                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4627


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

NAARL JOSEPH RICHARD, a/k/a Noel H. Richard, a/k/a Richard
Earl, a/k/a Richard Narrl,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00992-PMD-1)


Argued:   May 17, 2013                    Decided:   June 13, 2013


Before TRAXLER, Chief Judge, KING, Circuit Judge, and HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: G. Wells Dickson, Jr., WELLS DICKSON, PA, Kingstree,
South Carolina, for Appellant.    Nathan S. Williams, OFFICE OF
THE UNITED STATES ATTORNEY, Charleston, South Carolina, for
Appellee. ON BRIEF: William N. Nettles, United States Attorney,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Naarl Joseph Richard appeals his conviction for possession

of heroin with the intent to distribute, 21 U.S.C. § 841(a)(1).

We affirm.



                                         I

                                         A

     In the Spring of 2009, detectives from the North Charleston

Police Department (NCPD) were investigating drug sales in North

Charleston,     South       Carolina.         One    of      the    persons    under

investigation was Richard.

     While    conducting      surveillance      of     an    apartment   that     the

detectives suspected was associated with drug trafficking, the

detectives observed Richard leaving the apartment and entering a

white Pontiac Gran Prix (the Car).                  On May 6, 2009, Detective

Jason   Roy   placed    a    GPS   tracking    device       underneath   the     rear

bumper of the Car, while the Car was parked in a public place.

The placement of the GPS tracking device enabled Detective Roy

to monitor the Car’s whereabouts on a laptop computer.

     On   May   31,     2009,      the   Car    left        North   Charleston     at

approximately 1:33 a.m. and arrived in Newark, New Jersey at

approximately 2:30 p.m. that same day.                      The Car remained in

Newark a little over an hour before departing at 3:49 p.m.                         At

approximately 2:30 a.m. on June 1, 2009, the Car entered South

                                         2
Carolina on Interstate 95.        Based on the Car’s travel itinerary,

Detective Roy and another NCPD detective, Detective Dan Bailey,

decided to conduct a traffic stop of the Car as it entered the

North Charleston area on Interstate 26.         As the Car was leaving

the interstate, the detectives saw the driver of the Car change

lanes without using a turn signal, a traffic violation under

South Carolina law.      Having witnessed this traffic violation,

the detectives initiated a traffic stop.

     As the detectives approached the Car, Richard was in the

passenger’s   seat.     His    girlfriend,   Katia    Coney,    was   in   the

driver’s seat.    Richard appeared nervous.          He was sweating, and

his legs were shaking.        Richard and Coney were asked to step out

of the Car, which they did.         The detectives questioned Richard

and Coney individually concerning their travel itinerary, and

they gave inconsistent accounts concerning where they had been.

     While Detectives Roy and Bailey were speaking with Richard

and Coney, an NCPD Canine Officer, Officer Anthony Danielle,

arrived on the scene.         During a perimeter canine sniff of the

vehicle,   the   drug   detection    dog   (Canine    Foster)    positively

alerted to the exterior driver’s side door.              Officer Danielle

then opened the driver’s door, allowing Canine Foster to enter

the Car.   Canine Foster then alerted on the Car’s center console

and on its rear passenger floorboards.



                                     3
       By this time, Detective Daniel Prichard had arrived on the

scene and was advised of Canine Foster’s positive alerts and the

inconsistent     accounts        given    by        Richard    and    Coney.          Upon

searching    the       Car,      Detective         Prichard     noticed        that    the

passenger’s side rocker panel was loose.                      After a search of the

area    behind    the     panel,     Detective         Prichard      recovered        five

glassine bags, each containing light brown powder.                         This powder

field-tested positive for heroin.

       A search warrant was then obtained for the Car.                            During

that   search,     a    secret    compartment,         operated      by   a    hydraulic

piston,   was    discovered       under   the       center    console     of   the    Car.

Inside this compartment, the officers found 1,000 glassine bags

containing heroin, plastic bags, a passport in Richard’s name,

and a rubber stamp.           The total amount of heroin recovered from

the Car that day was 36.2 grams.

                                              B

       On September 8, 2009, a grand jury sitting in the District

of   South   Carolina      returned       a       one-count    indictment       charging

Richard with possession of heroin with the intent to distribute,

id. § 841(a)(1).          Prior to trial, Richard filed a motion to

suppress, which the district court denied.

