United States v. Monroe

Court Case Details
Court Case Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-5050


UNITED STATES OF AMERICA,

Plaintiff - Appellee,


v.


MARSHALL MONROE,

Defendant - Appellant.

No. 08-5051


UNITED STATES OF AMERICA,

Plaintiff - Appellee,


v.


JAMES EDWARD TYER, a/k/a James Edward Tyler, a/k/a Tyer
Edward James, a/k/a Jay, a/k/a Tyler Edward James,

Defendant - Appellant.

No. 08-5052


UNITED STATES OF AMERICA,

Plaintiff - Appellee,


v.


CHRISTOPHER ROGERS,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:08-cr-00043-CMH-1; 1:08-cr-00043-CMH-2;
1:08-cr-00043-CMH-3)


Submitted: August 19, 2010

Decided: September 20, 2010


Before MOTZ, SHEDD, and AGEE, Circuit Judges.


Affirmed in part, vacated and remanded in part by unpublished
per curiam opinion.


Paul P. Vangellow, PAUL P. VANGELLOW, PC, Falls Church,
Virginia, Bruce A. Johnson, Jr., Bowie, Maryland, Douglas A.
Steinberg, Alexandria, Virginia, for Appellants. Dana J.
Boente, Acting United States Attorney, Michael E. Rich,
Assistant United States Attorney, Tino M. Lisella, Allison
Ickovic, Special Assistant United States Attorneys, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM:

Marshall Antonio Monroe, James Edward Tyer, and

Christopher Rondell Rogers were charged with numerous offenses

related to a series of robberies that occurred on October 28 and

30, 2007. A jury convicted them of Hobbs Act conspiracy, 18

U.S.C. § 1951 (2006) (Count One), and three Hobbs Act robberies,

18 U.S.C. § 1951 (Counts Two, Three, Four), in connection with

the October 28 robberies. Monroe and Tyer also were convicted

of Hobbs Act robbery in connection with the October 30 robbery

(Count Five), three counts of brandishing a firearm during a

crime of violence, 18 U.S.C.A. § 924(c)(1)(A)(ii) (West Supp.

2010) (Counts Six, Seven, Eight), in connection with the

October 28 robberies, and possession of an unregistered firearm,

26 U.S.C. §§ 5845(a), 5861(d), 5871 (2006) (Count Thirteen).

Monroe was convicted of an additional § 924(c)(1)(A)(ii)

violation (Count Nine) in connection with the October 30

robbery. Tyer was convicted on two counts of being a felon in

possession of a firearm, 18 U.S.C. § 922(g)(1) (2006) (Counts

Eleven, Twelve). Finally, Rogers was convicted of one

§ 922(g)(1) violation (Count Ten).

On motion of the United States, the district court

dismissed Counts Six-Ten. Rogers was sentenced to 240 months in

prison. Tyer and Monroe each received an aggregate sentence of

3

300 months. In these consolidated appeals, the Appellants

challenge their convictions and sentences.

I

Tyer contends that the district court erred when it

denied his motion to suppress evidence seized during the search

of a vehicle in which he was a passenger on October 30, 2007.

We review the factual findings underlying a motion to suppress

for clear error, and the legal determinations de novo. United

States v. Wilson, 484 F.3d 267, 280 (4th Cir. 2007). When

evaluating the denial of a suppression motion, we consider the

evidence in the light most favorable to the Government, the

prevailing party below. United States v. Uzenski, 434 F.3d 690,

704 (4th Cir. 2006).

Brief investigatory stops of persons or vehicles that

fall short of traditional arrest are protected by the Fourth

Amendment. United States v. Arvizu, 534 U.S. 266, 273 (2002).

A stop satisfies the Fourth Amendment if the officer‟s action is

supported by reasonable suspicion to believe that criminal

activity „may be afoot.‟” Id. (quoting United States v.

Sokolow, 490 U.S. 1, 7 (1989)). To determine whether the

necessary reasonable suspicion existed, a court “must look at

the „totality of the circumstances‟ . . . to see whether the

4

detaining officer ha[d] a „particularized and objective basis‟

for suspecting legal wrongdoing.” Id. at 273. “Reasonable

suspicion” that criminal activity is afoot “need not rise to the

level required for probable cause, and it falls considerably

short of satisfying a preponderance of the evidence standard.”

