UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4334

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

KING SOLOMON BIRD,

Defendant- Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Charleston. Patrick Michael Duffy, District

Judge. (CR-03-989)

Submitted: July 29, 2005 Decided: September 15, 2005

Before LUTTIG, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jill E.M. HaLevi, Assistant Federal Public Defender, Charleston,

South Carolina, for Appellant. J. Strom Thurmond, Jr., United

States Attorney, Carlton R. Bourne, Jr., Assistant United States

Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

King Solomon Bird appeals from his conviction and

sentence imposed for violation of 21 U.S.C. § 841(b)(1)(B) (2000).

Bird assigns error to the district court’s denial of his motion to

suppress evidence and imposition of a sentence in violation of the

Sixth Amendment. Finding no error, we affirm.

After a traffic stop and continued questioning, Bird

consented to a search of his vehicle. Cocaine was found during the

search in a cupholder compartment. Bird moved to suppress the

drugs found during the search. The district court denied the

motion. We review the district court’s factual findings underlying

a motion to suppress for clear error and its legal determinations

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

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

a motion to suppress has been denied, this court construes the

evidence in the light most favorable to the government. United

States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).

Bird first argues that the additional questioning after

completion of the traffic stop was impermissible. The district

court found that the continued encounter with the state trooper was

consensual. Once a traffic stop has concluded, a continued

conversation between an officer and suspect can be a consensual

encounter if a reasonable person would have felt free to leave.
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See, e.g., United States v. Weaver, 282 F.3d 302, 309 (4th Cir.

2002). 

We have found consent to be voluntary on facts similar to

those in the case at hand. In United States v. Lattimore, 87 F.3d

647 (4th Cir. 1996), as here, a trooper stopped a suspect and

escorted him to his car after a traffic violation. Id. at 649.

Moreover, after checking the suspect’s license and returning it to

him, while the suspect was exiting the car, the officer asked if he

could search the vehicle. Id. Finally, the suspect orally

consented and the resulting search turned up illegal narcotics.

Id. at 649-50. The court found the consent voluntary because the

totality of the circumstances indicated that a reasonable person

would have felt free to decline the request for consent. Id. at

651. In addition, circumstances present in Lattimore and in Bird’s

case are that the stop occurred on a highway during the daytime,

and the questioning was casual in nature. Id..

In this case, Bird voluntarily gave consent without

prompting by the trooper, although the trooper did continue to ask

whether there were illegal drugs in the vehicle. This court has

also held that a search was consensual even though an officer

repeatedly asked questions about the presence of illegal items in

the vehicle after returning a suspect’s license at the conclusion

of the traffic stop. United States v. Sullivan, 138 F.3d 126, 133

(4th Cir. 1998). We therefore do not find error in the district
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court’s factual finding that the continued encounter was

consensual.

Bird next argues that his consent to search the vehicle

did not extend to all compartments in the minivan. As to the scope

of the search, the Supreme Court has established that the

appropriate test is an objective one — what a reasonable person

would have understood the exchange between the officer and the

individual to encompass. Florida v. Jimeno, 500 U.S. 248, 251

(1991). Individuals may limit the scope of their consent, but

when, as here, a suspect does not expressly limit the scope of the

search, the test remains what a reasonable person would believe to

be included within the scope of the consent. Id. at 252.

 In Jimeno, the Court concluded that once Jimeno gave

consent to search his car without limitation, it was reasonable to

search in a paper bag on the floor of the car because the officer

informed Jimeno that he was looking for drugs, and a reasonable

person would expect to find drugs inside a container. Id. at 251.

Similarly, Trooper Housand specifically asked Bird about drugs, so

it was reasonable for Bird to assume that the trooper would be

looking for drugs in hidden areas in his minivan, and not merely

“take a look,” as Bird argues. Because the conversation between

Trooper Housand and Bird indicated that the trooper was looking for

drugs, Bird has no colorable contention that the search exceeded

the scope of his consent. We therefore conclude that the district
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court did not err in denying Bird’s motion to suppress the drugs

seized during the search.

Bird next argues that his sentence is illegal in light of

Blakely v. Washington, 542 U.S. 296 (2004). In United States v.

Booker, 125 S. Ct. 738 (2005), the Supreme Court held that Blakely

applies to the federal Sentencing Guidelines and that the mandatory

Guidelines scheme, which provided for sentence enhancements based

on facts found by the court, violated the Sixth Amendment. 125 S.

Ct. at 746-48, 755-56 (Stevens, J., opinion of the Court). The

Court remedied the constitutional violation by severing and

excising the statutory provisions that mandate sentencing and

appellate review under the Guidelines, thus making the Guidelines

advisory. Id. at 756-57 (Breyer, J., opinion of the Court).

Subsequently, in United States v. Hughes, 401 F.3d 540 (4th Cir.

2005), this Court held that a sentence that was imposed under the

pre-Booker mandatory sentencing scheme and was enhanced based on

facts found by the court, not by a jury or, in a guilty plea case,

admitted by the defendant, constitutes plain error that affects the

defendant’s substantial rights and warrants reversal under Booker

when the sentence “exceeded the maximum allowed based on the facts

found by the jury alone” and the record does not disclose what

discretionary sentence the district court would have imposed under

an advisory guideline scheme. Hughes, 401 F.3d at 546-47, 556

(citing United States v. Olano, 507 U.S. 725, 731-32 (1993)).
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In this case there is no constitutional violation because

the guideline range was not enhanced based on any judicial factfinding. Bird’s base offense level was 26, pursuant to U.S.

Sentencing Guidelines Manual § 2D1.1(c)(7) (2003), based on the 500

grams or more of cocaine found by the jury. He received no other

enhancements. He had a criminal history category of II, and

therefore the resulting guideline range was 70-87 months of

imprisonment. USSG Ch.5 Pt.A. The district court imposed an

eighty-month term of imprisonment. Therefore, there was no error

under Hughes.

Bird argues that the fact that he was sentenced using the

Sentencing Guidelines, without an alternative sentence, renders his

sentence illegal. To the extent that Bird challenges the court’s

application of the Guidelines as a mandatory rather than an

advisory sentencing scheme, he has not made any attempt to show

that this error affected his substantial rights, i.e., that the

error actually affected the sentence imposed. See United States v.

White, 405 F.3d 208, 223 n.10 (4th Cir. 2005) (citing Hughes, 401

F.3d at 551); see also Olano, 507 U.S. at 734-35 (under plain error

test, defendant bears burden of proving that error affected

substantial rights).

We therefore affirm the conviction and sentence. We

dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and

argument would not aid the decisional process. 

AFFIRMED