       Richard’s jury trial began on October 3, 2011 and concluded

on October 5, 2011.           A guilty verdict was returned by the jury.

Prior to his sentencing, Richard filed a motion to reconsider

                                              4
his motion to suppress, and, also, a motion for a new trial,

based    upon    the    Supreme     Court’s     January     23,     2012   decision       in

United States v. Jones, 132 S. Ct. 945 (2012), which held that

the installation of a GPS tracking device on a target’s vehicle,

and its subsequent use, without a valid warrant, constituted an

unlawful search under the Fourth Amendment.                    Id. at 949-54.            The

district    court       granted     Richard’s       motion     for     a    new    trial,

ordering    that       any    evidence   relating      to     the    use   of     the    GPS

tracking    device      be     suppressed.         However,    the    district      court

denied     in    part        the   motion     to    suppress,        concluding         that

suppression of the heroin found in the Car was not warranted.

The district court reasoned that a “legal traffic stop based on

probable cause that a new, distinct crime occurred−the failure

to use the turn signal−purged the taint of the illegal use of

the GPS.”       (J.A. 276).

     Richard’s retrial before a new jury began on July 9, 2012

and concluded on July 10, 2012.                 No reference to the use of the

GPS tracking device was made, and no evidence of any data from

the GPS tracking device was presented to the jury.                                 At the

conclusion of the trial, Richard was found guilty.                         On August 9,

2012, Richard was sentenced to 262 months’ imprisonment.                                  He

filed a timely notice of appeal.




                                            5
                                         II

       Richard first contends that the district court erred when

it   denied     the   motion   to    suppress    he   filed   while   awaiting

sentencing following the conclusion of his first trial.                   When

considering a district court’s denial of a motion to suppress,

we review the district court’s factual findings for clear error

and legal conclusions de novo.            United States v. Lewis, 606 F.3d

193, 197 (4th Cir. 2010).           We also construe the evidence in the

light most favorable to the government, as the prevailing party

below.    Id.

       Prior to Richard’s second trial, the district court held

that “[a]ll of the evidence relating to [Richard’s] travelling

to New Jersey and other evidence gathered using the GPS tracking

device is hereby excluded, but the evidence uncovered subsequent

to the legal traffic stop is not suppressed because the new

crime purged the taint of the illegal GPS search.”                (J.A. 276-

77).     Richard contends that, because the traffic stop would not

have taken place but for the information illegally obtained by

virtue    of    the   placement     of   the   GPS,   including   information

concerning the Car’s location on May 31 and June 1, 2009, the

district court erred when it determined that the improper lane

change constituted a new crime that purged the taint of the

illegal search.



                                         6
     The Fourth Amendment protects the “right of the people to

be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.”            U.S. Const. amend. IV.       In

general, evidence discovered as a result of a Fourth Amendment

violation is subject to suppression under the exclusionary rule.

United States v. Andrews, 577 F.3d 231, 235 (4th Cir. 2009).

However, not all evidence discovered as a result of a Fourth

Amendment    violation      is   “fruit    of   the   poisonous    tree”    and

necessarily inadmissible at trial.              Evidence derived from an

illegal     search    may   be   admissible     depending   upon    “whether,

granting establishment of the primary illegality, the evidence

to which [the] instant objection is made has been come at by

exploitation     of     that     illegality,     or    instead     by      means

sufficiently distinguishable to be purged of the primary taint.”

Wong Sun v. United States, 371 U.S. 471, 488 (1963) (citation

and internal quotation marks omitted).

     “Thus, where there is sufficient attenuation between the

unlawful search and the acquisition of evidence, the ‘taint’ of

that unlawful search is purged.”             United States v. Gaines, 668

F.3d 170, 173 (4th Cir. 2012).            In determining whether the taint

of the illegal search is purged, we evaluate several factors,

including: (1) the amount of time between the illegal action and

the acquisition of the evidence; (2) the presence of intervening

circumstances; and (3) the purpose and flagrancy of the official

                                      7
misconduct.      Id.; see also Brown v. Illinois, 422 U.S. 590, 603–

04 (1975).      In this case, we must determine whether the improper

lane change is an intervening circumstance sufficient to purge

the taint of an illegal search.                 For purposes of our discussion,

we accept the government’s apparent concession that the illegal

search       continued        until   the   NCPD    detectives     witnessed        the

improper lane change.

