UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4456
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OPIO DIARRA MOORE, a/k/a O,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:08-
cr-00203-RWT-1)
Argued: March 20, 2012 Decided: June 27, 2012
Before TRAXLER, Chief Judge, and GREGORY and WYNN, Circuit
Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Chief Judge Traxler and Judge Gregory concurred.
ARGUED: Michael Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt,
Maryland, for Appellant. Emily Noel Glatfelter, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON
BRIEF: Gwendolyn R. Waters, LAWLOR & ENGLERT, LLC, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Baltimore, Maryland, Deborah A. Johnston, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
WYNN, Circuit Judge:
Defendant Opio Diarra Moore appeals from his convictions
and sentence for being a felon in possession of ammunition, in
violation of 18 U.S.C. § 922(g)(1), and conspiring to be a felon
in possession of ammunition, in violation of 18 U.S.C. § 371.
After a careful review of the record, we conclude that the
district court did not err in denying Defendant’s motion to
suppress for lack of probable cause. We further find that the
sentence imposed was both procedurally and substantively
reasonable, free of error. Finally, we discern no abuse of
discretion in the district court’s decision to limit Defendant’s
access to information obtained by certain Rule 17(c) subpoenas.
I.
On August 30, 2006, as part of a joint task force with the
District of Columbia Metropolitan Police Department, a team of
agents with the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (“ATF”) set up surveillance of the Realco gun store
in Prince George’s County, Maryland. A member of the
surveillance team later testified that the Realco store had
“been identified as one of the leading gun stores in the area
that ammunition and guns have been recovered in and around D.C.
from that store.” J.A. 30. As such, the purpose of the
surveillance was to “look for individuals coming out of the gun
3
store carrying what [the team] suspect[s] is either a firearm or
ammunition,” with individuals with District of Columbia license
plates arousing particular suspicion because it was illegal at
that time to possess unregistered firearms or ammunition in the
District of Columbia. J.A. 31-32; see also D.C. Code §§ 7-
2502.1, 7-2506.01 (2006).
At around 5:00 p.m., the surveillance team saw a green
minivan pull into the parking lot of the store, followed shortly
thereafter by a black Jeep that pulled into the restaurant
parking lot adjacent to the store, where the team was located.
The female driver of the van walked to the Jeep, engaged in
conversation with its male driver, who was at that point the
vehicle’s sole occupant, and then walked into the Realco store,
emerging a few minutes later carrying a black bag with a heavy
square object in it. According to one of the ATF agents on the
surveillance team, the “square heavy object . . . was consistent
with, and due to our experience consistent with, ammunition.”
J.A. 32-33.
The woman then went directly to her minivan, got in, and
left the parking lot, followed closely by the Jeep, heading in
the direction of the District of Columbia. After about a mile,
the minivan and Jeep pulled into adjacent spots in the parking
lot of a shopping center. The surveillance team, which had
followed the vehicles, then witnessed the two drivers talk for a
4
brief moment before the Jeep’s driver handed money to the woman
in exchange for the black bag. The Jeep’s driver then went “to
the passenger side rear door [of his vehicle], open[ed] the door
and fidget[ed] around in the backseat area and then close[d] the
door and came out without the bag in his hand.” J.A. 36. Also
at this time, a male passenger in the minivan got out, went into
the nearby convenience store and made a purchase, and then got
into the Jeep, not the minivan, after he came out of the store.
Both vehicles left the parking lot, and the surveillance
team followed the Jeep for about four to five miles into the
District of Columbia, where it initiated a traffic stop of the
Jeep. The driver, later identified as Defendant, was
handcuffed, and the Jeep was searched, leading to the discovery
of a box of .40 caliber ammunition in a black bag underneath the
rear passenger seat. The black bag appeared to be the same size
and shape as what had previously been observed by the
surveillance team. The passenger was not arrested.
Defendant was taken into custody and subsequently charged
with one count of possession of ammunition by a convicted felon,
in violation of 18 U.S.C. § 922(g)(1), and one count of
conspiracy to possess ammunition after having been convicted of
a felony, in violation of 18 U.S.C. § 371. Before trial, the
district court denied Defendant’s motion to suppress the
evidence seized following the traffic stop in the District of
5
Columbia, concluding that law enforcement authorities had
sufficient probable cause to believe criminal activity was afoot
to initiate the traffic stop and search the vehicle. Defendant
was found guilty following his trial by jury.
