United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 10, 2012 Decided February 24, 2012

No. 11-3020

UNITED STATES OF AMERICA,

APPELLEE

v.

RUSSEL C. WASHINGTON,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cr-00157-1)

John A. Briley Jr., appointed by the court, argued the cause

and filed the brief for appellant.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Ronald C.

Machen Jr., U.S. Attorney, and Roy W. McLeese III, Assistant

U.S. Attorney.

Before: ROGERS and GRIFFITH, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.
2

ROGERS, Circuit Judge: When the police stopped appellant

for driving at night with no car lights on, a minor traffic offense,

they noticed a strong smell of alcohol coming from the car, saw

a small amount of red liquid in an open cup in the car, and

arrested him for violating D.C. Code § 25-1001(a)(2) (2001). 

Upon searching the car, the police found a loaded gun under the

driver’s seat. Possession of a firearm by a person previously

convicted of a felony, which appellant was, is a violation of both

D.C. Code § 22-4503(a)(1) (2001) and 18 U.S.C. § 922(g)(1)

(2006). The U.S. Attorney for the District of Columbia

prosecuted appellant in federal court. See D.C. Code § 23-

101(c). Following the denial of his motion to suppress evidence,

appellant entered a conditional plea to the indictment and was

sentenced to 57 months’ imprisonment, the bottom of the U.S.

Guidelines sentencing range.

On appeal, appellant challenges the denial of his motion to

suppress evidence and his sentence. His Fourth Amendment

challenge is based on the contention that the “infinitesimal,”

Appellant’s Br. 8, amount of red liquid observed by the police

in the cup was insufficient to establish probable cause to arrest

him for violating D.C. Code § 25-1001(a)(2) and therefore to

search the car. The district court, however, credited police

testimony about the strong odor of alcohol coming from the car,

the red liquid in the uncovered cup, a puddle on the car

floorboard near the driver’s seat, and appellant’s movements

after he was ordered to stop the car; appellant does not challenge

these findings. This testimony supported the district court’s

conclusion that a reasonable police officer could infer that

appellant had poured the liquid from the cup while driving. 

Upon arresting appellant with probable cause to believe he was

driving in possession of an open container of alcohol, the police

had an objectively reasonable basis to search the car for

evidence of that offense. Therefore, the district court did not err

in denying appellant’s motion to suppress evidence. 
3

In challenging his sentence, appellant contends that the

district court abused its discretion by “summarily reject[ing]”

his request that the sentencing decision take into account the

sentencing disparity under the D.C. Voluntary Sentencing

Guidelines (2010) resulting from the U.S. Attorney’s

“arbitrar[y]” election to prosecute him in federal court. 

Appellant’s Br. 7. The district court, however, acknowledged its

discretion under the advisory federal sentencing guideline

regime after United States v. Booker, 543 U.S. 220 (2005), to

begin its analysis with the U.S. Guidelines and end with the D.C.

Guidelines. Upon finding no abuse or unfairness by the U.S.

Attorney in prosecuting appellant under federal rather than D.C.

law, the district court addressed the relevant statutory factors in

18 U.S.C. § 3553(a) and determined that a significant period of

incarceration was necessary, although not as long as the

government recommended nor as short as appellant urged on the

basis of the D.C. Guidelines. Given the district court’s

consideration of the statutory factors and of appellant’s

arguments in aid of sentencing, and the district court’s reasoned

explanation of its sentencing determination, there was neither

procedural error nor substantive abuse of discretion by the

district court. Accordingly, we affirm the judgment of

conviction.

I.

Around 3 a.m. on May 7, 2010, Metropolitan Police

Officers Derek Gawrilow and Benjamin Finck saw a car moving

on the road without having its lights on. They ordered appellant,

who was driving, to pull over. Appellant continued to drive

about a block before stopping; during that time the officers

observed his shoulders moving. Upon approaching the driver’s

window to request information, Officer Gawrilow noticed a

“fairly strong” smell of alcohol coming from the car. Tr. Mot.

