United States v. Bailey

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2010 Decided October 26, 2010

No. 07-3006

UNITED STATES OF AMERICA,
APPELLEE

v.

ROLAND JAMES BAILEY,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 03cr00441-15)

Richard K. Gilbert, appointed by the court, argued the cause
and filed the briefs for appellant.

Suzanne G. Curt, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and Roy W. McLeese III, John P. Mannarino, and
William J. O'Malley, Assistant U.S. Attorneys. Mary B.
McCord, Assistant U.S. Attorney, entered an appearance.

Before: GINSBURG and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.
 2

ROGERS, Circuit Judge: Roland Bailey appeals his
conviction by a jury of possession with intent to distribute 500
grams or more of cocaine, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(B)(ii). He contends the district court erred
in denying his motion to suppress the drugs seized from his car,
because the police had observed no criminal activity on his part
and no crime had been reported, and thus neither probable cause
nor articulable suspicion existed for his arrest. We hold the
district court did not err in denying the motion to suppress.
Appellant was “observed walking with and talking to a
suspected drug dealer at the very time and in the very place of
the suspected drug dealing,” United States v. McKie, 951 F.2d
399, 402 (D.C. Cir. 1991). He responded to events in a manner
that provided the police with “a reasonable suspicion, based on
‘specific and articulable facts,’” id. at 401 (quoting Terry v.
Ohio, 392 U.S. 1, 21 (1968)), to detain him briefly. Based on a
prior purchase from the same drug dealer, the undercover officer
could reasonably infer that appellant, after speaking with the
drug dealer, had been waiting for the arrival of drugs he wanted
to purchase when he drove into the alley after another car
entered the alley, briefly stopped adjacent to that car, and then
promptly drove out of the alley. Upon stopping appellant, the
officers had probable cause to search his car, see id. at 402,
because, as he concedes, a package containing cocaine was in
plain view on the passenger’s seat.

Appellant’s other claim of legal error, based on Brady v.
Maryland, 373 U.S. 83 (1963), is unpersuasive because he fails
to show he was prejudiced by the government’s late disclosure
during trial that it could not locate a traffic ticket allegedly
written when appellant was stopped for running a stop sign.

However, we remand the record to the district court for
consideration of appellant’s policy objection to the career
offender provision of the U.S. Sentencing Guidelines, § 4B1.1,
 3

in view of Kimbrough v. United States, 552 U.S. 85 (2007),
which was decided after appellant’s sentencing. Upon remand
the district court also can address appellant’s objection that it
never issued a promised order regarding false testimony
presented to the grand jury.

I.

Detective King Watts testified that on July 3, 2003, while
working as an undercover police officer, he was attempting to
make another purchase of cocaine from Walter Webb. In June
2002 Watts had purchased cocaine from Webb, who owned a
restaurant at 1361 U Street, N.W. The purchase had taken place
in a storage shed in the alley behind the restaurant; the alley was
to the east of the restaurant and could be entered from U Street
and ran north-south, parallel to 14th Street. On July 3, Watts
drove to the restaurant around 3 p.m. and parked on the south
side of U Street, across the street from the alley and Webb’s
restaurant, several cars behind Webb’s truck in which Webb was
sitting. Watts was wearing monitoring equipment consisting of
an Eagle recorder and body wire; he also had a cell phone with
a “direct connect” feature. Detectives Manley and Dessin were
parked nearby on the north side of U Street.

