                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  July 20, 2015
                                     PUBLISH                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
 v.                                                     No. 14-6023
 JOHN HENRY SNYDER, II,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE WESTERN DISTRICT OF OKLAHOMA
                   (D.C. NO. 5:11-CR-00027-F-1)


Susan M. Otto, Federal Public Defender, Office of the Federal Public Defender,
Oklahoma City, Oklahoma, for Appellant.

Steven W. Creager, Special Assistant United Stated Attorney (Sanford C. Coats,
United States Attorney, and Arvo Q. Mikkanen, Assistant United States Attorney,
with him on the brief), Office of the United States Attorney, Oklahoma City,
Oklahoma, for Appellee.


Before BRISCOE, Chief Judge, TYMKOVICH, and MORITZ, Circuit Judges.


TYMKOVICH, Circuit Judge.


      John Snyder was stopped for a traffic offense and, upon approaching the

vehicle, the investigating officer smelled the odor of burnt marijuana. Officers
then searched his car and discovered a firearm under the driver’s seat, which

Snyder admitted was his. Snyder was convicted for unlawful possession of the

firearm and because of a number of previous felony convictions, received a

lengthy 180-month sentence under the Armed Career Criminal Act’s (ACCA)

mandatory minimum sentencing provision.

      Snyder raises two issues on appeal. First, he argues his vehicle was

searched without probable cause in violation of the Fourth Amendment. We find

this argument foreclosed by circuit precedent holding that the smell of burnt

marijuana is sufficient to establish probable cause for a vehicle cabin search.

      Second, Snyder challenges the applicability of the ACCA, arguing both that

its residual clause is unconstitutionally vague and that applying it to increase his

sentence violates due process. Our treatment of this issue is controlled by the

Supreme Court’s recent decision in Johnson v. United States, in which the Court

held that the statute’s residual clause was void for vagueness. No. 13-7120, slip

op. at 15 (U.S. June 26, 2015). As a result, we REMAND and direct the district

court to vacate Snyder’s sentence and re-sentence him.

                                 I. Background

      An Oklahoma City police officer observed John Snyder’s vehicle straddle

the lane line between the driving and turning lanes, a violation of the municipal

code. As he was preparing to stop the car, the officer watched as Snyder began

driving down the center of the roadway. He then initiated a traffic stop and

                                         -2-
approached the vehicle, which contained Snyder and one other passenger. While

standing outside the car and speaking with Snyder, the officer smelled burnt

marijuana emanating from the inside of the car. After Snyder provided a driver’s

license and an expired insurance verification document, the officer decided to

search the vehicle based on the burnt marijuana smell.

      After calling for backup, the officer asked Snyder to step out of the car.

Snyder initially refused to do so, but abruptly exited the vehicle and attempted to

walk away when the officer opened the door. When the officer attempted to

direct Snyder back to his car, Snyder attempted to flee and a brief scuffle ensued.

Snyder was eventually restrained and began yelling at a passenger in the car that

he should “go with it or leave with it.” R., Vol. III, Doc. 66 at 18.

      Additional officers arrived on scene and began to search the vehicle.

Although they did not find any marijuana, they did find a firearm underneath the

driver’s seat. Snyder admitted the gun was his and he was eventually charged

with being a felon in possession of a firearm and ammunition. Snyder

subsequently moved to suppress the gun and the statements he made after his

arrest, claiming that reasonable suspicion did not support the scope of the traffic

stop and that the search was improper. The district court denied Snyder’s motion,

finding that the car would have been impounded either because of Snyder’s arrest

or his lack of current automobile insurance, and that a subsequent inventory




                                          -3-
search inevitably would have led to the discovery of the firearm. Snyder entered

an unconditional guilty plea.

      Snyder then filed a motion to vacate his conviction under 28 U.S.C. § 2255,

claiming his counsel was ineffective for failing to inform him that he could enter

a conditional guilty plea. The district court agreed, and as a result, vacated the

guilty plea and set the case for trial. Snyder was convicted after a bench trial at

which he again unsuccessfully objected to the admissibility of the firearm and his

statements concerning its ownership.

      At sentencing, the district court determined that Snyder was an armed

career criminal under the ACCA. As the court found, Snyder had twice been

convicted of possession of cocaine with intent to distribute and had an additional

conviction for attempted aggravated eluding of a police officer. The district court

thus sentenced Snyder to the statutory mandatory minimum of 180 months’

imprisonment.

                                   II. Analysis

      Snyder raises two issues on appeal. First, he argues that the district court

erred in denying his motion to suppress the firearm upon which his conviction is

based. Second, Snyder argues that the application of the ACCA to his sentence

was unconstitutional.




