United States v. Steven Burton

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 4, 2018
• Docket: 16-50451
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 4 2018

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50451

Plaintiff-Appellee, D.C. No. 3:16-cr-00746-AJB-1 v.

STEVEN DOYLE BURTON, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

Argued and Submitted April 13, 2018 Pasadena, California

Before: SCHROEDER, CLIFTON, and M. SMITH, Circuit Judges.

Defendant-Appellant Steven Doyle Burton appeals from his final judgment

of conviction for possession of cocaine base with intent to distribute, in violation

of 21 U.S.C. § 841(a)(1), and being a felon in possession of a firearm and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ammunition, in violation of 18 U.S.C. § 922(g)(1). Our appellate jurisdiction rests

on 28 U.S.C. § 1291, and we AFFIRM.

1. The district court did not err in denying Mr. Burton’s motion to suppress

the drugs, weapons, and money found as a result of the probation search of his

residence, because the search was reasonable under the circumstances. See United

States v. Lara, 815 F.3d 605, 610 (9th Cir. 2016). Officers Medina and Williams

observed Mr. Burton commit two traffic violations, giving them probable cause to

initiate a traffic stop and investigate the violations. See Whren v. United States,

517 U.S. 806, 810 (1996). A routine records check conducted during the stop

revealed that Mr. Burton was driving with a suspended license and was subject to

an active Fourth Amendment waiver. See Rodriguez v. United States, 135 S. Ct.

1609, 1615 (2015). The officers possessed a reasonable suspicion that Mr. Burton

was reoffending, and their interests in searching his person outweighed his already

diminished expectation of privacy. See United States v. Knights, 534 U.S. 112,

118–19 (2001); Lara, 815 F.3d at 612.

2. The discovery of marijuana on Mr. Burton’s person provided sufficient

suspicion of criminal activity to justify the subsequent search of his home, which

was located approximately a house length away from where Mr. Burton and the

officers were stopped. See Knights, 534 U.S. at 121 (“When an officer has

2 reasonable suspicion that a probationer subject to a search condition is engaged in

criminal activity, there is enough likelihood that criminal conduct is occurring that

an intrusion on the probationer’s significantly diminished privacy interests is

reasonable.”).

3. We decline to review the merits of Mr. Burton’s claim for ineffective

assistance of counsel stemming from his attorney’s opening statement, but this

does not foreclose Mr. Burton from bringing this claim in a habeas proceeding.

See United States v. Dewey, 599 F.3d 1010, 1014 (9th Cir. 2010). “Collateral

review is preferable because in such a proceeding a record may be developed to

show what counsel did and any resulting prejudice.” United States v. Simas, 937

F.2d 459, 463 (9th Cir. 1991).

4. This Court’s decision in Pasterchik v. United States, 400 F.2d 696 (9th

Cir. 1968) forecloses Mr. Burton’s argument that conviction records bearing his

name were insufficient to establish the prior felony conviction element of the felon

in possession counts.

5. The evidence was sufficient to support the jury’s unanimous finding that

the government, by a preponderance of the evidence, had established a nexus

between the $35,700 and the possession of cocaine base with intent to distribute

charge. Congress, in 21 U.S.C. § 853(a)(2), “plainly provided for forfeiture of

3 property even where only a portion of it was used for the prohibited purposes.”

United States v. Littlefield, 821 F.2d 1365, 1367 (9th Cir. 1987). The jury heard

testimony that Mr. Burton kept his belongings in the garage, that Mr. Burton was

often seen standing near the outdoor planter where drugs and drug paraphernalia

were found, that drug dealing is a cash business, and that it is common for drug

dealers to keep a working sack nearby, with the larger stash hidden in a more

secure location. The government thus presented the jury with sufficient evidence

that at least a portion of the $35,700 was used “in any manner or part, to commit,

or to facilitate the commission of” the drug offense for which Mr. Burton was

convicted. 21 U.S.C. § 853(a)(2).

AFFIRMED.