UNITED STATES of America, Plaintiff-Appellee, v. Martece PUCKETT, Defendant-Appellant.
No. 04-5988.
United States Court of Appeals, Sixth Circuit.
Argued: May 11, 2005. Decided and Filed: Sept. 6, 2005.
The majority cites Keegan as well, but this case is of no help to its position, for, as noted above, Keegan interprets Ohio law to prohibit “physical activity which prevents or delays an arrest.” 588 N.E.2d at 930. Several other cases cited by the majority involve similar evidence. However, no evidence of physical activity which prevents or delays arrest is present in the instant case.
In my view, a cautious individual could not have believed that Harris was guilty of resisting arrest based on this conduct, and there was no probable cause to charge Harris with that crime, satisfying the second requirement of a showing of malicious prosecution. The parties stipulated that Harris was not convicted of resisting arrest-in other words, that he met the final requirement for a malicious prosecution claim, which is that the prosecution was terminated in his favor. I turn, then, to the first requirement: that Harris demonstrate malice in the bringing of the charge against him.
Despite the majority‘s skepticism regarding Harris’ “invitation to presume malice,” Ohio courts have long and repeatedly held that malice may be inferred from the absence of probable cause. In other words, absence of probable cause is evidence of malice, under Ohio law. See, e.g., Melanowski v. Judy, 102 Ohio St. 153, 131 N.E. 360, Syllabus para. 1 (Ohio 1921) (“In an action for malicious prosecution, the want of probable cause is the gist of the action. If such be proven, the legal inference may be drawn that the proceedings were actuated by malice.“); Sikora v. Gibbs, 132 Ohio App.3d 770, 726 N.E.2d 540, 546 (Ohio App. 10 Dist.1999) (“Importantly, the lack of probable cause generally becomes the essence of a claim for malicious prosecution for the reason that malice may be inferred if probable cause was not present.“); Garza v. Clarion Hotel, Inc., 119 Ohio App.3d 478, 695 N.E.2d 811, 813 (Ohio App. 1 Dist.1997) (in a claim for malicious prosecution, “[m]alice may be inferred from the absence of probable cause“); Canton Provision Co. v. St. John, 52 Ohio App. 507, 3 N.E.2d 978, 980 (Ohio App. 5 Dist.1936) (“If want of probable cause is proven, the legal inference may be drawn that the proceedings were actuated by malice.“) I would remand this case so that the district court could consider whether, given Harris’ demonstration that there was no probable cause to charge him with resisting arrest, an inference of malice is warranted in this case. Based on the record before us, Harris would appear to be a law-abiding citizen who was improperly denied relief at trial, at least as to the claim of malicious prosecution for resisting arrest.
Before: SILER and ROGERS, Circuit Judges; REEVES, District Judge.*
OPINION
SILER, Circuit Judge.
Defendant Martece Puckett was arrested for drug and gun possession following a search of his vehicle after a routine traffic stop. He contends that the stop was illegal for lack of probable cause. Accordingly, Puckett appeals the district court‘s denial of his motion to suppress evidence obtained by the police pursuant to his traffic stop and the district court‘s denial of a motion for a downward departure of his sentence. For the reasons discussed below, we AFFIRM.
I. BACKGROUND
In 2002, Officer Felix Vess of the Knoxville Police Department observed a white Mercury Marquis driven by Puckett. Vess was interested in the Mercury because a similar motor vehicle had been involved in an alleged shooting in the area weeks before. Vess “paced” Puckett for several blocks, using the speed of his own cruiser to determine the speed of Puckett‘s vehicle. Thereafter, Vess stopped Puckett for speeding. Puckett contends that because Vess followed him for only a few seconds he was unable to accurately determine his speed, and therefore had no probable cause to stop him. Following the stop, Vess arrested Puckett for driving without a valid driver‘s license. Vess also smelled a strong odor of marijuana in the vehicle and observed a plastic bag containing marijuana in the passenger seat. A search of the vehicle resulted in the discovery of a pistol, ammunition, and approximately 117.6 grams of marijuana.
