                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4889


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MARCUS HILL,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:09-cr-00446-WDQ-1)


Argued:   March 23, 2012                  Decided:   April 19, 2012


Before DAVIS and DIAZ, Circuit Judges, and Jackson L. KISER,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.


Affirmed by unpublished opinion. Judge Davis wrote the opinion,
in which Judge Diaz and Senior Judge Kiser joined.


ARGUED: Meghan Suzanne Skelton, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant.       Tonya Nicole
Kelly, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.   ON BRIEF: James Wyda, Federal Public
Defender,  Baltimore,   Maryland,  for   Appellant.      Rod  J.
Rosenstein, United States Attorney, Christopher M. Mason,
Special Assistant United States Attorney, Alee Pagnotti, Second
Year Law Student, OFFICE OF THE        UNITED   STATES   ATTORNEY,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
DAVIS, Circuit Judge:

      Appellant       Marcus    Hill    was    charged     in    a     single      count

indictment with possessing a firearm after having been convicted

of a felony, in violation of 18 U.S.C. § 922(g)(1). Hill filed a

motion to suppress the firearm (and other evidence) based on the

Fourth Amendment.         After a hearing, the district court denied

the   motion     to    suppress.       Hill    proceeded    to       trial,   at    the

conclusion of which the district court denied his Rule 29 motion

for judgment of acquittal, which was based on his contention

that the government adduced insufficient evidence of his knowing

possession of the firearm. The jury returned a guilty verdict on

the single charge. At sentencing, over Hill’s objection, the

district court applied the Armed Career Criminal Act, 18 U.S.C.

§ 924(e) (ACCA), and imposed a mandatory minimum sentence of 180

months of imprisonment. Hill filed this timely appeal.

      Before us, Hill contends the district court erred in (1)

denying    the   motion    to   suppress;       (2)   denying    the     motion     for

judgment    of   acquittal;      and     (3)   applying    the       ACCA.    For   the

following reasons, we affirm.



                                          I.

                                          A.

      On January 13, 2009, around 3:00 a.m., Hill drove in his

silver Buick Park Avenue, which he had owned for two to three

                                          3
months, to pick up his girlfriend, Nekia Bennett, who had ended

her shift as an employee of a contract firm that transported

detainees        and      inmates       for      the        Baltimore         County         Police

Department. 1 As required by her job, Bennett carried a handgun,

which that morning was holstered on her left side.

       When      Hill     arrived    to    pick        up    Bennett,         she     was    in    a

transport        vehicle    with    a     male      co-worker          with    whom    Hill       had

previously argued. When Bennett entered Hill’s car, she noticed

he was upset. He told her that the disagreement with her male

co-worker was getting out of control and that the co-worker had

been       threatening     him.     The    argument          escalated.         Hill        yelled,

punched the steering wheel, and pushed Bennett’s shoulder to get

her to look at him. At one point Hill put Bennett’s hand on the

pocket      of   his    sweatpants        and       she   felt     a    hard    object.        Hill

stated, “You see how they got me out here?” J.A. 97. Based on

this statement, Bennett believed the object in Hill’s pocket was

a gun.

       Bennett      was    exhausted,         having        just       finished       her    night

shift, and had had only six hours of sleep in the preceding


       1
       We set forth the facts in the light most favorable to the
government’s view of the case as the government prevailed both
on the motion to suppress, United States v. Hernandez–Mendez,
626 F.3d 203, 206 (4th Cir. 2010), cert. denied, 131 S.Ct. 1833
(2011), as well as at trial, United States v. Herder, 594 F.3d
352, 358 (4th Cir.), cert. denied, 130 S.Ct. 3440 (2010).



                                                4
thirty hours. Hill had never been violent, had never hit her,

and had never been abusive in any way; still, Bennett wanted to

avoid arguing with him, and so she asked him to stop at a 7-

Eleven, apparently intending to make small purchases.

        As the Buick pulled up to the 7-Eleven, Hill and Bennett

observed a marked police car in the parking lot. As Bennett

turned to get out of the car, Hill grabbed her wrist and said,

“Don’t    play    with     me.”   J.A.   102.       Once    inside     the   7-Eleven,

Bennett walked past two police officers, Sergeant Byron Conaway

and Sergeant Amado Alvarez, standing at the cashier’s counter.

Conaway and Alvarez were twelve-year veterans of the Baltimore

Police Department (“BPD”). They had finished their shift for the

night    and    had   stopped     at   the       7-Eleven   for   refreshments.     As

Bennett walked past the officers, Conaway noticed that Bennett

had a handgun holstered on her left hip and alerted Alvarez. The

officers       concluded    (erroneously)          that     Bennett    was   a   state

correctional officer based on the uniform pants she was wearing,

and paid no further attention to her at that time.

        Bennett   picked    up    an   item       and,    just   two   minutes   after

entering the store, took the item to the cashier, near where the

officers were standing, to Bennett’s left. While paying for her

item, Bennett asked the cashier for a pen. She took a receipt,

turned it over, and wrote the word “Help” on the back. She slid

the receipt down the counter to Conaway and then, without saying

                                             5
a word to the officers, exited the store. The officers did not

stop her or ask her any questions. Bennett later testified that

she passed the note to the officers “because of the situation

[she] was in . . . with Mr. Hill,” J.A. 105, explaining, “I just

wanted the situation that we was going through to be resolved.”

J.A. 106.

       Conaway showed the note to Alvarez. Believing Bennett was

in “distress” and possibly in a situation “a little bit more

than   what   she   could   handle,”       J.A.   163,   213,   they   followed

Bennett out to the parking lot, where she had already reentered

Hill’s car on the front passenger side. Conaway drew his weapon

as he exited the store, even before seeing anyone in the vehicle

with Bennett. Knowing that Bennett was armed and that the gun

she was carrying was on her left side - which would be the side

closer to the driver, Hill - the officers approached the front

of the car. With guns drawn, and standing just a few feet from

the sides of the car, they ordered Hill and Bennett to show

their hands and exit the vehicle. Conaway testified that he took

these actions immediately without first investigating in some

other manner because he did not understand why Bennett needed

help. “I couldn’t understand why she would need help, being as

though she was an armed person, so that kind of sparked my

interest a bit.” J.A. 212.



                                       6
       Hill did not immediately comply with the order to show his

hands. Conaway testified that he saw Hill reach to his right

side, next to the center console and near where Bennett’s gun

was holstered; Alvarez testified that he saw Hill reach toward

his waist. Neither officer saw Hill with a weapon. Conaway and

Alvarez continued to order Bennett and Hill to show their hands.

Bennett    complied      and     exited       the       vehicle,      but    Hill     did    not.

Conaway then fired his weapon twice; one shot missed and the

other hit Hill in the abdomen. Hill collapsed over the passenger

seat. Conaway testified that less than twenty seconds elapsed

between    when    he    exited       the    7-Eleven          and    when    he    fired    his

weapon.

       Having     just   been        shot,    Hill         showed    his     hands.    Alvarez

pulled Hill from the car, laid him on the ground, handcuffed

him,   and   patted      him    down.        He       found   no     weapon,    only    Hill’s

paycheck     stub.   Alvarez         also    did       a   preliminary       search     of   the

interior of the car, including the floor and the seats (although

without a flashlight), and found nothing. Alvarez and Conaway

called    for   back-up        and    for    medics.          Hill    was    transported      by

ambulance to the hospital, under police guard.

       Detectives assigned to the BPD Homicide Unit arrived and

took   control     of    the    scene,       as       is   standard     procedure       in   all

shootings involving police. The detectives began investigating

the circumstances that led Conaway to shoot Hill; at that point,

                                                  7
they had no information suggesting or indicating that Hill had

committed any crime or possessed any weapons or contraband.

       Bennett          was     transported         to     BPD     headquarters.            She     was

ordered      to        surrender       her    purse,       her        keys,      her    work-issued

firearm,         and    other       personal       effects       to    the       police.    She     was

frazzled, crying, and traumatized by what had happened to Hill.

