United States v. Jourden Shepard

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 30, 2023
• Docket: 21-4561
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4561

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOURDEN TAIREE SHEPARD,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. W. Earl Britt, Senior District Judge. (7:20-cr-00201-BR-1)

Submitted: March 21, 2023 Decided: August 30, 2023

Before GREGORY and WYNN, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded with instructions by unpublished per curiam opinion.

ON BRIEF: Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North Carolina, for Appellant. Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, Thomas E. Booth, Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, Daniel W. Smith, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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PER CURIAM:

An indictment filed on July 7, 2021, charged Jourden Shepard with possession with

intent to distribute fentanyl and cocaine base, in violation of 21 U.S.C. § 841(a)(1), being

a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924, as well

as being in possession of a firearm in connection with a drug trafficking offense, in

violation of 18 U.S.C. § 924(c)(1)(A)(i). These charges stemmed from a search conducted

by police during a traffic stop on August 14, 2020. After the district court found that the

officer who conducted the stop had reasonable suspicion to do so, the court denied

Shepard’s motion to dismiss.

On July 12, 2021, Shepard pled guilty to the drug trafficking offense. A jury later

found him guilty of the firearm offenses. The district court then sentenced him to a total

of 90 months’ imprisonment. The court also required Shepard submit to a number of

supervised release conditions. Shepard must submit to a search of his residence and

personal effects at any time by his probation officer. The court imposed two additional

financial conditions: Shepard may not open a line of credit without permission from his

probation officer, and he must provide the probation office with access to any requested

financial information.

Shepard now argues that the officer who stopped him, Sergeant Jauernik, did not

have reasonable suspicion because her reason for stopping him is not supported by the

record. He also contends that the district court committed a procedural error in imposing

certain conditions of supervised release and then failing to explain the reason for their

imposition. We reject each of these arguments, except for his contention that the district

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court did not adequately explain the financial conditions. We remand so that the district

court may properly establish, on the record, a nexus between those two conditions and

Shepard’s individual circumstances.

I.

First, Shepard argues that “[t]he district court clearly erred” when it found that

Sergeant Jauernik stopped the vehicle he was driving, a Dodge Charger, because she knew

its tag was registered to a Dodge Durango. Opening Br. at 6. According to Shepard, the

district court erred when it found that “Sergeant Jauernik observed [Shepard’s] vehicle’s

license plate, and upon obtaining information from her communications system that the

license plate returned to a Durango, not a Charger, she had a reasonable suspicion that

[Shepard] was violating North Carolina law.” Id. at 6–7 (quoting J.A. 227). Instead,

Shepard maintains, Sergeant “Jauernik learned that its tag was registered to a different

vehicle after she had already made the decision to stop the Charger.” Id. at 7.

The Fourth Amendment requires that searches and seizures be supported by probable

cause. U.S. Const. amend. IV. A traffic stop is a seizure subject to Fourth Amendment

protections. Heien v. North Carolina, 574 U.S. 54, 60 (2014). To justify a traffic stop, law

enforcement officers need only “reasonable suspicion”—that is, “a particularized and

objective basis for suspecting the particular person stopped” of unlawful conduct. Navarette

v. California, 572 U.S. 393, 396–97 (2014); see also Terry v. Ohio, 392 U.S. 1, 21 (1968)

(holding that an officer “must be able to point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant that intrusion”).

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Here, Sergeant Jauernik testified that she stopped the Charger for use of a fictitious

license plate when she learned from a DMV database that the plate belonged to a Durango.

By Sergeant Jauernik’s account of the facts, she had a reasonable suspicion that Shepard

was actively violating North Carolina law. See N.C. Gen. Stat. § 20-111(2) (making it

unlawful “[t]o display or cause or permit to be displayed or to have in possession any

registration card, certificate of title or registration number plate knowing the same to be

fictitious”). The district court credited that testimony, recounting that Sergeant Jauernik

“observed and ran the license plate, and it returned to a Dodge Durango.” J.A. 223.

Although Shepard argues on appeal that Sergeant Jauernik’s testimony reveals a

discrepancy in the timing of events, the court found “Sergeant Jauernik [to be] a credible

witness.” J.A. 229. Therefore, the court determined that “she had a reasonable suspicion that

defendant was violating North Carolina law, and to the extent she may have been mistaken

about that fact, her mistake was objectively reasonable given the circumstances.” J.A. 227.

This Court must accept that credibility determination. See United States v. Saunders, 886

F.2d 56, 60 (4th Cir. 1989). Because the district court credited Sergeant Jauernik’s testimony

that she first determined that Shepard was driving with an improper license plate before

stopping his vehicle, and nothing in the record seriously undermines that determination, the

court did not err in holding that the stop was supported by a reasonable suspicion.

II.