Defendant’s Presentence Report calculated his Guidelines
range as 188 to 235 months’ imprisonment for the possession
conviction and 60 months’ imprisonment on the conspiracy
conviction. However, based on the nature and circumstances of
his offense, his behavior while previously incarcerated, and his
alleged post-release involvement in murders and other uncharged
offenses, the Government sought an upward variance and a
sentence of life in prison for Defendant, which would be the
statutory maximum for the possession conviction.
Before Defendant’s sentencing hearing, his attorney 1 served
subpoenas duces tecum on the custodians of records for the
District of Columbia’s Department of Corrections and the United
States Marshal for the Eastern District of Virginia. However,
following a hearing, the district court quashed the subpoenas to
the extent that they sought pre-trial production of certain
records, finding “little, if anything, from [its] review of
1
Defendant’s original counsel learned of a conflict between
trial and sentencing and was subsequently removed and replaced
by new, court-appointed counsel, who also represented Defendant
in his appeal before this Court.
6
these records that would be of use to the Defendant in this
case.” J.A. 816. The district court emphasized the potential
unfairness of “a fishing expedition into these records that
contain a number of matters that raise considerable security
concerns, where they [are] disclosed without significant
justification for doing so.” J.A. 843. Accordingly, the
district court granted the Government’s motion for a protective
order, while also directing the Government to review the records
sought and determine whether any information would be germane to
Defendant’s cross-examination of the subject of the subpoenas.
At the sentencing hearing, the Government presented
significant testimony and other evidence in support of its
request for a life sentence. Specifically, the district court
heard details of Defendant’s violent behavior while previously
incarcerated, as well as about his alleged participation in
several murders, attempted murders, and other crimes, including
numerous burglaries and helping an associate escape from prison.
At the conclusion of the hearing, the district court imposed the
requested upward variance and sentenced Defendant to life in
prison on the possession charge, with a concurrent sentence of
sixty months on the conspiracy charge.
7
II.
On appeal, Defendant argues that the district court erred
by denying his motion to suppress, by imposing a sentence that
is procedurally and substantively unreasonable, and by quashing
his subpoenas.
A.
Defendant first argues that the law enforcement
surveillance team lacked the probable cause necessary to
initiate the traffic stop and search his vehicle, and the box of
ammunition must therefore be suppressed. Specifically,
Defendant maintains that because he was handcuffed immediately
after his vehicle was stopped, the search needed to be
independently supported by probable cause, separate and apart
from what gave rise to the traffic stop itself.
This Court reviews the legal conclusions of a district
court’s denial of a motion to suppress de novo, and the findings
of fact for clear error, construing the evidence in the light
most favorable to the Government, the prevailing party below.
United States v. Foster, 634 F.3d 243, 246 (4th Cir. 2011). The
determination of whether probable cause exists depends on the
totality of the circumstances and involves a “practical, common-
sense decision whether . . . there is a fair probability that
contraband or evidence of a crime will be found in a particular
8
place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
Significantly, “probable cause is a fluid concept—turning on the
assessment of probabilities in particular factual contexts—not
readily, or even usefully, reduced to a neat set of legal
rules.” Id. at 232; United States v. Gary, 528 F.3d 324, 327
(4th Cir. 2008) (“[A] finding of probable cause does not require
absolute certainty.”).
As such, this Court has noted that we “‘give due weight to
inferences drawn from [the] facts by . . . local law enforcement
officers.’” United States v. Moses, 540 F.3d 263, 269 (4th Cir.
2008) (quoting Ornelas v. United States, 517 U.S. 690, 699
(1996)). Further, we have held that law enforcement authorities
may conduct a warrantless search of a vehicle if it is readily
mobile and probable cause exists to believe it contains
contraband or other evidence of illegal activity. United States
v. Kelly, 592 F.3d 586, 589 (4th Cir.), cert. denied, 130 S. Ct.
3374 (2010); see also United States v. Brookins, 345 F.3d 231,
235 (4th Cir. 2003) (relying on Chambers v. Maroney, 399 U.S.
42, 52 (1970), to allow both a stop, seizure, and subsequent
search of a vehicle without a warrant if there is probable cause
to believe that a moving vehicle contains contraband or other
evidence of illegal activity).
Here, Defendant contends that the surveillance team acted
on a mere hunch, rather than sufficient probable cause, when it
9
stopped and searched his vehicle. According to Defendant, the
officers had no actual knowledge that the black bag that was
exchanged did contain ammunition, that it was even the same bag
that was exchanged, or, since they did not know Defendant’s
identity, that Defendant was not permitted to carry ammunition
in the District of Columbia. Instead, Defendant maintains that
the officers were suspicious because he fit a profile of someone
they believed likely to purchase firearms illegally.