After       waiting       some       time,     she       was     interviewed           by   two     BPD

detectives: Juan Diaz and Michael Moran. They asked her many

questions about firearms, but she had never seen Hill with a

gun,    neither          that       night    nor     on    any        other      occasion.        After

questioning her for about an hour, the detectives turned on a

tape recorder and took a recorded statement. In that statement,

she told them about the argument she and Hill had had in the

car, and why she wanted to get out of the car. She said that

Hill “pulled my wrist and . . . patted his sweatpants, it was

like    .    .    .    don’t     play       with   me.     You    know       I    don’t     like    the

police.” J.A. 547. Although by that point the police knew Hill

was unarmed when he was removed from the car, Bennett explained

that when Hill had had her pat his pocket, she felt an object

she thought might have been a gun.

       By that point Hill’s car had been towed to the BPD crime

lab evidence bay. Diaz prepared an application for a warrant

authorizing a search of Hill’s vehicle. In four separate places

the    application            and    warrant       stated      that     the       purpose    of     the

                                                   8
warrant    was    to    seek     evidence      of     a    suspected       murder.     The

application stated that the police “have reason to believe” that

“there     are   now    being     concealed          certain     property,      namely,

weapons,    ammunitions,        papers,   or    any       item   pertaining      to    the

crime of murder.” J.A. 28. The application states in a separate

place    that    the    crime    under    investigation          is    “first       degree

murder” and cites the Maryland Annotated Code section for first-

degree murder. Id. The warrant itself, which Diaz also filled

out,    stated   that    the     police   were        authorized      to    search     for

evidence    relating     to     the   crime    of     first-degree         murder.    Diaz

later     conceded     that     the    police        never     believed      they     were

investigating a murder. He testified the references to homicide

were the result of an “honest mistake.” J.A. 315.

        Notwithstanding the erroneous mentions of murder, the body

of the affidavit attached to the warrant application set forth a

substantially     accurate       narrative      of    the    night’s       events.    Diaz

attested that the police had shot Hill in front of the 7-Eleven

after they had been “approached by a female asking them for

help.” J.A. 31. The affidavit states that the female left the

store and got into the passenger seat of a car in which Hill,

the registered owner, was sitting in the driver’s seat. Officers

then gave “verbal commands to both occupants [to] show[] their

hands and to please exited [sic] the vehicle.” Id. Diaz further

affirmed, “Marcus Hill refused to show his hands and exit the

                                          9
vehicle. Subsequently, in fear for their safety, Marcus Hill was

shot    while      inside   the   vehicle.”      Id.     Diaz    also    wrote,       “In

furtherance investigation [sic] after interviewing the witness,

investigators       learned   that     moments       before     the   shooting,      the

female received an assault by threat with a possible gun by

Marcus Hill.” Id. Diaz presented the warrant application to a

judge of the District Court of Maryland for Baltimore City who

issued the warrant.

       During the subsequent search of the car, officers found and

seized registration papers confirming that Hill was the owner of

the vehicle. Two utility bills and various financial documents

in Hill’s name were also in the car. Finally, they found a

Taurus PT-22 .22-caliber semi-automatic pistol inside a black

stocking behind the front passenger seat, wedged between the

seat   and   the     floor.   The    officers        removed    the   gun     from   the

stocking and found that it was entirely covered in rust. None of

the    officers     present   were     able     to    render    the     firearm      safe

because of the extent of the rust. When they were eventually

able to extract the magazine, officers found that the magazine

and all of the cartridges were also covered in rust. At trial,

Special Agent Daniel Kerwin of the Bureau of Alcohol, Tobacco,

Firearms     and    Explosives      explained    that    although       the    gun   was

inoperable, it still met the definition of a firearm as that

term is defined in 18 U.S.C. § 921(a)(3).

                                         10
                                        B.

      On August 13, 2009, Hill was indicted on one count under 18

U.S.C. § 922(g)(1) in the District of Maryland for possessing

the Taurus PT-22 firearm after having previously been convicted

of a felony. Hill moved to suppress the gun (and the other items

seized   from   the   Buick)   on     the    ground    that    the   state   search

warrant was invalid because the affidavit offered in support of

the   warrant   application     did    not    provide    probable      cause,      for

three reasons. First, he argued the affidavit, which was based

entirely on statements from the “female” [Bennett] who asserted

that she had “received an assault threat by possible gun by

Marcus Hill,” lacked evidence of the informant’s “veracity” or

the basis of her knowledge, and therefore lacked probable cause.

      Second,   he    argued   the    false    references      to    the   crime    of

murder in the affidavit rendered the warrant invalid. In the

section of the warrant describing the property to be seized, it

states “weapons, ammunition, papers of any item [sic] pertaining

to the crime of murder.” J.A. 29, 38, and yet “no evidence was

presented to the issuing Judge concerning a murder.” J.A. 17.

Thus, he argued, the warrant was insufficiently particularized,

and   the   search    of   Hill’s    car     was    beyond    the    scope   of    the

warrant.

      Third,    and   alternatively,         Hill    argued    the    warrant      was

invalid under Franks v. Delaware, 438 U.S. 154 (1978), because

                                        11
in the affidavit Diaz omitted the fact that Bennett’s stated

belief that Hill had a gun in his pocket had turned out to be

false (at least as of the time when Hill was removed from the

car).      Including    this       information,         Hill       argued,    would    have

“diminished the probability that evidence of a crime was located

in the car.” J.A. 40.

      Neither Hill’s motion nor his reply to the government’s

opposition argued that the officers’ actions in the 7-Eleven

parking      lot    constituted          an    unlawful       seizure    or     otherwise

violated his Fourth Amendment rights.

      In    opposition       to    the    motion,       the   government      argued   the

warrant was valid because Hill had threatened Bennett when he

“was possibly in possession of a handgun.” J.A. 23. The warrant

was   necessary,       the    government        argued,       to   “ascertain    if    Hill

possessed a gun as Bennett indic[a]ted, which would, in and of

itself, be a violation of Maryland law,” and also to “assist in

the determination of whether Hill should be prosecuted for an

assault on Bennett.” Id. While acknowledging the references to

the   crime    of    murder       were   false,     the    government        argued   those

references did not invalidate the warrant for two reasons: (1)

“only the place to be searched and the persons or things to be

seized must be stated with particularity” and “any efforts to

expand     this     requirement      to       include     other     warrant    provisions

ha[ve] been rejected,” J.A. 24 (citing United States v. Grubbs,

                                               12
547   U.S.   90    (2006));       and   (2)    “the   reference    to   murder    was

nothing more than an ‘honest mistake,’” and therefore does not

require invalidation of the warrant, id. (citing United States

v. Owens, 848 F.2d 462, 463-64 (4th Cir. 1988)). Finally, the

government argued that even if the affidavit lacked probable

cause,     the    good    faith     exception     to    the     exclusionary     rule

applied.

      On May 17, 2010, the first day of trial, the district court

held a hearing on Hill’s motion to suppress (in addition to

other    motions    not    relevant     to     this   appeal).    Defense    counsel

reiterated Hill’s arguments, noting that Hill’s argument “first

and foremost” was that the warrant affidavit failed to establish

probable cause. J.A. 57. Ultimately, the district judge denied

the motion from the bench, “[f]or reasons that will be explained

in a memorandum to be issued” at a later date. J.A. 67. On May

20, 2010, the court filed a Memorandum Opinion setting forth the

reasons    for    its    denial    of   Hill’s    motion   to    suppress.     United

States v. Hill, 2010 WL 2038995 (D. Md. May 20, 2010).

      The district court explained that the affidavit supporting

the warrant application established the following facts:

      (1) a woman had requested help from two officers in a
      7-Eleven store; (2) she had left the 7-Eleven and got
      into a 2000 silver Buick parked in front of the store;
      (3) Hill, the registered owner, was in the driver's
      seat of that car; (4) Hill had threatened to assault
      the woman with what she thought was a gun; (5) Hill
      refused to comply with the officers' request that he

                                          13
     show his hands and leave the vehicle; and (6) Hill was
     shot inside the car.

