United States v. Desmond White
2016 U.S. App. LEXIS 16579
| 4th Cir. | 2016Background
- On July 9, 2013, a Charleston, WV officer stopped a car for veering out of its lane; White was a front-seat passenger.
- Officer smelled burned marijuana on approach, questioned occupants, and temporarily placed White in the cruiser.
- While speaking with the rear passenger, the officer observed a firearm in the passenger-seat molding, returned to detain White, and later recovered the gun; White admitted ownership.
- White moved to suppress the firearm; the district court denied the motion, finding the stop justified and the marijuana odor provided reasonable suspicion/probable cause.
- White pleaded guilty conditioned on preserving the suppression issue; at sentencing the court applied the ACCA based on one robbery and three West Virginia burglary convictions and imposed a 15-year mandatory minimum.
- On appeal the Fourth Circuit affirmed denial of suppression but, after Johnson, held the West Virginia burglary statute did not categorically match generic burglary and vacated the ACCA enhancement; remanded for resentencing.
Issues
| Issue | White's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether traffic stop was unconstitutionally prolonged and firearm should be suppressed | Officer lacked reasonable suspicion to extend stop once driver was cleared; prolongation rendered search invalid | Odor of marijuana gave reasonable suspicion and supported probable cause to search vehicle | Denied suppression; stop and search lawful because officer smelled burned marijuana before completing traffic inquiry |
| Whether West Virginia burglary convictions qualify as ACCA "burglary" after Johnson v. United States | WV burglary statute sweeps beyond generic burglary (includes vehicles/dwelling definition), so convictions don't qualify as ACCA predicates | Burglary is an ACCA-enumerated offense; convictions should count | Vacated ACCA enhancement: WV §61-3-11(a) is broader than generic burglary and thus does not categorically qualify |
| Whether appellant waived ACCA challenge by not raising it in opening brief | Timely raised in supplemental briefing after intervening Supreme Court decision (Johnson) | Argument that failure to raise in opening brief abandons the claim | Allowed supplemental briefing; appellant may raise new claim based on intervening controlling precedent while appeal pending |
| Standard of review for sentencing error where ACCA claim not raised below | Plain-error review applies | Government concedes standard; urges no plain error because burglary enumerated | Applied plain-error; found error plain, affected substantial rights (5-year increase), and warranted correction |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidating the ACCA residual clause as unconstitutionally vague)
- Taylor v. United States, 495 U.S. 575 (1990) (definition of generic burglary for ACCA purposes)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (categorical approach and limited use of the modified categorical approach)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (clarifying divisibility and application of the categorical approach)
- United States v. Humphries, 372 F.3d 653 (4th Cir. 2004) (odor of marijuana can provide probable cause to search a vehicle)
- United States v. Henriquez, 757 F.3d 144 (4th Cir. 2014) (Maryland "dwelling" burglary statute broader than generic burglary; persuasive precedent on dwelling definitions)