United States v. Clapp

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 98-4508

NATHANIEL D. CLAPP,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CR-98-7)

Submitted: February 26, 1999

Decided: June 4, 1999

Before WIDENER, LUTTIG, and TRAXLER, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Jennifer T. Stanton, J.T. STANTON, P.C., Norfolk, Virginia, for
Appellant. Helen F. Fahey, United States Attorney, Darryl J. Mitchell,
Special Assistant United States Attorney, Norfolk, Virginia, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Nathaniel Clapp was convicted by a jury of being a felon in posses-
sion of a firearm, 18 U.S.C.A. § 922(g)(1) (West Supp. 1998), and
possession of a firearm with an obliterated serial number, 18 U.S.C.A.
§ 922(k) (West Supp. 1998). He appeals his conviction and eighty-
four-month sentence, contesting the district court's denial of his sup-
pression motion and its calculation of his criminal history score. See
U.S. Sentencing Guidelines Manual §§ 4A1.1-4A1.2 (1997). We
affirm.

I.

Clapp was arrested on July 3, 1997, after he was found in posses-
sion of a 9 mm pistol with an obliterated serial number outside an
apartment complex in an area known to be an open air drug market.
Clapp sought to suppress the pistol, alleging that he was stopped by
police in violation of the Fourth Amendment and did not consent to
have the police officer search his pockets.

Norfolk Police Officer Paul Donnelly testified at the suppression
hearing that he was in a three-to-four-man bicycle patrol which
entered the complex during the day on July 3, 1997. As they came in,
they saw Clapp standing by himself in a grassy area. Clapp appeared
to react to the sight of the officers by furtive movements--pulling his
hand out of his pocket, putting it back, and turning away. Because the
apartment owners were concerned about trespassers involved in drug
dealing, all four officers rode over to Clapp.

Donnelly testified that he asked Clapp whether he lived at the com-
plex and that Clapp said his mother lived there. However, he said it
was police policy to verify assurances that someone was visiting a
resident as such claims were often untrue. Donnelly said he noticed
a large bulge in Clapp's pants pocket and asked what it was. When
Clapp did not answer, Donnelly testified that he asked, "Do you mind
if I look?" He said that Clapp responded, "Yeah, okay," pulled some
items out of pockets, and held them up. Donnelly then pointed to the

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bulge, which was still there, asked what it was, poked or patted it, and
recognized that it was a gun. He retrieved the gun.

At this point, Donnelly said Clapp was handcuffed and, while it
was being done, he recognized Clapp, who had been pointed out to
him as a drug dealer years before. Donnelly said he knew that Clapp
had been banned from the apartment complex. Donnelly had
attempted to catch Clapp with drugs on him several times but had
failed. Clapp was arrested and charged with being a felon in posses-
sion of a firearm and possession of a firearm with an obliterated serial
number.

Clapp did not testify at the suppression hearing. Under cross-
examination, when confronted with his offense report, Donnelly
agreed that Clapp's arrest took place during the late evening, not dur-
ing the day as he had previously testified. When asked whether Clapp
had provided any identification, Donnelly testified that he had not, but
that he recognized Clapp as a known drug dealer whom he had chased
several times.

Clapp's attorney then presented testimony from Marc McMillin,
the attorney who represented Clapp at his preliminary hearing in state
court on July 22, 1997. McMillin testified about his recollection of
Donnelly's testimony. His memory of what Donnelly testified dif-
fered from Donnelly's testimony at the suppression hearing in two
respects. McMillin said Donnelly testified at the preliminary hearing
that Clapp provided a valid identification before the gun was discov-
ered, and that Donnelly testified that he reached into Clapp's pocket
without mentioning that he first touched the outside of the pocket to
determine that the bulge felt like a pistol. McMillin had taken notes
during the hearing. Both his notes and Donnelly's offense report were
admitted into evidence. Donnelly's report stated that he had touched
Clapp's pocket before he reached into it and that he recognized Clapp
after he retrieved the gun.

The district court denied the motion to suppress, finding that Clapp
had consented to a search of his pockets and that Donnelly made a
legitimate stop and frisk under Terry v. Ohio , 392 U.S. 1 (1968). The
court found that Donnelly patted Clapp's pocket before reaching into
it. The district court's factual determinations on suppression issues are

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reviewed under the clearly erroneous standard and its legal conclu-
sions are reviewed de novo. See United States v. Rusher, 966 F.2d
868, 873 (4th Cir. 1992). Here, Clapp did not testify at the hearing
and his attempt to impeach Donnelly's testimony did not seriously
undercut Donnelly's story because most of what Donnelly testified
about was confirmed by his incident report. Therefore, to the extent
that the district court accepted Donnelly's version of events, the court
did not clearly err.

Clapp argues that he was seized when the four police officers con-
fronted him and that they had no reason to detain him because it was
not clear that he was trespassing. He also contends that the frisk was
unjustified in that Donnelly had no reason to fear for his safety
despite the visible bulge in Clapp's pocket because Donnelly did not
testify that he was concerned about firearms.

