United States of America v.  Tyronski Johnson

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4376 
TYRONSKI JOHNSON,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(CR-03-364-RDB)
Argued: February 2, 2005
Decided: June 8, 2005
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Affirmed in part and dismissed in part by published opinion. Judge
Motz wrote the opinion, in which Judge Traxler and Judge Shedd
joined.
COUNSEL
ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. Hollis Raphael
Weisman, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
ON BRIEF: James Wyda, Federal Public Defender, Daniel W.
Stiller, Assistant Federal Public Defender, Greenbelt, Maryland, for

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Appellant. Thomas M. DiBiagio, United States Attorney, Greenbelt,
Maryland, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Pursuant to a plea agreement, Tyronski Johnson pled guilty to pos-
session of a firearm by a convicted felon and operation of a motor
vehicle while under the influence of drugs. Although the agreement
contained a standard appeal waiver provision, Johnson retained the
right to appeal the denial of his suppression motions, which he does
now. He also seeks to have his sentence vacated. We affirm in part
and dismiss in part.
I.
A.
On July 22, 2003, at approximately 11 a.m., United States Park
Police Officer Ken Bentivegna heard a radio report of a crash on the
Baltimore-Washington Parkway. He arrived at the accident scene to
find a Toyota with substantial front-end damage stopped in the far
right traffic lane of a three-lane segment of the parkway. The car’s
badly crumpled hood obscured visibility through the front windshield.
A second car sat on the right shoulder some distance ahead of the
Toyota. Officer Bentivegna neither witnessed the accident nor was
told how it occurred.
The officer approached the Toyota and saw Tyronski Johnson
seated in the driver’s seat, although he did not know Johnson’s name
at the time. A deputy sheriff at the scene told Officer Bentivegna that
the driver was conscious but unresponsive. The officer walked to the
driver’s side door, which was open, and asked Johnson "if he was
okay, if he had been injured, if anything hurt." Johnson stared straight
ahead and did not respond. Officer Bentivegna continued to ask John-
son if he was alright; obtaining no response, the officer called for an
ambulance.
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While the officer waited for the ambulance, he asked Johnson if he
was okay "[a] couple more times." The officer testified that he then
walked around the car to the front passenger compartment to see if
he could "see anything else in the car that might give [him] some kind
of an idea as to what was wrong" with Johnson. He wanted to deter-
mine whether Johnson had been injured in the accident, was intoxi-
cated, or was suffering from an unrelated medical condition. As
Officer Bentivegna walked around the car, Johnson said his chest
hurt. The officer asked Johnson whether he hit the steering wheel and
what had happened, but Johnson responded only that his chest hurt.
Officer Bentivegna opened the passenger door and noticed a pre-
scription bottle in the center console of the car. He cursorily looked
around the passenger compartment of the car for any more prescrip-
tion bottles or narcotics — "anything that might give me an indication
as to what happened to this individual."
Officer Bentivegna thought he might get a response from the
defendant if he could call him by name, so the officer opened the
glove compartment to find identification. Inside, he found a nine mil-
limeter handgun. The officer confiscated the weapon and, with the
help of a Prince George’s County deputy sheriff, removed Johnson
from the car and placed him in handcuffs for possessing a gun on fed-
eral property. Other park police took custody of Johnson while Offi-
cer Bentivegna moved Johnson’s vehicle out of the traffic lane, where
it had blocked traffic, to the shoulder; the car was too damaged to be
driven from the scene and was eventually towed.
Because Johnson was conscious but unresponsive, Park Police
Officer Robert Stratton tried to administer a field sobriety test to him.
When Johnson refused to cooperate, Officer Raymon Valencia took
Johnson to the hospital to have his blood drawn to test for illegal sub-
stances. As Johnson sat handcuffed in the reception area of the emer-
gency room with Officers Valencia and Bentivegna, Johnson stated
repeatedly, without prompting, "[I]t’s only for my protection." He
also stated: "You know, there’s crazy people out there. That’s why I
carry a gun. It’s for protection. I’m not a violent dude. Can I get my
baby back? And I just beat a charge. Now I got a gun charge with the
Feds." Officer Bentivegna obtained a sheet of paper from a nurse and
wrote down these statements.
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Officer Valencia asked Johnson whether he had been drinking or
taken any drugs, to which Johnson responded that he had smoked a
"dipper." As the district court noted, a "dipper" is a cigarette dipped
in liquid phencyclidine or PCP. When Johnson asked if his gun could
be returned, Officer Valencia asked whether he had registration for
the gun, and Johnson said he did not and only carried it for protection.
Johnson’s blood was drawn at the hospital. Pursuant to a contract
between the U.S. Park Police and the Army’s Armed Forces Institute
of Pathology, the toxicology analysis of Johnson’s blood was per-
formed at the Institute. Johnson’s blood tested positive for PCP and
a derivative of marijuana.
B.
