Case Information
*1 Before: G ARLAND , Chief Judge , P ILLARD , Circuit Judge , and S ENTELLE , Senior Circuit Judge .
Opinion for the Court filed by Chief Judge G ARLAND .
G ARLAND , Chief Judge : A jury сonvicted Maurice Williams on four counts related to his role in a conspiracy to distribute narcotics. On appeal, Williams challenges the constitutionality of searches that uncovered the drug evidence the government used against him at trial, the propriety of part of the prosecutor’s closing argument, and the district court’s refusal to accept an argument Williams advanced at sentencing. For the reasons set forth below, we affirm the judgment of the district court.
I
In September 2011, the Metropolitan Poliсe Department (MPD) began an investigation of suspected narcotics activity in a house on Ninth Street, N.W. in Washington, D.C. On September 16, an undercover officer saw three different individuals approach a man -- later identified as appellant Maurice Williams’ brother -- sitting on the house’s front porch. Each individual engaged in brief conversation with the man, went into the house with him for about a minute, and then left. Officer Kenneth Thompkins and other MPD officers stopped each of the three individuals: two possessed cocaine; thе third swallowed what the officers suspected were narcotics before they were able to reach him.
On October 21, Officer Thompkins and his partner were watching the Ninth Street house from their unmarked police car when they saw appellant Williams leave the house. According to Thompkins’ subsequent testimony, Williams then got into a white Chevrolet parked nearby and drove off without putting on his seatbelt. Suspecting that Williams was another drug customer, Thompkins and his partner followed in their car, intending to conduct a traffic stоp. Repeatedly looking in his rearview mirror, Williams stayed in the right lane and paused behind a double-parked car on Georgia Avenue to let the officers pass. The officers drove past in the left lane and, according to Thompkins’ testimony, he saw that Williams still had not put on his seatbelt. They then pulled over to the side and waited until Williams began driving again. When he passed them, the officers stopped the Chevrolet.
As the officers approached Williams’ car, Officer Thompkins saw Williams watch them in his rearview mirror, twice remove items from his jacket, and put the items in the car’s center console. Thompkins, who smelled a “strong scent of fresh marijuana” coming from the car, Suppression Hr’g Tr. 15, asked Williams for his driver’s license and registration. Williams said he did not have his license with him and did not have the registration because the car was rented. Thompkins made an inquiry with MPD and learned that Williams’ license had expired. After arresting Williams for driving without a permit, Thompkins searched the center console, where he found four grams of fresh marijuana and 125 grams of pоwder cocaine.
Armed with this evidence, the police obtained a search warrant and searched the Ninth Street house the same day. There they found crack cocaine, additional powder cocaine, drug paraphernalia, and a recent letter addressed to Williams at that address. Eventually, prosecutors filed drug charges against Williams and his brother. As Williams was no longer in custody on the driving-without-a-permit charge, prosecutors obtained bench warrants for the arrests of both men.
On February 1, 2012, Thompkins arrested Williams’ brother. Thompkins then called Williams’ cell phone, told Williams of his brother’s arrest, and -- as a ruse -- asked Williams to come to the police station to pick up his brother’s property. Williams was arrested when he arrived at the station. In a search incident to that arrest, the police found, among other things, a set of car keys on Williams’ person.
At some point that evening, Officer Thompkins asked Williams how he got to the police station; Williams responded that he had been dropped off. Later, Thompkins pressed a button on the key fob attached to the car keys, which caused the lights on a blue sedan parked outside the police station to flash. When he approached the car, Thompkins again smelled a strong odor of fresh marijuana through a partially open car window. Thompkins called for a drug-sniffing dog, which “hit” on the vehicle, indicating that narcotics were inside. Officers opened the driver’s side door and saw a clear, plastic-wrapped package of crack cocaine оn the inside handle. They also found 21.9 grams of marijuana inside the center console and paperwork with Williams’ name on it under the sun visor. In a videotaped interview later that evening, Williams told an officer that he had obtained the crack from “some guy that he had just met from southeast” and that it was worth $3500. 2 Trial Tr. 217.
