UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4995
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES ALLEN HALL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:09-cr-00019-MR-1)
Argued: September 19, 2012 Decided: October 15, 2012
Before TRAXLER, Chief Circuit Judge; DUNCAN and DAVIS, Circuit
Judges.
Affirmed in part, vacated in part, and remanded by unpublished
opinion. Judge Duncan wrote the opinion, in which Chief Judge
Traxler and Judge Davis joined.
ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
Melissa Louise Rikard, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee. ON BRIEF: Claire J.
Rauscher, Executive Director, Angela Parrott, Assistant Federal
Defender, Cecilia Oseguera, Assistant Federal Defender, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. Anne
M. Tompkins, United States Attorney, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DUNCAN, Circuit Judge:
Appellant Charles Allen Hall appeals his conviction
and sentence on one count of possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1) on the
ground that state authorities violated his Fourth Amendment
rights. He further contends that the district court erroneously
admitted unduly prejudicial evidence. In the alternative, Hall
requests that we vacate the district court’s order requiring him
to reimburse court-appointed attorneys’ fees, as well as his
sentence under the Armed Career Criminal Act (the “ACCA”). For
the reasons that follow, we affirm Hall’s conviction. However,
we vacate the district court’s reimbursement order and remand
for resentencing as to that issue only.
I.
A.
We briefly summarize the relevant facts. On April 8,
2008, Officer Calvin Helms of the Charlotte-Mecklenburg Police
Department went with three other officers to Hall’s Charlotte,
North Carolina residence to arrest him for a misdemeanor charge
arising from the purported theft of catalytic converters.
Officer Helms was aware that Hall had a lengthy criminal
history, including fifteen felony convictions and one hundred
arrests. Upon arriving at Hall’s residence, the officers
3
recognized his vehicle in the driveway, as some of the officers
had seen Hall driving the vehicle in the past. After the
officers knocked and announced their presence at both the front
and back doors, a man who the officers knew was not Hall, and
who was later identified as Thomas Phillips, opened the back
door. An officer asked Phillips whether Hall was there.
Phillips mumbled something incomprehensible in response--
possibly “hold on” or “no”--before shutting the door. J.A. 99.
The officers continued knocking but received no further
response. Officer Helms then contacted his supervisors and
apprised them of the situation. In light of Hall’s criminal
history, the officers decided to request the assistance of a
SWAT team to execute the arrest warrant.
Over the next few hours, a SWAT team deployed to
Hall’s residence, set up a command post, and used loudspeakers
to call for Hall to come out of the house. Hall did not come
out, but four other occupants emerged: Hall’s wife, Sheena Hall;
her two children; and Phillips. Ms. Hall told the officers that
her husband was not inside. According to the officers, Phillips
told them that Hall was in the house. At the later suppression
hearing, Phillips disputed that he told the officers Hall was
inside; however, the district court credited the officers’
testimony. When Hall did not respond or emerge, SWAT team
members entered the house and searched for Hall but did not find
4
him.
During the search, the officers located two firearms,
including a rifle that had been placed in an air duct large
enough for a person to fit inside that ran underneath the house.
An officer had opened the air duct to see if Hall was hiding in
it. That officer immediately “located a brown or tan rifle
bag,” about three feet long, six to eight inches high, and
narrowed in a triangular manner on one end, laying lengthwise
down the duct. J.A. 585-86. He pulled the bag out of the air
duct and set it on the ground. At trial, the officer testified
that he referred to it as a “rifle bag” because he owns several
such bags himself. He further described it as “just a large
canvas or cloth like bag that’s long enough for a rifle to fit
into with a strap across the top,” J.A. 185, and explained that
“[y]ou could feel the weight of it being heavier on one side
versus the other when I lifted it out, typical of a rifle bag
with a rifle inside of it. I have several at home, same exact
set up,” J.A. 586. Other officers later opened the bag and
found a rifle.