Johnson sought to suppress the fruits of the search of his glove
compartment, the statements he made to the police at the hospital, and
the results of the blood test. He filed three motions to suppress. In the
first, Johnson argued that the Park Police violated the Fourth Amend-
ment by conducting a warrantless search of his glove compartment;
in the second, he maintained that the officers questioned him at the
hospital without reading him his rights under Miranda v. Arizona, 384
U.S. 436 (1966), or obtaining a knowing, intelligent, and voluntary
waiver of those rights; in the third, he contended that the drug test
performed on his blood at the Armed Forces Institute violated the pro-
hibition on military intervention in civilian law enforcement codified
in the Posse Comitatus Act, 18 U.S.C. § 1385 (2000).
The district court conducted an evidentiary hearing at which John-
son conceded that the unsolicited statements he made at the hospital
regarding the gun were admissible, and the Government conceded
that Johnson’s "statement that he had smoked a ‘dipper’ must be sup-
pressed because it was the result of custodial interrogation by Officer
Valencia without advisement of Miranda rights." The court therefore
granted his second suppression motion in part; the court denied John-
son’s first and third motions in their entirety. See United States v.
Johnson, No. CR-03-0364 (D. Md. Dec. 16, 2003).
Johnson then entered into a plea agreement with the Government.
In exchange for Johnson’s conditional guilty plea to Count 1, posses-
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sion of a firearm by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1), and Count 3, operating a motor vehicle while under the
influence of drugs in violation of 36 C.F.R. § 4.23(a)(1), the Govern-
ment agreed to dismiss Count 2, possession of marijuana in violation
of 21 U.S.C. § 844, and to recommend that the court order Johnson’s
sentence for Count 3 to run concurrently with his sentence for Count
1. Johnson signed a standard waiver of appellate rights but expressly
retained the right to appeal the district court’s denial of his suppres-
sion motions. Consistent with the then mandatory United States Sen-
tencing Guidelines, the district court sentenced Johnson to forty
months imprisonment on Count 1 and six months imprisonment on
Count 3 to run concurrently with the sentence on Count 1.
Johnson appeals the district court’s denial of his first and third
motions to suppress. He also seeks to challenge his sentence as con-
trary to United States v. Booker, 125 S. Ct. 738 (2005). We consider
each of these three arguments in turn.
II.
First, Johnson contends that the district court erred in upholding the
search of the glove compartment of his car.
A.
The Supreme Court has recognized that "[t]he Fourth Amendment
demonstrates a ‘strong preference for searches conducted pursuant to
a warrant.’" Ornelas v. United States, 517 U.S. 690, 699 (1996) (quot-
ing Illinois v. Gates, 462 U.S. 213, 236 (1983)). "[E]xcept in certain
carefully defined classes of cases, a search of private property without
proper consent is unreasonable unless it has been authorized by a
valid search warrant." Cady v. Dombrowski, 413 U.S. 433, 439 (1973)
(internal quotation marks and citation omitted).
Searches of cars are one class of situations to which the warrant
requirement does not apply. Maryland v. Dyson, 527 U.S. 465, 466
(1999). Under the automobile exception, the police can search a vehi-
cle without first obtaining a warrant if they have probable cause to
believe the car contains contraband or evidence of illegal activity. Id.
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at 467. Officer Bentivegna, however, lacked probable cause to believe
the car or, more specifically, the glove compartment, contained con-
traband or evidence of wrongdoing. The district court erred in accept-
ing a variant of the automobile exception created by other district
courts and concluding that it permitted Officer Bentivegna’s warrant-
less search. As articulated by the district court, this variant would
allow the police to search a driver’s car for his registration and identi-
fication absent a warrant and probable cause whenever a driver did
not readily provide registration and identification information at the
scene of an accident. The Supreme Court has never construed the
automobile exception so broadly, and we decline to do so today.
But the Court has recognized a narrow exception to the warrant
requirement that permits a search even if the police lack probable
cause to suspect criminal activity. Indeed, the exception only applies
when the police are not engaged in a criminal investigation, that is,
it only applies when they are "engage[d] in what, for want of a better
term, may be described as community caretaking functions, totally
divorced from the detection, investigation, or acquisition of evidence
relating to the violation of a criminal statute." Dombrowski, 413 U.S.
at 441. The police do not need probable cause when engaged solely
in community caretaking since "[t]he standard of probable cause is
peculiarly related to criminal investigations, not routine, noncriminal
procedures." South Dakota v. Opperman, 428 U.S. 364, 370 n.5
(1976). The Court has recognized the need for this community-
caretaking exception because police often come into "contact with
vehicles for reasons related to the operation of vehicles themselves"
and this "often noncriminal contact with automobiles will bring local
officials in plain view of evidence, fruits, or instrumentalities of a
crime, or contraband." Dombrowski, 413 U.S. at 441-42 (internal quo-
tation marks omitted).