Watts testified that when he arrived on U Street, he
telephoned Webb, who told Watts to get into Webb’s truck,
which he did. Webb asked Watts, “What’s up boss?” Eagle Tr.
July 3, 2002 at 2. A conversation ensued in which the two men
discussed the price of the drugs Watts wanted to buy, Webb
stating that the price had increased. Webb appeared to make
several phone calls attempting to find drugs at the price Watts
offered to pay. During the second call, Watts saw appellant
come to the driver’s side of Webb’s truck. Webb asked
appellant, “What’s up boss?” Id. at 5. Appellant’s response was
unintelligible on the Eagle recorder but Webb replied, “Okay, I
 4

know it. I thought he told that guy 3:00.” Id. Appellant then
went and waited by his truck, which was parked on the north
side of U Street. Shortly thereafter Watts and Webb agreed
Webb would make the sale to Watts, and Webb indicated that
someone would be bringing the drugs that Watts wanted:
“I’mma [sic] call the guy and tell him to come on up here and
bring that[,] and it shouldn’t take me long[,] but I’ll let you
know just how long it’ll take i[n] a few minutes.” Id. at 6.
Webb told Watts to wait in his car and went into the restaurant.
Webb later came out of the restaurant and he and appellant went
into the alley.

While waiting in his car, Watts called Detective Manley to
advise him of what had transpired and that Webb had telephoned
to say it would be less than 10 minutes and that the “guy is on
his way.” Id. at 7. A person later identified as Raven Carroll,
Webb’s supplier, drove into the alley in a black car, stopping
beside the storage shed where Watts had previously brought
drugs from Webb. About 20 to 30 seconds later, appellant
emerged from the alley, got into his car, drove into the alley
behind Webb’s restaurant, and stopped parallel to Carroll’s car.
Watts told Manley about appellant, stating Webb was “getting
ready to serve” him. Id. About two minutes after appellant
went into the alley, Webb called Watts and told him to come
into the alley. Watts notified Detectives Manley and Dessin that
appellant was in the alley. No police officer was able to observe
appellant’s actions in the alley. When Watts pulled into the
alley, Carroll’s car was still there but appellant’s car was not.
About a minute later Carroll drove out of the alley. Watts made
his planned purchase of cocaine from Webb inside the freezer
located in the shed, where the previous buy had taken place.
After appellant left the alley, he was stopped by Officer Shaw
for rolling through a stop sign. The police seized a kilogram of
cocaine in plain sight on the passenger seat of appellant’s car.
 5

On October 7, 2003, appellant and eighteen others were
indicted for violating federal drug laws. The district court
denied appellant’s motion to suppress the drugs seized from his
car, which were the basis for count 8 of the indictment, which
charged possession with intent to distribute 500 grams or more
of cocaine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B)(ii). The jury found appellant guilty on count 8, but
acquitted him on count 1, which charged conspiracy to import
one kilogram or more of heroin and five kilograms or more of
cocaine, in violation of 21 U.S.C. § 963. The jury was unable to
reach a verdict on count 2, which charged conspiracy to
distribute and possess with intent to distribute one kilogram or
more of heroin, five kilograms or more of cocaine, and fifty
grams or more of cocaine base, in violation of 21 U.S.C. § 846;
the government moved to dismiss count 2 after the district court
declared a mistrial on that count. The district court denied
appellant’s motion for a new trial, which, among other things,
renewed his suppression arguments about the drugs seized from
his car based on inconsistencies between police officers’
testimony at the suppression hearing and their testimony at trial.
The district court also denied appellant’s renewed motion to
dismiss the indictment, which alleged, among other things, that
Officer Manley had provided perjurious testimony to the
indicting grand jury. The district court sentenced appellant, as
a career offender under U.S.S.G. § 4B.1.1, to life imprisonment
and eight years’ supervised release.

II.

Following an evidentiary hearing, the district court denied
appellant’s motion to suppress the cocaine seized from his car
on two alternative grounds, each of which appellant contends
raises separate legal issues. The district court ruled that the
police had probable cause and/or reasonable suspicion to believe
that appellant had been involved in a drug transaction, thus
 6

giving the police grounds to stop appellant’s car after it exited
the alley behind Webb’s restaurant. Alternatively, the district
court ruled appellant was observed committing a traffic
violation, justifying the stop. Based on Officer Delpo’s trial
testimony that he saw drugs on the passenger seat, appellant
does not challenge the district court’s finding that the drugs were
in plain view. Rather, appellant challenges the district court’s
legal ruling on the ground that the record reveals an insufficient
basis for either probable cause or reasonable suspicion that he
was engaged in criminal activity.