On January 26, 2012, a grand jury indicted Williams on four counts: (1) conspiracy to distribute and possess with intent to distribute marijuana, crack cocaine, and powder cocaine, in violation of 21 U.S.C. § 846; (2) possession with intent to distribute cocaine, in viоlation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); (3) possession with intent to distribute 28 grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii); and (4) simple possession of marijuana, in violation of 21 U.S.C. § 844(a). All of the counts were based on the evidence obtained during the October 21, 2011 searches of the white Chevrolet and Ninth Street house. The drugs seized from the blue sedan on February 1, 2012 were admitted only as “other acts” evidence under Federal Rule of Evidence 404(b).
Williams moved to suppress the evidence the police seized on October 21, 2011 and February 1, 2012. The district court denied the motion, and a jury convicted Williams on all counts. On April 11, 2013, the court sentenced Williams to 63 months’ imprisonment.
On appeal, Williams argues that the district court should have suppressed the evidence the police seized on both days because the seizures violated the Fourth Amendment, that the prosecutor improperly vouched for the credibility of police witnesses during closing argument at trial, and that the court erred in refusing to consider sentencing disparities between federal and District оf Columbia sentencing guidelines as a ground for a downward sentencing variance under 18 U.S.C. § 3553(a)(6). We address these arguments below.
II
Williams’ first contention is that the district court erred in denying his motion to suppress the drug evidence arising out of the October 21 car stop. As noted above, Officer Thompkins testified he twice saw that Williams was driving without a buckled seatbelt in violation of a District of Columbia ordinance: when Williams first drove away from the Ninth Street house, and when Thompkins’ car passed Williams’ on Georgia Avenue. For his part, Williams testified he was wеaring his seatbelt from the get-go. He was wearing it, he said, because a seatbelt had saved his life in a serious car accident the year before. From then on, he explained, he always buckled up.
The district court concluded that Williams’ testimony was
credible.
United States v. Williams
,
Williams does not dispute
that an officer may
constitutionally stop an automobile if he has probable cause to
believe that the driver has committed a motor vehicle violation.
See Whren v. United States
,
But the circle is readily squared in the way the district court
squared it. It is true that the court found that Williams credibly
testified that he buckled his seatbelt. The court also found,
however, that Thompkins credibly testified that he saw what he
thought was an unbuckled seatbelt. In short, it “found them both
to be credible.”
Williams
,
7
“objectively reasonable,” the court said, in light of his credible testimony that “he had a clear view, could see through the tinted window of defendant Maurice Williams’ vehicle because it was a sunny day, and [had an] opportunity to confirm his belief that the defendant was not wearing a seatbelt when the defendant was stopped at the side of Georgia Avenue.” Id .
In so holding, the district court followed this circuit’s decision in United States v. Hill , 131 F.3d 1056 (D.C. Cir. 1997). In that case, the police had stopped the defendant’s car for allegedly failing to display a Vehicle Identification Number (“VIN number”) on his temporary tags. The defendant testified that the tags had a VIN number on the night of the arrest. An officer testified that they did not. As was the case here, although the district court could not “say whether the tags had a VIN number on them or not,” it credited the officer as truthfully testifying “that he believed that the car did not have a VIN numbеr.” Id. at 1060.
In
Hill
, we reversed the district court’s denial of the
defendant’s suppression motion and remanded “for a
determination of whether it was objectively reasonable for the
officer that observed Hill’s car to conclude that a traffic
violation had occurred.” 131 F.3d at 1060. Probable cause
required, we said, that the officer’s conclusion be “objectively
reasonable,”
id.
at 1061 n.3;
see Hill v. California
,
Here, by contrast, the district court took care both to
expressly state that it found the officer’s belief objectively
reasonable, and to make the factual findings necessary to
establish that the officer was able to make his observations
under conditions thаt rendered his belief reasonable.