Id. at *2. Based on these facts, the district court concluded

the warrant was supported by probable cause. Id. The court also

concluded    the      references       to    “murder”     did     not    invalidate       the

warrant because “[n]either the Fourth Amendment nor Maryland law

requires the warrant to identify the alleged crime,” and the

Fourth Amendment “‘allow[s] some latitude for honest mistakes’

made in connection with warrants.” Id. (quoting Owens, 848 F.2d

at   464).      “Because       there        was    probable       cause,”     the    court

concluded, “the warrant’s reference to ‘first degree murder’ was

[a] harmless error” by Detective Diaz. Id.

     The     parties       proceeded          to    trial,        during     which       they

stipulated that Hill was prohibited from possessing a handgun

because    of    a    prior    felony       conviction.      At    the     close    of    the

government’s case and again at the close of all the evidence,

Hill moved for judgment of acquittal pursuant to Rule 29 of the

Federal     Rules     of      Criminal       Procedure,      arguing       the     evidence

presented       was   insufficient          to     sustain    a    finding       beyond    a

reasonable       doubt     that    Hill       exercised       knowing       constructive

possession of the firearm seized from the Buick. J.A. 426, 444-

45. The district court denied both motions. On May 19, 2010, the

jury convicted Hill of the sole count with which he was charged.




                                              14
                                          C.

      On August 9, 2010, the parties appeared for sentencing. A

probation officer had prepared a presentence report (PSR), which

detailed Hill’s criminal history, including the following state

court convictions:

      (1)    March 10, 2000: possession with intent to
             distribute a controlled substance / possession of
             a handgun;

      (2)    July   25,  2001:   possession  with                 intent       to
             distribute a controlled substance;

      (3)    April 17, 2007: distribution of a controlled
             substance   and   possession   with   intent    to
             distribute a controlled substance (Alford plea)

J.A. 758-59.

      As for the April 2007 conviction, the one Hill argues is

not   an    ACCA   predicate,    the   indictment         filed    in    state      court

alleges, in pertinent part, that the defendant “did distribute a

certain Controlled Dangerous Substance of Schedule # II, to wit:

cocaine,     which   is   a   narcotic      drug,    .    .   .   in    violation     of

Criminal     Law   Article,     Section     5-602     .   .   .   .”    J.A.   698.    A

conviction for distribution of cocaine carries a maximum penalty

of 20 years under Maryland law. Therefore, the PSR determined

that the 2007 conviction was (like the other two convictions

listed above) a “serious drug offense” as defined in 18 U.S.C. §

924(e)(2)(A).      At   the   time   Hill      was   arrested     for    the   instant

offense, he was on probation for the 2007 convictions. The PSR


                                          15
calculated    Hill’s   advisory    guidelines        range          to    be     210-262

months’ imprisonment. In support of the ACCA predicates, the

government     provided   certified         copies      of     the       state        court

judgments    of   conviction   related       to   Hill’s       three      prior       ACCA

qualifying    convictions,     along    with      the        docket      entries        and

charging documents for each.

      Hill contested the ACCA determination. First, he argued the

Maryland     possession-with-intent-to-distribute                  statute       is    not

categorically a serious drug offense, and that the government’s

documentation was insufficient to prove that Hill’s convictions

were actually ACCA predicates. Second, he argued (anticipating

our later decision in United States v. Alston, 611 F.3d 219

(2010)) that because his April 2007 conviction was the result of

an Alford plea, it could not be considered an ACCA predicate

offense.

      The court rejected Hill’s arguments and sentenced him to

the   180-month   mandatory    minimum,       followed        by     five      years    of

supervised release. Hill filed a timely notice of appeal.



                                   II.

      On appeal, Hill argues the district court erred in denying

his motion to suppress, in denying his motion for a judgment of

acquittal, and in sentencing him as an armed career criminal. We

consider these issues in turn.

                                       16
                                         A.

                                         1.

      As noted above, in the course of the suppression hearing in

the district court, Hill argued the gun (and the other evidence

seized from the Buick) should be suppressed because the warrant

was invalid, for three reasons: (1) the affidavit in support of

the   warrant    application       did    not     provide     evidence    of   the

informant’s     veracity    or    the    basis    of   her   knowledge,   thereby

vitiating probable cause; (2) the warrant application falsely

stated that the purpose of the warrant was to investigate a

murder; and/or (3) the affidavit did not mention that Bennett

had believed Hill had a gun in his pocket, a belief that later

was   proven    wrong,     and    that    omission      rendered    the   warrant

invalid. In his written motion to suppress, he also argued:

      4.   Because  the  investigation   of  this   case  is
      incomplete, Mr. Hill reserves the right to move for
      suppression of evidence based on grounds not now
      discernible such as, but not limited to, rights under
      Franks v. Delaware, 438 U.S. 154 (1978). Mr. Hill also
      reserves the right to supplement this Motion in the
      future.

      5. Any additional searches and seizures that occurred
      in this matter, warrantless or otherwise, are also
      illegal and in violation of the Fourth Amendment.

J.A. 17.

      On   appeal,   Hill        has    shifted    gears.     He   advances    the

following contentions before us: (1) the warrant was facially

invalid based on the references to murder; and (2) the gun (and

                                         17
other evidence) should have been suppressed because the officers

unlawfully seized Hill, i.e., without reasonable suspicion or

probable cause, (a) when they pointed their guns at him; and/or

(b) when they shot him, in either case thereby poisoning the

later-obtained warrant. There is a serious question, however,

whether Hill preserved his challenge to the admissibility of the

evidence     obtained    from     the   car     as   to   these    latter     grounds.

Specifically, the issue presented is whether his arguments in

the district court were adequate to preserve the arguments based

on an alleged unconstitutional seizure (“seizure arguments”).

       If    the    arguments      were        preserved,     we      review        legal

determinations de novo and factual findings for clear error.

United States v. Kellam, 568 F.3d 125, 132 (4th Cir. 2009). As

to    the   arguments    involving      the    existence    or     lack    thereof    of

reasonable     suspicion,    we    review      “determinations        of    historical

facts” for clear error; the “ultimate” question of whether there

was reasonable suspicion is reviewed de novo. Ornelas v. United

States, 517 U.S. 690, 691, 696-97 (1996). If the arguments were

not    preserved,   we    review    for   plain      error.   Fed.     R.    Crim.    P.

52(b).

       Hill contends he preserved his seizure arguments based on

four theories:

       First, he argues the arguments were preserved because he

satisfied      Federal    Rule     of     Criminal        Procedure        51(b).    See

                                          18
Appellant’s Reply Br. at 2. Rule 51(b) provides that a party may

“preserve a claim of error” by informing the court of either

“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.”        Hill   argues     that     because       the    first    option     --

informing the court of the action the party wishes the court to

take (suppress the evidence) -- does not require a statement of

specific grounds, and because he moved to suppress the gun, he

preserved the argument that the gun should have been suppressed

based on Hill’s allegedly unlawful seizure in the parking lot.

     Second, Hill argues he preserved the argument because his

motion   to   suppress         the   gun    ended    with    the    following:       “Any

additional searches and seizures that occurred in this matter,

warrantless or otherwise, are also illegal and in violation of

the Fourth Amendment.” J.A. 17. Hill cites no cases specifically

addressing whether a catch-all, boilerplate argument like this

one is sufficiently specific to preserve a particular argument

in support of a motion to suppress.

     Third, he argues he preserved his seizure arguments when he

separately    moved       to    suppress    any     “statements,       admissions,     or

confessions” that may have been obtained unlawfully, although at

the time of the motion Hill’s counsel was not aware of any

statements     Hill       had    made.      The     motion      also    stated,      “Any

statements, admissions, or confessions were also the fruit of

                                            19
Mr.   Hill’s    illegal   arrest   and   in   violation   of   the   Fourth

Amendment of the United States Constitution.” 2

      Fourth, in reliance on Yee v. City of Escondido, 503 U.S.

