United States of America v. RANDY KIRK HARVEY II, AKA Shooter

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RANDY KIRK HARVEY II, AKA Shooter,
Defendant-Appellant.
No. 22-50209
D.C. No. 2:21-cr-00437-SB-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stanley Blumenfeld, Jr., District Judge, Presiding
Submitted March 7, 2024**
Pasadena, California
Before: H.A. THOMAS and DESAI, Circuit Judges, and MÁRQUEZ,*** District
Judge.
Randy Kirk Harvey II appeals the district court’s denial of his motion to
suppress evidence of a firearm and ammunition seized from him and statements
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Rosemary Márquez, United States District Judge for
the District of Arizona, sitting by designation.
FILED
MAR 11 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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made by him during a traffic stop for allegedly driving with tinted windows in
violation of Section 26708(a)(1) of the California Vehicle Code. During the stop, the
officer allegedly observed marijuana inside the vehicle. The officer then frisked
Harvey for weapons and found a loaded ghost gun in his waistband. The government
charged Harvey with violating 18 U.S.C. § 922(g)(1), prohibited person in
possession of ammunition. Harvey moved to suppress evidence of the firearm and
ammunition and the statements made by him during the stop, arguing that the officer
lacked reasonable suspicion to stop his vehicle based on a window tinting violation.
The district court denied the motion. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
1. On appeal, Harvey raises two arguments that he failed to raise in the
district court. First, he argues that the officer unlawfully prolonged the traffic stop
without reasonable suspicion for a separate crime. Second, he argues that the officer
lacked reasonable suspicion to conduct a protective frisk. Absent good cause, we
cannot review suppression arguments raised for the first time on appeal. United
States v. Guerrero, 921 F.3d 895, 897–98 (9th Cir. 2019). The government’s burden
to justify its warrantless actions does not eliminate Harvey’s obligation to raise
specific objections and arguments in support of suppression in the district court
before obtaining appellate review. See id.; see also United States v. Murillo, 288
F.3d 1126, 1135 (9th Cir. 2002).

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2. Harvey argues ineffective assistance of counsel provides good cause for
the failure to raise his arguments in the district court. We may review an ineffective
assistance of counsel claim on direct appeal only if (1) “the record on appeal is
sufficiently developed to permit review and determination of the issue,” or (2) “the
legal representation [was] so inadequate that it obviously denie[d] a defendant his
Sixth Amendment right to counsel.” United States v. Robinson, 967 F.2d 287, 290
(9th Cir. 1992), recognized as overruled on other grounds by Ortega-Mendez v.
Gonzales, 450 F.3d 1010, 1018–20 (9th Cir. 2006). At minimum, the record here is
not sufficiently developed to determine whether Harvey was prejudiced by his
counsel’s failure to raise his current arguments in the district court. See Strickland v.
Washington, 466 U.S. 668, 687 (1984) (holding that ineffective assistance of counsel
claims require a showing of deficient performance and prejudice). And Harvey does
not establish that the representation he received was so inadequate that it obviously
denied him his Sixth Amendment right to counsel. Robinson, 967 F.2d at 290; see
also United States v. Kazni, 576 F.2d 238, 242 (9th Cir. 1978) (explaining that the
standard covers representation that is “so grossly inadequate that the district court’s
failure to notice it sua sponte [is] plain error”). Harvey’s ineffective assistance of
counsel claim is “more properly raised by collateral attack on the conviction.”
Robinson, 967 F.2d at 290. He therefore does not demonstrate good cause for his
failure to raise his suppression arguments below.

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3. On appeal, Harvey does not challenge the district court’s determination
that the officer had reasonable suspicion to stop his vehicle, which was the only basis
on which the district court denied the motion to suppress. The issue is thus waived.
See Officers for Just. v. Civ. Serv. Comm’n of San Francisco, 979 F.2d 721, 726 (9th
Cir. 1992).
AFFIRMED.

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