After the initial search, one of the officers
interviewed Phillips again, and reported that Phillips was
adamant that Hall was inside. The SWAT team then conducted a
second search, and officers located Hall in a crevice inside the
attic wall. An officer later testified at trial that he saw
5
Hall and said, “Let me see your hands,” whereupon Hall swore at
him and spat at him and other officers. J.A. 151-52.
B.
On February 17, 2009, Hall was charged in the Western
District of North Carolina with being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). Hall filed a
motion to suppress, arguing, inter alia, that (1) officers could
not enter a house to arrest the subject of a misdemeanor
warrant; (2) officers did not have adequate “reason to believe”
Hall was inside; (3) officers exceeded the scope of a protective
sweep; and (4) the duration of the search was constitutionally
unreasonable. The magistrate judge conducted two suppression
hearings, after which he recommended that Hall’s motion be
denied. Hall filed written objections to that recommendation.
On September 29 and October 8, 2009, the district court entered
orders overruling Hall’s objections, adopting the magistrate
judge’s recommendation, and denying the motion to suppress. On
the first day of trial, the district court heard additional
testimony regarding the motion to suppress and reiterated its
denial of that motion.
Hall also filed a motion in limine to preclude the use
of what he deemed inadmissible propensity evidence under Federal
Rule of Evidence 404(b). Specifically, he objected to testimony
6
from officers that Hall swore and spat at them when they found
and arrested him. 1 The district court ruled that such evidence
was not 404(b) evidence, as it was inextricably intertwined with
the events in question and was relevant and admissible. Hall
again objected to the admission of this evidence at trial, and
his objection was overruled.
After trial on October 19 and 20, 2009, a jury
convicted Hall. On August 25, 2010, the district court
sentenced Hall as an armed career criminal to 188 months
imprisonment and three years of supervised release under the
ACCA, 18 U.S.C. § 924(e)(1). The district court found that Hall
lacked “the ability to pay a fine or interest” under 18 U.S.C. §
3572(a), but it ordered Hall to reimburse the United States for
court-appointed attorneys’ fees, in the form of monthly
installments in the amount of $50. It made no specific findings
of fact in support of the reimbursement order. The district
court entered judgment against Hall on September 11, 2010. This
appeal followed.
1
The government also referred to Hall’s conduct in this
regard during its opening and closing statements.
7
II.
Hall makes the following arguments on appeal: that
state authorities violated the Fourth Amendment by entering his
residence without “reason to believe” he was inside and by
searching the bag in which the rifle was found; that the
district court erred in admitting evidence that Hall swore and
spat at officers when they found him; that the district court
violated the Criminal Justice Act, 18 U.S.C. § 3006A, by
ordering Hall to repay his court-appointed attorneys’ fees; and
that the district court erred in sentencing him as an armed
career criminal under the ACCA. We consider each contention in
turn.
A.
We first address Hall’s contention that police
violated the Fourth Amendment by entering his home without
“reason to believe” he was inside. 2 On appeal from a district
court’s denial of a motion to suppress, we review the court’s
factual findings for clear error and its legal determinations de
2
Although Hall also contends in general terms that “SWAT
teams present acute Fourth Amendment concerns,” Appellant’s Br.
at 19, he frames the argument in the context of the broader
challenge to the officers’ “reason to believe” he was home when
they entered his residence. He cites no authority, nor have we
found any, for the proposition that a SWAT team may not be used
to execute a misdemeanor warrant. To the contrary, given Hall’s
criminal history, of which the officers were aware, the exercise
of their discretion to call in a SWAT team seems appropriate.
8
novo. United States v. Grossman, 400 F.3d 212, 216 (4th Cir.
2005).
“[A]n arrest warrant founded on probable cause
implicitly carries with it the limited authority to enter a
dwelling in which the suspect lives when there is reason to
believe the suspect is within.” Payton v. New York, 445 U.S.
