                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-14-2007

USA v. Roberts
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2949




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       No. 06-2949

                           UNITED STATES OF AMERICA,
                                   APPELLEE,

                                            v.

                                   FRED ROBERTS,
                                     APPELLANT

                    On Appeal from the United States District Court
                       For the Eastern District of Pennsylvania
                                    (04-cr-00654)
                      District Judge: Honorable Petrese Tucker

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 24, 2007

                 Before: McKEE, BARRY and FISHER, Circuit Judges


                                  _________________

                                        OPINION

                                  _________________



MCKEE, Circuit Judge

       Fred Roberts appeals the sentence that was imposed following his conditional

guilty plea to three counts of an indictment charging him with illegal possession of a

firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), possession of crack
cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and

possession of marijuana in violation of 21 U.S.C. § 844(a). He argues that the district

court erred in denying his motion to suppress and that the sentence that was subsequently

imposed was unreasonable. For the reasons that follow, we will affirm.

       Inasmuch as we write primarily for the parties who are familiar with this case, we

need not set forth the procedural or factual background except insofar as may be helpful

to our brief discussion. At the outset, we note that, although counsel for Roberts, Mr.

Giovanni Campbell, does not mention it in his brief, Roberts agreed to waive his

appellate rights as part of his plea arrangement with the government. Pursuant to the

terms of that agreement, absent certain circumstances not at issue here, Roberts agreed

not to appeal his sentence.1

                                              I.

       We review the district court’s factual findings pertaining to the motion to suppress

for clear error, but our review of the application of legal principles to those facts is



       1
          Although we realize that Roberts’ constitutional challenge to the distinction
between powder and crack cocaine is not precluded by the appellate waiver, we have
already upheld the 100/1 ratio against constitutional challenge, See United States v.
Frazier, 981 F.2d 92, 95-96 (3d Cir. 1992), and Roberts’ challenge to the
reasonableness of the sentence is foreclosed by ¶ 9b(3) of the plea agreement because the
district court did not impose an upward departure or variance from the applicable
Guideline range. See Supp. App. 5-6. Moreover, regardless of whether review of the
issues before us is precluded by the appellate waiver, considerations of candor and
professionalism should have counseled Mr. Campbell to at least note the waiver in his
brief.

                                               2
plenary. United States v. Perez, 280 F.3d. 318, 336 (3d Cir. 2002).

       Roberts’ challenge to the April 13, 2004, search is clearly without merit. The car

he was riding in had tinted windows, and the police thought that violated the

Pennsylvania Vehicle Code. See 75 Pa. C.S.A. § 4524 (e)(1). Having properly stopped

the car for that traffic offense, considerations of safety allowed the officers to order all of

the occupants to get out. United States v. Bonner, 363 F.3d 213, 216 (3d Cir. 2004).

When ordered out of the car, Roberts became belligerent and started cursing at the

officers. When he finally did get out of the car, he reached for his right jacket pocket.

Accordingly, police could take reasonable steps to prevent him from retrieving any

weapon he may have been carrying. See Terry v. Ohio, 392 U.S. 1, 21 (1968). Pursuant

to Terry, the officers were also entitled to conduct a pat-down search, and that search

revealed the gun. The district court’s findings are supported by the record, and the court

did not err in applying the law to those findings. Accordingly, the court properly denied

Roberts’ motion to suppress the evidence that was seized during that stop.

       Although the testimony surrounding the seizure on May 1, 2004, is not as clear,

the court’s denial of Roberts’ motion to suppress that evidence was also proper. As

police approached a car that was blocking the highway, they recognized Roberts, who

was inside of the car. They knew that a warrant had been issued for his arrest because




                                               3
they were at the preliminary hearing when he failed to appear.2 Since the officers

believed that there was an outstanding arrest warrant, and since they knew he may be

armed because of their prior encounter with him, the officers were again entitled to order

him to get out of the car and then “pat him down” for their own safety. See Bonner,

supra. Although there is some dispute about exactly what happened, the record supports

the district court’s conclusion that Roberts dropped a package of marijuana while getting

out of the car. Since the drugs were dropped to the ground, they were abandoned and

could be seized by the officers.

       Roberts argues that the marijuana was improperly seized from his pocket and that

the police therefore improperly escalated the scope of the Terry stop by reaching into his

pocket and seizing the drugs. However, even assuming arguendo that is what occurred,

the seizure would still be proper. The police could have arrested Roberts based upon

their reasonable belief that there was an outstanding warrant for his arrest. That would

have allowed them to search the area within his immediate reach pursuant to that arrest.

Accordingly, a search incident to arrest would have allowed them to conduct a more

thorough search to make sure that he was not armed. See Chimel v. California, 395 U.S.

752 (1969). It is inconceivable that police would not have found the marijuana during



       2
         Although Roberts apparently did arrive after the officers left and was given a
new hearing date, the officers did not know that and that fact therefore does not
undermine their probable cause to believe that there was an outstanding warrant for his
arrest when they approached him on May 1.

                                            4
the course of such a search. Accordingly, the district court did not err in rejecting

Roberts’ attempt to suppress the evidence obtained on May 1, 2004.

                                             II.

       Roberts’ attempt to challenge the reasonableness of his sentence merits little

discussion. As noted above, we have already rejected his constitutional challenge to the

distinction between powder cocaine and crack in the Guidelines. His attempt to

challenge the reasonableness of a sentence that was not the result of any variance or

departure falls squarely within the scope of the appellate waiver which Mr. Campbell

neglected to inform us of. Roberts does not challenge the validity of his guilty plea, and

we can therefore dismiss his attempt to argue that his sentence was unreasonable without

discussion. See United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007) ("[W]e [do]

not exercise [our] jurisdiction. . . if we conclude that [a defendant] knowingly and

voluntarily waived [his/her] right to appeal unless the result would work a miscarriage of

justice.”).

                                            III.

       For the reasons set forth above, we will affirm the judgment of sentence entered

on May 31, 2006.




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