We find that the district court did not err in denying Clapp's
motion to suppress. First, Clapp was not seized when the police
approached him and asked him whether he lived at the apartment
complex. See Florida v. Bostick, 501 U.S. 429, 434 (1991) (mere
questioning by the police does not constitute a seizure).

Moreover, the district court found that Clapp consented to a search
of his pockets. This finding was not clearly erroneous because it was
supported by Donnelly's undisputed testimony that Clapp said
"Okay," and began displaying the contents of his pockets in response
to Donnelly's request to search. There was no evidence that Clapp
limited the scope of the search. Therefore, no Fourth Amendment vio-
lation occurred when Donnelly reached into Clapp's pocket, whether
Donnelly touched the outside of the pocket first or not.

Last, Donnelly had justification for a protective search once Clapp
pulled several items out of his pockets leaving the bulge still visible.
Police may "stop and briefly detain a person for investigative pur-
poses," if they have "a reasonable suspicion supported by articulable
facts that criminal activity `may be afoot.'" United States v. Sokolow,
490 U.S. 1, 7 (1989); see also United States v. Swann, 149 F.3d 271,
274 (4th Cir. 1998). An officer may conduct a patdown search of the
detainee's outer clothing if there is "reason to believe that he is deal-
ing with an armed and dangerous individual." Terry, 392 U.S. at 27.

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A suspicious bulge under a suspect's clothing may provide a basis for
a protective search. See United States v. Baker , 78 F.3d 135, 137 (4th
Cir. 1996).

Donnelly testified that Clapp made furtive movements when he
saw the police, put his hands in and out of his pockets, and turned
away. In an area notorious for drug-dealing by non-residents, such
behavior inevitably aroused concern. Clapp's statement that his
mother lived at the complex did not completely dispel suspicion that
he was trespassing. Moreover, once Clapp agreed to show Donnelly
what was in his pockets and withdrew several items, leaving the
object causing the bulge still hidden, Donnelly could reasonably sus-
pect that it was a firearm. Thus, he had cause for a patdown frisk.
When he felt the hard object, he knew it was a firearm and was justi-
fied in removing it. See Baker, 78 F.3d at 138 (citing Adams v.
Williams, 407 U.S. 143, 147-48 (1972) (officer acted reasonably in
reaching directly for firearm in waistband of suspect's pants)).

II.

At the sentencing hearing, Clapp objected to criminal history points
recommended in the presentence report for a number of his prior sen-
tences. The contested offenses which are relevant on appeal are the
following: (1) disorderly conduct, suspended 30-day sentence and
fine imposed 11/22/93; (2) assault and trespassing, time-served sen-
tence and 12-month suspended sentence imposed 12/14/94; (3) driv-
ing under revocation or suspension, 6-month sentence with 5 months
and 20 days suspended and fine imposed 11/6/96; (4) trespassing, 60-
day suspended sentence and fine imposed 1/9/97; (5) driving under
revocation or suspension, 30-day sentence with 28 days suspended
imposed 4/1/97.

Clapp argued that all but the assault were offenses which are not
counted unless the sentence was a term of probation of at least one
year or a term of imprisonment of at least thirty days. See USSG
§ 4A1.2(c)(1). Clapp had received suspended sentences for each
offense except the assault. No term of probation was imposed with
any of the suspended sentences, and the time he served in prison was
less than thirty days. However, the district court overruled his objec-
tions, finding that, under Virginia law, a suspended sentence with no

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period of probation includes an implied period of good behavior
extending as far as the maximum period for which the defendant
might originally have been sentenced. Because all the contested
offenses were Class I misdemeanors, the maximum sentence was one
year. See Va. Code Ann. § 18.2-11 (Michie 1996). Therefore, the dis-
trict court found that the contested offenses were countable under
USSG § 4A1.2(c)(1).

The district court revised the calculation for the assault and tres-
passing offenses. For the assault sentence of ninety days, reduced to
an unspecified time served, for which the probation officer had rec-
ommended two points, the district court gave one point. For the tres-
passing sentence of twelve months in jail, suspended upon two years
good behavior, for which the probation officer had recommended no
points, the district court awarded one point. Clapp's revised criminal
history score was eleven points, placing him in category V, and giv-
ing him a guideline range of 77-96 months. The court imposed a sen-
tence of eighty-four months.

On appeal, Clapp disputes the district court's determination that
points should be awarded for the suspended sentences. He also con-
tends that the district court committed plain error in awarding one
point each for the assault and trespassing sentences imposed on
December 14, 1994, because they were related cases. Finally, he
claims that he received more than the four-point limit for sentences
counted under USSG § 4A1.1(c).

The first issue is whether Virginia law provides for an automatic
period of probation of at least one year when a suspended sentence
is imposed and no period of probation is specified. If so, then the dis-
trict court was correct in awarding Clapp one criminal history point
for each such sentence he received or the fines associated with most
of them. Otherwise, the sentences and fines should not have been
counted at all under USSG § 4A1.2(c)(1). Clapp argues that no such
implied probationary period exists. He relies on the two relevant Vir-
ginia statutes and a decision from the Virginia Court of Appeals inter-
preting them.

