Escolar Documentos
Profissional Documentos
Cultura Documentos
No. 08-4733
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:07-cr-00322-RLW-1)
Argued:
Decided:
PER CURIAM:
Ray Prosise was convicted of five drug- and firearm-related
offenses in the Eastern District of Virginia and sentenced to
life plus sixty months imprisonment.
to
suppress
Guidelines.
evidence
and
in
applying
the
Sentencing
I.
On April 1, 2008, at the conclusion of a two-day trial in
Richmond, the jury returned verdicts of guilty as to all five
counts
against
counts were:
Prosise
in
the
operative
indictment. 1
Those
base
(crack),
in
contravention
of
21
U.S.C.
846
crime,
in
violation
of
18
U.S.C.
924(c)(1)(A)
appeal
jurisdiction
from
the
pursuant
courts
to
18
final
U.S.C.
judgment.
3742(a)
We
and
possess
28
U.S.C.
1291.
II.
In
assessing
trial
courts
ruling
on
motion
to
the
evidence
prevailing party.
district
court
the
light
most
favorable
to
the
in
In so doing, we must
committed
no
first
ensur[ing]
significant
that
procedural
error,
the
Gall
In assessing whether
III.
A.
On
October
5,
2007,
prior
on
the
suppression
to
trial,
Prosise
filed
his
on
November
9,
2007,
and
denied the motion by its Order of November 15, 2007, for reasons
explained
Opinion). 2
in
the
accompanying
Memorandum
Opinion
(the
[him]
illegally
or
his
person
detained
and
Constitutional rights.
suppression
appeal:
theory
in
or
his
automobile
searched
J.A. 16.
the
in
after
violation
he
of
was
his
district
court
that
he
asserts
on
the time the officers initiated the roadblock, and that, at that
point, there was no reasonable suspicion of criminal activity to
justify a Terry stop.
brief,
reasonable,
investigatory
articulable
stop
suspicion
when
that
the
officer
criminal
has
activity
a
is
afoot).
The district court rejected the proposition that Prosise
was
seized
Prosise
officers.
when
was
not
the
officers
stopped
by
initiated
the
the
roadblock
roadblock,
set
up
by
as
the
489 U.S. 593, 599 (1989), where the suspect was meant to be
stopped by the physical obstacle of the roadblock and . . .
was
so
Prosise
stopped).
The
court
also
was
when
his
vehicle
seized
rejected
any
collided
notion
with
that
those
of
Montgomerys
bumping
of
Prosises
rear
bumper
was
car
and
thereby
producing
crash
that
terminates
[into
the
pond],
waded
ashore,
and
submitted
to
the
Id. at 7.
officers.
Next,
the
district
court
ruled
that,
at
the
time
they
activity.
Opinion
7.
The
court
premised
its
defendants
drug
information
that
information
being
had
distribution
been
provided
activities,
provided,
by
the
and
CS
the
about
the
historical
up-to-the-minute
the
defendants
270-71 (2000)).
historical
information
informants
and
CS
provided
who
by
was
at
least
providing
six
different
up-to-the-minute
conclude
that
the
district
court
properly
denied
partially
restrained
his
freedom
of
movement,
even
D., 499 U.S. 621, 626 (1991) (The narrow question before us is
whether, with respect to a show of authority as with respect to
application of physical force, a seizure occurs even though the
subject does not yield.
489 U.S. at 599 (We think it enough for a seizure that a person
be stopped by the very instrumentality set in motion or put in
place in order to achieve that result.).
Moreover, Prosise
to
discard
evidence,
and
only
thereafter
exited
his
reliable
Prosise
currently
was
to
establish
engaged
reasonable
in
criminal
suspicion
activity.
that
The
CS,
that
identities
of
officers;
the
information
that
his
Prosise
the
CS
vehicle
involved
in
informant/witnesses
was
about
was
giving
Prosises
contained
the
trafficking;
were
officers
activities,
a
drug
large
known
the
up-to-the-minute
including
quantity
to
the
of
information
cocaine
that
325, 332 (1990) (recognizing that even anonymous tip can justify
Terry
stop
where
significant
10
aspects
of
the
callers
the
of
district
courts
denial
Prosises
motion
to
suppress
court
adopted
evidence.
B.
