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United States v. Norman

United States Court of Appeals, Fourth Circuit

August 15, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
THOMAS EDWARD NORMAN, Defendant-Appellant.

          Argued: May 7, 2019

          Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior District Judge. (7:17-cr-00527-HMH-1)

         ARGUED:

          Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant.

          Brook Bowers Andrews, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

         ON BRIEF:

          Sherri A. Lydon, United States Attorney, Columbia, South Carolina, Jennifer E. Wells, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.

          Before MOTZ, KING, and THACKER, Circuit Judges.

          DIANA GRIBBON MOTZ, CIRCUIT JUDGE.

         The district court found Thomas Edward Norman guilty of being a felon in possession of a firearm, possessing heroin and cocaine with intent to distribute, and possessing a firearm in furtherance of a drug trafficking crime. On the basis of his prior conviction for conspiracy to possess cocaine and cocaine base with intent to distribute, in violation of 21 U.S.C. § 846, the court applied an effective six-level enhancement to Norman's sentence under United States Sentencing Guidelines (U.S.S.G.) § 2K2.1(a)(4)(A). Norman appeals the denial of his motion to suppress and the imposition of the enhancement. For the reasons that follow, we affirm.

         I.

         We relate the facts relevant to the suppression motion in the light most favorable to the Government, the prevailing party before the district court. See United States v. Bullette, 854 F.3d 261, 265 (4th Cir. 2017).

         On December 7, 2016, officers with the United States Marshals Fugitive Task Force and the local sheriff's office received information that Norman, wanted on an outstanding warrant for violating the terms of his supervised release, could be found in a black Camry on Archer Road in Spartanburg, South Carolina. Arriving on the scene, the officers approached the vehicle, removed Norman, and placed him under arrest pursuant to the outstanding warrant. They then searched Norman and found a large amount of cash and a cell phone in his pockets. The officers also removed and searched the sole passenger in the vehicle, Princess Harrison; they found a baggie in her hair, which she admitted contained cocaine residue.

         When officers placed the cash seized from Norman's person on the driver's side seat of the Camry, they saw additional cash on the car's floorboard. The officers later ascertained that the total amount of cash recovered from Norman's person and the floorboard was $1, 244. The officers also observed a small tied-up quarter baggie sitting behind the gear stick on the center console of the vehicle. One officer testified that, based on the baggie's distinctive appearance and his seventeen years of experience with narcotics investigations, he believed the baggie contained contraband. The baggie's contents later tested positive for heroin.

         After arresting Norman and Harrison and observing the cash and baggie in plain view, the officers conducted an extensive search of the vehicle. They subsequently located packages containing cocaine and "molly" (a street term for powdered ecstasy) under a bag on the floor of the back seat and a firearm under the driver's side seat.

         On June 13, 2017, a federal grand jury indicted Norman on three counts: (1) possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e) ("Count 1"); (2) possession with intent to distribute a quantity of heroin and cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) ("Count 2"); and (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) ("Count 3").

         The case proceeded to a bench trial. After the close of the Government's case, Norman moved to suppress the drugs and firearm recovered from the Camry as fruits of an illegal search. The district court denied his motion, and later found Norman guilty on all three counts.

         Following Norman's conviction, the district court asked the United States Probation Office to prepare a Presentence Investigation Report ("PSR"). For Count 1, the Probation Office calculated a base offense level of 20. This included an effective six-level enhancement under U.S.S.G. § 2K2.1(a)(4)(A), on the basis that a prior conviction for "Conspiracy to [Possess with Intent to Distribute] Cocaine and Cocaine Base" under 21 U.S.C. § 846 constituted a "controlled substance offense." With an additional two-level enhancement for a stolen firearm and a criminal history category of VI, Norman's resulting Guidelines range was 84 to 105 months' imprisonment. Counts 1 and 2 were consolidated pursuant to U.S.S.G. § 3D1.2(c). Because Count 3 required a mandatory 60-month consecutive term of imprisonment, Norman's effective Guidelines range under U.S.S.G. § 5G1.2(a) was 144 to 165 months.

         At his sentencing hearing on March 27, 2018, Norman's sole objection was to the criminal history points associated with a 2005 conviction in state court. The court overruled that objection. The district court then sentenced Norman to 156 months of imprisonment, consisting of 96 months for Counts 1 and 2 ...


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