Puckett was subsequently indicted for being a felon in possession of a firearm, in violation of
Puckett later entered a conditional plea of guilty and was sentenced to 97 months’ incarceration. The court denied Puckett‘s motion for a downward departure from the Sentencing Guidelines range pursuant to
II. MOTION TO SUPPRESS
When reviewing a district court‘s determination regarding a suppression question, “a district court‘s factual findings are accepted unless they are clearly erroneous; however, the district court‘s application of the law to the facts, such as a finding of probable cause, is reviewed de novo.” United States v. Pasquarille, 20 F.3d 682, 685 (6th Cir.1994) (citing United States v. Thomas, 11 F.3d 620, 627 (6th Cir.1993)). A factual finding will only be clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed with the evidence reviewed “in the light most likely to support the district court‘s decision.” United States v. Johnson 242 F.3d 707, 709 (6th Cir.2001).
Puckett contends that the district court erred in not granting his motion to suppress because Vess lacked probable cause to stop him and therefore the fruits of the illegal search are inadmissible. Probable cause is determined by the totality of the circumstances, Pasquarille, 20 F.3d at 686; is fact-dependent; and will turn on what the officer knew at the time
Puckett suggests that Vess‘s true motivation for the traffic stop was to find a white four-door sedan involved in a shooting two weeks prior. He further argues that the totality of the circumstances does not support Vess‘s decision to begin following and pacing Puckett‘s vehicle. However, the reasons for Vess‘s interest in Puckett‘s vehicle are immaterial to the determination of whether probable cause for the stop existed; rather, a probable cause determination turns on what the officer knew at the time he made the stop. See Ferguson, 8 F.3d at 391.
At the time of the stop, Vess had made a reasonable estimate of the defendant‘s speed to be 45 miles per hour. The posted speed limit for the street in question was 30 miles per hour. Puckett‘s own expert testified that Puckett was most likely traveling between 36 and 38 miles per hour. Although the expert‘s speed estimate is lower than Vess‘s estimate, all evidence indicates that Puckett was speeding at the time Vess initiated the stop.
Based on the testimony at the suppression hearing, the district court determined that Vess had probable cause to believe that Puckett had exceeded the posted speed limit. As the district court noted in its Order,
[N]o dispute exists between Officer Vess and Mr. Jones that [Puckett] was speeding while traveling down Virginia Avenue on April 13, 2002, since he was going over the posted speed limit of thirty (30) miles-per-hour. By the admission of [Puckett‘s] own expert testimony, [Puckett] was speeding. Since [Puckett] was going over the speed limit, there is no question that Officer Vess had probable cause to stop him for speeding.
Vess testified that he believed that Puckett was exceeding the speed limit when he stopped him-a belief supported by the testimony rendered at the suppression hearing. Viewing the totality of the evidence, we agree with the district court that Vess had probable cause to stop Puckett. After the stop, Vess smelled and saw in open view the marijuana in the seat. Therefore, there was probable cause to search the car at that point. Thus, the search was reasonable and the court correctly denied the motion to suppress.
III. WAIVER OF APPEAL
In his plea agreement, Puckett expressly consented to sentencing under the Sentencing Guidelines. Previously, in United States v. Bradley, 400 F.3d 459 (6th Cir.2005), we held that a voluntary waiver of appeal in a plea agreement precludes Booker review of the sentence. Id. at 465 (“Having voluntarily and knowingly bargained ... Bradley cannot now extract two components of that bargain-his agreement to be sentenced under the then-mandatory Guidelines and his agreement to waive his right to appeal-on the basis of changes in the law after that bargain was struck.“). However, Bradley is inapplicable here in light of our recent decision in United States v. Amiker, 414 F.3d 606 (6th Cir.2005). As in Amiker, Puckett did not expressly waive his right to appeal in the plea agreement, 414 F.3d at 607, and thus the current situation falls outside the reach of Bradley. The mere fact that Puckett agreed to be, and was, sentenced pursuant to the Sentencing Guidelines, does not preclude him from raising on appeal an alleged Booker error regarding his sentence. Amiker, 414 F.3d at 608.
