                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 11-4960


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

DEMARCO PEGUES,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00082-RJC-1)


Submitted:   July 25, 2012                   Decided:   August 16, 2012


Before DIAZ and      FLOYD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished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


Henderson Hill, Executive Director, Ross Hall Richardson,
Assistant Federal Defender, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne
M. Tompkins, United States Attorney, Melissa L. Rikard,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Following a jury trial in the United States District

Court for the Western District of North Carolina, Demarco Pegues

was convicted of possession of a firearm by a convicted felon,

18 U.S.C. § 922(g)(1).             He appeals his conviction and sentence.

We affirm his conviction, but vacate his sentence and remand for

resentencing.

              First, Pegues challenges the district court’s denial

of    his   motion       to    suppress    firearms       that     flew          out    of     his

waistband during his flight from a traffic stop of a car in

which    he       was   a     passenger.      The    traffic       stop          occurred       in

Charlotte, North Carolina in the early morning hours of January

24, 2009.         We review the legal conclusions of a district court’s

denial of a motion to suppress de novo and the findings of fact

for   clear       error,      construing   the    evidence        in       the    light       most

favorable to the government, the prevailing party below.                                 United

States v. Foster, 634 F.3d 243, 246 (4th Cir. 2011).

              A temporary detention of an automobile, even if only

for a limited time or purpose, constitutes a Fourth Amendment

seizure.          Whren v. United States, 517 U.S. 806, 809–10 (1996).

Because       a    routine      “traffic   stop      is   .   .        .    more       like    an

investigative           detention      than      a    custodial             arrest,”           its

limitations must be evaluated under the dual inquiry set out in

Terry v. Ohio, 392 U.S. 1 (1968).                     United States v. Guijon–

                                            2
Ortiz, 660 F.3d 757, 764 (4th Cir. 2011) (internal quotation

marks omitted).         Under this analysis, we determine whether the

stop “was justified at its inception” and “whether the continued

stop was sufficiently limited in scope and duration to satisfy

the   conditions       of   an   investigative             seizure.”        Id.     (internal

quotation marks omitted).

            Regarding the first Terry inquiry, if an officer has

probable cause or reasonable suspicion to believe a suspect has

violated    a    traffic     law,   the    officer’s           decision      to     stop   the

suspect’s       car    is    reasonable            under     the     Fourth       Amendment,

regardless of the officer’s subjective motivation for the stop.

United States v. Hassan El, 5 F.3d 726, 730 (4th Cir. 1993).                                 In

evaluating       the   second    inquiry,          we   must     consider       whether    the

officer     “‘diligently         pursue[d]           the     investigation           of    the

justification for the stop.’”                      Guijon–Ortiz, 660 F.3d at 768

(quoting United States v. Digiovanni, 650 F.3d 498, 509 (4th

Cir. 2011)).

            A lawful routine traffic stop justifies detaining the

car’s occupants for the time necessary to request a driver’s

license    and    registration,      run       a    computer       check,     and    issue   a

citation.        Digiovanni, 650 F.3d at 507.                      The officer also is

permitted to request passenger identification or inquire into

unrelated    matters,       as   long     as       doing    so     does   not     measurably

prolong the length of the traffic stop.                        Guijon–Ortiz, 660 F.3d

                                           3
at 765.        However, the officer may not “‘definitively abandon[]

the   prosecution       of       the    traffic           stop    and    embark[]      on    another

sustained        course          of         investigation’”              absent        additional

justification.          Id. at 766 (quoting United States v. Everett,

601 F.3d 484, 495 (6th Cir. 2010)).                          In other words, if a police

officer        seeks    to       prolong          a       traffic       stop     to    allow       for

investigation into a matter outside the scope of the initial

stop,     he     must       possess         reasonable           suspicion       of    additional

criminal activity.            Digiovanni, 650 F.3d at 507.

               While    there          is    no       “precise         articulation         of     what

constitutes reasonable suspicion,” United States v. Branch, 537

F.3d 328, 336 (4th Cir. 2008) (citation and internal quotation

marks   omitted),           “a    police       officer           must    offer    specific         and

articulable facts that demonstrate at least a minimal level of

objective justification for the belief that criminal activity is

afoot.”         Id.    at    337      (citation           and    internal      quotation         marks

omitted).        Officers may use their “training and expertise” to

identify        sets    of       factors          which          are    “individually            quite

consistent with innocent travel” yet “taken together, produce a

reasonable       suspicion         of       criminal        activity.”           Id.   at        336–37

(citation and internal quotation marks omitted).

               Pegues does not challenge the initial stop of the car.