We find these arguments to be unavailing. Viewing the
evidence in the light most favorable to the Government, as we
must, the officers had sufficient probable cause to support both
the initial traffic stop and the subsequent search of
Defendant’s vehicle. We agree with the district court’s summary
of the evidence at the close of the hearing on Defendant’s
motion to suppress:
[T]here was adequate probable cause to make the stop
of the defendant’s vehicle on August 30, 2006. The
team of officers involved in this case had observed a
conversation before the black female entered the
store. They see the black female exit. They see the
two vehicles go to a different location, an exchange
of cash for the heavy plastic black bag, which was
consistent with ammunition, and then they see the
vehicles separate and the defendant’s vehicle enter
the District of Columbia, where it’s a violation of
the law at that time to have the ammunition in his
possession.
J.A. 65. We can discern no error in this ruling and likewise
find that it was reasonable for the officers to believe that
10
criminal activity was afoot and that Defendant’s vehicle likely
contained illegal contraband.
We base this finding of probable cause on several factors.
First, as noted by the district court, absent narrow exceptions,
possession of ammunition in the District of Columbia was at that
time illegal, and it was more likely than not that Defendant,
even unidentified, did not meet one of the exceptions. See D.C.
Code §§ 7-2502.1, 7-2506.01. Second, if Defendant met one of
those exceptions and was permitted to possess ammunition, there
would have been no reason to engage in the type of straw
purchase witnessed by the surveillance team. Instead, he would
simply have bought it himself.
Undoubtedly, an alternative reason could be put forward to
support why Defendant had someone else purchase the ammunition
on his behalf—and indeed, Defendant has attempted to do just
that, both before the district court and on appeal.
Nevertheless, as noted above, probable cause does not require
absolute certainty. Gary, 528 F.3d at 327. Rather, the
officers needed to show only the “fair probability that
contraband or evidence of a crime will be found in a particular
place.” Gates, 462 U.S. at 238. Likewise, while the officers
did not have conclusive evidence that the bag they saw exchanged
did, in fact, contain ammunition, it was reasonable for them to
make that inference, given that the woman carried the bag out of
11
a Realco gun store, the bag contained an object that appeared to
be the same size and weight as a box of ammunition, and the
officers’ experience with previous surveillance of that store.
In light of this evidence, we conclude that the officers
did have probable cause to believe that Defendant’s vehicle,
stopped in the District of Columbia and with District of
Columbia tags, at that point contained contraband. Accordingly,
we affirm the district court’s denial of Defendant’s motion to
suppress.
B.
Next, Defendant argues that the sentence imposed by the
district court is procedurally and substantively unreasonable.
Specifically, Defendant maintains that his Fifth and Sixth
Amendment rights were violated because the district court
increased his sentence above the Guidelines range based on facts
not found by a jury or beyond a reasonable doubt, allowed
hearsay testimony at the sentencing hearing, failed to
adequately connect his sentence to the factors set out in 18
U.S.C. § 3553, and based his sentence on conduct unrelated to
his convictions.
“[W]hether inside, just outside, or significantly outside
the Guidelines range,” we review a sentence imposed by the
district court under a “deferential abuse-of-discretion
12
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This
review entails appellate consideration of both the procedural
and substantive reasonableness of the sentence. Id. at 51. The
Supreme Court has further emphasized that “it is not for the
Court of Appeals to decide de novo whether the justification for
a variance is sufficient or the sentence reasonable,” but
rather, review for an abuse of discretion means that an
appellate court “should . . . give[] due deference to the
District Court’s reasoned and reasonable decision that the §
3553(a) factors, on the whole, justified the sentence.” Id. at
59-60.
Procedural reasonableness requires that the district court
properly calculated the applicable Guidelines range, considered
the § 3553 factors and arguments presented by the parties, did
not determine an individualized sentence based on “clearly
erroneous facts,” and explained sufficiently the sentence
imposed. Id. at 49-51. See also United States v. Pauley, 511
F.3d 468, 473 (4th Cir. 2007).
Substantive reasonableness “take[s] into account the
totality of the circumstances, including the extent of any
variance from the Guidelines range.” Gall, 552 U.S. at 51. To
determine whether the district court abused its discretion in
imposing an upward variance, we consider “whether the sentencing
court acted reasonably both with respect to its decision to
13
impose such a sentence and with respect to the extent of the
divergence from the sentencing range.” United States v.
Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). A
sentence is unreasonable if the sentencing “court provides an
inadequate statement of reasons or relies on improper factors in
imposing a sentence outside the properly calculated advisory
sentencing range.” Id.