In Dombrowski, for example, the Supreme Court concluded that
the officer did not act unreasonably when, absent a warrant or proba-
ble cause "to believe that the vehicle contained fruits of a crime,"
Opperman, 428 U.S. at 374, he searched the trunk of a towed car that
had been "disabled as a result of [an] accident, and constituted a nui-
sance along the highway." Dombrowski, 413 U.S. at 443. Although
the police officer found evidence of a murder, the Supreme Court
concluded the search was reasonable because at the time he searched
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the trunk, he was "ignorant of the fact that a murder, or any other
crime, had been committed," and he engaged in the search only to
secure the service revolver of the car’s hospitalized driver, a Chicago
police officer, out of "concern for the safety of the general public who
might be endangered if an intruder removed a revolver from the trunk
of the vehicle." Id. at 447. In upholding the search, the Court empha-
sized that the officer simply was "reacting to the effect of an accident
— one of the recurring practical situations that results from the opera-
tion of motor vehicles and with which local police officers must deal
every day." Id. at 446.
We agree with the Government that Officer Bentivegna was simi-
larly "reacting to the effect of an accident" and performing a
community-caretaking function when he opened Johnson’s glove
compartment. Officer Bentivegna arrived at the accident scene to find
Johnson sitting unresponsively in his car, which was blocking one of
only three traffic lanes on a major thoroughfare. As the Supreme
Court has noted, "[t]o permit the uninterrupted flow of traffic and in
some circumstances to preserve evidence, disabled or damaged vehi-
cles will often be removed from the highways or streets at the behest
of police engaged solely in caretaking and traffic-control activities."
Opperman, 428 U.S. at 368. Officer Bentivegna testified, without con-
tradiction,1 that he opened the glove compartment in hopes that he
would find identifying information he could use to communicate
1We note that the district court found that Officer Bentivegna "opened
the unlocked glove compartment in order to locate identification infor-
mation, including vehicle registration, to assist with the investigation of
the traffic accident," but did not specify the purpose of this "investiga-
tion." Of course, a traffic accident investigation could involve a search
for evidence of criminal wrongdoing, in which case the community-
caretaking exception would not apply. However, as the Supreme Court
has explained, police also "frequently investigate vehicle accidents in
which there is no claim of criminal liability," and the community-
caretaking exception may apply in such situations. Dombrowski, 413
U.S. at 441. In this case, Officer Bentivegna’s testimony is clear that
rather than "investigat[ing] . . . the traffic accident" to assign criminal lia-
bility, his concern was aiding Johnson by ascertaining whether he was
injured, intoxicated, or suffering from an unrelated medical condition
and removing his car from the traffic lane, where it was creating a haz-
ard.
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more effectively with Johnson so that he could assess Johnson’s med-
ical condition and get his car out of the traffic lane. These efforts fall
squarely within the parameters of the community-caretaking excep-
tion.
B.
Nevertheless, Johnson argues that the exception should not apply
to Officer Bentivegna’s search because the officer’s stated reasons for
opening Johnson’s passenger-side door and the glove compartment
are mere pretext for what was really a criminal investigation.
If Officer Bentivegna’s stated reasons for the search were pretex-
tual, the community-caretaking exception would not apply. The
exception applies only to conduct that is "totally divorced from the
detection, investigation, or acquisition of evidence relating to the vio-
lation of a criminal statute," Dombrowski, 413 U.S. at 441, and not
when community-caretaking functions are used as "a subterfuge for
criminal investigations." Opperman, 428 U.S. at 370 n.5. The
Supreme Court emphasized that the exception applied in Dombrowski
because "there [was] no suggestion whatever" that the public-safety
rationale for the search "was a pretext concealing an investigatory
police motive." Opperman, 428 U.S. at 376. We have similarly
emphasized that "an essential premise for our application of [an]
exception [related to community-caretaking] . . . [wa]s the fact that
nothing in the record suggest[ed] that [the officer’s] reason for the
reentry was pretextual or that he acted in bad faith." United States v.
Gwinn, 219 F.3d 326, 335 (4th Cir. 2000).
Although the district court made no finding that Officer Ben-
tivegna’s stated reasons for the glove compartment search were pre-
textual, Johnson points to two facts from which, he contends, we must
infer that the officer’s true intent was to search for proof of criminal
wrongdoing. The first is that Officer Bentivegna opened the glove
compartment rather than examining the prescription bottle in plain
view, which contained Johnson’s name and suggested a possible med-
ical explanation for his condition. The second is that the officer
removed Johnson from his car and handcuffed him without waiting
for the ambulance to arrive, which allegedly demonstrates that the
officer had no concern for Johnson’s medical condition. We do not
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believe either fact supports a reasonable inference that Officer Ben-
tivegna used Johnson’s impaired condition and the need to move his
disabled vehicle as a pretext for a search for evidence of a crime.
First, while it is true that the officer could have learned Johnson’s
name and medical condition by examining the prescription bottle,
looking in the glove compartment for identification was an equally
plausible — and possibly more reliable — method of learning John-
son’s name. The fact that Officer Bentivegna did not choose the least
intrusive means of obtaining Johnson’s name does not mean that
learning Johnson’s identity was not the officer’s true intention.
We continue to adhere to our view that a "warrantless entry for
emergency reasons . . . cannot be used as the occasion for a general
voyage of discovery unrelated to the purpose of the entry." United
States v. Moss, 963 F.2d 673, 678 (4th Cir. 1992) (citation omitted);
see also United States v. Presler, 610 F.2d 1206, 1211 (4th Cir. 1979)
(finding that although officer who entered apartment without a war-
rant to address a medical emergency could seize evidence in plain
view, he did not have "an unlimited right extending ‘to the interiors
of every discrete enclosed space capable of search within the area’").
