United States of America v. Anthony Lee Burks

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2958
UNITED STATES OF AMERICA
v.
ANTHONY LEE BURKS,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 06-cr-00205)
District Judge: Honorable Arthur J. Schwab
Argued June 6, 2008
Before: AMBRO, CHAGARES and COWEN, Circuit Judges
(Opinion filed: August 29, 2008)
Lisa B. Freeland
Federal Public Defender
Elisa A. Long (Argued)
Assistant Public Defender
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222-0000
Counsel for Appellant

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Mary Beth Buchanan
United States Attorney
Robert L. Eberhardt (Argued)
Assistant United States Attorney
Office of the United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219-0000
Counsel for Appellee
OPINION
PER CURIAM
Anthony Lee Burks appeals the District Court’s denial of his motion to suppress
evidence of a firearm found in his possession during a traffic stop. He also appeals his
sentence. We affirm.
I. Background
Because we write exclusively for the parties, we provide only a brief recitation of
the facts of this case, which arose from a traffic stop of a vehicle in which Burks rode as a
passenger. Two Pittsburgh police officers pulled over the car after observing that it had
an inoperable centrally mounted rear stop light. A subsequent search resulted in the
discovery of a firearm in Burks’ possession. This led to his indictment in the United
States District Court for the Western District of Pennsylvania on the charge of being in
possession of a firearm after being convicted of a felony offense, in violation of 18
U.S.C. § 922(g)(1).

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Burks moved to suppress evidence of the gun prior to trial on the basis that the
police lacked probable cause or reasonable suspicion to stop his car. He did not challenge
the factual assertions of the police officers. Instead, he argued that Pennsylvania law
does not make it illegal to drive a car with a non-functioning centrally mounted rear stop
light and that the officer’s mistake of law made the stop unreasonable under the Fourth
Amendment. The District Court rejected this argument and denied the suppression
motion.
Burks subsequently pled guilty. His plea agreement preserved his right to appeal
the District Court’s suppression ruling.
The presentence report identified a Sentencing Guidelines range of 57–71 months.
That range reflected an offense level of 18. The Court derived this number from a base
offense level of 20, less two points for acceptance of responsibility pursuant to U.S.S.G.
§ 3E1.1(a). The Government did not move for a third point for acceptance of
responsibility pursuant to § 3E1.1(b). That Guideline provides:
If the defendant qualifies for a decrease under subsection (a), the offense
level determined prior to the operation of subsection (a) is level 16 or
greater, and upon motion of the government stating that the defendant has
assisted authorities in the investigation or prosecution of his own
misconduct by timely notifying authorities of his intention to enter a plea of
guilty, thereby permitting the government to avoid preparing for trial and
permitting the government and the court to allocate their resources
efficiently, decrease the offense level by 1 additional level.
U.S.S.G. § 3E1.1(b). Burks nonetheless urged the District Court to award a third point
for acceptance of responsibility. It declined to do so. The Court did grant Burks a one-

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level departure pursuant to U.S.S.G. § 4A1.3, however, reducing the Guideline range to
51–63 months. It sentenced Burks to a 51-month term of imprisonment and three years of
supervised release.
This appeal followed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction under 18 U.S.C. § 1291. With respect to the suppression motion, we exercise
plenary review of questions of law and review factual findings for clear error. United
States v. Ritter, 416 F.3d 256, 261 (3d Cir. 2005). If we determine that the District Court
has committed no significant procedural error in imposing sentence, we then review the
reasonableness of the sentence under an abuse-of-discretion standard, regardless whether
it falls within the Guidelines range. United States v. Wise, 515 F.3d 207, 218 (3d Cir.
2008).
III. Analysis
A. Burks’ Appeal of the Denial of the Suppression Motion
75 Pa. C.S. §§ 4101–4107, 4301–4310 “establish minimum standards for vehicle
equipment the performance of which is related to vehicle safety, noise control and air
quality,” and bar the sale and use of non-compliant items. Chapter 43 governs lighting. It
requires the following for rear lighting:
Every vehicle operated on a highway shall be equipped with a rear lighting
system including, but not limited to, rear lamps, rear reflectors, stop lamps