Hr’g, Oct. 6, 2010, at 13. Both officers saw a clear plastic cup
4

in a backseat cup holder and a puddle of liquid on the floorboard

near the driver’s seat. Officer Gawrilow testified that he asked

appellant to hand him the cup, and that upon examining it he

saw “a small amount of red liquid,” which “smelled consistent

with the odor of [an] alcoholic beverage.” Id. at 14; see id. at

58. The officers arrested appellant for possession of an open

container of alcohol in a vehicle in violation of D.C. Code § 25-

1001(a)(2), and then searched the car for “additional items of

evidence” related to that charge, Tr. Mot. Hr’g at 23. Officer

Finck found a Glock .40 caliber handgun under the driver’s seat;

it was loaded with 14 rounds of ammunition. The officers did

not issue appellant a citation for driving without having his car

lights on in violation of D.C. Mun. Regs. Tit. 18 § 703.1. 

Appellant, who had previously been convicted of two

felonies, was indicted by a federal grand jury on one count of

unlawful possession of a firearm by a felon in violation of 18

U.S.C. § 922(g)(1). After an evidentiary hearing, the district

court denied appellant’s motion to suppress the gun and

ammunition, rejecting his argument that the officers lacked

probable cause to arrest him and therefore lacked grounds to

search the car for related evidence. Appellant entered a

conditional guilty plea to the indictment pursuant to Federal

Rule of Criminal Procedure 11(a)(2). The pre-sentence

investigative report calculated the U.S. Guidelines sentencing

range at 57 to 71 months’ imprisonment, based on a offense

level of 24, appellant’s early acceptance of responsibility, and

his criminal history. The district court sentenced appellant to 57

months’ imprisonment and 36 months’ supervised release.

II.

D.C. Code § 25-1001(a)(2) provides that “no person in the

District [of Columbia] shall . . . possess in an open container an

alcoholic beverage in . . . [a] vehicle in or upon any street, alley,
5

park, or parking area . . . .” It is a misdemeanor offense,

punishable by a maximum fine of $500, or imprisonment for a

maximum of ninety days, or both. Id. § 25-1001(d). Appellant

does not deny that he was driving the car at night without lights

in violation of D.C. Mun. Regs. Tit. 18 § 703.1, or that the

officers’ stop of the car was lawful, see Whren v. United States,

517 U.S. 806, 810 (1996). Instead he contends that the police

lacked probable cause to arrest him for violating D.C. Code

§ 25-1001(a)(2) because there was an insufficient amount of

liquid in the cup.

Probable cause to arrest exists where a police officer has

information “sufficient to warrant a prudent [individual] in

believing that the [suspect] had committed or was committing an

offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964); see Illinois v.

Gates, 462 U.S. 213, 230–31 (1983). This court reviews the

determination of probable cause de novo, while reviewing

historical facts for clear error and giving due weight to

inferences drawn by the district court and the police. See

Ornelas v. United States, 517 U.S. 690, 699 (1996).

The fact that the cup contained only a small (or

“infinitesimal,” Appellant’s Br. 8) amount of red liquid at the

time of the officers’ observations does not, as appellant

suggests, demonstrate a lack of probable cause to believe he was

violating the prohibition against possessing an open container of

alcohol in a vehicle on the road. Appellant was the only person

in the car at the time the officers noticed he was driving without

having his car lights on. He does not challenge either the

characterization of the cup as an open container, see D.C. Code

§ 25-101(35), or the district court’s findings that the police

identified the odor of alcohol coming from the car, the cup, and

the puddle behind the driver’s seat, and saw appellant’s

shoulders moving while driving the car an additional block. 

This evidence supports the district court’s conclusion that a
6

reasonable officer could infer that appellant had poured alcohol

out of the cup and onto the car floorboard before obeying the

police signal to pull over and stop the car. See Derosiers v. Dist.

of Columbia, 19 A.3d 796, 799–801 (D.C. 2011).

