United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 10, 2012 Decided February 24, 2012
No. 11-3020
UNITED STATES OF AMERICA,
APPELLEE
v.
RUSSEL C. WASHINGTON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cr-00157-1)
John A. Briley Jr., appointed by the court, argued the cause
and filed the brief for appellant.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Roy W. McLeese III, Assistant
U.S. Attorney.
Before: ROGERS and GRIFFITH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
2
ROGERS, Circuit Judge: When the police stopped appellant
for driving at night with no car lights on, a minor traffic offense,
they noticed a strong smell of alcohol coming from the car, saw
a small amount of red liquid in an open cup in the car, and
arrested him for violating D.C. Code § 25-1001(a)(2) (2001).
Upon searching the car, the police found a loaded gun under the
driver’s seat. Possession of a firearm by a person previously
convicted of a felony, which appellant was, is a violation of both
D.C. Code § 22-4503(a)(1) (2001) and 18 U.S.C. § 922(g)(1)
(2006). The U.S. Attorney for the District of Columbia
prosecuted appellant in federal court. See D.C. Code § 23-
101(c). Following the denial of his motion to suppress evidence,
appellant entered a conditional plea to the indictment and was
sentenced to 57 months’ imprisonment, the bottom of the U.S.
Guidelines sentencing range.
On appeal, appellant challenges the denial of his motion to
suppress evidence and his sentence. His Fourth Amendment
challenge is based on the contention that the “infinitesimal,”
Appellant’s Br. 8, amount of red liquid observed by the police
in the cup was insufficient to establish probable cause to arrest
him for violating D.C. Code § 25-1001(a)(2) and therefore to
search the car. The district court, however, credited police
testimony about the strong odor of alcohol coming from the car,
the red liquid in the uncovered cup, a puddle on the car
floorboard near the driver’s seat, and appellant’s movements
after he was ordered to stop the car; appellant does not challenge
these findings. This testimony supported the district court’s
conclusion that a reasonable police officer could infer that
appellant had poured the liquid from the cup while driving.
Upon arresting appellant with probable cause to believe he was
driving in possession of an open container of alcohol, the police
had an objectively reasonable basis to search the car for
evidence of that offense. Therefore, the district court did not err
in denying appellant’s motion to suppress evidence.
3
In challenging his sentence, appellant contends that the
district court abused its discretion by “summarily reject[ing]”
his request that the sentencing decision take into account the
sentencing disparity under the D.C. Voluntary Sentencing
Guidelines (2010) resulting from the U.S. Attorney’s
“arbitrar[y]” election to prosecute him in federal court.
Appellant’s Br. 7. The district court, however, acknowledged its
discretion under the advisory federal sentencing guideline
regime after United States v. Booker, 543 U.S. 220 (2005), to
begin its analysis with the U.S. Guidelines and end with the D.C.
Guidelines. Upon finding no abuse or unfairness by the U.S.
Attorney in prosecuting appellant under federal rather than D.C.
law, the district court addressed the relevant statutory factors in
18 U.S.C. § 3553(a) and determined that a significant period of
incarceration was necessary, although not as long as the
government recommended nor as short as appellant urged on the
basis of the D.C. Guidelines. Given the district court’s
consideration of the statutory factors and of appellant’s
arguments in aid of sentencing, and the district court’s reasoned
explanation of its sentencing determination, there was neither
procedural error nor substantive abuse of discretion by the
district court. Accordingly, we affirm the judgment of
conviction.
I.
Around 3 a.m. on May 7, 2010, Metropolitan Police
Officers Derek Gawrilow and Benjamin Finck saw a car moving
on the road without having its lights on. They ordered appellant,
who was driving, to pull over. Appellant continued to drive
about a block before stopping; during that time the officers
observed his shoulders moving. Upon approaching the driver’s
window to request information, Officer Gawrilow noticed a
“fairly strong” smell of alcohol coming from the car. Tr. Mot.
