United States v. Timothy White

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 12a0044n.06

FILED

No. 10-5068

Jan 12, 2012

UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, )

)

Plaintiff-Appellee, )

)

v. ) On Appeal from the United States

) District Court for the Middle

TIMOTHY ORLANDO WHITE, ) District of Tennessee

)

Defendant-Appellant. )

Before: BOGGS and MCKEAGUE, Circuit Judges; and GOLDSMITH,* District Judge.

BOGGS, Circuit Judge. Defendant–appellant Timothy White was convicted and

sentenced to 200 months of imprisonment for being a convicted felon in possession of a firearm and

a convicted felon in possession of ammunition. White appeals his conviction and the sentencing

court’s determination that he qualified as an armed career criminal under the Armed Career Criminal

Act (ACCA). We affirm.

I

White makes two arguments on this direct appeal: first, that the district court erred when it

denied his two motions for reconsideration of the denial of his pre-trial motion to suppress the

handgun found in his car; second, that it erred in overruling his objection to the pre-sentence report’s

*

Hon. Mark A. Goldsmith, United States District Judge for the Eastern District of Michigan,

sitting by designation.

No. 10-5068

United States v. White

conclusion that he was an armed career criminal, based on its classification of his juvenile

adjudication as a violent felony under the ACCA.

White was arrested during a traffic stop in Nashville, Tennessee, which began when Officer

Wesley Terry of the Metro Nashville Police Department pulled White over for not wearing his

seatbelt. Terry testified that when he approached White’s car, he saw a “corner baggie”—a corner

of a plastic sandwich bag that has been cut off. Terry testified that, based on his experience, he knew

such a baggie was often used as a way to package drugs. When Terry asked White to step out of the

vehicle, he saw two marijuana blunts (marijuana rolled in cigar paper) between the door and the front

seat. Terry then performed a pat-down of White and felt a large bag of loose items that he said he

knew, based on his experience, were bullets. He retrieved the bag, which contained eleven .38-

caliber bullets. Terry then searched White’s other pocket and found a small amount of what he

believed to be marijuana. Terry moved White to his patrol car and another officer, Officer

Grindstaff, searched White’s car. Grindstaff found a .38-caliber handgun under the driver’s seat.

At that point, White was formally arrested and read his Miranda rights.

A federal grand jury charged White with one count of being a convicted felon in possession

of a firearm and one count of being a convicted felon in possession of ammunition, each in violation

of 18 U.S.C § 922(g)(1).

White made one pretrial motion to suppress the gun found in his car, one pretrial written

motion to reconsider the denial of his motion to suppress, and one oral motion at trial to reconsider

the denial of his motion to suppress. In his original motion to suppress, White argued that he was

wearing his seatbelt, so Officer Terry did not have probable cause to make the traffic stop that led

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to the search of this car and the discovery of the gun. Alternatively, White suggested that Officer

Terry could not have seen that White was not wearing his seatbelt because of the location of Officer

Terry’s car. Therefore, White implied that Terry had not actually seen that White was not wearing

his seatbelt when he was pulled over.

At the suppression hearing, Officer Terry testified about his recollection of the stop, the

location of his car in relation to White’s, and how fast the cars were traveling. He stated that Officer

Grindstaff, in a separate car, had initially passed White’s car when White was parked on the side of

the road on 41st Avenue. Grindstaff noticed at that time that White and Hyde, his passenger, were

not wearing seatbelts. He radioed Officer Terry this information. Officer Terry said that he was

about half a block behind White when White then pulled away and started driving. He initially

estimated this distance as being fifty feet, qualifying the estimate by saying, “I would say it was

approximately that. Not too far behind [White’s car].” He testified that at a distance of one to two

car lengths behind White he could see that White was still not wearing his seatbelt. He testified that

he then activated his lights. He testified that White was slow to stop and turned the corner before

stopping. Tony Hyde, White’s passenger, also testified at the hearing, stating that he and White were

both wearing their seatbelts at the time of the stop. The district court explicitly credited Terry’s

version of events over Hyde’s. After the hearing, White’s motion to suppress the gun from evidence

was denied.