                                          -4-
      A. Legality of the Search

      When reviewing a district court’s denial of a motion to suppress, we

consider “the totality of the circumstances and view[] the evidence in the light

most favorable to the government.” United States v. Madden, 682 F.3d 920, 924

(10th Cir. 2012). Although we review the district court’s factual findings for

clear error, id., “[t]he ultimate determination of reasonableness under the Fourth

Amendment . . . is a question of law reviewed de novo,” id. at 924–25. We can,

of course, “affirm a lower court’s ruling on any grounds adequately supported by

the record, even grounds not relied upon by the district court.” United States v.

Mabry, 728 F.3d 1163, 1166 (10th Cir. 2013) (quoting Elwell v. Byers, 699 F.3d

1208, 1213 (10th Cir. 2012)) (internal quotation marks omitted), cert. denied, 134

S. Ct. 1354 (2014).

      Snyder argues the district court erred in finding that the firearm police

recovered from his car was admissible regardless of the legality of the actual

search because it fell under the inevitable discovery doctrine. As we have

previously stated, the inevitable discovery doctrine allows evidence to be

introduced “if an independent, lawful police investigation inevitably would have

discovered it.” United States v. Martinez, 512 F.3d 1268, 1273 (10th Cir. 2008)

(quoting United States v. Cunningham, 413 F.3d 1199, 1203 (10th Cir. 2005)).

As noted above, the district court found that the police intended to impound the

vehicle after Snyder’s arrest and therefore the firearm inevitably would have been

                                        -5-
found during the corresponding inventory search. Snyder both contests the

inevitability of the inventory search and argues the inevitability doctrine does not

apply because the traffic stop at issue exceeded constitutional bounds prior to his

arrest.

          We need not reach the applicability of the inevitability doctrine. Instead,

we agree with the government that the record clearly establishes the officers had

probable cause to search Snyder’s vehicle based on the marijuana smell

emanating from the car.

          “[W]hen . . . officers have probable cause to believe that an automobile

contains contraband, the Fourth Amendment does not require them to obtain a

warrant prior to searching the car for and seizing the contraband.” Florida v.

White, 526 U.S. 559, 563–64 (1999). Our cases establish that the smell of burnt

marijuana alone establishes probable cause to search a vehicle for the illegal

substance. United States v. Johnson, 630 F.3d 970, 974 (10th Cir. 2010); see

also, e.g., United States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir. 1993) (noting

“the smell of marijuana is sufficient to establish probable cause to search” the

passenger compartment for marijuana). In Johnson, we held that “the odor of

marijuana by itself is sufficient to establish probable cause.” 630 F.3d at 974.

Thus, “[b]ecause the district court specifically found . . . there was a strong odor

of burnt marijuana emanating from the car when [the officer] approached to




                                            -6-
question the passengers, we can find no error in the conclusion that probable

cause was established to justify the search of the car.” Id. 1

      Snyder resists this conclusion, arguing that the odor of marijuana was not

the sole basis for our probable cause finding in Johnson because there were other

factors that indicated illegal activity in that case. Although there were other facts

that could have supported a probable cause finding in Johnson, the court did not

rely on those facts—“We will briefly comment on some of these [other facts] even

though the strong odor of marijuana in itself justified the search.” Id. (emphasis

added). Other circuits to address this question have also found that the smell of

burnt marijuana alone provides probable cause to search the cabin of a vehicle.

See, e.g., United States v. Peters, 743 F.3d 1113, 1118 (7th Cir. 2014); United

States v. Caves, 890 F.2d 87, 91 (8th Cir. 1989). Likewise, the officers here were

entitled to rely on the smell of burnt marijuana, which was detectable from

outside the vehicle, to establish probable cause to search the passenger cabin.


      1
         Although he does not concede the point, Snyder has not presented any
arguments challenging the initial traffic stop, so we need not review its legality
here. Nonetheless, he does argue that the initial stop exceeded its lawful scope,
citing United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995) (noting
that a stop must be “reasonably related in scope to the circumstances which
justified the interference in the first place”). As we already explained, our cases
allow an expanded stop where, as here, the officer develops probable cause to
believe the passenger compartment contains contraband. See, e.g., United States
v. Sandoval, 29 F.3d 537, 540 (10th Cir. 1994) (noting further questioning and
detention of a driver are permissible when “during the course of the traffic stop
the officer acquires an objectively reasonable and articulable suspicion that the
driver is engaged in illegal activity”).