519 (1992), 3



      2
       Indeed, the district court denied the motion seeking
suppression of certain statements Hill made. See 2010 WL
2038995, at *2. He does not challenge that ruling on appeal.
      3
       In Yee, mobile park owners sued a municipality in state
court alleging that a local rent control ordinance constituted
an unconstitutional taking. 503 U.S. at 525. Their theory was
that the ordinance constituted a physical occupation of their
property, although portions of their complaint and briefing
could have been read “to argue a regulatory taking.” Id. at 534.
In the Supreme Court, for the first time they argued that the
ordinance constituted a regulatory taking. Id. The Court held
the argument had not been forfeited because the park owners had
“unquestionably raised a taking claim in the state courts.” Id.
The Court explained:

      Once a federal claim is properly presented, a party
      can make any argument in support of that claim;
      parties are not limited to the precise arguments they
      made below. Petitioners’ arguments that the ordinance
      constitutes a taking in two different ways, by
      physical   occupation and    by  regulation,   are  not
      separate claims. They are rather, separate arguments
      in support of a single claim – that the ordinance
      effects an unconstitutional taking. Having raised a
      taking   claim   in   the  state    courts,  therefore,
      petitioners could have formulated any argument they
      like in support of that claim here.

Id. at 534 (emphases in original).

     Hill apparently argues Yee means he properly preserved the
unlawful-seizure arguments because his request that the court
suppress the gun was a “claim,” and therefore the arguments he
made in support of that “claim” do not limit the arguments he
can raise on appeal.



                                    20
and   Illinois    v.   Gates,   462   U.S.   213,   219-220   (1983), 4   Hill

contends   that    “[a]ny   differences      between   what   trial   counsel

urged orally at the motions hearing and the arguments in this

appeal are simply ones of reasoning, not of claims”; because the

“claim” is the same, the arguments are preserved. Id. at 3-4. He

cites these cases for the proposition that a different “legal

argument on appeal” does not render the argument unpreserved, so

long as “the claim was still the same.” Appellant’s Reply Br. at




      4
       In the seminal Gates opinion, a case on certiorari from
the Illinois state courts, the Court considered whether to
address an issue (namely, whether to fashion a good-faith
exception to the exclusionary rule) that had not been addressed
by the state courts. The Court declined to address the question
because of the Court’s practice of not addressing issues “not
pressed or passed upon below” in state court. 462 U.S. at 219-
20. It is true, as Hill notes, that the Court observed the
following:

      [I]f the question were only an enlargement of the one
      mentioned in the assignment of errors, or if it were
      so connected with it in substance as to form but
      another ground or reason for alleging the invalidity
      of the [lower court’s] judgment, we should have no
      hesitation in holding the assignment sufficient to
      permit the question to be now raised and argued.
      Parties are not confined here to the same arguments
      which were advanced in the courts below upon a Federal
      question there discussed.

Id. at 20 (quoting Dewey v. Des Moines, 173 U.S. 193, 197-198
(1899)). Of course, Justice White’s concurring opinion in Gates,
462 U.S. at 246, in which he fully developed the good faith
exception to the exclusionary rule, essentially became the
opinion for the Court in the term following Gates. See United
States v. Leon, 468 U.S. 897 (1984).



                                      21
3-4 (citing Yee, 503 U.S. at 534, and Gates, 462 U.S. at 219-

20).

                                                     2.

       We    are       not     persuaded          by       any     of    Hill’s        preservation

theories.        We    agree       with     the      government         that    Hill     failed      to

preserve his seizure arguments because he did not raise them as

distinct      grounds         in    support       of       his    motion     to      suppress.       See

United      States      v.     Ellis,          326        F.3d    593,     599-600       (4th     Cir.

2003)(“Ellis          first        claims      that       the     district      court        erred   in

denying his motions to suppress, arguing that the initial stop

by   the    FBI       agents       was    invalid          because      these     federal       agents

lacked authority to stop him for violating a state traffic law.

In the district court, however, Ellis did not assert the FBI

agents’ lack of authority as a basis for suppression; rather, he

argued      that      the    stop    was       primarily         motivated        by   the    agents’

desire      to     investigate           him    for       narcotics      activity.           Thus,   we

review      Ellis’          claims       regarding          the    scope        of     the    agents’

authority for plain error.”). See also United States v. White,

584 F.3d 935 (10th Cir. 2009), cert. denied, ––– U.S. ––––, 130

S. Ct. 1721 (2010):

       Rule 12(b)(3)(C) of the Federal Rules of Criminal
       Procedure requires that a party raise a motion to
       suppress before trial. A party who fails to do so
       “waives any Rule 12(b)(3) defense, objection, or
       request,” although “[f]or good cause, the court may
       grant relief from the waiver.” Fed. R. Crim. P. 12(e).
       This waiver rule applies not only when a defendant

                                                     22
       fails to file any pretrial motion to suppress, but
       also when a defendant fails to assert a particular
       argument in a pretrial suppression motion that he did
       file . . . . To avoid waiving a particular argument,
       the party must make “sufficiently definite, specific,
       detailed   and  nonconjectural   factual   allegations
       supporting his suppression claim” in his pretrial
       motion.

Id. at 948-49 (citations omitted) 5; United States v. Lockett, 406

F.3d 207, 212 (3d Cir. 2005) (“Therefore, in the context of a

motion to suppress, a defendant must have advanced substantially

the same theories of suppression in the district court as he or

she    seeks    to    rely     upon   in    this    Court.”);      United   States   v.

Schwartz, 535 F.2d 160, 163 (2d Cir. 1976) (“The Government very

properly      points     out   that   the    failure    to   assert     a   particular

ground in a pre-trial suppression motion operates as a waiver of

the right to challenge the subsequent admission of evidence on

that       ground.”),    cert.    denied,     430    U.S.    906    (1977);    and   see

United States v. Chandia, 514 F.3d 365, 375 (4th Cir. 2008) (“In

his motion to suppress filed in district court, Chandia did not

expressly request a Franks hearing. Therefore, we review for

plain error the issue of whether the district court should have

held such a hearing. See Fed. R. Crim. P. 52(b); United States

v.    Olano,    507     U.S.   725,   731–32       (1993).”).      Moreover,   whereas

       5
       We note that, as contemplated by Rule 12, the district
court “granted Hill’s motion for leave to amend, supplement,
withdraw, or file additional motions.” See 2010 WL 2038995, at
*1, n.1.



                                            23
Federal Rule of Criminal Procedure 51 governs the preservation

of    most   claimed        errors    in    criminal     cases,   Federal    Rule   of

Evidence      103(a)        governs        objections    to   the    admission      or

suppression of evidence. Rule 103(a) expressly requires that, to

preserve a claim of error in the admission of evidence, the

party must “state[] the specific ground, unless it was apparent

from the context.” Fed. R. Evid. 103(a)(1)(B).

       Thus, we are constrained to apply plain error review to

Hill’s argument that he was unlawfully seized in the 7-Eleven

parking lot, and that the gun (and the other evidence seized

from his car) constituted the fruit of that unlawful seizure

that should have been suppressed.

       We grant relief on the basis of plain error to an appellant

such as Hill only when he establishes: (1) there was an error;

(2)   the    error     is    plain;    (3)     the   error    affects     substantial

rights;      and   (4)      the   error      seriously    affects   the     fairness,

integrity, or public reputation of judicial proceedings. United

States v. Wilkinson, 137 F.3d 214, 223 (4th Cir. 1998) (quoting

Olano, 507 U.S. at 732). An error is “plain” if it is “‘clear’

or, equivalently, ‘obvious.’” Olano, 507 U.S. at 734. As to the

validity of the warrant, the argument based on the affiant’s

“honest mistake” was preserved, so we would review the legal

determinations related to that question de novo and any factual

findings for clear error.

                                             24
                                       B.

                                       1.

       Hill argues the district court erred in admitting the gun

(and other evidence seized from the car) because the officers

unlawfully seized Hill when they pointed guns at him and when

they   shot   him;   both   seizures    constituted   arrests,   not   Terry

detentions; and in neither event was the seizure supported by

probable cause. Alternatively, he argues that even if the first

seizure (the officers’ drawing weapons accompanied by orders to

exit the vehicle) was a Terry detention, the officers lacked

reasonable suspicion. Further, he argues, the illegality of one

or both of those seizures “poisoned” the search warrant, and the

good faith exception does not apply.