Hr’g, Oct. 6, 2010, at 13. Both officers saw a clear plastic cup
4
in a backseat cup holder and a puddle of liquid on the floorboard
near the driver’s seat. Officer Gawrilow testified that he asked
appellant to hand him the cup, and that upon examining it he
saw “a small amount of red liquid,” which “smelled consistent
with the odor of [an] alcoholic beverage.” Id. at 14; see id. at
58. The officers arrested appellant for possession of an open
container of alcohol in a vehicle in violation of D.C. Code § 25-
1001(a)(2), and then searched the car for “additional items of
evidence” related to that charge, Tr. Mot. Hr’g at 23. Officer
Finck found a Glock .40 caliber handgun under the driver’s seat;
it was loaded with 14 rounds of ammunition. The officers did
not issue appellant a citation for driving without having his car
lights on in violation of D.C. Mun. Regs. Tit. 18 § 703.1.
Appellant, who had previously been convicted of two
felonies, was indicted by a federal grand jury on one count of
unlawful possession of a firearm by a felon in violation of 18
U.S.C. § 922(g)(1). After an evidentiary hearing, the district
court denied appellant’s motion to suppress the gun and
ammunition, rejecting his argument that the officers lacked
probable cause to arrest him and therefore lacked grounds to
search the car for related evidence. Appellant entered a
conditional guilty plea to the indictment pursuant to Federal
Rule of Criminal Procedure 11(a)(2). The pre-sentence
investigative report calculated the U.S. Guidelines sentencing
range at 57 to 71 months’ imprisonment, based on a offense
level of 24, appellant’s early acceptance of responsibility, and
his criminal history. The district court sentenced appellant to 57
months’ imprisonment and 36 months’ supervised release.
II.
D.C. Code § 25-1001(a)(2) provides that “no person in the
District [of Columbia] shall . . . possess in an open container an
alcoholic beverage in . . . [a] vehicle in or upon any street, alley,
5
park, or parking area . . . .” It is a misdemeanor offense,
punishable by a maximum fine of $500, or imprisonment for a
maximum of ninety days, or both. Id. § 25-1001(d). Appellant
does not deny that he was driving the car at night without lights
in violation of D.C. Mun. Regs. Tit. 18 § 703.1, or that the
officers’ stop of the car was lawful, see Whren v. United States,
517 U.S. 806, 810 (1996). Instead he contends that the police
lacked probable cause to arrest him for violating D.C. Code
§ 25-1001(a)(2) because there was an insufficient amount of
liquid in the cup.
Probable cause to arrest exists where a police officer has
information “sufficient to warrant a prudent [individual] in
believing that the [suspect] had committed or was committing an
offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964); see Illinois v.
Gates, 462 U.S. 213, 230–31 (1983). This court reviews the
determination of probable cause de novo, while reviewing
historical facts for clear error and giving due weight to
inferences drawn by the district court and the police. See
Ornelas v. United States, 517 U.S. 690, 699 (1996).
The fact that the cup contained only a small (or
“infinitesimal,” Appellant’s Br. 8) amount of red liquid at the
time of the officers’ observations does not, as appellant
suggests, demonstrate a lack of probable cause to believe he was
violating the prohibition against possessing an open container of
alcohol in a vehicle on the road. Appellant was the only person
in the car at the time the officers noticed he was driving without
having his car lights on. He does not challenge either the
characterization of the cup as an open container, see D.C. Code
§ 25-101(35), or the district court’s findings that the police
identified the odor of alcohol coming from the car, the cup, and
the puddle behind the driver’s seat, and saw appellant’s
shoulders moving while driving the car an additional block.
This evidence supports the district court’s conclusion that a
6
reasonable officer could infer that appellant had poured alcohol
out of the cup and onto the car floorboard before obeying the
police signal to pull over and stop the car. See Derosiers v. Dist.
of Columbia, 19 A.3d 796, 799–801 (D.C. 2011).