See
Williams
,
III
Williams’ second challenge concerns the district court’s refusal to suppress the drug evidence that the police recovered during the February 1 search of his blue sedan outside the police station. According tо Williams, when Officer Thompkins activated Williams’ key fob, Thompkins conducted a search within the meaning of the Fourth Amendment. That search, Williams argues, was neither supported by probable cause nor authorized by a warrant (nor subject to an exception to the warrant requirement) and was therefore unconstitutional. Williams further contends that the subsequent search and seizure of drugs from his car constituted a separate Fourth Amendment violation, as it was also undertaken without a warrant.
1. There is no dispute that the officers’ sеarch of Williams’
person and their seizure of the keys and key fob were lawful as
part of a search incident to his arrest.
See United States v.
Robinson
,
10
12, Williams’ claim is waived. See F ED . R. C RIM . P. 12(b)(3)(C), (e); United States v. Peyton , 745 F.3d 546, 551 (D.C. Cir. 2014); United States v. Mitchell , 951 F.2d 1291, 1296-97 (D.C. Cir. 1991).
Even if we were to treat Williams’ failure to raise this claim
as a forfeiture rather than waiver, we would still not be able to
adjudicate its merits de novo. We may review an argument that
a defendant forfeits by failing to raise it in district court only for
plain error.
United States v. Simpson
, 430 F.3d 1177, 1183
(D.C. Cir. 2005). Under that standard: “‘[T]here must be (1)
error, (2) that is plain, and (3) that affect[s] substantial rights.
If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if (4)
the error seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’”
Id.
(quoting
Johnson v.
United States
,
If there were an error here, it would still falter at the second
requirement. As we have explаined, “[a]bsent controlling
precedent on the issue or some other ‘absolutely clear’ legal
norm, the district court commit[s] no plain error.”
United States
v. Nwoye
,
2. Williams’ challenge to the subsequent, warrantless search
of his car fares no better. Williams does not dispute that, “once
[the officers] smelled the marijuana and got thе service dog
there they had probable cause.” Suppression Hr’g Tr. 117
(acknowledgment by defense counsel);
see Florida v. Harris
,
133 S. Ct. 1050 (2013) (holding that a drug-sniffing dog’s
detection of drugs constitutes probable cause absent a showing
of the dog’s unreliability);
see also Jackson
,
Williams
does
dispute that his car was “readily mobile,”
noting that it was parked аnd inaccessible to him. But all that is
required for an automobile to be “readily mobile” within the
meaning of the automobile exception is that it is “used on the
highways, or . . . is readily capable of such use.”
California v.
Carney
,
IV
Williams next argues that the prosecutor’s closing argument “improperly vouched for the credibility of [the government’s] law enforcement witnesses.” Williams Br. 46. In his closing argument to the jury, Williams’ attorney challenged Officer Thompkins’ account of his stop of the white Chevrolet, maintaining that Thompkins “ma[d]e up the statement that [he] saw [Williams] get in the car without putting on a seat belt,” 4 Trial Tr. 66, and declaring that Thоmpkins’ testimony “defie[d] common sense,” id. at 65, and “lack[ed] any credibility,” id. at 66. Williams also attacked the credibility of other police witnesses who had testified during the trial. Id . at 69-70. During her rebuttal, the prosecutor attempted to rehabilitate the officers’ credibility by noting that: (1) “there is absolutely no evidence here that these officers all somehow came together to railroad Maurice Williams,” id. at 76; and (2) there is “no indication at all that any of the officers involved in this case have ever met these defendants, that there’s any personal vendetta against them,” id. at 79. The prosecutor then rhetorically asked, (3) “why would these officers jeopardize lengthy careers and lie about individuals they don’t know?” Id. at 80.
