Case Information
*1 Before: CLAY and STRANCH, Circuit Judges; BELL, District Judge. [*] _________________
COUNSEL ARGUED: John R. Broderick, James Lewis Woolard, Jr., UNIVERSITY OF MICHIGAN LAW SCHOOL FEDERAL APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: John R. Broderick, James Lewis Woolard, Jr., UNIVERSITY OF MICHIGAN LAW SCHOOL FEDERAL APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, Melissa M. Salinas, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Toledo, Ohio, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
CLAY, Circuit Judge. Defendant Kenneth K. Cochrane Jr. appeals his conviction and sentence for one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), as well as the consecutive sentence imposed for violating the terms of his supervised release. Defendant argues that police violated the Fourth Amendment by unreasonably prolonging a traffic stop and conducting a search of his vehicle without voluntary consent. Defendant further asserts that his sentence is procedurally unreasonable because the district court failed to clearly articulate a rationale for imposing consecutive sentences. For the reasons that follow, we AFFIRM Defendant’s conviction but VACATE his sentence and REMAND for resentencing.
BACKGROUND
While on routine patrol on February 4, 2011, four members of the Violent Gun Reduction Interdiction Program (“VGRIP”), a task force that focuses on drug and gun crime in and around Youngstown, Ohio, stopped Defendant’s SUV for a purported stop- sign violation. After a police dog alerted to the presence of narcotics in the vehicle, the officers searched it but turned up no evidence of drugs. Defendant was given a warning about the stop-sign violation and sent on his way.
Approximately five weeks later, on March 15, 2011, the same officers—three Youngstown police officers and one federal agent from the Bureau of Alcohol, Tobacco, Firearms, and Explosives, again on routine patrol in an unmarked car—observed Defendant driving his vehicle. One of the officers noticed that Defendant’s SUV did not have a license plate on the front of the vehicle, as required by Ohio law. Without activating their lights or siren, the officers followed Defendant to the parking lot of an apartment complex where Defendant’s fiancé and two children were known to reside.
Defendant had already parked his SUV, exited, and had begun walking toward the apartment building when the officers pulled up behind the SUV. As the officers arrived, they turned on their lights to initiate a traffic stop. The officers quickly ordered Defendant to turn around and return to his vehicle. Defendant casually walked back to his vehicle, and the officers could see that he was not carrying any weapons. Defendant met Youngstown Police Lieutenant Kevin Mercer near the rear driver’s side of Defendant’s SUV and, according to Mercer, had “a brief, couple sentence conversation.” (R. 25, Suppression Hrg. Tr. 15–16.) Mercer testified that he asked what Defendant was doing. Defendant asked why he was stopped, and Mercer responded that he did not have a front license plate. Mercer then asked Defendant if he had any drugs or guns in the vehicle, a question which he routinely asks during traffic stops, and Defendant responded that he did not. Mercer then said, “You know we’re gonna want to look.” ( Id. at 27.) Mercer testified that Defendant then said “go ahead,” but Defendant denies making this statement.
Having been told to “go ahead” and search the vehicle, Mercer informed the other officers that Defendant had consented to the search. One of the officers opened the front passenger door and, approximately “five or ten seconds” into the search, noticed the end of a silver gun barrel protruding from behind the center console. Defendant was then placed under arrest for improper handling of a firearm in a vehicle, read his Miranda rights, and placed in the back of the officers’ patrol car. When he was in the backseat of the police cruiser, one of the officers asked for Defendant’s driver’s license, ran the license, and checked the SUV’s registration. The record is unclear as to when Defendant received a traffic citation—whether at the scene, later that day at the police station, or (as he claims) three days later—but a citation was ultimately issued.
On April 6, 2011, Defendant was indicted on one count of being a felon in possession of a firearm. Defendant had previously been convicted of bank fraud, for which he was serving a term of supervised release at the time of his firearms conviction. Defendant moved to suppress the firearm, arguing that it was obtained as a result of an unconstitutional traffic stop and subsequent search without his consent. The district court denied the motion, and a jury convicted Defendant of the sole count in the indictment.