When reviewing the denial of a motion to suppress physical
evidence on Fourth Amendment grounds, the court reviews the
district court’s factual findings for clear error, and considers the
district court’s legal conclusions concerning reasonable
suspicion and probable cause de novo. Ornelas v. United States,
517 U.S. 690, 699 (1996). The court will give due weight to
inferences drawn from those facts by the district court. Id. The
court may consider both evidence offered at the suppression
hearing and the trial. United States v. Hicks, 978 F.2d 722, 724-
25 (D.C. Cir. 1992) (citing Carroll v. United States, 267 U.S.
132, 162 (1925)); see also United States v. Brown, 510 F.3d 57,
64 n.6 (1st Cir. 2007); 5 WAYNE R. LAFAVE, SEARCH AND
SEIZURE § 11.7(d) (3d ed. 1996).1

1
The government relies on United States v. Harley, 990 F.2d
1340, 1341 (D.C. Cir. 1993), for the proposition that the court must
uphold the district court’s legal ruling if any reasonable view of the
evidence supports it. However, the Harley standard applies only
where the district court failed to make factual findings on the record
as required by FED. R. CRIM. P. 12(e) but the defendant has waived his
Rule 12(e) objection. Id. Where, as here, the district court makes the
required findings, those findings are reviewed for clear error. See
Ornelas, 517 U.S. at 699.
 7

The Fourth Amendment prohibits “unreasonable searches
and seizures” by law enforcement officials, and this protection
extends to a brief investigatory stop of persons or vehicles,
whether or not an arrest follows. United States v. Arvizu, 534
U.S. 266, 273 (2002) (citing Terry v. Ohio, 392 U.S. 1, 9 (1968);
United States v. Cortez, 449 U.S. 411, 417 (1981)). A law
enforcement official may effect a brief investigatory stop of an
individual if the official has “‘a reasonable suspicion, grounded
in specific and articulable facts, that a person . . . was involved
in or is wanted in connected with a completed felony.’” United
States v. Abdus-Price, 518 F.3d 926, 929 (D.C. Cir. 2008)
(quoting United States v. Hensley, 469 U.S. 221, 229 (1985)).
Mere generalized inarticulable hunches are insufficient. Ybarra
v. Illinois, 444 U.S. 85, 92-93 (1979).

According to appellant, the principal bases for reasonable
suspicion are a law enforcement official’s personal observations,
see Illinois v. Wardlow, 528 U.S. 119, 124 (2000), and an
officer’s knowledge that a crime has been committed, see
Hensley, 469 U.S. at 233-35. However, these are not the
exclusive bases. Pursuant to Terry, “an officer may briefly
detain a citizen if he has a reasonable, articulable suspicion that
‘criminal activity may be afoot.’” United States v. Edmonds, 240
F.3d 55, 59 (D.C. Cir. 2001) (quoting Terry, 392 U.S. at 30). A
Terry stop requires only a “minimal level of objective
justification.” INS v. Delgado, 466 U.S. 210, 217 (1984).
Although an officer does not have articulable suspicion a person
is committing a crime merely because a person is in an area of
suspected criminal activity, “officers are not required to ignore
the relevant characteristics of a location in determining whether
the circumstances are sufficiently suspicious to warrant further
investigation.” Wardlow, 528 U.S. at 124. An officer may
initiate a Terry stop based not on certainty but on the need “to
‘check out’ a reasonable suspicion.” United States v. Clark, 24
F.3d 299, 303 (D.C. Cir. 1994). Moreover, whether reasonable
 8

suspicion exists depends on the totality of circumstances as
“‘viewed through the eyes of a reasonable and cautious police
officer on the scene, guided by his experience and training.’”
Edmonds, 240 F.3d at 60 (quoting United States v. Hall, 525
F.2d 857, 859 (D.C. Cir. 1976)); see United States v. Cortez, 449
U.S. 411, 418 (1981).

The district court’s factual findings are not clearly
erroneous. The district court found that undercover officer
Watts had previously purchased drugs from Webb in the alley
behind Webb’s restaurant, that restaurant owners generally do
not sell food in alleys behind their restaurants, that Watts’s
“inference or conclusions were accurate,” Tr. May 24, 2005 at
91, that Webb wanted to sell drugs to Watts and was arranging
for drugs to be delivered, and that “one could reasonably infer
that Webb and [appellant] had previously had a discussion about
somebody else having something available, or made available to
[appellant],” id. The district court concluded that after appellant
and Webb walked into the alley, after Webb called Watts and
told him a person would soon deliver the product, after a black
car arrived in the alley, and after appellant left the alley and
drove his car into the alley and parked beside the black car, even
though “there are no observations made of what occurs at that
time,” that “one could reasonably infer that consistent with the
purpose that Watts was there, [appellant] was there for the same
purpose.” Id. at 92. The district court also concluded that “one
could reasonably infer” appellant left the alley “quickly because
he had acquired what he had been there waiting for.” Id. at 93.
The district court further concluded that it “is a reasonable
inference to draw” that “a reasonably prudent police officer
could believe that what transpired was [appellant] making a
purchase of drugs.” Id. at 92.

Additionally, upon de novo review of the district court’s
inferences from the evidence and its Terry analysis, we find no
 9

error. Overall, the district court concluded the evidence “clearly
is sufficient to establish articulable suspicion to believe that
[appellant] was involved in the same type of activity that Watts
was involved in, considering the consistency of what was taking
place and the statements that were made by Webb to both Watts
and [appellant] prior to the purported transaction.” Id. at 92-93.
The district court further concluded that when Bailey drove out
of the alley, “there was, in my view, clearly articulable suspicion
to believe that [appellant] was involved in illegal criminal
activity.” Id. at 93. The district court analyzed “what is
reasonable and what would a reasonably prudent police officer
subjectively believe from the circumstances as they evolved,”
id. at 90, stating with respect to its factual findings that “it is my
understanding of Terry that that is sufficient to justify a Terry
contact” and that the police thus “could have stopped the
vehicle, and they could have investigated,” id. at 93-94.

Appellant maintains that there was no basis for reasonable
suspicion because appellant and Webb did not mention drugs in
the presence of undercover officer Watts, the officers did not
recognize the black car or its driver, Watts’s previous
undercover drug buys had been in a small shed behind the
restaurant rather than in the alley behind the restaurant, and no
officer observed what appellant did in the alley or whether
anyone else was in the alley. But appellant ignores the evidence
supporting articulable suspicion that he had just been involved
in a drug transaction, and that is all that is required for a Terry
stop. In United States v. McKie, 951 F.2d 399 (D.C. Cir. 1991),
the court concluded that “there may well have been reasonable
suspicion to justify a stop” of a defendant the officers had
observed “walking with and talking to a suspected drug dealer
at the very time and in the very place of the suspected drug
dealing.” Id. at 402. Hence, the court held that there was
reasonable suspicion once the defendant entered the drug
dealer’s car because that action demonstrated they were “not
 10

mere strangers” and the officers had been tipped that the dealer
kept his drug supply in his car. Id.

Although appellant distinguishes McKie as involving police
observation of the dealer and the defendant interacting, the
officers observed and recorded appellant and Webb talking and
walking together at the time and place Webb was arranging to
sell drugs to undercover officer Watts. Appellant
unpersuasively attempts to distinguish McKie as involving the
dealer’s car speeding up when the police began following it,
because the court in McKie did not rely on this in concluding
there was reasonable suspicion. As in McKie, to the officers on
the scene appellant’s conduct strongly suggested that Carroll
was Webb’s supplier and appellant quickly obtained from
Carroll that for which he and Watts had come. The
circumstances observed by police in this case – appellant
talking with Webb, waiting until the black car arrived to drive
his car into the alley, and leaving before the black car, which
was still parked next to the shed where Watts had bought drugs
from Webb in June 2002 – are very similar to the circumstances
relied on by the court in McKie to hold that there was reasonable
suspicion the defendant was involved in criminal activity.

