FILED

United States Court of Appeals

Tenth Circuit

November 2, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RODNEY BYNARD JOHNSON,

Defendant - Appellant.

No. 10-6066

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. 5:09-CR-00246-HE-1)

Ashley L. Altshuler, Special Assistant United States Attorney (Sanford C. Coats, United

States Attorney and Jonathon E. Boatman, Assistant United States Attorney, with him on

the Brief), Oklahoma City, Oklahoma, for the Plaintiff - Appellee.

William P. Earley, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for the

Defendant - Appellant.

Before MURPHY, HOLLOWAY and O’BRIEN, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant-appellant Johnson was charged with possession of a firearm after

former conviction of a felony. After his motion to suppress was denied, the parties
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agreed to a non-jury trial on stipulated evidence. The district judge found the defendant

guilty. At sentencing the judge found that defendant had three qualifying prior felonies

under the Armed Career Criminal Act (ACCA) and imposed a fifteen-year sentence,

which was the mandatory minimum under the ACCA, and ordered payment of a special

assessment of $100.00 and four years of supervised release on release from

imprisonment.

Mr. Johnson now appeals the denial of his motion to suppress evidence and the

sentence imposed by the district court. We have jurisdiction under 28 U.S.C. § 1291.

I. Background

We view the record in the light most favorable to the prevailing party – here the

government. See United States v. Salazar, 609 F.3d 1059, 1061 (10th Cir. 2010).

This case grew out of a routine traffic stop. The only witness to testify at the

suppression hearing was the arresting officer, Trooper Kimmons of the Oklahoma

Highway Patrol. The only other evidence admitted at the hearing was the videotape of

the traffic stop. The trooper’s written report was discussed in testimony but not admitted

in evidence.

The following summary is from the district court’s order denying the motion to

suppress. This summary was relied on in the Principal Brief of the Appellant, which

states at page 3 that: “The facts developed at the evidentiary hearing on the motion to

suppress were comprised of the testimony of Oklahoma Highway Patrol Trooper Joe

Kimmons and a videotape of the stop from a camera located in Trooper Kimmons’ patrol
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unit.” 

Defendant Johnson was driving a car on one of the interstate highways in

Oklahoma City at about 3:30 in the morning when the trooper saw him swerve suddenly

into another lane. The trooper testified that the driver had committed a violation at that

point, an unsafe lane change. The trooper, however, followed the defendant for about one

mile before pulling him over. During the time that he was following the car, the trooper

saw the three occupants “shuffling frantically inside” the car and called for backup before

pulling the car over. Because of the time of night, the movements in the car, and the fact

that the car had a bar code on it that suggested it was rented, the trooper suspected the

occupants might be involved in something criminal. More specifically, he testified that

he suspected because of the unusual movements that the occupants of the car had a gun

and that he was accordingly concerned for his safety when he activated his emergency

lights and pulled the car over.

Because he was concerned for his safety, the trooper did not approach the car after

pulling it over but asked the driver to come back to the patrol car. He had defendant lift

his shirt before getting in the patrol car so that he could see that there was no weapon in

his waistband. Once the defendant entered the car, the trooper immediately noticed a

strong odor of burnt marijuana. In response to routine questions, defendant said that he

was from Oklahoma City and had an identification card, but not a driver’s license. 

Defendant said that the passenger in the front, Zach Walker, had rented the car. When

asked to identify the other passenger, defendant only knew his “street name.” Defendant
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told the trooper that he and his companions had just dropped his cousin off on the

northwest side of town and were going to the south side to get a motel room.

The trooper then approached the stopped car to get the rental contract, leaving

defendant in the patrol car. As soon as the front seat passenger rolled down his window,

the trooper smelled burnt marijuana. He also saw open beer cans. (Apparently none of

the three men appeared intoxicated, however.) The passengers both said that they were

from Missouri and that the car either belonged to or had been rented by the girlfriend of

one of them. (The district judge said that he could not tell from the audio which response

had been given.) Neither passenger had a driver’s license with them; Walker had no

identification at all but did provide his social security number.

The trooper ran a records check on the occupants and asked the defendant about

drugs, saying that he asked because he smelled marijuana. Defendant either denied

smoking it or said that he had been around it earlier in the night. Based on the odor he

had detected and other facts mentioned above, the trooper decided he had grounds to

search the car. With the help of other officers who had arrived at his request, the trooper

removed all the car’s occupants and searched the entire car. A gun was found on the

driver’s seat, under a blanket. Defendant admitted the gun was his. At some point

afterward, the trooper got a report back on the occupants and learned that defendant was a

convicted felon.

II. The District Court’s Ruling

In his motion to suppress, the defendant did not challenge the initial stop but only
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the search of the car. The district judge first rejected one of the government’s two

justifications for the search – that it was a valid inventory search. The judge found the

evidence insufficient to show that the officers had decided to impound the car before they

searched it. The judge said that it was “unclear whether impoundment was the reason for

the search or an afterthought to justify it.”

The judge concluded, however, that the search was supported by probable cause. 

His review of the evidence yielded several factors supporting probable cause, of which

the smell of marijuana weighed the heaviest. The court said that the defendant’s

challenge was basically an attack on the trooper’s credibility. Defendant had pointed out

that the officer’s report did not mention that he had smelled marijuana in the car, only on

the defendant’s person. But the court found the trooper’s testimony on that point to be

credible. Moreover, the judge rejected the defendant’s legal argument that the search of

the car would not have been justified if the smell had only been detected on the defendant

himself.

The additional factors listed by the court were that the vehicle was from out of

state; the lessee or owner of the car was not present; the defendant did not know the

actual name of one of his companions (the trooper had testified that criminals sometimes

only know each other by nicknames); it was very late at night; the passengers had made

unusual movements while the officer had been following the car; and the occupants’

plans were vague. The court found that these facts cumulatively amounted to probable

cause.
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III. Analysis

A. Reasonableness of the search.

In reviewing the denial of a motion to suppress evidence, we accept the findings of

fact made by the district court unless they are clearly erroneous, but the ultimate question

of reasonableness under the Fourth Amendment presents a question of law for our plenary

review. See, e.g., United States v. Manjarrez, 348 F.3d 881, 884 (10th Cir. 2003). 

As the district court observed, the defendant’s argument is basically an attack on

the credibility of the trooper. The defendant supports the attack primarily by focusing on

discrepancies between the officer’s testimony and the videotape of the encounter. 

In his brief, defendant enumerates discrepancies between the videotape and the

trooper’s testimony or between the tape and the district court’s findings. First, the trooper

testified that he smelled marijuana immediately upon defendant’s entering the patrol car,

but the videotape shows that nine minutes passed before the trooper asked defendant

about marijuana. Two, the trooper testified that defendant had said that the backseat

passenger did not have a driver’s license, but the tape shows that defendant said that he

thought the man did have one.

Three, the trooper testified that defendant told him that he had come into town

from St. Louis for a birthday party; the tape shows defendant said he was from Oklahoma

City and had just dropped his cousin off. Four, the court found that defendant did not

know the names of his two passengers; the tape shows defendant identified the front seat

passenger as Zach Walker. Five, the district court found that the occupants’ plans were
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vague, but defendant advised the trooper that they were going to get a motel room on the

south side of town.

Without further analysis, defendant concludes that the district court erred in

concluding that probable cause supported the search of the automobile. We are not

persuaded.

First we note that the odor of marijuana by itself is sufficient to establish probable

cause. United States v. Downs, 151 F.3d 1301, 1301 (10th Cir. 1998). Because the

district court specifically found the trooper to be credible when he testified that there was

a strong odor of burnt marijuana emanating from the car when he approached to question

the passengers, we can find no error in the conclusion that probable cause was established

to justify the search of the car. Moreover, as recited supra, in this case the district judge

also found other factors that supported probable cause, although the judge apparently did

not regard any of them individually as being particularly weighty. 

For the most part, defendant’s argument rests on inconsistencies in the evidence on

some of these lesser factors. We will briefly comment on some of these minor

inconsistencies even though the strong odor of marijuana in itself justified the search.

The first alleged inconsistency cited by Mr. Johnson is that the trooper testified

that he smelled the odor of burnt marijuana on Johnson as soon as he got into the patrol

car but did not address the issue for nine minutes. This is not really an inconsistency but

merely an area ripe for attention on cross-examination. The trooper referred several times

in his testimony to his perception that the encounter could be a dangerous one for him. 
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Even absent that concern, however, we would not impose a rule to govern in fine detail

the order in which officers must conduct these encounters. There may have been several

good reasons for the officer to delay confronting a detainee with evidence of a crime far

more serious than the one that prompted the encounter in the first place. In any event,

because there is no actual inconsistency here, we certainly have no basis for rejecting any

of the district court’s findings.

Several of the other inconsistencies noted by defendant are so minor that the

district judge apparently attributed them to the vagaries of human memory. Thus, that the

trooper testified that the defendant had told the trooper that none of his companions had

driver’s licenses when the recording shows that the defendant had said that he thought

one of them did have a license is simply not convincing. Similarly, the trooper testified

that defendant had said that he had just come down to Oklahoma from St. Louis, when in

fact it was only the passengers who had said this. Again, the district court did not draw

any adverse inference about the trooper’s general credibility from this apparent lapse of

memory, and we can certainly not say that it was clearly erroneous for the judge not to

have done so. This is, again, not a factor that the judge relied on to support his

conclusion of probable cause. 

The same can be said for the fact that the defendant knew the actual name of one

of his companions, though the trooper had testified that defendant did not know either of

the men’s proper names. The salient fact was that he knew one of his companions only

by a nickname. The trooper testified that in his experience such is often the case with
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persons associated for illicit purposes. The district judge carefully assessed the trooper’s

testimony against the video recording and did not rely on testimony that was contradicted

by the recording. Finally, defendant argues that the trooper was mistaken in describing

the detainees’ plans as vague when Mr. Johnson had told the trooper that they were going

to the south side of town to find a motel. This is a matter of characterizing the evidence

rather than finding an inconsistency. 

