UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

HASHIM SHAHIM WHITE, a/k/a  No. 02-4748

Abdullah Hashim Mutee, a/k/a

Abdullah Hashim, a/k/a Hashim AlQuddus,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Raymond A. Jackson, District Judge.

(CR-02-48)

Submitted: February 25, 2003

Decided: March 24, 2003

Before WILLIAMS, TRAXLER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Frank W. Dunham, Jr., Federal Public Defender, Larry W. Shelton,

Supervisory Assistant Federal Public Defender, Norfolk, Virginia, for

Appellant. Paul J. McNulty, United States Attorney, James Ashford

Metcalfe, Assistant United States Attorney, Norfolk, Virginia, for

Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Hashim Shahim White appeals his conviction and sentence on a

charge of being a felon in possession of a firearm and ammunition,

in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000).1 Over

White’s objection, the district court applied a two-point enhancement

to White’s offense level under U.S. Sentencing Guidelines Manual

§ 2K2.1(b)(4) (2001), for "altered or obliterated serial number," and

sentenced White to 66 months’ imprisonment, a three-year term of

supervised release, and ordered White to pay the mandatory special

assessment of $100. White filed a timely notice of appeal in which he

claims: (1) the district court improperly enhanced his sentence under

USSG § 2K2.1(b)(4), for possession of a pistol with an obliterated

serial number when White had no knowledge that the serial number

was obliterated; (2) the vehicle stop violated his constitutional rights

because the police officers had no reasonable suspicion to conduct a

vehicle stop; and (3) the government was required to disclose the

identity of the informant who gave police preliminary information

concerning White. The last two issues are submitted by defense counsel pursuant to Anders v. California, 386 U.S. 738 (1967). For the reasons set forth below, we affirm White’s conviction and sentence. 

White first claims the district court erred in enhancing his sentence

under USSG § 2K2.1(b)(4), which provides for a two-level increase

in the defendant’s offense level when any firearm possessed has an

obliterated serial number, because he was acquitted of the crime of

"knowing" possession of a gun with an obliterated serial number. This

court uses a sliding-scale standard of review for appeals involving

application of the Sentencing Guidelines. United States v. Daughtrey,

874 F.2d 213, 217 (4th Cir. 1989). Factual findings made by the dis1White was acquitted of being in possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k) (2000). 

2 UNITED STATES v. WHITE
trict court in connection with a sentencing decision are reviewed for

clear error while legal interpretations of the Guidelines are reviewed

de novo. Id. This court’s review of this issue is de novo because it

involves the correct interpretation of § 2K2.1(b)(4), and the application of the enhancement to the facts of this case. 

A general verdict of not guilty is not a finding of fact or a rejection

of any fact, but only an acknowledgment that the government failed

to prove an essential element beyond a reasonable doubt. United

States v. Watts, 519 U.S. 148, 155 (1997) (citations omitted). Thus,

a verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.2

Id. at 157.

See also United States v. Murphy, 96 F.3d 846, 848-49 (6th Cir. 1996)

(holding lack of mens rea requirement in § 2K2.1(b)(4) does not violate due process). Therefore, we find the district court was free to

find, by a preponderance of the evidence, that White possessed a firearm with an obliterated serial number and to enhance his sentence

accordingly. 

White next claims the police officers who stopped the vehicle in

which he was a back-seat passenger lacked a reasonable and articulable suspicion of past or present criminal activity and probable cause,

such that the stop violated his Fourth Amendment rights. This court

reviews de novo the district court’s determination of reasonable suspicion and probable cause. Ornelas v. United States, 517 U.S. 690, 691

(1996); United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992).

An automobile stop constitutes a seizure within the meaning of the

Fourth Amendment, and is permissible if the officer has probable

cause to believe a traffic violation has occurred or has a reasonable

and articulable suspicion of past or present criminal activity. Whren

v. United States, 517 U.S. 806, 809-10 (1996); United States v. Hensley, 469 U.S. 221, 226, 229 (1985); Terry v. Ohio, 392 U.S. 1, 20-22

(1968). An informant’s tip can provide the officers with the articulable suspicion to stop the vehicle. Hensley, 469 U.S. at 226. Police

2White does not dispute the existence of proof by a preponderance of

the evidence relating to the acquitted charge on which the enhancement

was based. 

