdemeanor for

domestic violence, arguing that 18 U.S.C. § 922(g)(9) violates

his Second Amendment right to keep and bear arms.

The district court orally denied Derrick’s motion to dismiss

Count 5. The district court then held an evidentiary hearing on

the Glissons’ motion to suppress the evidence found during the

search of the truck. In its subsequent order denying that

motion, the district court found that the affidavit supported a

finding of probable cause even after the false statements had

been removed. The district court kept the Bruton motion under

advisement, but on the first day of the trial ruled in favor of

the government on the Bruton issue and permitted a redacted

version of Derrick’s statement to be introduced into evidence.

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 After the district court denied motions for judgment of

acquittal, the jury returned a verdict finding Decardio guilty

on Counts One, Two, Three, Four, and Eight, but acquitting him

on Counts Six and Seven, and finding Derrick guilty of Counts

One, Two, Three, and Five. The district court overruled the

Glissons’ objections to their pre-sentence report and sentenced

Derrick to 198 months imprisonment and Decardio to 226 months.

III

A

On appeal, the Glissons argue the district court erred in

denying their motion to suppress the evidence seized from the

truck. We review de novo the legal conclusions underlying a

district court's decision not to suppress evidence, and we

review its factual findings for clear error. United States v.

Gary, 528 F.3d 324, 327 (4th Cir. 2008). Under Franks v.

Delaware, the district court must determine whether, after the

“material that is the subject of the alleged falsity or reckless

disregard is set to one side, there remains sufficient content

in the warrant affidavit to support a finding of probable

cause.” 438 U.S. at 171-72. The false information “must do more

than potentially affect the probable cause determination: it

must be necessary to the finding of probable cause.” United

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States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990) (internal

quotation marks and citation omitted).

We hold that the district court did not err in denying the

Glissons’ motion to suppress. Although it is undisputed that the

affidavit supporting the search warrant contained numerous false

statements, 2 the district court correctly found that after the

false statements are removed from the affidavit the remaining

information in the affidavit still “informs that a subject

arrived to the hospital with a gunshot wound, that there were

spent shell casings throughout the vehicle in which the subject

arrived, and that there had been a shooting earlier in the day.”

J.A. 240. In light of this, we agree with the district court

that “there is a fair probability that contraband or evidence of

a crime will be found in a vehicle which has blood, firearm

shell casings, and an individual with a gunshot wound as its

cargo.” J.A. 240. Therefore, we find that when the false

information is excised from the affidavit, the remaining factual

allegations are sufficient for a magistrate to find probable

cause for a search warrant.

2
While the false statements are not determinative in this
case, the fact that law enforcement officials presented the
magistrate with an affidavit containing these falsehoods
reflects unfavorably on the officials involved.

9
 B

In his statement to the police while he was at the

hospital, Derrick implicated Decardio as the driver of the truck

at the time of the shooting and the driver who drove Derrick to

Tuomey. Decardio argued below and continues to argue on appeal

that Derrick's statement, when combined with other testimony at

trial, is inculpatory evidence that unfairly incriminates

Decardio as possessing the contraband found in the truck.

Decardio argues, therefore, that the district court erred in

admitting into evidence a redacted version of Derrick’s

statement to the police because use of the statement would

violate his Sixth Amendment right to confront and cross-examine

Derrick regarding this statement.

“We review the district court’s admission or exclusion of

evidence for an abuse of discretion.” United States v. Lighty,

616 F.3d 321, 351 (4th Cir. 2010). We hold that, in accordance

with Bruton v. United States, the district court did not abuse

its discretion by admitting a redacted version of the signed

statement into evidence. The references to Decardio were

replaced with “another person,” “other person,” and “the

driver.” J.A. 1014. Although the statements, when combined with

other evidence, may have incriminated Decardio, such inferential

incrimination does not violate the Confrontation Clause. See

United States v. Akinkoye, 185 F.3d 192, 198 (4th Cir. 1999)

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(approving of neutral phrases in the redaction such as “another

person” or “another individual”); United States v. Vogt, 910

F.2d 1184, 1191-92 (4th Cir. 1990) (noting that a redacted

statement, in which the co-defendant’s name was replaced with

the word “client,” did not on its face impermissibly incriminate

the codefendant even though the incriminating import was

inferable from other evidence that had been admitted).

Accordingly, we hold that the district court did not abuse its

discretion by admitting the redacted statement into evidence.

C

Finally, Derrick argues that 18 U.S.C. § 922(g)(9), which

prohibits the possession of firearms by a person convicted of a

misdemeanor crime of domestic violence, imposes an undue burden

on his Second Amendment rights under District of Columbia v.

Heller, 554 U.S. 570 (2008). Thus, he argues that the district

court erred in failing to dismiss his conviction under Count

Five and that his conviction should be vacated and remanded to

the district court for an individualized determination as to

whether § 922(g)(9) is unconstitutional as applied to him.

In United States v. Chester, 628 F.3d 673 (4th Cir. 2010),

which was decided while this case was on appeal, we adopted a

two-step approach to Second Amendment challenges: First, we

examine “whether the challenged law imposes a burden on conduct

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falling within the scope of the Second Amendment's guarantee.”

