US v. Christian Sweat, No. 13-4703 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4703 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTIAN SWEAT, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Mark S. Davis, District Judge. (4:13-cr-00028-MSD-TEM-1) Submitted: May 1, 2014 Decided: May 30, 2014 Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Mark Diamond, Richmond, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia; Jonathan A. Ophardt, Special Assistant United States Attorney, UNITED STATES DEPARTMENT OF JUSTICE, Newport News, Virginia; Meghan Leibold, Third Year Law Student, WASHINGTON UNIVERSITY SCHOOL OF LAW, St. Louis, Missouri, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Christian possession Sweat of (Sweat) appeals a district his a appeal, he presses court untimely, by On § 922(g)(1). firearm abused motion its to his convicted felon, three discretion suppress; conviction (2) 18 claims: when it there is for U.S.C. (1) denied, the as insufficient evidence in the record to support his conviction; and (3) the sentence imposed unreasonable. by the district court is procedurally For the reasons stated below, we affirm. I A Around 11:40 p.m. on February 1, 2013, Newport News Police Officer Joseph Cavanaugh (Officer Cavanaugh) was alone in his marked police cruiser while patrolling 39th Street in Newport News, Virginia. As Officer Cavanaugh proceeded down 39th Street just east of Marshall Avenue, a pickup truck traveled towards him. Because the pickup truck had only one operable headlight, Officer Cavanaugh executed truck onto Marshall Avenue. blue lights and pulled the a U-turn and followed the pickup Officer Cavanaugh activated his pickup truck over just after it on the turned onto 44th Street. Officer Cavanaugh approached the pickup driver s side and noticed three occupants inside. - 2 - truck Sweat was the driver. While Officer Cavanaugh was explaining to Sweat the reason for the stop, he smelled marijuana. As a result, he returned to his police cruiser to request an additional officer to assist him with the stop. After Newport News Police Officer Curt Whittlesey (Officer Whittlesey) arrived on the scene, the two officers approached the pickup truck and asked the three occupants to exit. by Officer Sweat was placed in handcuffs and escorted Cavanaugh to his police cruiser, where Sweat was instructed to sit on the police cruiser s front bumper. Officer Cavanaugh began to explain to Sweat what was going to transpire with the stop. While this was happening, one of the passengers began to struggle with Officer Whittlesey. seeing the struggle, assist Officer Officer Whittlesey. Cavanaugh The Officer Whittlesey and fled. left passenger Sweat broke Upon alone away to from At this point, Officer Cavanaugh turned back toward Sweat and, noticing him beginning to walk away from the police cruiser, ordered him to stop. In response to this order, Sweat ran from the scene. Sweat pursuit. Officer ran down 44th Street, with Officer Cavanaugh in Sweat failed to stop despite multiple demands from Cavanaugh. When Officer Cavanaugh was approximately five feet behind Sweat, Officer Cavanaugh observed an object fall from Sweat. From the sound he heard when the object hit the pavement, Officer Cavanaugh immediately knew the object was - 3 - a firearm. Officer Cavanaugh then stopped, picked up the firearm, ejected the magazine, and removed a round of ammunition from the chamber. Sweat continued to flee. A few minutes later, Newport News Police Lieutenant Morgen Tietjens another (Lieutenant officer handcuffed was Sweat Tietjens), involved and responding in a foot apprehended to him. a report pursuit, spotted Officer that the Cavanaugh responded to Lieutenant Tietjens location, identified Sweat as the person who had dropped the firearm while fleeing, and arrested him. B On March 12, 2013, a federal grand jury sitting in the Eastern District of Virginia returned a one-count indictment charging Sweat with being a felon in possession of a firearm. Id. On April 19, 2013, Sweat entered a plea of not guilty and asked for a jury trial. On that date, a United States Magistrate Judge set a May 3, 2013 pretrial motions deadline and a June 12, 2013 trial date. On May 31, 2013, the district court entered an ordering moving the trial date to June 13, 2013. In the late afternoon of June 12, 2013, Sweat filed an untimely motion to suppress. During an ensuing telephone status conference that day, Sweat made an oral motion to continue the trial. According to defense counsel, the motions were the result of a fax he had received earlier that day from Sweat s - 4 - mother. The fax contained a letter from a state motor vehicle inspector who asserted he could testify that the headlights on the pickup truck were operable and had not been changed since the pickup truck had been assembled. In response, the government objected to a continuance