573, 603 (1980). It is well established that Payton requires
that officers have a reasonable belief that the arrestee (1)
lives in the residence, and (2) is within the residence at the
time of entry. United States v. Hill, 649 F.3d 258, 262 (4th
Cir. 2011); see also United States v. Veal, 453 F.3d 164, 167
(3d Cir. 2006); United States v. Gay, 240 F.3d 1222, 1226 (10th
Cir. 2001); United States v. Lauter, 57 F.3d 212, 215 (2d Cir.
1995). Assuming the equivalence of the probable cause and
reason to believe standards, 3 the officers were required to have
been aware of facts and circumstances sufficient to justify a
reasonably cautious person in believing that Hall was in the
home. Vasquez v. Snow, 616 F.2d 217, 220 (5th Cir. 1980). “To
3
We note that the parties disagree about whether reasonable
belief requires probable cause, or something less. We have
previously acknowledged “the diverse views taken by our sister
circuits,” and declined “to reach a conclusion as to whether
‘reason to believe’ is as stringent as ‘probable cause.’” Hill,
649 F.3d at 263. Here, too, we decline to resolve that issue,
because we hold that the officers had probable cause to enter
Hall’s home.
9
determine whether probable cause existed,” we “look to the
totality of the circumstances known to the officers at the time
of the arrest.” United States v. Al-Talib, 55 F.3d 923, 931
(4th Cir. 1995). And “as to the second Payton prong, courts
must be sensitive to common sense factors indicating a
resident’s presence,” including “the possibility that the
resident may be aware that police are attempting to ascertain
whether or not the resident is at home.” United States v.
Magluta, 44 F.3d 1530, 1535 (11th Cir. 1995); cf. 3 Wayne R.
LaFave, Search and Seizure § 6.1 (4th ed. 2004) (“[T]he police
need not possess ‘special knowledge’ that the defendant is at
home in order to meet the probable cause test, for in the
absence of facts tending to show that the defendant is not at
home, it is reasonable to infer that he would be there.”).
On these facts, we hold that the officers had reason
to believe that Hall was inside the house at the time of entry. 4
4
Hall argues that, for purposes of determining whether
officers had “reason to believe” he was inside, officers
“constructively entered” the residence and arrested him when
SWAT team members began using loudspeakers, but before they
physically entered the home. In so arguing, Hall relies on
several out-of-circuit cases involving the use of forceful SWAT
methods designed to lure a potential arrestee out of his home so
police could arrest him in “public” without a warrant. See,
e.g., United States v. Maez, 872 F.2d 1444, 1451 (10th Cir.
1989) (finding that Payton is violated when “there is such a
show of force that a defendant comes out of a home under
coercion and submits to being taken in custody”). We decline to
adopt the constructive entry analysis where, as here, officers
(Continued)
10
Officers knew the house was Hall’s residence and possessed
several pieces of information suggesting he was at home. First,
officers recognized Hall’s vehicle in the driveway. Second,
officers knew someone was in the house and not responding to
their knocks. Further, Hall’s wife and two of her children
ultimately emerged, as did Phillips, who reported, as credited
by the district court, the fact of Hall’s presence inside.
Therefore, officers had “reason to believe” Hall was inside the
residence at the time of entry under Payton.
B.
Hall next contends that officers violated the Fourth
Amendment by conducting a search of the bag that was ultimately
found to contain a rifle. The government contends that the
seizure was lawful under the plain view doctrine.
Whether the plain view exception to the warrant
requirement supports an officer’s search of a container is a
question of law that we review de novo. United States v.
Williams, 41 F.3d 192, 196 (4th Cir. 1994). 5 Officers may
had an arrest warrant for Hall and did not use the SWAT team to
lure Hall outside to make a warrantless arrest.