Id.

Here, the totality of the circumstances justified the

traffic stop. The officer who initiated the traffic stop

observed the car immediately after officers investigating the

robbery of a Sunoco station broadcast a description of the

suspects and their vehicle. Although the car was described in

the broadcast as a Taurus, the officer knew that a Taurus and a

Sable are nearly identical. Further, the Sable was traveling

from the direction where the robbery had just occurred.

Finally, the stop occurred within minutes of the robbery. These

circumstances were sufficient to give rise to the requisite

reasonable suspicion justifying the stop of the vehicle.

While Tyer had the right to challenge the traffic

stop, see Brendlin v. California, 551 U.S. 249, 259 (2007), he

had no right under the Fourth Amendment to challenge the ensuing

search of the vehicle because he lacked a legitimate expectation

of privacy with respect to the vehicle that belonged to its

driver, Nadia Childs. See Rakas v. Illinois, 439 U.S. 128, 148-

5

49 (1978); United States v. Rusher, 966 F.2d 868, 874 (4th Cir.

1992). We conclude that the search did not violate Tyer‟s

Fourth Amendment rights and that the denial of the suppression

motion was not an abuse of discretion.

II

The Appellants contend that there was insufficient

evidence to establish their identities as participants in the

October 28 robberies and Monroe‟s and Tyer‟s identities as the

October 30 robbers. They argue that the evidence against them

consisted primarily of the testimony of Childs, which they claim

was unreliable. Further, they attack the credibility of

prosecution witnesses Steven Scott and Delonte Green. They also

maintain that the only forensic evidence linking any of them to

the robberies, Monroe‟s thumb prints found at one crime scene,

should not have been admitted.

When a defendant challenges the sufficiency of the

evidence, we consider whether the evidence, when viewed in the

light most favorable to the Government, was sufficient for a

rational trier of fact to have found the essential elements of

the crime beyond a reasonable doubt. Glasser v. United States,

315 U.S. 60, 80 (1942); United States v. Cameron, 573 F.3d 179,

183 (4th Cir. 2009). We will sustain a verdict supported by

6

substantial evidence. Glasser, 315 U.S. at 80. We do not

review the credibility of witnesses, and we assume the jury

resolved all contradictions in the testimony in favor of the

Government. United States v. Sun, 278 F.3d 302, 312 (4th Cir.

2002).

The evidence was more than sufficient to prove beyond

1

a reasonable doubt that Monroe, Tyer, and Rogers

robbed the

three 7-Eleven stores on October 28, and that Monroe and Tyer

robbed the Sunoco on October 30. Childs‟ testimony alone is

enough to establish identity. She testified that, on the night

of October 27, she drove Rogers to his home. He went inside and

returned with a black bag that contained a gun. They then drove

to Oxon Hill, Maryland, to pick up Tyer. As they drove, Rogers

mentioned “making a move”; Childs understood this turn of phrase

to mean that Rogers was planning a robbery. Monroe was with

Tyer when Childs and Rogers located Tyer. With Rogers driving

and Childs in the passenger seat, the four left for Virginia.

1

Although Rogers did not enter any of the 7-Elevens, he is

nonetheless guilty of Hobbs Act robbery. Whoever aids or abets
the commission of an offense against the United States is
punishable as a principal to the offense. 18 U.S.C. § 2 (2006).
Rogers not only supplied one of the guns used in the robberies,
but he also drove Childs‟ car during the robbery spree on
October 28 and received some of the robbery proceeds.

7

Childs testified that she was with Rogers, Tyer, and

Monroe when the three robberies were committed early in the

morning of October 28. Rogers served as the driver, and Monroe

and Tyer, who were both armed, entered and robbed the three

stores. Childs identified the jackets that Monroe and Tyer wore

during the robberies. Childs stated that she exited the car at

one 7-Eleven and identified a surveillance photograph of herself

at that store.