       The first question is whether, at the moment the officers

exited the 7-Eleven and drew their guns on Hill and Bennett,

Hill was under de facto arrest, or subject merely to a lesser

detention in the nature of an investigatory stop. This is a

potentially dispositive issue, because if the seizure amounted

to an arrest of Hill, then it was most assuredly unlawful; the

government concedes, and we agree, there was not probable cause

at that time to believe Hill had committed a crime.

       Whether a person is under arrest or merely subjected to a

temporary detention depends on whether “the suspect’s freedom of

action is curtailed to a degree associated with formal arrest.”

                                       25
United     States   v.      Elston,    479    F.3d      314,     319   (4th     Cir.        2007)

(quoting Park v. Shiflett, 250 F.3d 843, 850 (4th Cir. 2001)).

This is a two-part inquiry, one pertaining to time and the other

to scope. First, the seizure must have “last[ed] no longer than

necessary to verify or dispel the officer’s suspicion.” United

States v. Leshuk, 65 F.3d 1105, 1109 (4th Cir. 1995) (citing

Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion),

and    United   States      v.     Sinclair,      983    F.2d     598,    602     (4th      Cir.

1993)).      Second,     the     actions     of   the     officers       must     have       been

“necessary to protect their safety, maintain the status quo, and

confirm or dispel their suspicions.” Id. at 1110.

       A   person      is    not    necessarily          under    arrest        even     if     a

“reasonable      person        would   have       felt     free    to     leave        in     the

circumstances of his initial detention.” Elston, 479 F.3d at

319. “A brief but complete restriction of liberty [can be] valid

under Terry.” Leshuk, 65 F.3d at 1109. “Terry stops customarily

involve detentions where the person detained is not technically

free to leave while the officer pursues the investigation.” Id.

(internal quotation marks omitted). “[W]e have concluded that

drawing weapons, handcuffing a suspect, placing a suspect in a

patrol car for questioning, or using or threatening to use force

does   not    necessarily        elevate     a    lawful    stop       into   a   custodial

arrest for Miranda purposes.” Id. at 1109-10.



                                             26
      Hill    argues    the       parking    lot    encounter           was    a    full-blown

arrest because “[a] reasonable person in Hill’s position in the

early morning of January 13, 2009, would not have believed that

he was free to leave or terminate the encounter when, seated in

a   parked    car,    Conaway      and    Alvarez        pulled      their     weapons         and

pointed them at him.” Appellant’s Br. at 17. The seizure quickly

escalated to the level of an arrest, he argues, because of “the

nature of the police intrusion and the level of restraint on

Hill’s freedom.” Id. at 18. Furthermore, in reliance on United

States   v.    Mendenhall,         446    U.S.     544    (1980),        he    argues          “the

threatening     stance       of    the    police,       combined        with       the   weapons

pointed at a seated man,” along with the facts that Conaway was

“yelling demands and orders” and that Hill “made no attempt to

flee,”   establish       that       the     seizure      was       an    arrest,         not     an

investigatory        stop.    Appellant’s         Br.    at    19.      We    reject      Hill’s

contention.

      As a legal matter, Hill’s argument confuses the standard

for a “seizure” and an “arrest.” Most importantly, Mendenhall is

inapposite,     because      it    addressed       when       an   officer’s         encounter

with a person rises to the level of a Terry stop, requiring

reasonable suspicion -- not when a Terry stop rises to the level

of an arrest. The government does not dispute that Hill was

seized from the moment the officers drew their weapons, which

required at least reasonable suspicion; the question is whether

                                             27
the seizure was an arrest or a Terry stop. As to that question,

the standard is that discussed in Elston and Leshuk.

      As a factual matter, our review is hampered by the fact

that Hill did not argue before the district court that (1) he

was under arrest at the time and (2) the arrest was unlawful.

Because he did not make these arguments, we have no factual

findings on which to decide either of these questions. We know

that less than twenty seconds elapsed between the moment when

Conaway     exited    the    7-Eleven      and    when   he   fired   his   weapon,

because     Conaway    testified      to   that    timing     apparently    without

contradiction. And we have the surveillance video from the 7-

Eleven, which shows the officers exiting the store and drawing

their weapons, although there is no footage of the car itself.

But   the    district       court    was   never    asked     to   determine,   for

example,     how     much    time    (or   what    reasonable      technique)   was

reasonably     “necessary       to     verify      or    dispel    the   officer’s

suspicion” that Hill was armed or otherwise a threat, to Bennett

or to themselves. See Leshuk, 65 F.3d at 1109.

      In the absence of such findings by the district court, the

question is thus: Is it “clear” or “obvious” from the record

before us, see Olano, 507 U.S. at 734, that Hill was under

arrest from the moment the officers drew their weapons? We think

not. For the reasons described above, drawing of weapons does

not necessarily convert a Terry detention into an arrest. The

                                           28
entire encounter was less than 20 seconds. In the absence of a

further factual basis in the record, it is impossible for us to

say that it is clear or obvious that Hill was under arrest at

that time.

     Thus, we have no hesitation in concluding that, on this

record,     the    officers’     initial       seizure   of    Hill   is   properly

regarded as a Terry detention. The question then becomes whether

it is “clear” or “obvious” (in the absence of factual findings

by the district court) that, at the time the officers drew their

weapons, they lacked reasonable suspicion to believe Hill was

involved in criminal activity.

     The    Fourth      Amendment’s      requirement     of    reasonableness    is

satisfied and a Terry detention is justified if the officer’s

action is supported by a reasonable articulable suspicion that a

person is engaged in, poised to commit, or has committed, a

criminal act. United States v. Hensley, 469 U.S. 221, 227 (1985)

(stating that a Terry detention is allowed “when the officer has

reasonable, articulable suspicion that the person has been, is,

or   is    about   to    be    engaged    in    criminal      activity”)(citation

omitted); United States v. Sokolow, 490 U.S. 1, 7 (1989); United

States v. Cortez, 449 U.S. 411, 417 (1981). This requires more

than an “inchoate and unparticularized suspicion or ‘hunch.’”

Terry v. Ohio, 392 U.S. 1, 27 (1968). The question of reasonable

suspicion is determined based on the information the officer(s)

                                          29
had at the time. United States v. McCoy, 513 F.3d 405, 412 (4th

Cir. 2008).

     The      government    argues      Hill’s   detention     was      supported    by

reasonable suspicion because at the time the officers knew the

following: “a young female had passed them a note that read

‘help;’ that female was armed with a firearm that was holstered

on her left side; that female had just gotten into the car with

a man who was seated to her left, well within reach of the

firearm; and that . . . female - even though she was armed -

needed     police      intervention,      and    could     not      ask    for    such

intervention in a way that the male driver could see.” Gov’t Br.

at 25 (citing J.A. 160, 163-64). Furthermore, the government

argues, once the officers were near the car, they were justified

in continuing to point their guns at Hill because although “the

female immediately complied” with the commands to show their

hands, Hill did not. J.A. 161, 165.

     Hill      argues   these    facts     did   not    rise   to    the    level   of

reasonable      suspicion      because    they    did    not     give     the    police

“reason to believe that Hill himself was involved in criminal

wrongdoing.” Appellant’s Br. at 22. “[W]hile these circumstances

might    be    odd,”    says    Hill,    they    only    would      have    justified

“talking to the woman and investigating why the woman thought

she needed help.” Id. He points to Conaway’s testimony, in which

Conaway stated that he pulled his gun and began shouting orders

                                          30
because “I couldn’t understand why she would need help, being as

though she was an armed person, so that kind of, you know,

sparked my interest a little bit.” J.A. 212 (emphasis added). He

explained, “I figured it was –- it might have been something a

little bit more than what she could handle at that point.” J.A.

213. Because this information was not “specifically about the

driver,”     Hill     argues,   it    does     not   constitute       specific

articulable facts that Hill was involved in criminal activity.

Appellant’s Br. at 23.

     Hill, however, did not make this argument in the district

court and so the district court made no factual findings as to

the existence of reasonable suspicion at the time the officers

drew their weapons. We are hard pressed to find that it is

“obvious” from the record that the officers lacked reasonable

suspicion.    Again,    there   is   no    surveillance    video   of   Hill’s

actions inside the car. All we can see (and there is no audio

accompanying    the    surveillance   video)    is   one   of   the   officers

(presumably Conaway) walk to the car with his hand on the gun in

its holster, un-holster the gun as he approached the car, and

then point the gun at the driver as the officer neared the car.

The officer then is in an aggressive posture, appears nervous,

and clearly is yelling. At some point he discharges his weapon,

twice. Especially because we cannot see Hill’s actions inside

the car, it is impossible to say that it was “clear” from the

                                      31
record that the officers were not justified in drawing their

weapons.

      If    the    initial       seizure           was     supported             by     reasonable

suspicion,    as    we    are    left    to    conclude,             the       question      becomes

whether     the    officers      were       justified           in       shooting       Hill.     The

parties do not dispute that at the time Hill was shot he was

effectively       under    arrest.       See       Gov’t        Br.       at    27.     Thus,     the

shooting -- and consequent seizure -- was lawful only if the

officers    had    probable      cause        that       Hill      had     committed         or   was

committing an offense, and if the manner in which the arrest was

carried out was reasonable.

      The    Fourth       Amendment’s         requirement                that     a     particular

seizure be reasonable “depends not only on when it is made, but

also on how it is carried out.” Graham v. Connor, 490 U.S. 386,

395 (citing Tennessee v. Garner, 471 U.S. 1, 7-8 (1985)). In the

context of an arrest (as opposed to an investigatory detention),

the   reasonableness        of    “when”       an    arrest           is       made    depends     on

whether, under the totality of the circumstances, there were

“facts and circumstances within the officer’s knowledge [which]

would warrant the belief of a prudent person that the arrestee

had committed or was committing an offense.” United States v.

Manbeck,     744    F.2d     360,       376    (4th        Cir.          1984).       As     to   the

reasonableness       of    “how”       an     arrest          is     carried          out,    courts

“balance     the    nature       and    quality          of        the     intrusion         on   the

                                              32
individual’s Fourth Amendment interests against the importance

of the governmental interests alleged to justify the intrusion.”

Garner, 471 U.S. at 8.

       To determine whether the means by which a particular arrest

was effected were reasonable, the Supreme Court has instructed

us to pay “careful attention to the facts and circumstances of

each particular case, including [1] the severity of the crime at

issue, [2] whether the suspect poses an immediate threat to the

safety of the officers or others, and [3] whether he is actively

resisting     arrest      or    attempting       to     evade    arrest      by    flight.”

Graham, 490 U.S. at 396. “Where the suspect poses no immediate

threat to the officer and no threat to others,” officers may not

use deadly force to apprehend the suspect. Garner, 471 U.S. at

11. But “[w]here the officer has probable cause to believe that

the suspect poses a threat of serious physical harm, either to

the     officer     or     to    others,         it     is    not      constitutionally

unreasonable to prevent escape by using deadly force.” Id.; see

also    Culosi     v.    Bullock,     596   F.3d       195,     201   (4th     Cir.   2010)

(stating     the   standard      as   whether         there   was     “sound      reason   to

believe that a suspect poses a threat of serious physical harm

to     the   officer      or    others”).        In     any     case,     however,         the

reasonableness of a particular use of force “must be judged from

the perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.” Graham, 490 U.S. at

                                            33
396. “The calculus of reasonableness must embody allowance for

the fact that police officers are often forced to make split-

second judgments -- in circumstances that are tense, uncertain,

and   rapidly    evolving       --   about    the   amount   of     force   that    is

necessary in a particular situation.” Id.

      Again, the argument that Hill was unlawfully seized when

Conaway shot him is raised for the first time on appeal, and

thus we are constrained to review for plain error. Moreover,

there   is    little      in   the   record   from   which    to    make    our    own

determination        of    whether,     for    example,      Hill     “pose[d]      an

immediate threat to the safety of the officer or others.”

      The government argues there was probable cause to believe

Hill posed a threat of serious physical harm to the officers

because the officers knew the following:

      a female had just passed him a note that read “help;”
      that same female was armed with a firearm that was
      holstered on her left side; that female had just
      gotten into the car where the sole occupant was a man
      who was seated to her left, well within reach of the
      firearm; the female - even though she was armed -
      needed police intervention, and could not ask for such
      intervention in a way that the male driver could see;
      the male driver repeatedly refused the officers’
      commands to show his hands and exit the vehicle; and
      the male continually reached to the floor of the
      vehicle and to his right - the direction of the
      female’s gun - even after being told to exit the
      vehicle.

Gov’t   Br.     at   30-31.     Moreover,     the    government      argues,      even

assuming “Conaway was mistaken in his belief that Hill posed a


                                         34
threat, his mistake was undoubtedly a reasonable one under the

circumstances.”      Id.   at   31.     Therefore,   the    government     argues,

Conaway was justified in shooting Hill.

     Hill argues that when we weigh the three factors enumerated

in Graham -- the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers

or others, and whether the suspect was actively resisting arrest

or attempting to evade arrest by flight -- it is apparent the

officers “did not have an objectively reasonable ground to shoot

Hill.” Appellant’s Br. at 25. As to the severity of the crime,

he argues it weighs in his favor because at no point did the

officers suspect Hill of having committed a crime; other than

knowing    that    Bennett   had    written    “help”      on   the    receipt    and

herself carried a gun, all their information came from their

observations of Hill inside the car. As to the third factor, he

argues, Hill was not actively resisting arrest or attempting to

flee.

     The reasonableness of the officers’ actions thus comes down

to whether Hill’s movements inside the car rendered reasonable

the officers’ belief that Hill posed an imminent threat to them,

justifying the use of deadly force. The government argues the

officers    were    justified      in   interpreting    Hill’s        movements    as

evidence that he was reaching for a gun. Hill argues that belief

was unreasonable because “the movement of a suspect’s hands,

                                         35
without more, while he is under arrest is insufficient to give

rise to an objectively reasonable basis for the police to use

deadly force.” Appellant’s Br. at 26. Only if “the police had

seen him with a gun, or had reliable and specific information

that    he    was       known    to    be    armed,”        might    this       have    been    a

“significant factor,” he argues. Id. He also points out that the

officers’       descriptions           of     Hill’s        precise        movements          were

inconsistent,           and   that    it     was    Bennett,        not    Hill,       whom    the

officers knew was armed.

       Here     again,        our     problem       is   the    absence         of     adequate

information to find that it was “obvious” that Hill did not pose

an imminent threat of serious physical harm to the officers. Had

Hill raised these issues in the district court, the risk of non-

persuasion      on       these      issues    would      have    been       cast     upon     the

government to justify a warrantless seizure. See, e.g., United

States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000); United

States v. Burke, 605 F. Supp. 2d 688, 693-94 (D. Md. 2009). But

under the plain error standard we apply here, Hill must shoulder

the    burden      to    prove      the     contrary.       Without       findings       by    the

district court on these and related issues, and particularly

inasmuch      as     the      surveillance          video     does        not   show     Hill’s




                                               36
movements in the car, we may not plausibly notice plain error on

this record and we decline to do so. 6

                                        2.

     Finally, Hill has argued he is entitled to suppression of

the gun because of the false references to murder in the warrant

application.      Even   his   arguments     related   to    this    point    have

shifted, however. In his original motion to suppress, he argued

that the warrant was limited to searching for evidence of a

murder, and there never was a murder; therefore, any search of

the car was beyond the scope of the search warrant. He does not

press that argument on appeal. And while Hill argued below that

the warrant was invalid under Franks, he does not raise a Franks

argument on appeal.

     The argument on appeal concerning the references to murder

relates     to    the    potential   applicability      of     the   good-faith

exception    to   the    exclusionary    rule   to   justify   denial    of    the


     6
       The government also argues that even if the shooting was
unlawful, a free-standing good-faith exception should apply,
because, in summary, excluding the evidence seized from the
Buick would not serve as a deterrent against the unreasonable
use of deadly force by BPD officers. We note that we have
applied the exclusionary rule where the nature and character of
a seizure, under the totality of the circumstances, militated in
favor of its application. See United States v. Edwards, 666 F.3d
877, 886-87 (4th Cir. 2011); but see id. at 891-92 (Diaz, J.,
dissenting). In the view we take of this case, we need not and
do not consider whether the exclusionary rule is applicable
here.