Rather, he challenges the scope and duration of the continued

stop.     After reviewing the video evidence, the testimony at the

                                                      4
suppression      hearing,        and    the     district      court’s     findings,     we

conclude that the stop was limited in scope and duration.                            After

the initial stop of the car driven by Randall Cummings, Officer

Cristo     Fitzpatrick           of      the        Charlotte-Mecklenburg            Police

Department obtained Cummings’ driver’s license and registration

and immediately proceeded to run his information through the

routine law enforcement databases.                     Meanwhile, Officer Timothy

Kiefer    approached       the    car    to     obtain    identification       from    the

passengers.        At     this     point,       Officer    Kiefer’s       efforts     were

stymied    by    the      actions       of    William     Spann    (the      front    seat

passenger) and Pegues (the back seat passenger).                          They did not

have identification with them, the window was rolled down only a

couple    of    inches,    and    Spann       and    Pegues   spoke     softly,      making

communication      extremely           difficult.         During      this    encounter,

Officer Kiefer observed Pegues attempting to hide something in

the back seat and also observed a beer can, although he could

not determine whether the can had been opened.                        He also observed

Spann keeping his hands “very tight to his person, very close in

on his clothing.”          (J.A. 77).          Under these circumstances, it was

permissible for Officer Kiefer to continue the stop for a short

time to investigate whether criminal activity was afoot.                               Cf.

Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (noting that the

determination of reasonable suspicion must be based on common

sense judgments and inferences about human behavior).

                                               5
               After   conferring     with     Officer    Fitzpatrick,        Officer

Kiefer asked Spann to step to the back of the car, and he asked

for consent to pat him down for weapons.                   Spann agreed to the

pat-down, but when Officer Kiefer stepped toward him to pat him

down, Spann immediately backed up.                 Spann began to act “jumpy”

and put his hands in the pockets of his hooded sweatshirt, which

led the officers to think he had weapons or drugs in his pocket.

(J.A. 43).        Officer Kiefer told Spann that he was making him

nervous and again asked for his consent to pat him down, and

Spann    again    consented.         But   Spann      stepped   back   every     time

Officer Kiefer stepped toward him.                 So the officers, concerned

for    their    safety   at   this    point,     attempted      to   detain   Spann.

Spann was not cooperative and resisted the officers’ attempts to

handcuff him, causing the officers to have to wrestle him to the

ground.        Meanwhile, Pegues, who had remained in the back seat

during    the    officers’    encounter        with   Spann,    climbed   over    the

front seat, exited through the open front passenger door, and

took off running.         Officer Kiefer took off after him.                   During

the chase, Pegues fell and two loaded firearms flew out of his

waistband, eventually resting on the ground in front of where he

was lying.       Officer Kiefer then jumped on Pegues’ back to secure

him.

               Unquestionably, Pegues’ actions constituted resisting,

delaying, or obstructing an officer under N.C. Gen. Stat. § 14-

                                           6
223; see also State v. McNeill, 283 S.E.2d 565, 567 (N.C. App.

1981) (flight from a lawful investigatory stop provides probable

cause    to   arrest     individual   for    violation    of       N.C.   Gen.    Stat.

§ 14-223).      Accordingly, Officer Kiefer was permitted to seize

Pegues after he fled the scene.               Because the seizure of Pegues

and the firearms was proper, the district court appropriately

denied Pegues’ motion to suppress the firearms.

              Next, Pegues challenges the district court’s admission

of certain evidence, namely, that a firearm and a quantity of

marijuana was recovered from Spann after he was wrestled to the

ground.       We review the district court’s evidentiary ruling for

an abuse of discretion.         United States v. Delfino, 510 F.3d 468,

470 (4th Cir. 2007)

              Evidence    of   uncharged      conduct    is    not    other      crimes

evidence subject to Rule 404(b) if the uncharged conduct arose

out of the same series of transactions as the charged offense,

or if evidence of the uncharged conduct is necessary to complete

the story of the crime on trial.               United States v. Basham, 561

F.3d 302, 327 (4th Cir. 2009);                United States v. Siegel, 536

F.3d 306, 316 (4th Cir. 2008).                 Rule 404(b) limits only the

admission of evidence of acts extrinsic to the one charged, but

does    not   limit    the   admission   of    evidence       of   intrinsic      acts.

United States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996).                      Evidence

is “intrinsic” if it provides “context relevant to the criminal

                                         7
charges.”        United States v. Cooper, 482 F.3d 658, 663 (4th Cir.

2007).      In other words, other acts are intrinsic when they are

“inextricably         intertwined          or    both       acts     are     part    of    a   single

criminal episode or the other acts were necessary preliminaries

to    the   crime      charged.”           Chin,       83     F.3d     at    88     (citation        and

internal quotation marks omitted).