Because the officers had probable cause to arrest appellant
for driving with an open container of alcohol in violation of
D.C. Code § 25-1001(a)(2), upon arresting him they could
search the car for evidence related to the arrest, Arizona v. Gant,
556 U.S. 332, 129 S. Ct. 1710, 1719 (2009). It was objectively
reasonable, given the “small amount” of red liquid in the cup
and the puddle on the car floorboard that the officers testified
smelled of alcohol, for the officers to believe they might find
another container of alcohol in the car — i.e., the source of the
liquid in the cup and the puddle. See id.; United States v.
Vinton, 594 F.3d 14, 25 (D.C. Cir. 2010). Appellant thus fails
to show that the search, which led to the discovery of the loaded
gun under the car driver’s seat, violated the Fourth Amendment.
III.
In challenging his sentence, appellant contends the district
court’s failure fully to consider the possible unfairness of a 33-
month disparity between the minimum sentences authorized by
the U.S. and D.C. Guidelines was a “clear and unexplained
abuse of [] discretion.” Appellant’s Br. 7. While
acknowledging that the U.S. Attorney’s charging decision
generally is not subject to challenge in this circuit for violation
of due process,1 appellant maintains nothing bars the district
1
In Mills v. United States, 925 F.2d 455, 461–62 (D.C. Cir.
1991) (citations omitted), vacated, 933 F.2d 1042 (D.C. Cir. 1991),
reinstated in pertinent part, 964 F.2d 1186, 1188 n.3 (D.C. Cir. 1992)
(en banc), this court held that “[t]he prosecutor is of course
constitutionally prohibited from basing these decisions on an
7
court from considering the disparity between the U.S. and D.C.
Guidelines under the statutory sentencing factors. He submits,
as we understand his argument, that because the prosecution
grew out of a minor traffic violation and was punishable under
D.C. law, fulfillment of the general principles and goals in 18
U.S.C. § 3553(a)(2) regarding the promotion of respect for the
law, just punishment for the offense, and adequate deterrence of
criminal conduct by others, should be measured by local
sentencing standards rather than those established by the U.S.
Sentencing Commission. See Appellant’s Br. 10. What
appellant characterizes as the district court’s “blind deference to
the prosecutorial decision” is, he suggests, “a clear indication
that the trial judge had little interest in weighing appellant’s
D.C. Code–based arguments against other factors on which she
balanced her sentencing decision.” Appellant’s Br. 11.
In Booker, 543 U.S. at 245, 260–62, the Supreme Court
held that the U.S. Guidelines were advisory only, and that
federal sentences should be reviewed for reasonableness. An
abuse of discretion standard cabins our review of appellant’s
sentence. See Gall v. United States, 552 U.S. 38, 41 (2007).
This court considers whether there was a “significant procedural
error.” Id. at 51; see United States v. Olivares, 473 F.3d 1224,
1226 (D.C. Cir. 2006). Procedural error includes failing
properly to calculate the guideline range or to consider § 3553(a)
factors, sentencing on the basis of erroneous facts, or failing
adequately to explain the chosen sentence, including any
deviation from the U.S. Guidelines range. Gall, 552 U.S. at 51.
Absent a finding of a significant procedural error, the court
reviews the substantive reasonableness of the sentence. Id.
individual defendant’s race, sex, religion or previous exercise of a
legal right,” but where the exercise of prosecutorial discretion is
“rational and nondiscriminatory, [] there generally is no basis for
finding a violation of due process.”
8
Congress recognized that there could be occasions where a
sentencing judge would find that “an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into
consideration” by the U.S. Sentencing Commission, would
justify departure from the sentencing range provided in the U.S.
Guidelines. 18 U.S.C. § 3553(b). Arguably, such a
circumstance might arise from the unique role of the U.S.
Attorney of the District of Columbia as both the federal and
local prosecutor, see D.C. Code § 23-101(c), where an offense
is punishable under federal and D.C. law. Although appellant
does not explicitly rely on § 3553(b), his reference to the U.S.