                                        37
motion to suppress the items, including the firearm, seized from

the Buick. In other words, Hill argues that, assuming the stop

and/or arrest in the parking lot violated the Fourth Amendment,

the government cannot rely on the good-faith exception because

Leon expressly does not apply when the warrant-issuing judicial

officer was    “misled    by   information      in     an   affidavit    that   the

affiant knew was false or would have known was false except for

his reckless disregard of the truth.” Leon, 468 U.S. at 923

(citing Franks).

      This   argument   is   not     without    some    force.   Diaz    knew   the

warrant was not being sought to search the car in the course of

an investigation of a murder; it was to search the car for a gun

that was suspected to be (but in fact was not) in the pocket of

the driver, who had just been shot by a police officer. To the

extent deadly force was used, it was by the police, not by Hill.

Moreover,    notwithstanding       the    outcome      below,    it     would   not

necessarily have been irrational for a judge taking evidence in

a hearing on a motion to suppress in this case to have found

that these were not “honest mistakes” that excuse their falsity,

as   the   government    argues. 7    Even     if   Diaz    copied    and   pasted


      7
       As mentioned previously, Hill did not request a Franks
hearing, but under our precedent, he may well have been entitled
to one. See United States v. Tate, 524 F.3d 449, 457 (4th Cir.
2008)(holding that defendant was entitled to a Franks hearing
where the warrant-issuing judge was not told that some of the
(Continued)
                                         38
sections   of    the   warrant   application     from   other   applications,

those errors -- repeated four times in the same application –

could be found to be material as well as other than “objectively

reasonable.” 8

     Nonetheless, because we decline to notice plain error with

respect to the seizure arguments, we need not and do not reach

the applicability of the good-faith exception to the “murder

warrant.” And because that aspect of Hill’s challenge to the

warrant is the only one he has raised on appeal, we do not reach

the other questions raised below with respect to the warrant.

Accordingly,     we    discern   no   reversible   error   in   the   district

court’s denial of the motion to suppress.

                                            C.

     Hill next argues there was insufficient evidence for the

jury to find beyond a reasonable doubt that Hill knowingly (if

constructively) possessed the firearm that was found in his car.

We review the district court’s ruling on a motion for judgment



evidence included in affidavit on which the judge relied in
issuing   a   warrant   might have  been   obtained  in  an
unconstitutional manner).
     8
       Notwithstanding the narrative set out in the body of the
affidavit, it takes no imagination to believe a judge reviewing
the affidavit in this case might easily conclude, erroneously,
that she was being asked to issue a warrant authorizing a search
for a murder weapon, and that Hill was the “person of interest”
in that murder.



                                       39
of acquittal de novo and will uphold the verdict if, viewing the

evidence in the light most favorable to the government, it is

supported by substantial evidence. United States v. Alerre, 430

F.3d 681, 693 (4th Cir. 2005). Substantial evidence is “evidence

that a reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant's guilt beyond

a reasonable doubt.” Id. (internal quotation marks omitted).

      At trial the government sought to prove Hill exercised, or

had   the      power       to     exercise,         dominion    and     control      over   the

firearm,       and   thereby          constructively       possessed      it.     See   United

States    v.    Samad,          754   F.2d    1091,      1096   (4th    Cir.    1985).      Hill

argues the government failed to prove constructive possession

because     his      two     to       three    month      ownership      of    the    car   was

insufficient to support an inference that he had knowing and

intentional control over all the personalty in the vehicle and

because there was no evidence of a “link between Hill and the

firearm – some physical evidence, statement, or conduct that

could    establish         that       Hill    had    a   ‘stake’   in    the    contraband.”

Appellant’s Br. at 37 (citing United States v. Daley, 107 Fed.

App'x. 334, 337 (4th Cir. 2004)). Moreover, he argues,

      the gun could be described as a “paperweight” at best,
      given its thoroughly rusted and unusable condition.
      The gun was not lying in the open, but was inside a
      tied, black stocking. How long that firearm had been
      sitting around is anybody’s guess, and Hill owned the
      vehicle for a matter of months. The back seat of the
      vehicle was full of stuff and the only witness who had

                                                40
     seen the vehicle before that night testified that many
     people had access to the car. The inference that Hill
     knew the firearm was there was simply not a reasonable
     inference.

Appellant’s Br. at 37-38 (citations to record omitted). 9

     The problem with Hill’s argument is that the jury concluded

otherwise, and there was substantial evidence to support its

conclusion. As the government explains and the record read in

the light most favorable to the government shows:

     Hill was the driver of the vehicle and the firearm was
     found directly behind the front passenger seat near
     the center console, which, according to Detective
     Moran was within the reach of one’s right hand when
     sitting in the driver’s seat. Moreover, both officers
     saw Hill reaching toward the exact area that the
     firearm was located.

     There are several other undisputed facts that indicate
     Hill was in constructive possession of the firearm.
     First, he was the registered owner of the car and had
     been since June 2008. Second, two BGE bills and other
     financial documents in Hill’s name were located in . .
     . either the glove compartment or the center console
     of the vehicle. Third, Bennett testified that she had
     never seen anyone else drive the car.

Gov’t Br. at 43-44 (citations to record omitted). 10


     9
        Hill’s citation to Daley, an unpublished case, is
unavailing, because the defendant there was a mere passenger of
a car he did not own and had never been in before. Hill, in
contrast, owned the vehicle and was the driver.
     10
        The government also cites the fact that Bennett believed
Hill had a gun in his pocket, but that is irrelevant to the
sufficiency of the evidence of constructive possession. At trial
the government never argued that the gun actually was in Hill’s
pocket when he put Bennett’s hand there, but once she went into
the 7-Eleven he proceeded to take the gun out of his pocket, put
(Continued)
                                41
       Having carefully reviewed the record, we think it is too

much    of    a    stretch   to     argue    the    jury     could    not   reasonably

conclude from the evidence that Hill constructively possessed

the gun. The question of whether Hill knew the gun was in the

car    and   exercised       dominion       and    control     over   it    would    have

depended largely on inferences arising from the credibility of

witnesses. Hill does not challenge the jury instructions, and

Hill argued in closing argument that he did not constructively

possess      the   weapon.    The    issues       were   for    the   jury,    and    the

district court did not err in denying the motion for judgment of

acquittal. United States v. Foster, 507 F.3d 233, 245 (4th Cir.

2007) (“A defendant challenging the sufficiency of the evidence

faces a heavy burden.”).

                                            D.

       Finally, we turn to the sentencing issue. As stated above,

Hill challenges the district court’s reliance on his April 17,

2007, conviction, pursuant to an Alford plea, to distribution of

a controlled substance and possession with intent to distribute

a controlled substance. Under the ACCA, if a person convicted

under 18 U.S.C. § 922(g)(1) has three previous convictions “for



it in a stocking, and wedge it under the seat. Rather, the
government’s theory was that even though the gun was in the
stocking behind the front passenger seat, Hill exercised
dominion and control over it.



                                            42
a   violent    felony         or    a    serious         drug     offense,”          the    mandatory

minimum    term      of      imprisonment          is     fifteen       years.        18    U.S.C.   §

924(e)(1). If a prior drug conviction was under state law, it

qualifies      as    a       “serious      drug         offense”       if    two      elements     are

satisfied:          (1)       the        offense          “involve[ed]               manufacturing,

distributing,         or      possessing           with     intent          to   manufacture         or

distribute” and (2) the maximum term of imprisonment for the

offense was ten years or more. Id. § 924(e)(2)(A)(ii).