Defendant’s firearms conviction constituted an automatic violation of the terms of his supervised release. Therefore, the district court imposed sentences for both the firearms conviction and the supervised release violation. At the sentencing hearing, Defendant’s counsel requested that the two sentences run concurrently. The extent of the district court’s discussion of the issue is as follows:
[W]hat I’m going to do in the case that we’re in trial on [the firearms conviction], is place you in the custody of the Bureau of Prisons to be imprisoned fear [sic] a term of 41 months, $100 special assessment, to be followed by three years of supervised release. And on the violation [of supervised release], I’m going to place you in the custody of the Bureau of Prisons for 12 months to be served consecutive to the sentence in this case, and with the three years of supervised release to run concurrent with the three years of supervised release in the trial.
(No. 4:08-cr-00410-1, R. 21, Sentencing Hrg. Tr. 22.) Defendant timely appealed his conviction and both sentences.
DISCUSSION
I. Suppression of the Firearm
“When reviewing a district court’s decision on a motion to suppress, we use a
mixed standard of review: we review findings of fact for clear error and conclusions of
law
de novo
.”
United States v. See
,
A. The Traffic Stop
“Stopping and detaining a motorist constitutes a seizure within the meaning of
the Fourth Amendment.”
United States v. Bell
, 555 F.3d 535, 539 (6th Cir. 2009)
(internal quotation marks omitted). Under
Terry v. Ohio
,
A valid
Terry
stop must be “limited in scope and duration.”
Florida v. Royer
During a valid traffic stop, police officers may ask extraneous questions
unrelated to the purposes of the stop, “so long as those inquiries do not measurably
extend the duration of the stop.”
Arizona v. Johnson
,
The key to this inquiry is “whether the police diligently pursued a means of
investigation that was likely to confirm or dispel their suspicions quickly.”
Id.
at 494
(quoting
United States v. Sharpe
, 470 U.S. 675, 686 (1985)). “[T]he overarching
consideration is the officer’s diligence—i.e., his persevering or devoted . . . application
to accomplish [the] undertaking of ascertaining whether the suspected traffic violation
occurred, and, if necessary, issuing a ticket.”
Id.
(internal quotation marks and emphasis
omitted);
see also United States v. Digiovanni
,
For example, we will find an impermissible lack of diligence when “the totality
of the circumstances, viewed objectively, establishes that the officer, without reasonable
suspicion, definitively abandoned the prosecution of the traffic stop and embarked on
another sustained course of investigation.”
Everett
,
First, the extraneous questioning of Defendant was extremely brief. Mercer
testified at the suppression hearing that his conversation with Defendant near the rear
bumper of the SUV was “just a brief, couple sentence conversation.” After Defendant
told Mercer to “go ahead” with the search of the vehicle, the officers searched for
“maybe five or ten seconds” before they discovered a gun in the vehicle. The duration
of the officer’s questioning in this case was similar to that in
Everett
, and we held there
that the several extra seconds of delay caused by the questioning did not impermissibly
extend the length of the stop.
See Everett
,
Nor does the scope of the officers’ questioning reveal a lack of diligence. The
safety of officers during traffic stops is a “legitimate and weighty” interest.
Pennsylvania v. Mimms
,
We share Defendant’s concern that police officers will use traffic stops merely
to cover up suspicionless investigations into drugs or weapons.
See United States v.
Stepp
,
B. Consent to Search
Defendant next argues that even if the traffic stop was not unreasonably
prolonged, he did not voluntarily consent to the search of his vehicle. The question of
whether consent to search was freely and voluntarily given “is a question of fact to be
determined from the totality of the circumstances.”
Schneckloth v. Bustamonte
, 412 U.S.