Shepard also argues that his sentence contained two infirmities. First, he contends

that the special conditions of supervised release requiring him to submit to warrantless

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searches, and prohibiting him from opening additional lines of credit without approval from

his probation officer, and to submit to the probation office requests for financial

information are inconsistent with the U.S. Sentencing Guidelines. Second, he argues that

the district court failed to give an adequate explanation for those conditions.

District courts have “broad latitude to impose conditions on supervised release.”

United States v. Douglas, 850 F.3d 660, 663 (4th Cir. 2017). A district court may impose any

special condition that is “reasonably related” to particular statutory sentencing factors, 18

U.S.C. § 3583(d), including “the nature and circumstances of the offense and the history and

characteristics of the defendant,” the need for the sentence “to afford adequate deterrence to

criminal conduct,” the need “to protect the public from further crimes of the defendant,” and

the need “to provide the defendant with needed educational or vocational training, medical

care, or other correctional treatment in the most effective manner,” 18 U.S.C. § 3553(a)(1),

(a)(2)(B)–(D). But § 3583(d) also requires that special conditions of supervised release be “no

greater [a] deprivation of liberty than is reasonably necessary” to achieve those statutory goals,

and consistent with policy statements issued by the Sentencing Commission.

Unless a court adequately explains its reasons for imposing certain conditions, we

cannot judge whether a condition satisfies those minimum requirements. United States v.

McMiller, 954 F.3d 670, 676 (4th Cir. 2020). Courts are expected to make “individualized

assessment[s] based on the facts before [them]” and explain sentences in a way that

“allow[s] for meaningful appellate review and . . . promote[s] the perception of fair

sentencing.” United States v. Lewis, 958 F.3d 240, 243 (4th Cir. 2020) (cleaned up).

“Failure to provide such an explanation constitutes procedural error.” McMiller, 954 F.3d

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at 676. This Court reviews a district court’s imposition of conditions of supervised release

for an abuse of discretion. Lewis, 958 F.3d at 243 n.2.

The Sentencing Guidelines, in § 5D1.3(d), set forth various “special” conditions that

are “recommended” in certain cases and for certain offenses, but that “may otherwise be

appropriate in particular cases.” Thus, Shepard’s argument that Guidelines § 5D1.3(d)(7)

limits a search condition to certain sex offenses is not correct. See United States v. Thomas,

827 F. App’x 72, 75 n.3 (2d Cir. 2020) (“Section 5D1.3(d) does not restrict the search

condition challenged here to sexual offenses, however, but instead explicitly provides that

such conditions may be appropriate in other types of cases.”); United States v. Fornes, 665

F. App’x 615, 617 (9th Cir. 2016) (“[T]here is no Sentencing Commission policy limiting

suspicionless searches to sex offenders.”).

Further, courts have upheld similar financial conditions in other cases. See, e.g.,

United States v. Williams, 208 F. App’x 228, 230–31 (4th Cir. 2006) (unpublished)

(imposing “new credit charge” condition where the defendant was ordered to pay

restitution); United States v. Camp, 410 F.3d 1042, 1046–47 (8th Cir. 2005) (upholding

“access to financial information” condition to ensure that the defendant paid child support).

So the imposition of such conditions is not necessarily an abuse of discretion. But a court

must still articulate an explanation for imposing those conditions.

The district court’s explanation for its search condition was satisfactory for two reasons.

First, the district court specifically referred to Shepard’s crimes and the need for supervision

in his case. Second, the court’s statements that Shepard had progressed from dealing marijuana

to dealing fentanyl reflected the court’s view that Shepard needed close supervision.

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However, the district court’s reason for imposing the two financial conditions is less

clear. A review of the record reveals no obvious justification tying Shepard’s case to the need

to monitor and restrict his financial dealings. And we will not supply one. See United States

v. Carter, 564 F.3d 325, 329–30 (4th Cir. 2009) (“In reviewing [a supervised release

condition], an appellate court may not guess at the district court’s rationale, searching the

record for statements by the Government or defense counsel or for any other clues that might

explain a sentence.”). While this court has upheld these conditions based on the defendant’s

restitution obligations, see Williams, 208 F. App’x at 230–31, there was no restitution imposed

here. Likewise, even though a court has upheld a financial monitoring condition based on a

defendant’s need to pay child support, see Camp, 410 F.3d at 1046–47, there is no indication

Shepard has a “history of non-payment of his child support obligations.” Id. at 1046.

The district court abused its discretion when it failed to provide an explanation for

why the financial conditions imposed were reasonably related to the goals of the

Sentencing Guidelines as applied to Shepard’s circumstances.

III.

Based on the foregoing, we affirm Shepard’s conviction but vacate the financial

conditions of supervised release and remand for resentencing with instructions for the district

court to provide a basis for assigning the two financial conditions imposed at sentencing. We

dispense with oral argument because the facts and legal contentions are adequately presented

in the materials before this Court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS