                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4787


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ELRODA SHAVAYA THOMPSON,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:12-cr-00434-CCE-1)


Submitted:   June 12, 2014                 Decided:   October 1, 2014


Before KING, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant.   Ripley Rand, United States Attorney,
Greensboro, North Carolina, Andrew C. Cochran, Special Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Winston-Salem, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Elroda      S.    Thompson         was    convicted         under      18    U.S.C.      §§

922(g)(1)       and     924(a)(2)         for    possession         of    a   firearm      by    a

convicted felon.            Thompson appeals the denial of his motion to

dismiss under Brady v. Maryland, 373 U.S. 83 (1963), contending

that the prosecution violated his due process rights by failing

to   preserve      potentially        exculpatory           evidence.         Thompson         also

appeals his enhanced sentence under the Armed Career Criminal

Act (ACCA), 18 U.S.C. § 924(e).                       He contends that his sentence

should be vacated because the record does not establish that he

committed    three       separate         ACCA       predicate      offenses.            For   the

reasons that follow, we affirm.



                                                I.

                                                A.

       On   June      17,     2012,       the    Winston-Salem           Police     Department

(WSPD) responded to a call reporting an assault with a deadly

weapon.     WSPD interviewed Douglas Edwards who stated that he had

been   threatened        by    a    man     with      a    gun.      Edwards        stated     the

suspect, who was driving a silver Malibu, stopped in front of

Edward's    home,       pointed       a    gun       out   the     driver's        window,      and

threatened      Edwards.           Edwards       provided         WSPD   with      the   license

plate number of the suspect's vehicle.



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     Corporal R.D. Fenimore of the WSPD located a silver Malibu

matching the description released on the police radio, matched

the license plate to the number provided by Edwards, and pulled

over the vehicle.           Fenimore's dash camera, known as a Mobile

Digital    Video   Recorder     (MDVR),       began    recording    automatically

when he turned on his blue lights.

        Fenimore   instructed       the   driver,      Thompson,    to    exit     the

vehicle.      Thompson      exited,    left    the    driver's   door     open,    and

approached Fenimore with balled fists.                 Thompson did not comply

with instructions to stop approaching until Fenimore had his

Taser    drawn.      Fenimore    handcuffed       Thompson,      then     approached

Thompson's vehicle to ensure no one else was inside.                        Fenimore

observed through the open door a handgun sticking out from under

the driver seat.

        Fenimore   secured    the     handgun    and    arrested    Thompson       for

assault by pointing a gun, a misdemeanor under N.C.G.S. § 14-34.

He then turned off his MDVR and drove Thompson to the county

jail.     At the jail, Fenimore transferred custody of Thompson to

Corporal    Kerns,    who    processed        Thompson.     During       processing,

Kerns discovered that Thompson was a felon and charged Thompson

with possession of a firearm by a felon under 18 U.S.C. §§

922(g)(1) and 924(a)(2).

     WSPD    procedure      requires      MDVR    footage   to     be    labeled    by

category.     Footage labeled "Felony" or "DUI" is automatically

                                          3
copied to a DVD.           All other footage is retained for only 60

days, or 120 days if flagged.              Fenimore did not label Thompson's

footage as "Felony" because he believed the arrest was for a

misdemeanor.       Kerns    did    not     update      the   footage    label    during

Thompson's processing, and it was therefore preserved for only

60 days.

                                           B.

     Thompson      was    indicted    under       18   U.S.C.     §§   922(g)(1)       and

924(a)(2)    for    one    count     of    possession        of    a   firearm    by    a

convicted    felon.        Thompson       filed   a    motion     to   dismiss     under

Brady,    which    the    district        court   denied.          Thompson      pleaded

guilty, reserving his right to appeal the denial of his motion

to dismiss.        The district court enhanced Thompson's sentence

under the ACCA, citing his three previous convictions for second

degree burglary in North Carolina state court.                          Thompson was

sentenced to 180 months’ imprisonment with a subsequent term of

five years’ supervised release.             Thompson timely appealed.



                                           II.

     In reviewing the district court's denial of a motion to

dismiss, we review its legal conclusions de novo, see United

States v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002), and its

factual     findings      for   clear      error.        See      United   States       v.

Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005).                       In reviewing the

                                            4
district    court's   statutory   interpretation   of   sentencing   under

the ACCA, we review the district court's conclusions de novo.

United States v. Hobbs, 136 F.3d 384, 387 (4th Cir. 1998).



                                    III.

     Thompson contends that WSPD's failure to provide Fenimore's

MDVR footage constituted a Brady violation.         Brady provides the

proper     analytical   framework     when   exculpatory    evidence   is

withheld from a defendant.        See Brady, 373 U.S. at 87.    However,

when evidence has been destroyed, as is the case here, the issue

is more properly analyzed under Arizona v. Youngblood, 488 U.S.

51 (1988). 1   In Youngblood, the Supreme Court held that "unless a


     1
       Though we analyze Thompson’s claim under Youngblood, we
note that a Brady challenge on these facts also would have
failed. A successful Brady challenge requires that a defendant
demonstrate that the evidence in question was exculpatory.
United States v. Wilson, 624 F.3d 640, 661 (4th Cir. 2010).
Thompson   argues  that  the  MDVR   footage   would have  been
exculpatory because the footage would have shown that Officer
Fenimore opened Thompson's car door before finding the handgun.
Thus, Thompson argues, Fenimore conducted an illegal search,
which would have led to the suppression of the handgun that was
the basis of Thompson's plea.      However, Thompson's argument
misunderstands the standard for searches in this context.
Courts have recognized an exception to the Fourth Amendment’s
typical requirement of a warrant backed by probable cause for
searches of automobiles.   The exception “permits a warrantless
search of a vehicle when there is probable cause to believe the
vehicle contains contraband or other evidence of criminal
activity.” United States v. Baker, 719 F.3d 313, 317 (4th Cir.
2013).    Probable cause alone is therefore sufficient for a
lawful automobile search.     See id.     Probable cause is "a
flexible standard that simply requires 'a reasonable ground for
(Continued)
                                     5
criminal defendant can show bad faith on the part of the police,

failure    to   preserve   potentially     useful   evidence     does   not

constitute a denial of due process of law."         Id. at 58.

     The   Court   further   held   that    where   the   destruction    of

evidence "c[ould] at worst be described as negligent," there was

no showing of bad faith.        Id.      Additionally, this court has

found that the negligent destruction of evidence, absent more,

does not constitute bad faith.          See Elmore v. Ozmint, 661 F.3d

783, 831 (4th Cir. 2011) (finding the negligent erasure of the

tape of a bank robbery was not bad faith).




belief of guilt.'"   United States v. Ortiz, 669 F.3d 439, 444
(4th Cir. 2012) (quoting Brinegar v. United States, 338 U.S.
160, 175 (1949)).    The Fourth Circuit has recognized that a
police report can provide an officer with probable cause for the
warrantless search of an automobile.       See United States v.
Arriaza, 641 F. Supp. 2d 526, 527 (E.D. Va. 2009) aff'd, 401 F.
App'x 810 (4th Cir. 2010).    In Arriaza, the police based their
warrantless search of the defendant's car on a police report
indicating that the defendant had a gun in the car he owned.
The Arriaza court held that the police report gave the officers
probable   cause,  which   validated  their   search  under    the
automobile exception. In this case, Officer Fenimore received a
police report indicating that the driver of a car with
Thompson's license plate had threatened a victim with a gun.
The police report gave Fenimore reasonable grounds to believe
that Thompson was the perpetrator of that crime and that the
handgun used in that crime would be in Thompson's vehicle.
Thus, like the officers in Arriaza, Fenimore had probable cause
to search Thompson's vehicle, and his search was thus proper
under the automobile exception. Therefore, the MDVR footage was
not exculpatory, and Thompson's Brady claim would have failed.



                                    6
     As    negligence     is   insufficient       for    bad     faith,    it    would

follow    that    mere,   non-negligent        inadvertence       would    also    not

constitute    bad   faith.       Indeed,     panels     of     this    circuit    have

extended    the   reasoning      of   Elmore    to    its    logical    conclusion,

finding that inadvertent destruction of evidence also does not

demonstrate bad faith.           See United States v. Henderson, 41 F.

App'x 651, 652 (4th Cir. 2002)(unpublished opinion) (finding the

inadvertent destruction of a video tape did not constitute bad

faith).

     The record included no indication that WSPD intentionally

destroyed    Fenimore's    footage.          Rather,     based    on    the   record,

WSPD's failure to re-label Fenimore's footage when Thompson's

charge was upgraded to a felony--so that the footage would be

preserved    beyond   sixty      days--could     at     worst    be    described    as

negligent.        Given   that    the    footage      was    originally       labeled

correctly and WSPD simply followed its protocol for a label that

later became incorrect, the destruction of this evidence is more

fairly characterized as inadvertent.              In either case, the record

does not suggest that the actions of the police that led to the

erasure of the tape were undertaken in bad faith.                         Therefore,

Thompson's challenge under Youngblood fails.