However, the community-caretaking exception is not limited to the
least intrusive means of protecting the public. As the Court explained
in Dombrowski, "[t]he fact that the protection of the public might, in
the abstract, have been accomplished by less intrusive means does
not, by itself, render the search unreasonable." Dombrowski, 413 U.S.
at 447 (internal quotation marks and citation omitted).
Of course, a search that is far more intrusive than necessary to
accomplish its purpose may raise questions as to whether the prof-
fered explanation for the search is the true one. For example, in Moss
we explained that the officer’s general rummaging through the defen-
dant’s personal effects after learning the defendant’s name "belie[d]"
the officer’s claim that he had conducted the search to learn the defen-
dant’s identity so that he could look for him in a forest preserve to
make sure he was neither lost nor injured. Moss, 963 F.2d at 679. But
when, as here, two narrowly tailored methods of arguably equal reli-
ability exist for obtaining the same information, and one method is
only slightly more intrusive than the other, no reasonable inference of
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bad faith follows from the officer’s choice of the slightly more intru-
sive method.
Similarly, we reject Johnson’s claim that by arresting him before
the paramedics had examined him, Officer Bentivegna showed that he
had never been concerned about Johnson’s medical condition. When
Officer Bentivegna found the gun in Johnson’s glove compartment,
his role changed from community caretaker to investigator of illegal
activity. That Officer Bentivegna’s role changed does not mean he
was never truly engaged in "community caretaking functions, totally
divorced from the detection, investigation, or acquisition of evidence
relating to the violation of a criminal statute." Dombrowski, 413 U.S.
at 441. Although it might have been prudent for Officer Bentivegna
to wait for paramedics to examine Johnson before removing him from
the vehicle, we do not believe the failure to do so suggests the officer
sought to arrest Johnson all along.
Therefore, we affirm the district court’s denial of Johnson’s motion
to suppress the fruits of the search of his glove compartment, but we
do so on the basis of the community-caretaking exception and not on
the basis of the variant of the automobile exception fashioned by the
district court.
III.
Johnson next argues that the district court should have excluded his
blood test results to remedy an asserted violation of the Posse Comita-
tus Act.
A.
The Posse Comitatus Act states in full:
Whoever, except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress, willfully
uses any part of the Army or Air Force as a posse comitatus
or otherwise to execute the laws shall be fined under this
title or imprisoned not more than two years, or both.
18 U.S.C. § 1385 (2000).
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"The purpose of th[e] Act is to uphold the American tradition of
restricting military intrusions into civilian affairs, except where Con-
gress has recognized a special need for military assistance in law
enforcement." United States v. Al-Talib, 55 F.3d 923, 929 (4th Cir.
1995) (citing United States v. Walden, 490 F.2d 372, 375 (4th Cir.
1974)). A blood test constitutes a search under the Fourth Amend-
ment, Schmerber v. California, 384 U.S. 757, 767 (1966), and thus
falls under the rubric of law enforcement activities. Therefore, a blood
test to test the impairment of civilian drivers can only be conducted
by military personnel at the Armed Forces Institute of Pathology, pur-
suant to a contract with the United States Park Police, if "Congress
has recognized a special need for military assistance" in performing
such searches, Al-Talib, 55 F.3d at 929, and has "expressly autho-
rized" it. See 18 U.S.C. § 1385.
The Government argues that the Military Support for Civilian Law
Enforcement Agencies Act, codified at 10 U.S.C. § 371 et seq., autho-
rizes the contract at issue here. Concerned that "[t]he Posse Comitatus
Act, 18 U.S.C. 1385, is sufficiently ambiguous to cause some com-
manders to deny aid, even when such assistance would in fact be
legally proper," Congress enacted the Act in 1981 to outline the types
of aid the military can provide to civilian law enforcement agencies
without running afoul of the Posse Comitatus Act. H.R. Rep. No. 97-
71, pt. 2, at 3 (1981), reprinted in 1981 U.S.C.C.A.N. 1785, 1785.
The legislation attempted to "maximize the degree of cooperation
between the military and civilian law enforcement" in dealing with
drug trafficking and smuggling while "maintain[ing] the traditional
balance of authority between civilians and the military." Id. The Act
permits the Secretary of Defense to "make available any equipment
. . . , base facility, or research facility of the Department or Defense
to any Federal, State, or local civilian law enforcement official for
law enforcement purposes." 10 U.S.C. § 372(a). Thus, Congress
clearly has authorized the use of the equipment and facilities of the
Armed Forces Institute of Pathology to perform blood tests for civil-
ian law enforcement agencies like the U.S. Park Police.
