UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4269
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM JAMES MORRISON, III,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:10-cr-00025-RLV-DCK-1)
Submitted: December 28, 2012 Decided: January 15, 2013
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Eric J. Foster, LAW OFFICE OF RICK FOSTER, Asheville, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, William M. Miller, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William James Morrison, III, was charged in a one-
count indictment with possessing a firearm after having been
convicted of a felony, in violation of 18 U.S.C. § 922(g)(1)
(2006). The jury found Morrison guilty. At sentencing,
Morrison was designated an armed career criminal, subject to a
fifteen-year mandatory minimum sentence under 18 U.S.C. § 924(e)
(2006). Based on a total offense level of 33, and a criminal
history category of VI, Morrison’s Guidelines range was
determined to be 235-293 months of imprisonment. The court
imposed a sentence at the bottom of the Guidelines range—235
months. Morrison noted a timely appeal.
On appeal, Morrison argues that the district court
erred in denying his motion to suppress, that his conviction
violates his rights under the Second Amendment, and that the
district court erred at sentencing in failing to address the
factors enumerated in U.S. Sentencing Guidelines Manual (“USSG”)
§ 5G1.3 (2011). We affirm.
We review the district court’s factual findings
relevant to a motion to suppress for clear error, and its legal
determinations de novo. United States v. Kelly, 592 F.3d 586,
589 (4th Cir. 2010). The facts are reviewed in the light most
favorable to the prevailing party below. United States v.
Jamison, 509 F.3d 623, 628 (4th Cir. 2007). When the district
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court has denied a suppression motion, this Court “construe[s]
the evidence in the light most favorable to the government.”
Kelly, 592 F.3d at 589. This court “defer[s] to a district
court’s credibility determinations, for it is the role of the
district court to observe witnesses and weigh their credibility
during a pre-trial motion to suppress.” United States v. Abu
Ali, 528 F.3d 210, 232 (4th Cir. 2008) (internal quotation marks
omitted).
Morrison argues that Adkins lacked justification for
the initial traffic stop. However, because Morrison failed to
raise this claim in the district court, it is reviewed only for
plain error. United States v. Olano, 507 U.S. 725, 732-37
(1993). To establish plain error, a defendant must show that
(1) an error occurred; (2) the error was plain; and (3) the
error affected his substantial rights. Id. at 732. Even if the
defendant demonstrates plain error, this court will exercise its
discretion to notice the error only if the error “seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Id. (internal quotation marks omitted).
We find that Morrison cannot show plain error, let alone any
error, with respect to the denial of his motion to suppress.
The “decision to stop an automobile is reasonable when
police have probable cause to believe that a traffic violation
has occurred.” Whren v. United States, 517 U.S. 806, 810
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(1996). Observation of any traffic violation, no matter how
minor, gives an officer probable cause to stop the vehicle.
United States v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993). If
an officer observes a traffic offense or other unlawful conduct,
he is justified in stopping the vehicle regardless of his
subjective intent or any other “ulterior motive [he] may have
for making the traffic stop.” United States v. Digiovanni, 650
F.3d 498, 506 (4th Cir. 2011).
At the hearing on Morrison’s motion to suppress, the
Government presented the testimony of Trooper Kyle Adkins of the
North Carolina State Highway Patrol. Adkins testified that on
July 16, 2009, while sitting in his marked patrol car, he
observed the vehicle driven by Morrison make an abrupt U-turn
and head in the opposite direction. His suspicion aroused,
Adkins began following the vehicle, and noticed that it “had a
very old, dirty, it was rolled up, it was a paper plate which is
a 30-day registration. The whole tag was very weathered. Had
mud on the side of it. Was rolled up. Was unreadable. At that
point I initiated a traffic stop based on his registration.”
According to Adkins, “[s]oon as I got to the back door, the
window, I noticed a rectangular black gun case was sitting in
the rear of his – it was a four-door vehicle. It was sitting in
the rear seat of his vehicle, as well as another smaller gun in
the back floorboard behind the driver seat.” Morrison stated
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that the guns belonged to his brother. After running a check on
Morrison’s license and registration, Adkins discovered that
Morrison’s driver’s license had been revoked, the 30-day plate
that was on the vehicle was registered to a different vehicle,
and the vehicle had no insurance, all in violation of North
Carolina law. Adkins ordered the vehicle towed, allowing
Morrison to choose the towing company; shortly after the vehicle
was towed away, Adkins learned that Morrison was a convicted
felon. Adkins proceeded to the tow lot, where he found Morrison
standing between the vehicle and another car—a purple vehicle
driven by a woman identified as Morrison’s sister. Adkins
noticed the black rectangular shotgun case that had been in the
back of Morrison’s vehicle was now in the purple vehicle, and
the trunk of Morrison’s vehicle was open. In the trunk, in
plain view, were two assault rifles. In all, Adkins recovered
four firearms from Morrison’s vehicle. Adkins placed Morrison
under arrest for possession of the firearms.
