US v. Kenyon Dockery, No. 13-4329 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4329 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENYON DONTE DOCKERY, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:12-cr-00289-TDS-1) Submitted: November 25, 2013 Decided: December 6, 2013 Before MOTZ, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen III, Federal Public Defender, Gregory Davis, Senior Litigator, Winston-Salem, North Carolina, for Appellant. Ripley Rand, United States Attorney, Lisa B. Boggs, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kenyon Donte Dockery pled guilty to one count of possession of a firearm after conviction of a crime punishable by more than one year of imprisonment, in violation of 18 U.S.C. § 922(g), but reserved his right to appeal the district court s denial of his motion to suppress evidence seized from his vehicle and statements he made to authorities after his arrest. The district court subsequently sentenced Dockery to eighty-two months imprisonment, eleven-month Guidelines variance upward Manual from the which the departure § 4A1.2 court explained pursuant cmt. Sentencing n.3 to U.S. (2012), Guidelines as both an Sentencing and an range. On upward appeal, Dockery contests the district court s denial of his motion to suppress, and argues that his sentence is unreasonable because it is greater sentencing. than necessary to accomplish the goals of We affirm. Dockery first argues that, at the time Officer Malone initially approached sufficient criminal unlawful. Dockery s information activity, and to vehicle, provide therefore his he did reasonable seizure not possess suspicion of of Dockery was He also argues that such suspicion did not exist at the time the passenger exited the vehicle, and thus the search of the passenger was unlawful and did not supply probable cause to search the vehicle. This court 2 reviews factual findings underlying a district court s denial of a motion to suppress for clear error and legal conclusions de novo. Foster, 634 F.3d 243, 246 (4th Cir. 2011). United States v. Because the district court denied the motion to suppress, we construe the evidence in the light most favorable to the Government, the party prevailing below. United States v. Farrior, 535 F.3d 210, 217 (4th Cir. 2008). The Government bears the burden of proof in justifying a warrantless search or seizure. United States v. Watson, 703 F.3d 684, 689 (4th Cir. 2013). When reviewing the constitutionality of a seizure, we consider officer whether a the totality particularized legal wrongdoing. and of the circumstances objective basis for gave the suspecting United States v. Mayo, 361 F.3d 802, 805 (4th Cir. 2004) (internal quotation marks and citation omitted). In order to demonstrate reasonable suspicion, a police officer must offer specific and articulable facts that demonstrate at least belief a minimal that level criminal of objective activity is justification afoot. United for the States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008) (quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). Assuming, when Officer identification, suspicion of without Malone we approached conclude criminal deciding, his that Dockery vehicle was seized and requested that Malone possessed reasonable activity. The informant described 3 activity at consistent Dockery s with drug vehicle that dealing, and Malone the characterized situation when as Malone arrived matched the informant s description of the vehicle and number of occupants. Additionally, the time of day (approximately midnight), and the location in a high crime area in which Malone had previously made arrests for drug activity, further supported reasonable suspicion. Johnson, 599 F.3d 339, 343-44 (4th See United States v. Cir. 2010) (officer s experience informs reasonable suspicion determination); United States v. Supreme McCoy, Court 513 has F.3d often 405, 411 counseled (4th lower Cir. courts 2008) to ( [T]he give due weight to the factual inferences drawn by police officers as they investigate crime, for the reasonable suspicion analysis is by its nature omitted)). officer-centered. (internal To the extent Dockery contests the reliability of the informant, his argument is without merit. not anonymous, but was information on resulted arrests. never in found citations any several known to previous Further, information Malone, The informant was and occasions, Malone provided some testified by the had provided of that which he informant had to be untruthful. See United States v. Christmas, 222 F.3d 141, 144 (4th 2000) Cir. (information from known trustworthy and reliable than anonymous tip). 4 informant more The reasonable suspicion possessed by Officer Malone when he approached the vehicle was buttressed by Dockery s actions when asked for identification. See United States v. George, 2013) 732 suspicious F.3d 296, movements 299 can (4th Cir. be taken also suspect may have a weapon. ). to ( A suspect s suggest that the Thus, to the extent that Officer Malone seized Dockery when he pulled Dockery s shoulder back, such seizure was supported by reasonable suspicion of criminal activity and the possibility that Dockery was armed. After Malone asked Dockery to exit the vehicle, Dockery consented to a search of his person but refused consent to search the vehicle. At approximately the same time, another officer arrested the passenger of the vehicle for possession of drug paraphernalia, specifically a crack pipe. During a search of the passenger, he swallowed what he admitted was a package of crack cocaine. Police may search a vehicle incident to a recent occupant s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. (2009). believe Arizona v. Gant, 556 U.S. 332, 351 In this case, we conclude that it was reasonable to that evidence of drug possession and/or trafficking would be found in the vehicle, based on the information known to Officer Malone and the fact that the passenger was found with a 5 crack pipe and swallowed a quantity of crack cocaine. Therefore, the district court did not err in denying Dockery s motion to suppress. Dockery next argues that his sentence is unreasonable because it is greater than necessary to satisfy the goals of sentencing as listed in 18 U.S.C. § 3553(a). We review a sentence for procedural and substantive reasonableness under an abuse of discretion standard. 38, 51 (2007). is inside, Gall v. United States, 552 U.S. The same standard applies whether the sentence just Guidelines range. outside, or significantly outside the United States v. Rivera-Santana, 668 F.3d 95, 100-01 (4th Cir.) (internal citation and quotation marks omitted), cert. denied, 133 S. Ct. 274 (2012). procedural reasonableness, court properly range, gave appropriate calculated the we whether the defendant s an opportunity considered the parties sentence, consider In determining the advisory to 18 district Guidelines argue U.S.C. for an § 3553(a) factors, selected a sentence based on clearly erroneous facts, and sufficiently explained the selected sentence. U.S. at 49-51. range, the sentencing Gall, 552 In reviewing any sentence outside the Guidelines appellate court s court decision must give because it due has deference to flexibility the in fashioning a sentence outside of the Guidelines range, and need only set forth enough to satisfy the appellate court that it 6 has considered the parties arguments and has a reasoned basis for its decision. United States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir. 2011); see also United States v. Carter, 564 F.3d 325, 328 (4th individualized Cir. 2009) assessment (sentencing based (citation and emphasis omitted). on court the must facts make an presented ) If the sentence is free of procedural error, we review it for substantive reasonableness, taking into account the totality of the circumstances. Gall, 552 U.S. at 51. Dockery argues that the district court s reliance on his criminal history provided an inadequate basis for an upward departure or variance. In explaining its sentence, the district court noted Dockery s prior robbery and kidnapping convictions, and particularly violence. highlighted the fact that they involved The court, however, placed greater emphasis on the fact that, after his release from imprisonment, Dockery resumed criminal activity rather quickly, and demonstrated a disregard for his probationary sentence on repeated occasions. The court then noted that the instant offense involved a loaded handgun with a round in serious offense. district court merit. the To chamber, the procedurally which extent erred, the court Dockery his considered asserts argument is that a the without The court thoroughly explained its consideration of not only the robbery and kidnapping convictions, but also Dockery s 7 recidivism and the instant offense. The court specifically discussed these facts in conjunction with the § 3553(a) factors. The court adequately explained its sentence, and did not otherwise procedurally err. Moreover, The court the sentence varied upward eleven is substantively months above reasonable. the top Guidelines range, or approximately fifteen percent. of the Considering the totality of the circumstances, and in light of Dockery s demonstrated propensity for criminal activity, we conclude that this relatively modest upward variance did not result in a sentence that is substantively unreasonable. Accordingly, sentence. legal before we affirm Dockery s conviction and We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 8