But this does not mean that § 372(a) authorizes military personnel
to perform "searches" of blood in furtherance of misdemeanor DUI
prosecutions. Generally, Congress has placed strict limitations on the
use of military equipment by military personnel for civilian law
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enforcement purposes. Miliary personnel may provide certain expert
advice, equipment maintenance, and training to civilian law enforce-
ment officers, see 10 U.S.C. §§ 373, 374(a), but the blood tests at
issue in this case concededly do not constitute the provision of expert
advice or equipment maintenance.
Nor, notwithstanding the Government’s contrary arguments, do we
believe that the performance of ordinary DUI blood tests by military
personnel for civilian law enforcement constitutes permissible train-
ing of civilians. Congress did not intend for the training exception to
condone routine participation by military personnel in civilian law
enforcement activities. Rather, Congress emphasized that the training
and expertise exceptions "would not alter the traditional separation of
the military from civilian law enforcement." 1981 U.S.C.C.A.N. at
1792. Congress further explained that "[n]othing in [§ 373] contem-
plates the creation of large scale or elaborate training programs. Nei-
ther does the authority to provide expert advice create a loophole to
allow regular or direct involvement of military personnel in what are
fundamentally civilian law enforcement operations." Id.
In addition to permitting military personnel to train, advise, and
maintain equipment for civilian authorities, Congress has authorized
military personnel to engage in specific activities related to the
enforcement of a handful of criminal laws. See 10 U.S.C. § 374(b).
The blood test here neither falls within one of the categories of activi-
ties that can be performed by military personnel under § 374(b)(1)-(2)
nor relates to the enforcement of any of the laws specified in
§ 374(b)(4).
Nor does the general catch-all provision in 10 U.S.C. § 374(c) aid
the Government here. In that statute, Congress has authorized the
Defense Secretary to
make Department of Defense personnel available to any
Federal, State, or local civilian law enforcement agency to
operate equipment for purposes other than described in sub-
section (b)(2) only to the extent that such support does not
involve direct participation by such personnel in a civilian
law enforcement operation unless such direct participation
is otherwise authorized by law.
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10 U.S.C. § 374(c) (emphasis added).
In Al-Talib we had occasion to consider whether military participa-
tion was "direct" enough to violate the Posse Comitatus Act. There,
the Air Force transported from Nebraska to Virginia a car and drugs,
which the Drug Enforcement Administration planned to use as bait in
a drug sting. We concluded that this "use of military resources . . . had
no direct impact on the defendants whatsoever" and so did not consti-
tute a violation of the Act. Al-Talib, 55 F.3d at 930. In contrast to the
logistical support in Al-Talib, which in no way engaged the military
in an activity having a direct impact on the defendants, military per-
sonnel’s performance of a blood test would have a direct impact on
a defendant — it would, in and of itself, constitute a Fourth Amend-
ment search. Furthermore, the test would yield the primary evidence
of guilt of a DUI offense and, should the driver not plead guilty and
go to trial, the serviceman who performed the test likely would be cal-
led to testify. The performance of a blood test to determine whether
a motorist has driven under the influence of alcohol or drugs thus con-
stitutes "direct participation in a civilian law enforcement operation."
See 10 U.S.C. § 374(c). Because such participation is not "otherwise
authorized by law," we conclude that Congress has not authorized
military personnel to perform blood tests for civilian law enforcement
agencies.
This holding accords with Congress’s directive that the Secretary
of Defense:
prescribe such regulations as may be necessary to ensure
that any activity (including the provision of any equipment
or facility or the assignment or detail of any personnel)
under this chapter does not include or permit direct partici-
pation by a member of the Army, Navy, Air Force, or
Marine Corps in a search, seizure, arrest, or other similar
activity unless participation in such activity by such member
is otherwise authorized by law.
10 U.S.C. § 375. It also comports with the legislature’s explicit rejec-
tion of a proposed provision that would have permitted military per-
sonnel to make arrests and seizures in furtherance of civilian
enforcement of drug laws. See 1981 U.S.C.C.A.N. at 1793.
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In sum, we interpret the Posse Comitatus Act and authorizing stat-
utes in keeping with "the traditional American insistence on exclusion
of the military from civilian law enforcement, which some have sug-
gested is lodged in the Constitution." Walden, 490 F.2d at 376.
Although performance of blood tests by military personnel for civil-
ian prosecutions may not be an egregious encroachment on civilian
law enforcement efforts, it is up to Congress to authorize such
searches, and it has yet to do so.
B.
For two reasons, however, this holding does not assist Johnson.
First, we cannot conclude that the blood test at issue in this case vio-
lated the Posse Comitatus Act because the record does not establish
that military personnel actually performed this blood test. We know
only that the test was performed at the Armed Forces Institute. That
alone does not suffice to prove a violation of the Posse Comitatus Act
because Congress has expressly authorized the use of military equip-
ment and facilities by civilian agencies. Absent proof that military
personnel performed the test, we decline to find a violation — espe-
cially since it would be a violation of a criminal statute.
Furthermore, even if the blood test at issue here had been per-
formed by military personnel in violation of the Posse Comitatus Act,
we would affirm the district court’s denial of Johnson’s suppression
motion. This is so because despite the important function of the Act
in "uphold[ing] the American tradition of restricting military intru-
sions into civilian affairs," "[a]s a general matter, the exclusionary
rule is not a remedy for violations of the [Act]." Al-Talib, 55 F.3d at
930.