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and license plate light, in conformance with regulations of the department.
If a vehicle is equipped with a centrally mounted rear stop light, a decal or
overlay may be affixed to the centrally mounted rear stop light if the decal
or overlay meets all applicable State and Federal regulations.
75 Pa. C.S. § 4303(b). This section lists “stop lamps,” which implies a minimum
requirement of two stop lamps “[o]n the rear – 1 on each side of the vertical centerline, at
the same height, and as far apart as possible.” See Table IV of Appendix A to 67 Pa.
Code § 153. But the section includes the phrase “not limited to,” which anticipates
greater restrictions. Indeed, the second quoted sentence provides such a restriction. It
implicitly requires that any centrally mounted rear stop light must function. It would not
make sense to limit the permissible types of decals or overlays unless the section requires
any centrally mounted rear stop light to function and be visible. Limits on blocking a
centrally mounted rear stop light would have little effect and would punish decal users
selectively if that centrally mounted rear stop light did not have to work in the first place.
Moreover, section 4107(b) of the Pennsylvania Motor Vehicle Code provides that
it is a violation of Pennsylvania law to “[o]perate ... on any highway in [Pennsylvania]
any vehicle . . . when . . . the vehicle . . . is otherwise in unsafe condition or in violation of
departmental regulations.” 75 Pa. C.S. § 4107(b)(2) (emphasis added). Subsection (d) of
the same section authorizes the imposition of a $25 fine for any such violations. 75 Pa.
C.S. § 4107(d). Additionally, another Pennsylvania statute expressly provides: “Any
police officer having probable cause to believe that a vehicle or its equipment is unsafe,
not equipped as required, or otherwise not in compliance with the law or regulations may

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The parties dispute whether Burks waived any right to appeal his sentence in an1
appellate waiver. We assume without deciding that Burks prevails on this non-
jurisdictional procedural point because we will affirm the sentence even if we reach the
merits. See United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007) (explaining that
we retain jurisdiction despite a criminal defendant’s appellate waiver).
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inspect the vehicle or its equipment.” 75 Pa. C.S. § 4704(a)(3)(ii). The broken brake-
light here provided an unsafe condition which justified the officer’s stop of the car. Even
if we concluded, which we do not, that Section 4303(b) did not require the stop lamp to
function, the officer could have stopped the car under Sections 4107 and 4704. See
United States v. Valadez-Valadez, 525 F.3d 987, 991 (10th Cir. 2008) (“The validity of a
traffic stop under the Fourth Amendment turns on whether this particular officer had
reasonable suspicion that this particular motorist violated any one of the multitude of
applicable traffic and equipment regulations of the jurisdiction.”)
We thus conclude that the police officers correctly interpreted Pennsylvania law
when they pulled over the car in which Burks rode for having a non-operational centrally
mounted rear stop light. This defeats Burks’ Fourth Amendment challenge.
B. Sentencing Issues1
Burks argues that the District Court should have awarded him a third point for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b) even though the United
States’ Attorney did not move for such an award. We recently held that a District Court
lacks authority to award a third point in such circumstances unless the Government has an
unconstitutional motive for not moving for a third point. See United States v. Drennon,

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516 F.3d 160 (3d Cir. 2008). The facts of this case are substantially identical to those of
Drennon. The defendant in that case, like Burks, had pled guilty only after losing his
suppression motion. We concluded that the Government’s decision not to seek a third
point reflected nothing more than a desire to conserve the Government’s limited
prosecutorial resources. We reach the same conclusion in this case.
Burks also suggests that the District Court erred by failing to consider Burks’
meritorious request for a variance pursuant to United States v. Booker, 543 U.S. 220
(2005). However, his counsel explicitly conceded at the sentencing hearing that the
District Court had addressed each sentencing issue “adequately.” App. 308. Counsel
preserved the “objection to the government’s failure to file for the third point,” but did
not mention Burks’ desire for a variance. Id. The District Court exercised its discretion
in granting a sentence at the low end of the Guideline range and considered all relevant
factors, including the sentence necessary to achieve the goals set forth in 18 U.S.C.
§ 3553(a)(2). Burks’ argument thus fails.
IV. Conclusion
We affirm the judgment of the District Court.
* * * * *
AMBRO, Circuit Judge, dissenting
Pennsylvania law does not make it illegal to drive a car with a non-functioning
centrally mounted rear brake light. The officer who stopped the car carrying Burks made

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Table IV of Appendix A to 67 Pa. Code § 153 requires two stop lamps “[o]n the rear2
– 1 on each side of the vertical centerline, at the same height, and as far apart as
possible.”
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a mistake of law. This makes the traffic stop and resulting search a violation of the
Fourth Amendment. As a result, we have no choice but to vacate Burks’ conviction.
As discussed in the Court’s opinion, 75 Pa. C.S. §§ 4101–4107, 4301–4310
“establish minimum standards for vehicle equipment the performance of which is related
to vehicle safety, noise control and air quality,” and bar the sale and use of non-compliant
items. Chapter 43 governs lighting. For convenience, I repeat that it requires the
following with respect to rear lighting:
Every vehicle operated on a highway shall be equipped with a rear lighting
system including, but not limited to, rear lamps, rear reflectors, stop lamps2
and license plate light, in conformance with regulations of the department.
If a vehicle is equipped with a centrally mounted rear stop light, a decal or
overlay may be affixed to the centrally mounted rear stop light if the decal
or overlay meets all applicable State and Federal regulations.
75 Pa. C.S. § 4303(b) (emphasis added). This section makes clear that “a centrally
mounted rear stop light” need not appear on every vehicle. If this section imposed such a
requirement, permission for a decal or overlay would not depend on “[i]f” the vehicle has
a centrally mounted rear stop light.
The question remains whether, if a vehicle has a factory-installed centrally
mounted rear stop light, Pennsylvania law requires that light to work. The
Commonwealth argues, and my colleagues agree, that governing regulations impose such