Contrary to Morrison’s assertion that Adkins’
observation of the U-turn was the “only activity” that factored
into his decision to initiate the stop, the evidence established
that the condition of the tag was unreadable and therefore
questionable, thus providing Adkins with objective, sufficient
justification to stop the vehicle. Accordingly, we find that
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the traffic stop was valid and the district court did not
plainly err in denying Morrison’s motion to suppress.
Next, Morrison contends that the provisions of 18
U.S.C. § 922(g)(1), as applied to him, violate the Second
Amendment. Relying heavily on the Supreme Court’s decision in
District of Columbia v. Heller, 554 U.S. 570 (2008), Morrison
argues that § 922(g)(1)’s prohibition violates his Second
Amendment right to keep and bear arms. In light of our recent
decisions in United States v. Moore, 666 F.3d 313 (4th Cir.
2012) and United States v. Smoot, 690 F.3d 215 (4th Cir. 2012),
we find Morrison’s claim to be without merit.
Finally, Morrison argues that the district court erred
at sentencing by failing to account for an undischarged state
sentence. Specifically, Morrison asserts that the court did not
consider USSG § 5G1.3 in deciding whether to impose his federal
sentence concurrently with, or consecutively to, a lengthy state
sentence he is serving.
This court reviews a sentence for reasonableness under
deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). This review includes both
procedural and substantive components. Id. A sentence is
procedurally reasonable where the district court committed no
significant procedural errors, “such as failing to calculate (or
improperly calculating) the Guidelines range, treating the
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Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [2006] factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.” Id. at 51. “When rendering a sentence, the district
court must make an individualized assessment based on the facts
presented,” United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009) (internal quotation marks and emphasis omitted), and must
“adequately explain the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair
sentencing.” Gall, 552 U.S. at 50. “When imposing a sentence
within the Guidelines, however, the [district court’s]
explanation need not be elaborate or lengthy because
[G]uidelines sentences themselves are in many ways tailored to
the individual and reflect approximately two decades of close
attention to federal sentencing policy.” United States v.
Hernandez, 603 F.3d 267, 271 (4th Cir. 2010) (internal quotation
marks and citation omitted).
Once we have determined that the sentence is free of
procedural error, we consider the substantive reasonableness of
the sentence, “tak[ing] into account the totality of the
circumstances.” Gall, 552 U.S. at 51. If the sentence is
within the appropriate Guidelines range, this court applies a
presumption on appeal that the sentence is reasonable. United
States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008).
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Under 18 U.S.C. § 3584 (2006), a district court is
required to consider the factors in 18 U.S.C. § 3553(a) when
deciding whether to impose concurrent or consecutive prison
terms for a defendant who is already subject to an undischarged
term of imprisonment. ∗ Section § 3553(a)(5) requires the court
to consider “any pertinent policy statement,” which in this case
was USSG § 5G1.3(c).
Morrison argues that the district court abused its
discretion by failing to consider the § 5G1.3(c) factors when
imposing his federal sentence. With respect to the district
court’s consideration of USSG § 5G1.3(c), we ordinarily review
legal questions concerning the application of the Sentencing
Guidelines de novo. United States v. Manigan, 592 F.3d 621, 626
(4th Cir. 2010). However, because Morrison failed to raise this
issue in the district court, review is only for plain error.
United States v. Rouse, 362 F.3d 256, 260 (4th Cir. 2004). We
find that he has not demonstrated error by the district court
under either a de novo or plain error standard of review.
∗
USSG § 5G1.3(c), which is designated as a policy
statement, provides that “[i]n any other case involving an
undischarged term of imprisonment, the sentence for the instant
offense may be imposed to run concurrently, partially
concurrently, or consecutively to the prior undischarged term of
imprisonment to achieve a reasonable punishment for the instant
offense.”
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A district “court need not engage in ritualistic
incantation in order to establish its consideration of a legal
issue. It is sufficient if . . . the district court rules on
issues that have been fully presented for determination.
Consideration is implicit in the court's ultimate ruling.”
United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995)
(dealing with the district court’s alleged failure to consider
Guidelines policy statements when revoking a defendant’s
supervised release).
Here, although the court did not specifically discuss
USSG § 5G1.3 at sentencing, the court was clearly aware that
Morrison was serving a lengthy state sentence. In addressing
Morrison’s argument that the prosecution had engaged in
“sentencing manipulation,” by permitting the state to prosecute
and sentence him prior to his sentencing on the current charge,
the court stated that “all the government did was . . . permit
him to be taken over to state custody for the disposition of
those charges. That does not seem to be a matter of sentence
manipulation.” Moreover, absent a “contrary indication,” a
sentencing court is presumed to have considered the factors
enumerated in 18 U.S.C. § 3553(a) in a non-departure case.
United States v. Johnson, 138 F.3d 115, 119 (4th Cir. 1998).
Accordingly, we affirm Morrison’s conviction and
sentence. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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