218, 227 (1973). To be valid, consent must be “unequivocally, specifically, and
intelligently given, uncontaminated by any duress or coercion.”
United States v. Worley
Consent to search is a well-established exception to the Fourth Amendment’s
warrant requirement.
See Davis v. United States
,
At the suppression hearing, Mercer testified that he stated to Defendant in reference to the vehicle, “You know we’re gonna want to look.” Mercer testified that Defendant then stated, “Go ahead.” On appeal, Defendant maintains that he never made this statement, but argues that if it was made, it was not voluntary. He makes three arguments that the statement was not voluntary: first, the district court should have considered the February stop when evaluating the voluntariness of Defendant’s consent; second, the statement merely signaled acquiescence to police authority, not voluntary consent; and third, the statement was coerced.
First, the allegedly illegal search that occurred on February 4, 2011, does not
render involuntary Defendant’s statement on March 15, 2011. While a “suspect’s
knowledge of a prior illegal search can . . . give rise to a sense of futility,” such that his
spoken consent should be considered involuntary,
United States v. Haynes
, 301 F.3d
669, 683 (6th Cir. 2002), it is best considered as part of the totality of the circumstances
surrounding the search. Prior illegal searches are relevant, not in the abstract, but in
determining whether the suspect believed in the moment that refusal to consent would
be futile. In previous cases where we have determined that consent was not voluntary
because of a prior illegal search, the prior search was part of the same series of events
that culminated in the consent to search.
See id.
at 683–84;
Beauchamp
,
Second, Defendant argues that he merely acquiesced to the officers’ authority
rather than affirmatively consented. “[A] search based on consent requires more than
mere expression of approval to the search.”
United States v. Canipe
,
Defendant finally asserts that the officers’ conduct was coercive, thus rendering
his consent invalid.
See Worley
,
II. Reasonableness of the Sentence
We review a district court’s sentencing determination for reasonableness under
a deferential abuse of discretion standard.
United States v. Bolds
,
A.
Length of Defendant’s Terms of Imprisonment
We first examine Defendant’s prison sentences for procedural and substantive
reasonableness. Procedural reasonableness review “begins with a robust review of the
factors evaluated and the procedures employed by the district court in reaching its
sentencing determination.”
Bolds
,
(1) properly calculated the applicable advisory Guidelines range; (2) considered the other § 3553(a) factors as well as the parties’ arguments for a sentence outside the Guidelines range; and (3) adequately articulated its reasoning for imposing the particular sentence chosen, including any rejection of the parties’ arguments for an outside-Guidelines sentence and any decision to deviate from the advisory Guidelines range.
Id.
at 581. In reviewing the district court’s application of the § 3553(a) factors, “there
is no requirement . . . that the district court engage in a ritualistic incantation to establish
consideration of a legal issue,” or that it “make specific findings related to each of the
factors considered.”
Id.
at 580 (internal quotation marks omitted). However, in order
for a sentence to be procedurally reasonable, “the record must contain the district court’s
rationale for concluding that the ‘sentence imposed is sufficient but not greater than
necessary, to comply with the purposes’ of sentencing set forth in 18 U.S.C. § 3553(a).”
Id.
The district court must provide an “articulation of the reasons [why it] reached the
sentence ultimately imposed.”
United States v. Jackson
,
Defendant received a within Guidelines sentence of 41 months in prison for his
firearms conviction and 12 months in prison for his supervised release violation. The
district court’s stated rationale for these sentences was admittedly brief, but a fuller
explanation was not warranted under the circumstances. “A lengthy explanation may
be particularly unnecessary where a defendant’s arguments are ‘straightforward [and]
conceptually simple’ and where a sentencing court imposes a within-Guidelines
sentence.”
