United States v. Marsh

95 F.4th 464

UNITED STATES of America, Plaintiff-Appellee, v. Herbert MARSH, Defendant-Appellant.

No. 22-5746

United States Court of Appeals, Sixth Circuit

Argued: January 24, 2024

Decided and Filed: March 12, 2024

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:18-cr-00192-3—William Lynn Campbell Jr., District Judge.

ARGUED: Lauren E. Ross, MUNGER, TOLLES & OLSON LLP, Washington, D.C., for Appellant. Rascoe Dean, UNITED STATES ATTORNEY'S OFFICE, Nashville, Tennessee, for Appellee. ON BRIEF: Lauren E. Ross, MUNGER, TOLLES & OLSON LLP, Washington, D.C., for Appellant. Rascoe Dean, UNITED STATES ATTORNEY'S OFFICE, Nashville, Tennessee, for Appellee.

Before: McKEAGUE, LARSEN, and MURPHY, Circuit Judges.

LARSEN, J., delivered the opinion of the court in which McKEAGUE and MURPHY, JJ., joined. MURPHY, J. (pp. 473-75), delivered a separate concurring opinion.

OPINION

LARSEN, Circuit Judge.

Herbert Marsh and two others robbed a Nashville pawn shop at gunpoint, stealing eleven firearms and more than $8,000 in cash. They were subsequently charged with Hobbs Act robbery and several firearms offenses. Marsh's co-conspirators pleaded guilty, but Marsh did not. After the district court denied his motion to suppress, Marsh proceeded to trial and was convicted by a jury on six of the seven charges against him. On appeal, Marsh challenges the denial of his suppression motion and contends that the district court imposed a procedurally unreasonable sentence. For the following reasons, we AFFIRM.

I.

On the morning of June 26, 2018, Herbert Marsh, Hakeem Mannie, and James Horton pulled up to Music City Pawn #3 in Nashville, Tennessee. They wore masks and gloves, and Horton was armed with a black pistol with an extended magazine. As the men entered the store, Horton pointed his gun at the two employees and ordered them to the ground. Marsh carried one of the employees by his belt buckle to the back of the store and ordered him to open the safe. Mannie emptied the cash registers at the front of the store. The three robbers ultimately stole eleven firearms and more than $8,000 in cash.

The next day, Marsh, Mannie, Horton, and a fourth person were riding in Marsh's car when they caught the attention of two Nashville police officers. The officers thought that Marsh's gray BMW sedan resembled the vehicle description in a "be on the lookout" report they had received, so they began to follow the car, waiting for it to commit a traffic violation. After a few minutes, Marsh's car arrived at a red light at the intersection of 24th Avenue North and Rosa Parks Boulevard. When the light turned green, the car turned left into the outside right lane of Rosa Parks Boulevard, which has two lanes of traffic traveling in each direction. The officers believed that Tenn. Code Ann. § 55-8-140(2) required drivers turning left to enter the lane closest to the center of the road (i.e., the leftmost lane), so they initiated a traffic stop of Marsh's vehicle. While speaking with the driver, Horton, the officers determined that they had probable cause to search the vehicle for drugs. The search turned up marijuana and five firearms—three in a backpack in the trunk, and two in the locked glovebox. Of the five firearms, four were identified as stolen in the previous day's robbery of Music City Pawn, and the fifth was identified as stolen in an unrelated incident. The latter firearm, a Springfield XD .45 caliber, was the gun brandished by Horton during the robbery. The officers arrested Marsh, Mannie, and Horton.

A federal grand jury subsequently charged Marsh with seven offenses: conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) (Count One); Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) (Count Two); the use, carry, and brandishing of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2 (Count Three); theft of firearms from a federal firearm licensee's business inventory in violation of 18 U.S.C. §§ 922(u), 924, and 2 (Count Four); possession of a stolen firearm in violation of 18 U.S.C. §§ 922(j), 924, and 2 (Count Five); possession of a firearm as a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924 (Count Six); and attempted witness tampering in violation of 18 U.S.C. § 1512(b)(1) (Count Seven).

Marsh moved to suppress the evidence obtained from the search of his car on the ground that the traffic stop was unlawful. At the suppression hearing, Marsh argued that Horton "didn't violate the law in making th[e] [left] turn," so the officers lacked probable cause for the stop. R. 178, Suppression Tr., PageID 654-55.