Appellant, like the defendant in McKie, emphasizes the
seemingly innocuous aspects of his conduct and maintains there
was no contact between appellant and Webb after their initial
recorded conversation. However, appellant and Webb went into
the alley together thereafter and the evidence indicated appellant
was on familiar terms with Webb and that he had come to meet
Webb, a known drug dealer, at the time and place where Watts
had recently bought drugs from Webb and was about to buy
drugs from him again. To Watts, it was obvious that appellant,
like Watts, was waiting for someone to arrive. Indeed, once
Carroll, Webb’s apparent supplier, entered the alley, appellant
and Webb did too, soon followed by Watts at Webb’s invitation.
 11

This evidence provided the “minimal level of objective
justification,” Delgado, 466 U.S. at 217, that appellant had
engaged in drug-related activity and a stop was warranted.
Appellant’s suggestion that there was no basis for reasonable
suspicion because he did not flee when he saw the police and did
not engage in furtive movements erroneously transforms
circumstances attendant to a sufficient finding into a required
showing.

Accordingly, we hold that the district court did not err in
ruling there was articulable suspicion to stop appellant and
properly denied the motion to suppress.

III.

Appellant also presents a challenge under Brady v.
Maryland, 373 U.S. 83 (1963), to the district court’s alternative
ruling that there was probable cause to stop appellant for a
traffic violation. This challenge is based on the impeachment
value at trial of evidence that the government was unable to
locate the ticket that Officer Shaw allegedly wrote in connection
with stopping appellant because he ran a stop sign. According
to appellant, the lack of any record of the traffic ticket was
exculpatory because it not only casts doubt that a traffic
violation occurred but also impeached Officer Shaw’s
testimony. At trial Officer Shaw testified that he “believe[d]” he
wrote a ticket for running a stop sign and gave all the copies to
Detective Manley. Tr. Jan. 10, 2006 at 103-04. No such ticket
was ever produced despite defense requests. Appellant submits
the most likely inference is that the ticket never existed. The
evidence of its nonexistence, he continues, thus impeaches the
only witness who testified he saw a traffic violation. In
appellant’s view, because he was convicted on the basis of
evidence seized from his car, if the traffic stop was not
legitimate, then the case against him dissolves. Any evidence
 12

tending to discredit Officer Shaw’s testimony was, he maintains,
vital to his defense, as in United States v. Lyons, 352 F. Supp. 2d
1231 (M.D. Fla. 2004).

To prove a Brady violation requires a showing that the
evidence at issue is favorable to the accused because it is
exculpatory or impeaching, that the evidence was suppressed by
the government either willfully or inadvertently, and that the
accused was prejudiced. See Strickler v. Greene, 527 U.S. 263,
281-82 (1999); United States v. Andrews, 532 F.3d 900, 905
(D.C. Cir. 2008). To establish prejudice, the withheld material
must be “material,” i.e., there must be “a reasonable probability”
that had the evidence been disclosed to the defense the result of
the proceeding would have been different. Strickler, 527 U.S.
at 280; Andrews, 532 F. 3d at 905. Appellant posits that he had
a credible argument that there was no traffic infraction and the
traffic stop was manufactured. Detective Manley admitted he
wanted to stop appellant, and that he called Officers Shaw and
Washington so they could make the traffic stop. Detective
Manley’s instruction to the officers that appellant be stopped for
a traffic infraction, appellant suggests, can be viewed as a tacit
admission that he knew he did not have probable cause to stop
appellant on other grounds. To appellant, the coincidence in the
timing of Manley’s instruction and Shaw’s report that appellant
had made a rolling stop at an intersection, is suspicious:
Appellant was not acting furtively or suspiciously and did not
attempt to run when he saw the police. Further, appellant
maintains that Shaw’s testimony about being able to see the
contents of the paper bag from the passenger’s side of
appellant’s car is questionable because, for example, it is
inconsistent with Officer’s Delpo’s testimony that he could see
nothing suspicious from the driver’s side of the car.