       Hill was charged under Md. Code Ann. Crim. Law § 5-602,

which makes it unlawful to “distribute or dispense a controlled

dangerous      substance”           or    to     “possess         a    controlled           dangerous

substance in sufficient quantity reasonably to indicate under

all    circumstances           an       intent      to     distribute            or    dispense      a

controlled dangerous substance.” The penalty for a violation of

§ 5-602 depends on the substance distributed or possessed with

intent to distribute. A violation of § 5-602 “with respect to a

Schedule I or Schedule II narcotic drug” is subject to a term of

imprisonment         “not      exceeding           20     years.”       Id.      §    5-608(a).       A

violation      of        §    5-602       involving         certain          other         controlled

substances          carries         only       a        five-year           maximum         term     of

imprisonment. Id. § 5-607(a). Because the maximum penalty for a

violation of Maryland’s drug distribution statute depends on the

drug   distributed,           the       parties     agree       the     modified        categorical

approach      applies         to    determine           whether       Hill’s     conviction        (1)

                                                   43
“involve[ed]          manufacturing,         distributing,              or    possessing      with

intent to manufacture or distribute” and (2) was subject to a

maximum term of imprisonment of ten years or more.

      At sentencing the government provided certified copies of

the indictment charging Hill with distribution of a controlled

substance. The indictment alleged in Count One, the count to

which Hill tendered his Alford plea, that Hill “did distribute a

certain Controlled Dangerous Substance of Schedule # II, to wit:

cocaine,       which       is    a    narcotic     drug,      .     .    .    in   violation    of

Criminal Law Article, Section 5-602. . . .” J.A. 698. Count Two

charged       possession         with    intent        to   distribute         cocaine;       Count

Three charged simple possession of cocaine. The government also

provided       a    certified         copy   of    the      hand-written           docket   entry,

which noted that Hill pled guilty to Count One. The district

court        found        that       these   documents         satisfied            Shepard     and

established that the 2007 conviction was for distribution of

cocaine, thereby satisfying the two elements of a serious drug

offense for ACCA purposes.

      Hill         does    not   dispute      the      fact    of       his   conviction,      the

contents of the indictment, or the fact that the maximum penalty

for the charged offense was 20 years. He also does not dispute

that he pled guilty (albeit pursuant to an Alford plea) to Count

One     of     the        operative      indictment,          the       distribution        count.

Finally, he has not argued that the government’s compilation of

                                                  44
documents       from     the    state      court          fail    to    comprise        “Shepard-

approved documents” as we have employed that term in our case

law.

       Rather, in reliance on United States v. Alston, 611 F.3d

219    (2010),     Hill    argues      the      2007       conviction      is     not    an     ACCA

predicate because his guilty plea in that case was an Alford

plea, and so he did not “confirm the factual basis for the

plea.”    Appellant’s          Br.   at    41.       In    Alston,       the    defendant        had

previously been charged under a Maryland statute that was not

categorically an ACCA predicate, and entered an Alford plea to

the     charge.     Although         during      the        plea       colloquy        the     state

prosecutor had proffered evidence that Alston pointed a gun at

three    victims        and     threatened           to     kill       them,    we      held    the

sentencing       court    could      not     rely      on    the       prosecutor’s          proffer

because the defendant’s Alford plea did not “necessarily rest on

facts establishing his participation in a type of assault that

qualifies as a violent felony,” and “such facts are not inherent

in a Maryland conviction for second-degree assault.” 611 F.3d at

221.    Thus,     the    transcript        of    the       plea    colloquy       --    the     only

relevant Shepard-approved document provided in that case -- was

insufficient to support a finding that the defendant pled guilty

to an ACCA predicate offense. Id. at 221.

       Here, unlike in Alston, the government did not rely on the

plea colloquy to “narrow[] the charge to a crime that amounts to

                                                45
a predicate offense.” Id. at 226. Rather, the government relied

solely    on    the   indictment       and    the      April    17,     2007,    certified

docket entry identifying the count to which Hill pled guilty.

The    indictment     and    docket      sheet         are     both     Shepard-approved

documents, as Hill concedes. See Shepard v. United States, 544

U.S. 13, 20-21 (2005). Therefore, the problem in Alston -- that

the    Alford     plea    did    not     conclusively           determine        that    the

defendant pled guilty to an ACCA predicate -- is not present

here. Rather, the plea establishes the fact of conviction; the

Shepard-approved         documents      establish            the      “nature”     of    the

offense.       Therefore,       Hill’s        circumstances             are      materially

distinguishable from Alston’s.

       Moreover, in United States v. Washington, 629 F.3d 403,

(4th Cir. 2011), the defendant had previously been convicted

under the same statute as the one here: Md. Code Ann. Crim. Law

§ 5-602. As here, the count of the charging document to which

Washington      had   pled   guilty      charged        him    with     possession       with

intent to distribute a controlled substance, and specified the

alleged substance: “to wit: Cocaine.” J.A. 698; Washington, 629

F.3d     at    414.   This   statement            in   the     charging       document     in

Washington,      combined    with      other       court     records     confirming       the

count to which the defendant had pled guilty, was sufficient to

support the district court’s finding (by a preponderance) that

Washington      had   “faced     a     twenty-year           maximum      sentence       that

                                             46
rendered his later plea an ACCA predicate.” 629 F.3d at 414.

Although the guilty plea in Washington was not an Alford plea,

that distinction is not material, for the reasons stated above.

Here, Hill pled guilty, and the determination of which count of

the   underlying   multi-count   indictment   he   pled   guilty   to   was

confirmed by court records other than the transcript of his plea

colloquy. See also United States v. Vinton, 631 F.3d 476, 486

(8th Cir. 2011) (holding that a conviction pursuant to an Alford

plea constituted a crime of violence for Sentencing Guidelines

purposes where the charging document tracked the language of

Missouri’s second-degree assault statute, because “[a] precisely

drawn charging document can indicate the basis for conviction

whether or not the conviction was accompanied by an admission of

guilt”). 11


      11
       There is one theory on which Hill might possibly succeed
on his sentencing contention. If Hill could make a plausible
argument that he pled guilty to a lesser-included offense in
Count One, such as mere possession (rather than distribution) of
cocaine, this case would be similar to United States v. Cruz,
2012 WL 836135 (4th Cir. March 14, 2012) (unpublished), which
Hill cites in his 28(j) letter.

     In Cruz (which of course is non-precedential), the disputed
prior offense was a 2002 Oklahoma conviction for assault and
battery on a police officer. The criminal information alleged
that Cruz “knowingly commit[ted] an assault and battery upon the
person of one T.K. Talley[,] a police officer for the City of
Tulsa[,] by head butting and contending with him while he was
then and there engaged in the performance of his duties as a
police officer.” Id. at *1. Cruz pled nolo contendere to the
charge. Id. We held that the conviction was not an ACCA
(Continued)
                                   47
                              III.

    For the reasons set forth, the judgment is

                                                       AFFIRMED.




predicate because, for the plea to satisfy Shepard, Cruz would
have had to admit the facts charged in the indictment, which he
did not, because the plea was nolo contendere. In other words,
the court concluded that, even though the information charging
Cruz with assault and battery narrowed the charge, through its
factual description of the assault, to a crime that would amount
to a predicate offense, we were not permitted to “consider the
facts alleged in the state information . . . because Oklahoma
law does not posit that a defendant who enters a plea of nolo
contendere admits such facts.” Id. at *5. Put differently, the
assault and battery might well have occurred in some other
manner, and thus we were constrained to conclude that “it rested
on the least serious of the acts encompassed by Oklahoma’s
assault statute.” Id. at *6.

     In the case at bar, however, the indictment included a
separate count for possession; thus, if Hill had intended to
plead guilty to possession (rather than distribution) of
cocaine, he would have pled guilty to Count Three, not Count
One. Count One of Hill’s 2007 indictment charged one and only
one offense, distribution of cocaine. Thus, the charging
document sufficiently narrowed the charge so that it became a
“serious drug offense” and solely a “serious drug offense” under
the ACCA.

     Moreover, unlike the situation in Cruz, Hill’s indictment
was entirely devoid of factual allegations that, by virtue of
Hill’s Alford plea, he did not admit. In short, Hill pleaded
guilty to distribution of cocaine, a Schedule II narcotic, and
the indictment here provides us no more than the “bare fact of
conviction,” id. at *2, which, Alford plea or not, we may rely
on for purposes of applying ACCA enhancements.



                               48