Id. at 680. Second, using an intermediate scrutiny standard, the

government then bears the burden of demonstrating a “reasonable

fit between the important object of reducing gun violence and

§ 922(g)(9)’s permanent disarmament of all domestic-violence

misdemeanants.” Id. at 683. In Chester, we concluded that the

record on appeal was insufficient to determine whether the

government had met its burden, so we remanded the case in order

for both sides to “have an opportunity to present their evidence

and their arguments to the district court in the first

instance.” Id.

In light of Chester, we believe that remand of this issue

is appropriate in order for the district court to determine in

the first instance whether § 922(g)(9) is unconstitutional as

applied to Derrick’s conviction on Count Five. Therefore, we

vacate Derrick’s judgment and sentence as it relates to Count

Five and remand this issue to the district court.

IV

For the foregoing reasons, we affirm Decardio's conviction

and sentence. We affirm Derrick's conviction and sentence except

for the judgment and sentence on Count Five, which we vacate and

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remand to the district court for a hearing consistent with this

opinion.

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED IN PART

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DAVIS, Circuit Judge, concurring in part and concurring in the
judgment:

I concur in part and concur in the judgment, but I write

separately to make two observations.

First, I am unable to join in Part III.A of the majority

opinion affirming the district court’s denial of the Glissons’

motion to suppress under Franks v. Delaware, 438 U.S. 154

(1978). Instead, I conclude that the longstanding automobile

exception to the Fourth Amendment warrant requirement plainly

applies to the circumstances presented in this case and obviates

any necessity to examine the propriety of the district court’s

treatment of the Franks issue. While the government does not

rely on the automobile exception on appeal, the government

asserted the exception in opposition to the Glissons’ motion to

suppress below and we may affirm on any ground supported by the

record. See Allen v. Lee, 366 F.3d 319, 343 (4th Cir. 2004).

Under the automobile exception to the Fourth Amendment

warrant requirement, law enforcement officers may search a

vehicle if it is “‘readily mobile’” and “‘probable cause exists

to believe it contains contraband,’” United States v. Kelly, 592

F.3d 586, 589 (4th Cir.) (quoting Pennsylvania v. Labron, 518

U.S. 938, 940 (1996)), cert. denied, 130 S. Ct. 3374 (2010), or

even mere evidence, Arizona v. Gant, 556 U.S. 332, ---, 129 S.

Ct. 1710, 1721 (2009) (“If there is probable cause to believe a

14
vehicle contains evidence of criminal activity, United States v.

Ross, 456 U.S. 798, 820-821 (1982), authorizes a search of any

area of the vehicle in which the evidence might be found.”). The

scope of the search “is as broad as a magistrate could

authorize.” Kelly, 592 F.3d at 589. Therefore, “once police have

probable cause, they may search ‘every part of the vehicle and

its contents that may conceal the object of the search.’” Id. at

590 (quoting Ross, 456 U.S. at 825).

Here, the truck was readily mobile ∗ and the officers had

probable cause to believe it contained evidence of one or more

criminal offenses. Specifically, the officers learned that (1)

the Glissons had been riding in the truck when Derrick suffered

a gunshot wound and (2) they had arrived at the hospital in the

truck. The officers observed three shell casings on the ground

next to the vehicle, as well as a shell casing in the bed of the

vehicle and blood on the interior floorboard. Indisputably,

therefore, the record here shows that probable cause existed to

∗
There was testimony that one of the officers parked his
car near or behind the truck, which the Glissons contend
“prevent[ed] access or movement of [the truck],” Appellant’s Br.
7, but this does not undermine application of the automobile
exception. See Kelly, 592 F.3d at 590-91 (rejecting defendant’s
argument that the automobile exception does not apply “because
the police exercised control over the vehicle and had therefore
eliminated any potential exigencies” as there was “little risk
that [the car] would be driven away” because “[the car] was
operational and therefore readily mobile”).

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believe that evidence of criminal offenses arising from a

felonious shooting, e.g., live and/or spent ammunition, bullet

fragments, shell casings, myriad microscopic evidence, evidence

of ownership and/or use of the vehicle itself, among other

potential evidence, would be discovered in the vehicle.

To be sure, officers are certainly to be applauded whenever

they seek a warrant in lieu of undertaking a warrantless search.

United States v. Srivastava, 540 F.3d 277, 288 (4th Cir. 2008)

(“Our Court—as well as the Supreme Court and other judicial

bodies—has consistently encouraged the authorities to act

prudently in the Fourth Amendment context, and, when the

circumstances permit, to seek and secure the authorization of a

judicial officer—in the form of a warrant—before conducting a

search or seizure.”), cert. denied, 129 S. Ct. 2826 (2009).

Nonetheless, their decision here, grounded in commendable

caution, to seek a warrant does not mean, as a matter of settled

law, they actually needed one to search the vehicle under the

circumstances confronting them in this case.

Second, our remand of the indictment count charging a

violation of 18 U.S.C. § 922(g)(9) in Part III.C may seem

puzzling in some sense in light of United States v. Staten, ---

F.3d ---, 2011 WL 6016976 (4th Cir. Dec. 5, 2011), but given the

disposition of this appeal, it would seem likely that the

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government will move successfully to dismiss that charge

altogether upon remand.

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