United States v. McGee, No. 12-4664

Decided: November 18, 2013

The Fourth Circuit upheld the district court’s denial of Randall Justin McGee’s (“McGee”) motion to suppress evidence and further held that the district court did not commit clear error in its sentencing procedure.

Following an anonymous tip, police first encountered McGee on July 10, 2011. After a search of McGee revealed a bus ticket in the name of someone else, officers handcuffed him and, with his consent, searched his bag. Inside the bag, the police found $5,800 in cash. McGee stated that he had been unemployed for over a year and that he was traveling to see the mother of his child. Because McGee did not have a reasonable explanation for his possession of the cash, the police seized the money. Police then contacted McGee’s mother who stated that McGee did not yet have a child. She also reported that McGee was in West Virginia “earning money.” Police also seized his phone and discovered texts that they believed to be “drug related.” McGee was later released without being arrested.

Approximately two weeks later, Officer Jonathan Halstead (“Halstead”) stopped a vehicle, in which McGee was a passenger, after he observed it had a defective brake light. Because the driver admitted to having a suspended drivers license, Halstead spoke with McGee to determine whether he had a valid drivers license. Halstead later testified that McGee was visibly nervous during the exchange. Soon after, backup arrived and McGee exited the vehicle at the officers’ request and consented to a search. The search produced a bag of pills containing 246 oxycodone pills and 151 oxymorphone pills. McGee was charged with possession with intent to distribute oxycodone.

Before trial, McGee filed a motion to suppress the drugs seized at the traffic stop, claiming the car did not have a defective headlight. At the hearing on the motion, the three police officers present at the scene testified. The district court denied the motion, finding that Halstead’s testimony was “entirely credible.” Several weeks later, McGee filed a renewed motion to suppress based on newly obtained evidence. This time McGee presented evidence that tended to show that all the brake lights in the vehicle were operational in November 2011, and that the rental car company had no record of a repair after the traffic stop in July 2011. Another hearing was held. Again, the court denied McGee’s motion, finding that the evidence was ultimately insufficient to overcome Halstead’s direct and unimpeached testimony. McGee was ultimately convicted.

Before sentencing, the presentence investigation report laid out the “Offense Conduct,” describing the traffic stop as well as the earlier incident at the bus station. Over McGee’s objection, it also converted the $5,800 seized from McGee at the bus station, stating the cash “is viewed as representing proceeds of drug distribution, since McGee was later found with the drugs and “he has had no legitimate employment” since 2006.  With the conversion, McGee’s base offense level under the Guidelines was raised from 22 to 24. Thus, the final Guidelines range was 51 to 63 months rather than 41 to 51 months. The court sentenced McGee to 55 months. This appeal followed.

On appeal, the Fourth Circuit first addressed McGee’s challenge to the district court’s order denying his motion to suppress evidence of the pills obtained at the traffic stop. McGee argued that the district court erred in relying on Halstead’s testimony, which was undermined by conflicting evidence. The court rejected this argument, noting it was in no position to say that the district court committed clear error even if the court would have reached a different determination if presented with the same evidence in the first instance. Next, the court addressed McGee’s challenges to the procedural reasonableness of his sentence in turn. As to McGee’s first procedural challenge: that the district court erred in including the drug equivalent of the cash seized from him weeks before his arrest in its Guidelines range calculation, the court held that no clear error was committed in finding that the two incidents comprised the same course of conduct. The court also rejected McGee’s contention that the district court erred in failing to afford him an individualized assessment in arriving at his sentence. In so doing, the court found that the district court offered a sufficiently individualized rationale for its sentence, without undue emphasis on McGee’s status as a nonresident importer of drugs into the district.

Full Opinion

– W. Ryan Nichols

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