US v. Carl Harris, No. 13-4840 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4840 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CARL HARRIS, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:12-cr-00144-FDW-1) Submitted: September 25, 2014 Decided: October 16, 2014 Before GREGORY, DUNCAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Ross Hall Richardson, Acting Executive Director, Ann L. Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Carl Harris entered a conditional guilty plea to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012), and was sentenced under the Armed Career Criminal Act ( ACCA ) to 180 months imprisonment. Harris plea preserved his right to appeal the district court s order denying his motion to suppress. On appeal, Harris argues that applying the district court suspicion standard set (1968); concluding officers Terry that frisk; erred forth in: in Terry reasonable and v. the Ohio, suspicion categorizing reasonable 392 U.S. supported Harris as an 1 the armed career criminal. Harris first argues that because the City of Charlotte Municipal Code classifies discharging a firearm as a misdemeanor rather than a felony, Terry the frisk, officers even if were prohibited supported by from conducting a reasonable suspicion. Harris, however, has waived this argument by failing to raise it as a distinct ground in support of his motion to suppress in the district court. See Fed. R. Crim. P. 12(b)(3), (e); United States v. Ricco, 52 F.3d 58, 62 (4th Cir. 1995) (concluding that [a]ny failure to file a pre-trial motion to suppress constitutes waiver of the defense or objection unless the defendant can demonstrate just cause for the failure. ); see also United States v. Horton, 756 F.3d 569, 574 (8th Cir. 2014) 2 (holding arguments not raised in motion to suppress are waived on appeal), petition for cert. filed, __ U.S.L.W. __ (U.S. June 3, 2014) (No. 13-10476); United States v. Lockett, 406 F.3d 207, 212 (3d Cir. 2005) ( [I]n the context of a motion to suppress, a defendant must have advanced substantially the same theories of suppression in the district court as he or she seeks to rely upon in this [c]ourt. ). Harris alleges no good cause for his failure to raise this issue below, and we therefore decline to consider it on appeal. Harris next asserts that the district court erred in concluding that Terry frisk. reasonable [A]n suspicion officer may, supported consistent the with officers 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. 119, 123 (2000). Moreover, if the officer has a reasonable fear for his own and others safety based on an articulable suspicion that the suspect may be armed and presently dangerous, the officer may conduct a protective search of, i.e., frisk, the outer layers of the suspect s clothing for weapons. 376 F.3d 270, 275 (4th Cir. 2004) United States v. Holmes, (internal quotation marks omitted). The officer must have at least a minimal level of objective justification for making the stop and must be able 3 to articulate more than an inchoate suspicion or hunch of criminal activity. and unparticularized Wardlow, 528 U.S. at 123-24 (internal quotation marks and citations omitted). 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) (citation omitted). Applying these principles, we conclude that, under the totality of the circumstances, the officers had a reasonable suspicion to stop Harris and frisk him for weapons. Finally, Harris asserts that his sentence under the ACCA violates the Fifth and Sixth Amendments because his prior convictions were not alleged in the indictment, proven to the jury beyond guilty plea. by a reasonable doubt, or admitted as part of his As Harris acknowledges, this issue is foreclosed Almendarez-Torres v. United States, 523 U.S. 224, 228-35 (1998). Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 4

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