USA v. Derrek Lamar Pritchard

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEB 24, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-11431
Non-Argument Calendar
________________________
D.C. Docket No. 9:10-cr-80135-DMM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
DERREK LAMAR PRITCHARD,
a.k.a. Derrick Larkins,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 24, 2012)
Before CARNES, WILSON and BLACK, Circuit Judges.
PER CURIAM:

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Derrek Lamar Pritchard appeals his conviction and 240-month sentence for
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g).
Pritchard raises six issues on appeal, arguing that the district court erred in:
(1) denying his motion to suppress the firearm officers discovered during an
unconstitutional traffic stop; (2) denying his motions for acquittal, even though
§ 922(g) was unconstitutional as applied to his conduct; (3) sentencing him as an
armed career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e); (4) enhancing his sentence pursuant to the ACCA based on prior
convictions that were neither alleged in the indictment nor found beyond a
reasonable doubt by the jury; (5) sentencing him beyond the ACCA’s 15-year
minimum term of imprisonment; and (6) imposing a sentence that is substantively
unreasonable. After review, we affirm the district court.
I.
Pritchard claims the district court erred in denying his motion to suppress
the firearm discovered after Officer Robert McGinley of the West Palm Beach
Police Department initiated a traffic stop of a car in which Pritchard was a
passenger. During the stop, McGinley and a second officer, Micki Allen, asked
Pritchard and the driver to exit the vehicle. Shortly thereafter, McGinley ordered
Allen to search Pritchard, but before the search could take place, Pritchard
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dropped a gun from his waistband onto the ground. Pritchard argues the district
court should have suppressed evidence of the gun because (1) McGinley lacked
probable cause to stop the car, and (2) the officers searched Pritchard without
having the requisite reasonable suspicion that he was armed and dangerous.
We review a district court’s denial of a motion to suppress as a mixed
question of law and fact. United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir.
2009). Rulings of law are reviewed de novo, while the district court’s findings of
fact are reviewed for clear error. Id. Factual findings are reviewed in the light
most favorable to the prevailing party in the district court. Id. We accord
considerable deference to the district court’s credibility determinations and accept
its understanding of the facts, “unless it is contrary to the laws of nature, or is so
inconsistent or improbable on its face that no reasonable factfinder could accept
it.” United States v. Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004).
The district court did not err in rejecting Pritchard’s claim that the initial
traffic stop was unconstitutional. Under the Fourth Amendment, a traffic stop is
reasonable, and therefore constitutional, if the officer conducting the stop has
probable cause to believe a traffic violation has occurred. United States v. Harris,
526 F.3d 1334, 1337 (11th Cir. 2008). In this case, after reviewing the evidence,
the district court found credible McGinley’s testimony that he initiated the traffic
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stop after observing the car run a stop sign. As a result, the district court ruled that
the traffic stop was constitutional. Pritchard challenges only the district court’s
credibility determination, arguing that the totality of the circumstances casts some
doubt on McGinley’s account of the events. Even if we were to accept1
Pritchard’s characterization of the totality of the circumstances, however,
Pritchard fails to argue, much less establish, that a reasonable factfinder could not
accept McGinley’s testimony as true based on the record. Accordingly, we accept
the district court’s credibility determination and find that the district court did not
err in finding that McGinley had probable cause for the traffic stop.
Pritchard next argues that regardless of the constitutionality of the initial
stop, the “warrantless search of [] Pritchard was in violation of the Fourth
Amendment.” Pritchard’s argument, however, does not directly challenge any
relevant factual or legal finding of the district court. In denying Pritchard’s
motion to suppress, the district court found that the officers “acted reasonably in
ordering the passenger to step out of the car and preparing to conduct a search of
the–or at least the pat-down search of the passenger. It never came to that point
Pritchard cites the following facts as discrediting McGinley’s testimony: (1) the traffic1
stop took place in an area McGinley described as known for high crime and gun violence; (2) the
two individuals in the car were African-American males; (3) McGinley was unsure of exactly
where–in relation to the stop sign at the particular intersection–the car transporting Pritchard
should have come to a full stop under Florida law; (4) McGinley and Allen did not cite the driver
for failing to stop.
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because the gun–the defendant voluntarily dropped the gun in an effort to avoid
detection.” Stated differently, the district court found that Pritchard voluntarily
dropped the gun before the officers reached the point of conducting a pat-down
search of Pritchard. On appeal, Pritchard does not directly challenge this
conclusion, apparently ignoring the district court’s stated grounds for denying the
motion to suppress. He instead argues only that the pat-down search, which
undisputedly never occurred, was unconstitutional. Because Pritchard’s position
does not challenge any relevant district court finding, we find his argument
unavailing and affirm the district court.2
II.
Pritchard argues that § 922(g) is unconstitutional as applied because his
criminal conduct did not substantially affect interstate commerce. A constitutional
challenge to § 922(g) is a question of law reviewed de novo. United States v.
