United States v. Brit McCullum

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-5037

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

BRIT ALZONIA MCCULLUM,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00128-FDW-1)

Submitted: January 10, 2012 Decided: March 15, 2012

Before TRAXLER, Chief Judge, FLOYD, Circuit Judge, and J.
Michelle CHILDS, United States District Judge for the District
of South Carolina, sitting by designation.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Steven T. Meier, MEIER LAW, Charlotte, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, Mark T.
Odulio, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Brit Alonzia McCullum was convicted and sentenced for

possession of a firearm by a felon, possession with intent to

distribute marijuana, and possession of a firearm in furtherance

of a drug trafficking crime. On appeal, McCullum challenges the

denial of his motion to suppress and his classification as a

career offender at sentencing. For the reasons that follow, we

affirm McCullum’s convictions, vacate his sentences, and remand

for resentencing in light of United States v. Simmons, 649 F.3d

237 (4th Cir. 2011) (en banc).

On January 31, 2007, Officer Van Almen, a member of

the Charlotte-Mecklenburg Police Department (“CMPD”), was on

patrol in his police cruiser in an area of Charlotte known to

law enforcement for high crime and drug activity. He began

following a Dodge Ram pickup truck that had been reported

stolen. The pickup truck was occupied by three men. After

momentarily losing sight of the pickup truck, Van Almen found

the truck in a nearby parking lot and observed a man running

from the area. Van Almen decided not to pursue him. Instead,

he entered the parking lot to further investigate the pickup

truck and saw a person later identified as McCullum driving a

Cadillac Eldorado toward the parking lot exit. Recalling a

2
report about a stolen Cadillac, Van Almen blocked the exit with

his police cruiser, preventing McCullum from leaving the parking

lot.

When McCullum realized he could not leave the parking

lot through the exit, he aggressively drove the Cadillac in

reverse approximately fifty yards at a high rate of speed past

open parking spaces and pulled the vehicle into the last

available parking space. Van Almen believed that McCullum was

trying to get away from him, so he drove toward the Cadillac.

McCullum got out of the Cadillac, began running, and did not

stop when Van Almen ordered him to do so. Van Almen therefore

chased McCullum, caught him, and, after a struggle, placed him

under arrest for resisting a police officer. A search of

McCullum incident to his arrest yielded $2,734 in cash and a set

of keys that belonged to the Cadillac. McCullum was handcuffed,

placed in the back seat of a patrol car, and transported back to

the area where the Cadillac was parked.

During this time, other officers had arrived and had

conducted a search of the Cadillac passenger compartment but

found nothing of note. Van Almen went to the Cadillac and used

one of the keys recovered from the search of McCullum to open

the trunk compartment. While Van Almen was searching the trunk,

a security guard patrolling the parking lot approached Van Almen

to speak with him. The parking lot where the Cadillac was

3
parked was privately owned, and the security guard banned

McCullum from the premises and wanted the Cadillac removed as

well. Van Almen spoke with his supervising officer, Sergeant

Jones, and got permission to have the Cadillac towed. The

search of the trunk ultimately yielded a large bag of marijuana,

weighing 63.2 grams, and a 31-round magazine for a Glock pistol,

fully loaded with 9mm ammunition.

After searching the trunk compartment, Van Almen

discovered that the glove box was locked. The keys he had taken

from McCullum did not unlock it, and McCullum claimed that he

did not know how to open it. Van Almen consulted with Sergeant

Jones concerning whether the circumstances warranted using force

to open the glove box. Sergeant Jones gave McCullum permission

to open the glove box, concluding that the presence of the

marijuana, the clip of ammunition, and the large amount of U.S.

currency found on McCullum gave the officers probable cause to

go into the locked glove box. Van Almen then forced open the

glove box and found a fully-loaded Glock 19c handgun with a

laser beam sight attachment. Van Almen ultimately had the

Cadillac towed as requested by the security guard.

McCullum was charged with (1) possession of a firearm

by a felon, in violation of 18 U.S.C. § 922(g)(1); (2)

possession with intent to distribute marijuana, in violation of

21 U.S.C. § 841(a)(1); and (3) possession of a firearm in

4
furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924 (c)(1)(A). Prior to his trial, McCullum filed a

motion to suppress the evidence recovered in the search of the

Cadillac. The district court denied the motion on two

alternative grounds. The court first concluded that Van Almen

had probable cause. According to the court, the money found on

McCullum’s person, the fact that he fled, and the fact that

McCullum was in a high-crime area, along with the background

evidence about the investigation of the stolen pickup truck,

amounted to probable cause to open the trunk of the Cadillac.