Of course, "[s]hould there be evidence of widespread or repeated
violations" of the Act, "or ineffectiveness of enforcement by the mili-
tary, we will consider ourselves free to consider whether adoption of
an exclusionary rule is required as a future deterrent." Walden, 490
F.2d at 377; see also United States v. Griley, 814 F.2d 967, 976 (4th
Cir. 1987); Hayes v. Hawes, 921 F.2d 100, 104 (7th Cir. 1990) (not-
ing the exclusionary rule does not apply "absent widespread and
repeated violations"); United States v. Wolffs, 594 F.2d 77, 85 (5th
Cir. 1979) ("If this Court should be confronted in the future with
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widespread and repeated violations of the Posse Comitatus Act an
exclusionary rule can be fashioned at that time.").
Johnson argues that we can infer repeated violations from the fact
that the U.S. Park Police has contracted with the Armed Forces Insti-
tute for the latter to perform blood tests. We disagree; just because a
contract exists does not necessarily mean the conduct complained of
here occurs frequently. In fact, the record in this case contains no evi-
dence that the alleged violation is widespread or has occurred repeat-
edly. Therefore, even if the Posse Comitatus Act had been violated
here, i.e., military personnel had tested Johnson’s blood, fashioning
an exclusionary rule would not be appropriate in this case.
IV.
In the wake of the Supreme Court’s decision in United States v.
Booker, Johnson filed a supplemental brief arguing that his sentence
should be vacated and the case remanded for resentencing because he
was sentenced under a mandatory rather than an advisory regime.
Because Johnson’s plea agreement contained an appeal waiver, we
requested supplemental briefing as to whether that provision of the
plea agreement precludes Johnson from posing this challenge to his
sentence on appeal.
A.
The plea agreement contains a standard appeal waiver, which
states, in its entirety:
Your client and the United States knowingly and expressly
waive all rights conferred by 18 U.S.C. § 3742 to appeal
whatever sentence is imposed, including any issues that
relate to the establishment of the guideline range, reserving
only the right to appeal from an upward or downward depar-
ture from the guideline range that is established at sentenc-
ing. Your client further reserves the right to appeal the
Court’s denial of the pretrial Motions to Suppress. Nothing
in this agreement shall be construed to prevent either your
client or the United States from invoking the provisions of
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Federal Rule of Criminal Procedure 35, and appealing from
any decision thereunder, should a sentence be imposed that
exceeds the statutory maximum allowed under the law or
that is less than any applicable statutory minimum manda-
tory provision.
The district court engaged in a detailed plea colloquy with Johnson
as required by Fed. R. Crim. P. 11. The court specifically asked John-
son whether he understood that he would be sentenced under the
Guidelines, and Johnson answered that he did. The court engaged in
a lengthy discussion about the parameters of Johnson’s appeal waiver,
which concluded:
The Court: You have limited rights of appeal now and
you have a conditional guilty plea where you’re appealing
the denial of your motion to suppress. But if you went to
trial and were convicted by a jury, you would be able to
appeal on any and all issues including your sentence. Do
you understand that?
The Defendant: Yes.
The Court: Do you further understand that by entering
a plea of guilty, if that plea is accepted by this Court, there
will be no trial and you will have waived or given up your
right to a trial as well as all those other rights that I advised
you of? Do you understand that?
The Defendant: Yes.
The district court held Johnson’s sentencing hearing on April 16,
2004, two months before the Supreme Court decided Blakely v. Wash-
ington, 124 S. Ct. 2531 (2004). At the time of sentencing, the parties
agreed that under United States Guidelines Manual § 2K2.1 the base
offense level for possession of a firearm by a convicted felon was 20.
The parties further agreed that a two point enhancement was appropri-
ate under § 2K2.1(b)(4) because Johnson admitted in his plea agree-
ment that the gun found in his automobile had been stolen. The court
adjusted Johnson’s offense level by two points pursuant to § 3E1.1 for
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acceptance of responsibility, giving him a total combined offense
level of 20, the level predicted in the plea agreement. Based on a
criminal history category of 2, Johnson faced a guidelines range of 37
to 46 months in prison. Driving under the influence is a class B mis-
demeanor to which the guidelines do not apply, see § 1B1.9, and car-
ries a six month sentence. The court sentenced Johnson to a total of
40 months imprisonment; Johnson did not object to his sentence.
Nor did Johnson raise a Blakely challenge in his briefs in this court
— presumably because he could not claim that his sentence exceeded
"the maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant," i.e.,
that his sentence was based on judge-found facts. Blakely, 124 S. Ct.
at 2537 (citation and emphasis omitted). However, after the Supreme
Court issued Booker, Johnson filed a motion seeking remand so that
he could be resentenced under the new advisory guidelines regime.
We must decide whether a pre-Blakely appeal waiver bars Johnson’s
post-Booker sentencing challenge.
B.
