UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. xx-3113

BRIEF FOR APPELLANT xxxxxxxxxxxx

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

xxxxxxxxxxxxxx, Defendant-Appellant.

JURISDICTION

The district court had jurisdiction over this case pursuant to 18 U.S.C. § 3231. The notice of appeal having been filed within the ten-day period of Fed. R. App. P. 4(b), this Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

ISSUES PRESENTED FOR REVIEW

I. Whether the district court erred in denying Defendant's motion to suppress a handgun where the gun was discovered as a result of an unreasonable and unlawful traffic stop.

II. Whether the district court erred in counting a 20-year old attempted robbery conviction as a prior "crime of violence" in setting Defendant's base offense level where the conviction is both remote in time and lacking in proof that it included an element of violence.

III. Whether the calculation of Mr. xxxxxx's sentence, by including the same prior convictions to enhance both the offense level and criminal history category, resulted in an unfair double counting.

STATUTES AND REGULATIONS

Pertinent statutes and regulations are contained in the addendum to this brief.

and Disposition in the Court Below

Police arrested Appellant  on November 7, 1995, after a traffic stop, for possessing a handgun.

A grand jury returned a four-count indictment against Mr. xxxxxx for violations of federal and District of Columbia laws. (App. _____)¹. Count One, which is relevant to this appeal, charged Mr. xxxxxx with possession of a firearm after having been convicted of a felony in violation of 18 U.S.C. § 922(g)(1).

Mr. xxxxxx filed a motion to suppress the handgun because it was the fruit of an unlawful traffic stop and unlawful arrest by police. (App. ____). The district court denied Mr. xxxxxx's motion at a March 25, 1996, hearing. (3/25/96 Tr. 136-39).

At the same hearing, Mr. xxxxxx entered a conditional guilty plea to Count One, reserving the right to appeal the court's adverse suppression ruling. (3/25/96 Tr. 140, 146-47; App. _____). The government agreed to dismiss the remaining counts against Mr. xxxxxx. (App. _____).

A Presentence Investigation Report was prepared, and the district court heard objections to the report at a hearing on September 18, 1996. The court determined that Mr. xxxxxx's offense level was 24, based on a finding that he had two prior felony convictions that were crimes of violence. The court sentenced Mr. xxxxxx to 96 months imprisonment, to be followed by a three-year term of supervised release. (App. _____).

B. Statement of Facts

On the night of his arrest, Mr. xxxxxx was one of four passengers in a car owned by him but driven by another. Police officers patrolling the area around Eleventh and Irving Streets, N.W., saw the car and turned on their emergency lights to make a traffic stop, under the later-given reason that the police did not see a vehicle identification number ("VIN") on the car's temporary tags. (3/25/96 Tr. 10, 24, 66). A police officer testified that they followed the car for over a block before it pulled over and that they saw a green, leafy substance being dumped out the car's window. (3/25/96 Tr. 10).

When the car stopped, Mr. xxxxxx jumped out of the passenger side and slipped and fell. One of the arresting officers reported seeing a silver handgun fall out of Mr. xxxxxx's waistband. According to the officer, Mr. xxxxxx then picked up the gun and ran down the street and into an alley. (3/25/96 Tr. 12-14, 28, 31-33, 73-74).

One officer chased him on foot and another in the patrol car. In the alley, the officer in the patrol car testified that he caught up with Mr. xxxxxx and grabbed him. Mr. xxxxxx then broke free, began to run again, and threw the gun over a high fence. The police immediately seized Mr. xxxxxx. (3/25/96 Tr. 13-18, 91-93). They later found the gun in a neighboring yard. (3/25/96 Tr. 19).

During the chase of Mr. xxxxxx, the car with the remaining passengers drove off. As a result, the police were not able to verify the temporary tag number or the absence of a VIN on the tags. (3/25/96 Tr. 23, 38-39). The officers had not made any prior radio communications regarding the temporary tags in order to verify their issuance, so no record was made of the tag numbers. (3/25/96 Tr. 24).

At the March 25 status hearing, Harry Proctor, a records custodian for the D.C. Department of Motor Vehicles, testfied for the defendant as to the records on Mr. xxxxxx's car. He stated that temporary tags were issued for Mr. xxxxxx's car and that the dealer would have been required to put the VIN on those tags. (3/25/96 Tr. 40-42). He further testified that Defense counsel introduced into evidence the temporary tags that had been issued to Mr. xxxxxx, with the VIN marked on the tags. (App. ____). Defense counsel also introduced the bill of sale, again with the VIN filled in on the document. (App. ____).

Mr. xxxxxx then testified that the temporary tags, with the VIN, had been put on the car when he purchased it and were on his car the night of the arrest. (3/25/96 Tr. 72, 82-83). Mr. xxxxxx stated that the temporary tags had, to his knowledge, never been tampered with or taken off the car between the time of purchase and his arrest. (3/25/96 Tr. 86).

The district court then denied the supression motion. (3/25/96 Tr. 139). The court did not make a factual finding as to whether the temporary tags had a VIN, but based its decision on the finding that the officer "believed that the car did not have a VIN number." (3/25/96 Tr. 136). Upon the court's ruling, Mr. xxxxxx entered a guilty plea. (3/25/96 Tr. 163).