Because the officers had probable cause to arrest appellant

for driving with an open container of alcohol in violation of

D.C. Code § 25-1001(a)(2), upon arresting him they could

search the car for evidence related to the arrest, Arizona v. Gant,

556 U.S. 332, 129 S. Ct. 1710, 1719 (2009). It was objectively

reasonable, given the “small amount” of red liquid in the cup

and the puddle on the car floorboard that the officers testified

smelled of alcohol, for the officers to believe they might find

another container of alcohol in the car — i.e., the source of the

liquid in the cup and the puddle. See id.; United States v.

Vinton, 594 F.3d 14, 25 (D.C. Cir. 2010). Appellant thus fails

to show that the search, which led to the discovery of the loaded

gun under the car driver’s seat, violated the Fourth Amendment. 

III.

In challenging his sentence, appellant contends the district

court’s failure fully to consider the possible unfairness of a 33-

month disparity between the minimum sentences authorized by

the U.S. and D.C. Guidelines was a “clear and unexplained

abuse of [] discretion.” Appellant’s Br. 7. While

acknowledging that the U.S. Attorney’s charging decision

generally is not subject to challenge in this circuit for violation

of due process,1

 appellant maintains nothing bars the district

1

 In Mills v. United States, 925 F.2d 455, 461–62 (D.C. Cir.

1991) (citations omitted), vacated, 933 F.2d 1042 (D.C. Cir. 1991),

reinstated in pertinent part, 964 F.2d 1186, 1188 n.3 (D.C. Cir. 1992)

(en banc), this court held that “[t]he prosecutor is of course

constitutionally prohibited from basing these decisions on an
7

court from considering the disparity between the U.S. and D.C.

Guidelines under the statutory sentencing factors. He submits,

as we understand his argument, that because the prosecution

grew out of a minor traffic violation and was punishable under

D.C. law, fulfillment of the general principles and goals in 18

U.S.C. § 3553(a)(2) regarding the promotion of respect for the

law, just punishment for the offense, and adequate deterrence of

criminal conduct by others, should be measured by local

sentencing standards rather than those established by the U.S.

Sentencing Commission. See Appellant’s Br. 10. What

appellant characterizes as the district court’s “blind deference to

the prosecutorial decision” is, he suggests, “a clear indication

that the trial judge had little interest in weighing appellant’s

D.C. Code–based arguments against other factors on which she

balanced her sentencing decision.” Appellant’s Br. 11. 

 

In Booker, 543 U.S. at 245, 260–62, the Supreme Court

held that the U.S. Guidelines were advisory only, and that

federal sentences should be reviewed for reasonableness. An

abuse of discretion standard cabins our review of appellant’s

sentence. See Gall v. United States, 552 U.S. 38, 41 (2007). 

This court considers whether there was a “significant procedural

error.” Id. at 51; see United States v. Olivares, 473 F.3d 1224,

1226 (D.C. Cir. 2006). Procedural error includes failing

properly to calculate the guideline range or to consider § 3553(a)

factors, sentencing on the basis of erroneous facts, or failing

adequately to explain the chosen sentence, including any

deviation from the U.S. Guidelines range. Gall, 552 U.S. at 51. 

Absent a finding of a significant procedural error, the court 

reviews the substantive reasonableness of the sentence. Id.

individual defendant’s race, sex, religion or previous exercise of a

legal right,” but where the exercise of prosecutorial discretion is

“rational and nondiscriminatory, [] there generally is no basis for

finding a violation of due process.”
8

Congress recognized that there could be occasions where a

sentencing judge would find that “an aggravating or mitigating

circumstance of a kind, or to a degree, not adequately taken into

consideration” by the U.S. Sentencing Commission, would

justify departure from the sentencing range provided in the U.S.

Guidelines. 18 U.S.C. § 3553(b). Arguably, such a

circumstance might arise from the unique role of the U.S.