In
sentencing
Prosise,
the
district
the
id.
of
offense
3B1.1(a);
justice,
level
and
id.
was
two-level
3C1.1.
52.
The
PSR
enhancement
for
Accordingly,
Prosises
initially
calculated
Guidelines
section
4B1.1.
The
resulting
Guidelines
The PSR applied the 2007 edition of the Guidelines and the
May 1, 2008 supplement thereto.
11
consecutive
term
of
imprisonment,
as
mandated
by
appeal,
application
of
Prosise
specifically,
he
the
challenges
Guidelines
first
the
contends
in
four
that
the
district
courts
respects.
court
More
erred
in
Prosise
weapon
enhancement,
the
the
two-level
four-level
obstruction
leadership
enhancement,
and
enhancement.
Prosise
had
total
offense
level
of
of
justice
Nevertheless,
52
and
the
harmless
unless
they
collectively
involve
the
incorrect
12
__ F.3d __, No. 08-5125(L), slip op. at 6 (4th Cir. Jan. 28,
2010) (recognizing, in wake of Gall, that properly preserved
objections to procedural sentencing errors can be subject to
harmlessness
review
pursuant
to
Federal
Rule
of
Criminal
203
(1992)
(observing,
pre-Gall,
that
misapplication
of
reach
Prosises
contention
that
Accordingly, we need
the
court
should
have
level would yet be 46, rendering any error in the drug quantity
calculation harmless.
First of all, the Government concedes error with respect to
the two-level dangerous weapon enhancement, and we agree.
district
court
imposed
this
enhancement,
under
The
Guidelines
counts
cocaine
that
and
included
Count
crack,
contravention
in
13
One,
conspiracy
of
21
to
U.S.C.
846.
Significantly,
Count
One
was
the
offense
underlying
crime,
Prosise
in
violation
received
of
18
U.S.C.
consecutive
924(c)(1)(A).
sixty-month
term
of
2K2.4
guideline
is
underlying
instruct
imposed
offense,
characteristic
determining
for
the
in
do
[i]f
conjunction
not
possession
sentence
that,
for
sentence
with
apply
any
. . .
of
the
under
sentence
specific
[a]
underlying
for
an
offense
firearm
offense.
this
when
USSG
not [to] apply any weapon enhancement in the guideline for the
underlying offense . . . if . . . in an ongoing drug trafficking
offense, the defendant possessed a firearm other than the one
for which the defendant was convicted under 18 U.S.C. 924(c).
Id.
v.
(recognizing
Reevey,
that
364
F.3d
defendant
151,
158-59
convicted
and
(4th
Cf. United
Cir.
2004)
sentenced
under
14
of
firearm
during
underlying
carjacking
offense
(citing
USSG
for
enhancement
leader
the
four-level
applies
of
[i]f
criminal
leadership
the
defendant
activity
that
enhancement,
was
an
involved
such
organizer
five
or
or
more
United States v. Jones, 356 F.3d 529, 537-38 (4th Cir. 2004).
According to the Application Notes for section 3B1.1, to qualify
for the leadership enhancement, the defendant must have been the
organizer or leader of one or more other participants with a
participant
being
defined
convicted.
officer
of
person
for
the
commission
responsible
with
the
as
that
the
who
is
offense,
criminally
even
if
not
Prosise
was
the
leader
or
transport
informants
and
distribute
testimony
indeed
narcotics,
reflects
id.
that
at
Prosise
566.
The
was
their
Accordingly,
applicable
defendant
under
willfully
Guidelines
obstructed
15
or
section
impeded,
3C1.1
where
the
or
attempted
to
specify,
if
however,
that
the
obstructive
conduct
occurred
away
alone,
be
controlled
sufficient
to
substance),
warrant
it
[the
shall
not,
enhancement]
standing
unless
it
obstruction
of
justice
enhancement
on
(1)
Prosises
detection
during
post-arrest
police
search.
The
instances
constituted
challenging
the
obstructive
behavior
and,
thus,
J.A. 538.
obstruction
of
justice
enhancement,
request
that
his
mother
and
brother
sell
undiscovered
Br.
of
Appellant
16,
and
that
his
destruction
of
is
an
insufficient
basis
for
the
enhancement.
The
district
to
his
mother
and
brother
constituted
willful
police
to
exonerate
accomplice).
Consequently,
Prosises
IV.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
17