5
When a defendant fails to raise an issue before the
district court with sufficient specificity, our review of the
claim is for plain error only. United States v. Baptiste, 596
(Continued)
11
conduct a warrantless search of a container seized in plain view
only when its contents are a “foregone conclusion.” Id. at 197
(citation omitted). In Williams, we held that when a
container’s “distinctive configuration proclaims its contents,
the container supports no reasonable expectation of privacy and
the contents can be said to be in plain view.” Id. (citation
omitted). “In determining whether the contents of a container
are a foregone conclusion, the circumstances under which an
officer finds the container may add to the apparent nature of
its contents.” Id. For example, in Williams, we upheld a
warrantless search where “compelling circumstances existed that
[led] us to conclude” that “cellophane wrapped packages found in
Williams’ suitcase ‘spoke volumes as to [their] contents--
particularly to the trained eye of the officer.’ For instance,
from the appearance and size of the packages, . . . it was
reasonable to assume” that they contained contraband. Id. at
197-98 (citation omitted). We further noted the officer’s “firm
belief, based on his ten years’ experience, that packages
appearing in this manner always contained narcotics.” Id. at
F.3d 214, 220 (4th Cir. 2010). The government contends that we
should review for plain error only because Hall did not
challenge the officer’s testimony that he knew the rifle bag
found in the air duct contained a rifle. Because we hold that,
even reviewed de novo, the warrantless search of the bag was
lawful, we need not resolve this issue.
12
198.
Significantly for our analysis, the Supreme Court has
specifically cited a gun case as an example of a container that
may be seized under the plain view exception. Arkansas v.
Sanders, 442 U.S. 753, 764-65 n.13 (1979) (“[S]ome containers
(for example a kit of burglar tools or a gun case) by their very
nature cannot support any reasonable expectation of privacy
because their contents can be inferred from their outward
appearance.”) (emphasis added). Although we have not previously
applied the plain view exception to a gun case, other circuits
have done so. See United States v. Banks, 514 F.3d 769, 775
(8th Cir. 2008) (holding that “because gun cases vary in
characteristics, [and] each case must be evaluated on its own
facts,” the test is whether “the container at issue is readily
identifiable as a gun case by its distinctive
configuration”); United States v. Meada, 408 F.3d 14, 24 (1st
Cir. 2005) (upholding search of clearly labeled gun case when
the case “reasonably appeared to contain a gun,” and when “as a
convicted felon, [the defendant] was prohibited from possessing
one”); cf. United States v. Bonitz, 826 F.2d 954, 956-57 (10th
Cir. 1987) (refusing to apply the exception to the search of a
“hard plastic case” which “did not reveal its contents to the
trial court,” but withholding judgment as to “the well-known
soft, zippered gun cases” because “soft-sided gun cases could
13
self-reveal the presence of a weapon inside”).
Similarly, we find it plain that the soft bag found in
the air duct contained a rifle for the following reasons: (1)
the officer immediately recognized it as a “rifle bag” because
of its specific dimensions, shape, and weight distribution; (2)
the officer had prior experience with rifle bags, and had
several such bags at home; and (3) the rifle bag was secreted in
an air duct. We therefore hold that the search of the rifle bag
was justified and a search warrant unnecessary.
C.
We next consider Hall’s argument that the district
court erred in admitting evidence that Hall spat and swore at
police officers when they found him. “We review a district
court’s evidentiary rulings for abuse of discretion and subject
such rulings to harmless error review.” United States v.
Johnson, 587 F.3d 625, 637 (4th Cir. 2009).
Under the harmless error standard, we will not reverse
if we can “say, with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the
error.” Kotteakos v. United States, 328 U.S. 750, 765
(1946); see United States v. Mouzone, 687 F.3d 207, 213 (4th
Cir. 2012).
14
Hall argues that evidence of his behavior at the time
of arrest was both extrinsic to the ultimate 18 U.S.C. §
922(g)(1) charge and irrelevant to prove Hall’s “guilty
knowledge” of the firearms in his house. He contends the
testimony was extremely prejudicial. Even assuming that Hall is
correct and that the district court erred in admitting the
evidence, we conclude that any resulting error was harmless. In
this case, there was overwhelming evidence that Hall was guilty
of the charged offense: the jury heard evidence of where the two
guns were found and also heard phone calls in which Hall
referenced owning other firearms that the police did not find.