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This contrasts with other Pennsylvania regulations that require all components of the3
suspension, fuel, and exhaust systems to function when a driver operates a vehicle. See
67 Pa. Code §§ 175.62, 175.72, 175.75.
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a requirement. The Commonwealth first turns to the regulation governing lighting
systems. 67 Pa. Code § 175.66(a) provides: “Condition of lamps and switches. Every
required lamp or switch shall be in safe operating condition as described in § 175.80
(relating to inspection procedure).” Subsection 175.66(e) requires the following with
respect to braking lights: “A vehicle specified under this subchapter shall have at least
one red stop lamp on each side of rear of vehicle, which shall be illuminated immediately
upon application of the service brake.” Taken together, these sections do not impose a
requirement that any factory-operated central rear brake light must operate properly.
Subsection 175.66(a) pertains to “required lamp[s]” and does not mention non-required
lamps. Its reference to 67 Pa. Code § 175.80 does not incorporate the standards of that
section (i.e., it does not expand the number of required lamps), but merely says that any
required lamps must satisfy the standards of Subsection 175.80. Section 175.66(e)3
requires only two side stop lamps and does not mention a centrally mounted rear stop
light.
Subsection 175.80’s provisions for an inspection procedure include the directions
that the inspector “[c]heck the lamps and lenses and reject if . . . [a]n exterior bulb or
sealed beam, if originally equipped or installed, fails to light properly, except ornamental
lights.” Id. § 175.80(a)(9)(i). This section demonstrates that the car in question here

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would fail an inspection, but it does not indicate that all the non-ornamental lights on a
passenger vehicle must operate properly when the driver uses the vehicle on a highway.
Cf. Vicknair v. Texas, 751 S.W.2d 180, 188–89 (Tex. 1986) (reasoning similarly in
applying Texas law).
67 Pa. Code § 153.1 also does not advance the Commonwealth’s argument. That
section does not impose specific requirements. It merely provides: “This chapter
specifies requirements for original and replacement lamps, reflective devices and other
associated equipment necessary for signaling and for the safe operation of motor vehicles
during darkness and other conditions of reduced visibility.” Id. § 153.1. This provision
does not bestow the general authority on police officers to stop any car they believe to be
unsafe when the cause of the perceived safety concern is actually compliant with specific
code sections on the subject.
I accordingly disagree with the Court’s opinion that the statutory provisions
relevant to rear lighting make it illegal to operate a car with a non-functioning centrally
mounted rear brake light. I also would not hold that 75 Pa. C.S. § 4107(b)(2), a general
rule pertaining to vehicle safety, trumps the specific and detailed requirements laid out
elsewhere in the statutory scheme. See, e.g., Toner v. C.I.R., 623 F.2d 315, 319 (3d Cir.
1980) (referring to the “the well-known doctrine of construction that specific rules prevail
over more general rules”). Moreover, there is no indication in the record that the officer
believed the vehicle to be unsafe.

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Accordingly, I would conclude that the police officers misinterpreted Pennsylvania
law when they believed that the car in which Burks was riding violated applicable
regulations by having a non-operational centrally mounted rear stop light. The
Commonwealth contends that this mistake of law does not make the stop illegal. It cites
our decision in United States v. Delfin-Colina, 464 F.3d 392 (3d Cir. 2006), in support of
that argument. But Delfin-Colina stands for the proposition that a stop is valid when an
officer believes that a law has been broken for one stated reason while in fact the law has
been broken for another reason supported by the officer’s observations. No such
alternative valid basis for the stop appears in this record. Accordingly, nothing in our
case law allows us to depart from the general rule, acknowledged in Delfin-Colina, that
mistakes of law prevent the admission of evidence found in a resulting search. See id. at
397–400.
In summary, I believe that the Court adds a requirement of its own making to
Pennsylvania law and supplies a rationale for the traffic stop that lacks any support in the
record. In my view, the District Court erred in denying the motion to suppress the results
of the search of the car in which Burks was riding. I thus respectfully dissent.

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