Childs testified that she was looking for Rogers late

at night on October 29, when she ran into Tyer. He joined her,

as did Monroe, Steven Scott, and Delonte Green. Tyer asked

Childs, who was driving, if she wanted to “make a move.” When

they approached the Sunoco early on October 30, Tyer told Childs

to turn in and park behind the building. Tyer and Monroe

entered the store. They were wearing the same jackets they had

worn on October 28. When they returned to the car, Childs drove

away. The car soon was stopped by the police.

The convictions could be sustained on Childs‟

testimony alone. Her testimony is supported by other evidence,

including

a

similar

modus

operandi

in

each

robbery.

Additionally, the robbers who entered the stores wore the same

jackets during the four robberies, and Monroe and Tyer were

found in possession of those jackets when they were arrested.

8

Additionally, Scott and Green testified that Monroe and Tyer

committed the Sunoco robbery. Finally, Monroe‟s thumb prints

were found on the cash register drawer grabbed by a robber

during the second robbery. Contrary to Appellants‟ argument,

fingerprint evidence is admissible at trial. United States v.

Crisp, 324 F.3d 261 (4th Cir. 2003). Even if this evidence were

not properly admitted, however, the error would be harmless,

given the remaining evidence, which overwhelmingly established

identity.

III

Tyer contends that the district court improperly

prevented his attorney from thoroughly cross-examining witnesses

Scott and Green. Their testimony, Tyer argues, was crucial to

the Government‟s case. Through cross-examination, Tyer claims

that he would have established that both Scott and Green were

biased and motivated to offer testimony favorable to the

Government.

“[E]xposure of a witness‟ motivation in testifying is

a proper and important function of the constitutionally

protected right of cross-examination.” Delaware v. Van Arsdall,

475 U.S. 673, 678-79 (1986) (internal quotation marks omitted).

However, the district court has “wide latitude insofar as the

9

Confrontation Clause is concerned to impose reasonable limits on

such cross-examination based on concerns about, among other

things, harassment, prejudice, confusion of the issues, the

witness‟ safety, or interrogation that is repetitive or only

marginally relevant.” Id. at 679. We review the district

court‟s

limitations

on

cross-examination

for

abuse

of

discretion. United States v. Ayala, 601 F.3d 256, 273 (4th Cir.

2010). “The critical question . . . is whether the defendant is

allowed an opportunity to examine a witness[‟] subjective

understanding of his bargain with the government, for it is this

understanding which is of probative value on the issue of bias.”

United States v. Ambers, 86 F.3d 173, 176 (4th Cir. 1996).

During cross-examination of Scott, Tyer‟s attorney

asked several questions that attacked Scott‟s credibility and

suggested bias. After Scott had denied having an “understanding

with the federal government as to what benefits” he might

receive for his testimony, counsel inquired whether the

Government had promised him anything in exchange for his

testimony. The court sustained the Government‟s objection to

this question. Tyer maintains that the court‟s ruling precluded

his attorney from thoroughly cross-examining Scott as to

possible bias and motive to fabricate. We find his argument

unpersuasive and conclude that the district court did not abuse

10

its discretion in sustaining the objection because the question

about promises from the Government was repetitive of the

preceding question.

Nor did the district court err in barring any

questions about Green‟s juvenile convictions and permitting only

questions about his adult offenses. First, the district court‟s

ruling was in accordance with Rule 609(d) of the Federal Rules

of Evidence. To the extent that Tyer contends that limiting his

cross-examination of Green violated his rights under the

Confrontation Clause, his claim has no merit. See United States

v. Ayala, 601 F.2d at 273.

IV

Tyer argues that the district court erred when it

failed to grant his motions for a new trial or a mistrial after

the prosecutor allegedly argued facts not in evidence during

closing argument. We review a claim of prosecutorial misconduct

to determine “‛whether the [misconduct] so infected the trial

with unfairness as to make the resulting conviction a denial of

due process.‟” United States v. Caro, 597 F.3d 608, 624 (4th

Cir. 2010) (quoting Darden v. Wainwright, 477 U.S. 168, 181

(1986)). To prevail under this standard, the defendant must

show that “the prosecutor‟s remarks or conduct were improper

11

and, second . . . that such remarks or conduct prejudicially

affected his substantial rights so as to deprive him of a fair

trial.” United States v. Scheetz, 293 F.3d 175, 185 (4th Cir.