Traditionally, we have reviewed a district court‘s decision to grant a downward departure from the Sentencing Guidelines for abuse of discretion. See United States v. Cole, 359 F.3d 420, 429 (6th Cir.2004); United States v. Kuhn, 345 F.3d 431, 436 (6th Cir.2003). Further, we have “consistently held that the decision by a district court not to depart downwards from the Guidelines is not reviewable on appeal unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure.” United States v. Stewart, 306 F.3d 295, 329 (6th Cir.2002); see also United States v. Lucas, 357 F.3d 599, 609-10 (6th Cir.2004) (same). However, the recent decision of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), has clouded the issue. Indeed, one line of reasoning suggests that we may now review such decisions for reasonableness. See United States v. Jackson, 408 F.3d 301, 304 (6th Cir.2005); United States v. Climmie Jones, 399 F.3d 640, 650 (6th Cir.2005); cf. United States v. Justin Jones, 417 F.3d 547, 551 n. 3 (6th Cir.2005) (“After Booker, of course, a defendant who received a downward departure for substantial assistance is free to argue that the sentence from which the district court departed was unreasonable in light of
The reasonableness standard set forth in Jackson is inapplicable here, as the district court there granted a downward departure after applying the factors listed in
Most recently, we decided the case of Justin Jones. There, we reaffirmed that the extent of a downward departure is “a determination that in any event [is] within the court‘s complete discretion to make.” 417 F.3d at 551. In a footnote to that opinion, the Justin Jones court recognized the effects of Booker, indicating that a defendant remains free to argue that the sentence from which the district court departed, or did not depart, was unreasonable in light of
Puckett argues that the decision in Booker, which holds that the Sentencing Guidelines are “‘merely advisory’ rather than mandatory,” supports his contention
We find no compelling argument to disturb the standard enunciated in Stewart. Our position on this is supported by the stances of our sister circuits. The Eighth Circuit has recently reaffirmed a rule similar to that of Stewart which holds that refusals to grant a downward departure are unreviewable. United States v. Frokjer, 415 F.3d 865 (8th Cir.2005) (“[W]e see no reason why Booker-which left intact
In light of our own precedent, and the recent decisions by the other circuits, we hold that the standard from Stewart has survived Booker. Therefore, although the sentence departed from may be reviewed under Booker, see Justin Jones, 417 F.3d at 551, we shall not review decisions of a district court not to depart downward “unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure.” Stewart, 306 F.3d at 329. We now apply this standard to the case before us.
At Puckett‘s sentencing hearing, the district court denied Puckett‘s motion for a downward departure, saying:
The Court‘s carefully considered the defendant‘s motion and acknowledges that the Court could depart under some circumstances. However, respectfully, based on the totality of the circumstances the Court finds these circumstances do not take this case out of the heartland of cases seen by the Court.
Therefore, respectfully, the defendant‘s motion is hereby denied.
As we noted in Lucas, the district court need not “explicitly state that it is aware of its discretionary authority to depart downward.” 357 F.3d at 609-10. Here, the district court not only explicitly stated that it knew it could depart from the suggested Sentencing Guidelines range, but it clearly chose not to do so. Therefore, having recognized its discretion, the decision of the district court is reviewable only if: (1) the sentence was imposed in violation of the law; (2) it was imposed as a result of an incorrect application of the guidelines; (3) the sentence represented an upward departure; or (4) the sentence was imposed for “an offense for which there is no [S]entencing [G]uideline and is plainly unreasonable.” See
None of the
For the foregoing reasons, the decision of the district court is AFFIRMED.
ROGERS, Circuit Judge, dissenting.
Although I concur with the court‘s decision in Parts I through III, I respectfully dissent from its decision not to remand. The holding in United States v. Justin Jones does not, in my view, preclude reasonableness review of aspects of the sentencing determination other than whether a departure is permitted (and the extent to which a departure is permitted) under the provisions of USSG Chapter 5. See United States v. Justin Jones, 417 F.3d 547, 551 n. 3 (6th Cir.2005). Puckett, in his reply brief, argued for a remand so that the district court can impose a sentence under an advisory guideline scheme, considering the factors set out in