At the sentencing hearing at a later date, defense counsel argued for an offense level of 20, instead of 24 as recommended in the PSR. (9/18/96 Tr. 19). The PSR stated that Mr. xxxxxx had committed two prior crimes of violence, justifying an offense level of 24 pursuant to U.S.S.G. § 2K2.1. (PSR 3). Defense counsel argued that, despite the findings in the PSR, Mr. xxxxxx's prior attempted robbery conviction under D.C. law should not count as a "crime of violence" because (1) it was remote in time; (2) did not necessarily involve a violent act. (9/18/96 Tr. 23).

The court found that the prior attempted robbery conviction counted in calcuating Mr. xxxxxx's offense level and sentenced him to 96 months based on the recommended offense level of 24.

SUMMARY OF ARGUMENT

Xxxxx

A. Standard of Review

Justified traffic stop is issue of law reviewed de novo.

B. The District Court Applid the Wrong Legal Standard in Relying on the Police Officers Subjective, Good Faith Belief that the VIN was Missing from Mr. xxxxxx's Temporary Tags

Xxxx

C. Regardless of the Reasonableness of the Officer's Belief, Absence of a VIN from Temporary Tags, Which is not a Violation any District of Columbia Traffic Law, Does Not Justify a Traffic Stop

Beyond the court's application of the wrong legal standard for determining "minor participants" under § 3B1.2(b), this Court should find that the sentencing court misapplied that guideline to the facts and remand the case for resentencing with instructions to grant the two-level adjustment. In addition, this Court should instruct the district court to consider a downward departure pursuant to U.S.S.G. § 5K2.0 for Mr. xxxxxx's minor role. See United States v. Bierley, 922 F.2d 1061, 1065 (3d Cir. 1990) (departure under § 5K2.0 available for mitigating role, even when adjustment under § 3B1.2 is not). The facts proffered by the government, together with the facts in the Presentence Investigation Report, demonstrate that Mr. xxxxxx was a "minor participant" in the transaction.

The facts support the district court's finding that Mr. xxxxxx acted as a broker for Shawn Burton only to the extent that a broker is a mere intermediary. And in his role as a broker, Mr. xxxxxx clearly was far less culpable than Shawn Burton. Mr. xxxxxx answered a page that Shawn Burton had set up in order to avoid direct contact with the CI. He then acted at Shawn Burton's direction during the entire course of the drug transaction. He consulted Shawn Burton while setting up the transaction with the CI. Mr. xxxxxx delayed the transaction twice while he waited on Shawn Burton and, in fact, could not act until Burton returned. Mr. xxxxxx then shuttled between Shawn Burton's apartment and the CI's car to finalize the details of the deal, to bring the money to Shawn Burton and to deliver the crack and change to the CI.

Had Mr. xxxxxx been a more sophisticated "broker" in this deal, one with culpability closer to that of Shawn Burton, he would have had more control over the transaction. There is no evidence that Mr. xxxxxx was more than a paid go-between. (10/10/96 Tr. 7). Mr. xxxxxx had no access to the drugs other than through Shawn Burton. Furthermore, there is no evidence that Mr. xxxxxx had any other sources for drugs. Mr. xxxxxx was working solely for Shawn Burton, who directed all his actions.

In contrast to the role of Mr. xxxxxx, Shawn Burton had total control over the transaction and simply used Mr. xxxxxx as the front person in his (Burton's) own drug dealing in order to protect himself.² See United States v. Foley, 906 F.2d 1261 (8th Cir. 1990)(defendant who sold cocaine for a concealed dealer was deemed "minor participant"). Shawn Burton set up the contact between the CI and Mr. xxxxxx by providing the pager number, he approved the crack sale (Mr. xxxxxx was consulting with him while on the phone with the CI), he set the price, he controlled the drug supply, and he provided change from the CI's payment. The profits from the transaction went to Shawn Burton. From beginning to end, the transaction was controlled solely by Shawn Burton, with Mr. xxxxxx acting at his direction.³

"The application of § 3B1.2 is inherently fact-bound . . . ." Caballero, 936 F.2d at 1299; U.S.S.G. § 3B1.2, Background. The facts here clearly show the differences in culpability between Mr. xxxxxx and Shawn Burton and the relatively minor culpability of Mr. xxxxxx.

CONCLUSION

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

________________________________

EVELINA J. NORWINSKI

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF LENGTH

I HEREBY CERTIFY that the foregoing Brief for Appellant does not exceed the number of words permitted by D. C. Circuit Rule 28(d).

_________________________________

EVELINA J. NORWINSKI

Assistant Federal Public Defender

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on March 17, 1997, two copies of the foregoing Brief for Appellant and one copy of the accompanying Appendix were served by hand on John R. Fisher, Chief, Appellate Section, Criminal Division, United States Attorney's Office, 555 4th Street, N.W., Washington, D.C. 20001.

___________________________________

EVELINA J. NORWINSKI