       In United States v. Sprinkle, 106 F.3d 613 (4th Cir. 1997),

the    police    stopped        the   defendant     for   what    they       mistakenly

believed was reasonable suspicion of criminal activity.                         Id. at

616.        When the police told the defendant they were going to

frisk him for weapons, he fled and later pulled a handgun from

his pants and fired at the pursuing officers.                    Id.    The district

court held that the firearm was the fruit of an unlawful stop,

and, thus, the firearm was inadmissible at trial.                      Id.

       On    appeal,     we    reversed,    holding    that   “[i]f      a    suspect’s

response to an illegal stop is itself a new, distinct crime,

then the police constitutionally may arrest the suspect for that

crime.”         Id.    at      619    (citation,    alteration,        and     internal

quotation marks).             In so holding, we noted that, “[b]ecause the

arrest for the new, distinct crime is lawful, evidence seized in

a search incident to that lawful arrest is admissible.”                       Id.

       In Sprinkle, we recognized the “strong policy reason for

holding that a new and distinct crime, even if triggered by an

                                            8
illegal     stop,       is   a     sufficient          intervening          event        to   provide

independent grounds for arrest.”                         Id.     “[A] contrary rule would

virtually immunize a defendant from prosecution for all crimes

he might commit that have a sufficient causal connection to the

police misconduct.”                Id. (quoting United States v. Bailey, 691

F.2d    1009,      1017      (11th        Cir.     1982)       (internal         quotation         mark

omitted)).

       In   this       case,       the    government           argues      that,     pursuant        to

Sprinkle,     the       illegal          lane    change        purged      the     taint      of    the

unlawful    search.            Richard          argues    that       the   taint       was    not    so

purged.     We agree with the government’s position.

       The stop of the Car was the result of Coney’s improper lane

change.      This act gave the NCPD detectives probable cause to

stop the Car.           United States v. Branch, 537 F.3d 328, 335 (4th

Cir. 2008) (noting that a traffic violation “provides sufficient

justification          for     a   police        officer        to    detain       the    offending

vehicle     for    as     long      as    it     takes    to     perform       the       traditional

incidents of a routine traffic stop”).                               A lawful traffic stop

justifies       detaining          the      vehicle’s          occupants         for      the      time

necessary         to      request          a      driver’s           license       and        vehicle

registration,          run     a    computer        check,       and       issue     a    citation.

United States v. Digiovanni, 650 F.3d 498, 507 (4th Cir. 2011).

During the stop, an officer may briefly inquire into unrelated

matters, but may not definitively abandon the prosecution of the

                                                   9
traffic      stop    and     embark     on        another    sustained       course      of

investigation absent additional justification.                         Id. at 507-08.

The officer may take other actions that do not constitute a

search    within     the    meaning     of    the    Fourth    Amendment,         such   as

conducting a perimeter canine sniff of the vehicle, Illinois v.

Caballes, 543 U.S. 405, 409 (2005), but again only “so long as

those inquiries [or other actions] do not measurably extend the

duration of the stop.”            Arizona v. Johnson, 555 U.S. 323, 333

(2009).

       In this case, the perimeter canine sniff occurred while the

detectives were resolving the inconsistencies given by Richard

and Coney.         Canine Foster alerted on the perimeter of the Car,

which provided probable cause to search the car.                          Branch, 537

F.3d    at   340    n.2     (positive    alert       from    the   canine     unit       was

sufficient to provide probable cause to search defendant’s car).

Heroin initially was found pursuant to a warrantless probable

cause     search     and    additionally          found     pursuant    to    a    search

warrant.      Under the circumstances of this case, although the

time between the illegal search and the discovery of the heroin

was not substantial, the improper lane change was an intervening

circumstance        which    purged     the       taint,     especially      since       the

conduct of the detectives was not flagrant.

       In reaching our decision, we make two observations.                         First,

a contrary result would run afoul of our decision in Sprinkle

                                             10
because suppressing the heroin in this case would “virtually

immunize”     defendants         who       commit     crimes      following      any    police

misconduct.         Sprinkle, 106 F.3d at 619 (citation and internal

quotation marks omitted).                   Second, our decision is consistent

with our recent decision in Gaines.                      In that case, the officers

illegally stopped the defendant.                       668 F.3d at 171.               During a

subsequent       illegal      pat-down           of   the     defendant,        one    of   the

officers      discovered      a       handgun.          Id.        The      defendant       then

assaulted     the    two   police          officers.        Id.       The      defendant     was

indicted on one count of possession of a firearm by a convicted

felon.     Id.    Prior to trial, the defendant moved to suppress the

firearm because the stop and search of his person violated the

Fourth Amendment.          Id.     The government argued that, pursuant to

Sprinkle,     the     taint      of     the      unlawful      stop      was    purged      when

defendant assaulted the officers.                        Id. at 174.             However, we

distinguished Sprinkle by noting that the firearm in that case

“was   only      discovered       after      the      defendant     engaged      in    illegal

activity    subsequent        to      an    earlier     unlawful      stop.”          Id.     In

Gaines,    the     discovery       of      the    firearm      took   place      before     the

defendant’s         subsequent          criminal         conduct;         therefore,         the

subsequent criminal conduct could not constitute an intervening

event for purposes of suppressing the firearm.                           Id.

       In this case, similar to Sprinkle, there was an intervening

circumstance,       namely     the         traffic     violation,     that      severed      the

                                                 11
causal connection between the unlawful search and the discovery

of the evidence.            The detectives discovered the heroin after

another     crime    was    committed.            Consistent      with    Sprinkle    and

Gaines, we hold that the traffic violation purged the taint of

the   unlawful      search,     and   that    the    actions       of    the   detectives

following the stop were reasonable under the Fourth Amendment.

Accordingly, the district court did not err when it denied the

motion     to   suppress      Richard       filed    while     awaiting        sentencing

following the conclusion of his first trial.



                                            III

      Richard also challenges the 262-month sentence imposed by

the district court.             We review a sentence for reasonableness,

applying a deferential abuse-of-discretion standard.                             Gall v.

United     States,    552   U.S.      38,   51    (2007).         In    conducting    this

review, we must first ensure that the district court committed

no significant procedural error, such as improper calculation of

the Sentencing Guidelines range, insufficient consideration of

the   18   U.S.C.    §   3553(a)      factors      and   the   parties’        sentencing

arguments, and inadequate explanation of the sentence imposed.

United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).                               If

the sentence is free from significant procedural error, we also

review the substantive reasonableness of the sentence.                          Id.    The

sentence     imposed     must    be    “sufficient,         but    not    greater     than

                                            12
necessary,        to    comply       with    the      purposes”     of    sentencing.         18

U.S.C.       § 3553(a).          A    within-Guidelines            sentence     is    presumed

reasonable        on    appeal,      and    the       defendant     bears   the      burden   to

rebut       the   presumption        by     demonstrating          that   the   sentence      is

unreasonable           when    measured       against        the    §     3553(a)     factors.

United      States      v.    Montes–Pineda,           445   F.3d    375,   379      (4th   Cir.

2006).

                                                  A

        Richard first challenges the procedural reasonableness of

his   sentence,         arguing      that    the       district     court   erred      when   it

designated him as a career offender. *                       Pursuant to United States

Sentencing Commission, Guidelines Manual (USSG), § 4B1.1(a), a

defendant is a career offender if:

        (1) the defendant was at least eighteen years old at
        the time the defendant committed the instant offense
        of conviction; (2) the instant offense of conviction
        is a felony that is either a crime of violence or a
        controlled substance offense; and (3) the defendant
        has at least two prior felony convictions of either a
        crime of violence or a controlled substance offense.

USSG § 4B1.1(a).




        *
       As a career offender, Richard was placed at an Offense
Level 34, Criminal History Category VI, which produced a
sentencing range of 262 to 327 months’ imprisonment.    Without
the career offender designation, Richard would have been placed
at an Offense Level 20, Criminal History Category VI, which
would have produced a sentencing range of 70 to 87 months’
imprisonment.



                                               13
       In   designating         Richard   a    career    offender,      the   probation

officer did not specify which prior convictions satisfied the

dictates of USSG § 4B1.1(a).                   Instead, the probation officer

stated that “[a]s is shown in Part B (Criminal History) above,

the    defendant      has   been    convicted       of   at     least   two   (2)   prior

felony convictions of either a crime of violence or a controlled

substance offense.”             (J.A. 539).        The district court adopted the

Guidelines calculations of the probation officer.

       On appeal, Richard takes issue with three prior convictions

in the PSR.         First is his prior conviction for attempted murder

under New Jersey law.             This offense occurred on August 3, 1992,

and Richard was arrested on October 7, 1992.                        He was sentenced

on April 26, 1993.              The second and third convictions are for

possession of a controlled dangerous substance under New Jersey

law.     The offenses occurred on different days, one on February

24, 2001, the other on June 15, 2001.                     Richard was arrested on

the occurrence date for these offenses, and he was sentenced on

the same day for these offenses, July 12, 2002.

       With respect to the attempted murder conviction, Richard

argues      that    the   conviction      occurred       more    than   fifteen     years

prior to the instant offense and should not count as a crime of

violence.          See USSG § 4A1.2(e)(1) (setting forth fifteen-year

operative window).           Richard’s instant offense occurred on June

1,    2009,   making      the    fifteen-year        operative     window     for   prior

                                              14
convictions     June    1,    1994.     On     October    7,   1992,    Richard    was

arrested for attempted murder, and he was sentenced to twelve

years’ imprisonment on April 26, 1993.                   Richard was paroled on

December 24, 1997 and his supervision expired on July 25, 2000.

     USSG § 4B1.2(c) provides that a “prior felony conviction”

is   measured     by    the     date     the     conviction      is     established.

Application Note 3 to USSG § 4B1.2 states that USSG § 4A1.2

applies to the counting of convictions under USSG § 4B1.1.                        This

Guideline provides in pertinent part:

     Any prior sentence of imprisonment exceeding one year
     and one month that was imposed within fifteen years of
     the defendant’s commencement of the instant offense is
     counted.      Also   count   any    prior   sentence   of
     imprisonment   exceeding   one   year   and  one   month,
     whenever imposed, that resulted in the defendant being
     incarcerated during any part of such fifteen-year
     period.

USSG § 4A1.2(e)(1).

     Because Richard was incarcerated within fifteen years of

the commencement of the instant offense, his prior attempted

murder conviction qualifies as a predicate offense pursuant to

USSG § 4B1.1(a) and USSG § 4A1.2(e)(1).

     Richard     also        takes    issue    with      the   two     offenses   for

possession of a controlled dangerous substance.                        According to

Richard, both convictions could not be used because he received

concurrent sentences on the same day for these offenses.




                                         15
         Putting aside for the moment the fact that only one of

these convictions is necessary to uphold Richard’s designation

as   a    career    offender,    both    convictions    qualify     as    predicate

prior convictions.          Under USSG § 4A1.2(a)(2), “[p]rior sentences

always are counted separately if the sentences were imposed for

offenses that were separated by an intervening arrest (i.e., the

defendant is arrested for the first offense prior to committing

the second offense).”            USSG § 4A1.2(a)(2).            Richard committed

one possession of a controlled dangerous substance offense on

February 24, 2001, and he was arrested on that same day for the

offense.      He committed the second offense on June 15, 2001.

Because     there     was   an   intervening    arrest      between      these   two

offenses,      the    convictions       must   be   counted       separately     for

purposes of determining whether Richard qualifies as a career

offender.

                                          B

         Richard also challenges the substantive reasonableness of

his sentence, arguing that he should have received a sentence

significantly below the sentence imposed by the district court.

According     to     Richard,    his    designation    as   a    career    offender

overstated the seriousness of his actual criminal history.                       The

district      court    considered       this   argument     but     rejected     it,

stating, “I’m looking at [the] Guidelines that tell me what I

should do.     And I haven’t heard anything from you, though you’ve

                                          16
tried, that would take you outside those Guidelines.”                           (J.A.

519).

       Here,     the   district    court    adopted      the    extensive   findings

contained in the PSR, considered the § 3553(a) factors, provided

a     detailed    individualized       assessment,        responded    to   defense

counsel’s argument for a below-Guidelines sentence, and clearly

explained the imposed sentence.                  In our view, neither Richard

nor     the      available        record        rebuts    the     presumption      of

reasonableness accorded his within-Guidelines sentence.                     Montes–

Pineda, 445 F.3d at 379.



                                           IV

       For the reasons stated herein, the judgment of the district

court is affirmed.

                                                                            AFFIRMED




                                           17