2002).

We conclude that any misstatement by the prosecutor

did not constitute a denial of due process. The evidence of

guilt was overwhelming. Further, the remarks at issue were

isolated and not intentionally placed before the jury in bad

faith with an intent “to divert the jury‟s attention to

extraneous matters.” United States v. Wilson, 135 F.3d 291, 299

(4th Cir. 1998).

V

Rogers‟ advisory Guidelines range for the robbery

2

counts was 97-121 months,

Monroe‟s was 63-78 months, and Tyer‟s

was 78-97 months. Rogers was sentenced to 240 months in prison.

2

The district court did not explicitly rule on those

objections. However, based on the court‟s finding that Rogers‟
advisory Guidelines range was 97-121 months, it appears that the
court implicitly agreed that Rogers should have been in criminal
history category II. It also appears that the court overruled
Rogers‟ objections to the enhancements to his offense level. On
remand, the district court should explain its calculation of
Rogers‟ Guidelines range.

12

Tyer and Monroe each received 240 months for the robbery counts

and a consecutive sixty-month sentence for the firearm offenses.

The Appellants argue that their sentences are

unreasonable under Gall v. United States, 552 U.S. 38, 51

(2007), because they did not receive the required individualized

assessments that Gall demands, the district court did not

properly analyze the 18 U.S.C. § 3553(a) (2006) sentencing

factors,

and

meaningful

appellate

review

is

therefore

impossible. We agree and therefore vacate the sentences and

remand for resentencing.

We review a sentence for reasonableness, applying an

abuse-of-discretion standard. Gall, 552 U.S. at 51. In

conducting our review, we first examine the sentence for

“significant procedural error,” including “failing to calculate

(or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a)

factors, selecting a sentence based on clearly erroneous facts,

or failing to adequately explain the chosen sentence—including

an explanation for any deviation from the Guidelines range.”

Id. With respect to the explanation of the sentence, we have

stated, “Regardless of whether the district court imposes an

above, below, or within-Guidelines sentence, it must place on

the record an individualized assessment based on the particular

13

facts of the case before it.” United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009) (internal quotation marks omitted).

A claim of procedural sentencing error is preserved

“`by informing the court—when the court ruling is made or

sought—of the action the party wishes the court to take, or the

party‟s objection to the court‟s action and the grounds for that

objection.‟” United States v. Lynn, 592 F.3d 572, 577-78 (4th

Cir. 2010) (quoting Fed. R. Crim. P. 51(b)). The standard of

review employed when assessing the procedural adequacy of a

sentence depends upon whether the error asserted was properly

preserved in the district court. “[I]f a party repeats on

appeal a claim of procedural sentencing error . . . which it has

made before the district court, we review for abuse of

discretion. If we find such abuse, we reverse unless we

conclude that the error was harmless.” Id. The Government

bears the burden of establishing that an error was harmless,

i.e., that the error did not affect the defendant‟s substantial

rights. United States v. Rodriguez, 433 F.3d 411, 415-16 (4th

Cir. 2006). An error affects a defendant‟s substantial rights

if the sentence imposed “was longer than that to which he would

otherwise be subject,” United States v. Angle, 254 F.3d 514, 518

(4th Cir. 2001); cf. Lynn, 592 F.3d at 580.

14

If we conclude that the sentence is procedurally

reasonable, we then “consider the substantive reasonableness of

the sentence imposed under an abuse-of-discretion standard.”

Gall, 552 U.S. at 51. At this stage, we “take into account the

totality of the circumstances.” Id.