White filed his first motion for reconsideration eight months after the suppression hearing,

but several months before trial began. White asked the court to find that Officer Terry testified

falsely in the suppression hearing and that the stop had been unconstitutional. White’s main

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argument was that Terry’s car was initially too far away from White’s to allow Terry to catch up to

White and see that he was not wearing a seatbelt in the few seconds that Terry said it took him to

catch up to White’s car. In support of the motion, White offered a hand-marked map, purporting to

show that the initial distance between Terry and White was 500 feet, not 50 feet as Terry had

estimated at the suppression hearing. The court denied the motion, stating that the evidence White

presented was not unavailable at the time of the suppression hearing and that White’s motion,

coming eight months later, was “too late without sufficient justification.”

At trial, White made a second, oral, motion for reconsideration of the motion to suppress

after cross-examining Officer Terry. During cross-examination, White showed aerial photos of the

streets involved in the stop and showed Terry the map of 41st Avenue that he had provided in his

first motion to reconsider. He questioned Terry about the accuracy of his estimation at the

suppression hearing that he was “probably 50 foot” behind White when White pulled away from the

curb and began driving down the block. Terry admitted that the distance was more than 50 feet as

he looked at the photos, but stated that he had been estimating. The fact that Terry had only been

estimating in his suppression-hearing testimony was re-emphasized by the government on re-direct

examination. At the end of the re-direct examination, White made the oral motion to reconsider the

denial of the motion to suppress. After argument from both sides, the judge stated: “[T]here are what

might be charitably recognized as minor discrepancies as to time and distance or what was

characterized as an estimate by Officer Terry. But in the Court’s view, none of it is of such

proportion as to undermine the integrity of the prior ruling.” The court then denied the motion.

A jury found White guilty of both counts charged in the indictment.

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At sentencing, White’s pre-sentence report (PSR) classified him as an armed career

criminal. The ACCA provides that if a defendant violates 18 U.S.C. § 922(g) and has three

previous convictions for a violent felony or a serious drug offense, or both, committed on

different occasions from one another, then the defendant will receive a mandatory minimum

sentence of fifteen years in prison. 18 U.S.C. § 924(e)(1). A “violent felony” is defined as

“any crime punishable by imprisonment for a term exceeding one year, or any act of

juvenile delinquency involving the use or carrying of a firearm, knife, or destructive

device that would be punishable by imprisonment for such term if committed by an

adult, that (1) has as an

element the use, attempted use, or threatened use of physical force against the person

of another;

or (2) is burglary, arson, or extortion, or otherwise involves conduct that presents a

serious

potential risk of physical injury to another.”

18 U.S.C. § 924(e)(2)(B) (emphasis added). White’s record contained two prior violent felonies,

undisputed on appeal, and a juvenile adjudication for aggravated assault. The sentencing judge

overruled White’s objection to the PSR’s classification of the juvenile adjudication as a violent

felony. The judge found that the adjudication was a violent felony, that White therefore had three

prior violent felonies, and that White therefore qualified as an armed career criminal. As such, he

was subject to the ACCA’s fifteen-year mandatory-minimum sentence. White was sentenced to 200

months of imprisonment.

II

A

On appeal, White argues that the district court erred in refusing to grant his two motions to

reconsider the denial of his original motion to suppress the handgun found in his car. This court

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reviews a denial of a motion to reconsider the suppression of evidence for an abuse of discretion.

United States v. Smith, 421 F. App’x 572, 573 (6th Cir. 2011). We review the district court’s factual

findings for clear error and its legal conclusions de novo. United States v. Hinijosa, 606 F.3d 875,

880 (6th Cir. 2010).

White argues that new evidence introduced at trial—namely, the hand-marked map showing

that the original distance between White’s car and Officer Terry’s was 500 feet—disproved Officer

Terry’s testimony from the suppression hearing. White argues that Terry would have had to have

been driving implausibly fast to travel 500 feet and catch up with White’s car before seeing that

White was not wearing his seatbelt and activating his lights. White argues that the trial court abused

its discretion when it did not “closely scrutinize” this new evidence..

The decision to reopen a suppression hearing is left to the sound discretion of the court.

United States v. Carter, 374 F.3d 399, 405 (6th Cir. 2004), vacated on other grounds, Carter v.

United States, 543 U.S. 1111 (2005). Generally, a court should be reluctant to reopen a case, and

that principle has been applied to suppression hearings. See United States v. Blankenship, 775 F.2d

735, 740 (6th Cir. 1985) (stating that courts should be extremely reluctant to reopen cases); United

States v. Kithcart, 218 F.3d 213, 219–20 (3rd Cir. 2000) (applying this principle to suppression

hearings); Carter, 374 F.3d at 405 (citing with approval Kithcart’s application of the Blankenship

standard to a motion to reopen a suppression hearing). Carter and Blankenship instruct the court to

consider several factors in deciding whether or not to grant a motion to reconsider. First, the party

seeking to reopen must provide a reasonable explanation for failing to present the evidence initially.