During cross examination by appellant’s trial counsel,
Officer Shaw testified that he believed he wrote a traffic ticket
 13

after he stopped appellant. This was the first time Shaw
mentioned writing a ticket. Shaw also testified that he thought
the ticket “went down” with appellant’s arrest paperwork, which
included the PD 163 report on the incident. Tr. Jan. 10, 2006 at
104. After the lunch recess, appellant’s counsel told the district
court that she had not received a copy of the ticket and that the
government did not have it. The prosecutor confirmed he had
been unable to locate the ticket, noting that unless an officer
retained a personal copy there would be no copy three years
after the date it was written. Shaw confirmed during voir dire
that he did not have a copy of the ticket. Defense counsel
moved to strike Shaw’s testimony. The district court denied the
motion as too severe a sanction absent any indication of the
willful destruction of evidence, and stated it would await the
government’s further efforts to locate the ticket. Defense
counsel raised the issue of the missing ticket on two additional
occasions during trial but the district court deferred ruling. On
the last day of trial, defense counsel submitted a stipulation that
no record of the ticket could be found, which the prosecutor
joined, and requested a missing evidence instruction.

The district court denied the requested missing evidence
instruction on the ground the absence of the ticket would not
shed any light on the issue of whether the drugs were found in
appellant’s car after the stop, and that the issue of the legality of
the stop was not before the jury. However, the district court
allowed appellants’ trial counsel to argue to the jury that it could
consider the ticket’s absence when assessing Officer Shaw’s
testimony. During closing argument to the jury counsel, in fact,
focused on the lack of credibility of the evidence placing the
drugs in appellant’s car and mentioned on four occasions the
absence of the traffic ticket. The district court, prior to imposing
sentence, denied appellant’s motion for a new trial, which
included the argument that Officer Shaw had not mentioned the
traffic ticket at the suppression hearing and that the
 14

government’s inability to locate the ticket reflected adversely on
Officer Shaw’s testimony. The district court referred to its
finding of articulable suspicion to stop appellant, noting Watts’
testimony and the recorded conversations, which was
independent of Officer Shaw’s testimony, and to the suppression
hearing testimony by Officer Manley and others that
“conclusively indicate[d]” that there was a traffic violation when
appellant ran a stop sign. Tr. Dec. 22, 2006 at 12.

To the extent appellant contends the undisclosed
information would have been useful at the suppression hearing,
the issue is moot because the district court correctly ruled that
reasonable suspicion of a drug transaction justified the stop,
without regard to the traffic violation. However, as regards the
motion for a new trial, we hold that appellant fails to show a
Brady violation because the inability to locate the traffic ticket
was disclosed at trial in sufficient time for appellant to make
effective use of the ticket’s absence. Although the inability to
locate the traffic ticket was not acknowledged by the prosecutor
to the jury until the last day of the trial by stipulation that the
ticket could not be found, appellant was able to argue the
ticket’s absence during closing argument to the jury in attacking
Officer Shaw’s credibility and, indeed, the government’s
evidence generally regarding the drugs claimed to have been
found in appellant’s car. See Tr. Feb. 8, 2006 at 31, 32, 42, 47.
Appellant also could have asked to re-call Officer Shaw to
question him further about the apparent discrepancy, but he did
not do so.