Attorney’s arbitrariness in bringing a federal prosecution
implicitly invokes its provisions. Indeed appellant’s counsel
observed during oral argument that, despite his long experience
as defense counsel in this jurisdiction, it was often unclear to
him why a criminal case that begins in the local D.C. courts ends
up in the federal courts, and vice versa. Oral Argument at
32:05–40. The district court similarly acknowledged this
movement between the local and federal courts. See Tr. Sent.,
Feb. 4, 2011, at 18–19. But this court rejected that argument
long ago.
In United States v. Clark, 8 F.3d 839 (D.C. Cir. 1993), this
court “rejected the claim that the [U.S.] government’s ‘arbitrary
use’ of its discretion to indict defendants under either federal or
D.C. law could be a mitigating circumstance within the meaning
of § 3553(b).” Id. at 842 (citation omitted). The court stated
that “the ‘unique status of the District of Columbia’ is not a
mitigating factor within the meaning of 18 U.S.C. § 3553,”
explaining that a circumstance is “mitigating” for purposes of
§ 3553(b) only if it is “linked to one of the stated purposes of
sentencing,” id. (citing 18 U.S.C. § 3553(a)(2)), and further that
“mitigating circumstances” do not include “routine exercise[s]
of prosecutorial discretion,” even “the [U.S.] government’s
9
‘arbitrary use’ of its discretion to indict defendants under either
federal or D.C. law,” id. The court cited United States v.
Dockery, 965 F.2d 1112, 1117 (D.C. Cir. 1992), where it had
observed that the U.S. Sentencing Commission “almost certainly
did not intend that decisions traditionally within the prosecutor’s
ken, and within reasonable bounds, be counterbalanced by the
sentencing court.”
In Clark the court also rejected the claim that disparities
between the U.S. and D.C. Guidelines may warrant a downward
departure pursuant to 18 U.S.C. § 3553(a)(6).2 It reasoned that,
“[b]y conforming the sentences of federal defendants in the
District of Columbia to those imposed by the [local D.C.]
Superior Court, the [federal] district court would pull federal
defendants in the District of Columbia out of the nationwide net
of the [U.S.] Sentencing Guidelines,” thereby “increas[ing]
sentencing disparity between federal defendants and
contraven[ing] the Guidelines’ goal of achieving sentencing
uniformity in federal courts across the country.” Id. at 843.
Although Clark was decided before Booker, it controls the
interpretation of 18 U.S.C. § 3553(a)(6) and (b) in this circuit
and thus our review of appellant’s sentencing challenge.3 That
2
Section 3553(a)(6) requires the sentencing court to consider
“the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct.”
3
Even after the Supreme Court held in Booker, 543 U.S. at
245, that the U.S. Guidelines were advisory only, other circuits have
held that § 3553(a)(6) applies only to disparities among sentences for
federal defendants, and that the district court does not abuse its
discretion in not considering a potential disparity between federal and
state sentences for the same offense. See, e.g., United States v.
Deegan, 605 F.3d 625, 635 (8th Cir. 2010), cert. denied, 131 S. Ct.
2094 (2011); United States v. Johnson, 505 F.3d 120, 123–24 (2d Cir.
2007) (citing cases from the Fourth, Seventh, and Tenth Circuits).
10
is, although post-Booker nothing necessarily precludes
consideration of the D.C. Guidelines in the district court’s
exercise of discretion in determining a particular sentence, Clark
precludes treatment of the U.S. Attorney’s lawful exercise of
discretion in bringing a federal prosecution as a mitigating
circumstance under § 3553(b), and treatment of sentencing
disparities between the U.S. and D.C. Guidelines as sufficient to
support a departure under § 3553(a)(6).