Adding the fully loaded, 31-round magazine found in the trunk

compartment to the above list of facts and evidence, according

to the court, gave Van Almen probable cause to then forcibly

open the glove box. Alternatively, the district court concluded

that the items recovered from the Cadillac would have been

inevitably discovered pursuant to CMPD’s inventory policy.

The case went to trial, and a jury returned a verdict

of guilty on all charges. At sentencing, the district court

accepted the presentence report’s (“PSR”) classification of

McCullum as a career offender based on three prior drug

offenses, see U.S.S.G. § 4B1.1(a) (2008), and sentenced him to

three consecutive 120-month sentences. On appeal, McCullum

contends that the district court erred in denying his motion to

5
suppress and erred in classifying him as a career offender. We

address each claim in turn.

II.

We turn first to McCullum’s challenge to the denial of

his suppression motion. “In reviewing the denial of a motion to

suppress, we review the district court's legal conclusions de

novo and its factual findings for clear error.” United States

v. Phillips, 588 F.3d 218, 223 (4th Cir. 2009). “[W]e must

construe the evidence in the light most favorable to the

prevailing party, and give due weight to inferences drawn from

those facts by resident judges and law enforcement officers.”

United States v. Lewis, 606 F.3d 193, 197 (4th Cir. 2010)

(internal citation and quotation marks omitted). We may affirm

a district court’s ruling on a motion to suppress on any ground

apparent from the record. United States v. Smith, 395 F.3d 516,

519 (4th Cir. 2005).

“Generally, the exclusionary rule provides that

evidence obtained in violation of the Fourth Amendment cannot be

used in a criminal proceeding against the victim of the illegal

search and seizure.” United States v. DeQuasie, 373 F.3d 509,

519 (4th Cir. 2004) (internal quotation marks omitted). Under

the inevitable discovery exception to the exclusionary rule,

however, evidence that is illegally seized is nonetheless

6
admissible if the government can prove “by a preponderance of

the evidence that the information ultimately or inevitably would

have been discovered by lawful means.” Nix v. Williams, 467

U.S. 431, 444 (1984). A routine inventory search policy may

serve as the basis for the admission of evidence under the

inevitable discovery doctrine. See United States v. George, 971

F.2d 1113, 1121 (4th Cir. 1992). For an inventory search to be

valid, “the search must have be[en] conducted according to

standardized criteria, such as a uniform police department

policy, and performed in good faith.” United States v.

Matthews, 591 F.3d 230, 235 (4th Cir. 2009) (alteration in

original, internal citation and quotation marks omitted).

In this case, Van Almen had the Cadillac towed because

McCullum had been banned from the premises where the vehicle was

parked and a representative of the owner of the parking lot

wanted the car taken off the lot. The government presented

evidence that CMPD has a policy of conducting an inventory

search on every vehicle that it has towed and that the inventory

searches include a search of all compartments that might contain

an item of value. The purpose of these inventory searches,

according to the government, is to document items of value

remaining within the vehicle. As the district court found, the

towing of the Cadillac would have triggered an inventory search

of the trunk regardless of whether probable cause for the search

7
of the trunk existed or not. This inventory search would have

revealed the marijuana and the clip of ammunition.

Although the policy did not permit officers to force

open a locked glove compartment during an inventory search, the

ammunition discovered in the trunk would have provided probable

cause to conduct a warrantless search of the vehicle for the gun

associated with the seized ammunition. See Michigan v. Thomas,

458 U.S. 259, 260-62 (1982) (explaining that evidence seized

during an inventory search of a vehicle can provide probable

cause to search elsewhere in the vehicle for additional

contraband). The scope of that warrantless search would have

included “every part of the vehicle and its contents that may

[have] conceal[ed] the object of the search.” United States v.