The district court denied the suppression motion. The court noted that the parties "appear[ed]" to "ultimately agree" that, contrary to the officers' belief, a driver is not required under Tenn. Code Ann. § 55-8-140(2) to turn left into the inside lane under the circumstances of this case. R. 175, Order, PageID 511. But it observed that "[a]n officer's reasonable, but mistaken belief that the conduct in question is illegal, is sufficient probable cause for a [traffic] stop." Id. at 510. Because the court determined that the traffic law "le[ft] some room for interpretation," it concluded that the stop was "based on an objectively reasonable belief that a traffic violation had occurred" and so did not violate the Fourth Amendment. Id. at 510-11.

The case went to trial, and the jury found Marsh guilty of all charges except for Count Three, which accused him of using, carrying, and brandishing a firearm during and in relation to a crime of violence.

The Probation Office's Presentence Investigation Report (PSR) grouped all of the counts of conviction pursuant to U.S.S.G. § 3D1.2. And the PSR identified a base offense level of 20 because Marsh was a convicted felon and the offense involved a semiautomatic firearm that was capable of accepting a large capacity magazine (the Springfield XD). See U.S.S.G. § 2K2.1(a)(4)(B); 18 U.S.C. § 922(g)(1). As relevant here, the PSR proposed three enhancements, which increased his offense level by 10: (1) a § 2K2.1(b)(1)(B) enhancement because the offense involved between eight and twenty-four firearms; (2) a § 2K2.1(b)(4)(A) enhancement because the offense involved stolen firearms; and (3) a § 2K2.1(b)(6)(B) enhancement because the defendant used or possessed a firearm in connection with another felony offense. With Marsh's criminal history category of VI, the PSR identified a Sentencing Guidelines range of 210 to 262 months of imprisonment.

Marsh objected, arguing that these enhancements impermissibly double counted conduct and improperly relied on acquitted conduct. The district court disagreed and sentenced Marsh to 210 months of imprisonment.

II.

Marsh challenges the district court's denial of his motion to suppress, and he argues that its calculation of his sentence was procedurally unreasonable. We consider each issue in turn.

A.

The Fourth Amendment protects against unreasonable traffic stops by law enforcement officers. Delaware v. Prouse, 440 U.S. 648, 653-55, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). In Heien v. North Carolina, the Supreme Court held that an officer who executes a traffic stop based upon an objectively reasonable mistake of law does not violate the Fourth Amendment. 574 U.S. 54, 60-61, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014). " 'To be reasonable is not to be perfect,' the Court explained, 'and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community's protection.' " Barrera v. City of Mount Pleasant, 12 F.4th 617, 621 (6th Cir. 2021) (internal quotation marks omitted) (quoting Heien, 574 U.S. at 60-61, 135 S.Ct. 530). That said, the standard of objective reasonableness in this context "is not as forgiving as the [standard] employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation." Heien, 574 U.S. at 67, 135 S.Ct. 530. So "an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce." Id. In the absence of clarifying guidance from state courts, however, an officer is not expected to interpret a statute with the precision that a court would. See United States v. Stevenson, 43 F.4th 641, 646-47 (6th Cir. 2022). In Heien, for instance, the Court determined that an officer's mistaken understanding of North Carolina's rear-brake-light law was objectively reasonable because the officer's reading was "arguably" correct, and no state appellate court had previously construed it. 574 U.S. at 68, 135 S.Ct. 530.

We review the denial of a suppression motion de novo as to legal conclusions and for clear error as to findings of fact. United States v. May-Shaw, 955 F.3d 563, 566 (6th Cir. 2020). The facts at issue here are not disputed. Horton was driving Marsh's car when he turned left from 24th Avenue North into the outside right lane of Rosa Parks Boulevard. Police officers initiated a traffic stop on the belief that a left turn into the outside right lane violated Tenn. Code Ann. § 55-8-140(2). Marsh argues, and the government does not dispute, that the officers were mistaken in their understanding of the law. And the government does not claim that the turn was otherwise unsafe or illegal. So the question presented is simply whether the officers' interpretation of § 55-8-140(2) was objectively reasonable. That statute provides:

At any intersection where traffic is permitted to move in both directions on each roadway entering the intersection, an approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof and by passing to the right of the center line where it enters the intersection, and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the

...