because of witness availability issues and objected to holding a suppression hearing impracticality assertions of of immediately before investigating fact. The trial Sweat s government because belatedly also of the disclosed proffered that the pickup truck had been in the control of Sweat s family since it was released from impoundment and noted that a recorded jail call between Sweat and a woman contained an implicit admission that the headlight was not working on the night of Sweat s arrest. During the telephone status conference, the district court inquired of defense counsel as to why a motion to suppress had not been timely filed. determined a Defense counsel explained that he had suppression motion would be fruitless unless Sweat s claim could be substantiated with some kind of witness testimony, preferably testimony from an independent witness who could verify that the headlight was working on the night of Sweat s arrest. Defense counsel informed Sweat s family of his legal opinion and the time limits governing suppression motions. Having no information concerning an independent witness by the - 5 - motions deadline, defense counsel chose not to file a motion to suppress. In ruling on the motions, the district court concluded that the proffered information did not provide a sufficient basis to warrant a continuance suppress. or Accordingly, to consider an untimely the district court motion denied to both the motion to suppress and the motion for a continuance. The following commenced. day, June 13, 2013, Sweat s jury trial At trial, the parties stipulated that the firearm recovered by Officer Cavanaugh had not been manufactured in the Commonwealth of Virginia and that Sweat was a convicted felon. Thus, the only issue for the jury was whether Sweat knowingly possessed the firearm. At the close of the government s evidence, Sweat moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, contending that the evidence presented by the government did not establish that he possessed the firearm recovered by Officer Cavanaugh. After the arguments of counsel, the district court denied the motion. On June 14, 2013, the jury returned a verdict of guilty. Following the preparation of a Presentence Investigation Report (PSR), the district court held a sentencing hearing on September 13, 2013. The district court found that Sweat s total offense level was 16 and that his Criminal History Category was - 6 - III, producing an advisory sentencing range of 27 to 33 months imprisonment under the United States Sentencing Guidelines. After considering Sweat s allocution, the arguments of counsel, and the sentenced 18 U.S.C. Sweat to § 3553(a) 30 factors, months the district imprisonment. Sweat court noted a timely appeal. II Sweat contends that the district court erred in denying, as untimely, his motion to suppress. Under Rule 12 of the Federal Rules of Criminal Procedure, a motion to suppress must be raised prior to trial or by the deadline established by the district court. Fed. R. Crim. P. 12(b)(3)(C), 12(c). A defendant waives the right to file a suppression motion if he fails to file the motion prior to the deadline set by the district court, unless he can establish good cause for the waiver. 12(e). suppress Fed. R. Crim. P. We have found good cause to excuse an untimely motion to where, for instance, the delay in filing the suppression motion was caused by the government s failure to turn over the evidence sought to be suppressed. United States v. Chavez, 902 F.2d 259, 263 64 (4th Cir. 1990). We will not disturb a district court s untimely motion to suppress absent clear error. denial of an United States v. Ruhe, 191 F.3d 376, 385 (4th Cir. 1999); Chavez, 902 F.2d at - 7 - 263. Accordingly, we rarely grant relief from the denial of an untimely suppression motion. See Ruhe, 191 F.3d at 386 87 (holding that no good cause was present to raise an untimely suppression diligence issue where discovered issue); Chavez, courts generally 902 the defendant the information F.2d at deny relief 263 could necessary (recognizing from have the denial with due to raise the that of appellate an untimely suppression motion where the motion was made after the courtimposed deadline and the defendant proffered only a dubious excuse ). that After a careful review of the record, we conclude the otherwise, suppress. district when it court did denied, not as commit untimely, error, Sweat s clear or motion to Both below and in this court, Sweat has failed to set forth good cause under Rule 12(e) for the delay in filing the motion to suppress. In a related argument, Sweat contends that his trial counsel rendered ineffective assistance when he failed to timely file a motion to suppress. To prove a claim of ineffective assistance of counsel, a defendant must show (1) that counsel s performance was deficient, and (2) performance prejudiced the defense. 466 U.S. 668, 687 (1984). that the deficient Strickland v. Washington, In evaluating counsel s performance, we indulge a strong presumption that counsel s performance falls within the wide range of reasonable - 8 - professional assistance. Id. at 689. Further, we must evaluate the reasonableness of counsel s performance within the context of the circumstances at the time of the alleged error, rather than with the benefit of hindsight. Id. at 690. To satisfy the second prong of Strickland, a defendant must show a reasonable probability that, but for counsel s unprofessional error, proceeding would have been different. We counsel will on address direct conclusively Baldovinos, appears 434 claim appeal on F.3d thoroughly reviewed assistance of record. a only counsel record, does not of the Id. at 694. counsel s record. 239 result ineffective if the 233, the of the (4th we assistance ineffectiveness United Cir. find States 2006). that conclusively of v. Having ineffective appear on the Accordingly, we decline to address this claim on direct appeal. III Sweat contends that the district court erred by denying his motion for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. We review court s decision to deny such a motion. 451 F.3d 209, 216 (4th Cir. 2006). de novo a district United States v. Smith, Where, as here, the Rule 29 motion was based on a claim of insufficient evidence, [t]he verdict of a jury must be sustained if there is substantial - 9 - evidence, taking the view most favorable to the Government, to support it. Glasser v. United States, 315 U.S. 60, 80 (1942). Substantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). In assessing whether the record contains substantial evidence, we do not review the credibility of the witnesses, and we assume the jury resolved all contradictions in the witness testimony in favor of the government. F.3d 302, 313 (4th Cir. 2002). United States v. Sun, 278 We consider both circumstantial and direct evidence and allow the government the benefit of all reasonable inferences from the facts proven to those sought to be established. United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). In order to convict Sweat under § 922(g)(1), the government had to establish that: (1) he previously had been convicted of a felony; (2) he knowingly possessed a firearm; and (3) the possession was in or affecting interstate or foreign commerce at some point during the firearm s existence. United States v. Moye, 454 F.3d 390, 395 (4th Cir. 2006) (en banc). As noted above, at trial, the parties stipulated as to the first and third elements. Consequently, the second element is the only element in question. - 10 - Viewing the evidence in the light most favorable to the government and resolving all contradictions in the testimony in favor of the government, the evidence in the record shows that Sweat tried to flee the stop while wearing handcuffs. Officer Cavanaugh testified that, while Sweat was running, an object fell from Sweat s person and hit the pavement Cavanaugh was only five feet away from Sweat. while Officer Officer Cavanaugh testified that he recognized the object from the sound it made when it hit the pavement and that he picked up the firearm immediately after Sweat dropped it. Sweat was apprehended soon after he dropped the firearm, still wearing handcuffs. this evidence, a jury could reasonably infer that From Sweat knowingly possessed the firearm recovered by Officer Cavanaugh. IV Finally, Sweat challenges the procedural reasonableness of his sentence. using an We review a criminal sentence for reasonableness abuse of discretion standard. United States v. McManus, 734 F.3d 315, 317 (4th Cir. 2013); see also Gall v. United States, 552 U.S. 38, 51 (2007). Under the abuse of discretion standard, we first consider whether the district court committed any significant procedural error, such as improperly calculating the Guidelines range, failing to consider the sentencing factors under § 3553(a), or - 11 - failing to adequately explain the sentence. United States v. Allmendinger, 706 F.3d 330, 340 (4th Cir.), cert. denied, 133 S. Ct. 2747 (2013). then consider If the sentence is procedurally reasonable, we its substantive reasonableness, account the totality of the circumstances. 51. taking into Gall, 552 U.S. at We presume that a sentence within a properly calculated Guidelines range is substantively reasonable. United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). In sentencing a defendant, the district court first must correctly calculate the defendant s sentencing range under the Sentencing Guidelines. the district court Allmendinger, 706 F.3d at 340. is required to give the Next, parties an opportunity to argue for what they believe is an appropriate sentence, and the district court must consider those arguments in light of the factors set forth in § 3553(a). Id. When rendering a sentence, the district court must make and place on the record an individualized assessment based on the particular facts of the case. United States v. Carter, 564 F.3d 325, 328, 330 (4th Cir. 2009). In explaining the sentence, the sentencing forth judge should set enough to satisfy the appellate court that he has considered the parties arguments and has a reasoned basis decisionmaking authority. 356 (2007). for exercising his own legal Rita v. United States, 551 U.S. 338, While a district court must consider the statutory - 12 - factors and reference § explain 3553(a) its or sentence, discuss it every need factor not on explicitly the record. United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). As noted above, the PSR recommended a total offense level of 16 and a Criminal History Category III, which produced an advisory sentencing range of 27 to 33 months imprisonment under the Sentencing Guidelines. The parties agree that the district court correctly calculated the advisory sentencing range. After the attorneys presented argument court, Sweat exercised his right to allocution. to the district Of note, during his allocution, Sweat professed his innocence, expressing the opinion that the jury got it wrong because of the presence of numerous inconsistences in the witness testimony that were not remembered in the case. Prior commendably factors. to (J.A. 213). imposing sentence, painstaking fashion, The district court: the district considered (1) recounted court, in the § the nature a 3553(a) and circumstances of the § 922(g)(1) offense under § 3553(a)(1); (2) summarized the history and characteristics of Sweat under § 3553(a)(1); (3) discussed the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense under § 3553(a)(2)(A); (4) discussed the need for the sentence imposed to afford deterrence under § 3553(a)(2)(B); (5) discussed the - 13 - need for the sentence imposed to protect the public from further crimes under § 3553(a)(2)(C); (6) discussed the need for the sentence imposed to provide needed education or treatment under § 3553 (a)(2)(D); (7) discussed the kinds of available sentences under § 3553(a)(3) and § 3553(a)(4); and (8) discussed the need to avoid district sentencing court disparities explicitly under § 3553(a)(6). acknowledged Sweat s The argument regarding factual disparities at trial and dismissed it because the jury resolved these disparities against him. After considering all of the relevant § 3553(a) factors, the district imprisonment, court which sentencing range. imposed fell in a sentence the middle of of 30 months the advisory In reaching this sentence, the district court indicated that it did not see contrition from Sweat, although it had initially advisory considered range. a According sentence to the at the district bottom court, of a the higher sentence was necessary because I just don t sense that you get it. (J.A. 223). Sweat argues that his sentence is procedurally unreasonable because the district court increased his sentence, based on the comments he made during his allocution. Sweat s argument. in part, We reject Lack of remorse certainly is a fact that a district court can consider in its evaluation of the § 3553(a) factors. See, e.g., United States v. Cruzado-Laureano, 527 F.3d - 14 - 231, 237 (1st Cir. 2008) (holding that the defendant s lack of remorse during allocution is an appropriate fact to be considered in evaluating the § 3553(a) factors); United States v. Smith, 424 F.3d 992, 1016-17 (9th Cir. 2005) (same). To be sure, § 3553(a)(1) states that, in determining the particular sentence to be imposed, the district court shall consider the nature and circumstances of the offense and the history and characteristics § 3553(a)(1). consider, of the defendant. 18 U.S.C. The statute also directs the district court to inter alia, the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, id. § 3553(a)(2)(A), and the need to protect the public further crimes of the defendant, id. § 3553(a)(2)(C). from Sweat s refusal to acknowledge that he committed the § 922(g)(1) offense is information that falls well within these guiding provisions, giving relevant insight into his character and raising concerns about his respect for the law and his future conduct. Sweat also argues that his sentence is procedurally unreasonable because the district court failed to provide an individualized assessment of the applicable § 3553(a) factors. However, our review of the record convinces us that the district court considered the § 3553(a) factors, as noted above in a - 15 - commendably painstaking fashion, and rendered an individualized assessment based on the particular facts of this case. V For the reasons stated herein, the judgment of the district court is affirmed. facts and materials legal before We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED - 16 -

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