Ross, 456 U.S. 798, 825 (1982). Because a glove box can conceal

a gun, the glove box of the Cadillac was obviously within the

scope of the warrantless probable cause search. The fact that

the glove box was locked would not prevent us from upholding the

lawfulness of its search. “[I]f the police have probable cause

to believe that there is contraband . . . anywhere in the car

they can search for it even if it is in a . . . locked

compartment such as the glove compartment . . . .” United

States v. Mazzone, 782 F.2d 757, 760 (7th Cir. 1986); see also

Ross, 456 U.S. at 823 (“The scope of a warrantless search based

on probable cause is no narrower . . . than the scope of a

8
search authorized by a warrant supported by probable cause.”).

Accordingly, we affirm the district court’s denial of the motion

to suppress because the marijuana, the clip of ammunition, and

the gun would have been inevitably discovered. *

III.

McCullum also challenges his sentence, arguing that

the district court improperly characterized him as a career

offender pursuant to § 4B1.1(a) of the Sentencing Guidelines.

“We review de novo a question concerning whether a prior state

conviction qualifies as a prior felony conviction under the

career offender provision.” United States v. Jones, 667 F.3d

477, 482 (4th Cir. 2012).

“A defendant is a career offender if (1) the defendant

was at least eighteen years old at the time the defendant

committed the instant offense of conviction; (2) the instant

offense . . . is a felony that is . . . a controlled substance

offense; and (3) the defendant has at least two prior felony

convictions of . . . a controlled substance offense.” U.S.S.G.

§ 4B1.1(a). For the purposes of § 4B1.1(a), a “controlled

substance offense” is “an offense under federal or state law,

*
Given our conclusion that the evidence inevitably would
have been discovered, we express no opinion on whether Van
Almen’s search was supported by probable cause.

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punishable by imprisonment for a term exceeding one year.” Id.

§ 4B1.2(b).

The PSR categorized three prior North Carolina drug

offenses as predicate offenses for the career offender

guideline: a 1998 conviction for possession with intent to sell

and deliver cocaine; a 1999 conviction for delivery of cocaine;

and a 2002 conviction for possession with intent to sell and

deliver cocaine. McCullum received 12 months’ probation for the

1998 offense; a suspended 6-8 month sentence for the 1999

offense; and a 6-8 month sentence for the 2002 offense.

The sentences for McCullum’s three prior drug offenses

at issue were imposed pursuant to North Carolina’s structured

sentencing scheme, which establishes three sentencing ranges for

each defendant—mitigated, presumptive, and aggravated. Based on

either mitigating or aggravating factors, the sentencing court

may depart from the presumptive range. However, even if it

departs from the presumptive range, the sentencing court must

still impose a sentence below a maximum level, which is

determined by the class of the offense committed by a defendant

combined with the defendant’s criminal history.

With regard to two of McCullum’s convictions deemed

predicate offenses by the district court—the 1999 delivery

conviction and the 2002 possession conviction—McCullum received

sentences of less than one year based on his criminal history

10
and the class of the respective offenses. He contends that

those offenses cannot serve as predicate offenses for him

because, based on his criminal history, he could not have

received a sentence exceeding one year for either offense, even

if he were sentenced within the aggravated range. Therefore, he

argues, the convictions do not qualify as “controlled substance

offenses” under § 4B1.2(b), and the district court erred by

classifying him as a career offender.

At the time of sentencing in this case, we had

rejected this individualized approach, holding “that a prior

North Carolina conviction was for a crime punishable by

imprisonment for a term exceeding one year, if any defendant

charged with that crime could receive a sentence of more than

one year.” United States v. Harp, 406 F.3d 242, 246 (4th Cir.

2005) (internal citation and quotation marks omitted). After

sentencing in this case, however, we overruled Harp and held

that under North Carolina’s structured sentencing scheme, an

offense is punishable for a term exceeding one year only if the

particular defendant before the court could have received such a

sentence based on his criminal history and the nature of his

offenses. See United States v. Simmons, 649 F.3d 237, 241-45

(4th Cir. 2011) (en banc).

In a letter submitted to this court after oral

argument pursuant to Rule 28(j) of the Federal Rules of

11
Appellate Procedure, the government conceded that McCullum’s

sentences should be vacated and the case remanded for

resentencing because of our intervening Simmons decision. We

agree with the government. Therefore, in light of Simmons, we

vacate McCullum’s sentences and remand the case for

resentencing.

IV.

For the foregoing reasons, we affirm McCullum’s

convictions, vacate his sentences, and remand the case for

resentencing.

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED