UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4869

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MICHAEL PHILLIP BOURQUE,

Defendant - Appellant.

No. 05-4267

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MICHAEL PHILLIP BOURQUE,

Defendant - Appellant.

Appeals from the United States District Court for the District of

South Carolina, at Florence. Terry L. Wooten, District Judge.

(CR-02-336)

Submitted: October 31, 2005 Decided: December 9, 2005

Before LUTTIG, WILLIAMS, and SHEDD, Circuit Judges.
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Affirmed in part; dismissed in part by unpublished per curiam

opinion.

C. Gordon McBride, Hartsville, South Carolina, for Appellant.

Jonathan S. Gasser, United States Attorney, A. Bradley Parham,

Assistant United States Attorney, District of South Carolina,

Thomas E. Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Michael Phillip Bourque was convicted by a jury of aiding

and abetting armed bank robbery, 18 U.S.C. §§ 2113(a), 2113(d), 2

(2000) (Count One), aiding and abetting the use of a firearm in a

crime of violence, 18 U.S.C.A. §§ 924(c), 2 (West 2000 & Supp.

2005) (Count Two), and possession of a firearm by a convicted

felon, 18 U.S.C.A. §§ 922(g)(1), 924(e) (West 2000 & Supp. 2005)

(Count Three). The court sentenced Bourque as an armed career

criminal, 18 U.S.C.A. § 924(e); U.S. Sentencing Guidelines Manual

§ 4B1.4 (2002), and departed upward from the guideline range under

USSG § 4A1.3. The court imposed the statutory maximum sentence of

300 months on Count One, a concurrent sentence of 447 months on

Count Three, and a consecutive sentence of eighty-four months

imprisonment on Count Two, to be followed by a five-year term of

supervised release. The court also ordered Bourque to pay

restitution in the amount of $349.50. Bourque appeals his

conviction and sentence. We grant his motions for leave to file

pro se supplemental briefs and affirm the conviction and sentence.

We dismiss the appeal of the district court’s decision not to

depart downward.

At Bourque’s trial, the government’s evidence showed

that, on March 14, 2002, Horry County, South Carolina, Police

Officer Anthony Mueller, heard a BOLO (“Be on the Lookout”)

dispatch for a white male in a black pickup truck believed to be
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involved in an armed bank robbery. As he drove toward the bank,

Mueller met a burgundy-colored truck driven by Bourque. The

passenger in the truck was Craig Crissman, who had robbed the bank

a few minutes earlier, masked and armed with a handgun, while

Bourque waited behind the wheel of Crissman’s pickup truck.

Mueller stopped the truck but, because it appeared to be the wrong

color, he immediately told Bourque and Crissman they could go.

Mueller then received another dispatch stating that the getaway

truck had big tires, as Crissman’s truck did. Mueller quickly

stopped the truck a second time, removed Bourque and Crissman from

the truck, and handcuffed them. After backup officers arrived,

Mueller checked the vehicle for weapons and saw two firearms inside

the cab of the truck. The truck was later searched pursuant to a

search warrant, and the following items were seized: two loaded

firearms, a ski mask, a pillowcase containing the proceeds from the

bank robbery including bait money, a cell phone, and the jacket

worn by the bank robber. While Bourque was being transported to

the detention center, Mueller thanked Bourque for not trying to

shoot him. Bourque responded that he had been about to shoot

Mueller when Crissman talked him out of it. Crissman confessed to

robbing the bank, and said that Bourque pressured him into doing it

by threatening to have his family harmed if he did not.

Before the trial, Bourque moved to suppress all evidence

seized from the truck and the statement he made to Mueller. The
1

The court further held that Bourque’s statement to Mueller,

given without a Miranda warning, was admissible because Mueller’s

statement was not intended to elicit a response from Bourque, and

that the search warrant for the truck had not included any

intentional misstatements although the facts in the affidavit

varied somewhat from Mueller’s testimony; the court noted that the

location of the firearms in the truck was not material to the

magistrate judge’s finding of probable cause.

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district court denied the motion to suppress, having determined,

first, that Officer Mueller’s information from the BOLO was

sufficient to support a reasonable suspicion that the truck was the

getaway vehicle, and justified the second investigative stop of

the truck under Terry v. Ohio, 392 U.S. 1 (1968). The court also

held that a limited protective search of the cab of the truck was

permissible under Michigan v. Long, 463 U.S. 1032 (1983).1

At sentencing, the district court grouped Counts One and

Three together and determined that a combined adjusted offense

level of 24 applied, which was increased to 34 because Bourque

qualified for sentencing as an armed career criminal. Although

Bourque had six criminal history points, his armed career criminal

status placed him in criminal history category VI. His guideline

range was 262-327 months. The district court departed upward based

on the serious nature of his prior criminal conduct and the

likelihood that he would commit future crimes, and imposed a

guideline sentence of 447 months imprisonment, with a consecutive

seven-year sentence for the § 924(c) conviction.
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On appeal, Bourque first challenges the district court’s

denial of his motion to suppress. Bourque argues that, when

Officer Mueller stopped the truck for the second time, there was

insufficient evidence to give an objective police officer

reasonable suspicion that the occupants were involved in criminal

activity. He also contends that Mueller had no basis for a

warrantless search of the truck, i.e., opening the door of the

truck to inspect it, because the suspects had been handcuffed by

then and were being detained some distance from the truck. 

We review the district court’s factual findings

underlying a motion to suppress ruling for clear error, and the

district court’s legal determinations de novo. Ornelas v. United

States, 517 U.S. 690, 699 (1996); United States v. Bush, 404 F.3d

263, 275 (4th Cir.), cert. denied, 126 S. Ct. 289 (2005). When a

suppression motion has been denied, this court reviews the evidence

in the light most favorable to the government. United States v.

Grossman, 400 F.3d 212, 216 (4th Cir. 2005). “The Fourth Amendment

protects ‘the people’ against ‘unreasonable searches and

seizures.’” United States v. Hylton, 349 F.3d 781, 785 (4th Cir.

2003) (quoting U.S. Const. amend. IV), cert. denied, 541 U.S. 1065

(2004).

An officer may, consistent with the Fourth Amendment,

conduct a brief, investigatory stop when the officer has a

reasonable, articulable suspicion that criminal activity is afoot.”
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Illinois v. Wardlow, 528 U.S. 119, 123 (2000); Terry, 392 U.S. at

30. To conduct a Terry stop, there must be “at least a minimal

level of objective justification for making the stop.” Wardlow,

528 U.S. at 123; see also United States v. Hensley, 469 U.S. 221,

232 (1985). Reasonable suspicion requires more than a hunch but

less than probable cause. Id. at 123-24. In assessing police

conduct in a Terry stop, courts must look to the totality of the

circumstances. United States v. Sokolow, 490 U.S. 1, 8 (1989).

Officer Mueller made the second Terry stop after

receiving a report of an armed bank robbery in which the robber was

a white male and the getaway vehicle was believed to be a black

pickup truck with oversized tires. Within a few minutes after he

received the alert, Mueller encountered a dark-colored pickup truck

with large tires coming from the direction of the bank and occupied

by two white males. These facts provided Officer Mueller with a

reasonable and articulable suspicion that the occupants of the

truck were engaged in criminal activity, and justified his decision

to stop the truck, remove Bourque and Crissman from the truck, and

inspect the truck for other suspects or weapons. See Maryland v.

Wilson, 519 U.S. 408, 415 (1997) (no Fourth Amendment violation in

requiring defendant to exit car to be frisked); Michigan v. Long,

463 U.S. 1032, 1049 (1983) (no Fourth Amendment violation for

searching car’s passenger compartment where a gun may have been

secreted); United States v. Holmes, 376 F.3d 270, 280 (4th Cir.
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2004), (holding that Long authorizes protective search of vehicle

for weapons during Terry stop, even when suspect is outside vehicle

and effectively under police control), cert. denied, 125 S. Ct. 633

(2004).

Bourque argues that Mueller’s testimony at the

suppression hearing was not clear as to whether he could see the

guns from outside the truck or only after he opened the driver’s

side door. Mueller first testified that he was not sure whether

the door was open when he looked in the truck. On crossexamination, he testified that the guns were plainly visible, but

only after the door was opened. Because Mueller had authority to

search the truck for weapons under Long and Holmes, whether he

could see the firearms before opening the truck door was not

significant. Because Mueller suspected Bourque and Crissman of

involvement in an armed robbery, and no weapon was discovered on

either suspect, a search of the truck for weapons was clearly

permissible. Therefore, the district court did not err in denying

the motion to suppress the evidence seized from the truck.

Bourque next argues that the evidence was insufficient to

establish that he was present at the bank during the robbery.

Bourque contends that the government’s case depended entirely on

Crissman’s claim that he committed the robbery under duress and

that Crissman’s testimony on this point was not credible. We

review the district court’s decision to deny a Rule 29 motion de
2In his pro se supplemental brief, Bourque maintains that the

government failed to prove that the bank was a federally-insured

financial institution at the time of the robbery. We are satisfied

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novo. United States v. Lentz, 383 F.3d 191, 199 (4th Cir. 2004),

cert. denied, 125 S. Ct. 1828 (2005). Where, as here, the motion

was based on insufficient evidence, “[t]he verdict of a jury must

be sustained if there is substantial evidence, taking the view most

favorable to the Government, to support it.” Glasser v. United

States, 315 U.S. 60, 80 (1942). This court “ha[s] defined

‘substantial evidence,’ in the context of a criminal action, as

that evidence which ‘a reasonable finder of fact could accept as

adequate and sufficient to support a conclusion of a defendant’s

guilt beyond a reasonable doubt.’” United States v. Newsome, 322

F.3d 328, 333 (4th Cir. 2003) (quoting United States v. Burgos, 94

F.3d 849, 862 (4th Cir. 1996) (en banc)).

Bourque and Crissman were found together in the vehicle

seen leaving the bank a short time after the robbery, and the

robbery proceeds including bait money were discovered in the

vehicle. The jury found Crissman’s testimony that Bourque aided

and abetted the robbery credible. See United States v. Sun, 278

F.3d 302, 313 (4th Cir. 2002) (“[W]e do not review the credibility

of the witnesses and assume the jury resolved all contradictions in

the testimony in favor of the government.”). Therefore, this

evidence was sufficient to sustain Bourque’s conviction for aiding

and abetting the bank robbery and the related firearms counts.2
that the testimony of the bank vice president established that

fact.

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Although Bourque acknowledges that we lack authority to

review the district court’s decision not to depart because the

court understood its authority to depart and exercised its

discretion not to depart, see United States v. Wood, 378 F.3d 342,

351 n.8 (4th Cir. 2004); United States v. Bayerle, 898 F.2d 28, 30-

31 (4th Cir. 1990), he seeks review of the sentencing court’s

decision. We dismiss this portion of the appeal for lack of

jurisdiction.

Bourque next contends that the district court abused its

discretion in departing upward because the sentence imposed was

disproportionate to the crime and thus violated the Eighth

Amendment prohibition on cruel and unusual punishment and because

Crissman received a lesser sentence. We disagree.

“Proportionality review is not available for any sentence less than

life imprisonment without the possibility of parole.” United

States v. Ming Hong, 242 F.3d 528, 532 (4th Cir. 2001). Because

Bourque has not been sentenced to life imprisonment, we will not

review his sentence for proportionality. And the fact that

Crissman received a lesser sentence does not make Bourque’s

sentence disproportionate to the crime, because “district courts

are not obliged to make comparisons of the relative harshness of

sentences imposed against various defendants.” United States v.
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Foutz, 865 F.2d 617, 622 (4th Cir. 1989). But even if we would

examine the proportionality of Bourque’s sentence, it is not

disproportionate in light of his recidivism. See Ewing v.

California, 538 U.S. 11, 29-30 (2003) (sentence of twenty-five

years to life for recidivist did not violate Eighth Amendment).

Bourque also argues the district court violated his Sixth

Amendment rights when sentencing him. In United States v. Booker,

the Supreme Court held that the mandatory manner in which the

federal sentencing guidelines required courts to impose sentencing

enhancements based on facts found by the court by a preponderance

of the evidence violated the Sixth Amendment. 125 S. Ct. 738, 746,

750 (2005). 

Bourque was sentenced before the Supreme Court decided

Booker or its predecessor, Blakely v. Washington, 542 U.S. 296

(2004). Bourque does not allege that the district court erred in

applying the guidelines as mandatory, but in his supplemental brief

he does allege that the district court violated his Sixth Amendment

rights by sentencing him to a term of imprisonment greater than he

would have received under the guidelines based on facts found by

the jury or admitted by him. Bourque’s Sixth Amendment rights were

not violated, however, because the only facts the district court

considered when enhancing Bourque’s sentence were his prior

convictions, and the Sixth Amendment does not demand that prior

convictions be found by the jury or admitted by the defendant
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before they are used as the basis for enhancing a sentence. United

States v. Cheek, 415 F.3d 349, 354 (4th Cir. 2005). Because the

district court only referenced Bourque’s prior convictions for

facts justifying a sentence greater than the guideline range, we

conclude that no Sixth Amendment error occurred.

Last, Bourque contends that the loss of certain

photographs of the truck introduced into evidence by the government

at trial has deprived him of the opportunity for a full review of

the propriety of the warrantless search of the truck. He alleges

that a meaningful review of his conviction is not possible without

the photographs and that reversal of his conviction or a new trial

is required.

Under Fed. R. App. P. 10(a)(1), the record on appeal

includes original exhibits filed in the district court. A

defendant who seeks a new trial because the record is incomplete

must show that his appeal is prejudiced by the absence of the

missing portions of the record. United States v. Brown, 202 F.3d

691, 696 (4th Cir. 2000). If the record can be reconstructed by

the district court or if the district court determines that the

missing portions of the record are not relevant to issues the

defendant wishes to raise on appeal, a new trial will not be

granted. See United States v. Novaton, 271 F.3d 968, 993 (11th

Cir. 2001). We previously remanded this case for an evidentiary

hearing on this issue. The district court determined on remand
3

We have considered the remaining issues raised in the pro se

supplemental briefs and find them to be without merit.

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that substitute photographs provided by the government from the

same series of photographs were adequate replacements for the

missing photographs. Bourque does not seriously challenge this

finding on appeal. Therefore, we conclude that he has not

demonstrated prejudice and that the loss of the trial photographs

does not warrant either reversal of his conviction or a new trial.3

We therefore affirm the conviction and sentence imposed

by the district court. 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 IN PART;

DISMISSED IN PART