Carter, 374 F.3d at 405. Then the timeliness of the motion, the character of the testimony, the effect

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of granting the motion, and whether the opposing party will be prejudiced by reopening the hearing

should be considered. Blankenship, 775 F.2d at 741.

The district court did not abuse its discretion when it denied White’s motion to reconsider.

In its written order denying White’s first motion to reconsider, the court explicitly discussed the

relevant factors. Applying Carter and Blankenship, the court reasoned that the evidence White

introduced at trial had not been previously unavailable; after all, White could have cross-examined

Officer Terry about the relevant distances at the suppression hearing. The court further noted that

White filed the first motion to reconsider eight months after the suppression hearing, without giving

any reason for the delay. It noted that Officer Terry made it clear in his testimony that he was

estimating both distance and speed, and that the judge who held the pre-trial suppression hearing

expressly credited Officer Terry’s testimony over that of Tony Hyde, White’s passenger, who had

testified that both he and White were wearing their seat belts at the time of the stop. Finally, the

court stated that reopening the hearing would prejudice the government by forcing it to defend its

position again against evidence that could have been mustered at the first hearing. After weighing

these factors, the court denied White’s motion. Similarly, in response to White’s second, oral,

motion to reconsider, the judge stated that there were no new facts presented “or any other matter

that really casts a reasonable doubt on the pretrial ruling.” In so ruling, the trial court did not abuse

its discretion. Therefore, we hold that the district court properly denied White’s motions to

reconsider his motion to suppress the gun from evidence.

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B

In the second and final issue raised on appeal, White argues that the sentencing judge erred

in overruling his objection to the PSR’s classification of his juvenile adjudication for aggravated

assault as a violent felony under the ACCA.

We review a trial court’s determination that a conviction was for a crime of violence for

purposes of the ACCA de novo. United States v. Wilson, 168 F.3d 916, 926 (6th Cir. 1999).

The ACCA states that if a defendant violates 18 U.S.C. § 922(g) and has three previous

convictions for a violent felony or a serious drug offense committed on different occasions from one

another, then the defendant will receive a mandatory minimum sentence of fifteen years in prison.

18 U.S.C. § 924(e)(1). A “violent felony” is defined as:

“any crime punishable by imprisonment for a term exceeding one year, or any act

of juvenile delinquency involving the use or carrying of a firearm, knife, or

destructive device that would be punishable by imprisonment for such term if

committed by an adult, that (1) has as an element the use, attempted use, or

threatened use of physical force against the person of another; or (2) is burglary,

arson, or extortion, or otherwise involves conduct that presents a serious potential

risk of physical injury to another.”

18 U.S.C. § 924(e)(2)(B) (emphasis added).

To determine whether a prior conviction or adjudication qualifies as a violent felony for

purposes of the ACCA, the Supreme Court requires a sentencing judge to use a “categorical

approach” to defining the offense at issue. See Taylor v. United States, 495 U.S. 575, 600 (1990)

(establishing the categorical approach in the context of offenses tried to a jury); Shepard v. United

States, 544 U.S. 13, 14 (2005) (modifying the categorical approach to accommodate non-jury

adjudications such as bench trials or guilty pleas). The categorical approach is a uniform method

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of determining whether an act constitutes a violent felony for purposes of the ACCA. A sentencing

court may look only at certain documents in determining whether a prior offense was a violent

felony. See, e.g., Taylor, 495 U.S. at 601 (stating that an approach in which the sentencing court

could consider any document, including, for example, a police report, has “practical difficulties” and

is “potential[ly] unfair”). Under Taylor, a sentencing court must first look only to the fact of

conviction and the statutory definition of the prior offense to determine whether the conviction

necessarily included conduct that would qualify it as a violent felony. In cases where the jury was

actually required to find specific elements, Taylor stated that the court may go beyond the mere fact

of conviction and look to the charging paper and jury instructions to see if the verdict necessarily

rested on qualifying conduct. Shepard modified the categorical approach for prior offenses that

came from bench trials and plea agreements. Shepard stated that the categorical approach to

determining whether an offense tried in a bench trial is a violent felony for purposes of the ACCA

requires the sentencing judge to look only at the statutory definition of the offense, charging

documents, and the bench-trial judge’s formal rulings of law and findings of fact. Shepard, 544 U.S.

at 20.