Here, the district court determined that, based on his
prior convictions, Defendant was an armed career criminal. As
such, the district court calculated his Guidelines range on the
possession count at 188 to 235 months in prison and his
Guidelines sentence on the conspiracy count at 60 months in
prison. After hearing extensive evidence about Defendant’s
criminal and violent history, the court imposed an upward
variance on the possession count and sentenced Defendant to the
statutory maximum of life in prison.
Defendant’s challenge to his sentence as procedurally
unreasonable is based on two claims: (1) the district court
erred by determining that he was an armed career criminal and
calculating his Guidelines range accordingly; and (2) the
district court cited, but did not meaningfully consider, the §
3553 factors as required. We find both arguments to be without
merit.
14
With respect to Defendant’s status as an armed career
criminal, he does not dispute the fact of his prior convictions
or whether they were properly considered for purposes of armed
career criminal status. Instead, Defendant contends that basing
his sentence in part on that status violated his constitutional
rights because the prior convictions were neither pled in the
indictment nor presented to a jury. Nevertheless, as
acknowledged by Defendant and likewise recognized by this Court,
the Supreme Court has previously overruled this argument. See
Almendarez-Torres v. United States, 523 U.S. 224, 243-44 (1998);
United States v. Cheek, 415 F.3d 349, 352-54 (4th Cir. 2005)
(holding that prior convictions used as the basis for an armed
career criminal sentence need not be charged in the indictment
or proven beyond a reasonable doubt); United States v. Thompson,
421 F.3d 278, 284 n.4 (4th Cir. 2005) (observing that an
indictment need not reference or list the prior convictions used
to enhance a sentence). We find no error in the district
court’s determination that Defendant’s prior convictions
qualified him to be sentenced as an armed career criminal.
Likewise, the district court’s extensive findings and
statements on the record belie Defendant’s assertion that the
court failed to meaningfully consider the § 3553 factors or
adequately connect them to the upward variance imposed.
Following a lengthy hearing and substantial testimony and
15
documentation presented by the Government, the district court
stated that it found the Government’s evidence of Defendant’s
violent and criminal history, including his possible
participation in several murders, to be credible. According to
the district court, the evidence presented provided “very
significant indication that this is a dangerous man, both in and
outside of prison.” J.A. 567.
Based on its findings of fact and summary of the evidence,
the district court stated:
[I]t is clear . . . that [Defendant] has no respect
for the law, that virtually no sentence is going to be
enough to get his attention to promote respect for the
law, that he’s repeatedly shown that both inside and
outside of prison he has no respect for the law and
has engaged in criminal behavior both behind bars and
outside of prison.
J.A. 568-69. The court then outlined each of the § 3553 factors
and gave some commentary concerning each, as it specifically
related to Defendant. For example, with respect to the need for
deterrence and for a sentence to protect the public, the
district court highlighted the fact that Defendant had
previously been released and immediately returned to criminal
activity. As such, the district court observed that it saw “no
way to protect the public from further crimes of this defendant
without imposing a very significant jail sentence.” J.A. 569.
Based on all of the § 3553 factors and Defendant’s
particular crimes and “horrific background”—“perhaps among the
16
worst [the district court] ha[d] seen”—the district court
concluded that a sentence within the applicable Guidelines range
would be “woefully” inadequate. J.A. 570-71. We can discern no
abuse of discretion in this thoughtful, thorough, and detailed
consideration of the § 3553 factors and Defendant’s individual
circumstances; indeed, this is an excellent example of the
“sufficient justifications” required to support an unusually
harsh upward variance from a sentence within the Guidelines
range. Gall, 552 U.S. at 46. Defendant’s sentence to the
statutory maximum, though perhaps seemingly severe for the crime
of possession of a box of ammunition, was procedurally
reasonable.
For largely the same reasons, Defendant’s argument that his
sentence is substantively unreasonable must also fail. Nothing
in the record or transcripts before us indicates that the
district court did not “act[] reasonably both with respect to
its decision to impose such a sentence and with respect to the
extent of the divergence from the sentencing range.” Hernandez-
Villanueva, 473 F.3d at 123. The district court explained its
reasons at length and confined that reasoning to the proper §
3553 factors, noting that “[t]his is one of those cases—it’s a
rare case indeed, but it’s one of those cases . . . that if
there ever were a case that would justify the maximum amount
that Congress has authorized, this is that case.” J.A. 571.
17
Giving the required due deference to this “reasoned and
reasonable decision,” Gall, 552 U.S. at 59-60, we find that
Defendant’s sentence was substantively reasonable.