Attorney of the District of Columbia as both the federal and

local prosecutor, see D.C. Code § 23-101(c), where an offense

is punishable under federal and D.C. law. Although appellant

does not explicitly rely on § 3553(b), his reference to the U.S.

Attorney’s arbitrariness in bringing a federal prosecution

implicitly invokes its provisions. Indeed appellant’s counsel

observed during oral argument that, despite his long experience

as defense counsel in this jurisdiction, it was often unclear to

him why a criminal case that begins in the local D.C. courts ends

up in the federal courts, and vice versa. Oral Argument at

32:05–40. The district court similarly acknowledged this

movement between the local and federal courts. See Tr. Sent.,

Feb. 4, 2011, at 18–19. But this court rejected that argument

long ago.

In United States v. Clark, 8 F.3d 839 (D.C. Cir. 1993), this

court “rejected the claim that the [U.S.] government’s ‘arbitrary

use’ of its discretion to indict defendants under either federal or

D.C. law could be a mitigating circumstance within the meaning

of § 3553(b).” Id. at 842 (citation omitted). The court stated

that “the ‘unique status of the District of Columbia’ is not a

mitigating factor within the meaning of 18 U.S.C. § 3553,”

explaining that a circumstance is “mitigating” for purposes of

§ 3553(b) only if it is “linked to one of the stated purposes of

sentencing,” id. (citing 18 U.S.C. § 3553(a)(2)), and further that

“mitigating circumstances” do not include “routine exercise[s]

of prosecutorial discretion,” even “the [U.S.] government’s
9

‘arbitrary use’ of its discretion to indict defendants under either

federal or D.C. law,” id. The court cited United States v.

Dockery, 965 F.2d 1112, 1117 (D.C. Cir. 1992), where it had

observed that the U.S. Sentencing Commission “almost certainly

did not intend that decisions traditionally within the prosecutor’s

ken, and within reasonable bounds, be counterbalanced by the

sentencing court.”

In Clark the court also rejected the claim that disparities

between the U.S. and D.C. Guidelines may warrant a downward

departure pursuant to 18 U.S.C. § 3553(a)(6).2

 It reasoned that,

“[b]y conforming the sentences of federal defendants in the

District of Columbia to those imposed by the [local D.C.]

Superior Court, the [federal] district court would pull federal

defendants in the District of Columbia out of the nationwide net

of the [U.S.] Sentencing Guidelines,” thereby “increas[ing]

sentencing disparity between federal defendants and

contraven[ing] the Guidelines’ goal of achieving sentencing

uniformity in federal courts across the country.” Id. at 843. 

Although Clark was decided before Booker, it controls the

interpretation of 18 U.S.C. § 3553(a)(6) and (b) in this circuit

and thus our review of appellant’s sentencing challenge.3

 That

2

 Section 3553(a)(6) requires the sentencing court to consider

“the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct.”

3

 Even after the Supreme Court held in Booker, 543 U.S. at

245, that the U.S. Guidelines were advisory only, other circuits have

held that § 3553(a)(6) applies only to disparities among sentences for

federal defendants, and that the district court does not abuse its

discretion in not considering a potential disparity between federal and

state sentences for the same offense. See, e.g., United States v.

Deegan, 605 F.3d 625, 635 (8th Cir. 2010), cert. denied, 131 S. Ct.

2094 (2011); United States v. Johnson, 505 F.3d 120, 123–24 (2d Cir.

2007) (citing cases from the Fourth, Seventh, and Tenth Circuits).
10

is, although post-Booker nothing necessarily precludes

consideration of the D.C. Guidelines in the district court’s

exercise of discretion in determining a particular sentence, Clark

precludes treatment of the U.S. Attorney’s lawful exercise of

discretion in bringing a federal prosecution as a mitigating

circumstance under § 3553(b), and treatment of sentencing

disparities between the U.S. and D.C. Guidelines as sufficient to

support a departure under § 3553(a)(6). 