These circumstances are not unlike the circumstances where
this court has rejected claims of prejudice as a result of the
government’s late Brady disclosure. In Andrews, 532 F.3d at
904-05, the government did not disclose an agent’s handwritten
notes from her interview with the defendant, which may have
contradicted her subsequent interview report, until the morning
 15

of the fourth day of trial, after the agent had left the witness
stand and near the close of the government’s case-in-chief. The
defendant argued on appeal that this delay “did not leave
defense counsel with enough time to use the material properly,
to build a responsive defense theory, or effectively impeach” the
agent, who would have to have been recalled. Id. at 907. The
court rejected the argument, concluding that the defendant could
have recalled the witness if the alleged discrepancies “were as
powerful as she believes they were.” Id. at 907-08. Similarly,
in United States v. Tarantino, 846 F.2d 1384 (D.C. Cir. 1988),
the court concluded that mid-trial disclosure of a government
witness’s prior contradictory statements did not prejudice the
defendant, because “the defense was not foreclosed from
arguing any inconsistencies to the jury at a later point in the
trial.” Id. at 1417.

IV.

At sentencing appellant’s trial counsel objected to the
application of the career offender provision of the Sentencing
Guidelines, § 4B1.1, on the grounds it was unfair because it
double counted his convictions. On appeal, he contends that the
district court erred in not considering appellant’s policy
argument. Appellant seeks a remand for resentencing in light of
Kimbrough, 552 U.S. 85, decided after his sentencing, which
held that in a post-Booker advisory sentence scheme the district
court could reject the Guidelines on policy grounds, see id. at
89. Appellant concedes that this court may presume a sentence
within the guideline range is reasonable, see Rita v. United
States, 551 U.S. 338, 351 (2007), and he does not appeal the
reasonableness of his life sentence independent of his legal
argument that the district court should have rejected the career
offender guideline. We conclude appellant has presented “some
record showing that the district court misunderstood its
sentencing authority” to consider a policy objection under the
 16

Sentencing Guidelines. United States v. Mouling, 557 F.3d 658,
668 (D.C. Cir. 2009).

The parties agreed at sentencing that but for application of
the career offender sentencing guideline, appellant would have
had a base offense level of 26 and a criminal history category of
V, which would have resulted in a sentencing guideline range of
110-137 months. Applying § 4B1.1, appellant’s offense level
was raised to 37 and his criminal history category to VI,
resulting in a sentencing guideline range of 360 months to life.
At the sentencing hearing, appellant’s trial counsel challenged
the career offender provision as “unfair” because it “ultimately
double-count[s] his convictions” by “essentially double-
counting his criminal history to increase the offense level and
increase his criminal history again.” Tr. Dec. 22, 2006 at 23.
When the district court clarified that this objection was
“challenging the sentencing guidelines themselves” as unfair
rather than challenging the calculation of appellant’s sentence,
id., the district court stated, “[t]hen I will have to deny that
request,” id. at 24.

Appellant maintains that the “have to” statement indicated
that the district court viewed the career offender guideline as
mandatory. The government unpersuasively suggests that
appellant failed to argue below that the district court wrongly
thought that it could not reject the guideline on policy grounds
or that the guideline was mandatory, and so our review is for
plain error; defense counsel’s objection sufficiently alerted the
district court to the issue. To the extent the government also
maintains that the record does not indicate that the district court
viewed the career offender provision as mandatory, appellant
persuasively responds that, in view of the policy objection
presented, the district court was obligated to state clearly
whether it thought the career offender guideline was mandatory.
The record shows the district court refused to entertain the
 17