Appellant did not, however, rely solely on the disparity
factor addressed in § 3553(a)(6), but also called the district
court’s attention to “[t]he nature and circumstances of the
offense and the history and characteristics of the defendant”
addressed in § 3553(a)(1). Def. Mem. Aid Sent., Jan. 31, 2011,
at 2. Defense counsel emphasized that appellant’s two felony
convictions occurred when he was a teenager and his latest
conviction, for a misdemeanor, occurred in 2007. Id. at 4.
Among other things, counsel noted appellant’s recent
completion of a “lengthy non-residential program to address his
issues involving substance abuse,” and his recent efforts to
“organize his personal lifestyle . . . along constructive lines.” Id.
The government, in turn, emphasized the likelihood of harm
resulting from appellant’s driving a car with an open container
of alcohol and a gun within easy reach, as well as appellant’s
criminal history; it urged the district court to impose a sentence
of 64 months, in the middle of the U.S. Guidelines range.
The district court, in considering the nature and
circumstances of the offense, see § 3553(a)(1), found that
appellant, as a felon in possession of a gun and alcohol while
driving in the middle of the night, had committed a serious
offense. In considering the necessary sentence, see
§ 3553(a)(2), the district court found that appellant’s criminal
history showed “almost constant criminal conduct,” Tr. Sent. at
21, including seven convictions as an adult, two of which were
11
felonies, but little incarceration time. Although crediting
appellant, who was 28 years old, for finishing a drug treatment
program and endeavoring to turn his life around, the district
court took a more skeptical view of his success than defense
counsel, noting appellant’s failure to abide by conditions of his
release on high intensity supervision and his appearance in court
the previous day while under the influence of alcohol.
Considering the need to deter future criminal conduct, promote
respect for the law, protect the public, and provide appellant
with drug treatment (and perhaps anger management), see
§ 3553(a)(2), the district court concluded that a sentence within
the U.S. Guidelines range was necessary, and sentenced
appellant to the bottom of that range.
In so proceeding, the district court did not err in failing to
give greater weight to appellant’s D.C. Code–based arguments.
The sentencing record indicates that the district court did not
“blindly defer” to the U.S. Attorney’s decision to prosecute
appellant in federal court, but rather discerned no indication of
abuse or “material[] unfair[ness]” in that decision, Tr. Sent. at
19. On appeal, appellant offers nothing that would undermine
that finding, much less show it was clearly erroneous. Further,
the district court acknowledged its broad discretion in
sentencing, including ending with consideration of the D.C.
Guidelines. Defense counsel’s memorandum in aid of
sentencing set forth appellant’s disparity argument and
counsel’s view of how the district court should evaluate
appellant’s criminal history and recent conduct. The district
court’s explanation of the sentence to be imposed followed from
its consideration of the relevant statutory factors in view of
appellant’s arguments. Although the district court must “‘make
an individualized assessment based on the facts presented,’” In
re Sealed Case, 527 F.3d 188, 191 (D.C. Cir. 2008) (quoting
Gall, 552 U.S. at 50), “the procedural requirement that the
district court ‘consider’ a particular § 3553(a) factor does not
12
depend on how heavily the court weighs that factor,” United
States v. Gardellini, 545 F.3d 1089, 1094 n.6 (D.C. Cir. 2008)
(citing Gall, 552 U.S. at 52–55). So too, the district court’s
assessment of considerations urged by a defendant in applying
the statutory factors need not be lengthy to demonstrate they
were not ignored. See Rita v. United States, 551 U.S. 338,
358–59 (2007).
Where the district court imposes a sentence within the U.S.
Sentencing Guidelines range, this court “may apply a
presumption of reasonableness” to the sentence. Id. at 347; see
also Gardellini, 545 F.3d at 1096. In view of the district court’s
consideration of the appropriate statutory factors and the
reasoned explanation of its decision to require a significant
period of incarceration, there was no substantive abuse of
discretion by the district court in imposing a sentence at the
bottom of the U.S. Guidelines range. Accordingly, we affirm
the judgment of conviction.