                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 11a0814n.06

                                             No. 10-5439

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                            FILED
                                                                                       Dec 06, 2011
UNITED STATES OF AMERICA,                                   )
                                                                                 LEONARD GREEN, Clerk
                                                            )
        Plaintiff-Appellee,                                 )
                                                            )        ON APPEAL FROM THE
                v.                                          )        UNITED STATES DISTRICT
                                                            )        COURT FOR THE WESTERN
JOHNNY LANDON, aka Mark Landon,                             )        DISTRICT OF TENNESSEE
                                                            )
        Defendant-Appellant.                                )
                                                            )


BEFORE: MARTIN, GUY, and GRIFFIN, Circuit Judges.

        GRIFFIN, Circuit Judge.

        Defendant Johnny Landon appeals his conviction and sentence for being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1). We affirm.

                                                   I.

        The events giving rise to this case began when Memphis Police Department officers stopped

Landon for driving a car with Mississippi tags that were registered to another vehicle. After the

officers signaled for Landon to pull over, he illegally parked his vehicle on private property, partially

blocking the sidewalk.

        During the course of the stop, officers learned that Landon’s license had been suspended and

that he did not have automobile insurance. Because Landon was unable to legally move his vehicle,

the officers placed him under arrest rather than issuing a misdemeanor citation.
No. 10-5439
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            After Landon was taken into custody, but before the arrival of the tow truck, the police

performed an inventory search of Landon’s vehicle. During the search, officers recovered a .30-06

caliber rifle from the back seat floorboard and six live .30-06 caliber rounds from the glove

compartment.

            Upon discovery of the rifle and ammunition, Landon made a spontaneous admission to the

officers that he had inherited the rifle and owned twelve others. He made a similar admission later

during the arrest after he had signed a waiver of rights form.

            Landon was charged with being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1). He moved to suppress the rifle and his statements on the ground that the officers failed

to follow the Memphis Police Department’s tow inventory policy and therefore violated his Fourth

Amendment rights. The district court denied the motion, and Landon was subsequently found guilty

at trial.

            The probation department thereafter prepared a presentence investigation report (“PSR”).

The PSR recommended that Landon be classified as an Armed Career Criminal (“ACC”) under 18

U.S.C. § 924(e) and U.S.S.G. § 4B1.4 because he had the following prior felony convictions: (1)

a 1990 conviction for Sale of a Controlled Substance; (2) a 1993 conviction for Aggravated Robbery;

and (3) a 1993 conviction for Aggravated Arson.

            Landon objected to the ACC designation, arguing that his 1990 conviction for the Sale of a

Controlled Substance did not qualify as a “serious drug offense” as defined by 18 U.S.C. §

924(e)(2)(A)(ii). The district court disagreed. It then sentenced Landon to the minimum term of


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imprisonment of 180 months, to be followed by five years of supervised release.

       Landon timely appeals.

                                                 II.

       On appeal, Landon makes two claims: (1) the district court erroneously denied his motion

to suppress the evidence; and (2) the district court erroneously classified him as an ACC pursuant

to 18 U.S.C. § 924(e). We address each claim in turn.

                                                 A.

       Landon first asserts that the district court erroneously denied his motion to suppress the

evidence. In reviewing a district court’s denial of a motion to suppress, we review findings of fact

for clear error, legal conclusions de novo, and all evidence in the light most favorable to the

government. United States v. Caruthers, 458 F.3d 459, 464 (6th Cir. 2006). An inventory search

of a vehicle conducted without a warrant does not violate the Fourth Amendment. Colorado v.

Bertine, 479 U.S. 367, 371-74 (1987). However, an inventory search must be conducted “according

to standard police procedures” and may not be undertaken “for purposes of investigation.” United

States v. Lumpkin, 159 F.3d 983, 987 (6th Cir. 1998); see also United States v. Tackett, 486 F.3d

230, 232 (6th Cir. 2007). Further, warrantless inventory searches may only be conducted where

police have “lawfully tak[en] custody of a vehicle.” United States v. Smith, 510 F.3d 641, 651 (6th

Cir. 2007) (quotation marks omitted and alteration in original).

       In this case, Landon contends that the inventory search of his vehicle violated his rights under

the Fourth Amendment because it was not done pursuant to the Memphis Police Department’s Policy


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United States v. Landon


and Procedure Manual. The manual provides in relevant part that:

        When an officer arrests a defendant and the defendant’s vehicle is not needed as
        evidence, the officer is required to allow the defendant to leave the vehicle at the
        scene of arrest if the defendant so desires and it is legally parked. The defendant
        cannot, however, park a vehicle on private property without the consent of the
        property owner/management. The defendant may authorize a third party at the scene
        who is not under arrest to legally park the vehicle. The defendant will not be allowed
        to move his vehicle once he has been arrested. Under no circumstances will an
        officer on the scene drive the vehicle with or without the owner’s consent. These
        options must be explained to the defendant before the decision to tow is made.