Section 19.2-303 of the Code of Virginia provides in pertinent part:

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 After conviction . . . the court may suspend imposition of
sentence or suspend the sentence in whole or part and in
addition may place the accused on probation under such
conditions as the court shall determine . . . .

If a person has been sentenced to jail upon conviction of
a misdemeanor or a felony, the court may, at any time
before the sentence has been completely served, suspend the
unserved portion of any such sentence, place the person on
probation for such time as the court shall determine, or oth-
erwise modify the sentence imposed.

Va. Code Ann. (Michie 1995).

Section 19.2-306 provides in pertinent part:

The court may, for any cause deemed by it sufficient which
occurred at any time within the probation period, or if none,
within the period of suspension fixed by the court, or if nei-
ther, within the maximum period for which the defendant
might originally have been sentenced to be imprisoned,
revoke the suspension of sentence and any probation, if the
defendant be on probation, and cause the defendant to be
arrested and brought before the court at any time within one
year after the probation period, or if no probation period has
been prescribed then within one year after the period of sus-
pension fixed by the court, or if neither a probation period
nor a period of suspension has been prescribed then within
one year after the maximum period for which the defendant
might originally have been sentenced to be imprisoned,
whereupon, in case the imposition of sentence has been sus-
pended, the court may pronounce whatever sentence might
have been originally imposed.

Va. Code Ann. (Michie 1995) (emphasis added).

For each prior offense where Clapp received a suspended sentence,
the court imposed sentence but failed to impose either a period of pro-
bation or to fix a time when the period of suspension would end. Con-

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sequently, under § 19.2-306, each of Clapp's suspended sentences
was subject to revocation within the maximum period for which he
might originally have been sentenced to imprisonment. Because the
offenses were all Class I misdemeanors, the maximum sentence for
each was one year. See Va. Code Ann. § 18.2-11.

Clapp's argument concedes all of the above. But he asserts that the
"maximum period for which [he] might have been sentenced to be
imprisoned" was no more than the length of the sentence imposed and
then suspended. So he claims that the thirty-day suspended sentence
imposed for disorderly conduct on May 9, 1994, could have been
revoked only for violations committed within the thirty days after he
was sentenced. Therefore, in his view, he was not subject to an
implied period of probation lasting one year and the offense was not
countable as part of his criminal history under§ 4A1.2(c)(1).

Clapp relies on Carbaugh v. Commonwealth, 449 S.E.2d 264 (Va.
Ct. App. 1994). However, Carbaugh does not support his position. In
that case, the defendant received a suspended four-year sentence for
arson, a two-year suspended sentence for grand larceny, five years
imprisonment for other offenses, and a six-year term of probation. No
period of suspension was fixed. When Carbaugh was arrested for
driving under the influence of alcohol after the period of probation
expired, the court revoked nine months of the suspended sentence for
grand larceny. The Virginia Court of Appeals held:

Although the express wording of the statute does not explic-
itly address a judge's power to revoke suspension . . . when
no period of suspension was fixed, that power is implicit
because, if the cause arose during a time that was[not] . . .
within a period of suspension (i.e., no period of suspension
was expressly prescribed), the judge could revoke the sus-
pended sentence . . . "within the maximum period for which
the defendant might originally have been sentenced to be
imprisoned."

Carbaugh, 449 S.E.2d at 267-68 (quoting Va. Code Ann. § 19.2-306).

Because the grand larceny conviction carried a maximum sentence
of twenty years, the court held that Carbaugh's suspended sentence

8
could be revoked at any time during the twenty years following his
original sentencing. See Carbaugh, 449 S.E.2d at 268. Under
Carbaugh, Clapp's suspended sentences for Class I misdemeanors
could have been revoked up to one year after sentence was imposed.
Therefore, the district court did not err in counting them in Clapp's
criminal history score.

Clapp next contends that the district court correctly awarded him
one criminal history point for the "time served" sentence he received
for assault on a police officer, but erred in giving him one criminal
history point for the trespassing sentence which was imposed the
same day in the same court. He claims that both offenses were part
of a common scheme or plan and thus were related cases which
should have been treated as one sentence. See USSG § 4A1.2(a)(2) &
comment. (n.3). Because Clapp did not object to the district court's
decision at sentencing (see JA-I at 75), the issue is reviewed for plain
error. See United States v. Olano, 507 U.S. 725, 732 (1993) (plain
error is one which is obvious and prejudicial).

While the cases may have been related and the court may have
erred in giving Clapp a point for each sentence, the extra point did not
prejudice him. Clapp's final total was eleven criminal history points,
which placed him in category V (10-12 points). Deleting one point
would not affect the criminal history category or lower Clapp's guide-
line range. Therefore, Clapp has not shown plain error.

Last, Clapp maintains that, if the district court was otherwise cor-
rect in calculating his sentence, it erred in giving him a point for this
sentence because no more than four points are permitted under
§ 4A1.1(c). Although the four-point limit was not discussed at sen-
tencing, the probation officer's final calculation deleted the point ini-
tially given for this sentence. No error occurred.

Accordingly, we affirm the conviction and the sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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