Defendant’s remaining constitutional arguments concerning
his sentence have previously been considered and rejected by
this Court. See, e.g., United States v. Grubbs, 585 F.3d 793,
798-803 (4th Cir. 2009) (consistent with the Fifth and Sixth
Amendments, a district court may consider uncharged conduct in
determining a sentence, so long as that conduct is proven by a
preponderance of the evidence), cert. denied, 130 S. Ct. 1923
(2010); United States v. Powell, 650 F.3d 388, 391-93 (4th Cir.
2011) (holding that the Confrontation Clause does not apply at
sentencing), cert. denied, 132 S. Ct. 350 (2011); United States
v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010) (noting that the
Rules of Evidence do not apply at sentencing and that evidence
is allowed with some minimal level of reliability).
In sum, we conclude that Defendant received a procedurally
and substantively reasonable sentence that is free of error,
constitutional or otherwise.
C.
Finally, Defendant argues that his right to due process was
violated by the district court’s denial of his opportunity to
18
review the materials produced by virtue of the subpoenas he
issued prior to the sentencing hearing. We disagree.
At the outset, we note that although Defendant has framed
this issue as a constitutional question requiring our de novo
review, our precedent instead indicates that we review the
denial of a Rule 17(c) subpoena for an abuse of discretion.
United States v. Caro, 597 F.3d 608, 616 (4th Cir. 2010), cert.
denied, 132 S. Ct. 996 (2012) (citing and relying on United
States v. Fowler, 932 F.2d 306, 311-12 (4th Cir. 1991)); Fed. R.
Crim. P. 17(c)(2) (“[T]he court may quash or modify the subpoena
if compliance would be unreasonable or oppressive.”).
In United States v. Nixon, the Supreme Court held that a
movant for a Rule 17(c) subpoena must show that (1) the
requested documents are evidentiary and relevant; (2) they are
not otherwise procurable reasonably in advance of trial by
exercise of due diligence; (3) the party cannot prepare for
trial without having the documents in advance; and (4) the
application is made in good faith and not as a general “fishing
expedition.” 418 U.S. 683, 699-700 (1974); see also Caro, 597
F.3d at 620 (“Accordingly, a defendant seeking a Rule 17(c)
subpoena ‘must clear three hurdles: (1) relevancy; (2)
admissibility; [and] (3) specificity.’” (quoting Nixon, 418 U.S.
at 700)). If a movant fails to meet these requirements, then
“the court may quash or modify the subpoena,” as compliance in
19
those circumstances is deemed “unreasonable or oppressive,” id.,
and “Rule 17(c) . . . is not a discovery device,” United States
v. Fowler, 932 F.2d 306, 311 (4th Cir. 1991) (citation omitted).
Here, Defendant issued subpoenas seeking the production of
records pertaining to a certain inmate in the District of
Columbia Department of Corrections and with the United States
Marshal for the Eastern District of Virginia. This inmate
testified at Defendant’s sentencing about several murders and
attempted murders in which Defendant was allegedly involved.
The district court reviewed the records and found that they
contained “little, if anything” that would be useful to the
defense. J.A. 816.
Nevertheless, the district court ordered the Government to
undertake the same review and identify any information that
would fall under its discovery obligations or that might be
relevant to Defendant’s cross-examination of the witness. The
Government complied with the order and in fact did provide some
materials to Defendant that could potentially be used to attack
the testifying inmate’s credibility. Even so, Defendant
contends that he was entitled to the remaining records as well
so that he could “investigate” the Government’s confidential
sources prior to sentencing.
Defendant’s request fails the “specificity” prong of the
Nixon test on its face. Further, given that the district court
20
made reasonable efforts to accommodate Defendant, including
allowing access to documents that were actually relevant and
admissible, while also ensuring that the requirements of Rule
17(c) were met, we see no abuse of discretion in the district
court’s ruling. Rather, it seems a well-reasoned attempt to
prevent an “unreasonable and oppressive” use of Rule 17(c).
III.
In sum, we find no error in the district court’s denial of
Defendant’s motion to suppress and conclude that the sentence
imposed was procedurally and substantively reasonable and free
of error, constitutional or otherwise. Likewise, we find no
abuse of discretion in the district court’s decision to limit
Defendant’s access to information obtained by Rule 17(c)
subpoenas.
AFFIRMED
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United States v. Opio Moore
Court: Court of Appeals for the Fourth Circuit
Date filed: 2012-06-27
Citations: 484 F. App'x 758
Copy CitationsCombined Opinion