                                         7
                                           IV.

      Thompson also challenges his enhanced sentence under the

ACCA.     He contends that the district court erred by finding that

he    had    three       previous     convictions        for      a     violent     felony

"committed on occasions different from one another."                             18 U.S.C.

§ 924(e).

        Thompson's Presentence Investigation Report (PSR) provided

that his first burglary was conducted with two accomplices at

the residence of Frank Tranor on March 16, 2000 from 2:45 a.m.

to 3:30 a.m.            Thompson's second burglary was conducted on the

same night with the same two accomplices, but two miles away at

the   residence      of    Eric     Peterson      from   3:00     a.m.      to   4:30   a.m.

Thompson's     third       burglary    was       conducted   at       the    residence    of

Robert Hunter on March 19, 2000.

      Thompson argues that his first two predicate offenses were

in fact one offense under the ACCA.                       He takes this position

because two of the burglaries occurred on the same date, and he

argues      that   he    may   have    pleaded      guilty      based       on   accomplice

liability.         Thompson contends that the record does not show he

was     physically        present     at   both      burglaries,         and     that    his

convictions should be considered a single offense under United

States v. Tucker, 603 F.3d 260, 265-66 (4th Cir. 2010).

      In Tucker, the defendant was convicted with an accomplice

of two counts of burglary involving separate storage units at

                                             8
the same facility.           Id.     We vacated the district court's ACCA

sentence because there was insufficient evidence in the record

to   determine     whether     the    defendant      himself     entered    separate

storage units.      Id. at 266.

      Thompson's reliance on Tucker is unavailing.                         First, in

Tucker, the record did not specify that the defendant entered

the storage units separate from his accomplice.                        Id. at 265.

Unlike    Tucker,     the    record    here       specifically    indicates       that

Thompson himself entered both residences.                      Also, Thompson and

each of his accomplices have separate sentencing documents that

each states they individually entered multiple residences.

      Second, in Tucker we held that "without evidence that the

first    crime    ended     before    the   second     crime    began,     we   cannot

determine        whether     Tucker     committed        the     two     burglaries

sequentially on separate occasions or simultaneously with the

aid of his accomplice."            Id. at 266.       Unlike Tucker, the record

in this case shows a sequence in time between Thompson's two

burglaries.       Thompson's first burglary occurred from 2:45 a.m.

to 3:30 a.m., and the second burglary occurred two miles away

from 3:00 a.m. to 4:30 a.m.                     Thus, Thompson's argument that

there is a temporal overlap between his burglaries fails because

even with an overlap in time, the record shows the burglaries

were sequential.



                                            9
       Third, the evidence establishes that Thompson's first two

burglaries     meet    the    criteria          for    separate    ACCA      predicate

offenses according to this court's test established in United

States v. Letterlough, 63 F.3d at 332, 335-37 (4th Cir. 1995).

       Under the ACCA, we consider five factors: 1) whether the

offenses arose in different geographic locations; 2) whether the

nature of each offense was substantively different; 3) whether

each offense involved different victims; 4) whether each offense

involved     different      criminal       objectives;       and   5)     after    the

defendant committed the first-in-time offense, did the defendant

have the opportunity to make a conscious and knowing decision to

engage in the next-in-time offense.                   United States v. Carr, 592

F.3d 636, 644 (4th Cir. 2010).                  We can consider these factors

together or independently.           Id.

       Thompson's first two burglaries occurred at two residences

separated by two miles, with separate victims, which establishes

the first and third factors.                Thompson's first two burglaries

were    sequential     in    time,     and       therefore    Thompson       had   the

opportunity to make a conscious decision to engage in a next-in-

time offense, which establishes the fifth factor.                         Therefore,

considering    these     three   factors        are    established,     we    conclude

Thompson's    first    two   burglaries          are    separate   ACCA      predicate




                                           10
offenses.   See Hobbs, 136 F.3d at 390 (finding separate ACCA

predicate offenses when the same factors were established). 2



                                V.

     For the foregoing reasons, the district court's denial of

Thompson's motion to dismiss and his sentencing under the ACCA

is

                                                         AFFIRMED.




     2
       Thompson also submitted a pro se supplemental appellant
brief, arguing that his first two predicate offenses were not
separate because he received a consolidated sentence for those
offenses.     However, this argument fails because separate
sentencing is relevant only to career offender enhancement under
the United States Sentencing Guidelines, § 4B1.1(a), and not
sentencing under the ACCA.



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