White’s PSR listed two uncontested violent felonies and one juvenile adjudication for

aggravated assault. White argues that the sentencing court departed from the categorical approach

in classifying the juvenile adjudication as a violent felony. He argues that if the court had used the

categorical approach correctly it could not have determined that the adjudication was a violent felony

because those documents did not show that the offense was committed with a gun, knife, or

destructive device. Therefore, he argues, the court erred in determining that he had three prior

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violent felonies and qualified as an armed career criminal. White is incorrect. The judge correctly

followed the categorical approach, and the documents that he properly examined were narrowly

drawn, covering only conduct that involved the use of a firearm; therefore, the juvenile adjudication

was properly designated to be a violent felony.

White’s juvenile adjudication was imposed by a judge without a jury, similar to a bench trial.

Closely observing Shepard, the sentencing judge in our case looked only at the statutory definition

of the offense, the charging documents, and the juvenile judge’s order of adjudication to determine

whether the juvenile adjudication was a violent felony for purposes of the ACCA.1 Formal rulings

of law and findings of fact by the juvenile judge, if any were made, were not in the record before the

sentencing court.2

We review these materials to determine whether the district judge properly categorized the

prior juvenile conviction as a violent felony. The definition of the aggravated-assault statute under

which White was convicted is, by itself, ambiguous. The crime can be accomplished with or without

the use of a firearm. A person may commit aggravated assault by committing simple assault and one

of the following: (A) causing serious bodily injury to another, (B) using or displaying a deadly

weapon, or (C) attempting or intending to cause bodily injury to another by strangulation. TENN .

CODE ANN . § 39-13-102(a)(1)(A)-(C). See also Wells, 473 U.S. at 649 (holding that the Tennessee

1

United States v. Wells, 473 F.3d 640, 649 (6th Cir. 2007), explicitly held that the

Taylor/Shepard categorical approach applies to prior juvenile adjudications.

2

The sentencing judge specifically disregarded other documents that he deemed to be outside

of the scope of the categorical approach: the arrest order, the probation officer’s report, and the

affidavit supporting the arrest order.

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aggravated assault statute does not necessarily require proof of the use or display of a firearm, knife,

or destructive device). The charging petition charged White with violations of simple assault under

TENN . CODE ANN . § 39-13-101 and aggravated assault under TENN . CODE ANN . § 39-13-102 and

alleged the following:

[T]he subject intentionally or knowingly did cause [victim] to reasonably fear

imminent bodily injury by use of a deadly weapon, to wit: a handgun. The subject

intentionally, knowingly, or recklessly did cause bodily injury to [victim]. In

support of these allegations the petitioner alleges the following specific facts: At

Pearl-Cohn High School, the subject held a gun on Emanuel Leach, then hit him

in the mouth with the gun and caused an injury requiring stitches.

The order of adjudication indicates that the White pled not guilty, the juvenile judge found him

guilty of aggravated assault, and the judge dismissed the simple assault charge. Based on these

documents, the sentencing judge found that White’s adjudication necessarily involved the use of a

firearm. Only the charging document, and not the statutory definition of aggravated assault or the

juvenile judge’s order of adjudication, placed White’s offense squarely within the ACCA’s definition

of a violent felony.

As required by the ACCA, the sentencing judge next analyzed White’s juvenile conviction

to determine if the crime of aggravated assault would have been punishable by imprisonment for a

term exceeding a year, if the crime had been committed as an adult. The court found that aggravated

assault with a firearm is a Class C felony under Tennessee law, punishable “by not less than three

(3) and no more than fifteen (15) years in prison.” White, 683 F. Supp. at 621 (citing TENN . CODE

ANN . §§ 39-13-102(e)(1), 40-35-111(b)(3)). The sentencing court found that the crime charged in

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the juvenile adjudication was a violent felony for purposes of the ACCA. White thus had committed

three prior violent felonies and was sentenced as an armed career criminal.

On appeal, White argues that the sentencing judge improperly expanded the categorical

approach when he looked at the portion of the charging document that mentioned a handgun. White

does not argue that the sentencing judge could not look at the charging document at all. Instead, he

tries to break up the charging document into parts. He argues that the “section” of the charging

document discussing the handgun was not “part and parcel of the formal charge” and the sentencing

court violated the categorical approach by looking at it. Shepard clearly states, though, that a

sentencing judge may look at the “charging document.” See Shepard, 544 U.S. at 16 (“[A] later

court determining the character of [an offense] is generally limited to examining the . . . charging

document . . . .”).