Moreover, Hall does not contend that evidence that he was hiding
in the attic wall when officers found him was improperly
admitted. Thus, we can say with fair assurance that the
testimony that Hall swore and spat at officers when they found
him, and the prosecution’s references to that conduct during
opening and closing statements, did not substantially sway the
judgment in this case.
D.
We next address Hall’s challenge to the district
court’s order requiring him to repay his attorneys’ fees. A
district court’s authority to order reimbursement of attorneys’
15
fees presents a question of statutory interpretation which we
normally review de novo. United States v. Weaver, 659 F.3d 353,
356 (4th Cir. 2011). Because Hall did not raise this challenge
below, however, our review is for plain error. Fed. R. Crim. P.
52(b). To establish plain error, Hall must show that an error
occurred, that it was plain, that it affected his substantial
rights, and that this court should exercise its discretion to
correct the error. United States v. Olano, 507 U.S. 725, 731-32
(1993). We have held “that an error is clear or equivalently
obvious if ‘the settled law of the Supreme Court or this circuit
establishes that an error has occurred.’” United States v.
Maxwell, 285 F.3d 336, 342 (4th Cir. 2002) (citation omitted).
“Notably, the error need not be plain at the time the district
court erred as long as the error is plain at the time of
appellate consideration.” Id. An error affects the defendant’s
substantial rights if it has a prejudicial effect on the
sentence imposed. United States v. Lynn, 592 F.3d 572, 580 (4th
Cir. 2010).
The Criminal Justice Act requires the government to
provide adequate legal representation for criminal defendants
unable to pay for such services when, like Hall, they are
charged with a federal felony offense. 18 U.S.C. §
3006A(a)(1)(A). That statute also provides that “[i]f at any
time after the appointment of counsel . . . the court finds that
16
the person is financially able to obtain counsel or to make
partial payment for the representation, it may . . . authorize
payment as provided in subsection (f), as the interests of
justice may dictate.” 18 U.S.C. § 3006A(c). Subsection (f)
authorizes a court to order repayment of attorneys’ fees under
certain circumstances:
Whenever . . . the court finds that funds are
available for payment from or on behalf of a person
furnished representation, it may authorize or direct
that such funds be paid to the appointed attorney . .
. or to the court for deposit in the Treasury as a
reimbursement to the appropriation, current at the
time of payment, to carry out the provisions of this
section.
18 U.S.C. § 3006A(f).
We recently held that a district court must base a
reimbursement order under § 3006A(f) “on a finding that there
are specific funds, assets, or asset streams (or the fixed right
to those funds, assets, or asset streams) that are (1)
identified by the court and (2) available to the defendant for
the repayment of the court-appointed attorneys’ fees.” United
States v. Moore, 666 F.3d 313, 322 (4th Cir. 2012). In Moore,
we vacated the reimbursement order because the district court
failed to make findings that defendant Moore was “financially
able . . . to make partial payment for the representation.” Id.
at 323 (citation omitted). The district court in Moore “simply
adopted the probation officer’s standing $50 a month repayment
17
plan” even though it “specifically found that Moore, who was
clearly eligible for a court-appointed attorney, did ‘not have
the ability to pay a fine or interest.’” Id. (citation
omitted).
We hold that Moore controls our disposition of Hall’s
challenge to the district court’s reimbursement order. This
case is factually similar to Moore: the district court made no
findings regarding Hall’s ability to pay, relied upon the
probation officer’s standard monthly installment plan, and
specifically found that Hall did not have the ability to pay a
fine or interest. As such, the district court did not comply
with the statutory mandate here. 6 For those reasons, we exercise
our discretion to hold that the district court’s judgment at
sentencing, insofar as it required a reimbursement of attorneys’
fees, was in error, and that the error was plain. We vacate
that portion of the district court’s judgment requiring Hall to
repay his court-appointed attorneys’ fees, and remand for
resentencing consistent with this opinion, as to that issue
only.