Generally, we uphold the validity of appeal waivers. United States
v. Marin, 961 F.2d 493, 496 (4th Cir. 1992) (citation omitted). An
appeal waiver does not always preclude an appeal by the signatories,
however. A waiver has no binding effect if the defendant did not enter
into it knowingly and voluntarily; and even a knowing and voluntary
waiver of the right to appeal cannot prohibit the defendant from chal-
lenging a few narrowly-construed errors.
An appeal waiver "is not knowingly or voluntarily made if the dis-
trict court fails to specifically question the defendant concerning the
waiver provision of the plea agreement during the Rule 11 colloquy
and the record indicates that the defendant did not otherwise under-
stand the full significance of the waiver." Id. (citation omitted). Even
if the court engages in a complete plea colloquy, a waiver of the right
to appeal may not be knowing and voluntary if tainted by the advice
of constitutionally ineffective trial counsel. United States v. Craig,
985 F.2d 175, 178 (4th Cir. 1993). This is because "[a] decision to
enter into a plea agreement cannot be knowing and voluntary when
the plea agreement itself is the result of advice outside ‘the range of
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competence demanded of attorneys in criminal cases.’" DeRoo v.
United States, 223 F.3d 919, 923-24 (8th Cir. 2000) (quoting Hill v.
Lockhart, 474 U.S. 52, 56 (1985)).
Furthermore, even a knowing and voluntary waiver of the right to
appeal cannot bar the defendant from obtaining appellate review of
certain claims. For example, because "a defendant who waives his
right to appeal does not subject himself to being sentenced entirely at
the whim of the district court[,] . . . a defendant could not be said to
have waived his right to appellate review of a sentence imposed in
excess of the maximum penalty provided by statute or based on a con-
stitutionally impermissible factor such as race." Marin, 961 F.2d at
496. Nor can a defendant "fairly be said to have waived his right to
appeal his sentence on the ground that the proceedings following
entry of the guilty plea were conducted in violation of his Sixth
Amendment right to counsel, for a defendant’s agreement to waive
appellate review of his sentence is implicitly conditioned on the
assumption that the proceedings following entry of the plea will be
conducted in accordance with constitutional limitations." United
States v. Attar, 38 F.3d 727, 732 (4th Cir. 1994). See also United
States v. Henderson, 72 F.3d 463, 465-66 (5th Cir. 1995); cf. Jones
v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999) (addressing
claim of ineffective assistance of counsel in post-trial negotiation of
cooperation agreement that included a waiver of the rights to appeal
and to file a habeas petition). And appellate courts "refuse to enforce
an otherwise valid waiver if to do so would result in a miscarriage of
justice." United States v. Andis, 333 F.3d 886, 891 (8th Cir. 2003).
C.
Johnson does not claim that the district court failed to question him
about the appeal waiver during the plea colloquy; the court demon-
strably did so. Johnson does not allege that he entered into the appeal
waiver on the advice of constitutionally ineffective counsel; and we
have no reason to suspect defense counsel rendered constitutionally
deficient assistance. Johnson does not contend that his sentence
exceeded the statutory maximum or was based on a constitutionally
impermissible factor such as race; quite clearly it was not. He does
not challenge the constitutionality of his sentence; nor can he raise a
Sixth Amendment claim because the district court imposed a sentence
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based only on facts Johnson admitted. He does not even argue that a
Booker challenge falls within one of the explicit exceptions contained
in his appeal waiver; and other circuits have refused to read identical
waiver language to accommodate such a claim. See, e.g., United
States v. Rubbo, 396 F.3d 1330, 1334-35 (11th Cir. 2005).
Rather, Johnson contends that he did not knowingly and intelli-
gently agree to waive an appeal under Booker because his Booker
challenge exceeds the scope of his appeal waiver. He argues that he
could not have knowingly and intelligently waived his right to chal-
lenge his sentence under Booker because at the time he pled guilty,
"[n]either the [c]ourt, the Government, [n]or [he had] anticipated or
had basis to anticipate" that the Supreme Court would subsequently
hold the Guidelines advisory rather than mandatory. Supp. Brief of
Appellant at 5. For this reason, according to Johnson, his Booker chal-
lenge exceeds the scope of his appeal waiver.2
Johnson’s contention — that a defendant cannot waive the right to
an appeal based on subsequent changes in the law — though reason-
able, is foreclosed by Supreme Court precedent. Years ago in Brady
v. United States, the Court held that "absent misrepresentation or
other impermissible conduct by state agents, a voluntary plea of guilty
intelligently made in the light of the then applicable law does not
become vulnerable because later judicial decisions indicate that the
2Johnson also briefly argues that dismissal of his Booker challenge
would result in a miscarriage of justice. The sole support offered for this
contention is our statement in United States v. Hughes, 401 F.3d 540,
555 (4th Cir. 2005), that failure to recognize the error in that case "would
seriously affect the fairness, integrity, or public reputation of judicial
proceedings." Johnson’s reliance on Hughes is misplaced. The error we
noticed in Hughes was the imposition of a sentence under a mandatory
guidelines regime that "exceed[ed] the maximum allowed based only on
the facts found by the jury" or admitted to by the defendant. Hughes, 401
F.3d at 547 (citing Booker, 125 S.Ct. at 756). Johnson does not — and
could not — claim that his sentence exceeded the maximum authorized
by the facts to which he admitted in his plea agreement. Rather, he
claims only that he should not have been sentenced under mandatory
guidelines. We recently refused to find that this error even affected a
defendant’s substantial rights. See United States v. White, 405 F.3d 208,
217-24 (4th Cir. 2005).