              In this case, the evidence recovered from Spann was

not    admitted       to    show    that        Pegues      had    a     criminal     disposition

and/or      would     act     in    conformity         therewith.             Instead,         it   was

relevant to explain why the officers acted in the manner they

did and to explain why Pegues fled from the car.                                          Cf. United

States      v.    Wright,          392   F.3d         1269,       1276      (11th     Cir.        2004)

(concluding that evidence of defendant’s resistance to arrest

and battery on a law enforcement officer before the discovery of

the firearm giving rise to his felon-in-possession charge gave

“the jury the body of the story, not just the ending”).                                        Without

this    testimony,          the     jury    would        be    left         wondering       why     the

officers restrained Spann and why Pegues fled from the car.                                         Cf.

Old Chief v. United States, 519 U.S. 172, 188 (1997) (holding

that the government is entitled to present a complete narrative

of the crime that “satisf[ies] the jurors’ expectations about

what    proper        proof       should    be”);        see       also      United       States     v.

Edouard,      485     F.3d     1324,       1344    (11th       Cir.        2007)    (noting         that

“evidence        is        inextricably          intertwined             with       the     evidence

                                                  8
regarding   the    charged      offense        if   it   forms    an   integral   and

natural   part    of    the    witness’s       accounts    of    the   circumstances

surrounding the offenses for which the defendant was indicted)

(citation and internal quotation marks omitted).                        Furthermore,

the   potential        for    unfair   prejudice         did     not   substantially

outweigh the probative value of the evidence under Rule 403.

Accordingly, the district court did not abuse its discretion in

admitting this evidence. *

            Finally, Pegues contends that the district court erred

when it ordered him to reimburse the government for the services




      *
       The improper admission of evidence is subject to harmless
error review.   See Fed. R. Crim. P. 52(a) (“Any error, defect,
irregularity, or variance that does not affect substantial
rights must be disregarded.”); Fed. R. Evid. 103(a) (noting
evidentiary errors support reversal only if they affect
“substantial right”). Erroneously admitted evidence is harmless
if a reviewing court is able to “say, with fair assurance, after
pondering all that happened without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error.” Kotteakos v. United States, 328 U.S. 750,
765 (1946); United States v. Abu Ali, 528 F.3d 210, 231 (4th
Cir. 2008).      Even assuming the district court erred in
permitting the admission of the challenged evidence, we conclude
that the error is harmless.      The challenged evidence played
little role in the outcome of the trial, as the challenged
evidence simply provided background to the events leading up to
the seizure of Pegues and the seizure of the firearms found on
the ground in front of where he was lying.     The main issue at
trial was whether Pegues possessed these firearms, as he
essentially conceded his felony status and interstate nexus.
Unfortunately for Pegues, the evidence that he possessed the
firearms was overwhelming, rendering any error harmless.



                                           9
of    his    court-appointed        attorney.            On    this       contention,     the

government concedes error.

              In    United    States      v.    Moore,       666    F.3d    313   (4th   Cir.

2012), we noted that under the Criminal Justice Act, 18 U.S.C. §

3006A, the government must provide adequate legal representation

to criminal defendants charged with a federal felony who are

unable to pay, but if the district court subsequently finds that

the defendant “‘is financially able to obtain counsel or to make

partial       payment        for    the        representation,’”             repayment     is

authorized         under   subsection       (f).         Moore,       666    F.3d   at    321

(quoting 18 U.S.C. § 3006A(c)).                       Subsection (f) authorizes a

district court to order repayment of attorneys’ fees “[w]henever

. . . the court finds that funds are available for payment from

or on behalf of a person furnished representation.” 18 U.S.C.

§ 3006A(f).

              In    Moore,     we   held       that    to     order       reimbursement    of

attorneys’ fees, the district court must “find[] that there are

specific funds, assets, or asset streams (or the fixed right to

those funds, assets or asset streams) that are (1) identified by

the court and (2) available to the defendant for the repayment

of the court-appointed attorneys’ fees.”                           666 F.3d at 322.       We

noted       that    the    district    court          made    no     findings     that    the

defendant was “financially able . . . to make partial payment

for   the     representation”         or    that       funds       were    “available     for

                                               10
payment.”      Id. at 323 (internal quotation marks omitted).                                We

also noted that, in the absence of such findings, the district

court simultaneously concluded that the defendant was unable to

pay a fine or interest.             Id.    Finding that the district court’s

reimbursement order conflicted with the statutory requirements,

we   vacated    that     portion      of       the     judgment      and       remanded     for

resentencing.     Id. at 324.

            Similarly, the district court here made no findings

regarding      Pegues’      ability       to        reimburse      the       government     for

attorneys’     fees    or    the    availability            of   such    funds.        To   the

contrary, the district court concluded that Pegues was unable to

pay a fine or interest.              Because Pegues’ reimbursement order is

of the same type we rejected in Moore, we vacate that portion of

the district court’s judgment and remand for resentencing.

            We dispense with oral argument because the facts and

legal    contentions        are    adequately         presented         in    the    materials

before   the    court    and       argument         would    not   aid       the    decisional

process.

                                                                         AFFIRMED IN PART,
                                                                          VACATED IN PART,
                                                                              AND REMANDED




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