E.
Finally, we address Hall’s challenge to his
6
It bears noting that the district court did not have the
benefit of our decision in Moore when it entered the
reimbursement order.
18
classification as an armed career criminal under the ACCA, 18
U.S.C. § 924(e)(1). “We review legal issues such as whether a
defendant’s previous conviction counted as an ACCA predicate de
novo, and we review factual findings for clear error.” United
States v. Washington, 629 F.3d 403, 411 (4th Cir. 2011)
(citations omitted).
Hall submitted his own, supplemental brief to contest
his sentence under the ACCA. He contends he has not been
convicted of three prior violent felonies, as 18 U.S.C. §
924(e)(1) requires, and therefore should not have been sentenced
as an armed career criminal.
He first argues that his South Carolina third-degree
burglary conviction is not a violent felony. “The Supreme Court
has defined burglary as a violent felony under the ACCA only if
the breaking and entering was what it terms generic burglary:
‘any crime, regardless of its exact definition or label, having
the basic elements of unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a
crime.’” See United States v. Foster, 662 F.3d 291, 292 (4th
Cir. 2011) (quoting Taylor v. United States, 495 U.S. 575, 599
(1990)).
Although Hall’s charging document from the burglary
conviction does not specify the statute under which he was
charged, we nevertheless conclude that his third-degree burglary
19
conviction qualifies as a violent prior felony for ACCA
purposes. There was no evidence of there being more than one
third-degree burglary statute in South Carolina (§ 16-11-313)
and the language of the indictment tracked this statute, which
met the basic requirement for classifying a burglary as a
qualifying violent felony for ACCA purposes: unlawful entry into
a physical structure with the intent to commit a
crime. See Foster, 662 F.3d at 292. Therefore, the court
properly classified the burglary as a predicate ACCA felony.
Hall also contends that two of his predicate offenses
are actually one crime. The ACCA requires “that the three
predicate offenses take place ‘on occasions different from one
another.’” United States v. Letterlough, 63 F.3d 332, 335 (4th
Cir. 1995) (citation omitted). In Letterlough, we laid out the
factors a court should consider to determine whether the
predicate offenses took place on different occasions, including
“whether the offenses arose in different geographic locations;
whether the nature of the offenses was substantively different;
and whether the offenses involved multiple victims or multiple
criminal objectives.” Id. at 335-36. We have previously found
that “‘criminals who commit separate crimes against different
individuals while on a spree, within a short period of time,
provided that the perpetrator had the opportunity to cease and
desist from his criminal actions at any time’” commit crimes on
20
different occasions. United States v. Leeson, 453 F.3d 631,
642-43 (4th Cir. 2006) (citations omitted).
The district court walked through each factor during
Hall’s sentencing hearing, explaining its reasoning for finding
that the two felonies Hall now challenges--a charge for breaking
and entering and larceny, and a charge for aiding and abetting
an assault with a deadly weapon on a police officer--constituted
two separate offenses, even though the aiding and abetting
felony arose when Hall fled the scene of the breaking and
entering. S.J.A. 1072 (pre-sentence investigation report);
1003-05. A consideration of the Letterlough factors leads us to
conclude that our holding in Leeson applies here. Hall’s
breaking and entering and his assault on a police officer were
committed in somewhat different geographic locations, the nature
of the two offenses was substantially different, the victims of
the crimes were distinct, and there were different criminal
objectives to each crime. Further, there was a point after the
breaking and entering, albeit brief, where Hall “‘had the
opportunity to cease and desist from his criminal actions,’”
meaning the crimes occurred on different occasions. Leeson, 453
F.3d at 643 (citations omitted). Therefore, the district court
did not err in classifying Hall as an armed career criminal and
so sentencing him under the ACCA.
21
III.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED.
22