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plea rested on a faulty premise." 397 U.S. 742, 757 (1970) (emphasis
added; internal citation omitted). The Supreme Court has recognized
that a defendant cannot be said to have intelligently entered a guilty
plea if "neither he, nor his counsel, nor the court correctly understood
the essential elements of the crime," as those elements were inter-
preted by the Supreme Court after entry of the plea. See Bousley v.
United States, 523 U.S. 614, 618-19 (1998) (emphasis added) (invali-
dating guilty plea to use of a firearm, which was entered into five
years before the Court held in Bailey v. United States, 516 U.S. 137,
144 (1995), that "§ 924(c)(1) requires the Government to show ‘active
employment of the firearm’"). But Brady makes clear that post-plea
legal changes to applicable penalties do not provide a basis for upset-
ting a guilty plea.
At the time Brady had pled guilty to kidnapping in violation of 18
U.S.C. § 1201(a), the statute specified that a jury — but not a judge
— could impose the death penalty upon finding the defendant guilty.
Brady, 397 U.S. at 745-46. After Brady entered his guilty plea, in part
to avoid the risk of capital punishment, the Supreme Court struck
down the death penalty provision of § 1201(a) in United States v.
Jackson, 390 U.S. 570 (1968), reasoning that it "‘impose[d] an imper-
missible burden upon the exercise of [the right to a jury trial].’"
Brady, 397 U.S. at 746 (quoting Jackson, 390 U.S. at 572). The Court
held that "[t]he fact that Brady did not anticipate United States v.
Jackson . . . d[id] not impugn the truth or reliability of his plea." Id.
at 757. The Court explained:
[a] plea of guilty triggered by the expectations of a compe-
tently counseled defendant that the State will have a strong
case against him is not subject to later attack because the
defendant’s lawyer correctly advised him with respect to the
then existing law as to possible penalties but later pro-
nouncements of the courts, as in this case, hold that the
maximum penalty for the crime in question was less than
was reasonably assumed at the time the plea was entered.
Id.; see also United States v. Ruiz, 536 U.S. 622, 630 (2002).
Although Johnson, unlike Brady, challenges the viability of only a
provision of his plea agreement rather than his entire guilty plea, the
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Brady reasoning applies equally here. See, e.g., United States v. John-
son, 67 F.3d 200, 202 (9th Cir. 1995) (finding "supervening changes
in the law" did not fall beyond the scope of the appeal waiver).
Indeed, every court to consider the matter, including this one, has
expressly held that the precise change in the law at issue here — the
Booker decision — does not invalidate a pre-Booker appeal waiver.
See United States v. Blick, ___ F.3d ___, 2005 WL 1252617, at *7
(4th Cir. 2005); United States v. Morgan, 406 F.3d 135, 137 (2d Cir.
2005); United States v. Bownes, 405 F.3d 634, 636-37 (7th Cir. 2005);
United States v. Bradley, 400 F.3d 459 (6th Cir. 2005); United States
v. Grinard-Henry, 399 F.3d 1294, 1296-97 (11th Cir. 2005); United
States v. Killgo, 397 F.3d 628, 629 n.2. (8th Cir. 2005). Cf. United
States v. Sahlin, 399 F.3d 27, 31 (1st Cir. 2005) (finding Booker did
not invalidate guilty plea).
A plea agreement, like any contract, allocates risk. See United
States v. Ringling, 988 F.2d 504, 506 (4th Cir. 1993). "And the possi-
bility of a favorable change in the law occurring after a plea is one
of the normal risks that accompan[ies] a guilty plea." Sahlin, 399 F.3d
at 31; United States v. Khattak, 273 F.3d 557, 561 (3d Cir. 2001)
("Waivers of the legal consequences of unknown future events are
commonplace.") Johnson assumed this risk in exchange for the dis-
missal of the possession of marijuana count he faced and the Govern-
ment’s parallel waiver of the right to appeal Johnson’s sentence
unless it fell below a statutory mandatory minimum provision or the
court granted a downward departure. Declining to enforce his appeal
waiver because of a subsequent change in the law would deprive the
Government of some of the benefits of its bargain, which might ulti-
mately work to the detriment of defendants who may find the Govern-
ment less willing to offer a plea agreement.
In sum, the issuance of Booker after the plea agreement was
reached does not render Johnson’s plea unknowing or involuntary,
nor does Johnson’s Booker challenge fall beyond the scope of his pre-
Booker appeal waiver.
V.
For the reasons stated above, we affirm the judgment of the district
court and dismiss Johnson’s challenge to his sentence.
AFFIRMED IN PART AND DISMISSED IN PART
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