US v. McQueen: Police, responding to a tip from a "reliable informant" found McQueen asleep behind the wheel of a running car outside of a bar in Virginia. The car had a crushed rear bumper and out of state license plates. After rousing McQueen and checking his license and registration, the police asked him for consent to search the car. McQueen granted permission and a firearm was found under the back seat.
McQueen was charged and convicted of being a felon in possession of a firearm, after unsuccessfully seeking to have the gun suppressed as the fruit of unlawful Terry stop. At sentencing, the district court rejected the Government's argument that McQueen was an armed career criminal and sentenced him to 120 months in prison.
Both McQueen and the Government appealed.
McQueen appealed the district court's denial of his suppression motion, arguing that the police lacked reasonable suspicion for a Terry stop. The court disagreed, holding that based on a corroborated tip from a reliable informant and their observations about the car when it was found (running, damaged, McQueen asleep inside, etc.) that the police could reasonable conclude that illegal activity was or was about to be afoot.
The court also rejected McQueen's challenge to the interstate nexus instruction given at trial, which McQueen argued did not differentiate between whether the gun crossed state lines "in or affecting interstate commerce" or simply crossed state lines while in his car. The court that the instruction was not an improper statement of the law, relying on US v. Gallimore, 247 F.3d 134 (4th Cir. 2001)(interstate nexus proven by showing that gun was manufactures outside of state in which it was possessed).
As to the sentence, the court rejected McQueen's challenge to the inclusion of a prior felony in the Guideline calculations, while accepting the Government's argument that McQueen should have been sentenced as an armed career criminal. First, the court rejected McQueen's argument that a 1995 conviction for possession with intent to distribute heroin was acquired in violation of his right to counsel. McQueen started that case with retained counsel, fired that attorney and was appointed counsel to represent him, then fired his appointed counsel and proceeded pro se. McQueen's last minute (morning of trial) change of heart on proceeding pro se was properly rejected by the trial judge as a ploy to stall for more time and thus McQueen's subsequent guilty plea was made after waiving his right to counsel.
Next, the court accepted the Government's argument that McQueen should have been sentenced as an armed career criminal. McQueen argued, and the district court apparently agreed, that McQueen was not an armed career criminal because he had his civil rights restored for one of his prior convictions and therefore lacked three prior qualifying convictions. The court disagreed, holding that McQueen has not been legally able to possess a firearm since 1988, after which he committed several more qualifying felonies.
Accordingly, the court affirmed McQueen's conviction, while vacated his sentence and remanding for resentencing.