                                          -7-
      In the end, Snyder does not challenge the district court’s finding that the

original officer detected the smell of burnt marijuana beyond noting that the

officer’s testimony on this point was uncorroborated. We, however, are bound by

the district court’s factual findings unless clearly erroneous. Finding no clear

error, we conclude the smell of marijuana from the car supplied officers with

probable cause to search the cabin of Snyder’s car.

      B. Armed Career Criminal Act

      The ACCA establishes a minimum fifteen-year sentence for anyone with

three separate felony convictions for violent or serious drug offenses who is

subsequently convicted of a firearms offense under 18 U.S.C. § 922(g). 18

U.S.C. § 924(e). A violent offense for purposes of the Act includes “any crime

punishable by imprisonment for a term exceeding one year” that “is burglary,

arson, or extortion, [or] involves use of explosives.” Id. § 924(e)(2)(B).

      In addition to these enumerated violent crimes, § 924 goes on to expand the

definition of a violent offense in its so-called residual clause, which includes

crimes that “otherwise involve[] conduct that presents a serious potential risk of

physical injury to another.” Id. Unfortunately, determining which crimes present

a sufficiently serious potential risk of physical injury and thus qualify under the

statute’s residual clause is not as simple as it might sound, and § 924’s language

has triggered a cascade of confounding decisions by the Supreme Court and lower

courts.

                                         -8-
      Snyder does not contest that he has two prior convictions that fall within

the ACCA’s definition of serious drug offenses. Rather, his challenge is limited

to the district court’s use of the residual clause to find that his prior conviction

for attempted aggravated eluding a police officer was a third qualifying felony

under the Act. He contends the state of affairs described above means the

residual clause is unconstitutionally vague because the clause “fails to give a

person of ordinary intelligence fair notice that his contemplated conduct is

forbidden.” See United States v. Batchelder, 442 U.S. 114, 123 (1979) (quoting

United States v. Harriss, 347 U.S. 612, 617 (1954)). He thus argues that

application of the clause violates due process.

      And the Supreme Court agrees. The Court held recently in Johnson v.

United States, that the ACCA’s residual clause is unconstitutionally vague. No.

13-7120, slip op. at 15 (U.S. June 26, 2015). Johnson was the Court’s fifth

attempt in the past decade at defining the contours of the ACCA’s residual clause,

an experiment it now deems a “failed enterprise.” Id. at 10. Reviewing its

efforts, the Court concluded these “repeated attempts and repeated failures to

craft a principled and objective standard out of the residual clause confirm its

hopeless indeterminancy.” Id. at 7. Simply put, no consistently applicable

principle exists with which to differentiate crimes which pose a serious risk of

injury—similar to that posed by the enumerated crimes in § 924—from those that

do not. As a result, the provision violates the Fifth Amendment’s due process

                                           -9-
protections because it fails to “give ordinary people fair notice of the conduct it

punishes” and invites “arbitrary enforcement” of the law. Id. at 3–4.

      In a residual clause case similar to the one here, the Supreme Court rejected

a vagueness challenge and found § 924’s residual clause covered an Indiana law

prohibiting the use a vehicle to “flee[] from a law enforcement officer after the

officer has . . . identified himself and ordered the person to stop.” Sykes v. United

States, 131 S. Ct. 2267, 2271 (2011). That crime bears obvious factual

similarities to Snyder’s conviction for attempted aggravated eluding a police

officer. Nonetheless, Johnson is binding on us. Despite an invitation from the

dissent to hold otherwise, the Court’s opinion is clear that applying the residual

clause violates due process in all instances, even when the felony at issue falls

cleanly within its scope. See Johnson, slip op. at 10–11. 2 As a result, the Court

explicitly overturned Sykes, id. at 15, and concluded with the unqualified

statement that, “imposing an increased sentence under the residual clause of the

Armed Career Criminal Act violates the Constitution’s guarantee of due process,”

id.

      Given this holding, we conclude that the district court violated Snyder’s

due process rights when it sentenced him under the ACCA based on an

application of the Act’s residual clause.

      2
         For this reason, we reject the government’s argument that Snyder lacks
standing because the eluding police offense would be a violent felony under any
interpretation of the residual clause.

                                         -10-
                               III. Conclusion

      The district court’s denial of Snyder’s motion to suppress is AFFIRMED.

Given the Supreme Court’s recent decision finding the Armed Career Criminal

Act’s residual clause unconstitutionally vague, we REMAND and direct the

district court to vacate Snyder’s sentence and re-sentence him.




                                       -11-