United States v. Duane
,
Defendant’s counsel specifically requested a within Guidelines sentence, which
he stated “would be sufficient to punish and rehabilitate” Defendant for the committed
offenses. Defendant raised no specific objections to the Guidelines calculation in the
Presentence Report, nor did he specifically argue that any of the § 3553(a)
factors militated in his favor. The district court considered several factors, including
Defendant’s criminal history and background as reflected in the Presentence Report, as
well as inconsistencies among various aspects of Defendant’s suppression hearing and
trial testimony. Defendant at times claimed that he had acquired the gun for self-
protection, but at other times denied that he had ever possessed it. The district court was
warranted in taking this into account because it reflects Defendant’s failure to take
responsibility. Because Defendant did not request that any particular characteristics or
circumstances be taken into account, the district court was not required to go through a
complete recitation of the § 3553(a) factors, provided that the court listened to the
arguments, was “fully aware” of Defendant’s circumstances, and “imposed a sentence
that [took] them into account.”
Rita
,
Defendant also challenges the substantive reasonableness of his sentence. Our
review of a sentence for substantive reasonableness “requires inquiry into . . . the length
of the sentence and the factors evaluated . . . by the district court in reaching its
sentencing determination.”
Herrera–Zuniga
,
The substantive reasonableness inquiry “take[s] into account the totality of the
circumstances, including the extent of any variance from the Guidelines range.”
Bolds
,
As discussed above, the district court considered several factors when imposing Defendant’s sentence, including Defendant’s criminal history and background, as well as his failure to take responsibility for his conduct. Defendant asserts that the district court’s failure to consider his status as a father and his enrollment in an electrician training program renders his sentence substantively unreasonable. But these mitigating factors, when weighed in light of the totality of the circumstances, are insufficient to rebut the presumption that his within Guidelines sentence was substantively reasonable. See United States v. Saffore , 216 F. App’x 531, 536 (6th Cir. 2007) (finding that a defendant’s personal quality as a good father does not render a within Guidelines sentence substantively unreasonable given the defendant’s criminal history). The district court did not abuse its discretion because its choice of prison terms was both procedurally and substantively reasonable.
B.
Decision to Impose Consecutive Sentences
In contrast, the district court provided no explanation whatsoever for its decision
that Defendant’s two sentences be served consecutively. “If multiple terms of
imprisonment are imposed on a defendant at the same time . . . the terms may run
concurrently or consecutively.” 18 U.S.C. § 3584(a). The exercise of this authority “is
predicated on the district court’s consideration of the factors listed in 18 U.S.C.
§ 3553(a), including any applicable Guidelines or policy statements issued by the
Sentencing Commission.”
United States v. Johnson
,
Any term of imprisonment imposed upon the revocation of . . . supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of . . . supervised release.
U.S.S.G. § 7B1.3(f). Although it reads as mandatory, “[t]his policy statement is not
binding on the district court, and construing it to be mandatory would be reversible
error.”
Johnson
,
Although the district court was not required to state a “specific reason for a
consecutive sentence,”
Johnson
,
When the district court in this case sentenced Defendant to serve consecutive
sentences, it simply stated that the sentence would be served consecutively, even though
Defendant had requested a concurrent sentence at the hearing. Unlike his 41-month
sentence on the firearms charge, the district court did not even arguably consider any of
the § 3553(a) factors, as it was required to do by § 3584(b), such as Defendant’s
background, criminal history, or the nature of the offense.
[1]
Unlike in
Johnson
, the
district court did not indicate that its reasons for imposing consecutive sentences were
the same as those for which it determined the length of his sentence.
See Johnson
CONCLUSION
Based on the foregoing reasons, we AFFIRM Defendant’s conviction but VACATE his supervised release violation sentence and REMAND for resentencing.
Notes
[*] The Honorable Robert Holmes Bell, United States District Judge for the Western District of Michigan, sitting by designation. 1
[1]
The district court was not required to consider the factors enumerated in U.S.S.G. § 5G1.3(c)
and the relevant commentary, as Defendant argues, because that provision does not apply to sentences
imposed for violations of supervised release.
See Johnson
,