Appeal from the United States District Court for the District of Columbia (No. 1:10-cr-00157-1)
The opinion of the court was delivered by: Rogers, Circuit Judge:
Before: ROGERS and GRIFFITH, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
When the police stopped appellant for driving at night with no car lights on, a minor traffic offense, they noticed a strong smell of alcohol coming from the car, saw a small amount of red liquid in an open cup in the car, and arrested him for violating D.C. Code § 25-1001(a)(2) (2001). Upon searching the car, the police found a loaded gun under the driver's seat. Possession of a firearm by a person previously convicted of a felony, which appellant was, is a violation of both D.C. Code § 22-4503(a)(1) (2001) and 18 U.S.C. § 922(g)(1) (2006). The U.S. Attorney for the District of Columbia prosecuted appellant in federal court. See D.C. Code § 23- 101(c). Following the denial of his motion to suppress evidence, appellant entered a conditional plea to the indictment and was sentenced to 57 months' imprisonment, the bottom of the U.S. Guidelines sentencing range.
On appeal, appellant challenges the denial of his motion to suppress evidence and his sentence. His Fourth Amendment challenge is based on the contention that the "infinitesimal," Appellant's Br. 8, amount of red liquid observed by the police in the cup was insufficient to establish probable cause to arrest him for violating D.C. Code § 25-1001(a)(2) and therefore to search the car. The district court, however, credited police testimony about the strong odor of alcohol coming from the car, the red liquid in the uncovered cup, a puddle on the car floorboard near the driver's seat, and appellant's movements after he was ordered to stop the car; appellant does not challenge these findings. This testimony supported the district court's conclusion that a reasonable police officer could infer that appellant had poured the liquid from the cup while driving. Upon arresting appellant with probable cause to believe he was driving in possession of an open container of alcohol, the police had an objectively reasonable basis to search the car for evidence of that offense. Therefore, the district court did not err in denying appellant's motion to suppress evidence.
In challenging his sentence, appellant contends that the district court abused its discretion by "summarily reject[ing]" his request that the sentencing decision take into account the sentencing disparity under the D.C. Voluntary Sentencing Guidelines (2010) resulting from the U.S. Attorney's "arbitrar[y]" election to prosecute him in federal court. Appellant's Br. 7. The district court, however, acknowledged its discretion under the advisory federal sentencing guideline regime after United States v. Booker, 543 U.S. 220 (2005), to begin its analysis with the U.S. Guidelines and end with the D.C. Guidelines. Upon finding no abuse or unfairness by the U.S. Attorney in prosecuting appellant under federal rather than D.C. law, the district court addressed the relevant statutory factors in 18 U.S.C. § 3553(a) and determined that a significant period of incarceration was necessary, although not as long as the government recommended nor as short as appellant urged on the basis of the D.C. Guidelines. Given the district court's consideration of the statutory factors and of appellant's arguments in aid of sentencing, and the district court's reasoned explanation of its sentencing determination, there was neither procedural error nor substantive abuse of discretion by the district court. Accordingly, we affirm the judgment of conviction.
Around 3 a.m. on May 7, 2010, Metropolitan Police Officers Derek Gawrilow and Benjamin Finck saw a car moving on the road without having its lights on. They ordered appellant, who was driving, to pull over. Appellant continued to drive about a block before stopping; during that time the officers observed his shoulders moving. Upon approaching the driver's window to request information, Officer Gawrilow noticed a "fairly strong" smell of alcohol coming from the car. Tr. Mot. Hr'g, Oct. 6, 2010, at 13. Both officers saw a clear plastic cup in a backseat cup holder and a puddle of liquid on the floorboard near the driver's seat. Officer Gawrilow testified that he asked appellant to hand him the cup, and that upon examining it he saw "a small amount of red liquid," which "smelled consistent with the odor of [an] alcoholic beverage." Id. at 14; see id. at 58. The officers arrested appellant for possession of an open container of alcohol in a vehicle in violation of D.C. Code § 25- 1001(a)(2), and then searched the car for "additional items of evidence" related to that charge, Tr. Mot. Hr'g at 23. Officer Finck found a Glock .40 caliber handgun under the driver's seat; it was loaded with 14 rounds of ammunition. The officers did not issue appellant a citation for driving without having his car lights on in violation of D.C. Mun. Regs. Tit. 18 § 703.1.
Appellant, who had previously been convicted of two felonies, was indicted by a federal grand jury on one count of unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). After an evidentiary hearing, the district court denied appellant's motion to suppress the gun and ammunition, rejecting his argument that the officers lacked probable cause to arrest him and therefore lacked grounds to search the car for related evidence. Appellant entered a conditional guilty plea to the indictment pursuant to Federal Rule of Criminal Procedure 11(a)(2). The pre-sentence investigative report calculated the U.S. Guidelines sentencing range at 57 to 71 months' imprisonment, based on a offense level of 24, appellant's early acceptance of responsibility, and his criminal history. The district court sentenced appellant to 57 months' imprisonment and 36 months' supervised release.
D.C. Code § 25-1001(a)(2) provides that "no person in the District [of Columbia] shall . . . possess in an open container an alcoholic beverage in . . . [a] vehicle in or upon any street, alley, park, or parking area . . . ." It is a misdemeanor offense, punishable by a maximum fine of $500, or imprisonment for a maximum of ninety days, or both. Id. § 25-1001(d). Appellant does not deny that he was driving the car at night without lights in violation of D.C. Mun. Regs. Tit. 18 § 703.1, or that the officers' stop of the car was lawful, see Whren v. United States, 517 U.S. 806, 810 (1996). Instead he contends that the police lacked probable cause to arrest him for violating D.C. Code § 25-1001(a)(2) because there was an insufficient amount of liquid in the cup.
Probable cause to arrest exists where a police officer has information "sufficient to warrant a prudent [individual] in believing that the [suspect] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91 (1964); see Illinois v. Gates, 462 U.S. 213, 230-31 (1983). This court reviews the determination of probable cause de novo, while reviewing historical facts for clear error and giving due weight to inferences drawn by the district court and the police. See Ornelas v. United States, 517 U.S. 690, 699 (1996).
The fact that the cup contained only a small (or "infinitesimal," Appellant's Br. 8) amount of red liquid at the time of the officers' observations does not, as appellant suggests, demonstrate a lack of probable cause to believe he was violating the prohibition against possessing an open container of alcohol in a vehicle on the road. Appellant was the only person in the car at the time the officers noticed he was driving without having his car lights on. He does not challenge either the characterization of the cup as an open container, see D.C. Code § 25-101(35), or the district court's findings that the police identified the odor of alcohol coming from the car, the cup, and the puddle behind the driver's seat, and saw appellant's shoulders moving while driving the car an additional block. This evidence supports the district court's conclusion that a reasonable officer ...