(App’x, pp 19-20.) According to Landon, because the police department policy manual “states that

the ‘options must be explained to the defendant,’” and the options were not explained to him, the

inventory search was not performed in accordance with the department policy. He therefore asserts

that the rifle and his statements to the police should have been suppressed as obtained in violation

of the Fourth Amendment. We disagree.

        The problem with Landon’s argument is that the policy’s use of the word “options” makes

clear that the explanation is required not to inform every defendant of the policy’s terms, but to allow

a defendant to exercise one of the choices permitted by the policy. Here, neither of the options was

available to Landon: he could not leave the vehicle where it was parked because it was parked

illegally, and he could not authorize a third party to move the vehicle because there was no third

party at the scene. Accordingly, the officers did not violate the policy by failing to explain Landon’s

nonexistent options to him. Moreover, even if the officers had violated the policy in this way, such

a harmless violation would not have invalidated the search. See, e.g., United States v. Mayfield, 161

F.3d 1143, 1145 (8th Cir. 1998) (holding that an inventory search was reasonable, despite the


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officers’ failure to follow every dictate of the applicable policy).

                                                  B.

       Landon next argues that the district court erred in classifying him as an ACC pursuant to 18

U.S.C. § 924(e) because his 1990 conviction for the Sale of a Controlled Substance was not a serious

drug offense. We review the district court’s determination de novo. United States v. Martin, 378

F.3d 578, 580 (6th Cir. 2004). The Armed Career Criminal Act (“ACCA”) provides that:

       In the case of a person who violates section 922(g) of this title and has three previous
       convictions by any court referred to in section 922(g)(1) of this title for a violent
       felony or a serious drug offense, or both, committed on occasions different from one
       another, such person shall be fined under this title and imprisoned not less than
       fifteen years, and, notwithstanding any other provision of law, the court shall not
       suspend the sentence of, or grant a probationary sentence to, such person with respect
       to the conviction under section 922(g).

18 U.S.C. § 924(e)(1); see also U.S.S.G. § 4B1.4. For purposes of this provision, the term “serious

drug offense” means “an offense under State law, involving manufacturing, distributing, or

possessing with intent to manufacture or distribute, a controlled substance . . . , for which a

maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. §

924(e)(2)(A)(ii).

       Landon claims that his 1990 conviction for the Sale of a Controlled Substance does not

constitute a serious drug offense because, at the time of his federal sentencing, under the since-

amended Tennessee statute, a conviction for the sale of a controlled substance would only have been

subject to a maximum sentence of ten years of imprisonment if it involved at least .5 grams of

cocaine, and his conviction involved less than .5 grams of cocaine. According to Landon, the district


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court erred in failing to consider an arrest report which listed the weight of the cocaine involved as

being less than .1 grams; and he asserts that “the government should be estopped from arguing that

the arrest report is inadmissible under [Shepard v. United States, 544 U.S. 13 (2005)].” These

arguments are unavailing.

        In McNeill v. United States, 131 S. Ct. 2218 (2011), the Supreme Court recently made clear

“that a federal sentencing court must determine whether ‘an offense under State law’ is a ‘serious

drug offense’ by consulting the ‘maximum term of imprisonment’ applicable to a defendant’s

previous drug offense at the time of the defendant’s state conviction for that offense.” Id. at 2224

(emphasis added). It explained that “[t]he plain text of ACCA requires” this result; that the “broader

context of the statute as a whole, . . . confirms this interpretation”; and that “[t]his natural reading

of ACCA also avoids the absurd results that would follow from consulting current state law to define

a previous offense.” Id. at 2221-24 (citation and internal quotation marks omitted). The Court

therefore held that the defendant’s state court cocaine convictions were serious drug offenses because

each offense was subject to a maximum term of imprisonment of ten years or more at the time of

conviction. Id. at 2224.

        McNeill dictates the result here.1 At the time of Landon’s conviction, the Sale of a Controlled

Substance was a Class B felony, subject to a maximum sentence of ten years of imprisonment

without regard to the weight of the cocaine. See Tenn. Code Ann. § 39-17-417(c)(1) (1990).

Landon’s assertion that the district court should have considered the amount of cocaine listed in the


       1
           Indeed, at oral argument, counsel for Landon conceded that McNeill foreclosed his claim.

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arrest report, and his claim that the government should be estopped from contending otherwise, are

therefore off the mark. Per McNeill, all that matters is whether, at the time of Landon’s conviction,

the maximum sentence for the conviction was at least ten years of imprisonment, and it was.

Accordingly, the district court did not err in determining that Landon’s conviction for the Sale of a

Controlled Substance qualified as a serious drug offense for purposes of ACCA.

                                                III.

       For these reasons, we affirm the judgment of the district court.




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