This Circuit, however, has considered both the statutory provisions and factual recitals in a

charging instrument to determine whether it sufficiently narrowed the charge to cover only qualifying

conduct. In United States v. Mendoza-Mendoza, 239 F. App’x 216 (6th Cir. 2007), this court

examined the charging papers “to determine which version of the aggravated assault statute

[defendant] was convicted under.” Id. at 219. The court then relied on information in the charging

document to determine that the defendant pleaded guilty to the provision § 39-13-102(a)(2)(B). Ibid.

(“The criminal information, which states that Mendoza acted ‘recklessly’ and committed aggravated

assault ‘by the use or display of a deadly weapon’ makes clear that he specifically pleaded guilty to

TENN . CODE ANN . § 39-13-102(a)(2)(B).”). See also Wells, 473 U.S. at 649 (noting that had

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defendant pled guilty to the offense for which he was charged, rather than a lesser offense, “the

petition’s factual recitation could well have justified treating this juvenile adjudication as a predicate

offense for armed career criminal purposes.”). Thus, where a charging document is narrowed to

cover only conduct that qualifies as a violent felony under the ACCA, a guilty plea to the offense as

charged suffices to establish the offense as an ACCA predicate. Cf. In re Sealed Case, 548 F.3d

1085 (D.C. Cir. 2008) (holding that prior guilty plea was not crime of violence where charging

document described conduct that could qualify as both violent and nonviolent and the government

had failed to furnish transcript showing the factual basis of the plea).

In our case, the charging document is sufficiently narrowed to the firearm provision. It is

clear that White is being charged with aggravated assault under TENN . CODE ANN . § 39-13-

102(a)(1)(B), even though the petition cites to the whole provision, § 39-13-102. The language in

the petition tracks the language of § 102(a)( 1)(B) and clearly identifies the gun as the reason for

seeking an aggravated assault charge. The petition states that White committed an assault by

“intentionally, knowingly, or recklessly . . . caus[ing] bodily injury to [victim]” and that it was

aggravated because he “intentionally or knowingly did cause [victim] to reasonably fear imminent

bodily injury by use of a deadly weapon: to wit, a handgun.” The petition does not include any

language indicating another basis for seeking the aggravated charge.

However, White here pleaded not guilty, expressly disclaiming the information in the

charging document. The order of adjudication shows only that the juvenile judge found defendant

guilty of aggravated assault, not the specific prong on which the conviction rested. This would be

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analogous to a situation in which the government presented a narrowed charging instrument and a

jury verdict but no jury instructions.

Other Circuits have held that a narrowly-drawn charging document suffices to establish the

factual predicate of the conviction even without clarifying jury instructions or an admission of guilt.

See United States v. Lujan, 9 F.3d 890 (10th Cir. 1993) (upholding ACCA enhancement where the

government failed to furnish jury instructions and defendant was charged under a burglary statute

that covered unlawful entry into both buildings and vehicles, but indictment made clear that

defendant was being charged only with unlawful entry into a building, thus qualifying the conviction

as a violent felony under the ACCA); United States v. Vinton, 631 F.3d 476, 486 (8th Cir. 2011) (“A

precisely drawn charging document can indicate the basis for conviction whether or not the

conviction was accompanied by an admission of guilt.”).

And Shepard itself confirms that a narrowed charging document by itself would be sufficient

to qualify a prior offense as a violent felony in any kind of case, whether guilt was admitted or not.

After listing the documents that a court may consider in applying the ACCA, Shepard states, “With

such materials in a pleaded case, a later court could generally tell whether the plea had necessarily

rested on the fact identifying the burglary as generic, just as the details of instructions could support

the conclusion in the jury case, or the details of a generically limited charging document would do

in any sort of case.” 544 U.S. at 20–21 (internal citation omitted) (emphasis added). The Shepard

Court reiterated that a bench trial’s findings and rulings would be necessary to confirm the factual

basis of the conviction ‘without a charging document that narrows the charge to generic limits.” Id.

at 25 (emphasis added). Here, we have such a narrowly drawn charging instrument; thus, the

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charging petition and the fact of conviction alone are sufficient to determine that White’s juvenile

conviction included the use of a handgun, qualifying it as a violent felony under the ACCA.

III

For the foregoing reasons, we AFFIRM the judgment of the district court.

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