Appellant did not, however, rely solely on the disparity

factor addressed in § 3553(a)(6), but also called the district

court’s attention to “[t]he nature and circumstances of the

offense and the history and characteristics of the defendant”

addressed in § 3553(a)(1). Def. Mem. Aid Sent., Jan. 31, 2011,

at 2. Defense counsel emphasized that appellant’s two felony

convictions occurred when he was a teenager and his latest

conviction, for a misdemeanor, occurred in 2007. Id. at 4. 

Among other things, counsel noted appellant’s recent

completion of a “lengthy non-residential program to address his

issues involving substance abuse,” and his recent efforts to

“organize his personal lifestyle . . . along constructive lines.” Id. 

The government, in turn, emphasized the likelihood of harm

resulting from appellant’s driving a car with an open container

of alcohol and a gun within easy reach, as well as appellant’s

criminal history; it urged the district court to impose a sentence

of 64 months, in the middle of the U.S. Guidelines range. 

The district court, in considering the nature and

circumstances of the offense, see § 3553(a)(1), found that

appellant, as a felon in possession of a gun and alcohol while

driving in the middle of the night, had committed a serious

offense. In considering the necessary sentence, see

§ 3553(a)(2), the district court found that appellant’s criminal

history showed “almost constant criminal conduct,” Tr. Sent. at

21, including seven convictions as an adult, two of which were
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felonies, but little incarceration time. Although crediting

appellant, who was 28 years old, for finishing a drug treatment

program and endeavoring to turn his life around, the district

court took a more skeptical view of his success than defense

counsel, noting appellant’s failure to abide by conditions of his

release on high intensity supervision and his appearance in court

the previous day while under the influence of alcohol. 

Considering the need to deter future criminal conduct, promote

respect for the law, protect the public, and provide appellant

with drug treatment (and perhaps anger management), see

§ 3553(a)(2), the district court concluded that a sentence within

the U.S. Guidelines range was necessary, and sentenced

appellant to the bottom of that range. 

In so proceeding, the district court did not err in failing to

give greater weight to appellant’s D.C. Code–based arguments. 

The sentencing record indicates that the district court did not

“blindly defer” to the U.S. Attorney’s decision to prosecute

appellant in federal court, but rather discerned no indication of

abuse or “material[] unfair[ness]” in that decision, Tr. Sent. at

19. On appeal, appellant offers nothing that would undermine

that finding, much less show it was clearly erroneous. Further,

the district court acknowledged its broad discretion in

sentencing, including ending with consideration of the D.C.

Guidelines. Defense counsel’s memorandum in aid of

sentencing set forth appellant’s disparity argument and

counsel’s view of how the district court should evaluate

appellant’s criminal history and recent conduct. The district

court’s explanation of the sentence to be imposed followed from

its consideration of the relevant statutory factors in view of

appellant’s arguments. Although the district court must “‘make

an individualized assessment based on the facts presented,’” In

re Sealed Case, 527 F.3d 188, 191 (D.C. Cir. 2008) (quoting

Gall, 552 U.S. at 50), “the procedural requirement that the

district court ‘consider’ a particular § 3553(a) factor does not
12

depend on how heavily the court weighs that factor,” United

States v. Gardellini, 545 F.3d 1089, 1094 n.6 (D.C. Cir. 2008)

(citing Gall, 552 U.S. at 52–55). So too, the district court’s

assessment of considerations urged by a defendant in applying

the statutory factors need not be lengthy to demonstrate they

were not ignored. See Rita v. United States, 551 U.S. 338,

358–59 (2007).

Where the district court imposes a sentence within the U.S.

Sentencing Guidelines range, this court “may apply a

presumption of reasonableness” to the sentence. Id. at 347; see

also Gardellini, 545 F.3d at 1096. In view of the district court’s

consideration of the appropriate statutory factors and the

reasoned explanation of its decision to require a significant

period of incarceration, there was no substantive abuse of

discretion by the district court in imposing a sentence at the

bottom of the U.S. Guidelines range. Accordingly, we affirm

the judgment of conviction.