objection, and appellant thus properly relies on United States v.
Vazquez, 558 F.3d 1224 (11th Cir. 2009), cert. granted and
judgment vacated, 130 S. Ct. 1135 (2010), where the Supreme
Court accepted the Solicitor General’s concession of error when
the district court refused to consider its disagreement with the
career offender sentencing guideline, 558 F.3d 1224, 1228-29
(11th Cir. 2009). The government further notes that the
sentencing memoranda of appellant and the government referred
to the fact that the Guidelines are advisory rather than
mandatory under United States v. Booker, 543 U.S. 220 (2005).
However, appellant draws a reasonable distinction between
knowing the Guidelines are advisory after Booker and deciding
not to apply the Guidelines in an individual case and, on the
other hand, deciding that a particular guideline should be
disregarded categorically in all cases because it was bad policy.
Finally, anticipating that the government would respond a
remand is unnecessary in view of the district court’s extensive
discussion of its decision to sentence appellant to life in prison,
appellant urges this court not to assume on the basis of the
current record that the district court would reject his policy
challenge. He notes that other district courts have concluded the
career offender guideline is unfair, see, e.g., United States v.
Ragland, 568 F. Supp. 2d 19, 20 (D.D.C. 2008); United States
v. Phelps, 366 F. Supp. 2d 580, 590 & n.5 (E.D. Tenn. 2005),
and maintains that his criminal record is insufficient to justify a
greatly increased sentence from 137 to 150 months to life
without parole.

At sentencing the district court discussed the harsh and
deleterious effects of appellant’s illegal drug activities on the
community, and it concluded from appellant’s criminal record
that he would be “a criminal for the rest of [his] life” and that
“there is a place for criminals for the rest of their life, and that
is in prison.” Tr. Dec. 22, 2006 at 31. Nonetheless it is unclear
whether the district court exercised the option afforded by
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Kimbrough and either rejected appellant’s policy objection to §
4B1.1 on the merits or regarded the objection as inappropriate
in view of appellant’s criminal record. Therefore, we remand
the record to the district court to address appellant’s policy
objections to § 4B1.1 of the Guidelines and to “determine
whether it would have imposed a different sentence materially
more favorable to the defendant had it been fully aware” of its
authority, United States v. Coles, 403 F.3d 764, 770 (D.C. Cir.
2005).

V.

On remand the district court can address appellant’s
objection that it failed to issue a promised order in response to
appellant’s claim that false testimony was presented to the grand
jury. The false grand jury testimony was Detective Manley’s
testimony that undercover officer Watts had seen Webb give
drugs to appellant in the alley behind Webb’s restaurant, when
Watts actually had not been able to see into the alley when
appellant was there. At the sentencing hearing, the district court
denied appellant’s renewed motion to dismiss the indictment
because the government represented that the false grand jury
testimony had not been presented to the grand jury that indicted
appellant. However, the district court stated that it would review
ex parte the testimony presented to both grand juries, and that
“[i]f it is inconsistent with what the government is representing,
then I will have to vacate the sentence and come back and revisit
the issue, but I assume what the government is saying is accurate
and, if that’s true, I will issue a written order saying I have
reviewed it, and it’s consistent with the government’s
representation.” Tr. Dec. 22, 2006 at 19.

The district court has not issued an order either vacating the
sentence or confirming the government’s representation
regarding the false grand jury testimony. Appellant attempted
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to request the district court to issue one of the promised orders,
but the district court denied the requests because appellant did
not submit the request through his trial attorney. Appellate
counsel advises this court that appellant also sought to dismiss
his appeal without prejudice in order to obtain the ruling, but
appellate counsel disagreed and decided to raise the ruling issue
on appeal instead. See Reply Br. at 25-26. The government
suggests appellant is not entitled to the “promised” order and, in
any event, this court can resolve the legal question because the
false testimony concerned only the conspiracy count of which
appellant was acquitted. However, the district court is better
situated, in the first instance, to assess whether Detective
Manley’s testimony was false and if so, whether it had a
spillover effect on the grand jury’s determinations, see
Tarantino, 846 F.2d at 1391 (D.C. Cir. 1988). Appellant made
attempts to obtain the order, and it can be issued upon remand.

Accordingly, we affirm the judgment of conviction
concerning appellant’s motion to suppress evidence, but we
remand the record to the district court for consideration of
appellant’s policy objection to § 4B1.1 of the Guidelines, and
for a determination of whether resentencing is appropriate as a
result, and also to issue the promised order upon review of the
grand jury testimony.