Prior to sentencing, Monroe submitted a “Position on

Sentencing.” With respect to the § 3553(a) factors, Monroe

observed that the robbers used unloaded weapons and no victim

sustained a serious injury. Rogers submitted a sentencing

memorandum objecting to enhancements under U.S. Sentencing

Guidelines Manual §§ 2B3.1(b)(2)(B), § 2B3.1(b)(A) (2007) on the

ground that the enhancements were based on acquitted conduct,

the jury having found him not guilty on Counts Six-Eight. With

respect to the § 3553(a) factors, Rogers argued that he was

young, had worked for the majority of his young life, and was a

responsible family member. Rogers asked for a sentence at the

bottom of his advisory Guidelines range, which he claimed should

be 41-51 months.

The Defendants were sentenced at the same proceeding.

Rogers objected to the above enhancements and to his placement

in criminal history category III. Although Tyer had no

objections to his PSR, his attorney asked that he be sentenced

at the bottom of his Guidelines range, “tak[ing] into account

15

that he‟s a young man . . . and even a sentence at the bottom of

the guidelines will [be] a significant period of incarceration.”

Monroe‟s attorney referred to the position statement and

reminded the court that the weapons were unloaded and that

little money was stolen. He also described Monroe‟s “almost

catastrophic upbringing,” and noted that Monroe was young and

“relatively new to the criminal justice system.” Counsel asked

for a sentence at the low end of Monroe‟s Guidelines range.

The district court determined that Rogers‟ advisory

3

Guidelines range was “properly assessed at 97-121 months.”

The

court then stated:

I also find that the guidelines in this case are too
low to meet the needs of punishment and deterrence for
the conduct that has occurred here.

I‟ve spent some . . . time going through the
guidelines and going upward in various steps, as I‟m

3

According to his PSR, Rogers‟ advisory Guidelines range

was 108-135 months, representing a total offense level of 29 and
a criminal history category of III. The district court did not
explicitly rule on Rogers‟ objections to his PSR. However,
based on the ruling that his advisory Guidelines range was 97-
121 months, it appears that the court implicitly sustained
Rogers‟ objection to his placement in criminal history category
III, agreeing that he should be in category II, and overruled
his objections to the offense level enhancements. A criminal
history category of II and offense level of 29 yields an
advisory Guidelines range of 97-121 months. On remand, the
court should explain its calculation of Rogers‟ Guidelines
range.

16

supposed to do, to find a range in those guidelines
that would properly address this conduct. There were
four robberies over two nights, the use of firearms,
the use of a sawed-off shotgun, one victim was
injured. It‟s just fortunate that all of them weren‟t
injured or someone killed.

I find that the maximum sentence in this case is the
least sentence that meets the needs of punishment and
deterrence. For that reason, Mr. Rogers, it will be
the sentence of the Court that as to Counts 1, 2, 3,
and 4, you be committed to . . . a term of 240 months.
. . .

The court next sentenced Tyer. The court stated:

Well, what I previously said applies to your case as
well, Mr. Tyer. I believe that the maximum sentence
for these robberies is the least sentence that meets
the needs of punishment and deterrence in this case.

As to Counts 1, 2, 3, 4, and 5, it will be the
sentence of the Court that you . . . serve a term of
240 months. . . . As to Counts 11 [through] 13, it
will be the sentence of the Court that you . . . serve
a term of 60 months.

The court then sentenced Monroe:

[F]or the reasons that I‟ve already stated, Mr.
Monroe, as to Counts 1, 2, 3, 4, and 5, it will be the
sentence of the Court that you . . . serve a term of
240 months. . . . As to Count 13, it will be the
sentence of the Court that you . . . serve a term of
60 months.

The Appellants complain that their sentences are

unreasonable under Gall. Rogers also contends, as he did below,

that his advisory Guidelines range was improperly calculated

because his offense level was enhanced based on acquitted

conduct.

17

By asking for sentences at the low end of their

respective advisory Guidelines ranges, Monroe and Tyer preserved

their claims of procedural Gall error. See United States v.

Lynn, 592 F.3d at 577, 581. The district court effectively

engaged in no individualized assessment but instead simply

incorporated the rationale used in sentencing Rogers into his

rationales for sentencing Tyer and Monroe. Nor did the court

address the arguments in support of the contention that certain

§ 3553(a) factors warranted the requested sentences. This

constitutes error. See United States v. Carter, 564 F.3d at

328. Further, the error affected Monroe‟s and Tyer‟s

substantial rights because their variant, 240-month sentences on

the robbery counts were significantly higher than their

respective advisory Guidelines ranges of 63-78 months and 78-97

months.