UNITED STATES v. WHITE 3
officers can stop and briefly detain a person for investigative purposes

if the officer reasonably suspects that criminal activity may be afoot.

Illinois v. Wardlow, 528 U.S. 119, 123 (2000); see also Terry v. Ohio,

392 U.S. 1, 30 (1968). In evaluating police conduct in a Terry stop,

courts must consider the totality of the circumstances known to the

officer at the time of the stop. United States v. Sokolow, 490 U.S. 1,

8 (1989). Once reasonably suspicious, the police are entitled to conduct a frisk and search for weapons when conducting a Terry stop.

Hensley, 469 U.S. at 235. When the occupant of a vehicle is arrested,

the passenger compartment and any containers therein may be

searched without a warrant or further showing of probable cause. New

York v. Belton, 453 U.S. 454, 460-61 & n.4 (1981); United States v.

Milton, 52 F.3d 78, 80 (4th Cir. 1995). A passenger can challenge the

legality of the stop of a vehicle. Rusher, 966 F.2d at 874 n.4, 875. 

Here, Officer Thompson was informed that there were outstanding

warrants for White in the State of New Jersey. He verified this information through the National Crime Information Center and by checking police reports. Officer Thompson, along with several other

officers from the Norfolk Police Department, conducted surveillance

on the residence where they were informed that White was located.

When the officers encountered White, he ran off. Officer Thompson

later recognized White as a back-seat passenger in a vehicle being

driven by his sister, the same vehicle the officers observed his sister

drive from the residence. During their attempt to stop the vehicle, the

officers saw what appeared to be cocaine being thrown from the car.

After the stop and arrest of White and the detention of the other occupants, officers found a loaded pistol in the glove compartment. 

We find without difficulty that the combination of circumstances

in this case justified an investigative stop. First, the officers responded

to information provided by a confidential informant that White was

wanted in New Jersey for weapons and "possible" drug charges, and

that he was staying at a particular location. Police then verified the

outstanding warrants, and further verified that the address at which

White was located was his mother’s residence. Officers had a descriptive recognition, followed by positive identification of White when he

took off running, and then recognized White in the vehicle being

driven by his sister. Officer Thompson reasonably relied on his

knowledge of the existence of the outstanding warrants for White.

4 UNITED STATES v. WHITE
Once Officer Thompson observed White in the vehicle which he had

seen White’s sister drive from the same residence where the officers

had previously encountered White, he had the requisite reasonable

suspicion and probable cause to stop the vehicle and detain White in

order to investigate. Sokolow, 490 U.S. at 8; United States v. Crittendon, 883 F.2d 326, 328 (4th Cir. 1989). The investigative stop in this

case was proper. White’s arrest, and the search which yielded the firearm, likewise were proper. 

White’s final claim is that his rights were violated because he was

not afforded an opportunity to confront the witness against him whom

Officer Thompson testified provided him with preliminary information regarding White, including the facts that White had outstanding

warrants from New Jersey, and that he possessed a firearm. A legal

distinction exists regarding the privilege of nondisclosure between an

informant who is an active participant in an offense and a mere tipster

"who supplies a lead to law enforcement officers to be pursued in

their investigation of crime." McLawhorn v. North Carolina, 484 F.2d

1, 5 (4th Cir. 1973). The privilege of nondisclosure ordinarily is applicable where the informant is a mere tipster, because the identity of the

informant is not essential in the preparation of a defense. Id.; United

States v. Price, 783 F.2d 1132, 1138 (4th Cir. 1986). 

It is clear that the information received by Officer Thompson in

this case was a tip. In addition, there was no allegation or evidence

that the informant was an actual participant in the charges ultimately

brought against White, nor was there a request for or showing that the

name of this person was essential to White’s defense. The information

given by the informant was fully and independently verified by the

officers through independent sources. Accordingly, we find that the

public interest in protecting the identity of the informant in this case

clearly outweighed any benefit to White of knowing the informant’s

identity. Roviaro v. United States, 353 U.S. 53, 60-62 (1957). 

We affirm White’s conviction and sentence. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid

the decisional process. 

AFFIRMED

UNITED STATES v. WHITE 5