Scott, 263 F.3d 1270, 1271 (11th Cir. 2001).
We have held that § 922(g) is not unconstitutional as applied to a defendant,
where the “government demonstrated that the firearm in question had travelled in
interstate commerce.” United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir.
Although we need not decide these issues, we note (1) the record indicates that2
Pritchard consented to be searched and (2) the officers’ search would have been supported by
reasonable suspicion.
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2011) (quotation omitted). Here, Pritchard concedes that the Government
presented evidence that the firearm at issue had traveled in interstate commerce
and acknowledges that his argument is at odds with this Court’s binding
precedent. Accordingly, we find the district court’s application of § 922(g) was
not unconstitutional.
III.
Pritchard argues the district court committed four reversible errors in
imposing his 240-month sentence. He first contends that the district court erred in
sentencing him as an armed career criminal under the Armed Career Criminal Act
(ACCA) because his two prior convictions for resisting arrest with violence, in
violation of Fla. Stat. § 843.01, do not qualify as predicate violent felony
offenses. Our precedent, however, forecloses this argument. See United States v.3
Nix, 628 F.3d 1341, 1342 (11th Cir. 2010) (holding that a conviction for a
violating Fla. Stat. § 843.01 constitutes a violent felony under the ACCA). We
reject Pritchard’s argument that the law of this Circuit is inconsistent with the
Supreme Court’s decision in Sykes v. United States, --- U.S. ---, 131 S.Ct. 2267
Whether a prior conviction is a violent felony for purposes of the ACCA is a question3
of law reviewed de novo. United States v. McGill, 618 F.3d 1273, 1274-75 (11th Cir. 2010).
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(2011).4
Pritchard also argues that the district court improperly relied on prior
convictions–that were neither alleged in the indictment nor found by the jury
beyond a reasonable doubt–to enhance his sentence pursuant to the ACCA. The
Supreme Court has held that prior convictions “relevant only to the sentencing of
an offender found guilty of the charged crime” do not need to be charged in an
indictment or proved to a jury beyond a reasonable doubt. Almendarez-Torres v.
United States, 523 U.S. 224, 228-35 (1998). Accordingly, the district court did
not err in enhancing Pritchard’s sentence based on the prior convictions.
Pritchard next argues that because § 924(e) does not provide for a maximum
penalty, he cannot be sentenced beyond the 15-year minimum term of
imprisonment provided by the statute. This Court, however, has explicitly rejected
this argument and has held that “the maximum penalty, for convictions covered by
the § 924(e) sentencing enhancement [] is life imprisonment.” United States v.
Rozier, 598 F.3d 768, 772 (2010) (citation omitted). Pritchard’s contention thus
fails.
Finally, Pritchard argues that his 240-month term of imprisonment is
We find persuasive the analysis in United States v. Williams, 438 F. App’x 812, 8134
(11th Cir. 2011) (unpublished) (rejecting argument that Sykes overruled Nix).
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substantively unreasonable because (1) the district court simply presumed, without
considering relevant sentencing factors, that a sentence within the guidelines range
was appropriate and (2) the sentence imposed is greater than necessary to comply5
with the purposes of 18 U.S.C. § 3553(a). Pritchard’s argument that the district
court impermissibly assumed that a sentence within the guidelines range would be
reasonable is based entirely on the fact that during sentencing, the district court
judge stated, “I do think a sentence within the advisory guidelines is adequate and
reasonable.” This statement, even removed from its context, does not establish
that the district court failed to consider § 3553(a)’s sentencing factors. Moreover,
the record shows that as part of the same colloquy, the district court explicitly
referred to, and considered, “the seriousness of the crime, the characteristics of the
offender, and the need to protect the public from further crime.” As a result, we
find that the district court did not impermissibly assume the reasonableness of the
sentence imposed.
Pritchard’s argument that the district court imposed a substantively
unreasonable sentence also fails. A sentence is substantively unreasonable if,
based on the totality of the circumstances, the district court committed a “clear
While Pritchard refers to this purported error as substantive, “failing to consider the5
§ 3553(a) factors” is a procedural error. Gall v. United States, 552 U.S. 38, 51 (2007).
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error of judgment” in weighing the § 3553(a) sentencing factors. United States v.
Irey, 612 F.3d 1160, 1189-90 (11th Cir. 2010). The party challenging the sentence
has the burden of establishing that the sentence was unreasonable. United States
v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). Although we do not automatically
presume the reasonableness of a sentence, “we ordinarily . . . expect a sentence
within the Guidelines range to be reasonable.” United States v. Hunt, 526 F.3d
739, 746 (11th Cir. 2008) (quotation omitted). Here, the 240-month sentence
represented the low end of the guideline range, and Pritchard presents nothing in
the record indicating that the district court committed a “clear error of judgment.”
We thus find that the district court did not impose a substantively unreasonable
sentence.
AFFIRMED.
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