US v. Steven Hall, No. 08-5211 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5211 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. STEVEN ALLEN HALL, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:08-cr-00006-1) Submitted: July 6, 2009 Decided: July 24, 2009 Before WILKINSON, NIEMEYER, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Steven I. Loew, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Steven Allen Hall was convicted by a jury of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) (2006). months of The district court sentenced Hall to thirty imprisonment, sentence. and Hall appeals his conviction and Finding no error, we affirm. Hall first challenges the district court s denial of his suppression motions. Hall argues that the officer who arrested him did not have reasonable suspicion to detain him. In reviewing a district court s ruling on a motion to suppress, we review the court s factual findings for clear error, and its legal conclusions de novo. United States v. Cain, 524 F.3d 477, 481 (4th Cir. 2008) (citation omitted). court denies construes a the [G]overnment. defendant s evidence in suppression the light When the district motion, most the favorable court to the United States v. Grossman, 400 F.3d 212, 216 (4th Cir. 2005) (citation omitted). [A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. Illinois v. Wardlow, 528 U.S. (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). 119, 123 (2000) The officer must have at least a minimal level of objective justification for making the stop and must be able to articulate more than an 2 inchoate and suspicion Id. activity. unparticularized (internal at citations omitted). 123-24 or hunch of quotation criminal marks and Courts assess the legality of a Terry stop under the totality of the circumstances, giving due weight to common sense judgments reached by officers in light of their experience and training. United States v. Perkins, 363 F.3d 317, 321 (4th Cir. 2004) (citations omitted). The court will credit the practical experience of officers who observe on a daily basis what transpires on the street. Id. (quoting United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993)). With these standards in mind, we have reviewed the record and find that the district court s conclusion that the officer had reasonable suspicion that criminal activity might have been afoot was not erroneous. reliance on the Second Amendment We also find that Hall s is misplaced, and that he failed to preserve for our review his claims based upon the state concealed weapon statute. Thus, the district court properly denied Hall s suppression motions. Hall next challenges the district court s denial of a two-level reduction in offense responsibility under the guidelines. level for acceptance of Following United States v. Booker, 543 U.S. 220 (2005), a district court must engage in a multi-step process at sentencing. After calculating the appropriate advisory guidelines range, a district court should 3 consider the resulting range in conjunction with the factors set out in 18 U.S.C. § 3553(a) (2006), and determine an appropriate sentence. United States v. Abu Ali, 528 F.3d 210, 259-60 (4th Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009). This applying an court abuse reviews of a sentence discretion for standard. reasonableness, Gall v. United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007); see also United States v. Seay, 553 F.3d 732, 742 (4th Cir. 2009), petition for cert. filed (May 29, 2009) (No. 08-10729). In so doing, the court first examines the sentence for significant procedural error, improperly including: calculating) the failing [g]uidelines to calculate range, treating (or the [g]uidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence . . . . Gall, 128 S. Ct. at 597. If the district court decides to impose a sentence outside the [g]uidelines range, it must ensure that its justification supports the degree of the variance ; . . . . United States v. Evans, 526 F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct. 476 (2008) (quoting Gall, 128 S. Ct. at 597). Finally, the court then consider[s] the substantive reasonableness of the sentence imposed. 128 S. Ct. at 597). range, the Id. (quoting Gall, appellate If the sentence is within the guidelines court may 4 apply a presumption of reasonableness. Rita v. United States, 551 U.S. 338, ___, 127 S. 2462-69 Ct. 2456, (2007) (upholding presumption of reasonableness for within-guidelines sentence). The guidelines provide for a two-level reduction in offense level acceptance Manual of ( USSG ) for a defendant who U.S. responsibility. § 3E1.1(a) clearly Sentencing (2007). The demonstrates defendant Guidelines bears the burden of proving that he is entitled to the reduction by a preponderance of the evidence. United States v. Harris, 882 F.2d 902, 907 (4th Cir. 1989). In addition, this court will review the district court s determination responsibility with great deference. n.5. of acceptance of See USSG § 3E1.1 cmt. We have reviewed the record and conclude that the district court did not err in concluding that Hall failed to demonstrate acceptance of responsibility by a preponderance of the evidence. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5

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