US v. Ernesto Pollard, No. 14-4125 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4125 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERNESTO WILLIAMS POLLARD, Defendant - Appellant. No. 14-4151 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RUBEN DUTERVIL, Defendant - Appellant. Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:13-cr-00037-WO-1; 1:13-cr-00037WO-2) Submitted: October 15, 2014 Decided: Before KEENAN, DIAZ, and FLOYD, Circuit Judges. December 24, 2014 Affirmed by unpublished per curiam opinion. Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro, North Carolina; Thomas H. Johnson, Jr., GRAY JOHNSON BLACKMON LEE & LAWSON, LLP, Greensboro, North Carolina, for Appellants. Ripley Rand, United States Attorney, Terry M. Meinecke, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: After the district court denied their motions to suppress evidence, Ernesto Williams Pollard and Ruben Dutervil pled guilty pursuant to plea agreements to one count each of possession with intent to defraud of fifteen or more counterfeit or unauthorized access devices, in violation of 18 U.S.C. §§ 2, 1029(a)(3), (c)(1) (2012). The district court calculated Pollard’s Guidelines range under the U.S. Sentencing Guidelines Manual (2013) at thirty-three to forty-one months’ imprisonment and sentenced court him calculated to thirty-five Dutervil’s months’ Guidelines imprisonment. range at The eighteen to twenty-four months’ imprisonment and sentenced him to twenty-one months’ imprisonment. Dutervil appeal In their plea agreements, Pollard and (“Appellants”) the denial of preserved their the motions right to to challenge suppress. on Appellants contend that the district court erred in denying their motions to suppress and abused its discretion in imposing sentence. We affirm. I. In reviewing the district court’s denial of Appellants’ suppression motions, we review the court’s factual findings United for clear States v. error McGee, and 736 its legal F.3d 263, 3 conclusions 269 (4th de Cir. novo. 2013), cert. denied, 134 S. Ct. 1572 (2014). Because the district court denied Appellants’ motions, we construe the evidence in the light most favorable to the Government. to the district court’s Id. credibility We also defer determinations. United States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008). After reviewing the record and the parties’ briefs, we conclude that the district court Appellants’ motions to suppress. did not err in denying A vehicle driven by Dutervil in which Pollard was a passenger left a gas station parking lot after midnight and traveled less than one block before stopping in the roadway on a two-lane road. The vehicle’s emergency blinkers were then activated, and Dutervil leaned out of the vehicle and gesticulated in a manner suggesting that he needed assistance. Sergeant Stillwell and Officer Rowland stopped to assist, Stillwell and observed marijuana seeds and residue, cash, computers, and telephones in the vehicle’s interior and smelled the odor of raw marijuana emanating from the vehicle. Credit and gift cards and a magnetic card reader and writer were later seized from the vehicle. Appellants requisite reasonable argue that suspicion the nor officers probable had cause neither to the justify stopping and detaining the vehicle and, thus, that the evidence against them was the product of an illegal seizure and search. Contrary to Appellants’ assertion, however, the officers did not 4 need to have reasonable suspicion or probable cause when they stopped their patrol cars behind the vehicle driven by Dutervil. An officer’s stop to assist a vehicle stopped in a roadway does not typically implicate the Fourth Amendment as a “seizure” requiring probable cause. See Florida v. Bostick, 501 U.S. 429, 434 (1991); United States v. Jones, 678 F.3d 293, 298300 (4th Cir. 2012); see also South Dakota v. Opperman, 428 U.S. 364, 370 n.5 peculiarly (1976) related (“The to standard criminal noncriminal procedures.”). of probable investigations, cause not is routine, Here, the vehicle had come to a stop on the roadway under circumstances indicating that assistance was required, and the officers parked their patrol cars behind the vehicle and approached display officers did not Pollard, and their it to their patrol render weapons cars vehicle from leaving the scene. did or not assistance. touch impede The Dutervil the or stopped Because the vehicle and its occupants were neither stopped nor seized, the officers’ actions did not implicate the Fourth Amendment. We further conclude that the officers’ post-approach investigation of Dutervil’s identity and the vehicle as a safety measure was lawful because these actions occurred while officers were acting in a community-caretaking capacity. Cady v. Dombrowski, 413 U.S. 433, 441, 443, 446-47 the See (1973) (articulating an exception to warrant searches in the case of 5 police officers’ officers are interactions not their Accordingly, engaged acts with in in motor a vehicles criminal obtaining when the investigation). and investigating Dutervil’s license and registration did not violate the Fourth Amendment as to Dutervil or Pollard. * II. Appellants also challenge their sentences. Appellants’ sentences for reasonableness abuse-of-discretion standard.” 38, 41, 51 (2007). We “under a We review deferential Gall v. United States, 552 U.S. first review the sentences for significant procedural error, and, if the sentences are free from such error, reasonableness. district court we then Id. at 51. committed consider their substantive Appellants do not contend that the any significant procedural error in imposing their sentences. Substantive considering sentence is the reasonableness totality within the of the properly is determined circumstances. calculated Id. Guidelines by If a range, this court applies a presumption on appeal that the sentence is * We decline to consider Appellants’ suggestion that Stillwell’s stated reason for checking Dutervil’s license and vehicle registration was pretextual because this contention is raised for the first time in their reply brief. Yousefi v. INS, 260 F.3d 318, 326 (4th Cir. 2001) (per curiam). 6 substantively reasonable. United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). Such a presumption is rebutted only if Appellants the[ir] when show measured factors.” “that against the sentence[s] [18 U.S.C.] [are] unreasonable § 3553(a) [(2012)] United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). Appellants claim unreasonable because probationary summarily the district sentences. that We court reject this their sentences failed to are consider contention because Appellants do not point to the existence of any facts in the record to support it. To the extent that Appellants are suggesting that their sentences are substantively unreasonable because sentences of probation would have achieved the purposes of sentencing in their cases, we reject this contention because it essentially asks this court district court. factors instance, to defer thirty-five-month its judgment for that of the While this court may have weighed the § 3553(a) differently we substitute had to it the sentence imposed sentence in district court’s and the twenty-one-month a decisions first that a sentence achieved the purposes of sentencing in Pollard’s and Dutervil’s cases, respectively. appellate court’s courts decision See Gall, 552 U.S. at 51 (explaining that “must that give the due deference § 3553(a) 7 to factors, the on district a whole, justify” the sentence imposed). In light of the “extremely broad” discretion afforded to a district court in determining the weight to be given each of the § 3553(a) factors in imposing sentence, United States v. Jeffery, 631 F.3d 669, 679 (4th Cir. 2011), Appellants fail to overcome the presumption on appeal that their within-Guidelines sentences are substantively reasonable. Accordingly, we affirm the district court’s judgments. 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 8