Rogers initially contends that the district court

improperly overruled his objections to the enhancements based on

acquitted conduct. The claim is without merit. We recently

observed that such an “argument is nullified by clear Supreme

Court and Fourth Circuit precedent holding that a sentencing

court

may

consider

uncharged

and

acquitted

conduct

in

determining a sentence, as long as that conduct is proven by a

preponderance of the evidence.” United States v. Grubbs, 585

18

F.3d 793, 799 (4th Cir. 2009), cert. denied, S. Ct. ___

(2010) (No. 09-9104). This rule applies even after United

States v. Booker, 543 U.S. 220 (2005). Id. Here, a

preponderance of the evidence established that Rogers supplied

one of the guns used during the commission of the three October

28 robberies. Therefore, the sentencing enhancements at issue

were proper.

Rogers‟ request for a sentence at the low end of his

advisory Guidelines range preserved his claim of procedural Gall

error. See United States v. Lynn, 592 F.3d at 581. While the

district court gave a more extensive explanation for imposing a

variant sentence on Rogers than it did for Monroe and Tyer, we

conclude that the court nonetheless committed procedural error

by failing to make the required individualized assessment. The

rationale offered for Rogers‟ sentence describes the crime spree

as a whole, rather than Rogers‟ particular role within the

spree. In fact, the district court‟s words better describe

Monroe‟s and Tyer‟s actions than those of Rogers, who remained

in the getaway car during the three October 28 robberies and was

not with Childs and the others on October 30. For instance, in

sentencing Rogers, the court mentioned four robberies, even

though Rogers was only involved in the three October 28

robberies. Further, the court spoke of injuries to the victims,

19

but Rogers, who did not exit Childs‟ car, was not the person who

struck the clerks. Another factor influencing our conclusion

that there was an insufficient individualized assessment is the

failure of the court to address Rogers‟ argument that, in light

of certain § 3553(a) factors, he should be sentenced at the low

end of his Guidelines range. See Rita v. United States, 551

U.S. 338, 356 (2007).

Having found that the district court committed error,

our next task is to determine whether the error was harmless.

Considering that Rogers received a variant sentence that

exceeded the top of his Guidelines range by 119 months, we

conclude that the error was not harmless: it affected Rogers‟

substantial rights because he was sentenced well above his

advisory Guidelines range.

VI

We therefore affirm the convictions but vacate the

4

sentences and remand for resentencing.

We dispense with oral

argument because the facts and legal contentions are adequately

4

We recognize that the Appellants were sentenced prior to

our decisions in Lynn and Carter and that the court therefore
did not have the benefit of those decisions to guide it at
sentencing.

20

presented in the materials before the court and argument would

not aid the decisional process.

AFFIRMED IN PART;

VACATED AND REMANDED IN PART

21

Referenced Cases

  1. Delaware v. Van Arsdall
  2. Darden v. Wainwright
  3. Brendlin v. California
  4. United States v. Sokolow
  5. Gall v. United States
  6. Rita v. United States
  7. Glasser v. United States
  8. United States v. Arvizu
  9. United States v. Efrain Rodriguez
  10. United States v. Gregory Lamont Wilson v. Edwin Lloyd Murray v. Derrick Lenwood Powell
  11. United States v. Norman Harrington Wilson v. William David Wilson
  12. United States v. Corey Angle v. James Edward Phifer v. James Edward Phifer
  13. United States v. Thomas Edward Uzenski
  14. United States v. Cameron
  15. United States v. Bing Sun Patte Sun All Ports
  16. United States v. Patrick Leroy Crisp
  17. United States v. Lynn
  18. United States v. Timothy Sean Scheetz v. Thomas Walker Labuwi
  19. United States v. David Lee Rusher v. Sarah Jean Shoemaker Rusher
  20. United States v. Caro
  21. United States v. Ayala
  22. United States v. Carter