Williams did not object to any of the prosecutor’s
statements. As he acknowledges, we therefore may review them
only for plain error. Williams Br. 47 n.20;
see United States v.
Young
, 470 U.S. 1, 14 (1985) (holding that “the dispositive
issue . . . is not whether the prosecutor’s [unobjected-to] remarks
amounted to error, but whether they rose to the level of ‘plain
error’” under Federal Rule of Criminal Procedure 52(b));
see
also United States v. Wilson
, 605 F.3d 985, 1022 (D.C. Cir.
2010);
United States v. Boyd
,
This circuit has repeatedly held that it is error for a
prosecutor to “vouch” for the credibility of a witness, whether
based on evidence outside the trial record or on the prosecutor’s
word (which is itself presumably based on evidence outside the
record).
See, e.g.
,
United States v. Moore
,
The prosecutor’s third comment -- asking why the officers
“would . . . jeopardize lengthy careers and lie about individuals
they don’t know” -- is a different matter. Indeed, it is virtually
identical to the prosecutor’s comment that wе held was error in
United States v. Boyd
.
See
It is no answer to argue, as the government does, that the
prosecutor’s statement was justified by the defense counsel’s
attacks on the police witnesses’ credibility during his own
closing argument.
See Young
,
Nonetheless, as in
Boyd
(and
Hall
), although the
prosecutor’s statement was error, it did nоt constitute prejudicial
error.
See Boyd
,
V
Finally, we address Williams’ challenge to his sentence. In
United States v. Booker
, the Supreme Court held that the United
States Sentencing Guidelines are no longer binding on district
courts, but rather are advisory only.
On appeal, Williams objects only to the district court’s refusal to grant a downward variance based upon an argument he made regarding § 3553(a)(6), which directs the court to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” 18 U.S.C. § 3553(a)(6). The sentence disparities upon which Williams relied were those between defendants tried in federal district court and sentenced under the U.S. Sentenсing Guidelines, and those tried in the Superior Court of the District of Columbia and sentenced under the District’s own guidelines. Williams maintained that his sentence under the latter would have been lower, and that a variance was therefore justified.
The district court rejected Williams’ requested variance, concluding that the only provision upon which he had based that request, § 3553(a)(6), addresses unwarranted disparities only at the federal level, rather than disparities between federal and state sentences. The only question that Williams raises on appeal is whether the district court’s construction of § 3553(a)(6) constitutes legal error. See Reply Br. 24. Because the district court construed that statutory provision the same way this circuit
17
did in
United States v. Washington
, the answer must be no.
See
Although Washington held that sentence disparities between the U.S. and D.C. guidelines are insufficient to support a variance under § 3553(a)(6), id. at 1326-27, it further held that “post- Booker nothing necessarily precludes consideration of the D.C. Guidelines in the district court’s exercise of discretion in determining a particular sentence,” id. at 1327. Contrary to a suggestion in Williams’ post-argument letter, in this case the district court made clear it understood that, post- Booker , the U.S. Sentencing Guidelines are advisory only. See Sentencing Hr’g Tr. 13-24, 32, 46-47. But Williams offered no argument that the D.C. Guidelines were relevant to his request for a variance in any way other than under § 3553(a)(6). Def.’s Sentencing Mem. at 22-23; see Williams Br. 50-52. And Washington precludes his contention that the court misconstrued that provision.
VI
For the foregoing reasons, the judgment of the district court is
Affirmed.
Notes
[1] At oral argument, Williams’ counsel stated that he did not
challenge as clearly erroneous the district court’s factual findings
regarding what the officer had perceived. Oral Arg. Recording 6:27-
7:05;
see United States v. Holmes
,
[2]
See Hill v. California
,
[3] Although a court may grant relief from waiver “[f]or good cause,” F ED . R. C RIM . P. 12(e), Williams makes no argument for such relief.
[4]
See United States v. Johns
,
[5]
See also, e.g.
,
United States v. Begin
,