We would be hesitant to second-guess the officer’s weighing of this fact in the

light of his experience, and happily we need not do so. The district court’s conclusion

that the search was supported by probable cause was correct and soundly based on factors

with substantially more weight than this. We note additionally that defendant does not

mention the unusual movements of the passengers in the car after they had noticed the

officer’s car and before being pulled over, in spite of the importance the officer placed on

this observation during his testimony and the fact that the district court gave it as a reason

supporting his ultimate conclusion.

B. Reasonableness of the sentence.

In a pretrial notice of intent to seek an enhanced sentence under the ACCA, the

government listed four prior convictions as a predicate for application of the Act. There

were two prior convictions from Oklahoma for possession with intent to distribute a

controlled substance. There is no dispute that these were properly counted. There were

also two prior convictions from Missouri, one for possession of a controlled substance
1

Mr. Johnson’s challenge thus appears to be to the procedural reasonableness of his

sentence. In United States v. Martinez, 610 F.3d 1216, 1223 (10th Cir. 2010), we noted

that we review criminal sentences for reasonableness, which includes substantive and

procedural components, and that proper calculation of the advisory guideline range is

necessary for procedural reasonableness. Similarly, a challenge to the applicability of a

mandatory minimum sentence under the ACCA addresses the procedural reasonableness

of the sentence.

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with intent to deliver, and one for second degree assault. Mr. Johnson was seventeen at

the time he committed the two Missouri offenses. 

Mr. Johnson now challenges whether those should have been counted under the

ACCA because defendant was a juvenile at the time. Here this is a legal question of

statutory interpretation for de novo review.1

Mr. Johnson was sentenced under the following provision of the ACCA:

 In the case of a person who violates section 922(g) of this title and has

three previous convictions by any court referred to in section 922(g)(1) of

this title for a violent felony or a serious drug offense, or both, committed

on occasions different from one another, such person shall be fined under

this title and imprisoned not less than fifteen years . . . .

18 U.S.C. § 924(e)(1). The ACCA defines the key terms:

As used in this subsection – 

(A) the term “serious drug offense” means – 

. . . .

(ii) an offense under State law, involving

manufacturing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance (as defined

in section 102 of the Controlled Substances Act (21 U.S.C.

802)), for which a maximum term of imprisonment of ten

years or more is prescribed by law; 
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(B) the term “violent felony” means any crime punishable by

imprisonment for a term exceeding one year, or any act of juvenile

delinquency involving the use or carrying of a firearm, knife, or destructive

device that would be punishable by imprisonment for such term if

committed by an adult, that – 

(i) has as an element the use, attempted use, or

threatened use of physical force against the person of another;

or 

(ii) is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another . . . .

18 U.S.C. § 924(e)(2).

Under Missouri law, defendant Johnson was classified as an adult for the offenses

he committed at age 17 because of the nature of the charges. On the other hand, as Mr.

Johnson points out, federal law considers a person under 18 to be a juvenile. 18 U.S.C. §

5031. Federal law would treat the two Missouri offenses as acts of juvenile delinquency,

defendant argues, and under the ACCA definition quoted above, they would not qualify

as predicate offenses. 

Defendant Johnson submits the federal definition of juvenile should be used to

determine whether a predicate offense meets the definition of such a conviction under the

ACCA. He says that using the federal definition of juvenile will promote uniformity in

application of the ACCA and is consistent with the Supreme Court’s categorical

approach. Appellant’s Principal Brief at 12, 18. This argument fails because it is clear

that federal law does not determine whether the Missouri convictions, or either of them,

qualify as “previous convictions” under the ACCA. The ACCA appears in Chapter 44 of
2

We previously addressed the use of state law in determining the treatment for

sentencing purposes of offenses committed before the age of eighteen in United States v.

McKissick, 204 F.3d 1282, 1300-1302 (10th Cir. 2000). In that case we rejected an equal

protection challenge and a vagueness challenge to the use of a similar provision in

U.S.S.G. § 4A1.2(d), as applied to enhance the penalty for violation of 21 U.S.C. §

841(b)(1)(A). In our analysis, we cited Lender with approval.

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Title 18. Section 921 provides the definitions applicable to that chapter. And that section

provides this definition: “What constitutes a conviction of [a crime punishable by

imprisonment for a term more than one year] shall be determined in accordance with the

law of the jurisdiction in which the proceedings were held.” 18 U.S.C. § 921(a)(20)

(emphasis added). This provision has been described by the Supreme Court as a “choiceof-law clause.” Beecham v. United States, 511 U.S. 368, 369 (1994). Therefore, because

Missouri treated the offenses of conviction as felony crimes, i.e., treated Mr. Johnson as

an adult, those convictions were properly counted as predicate offenses under the ACCA.

Our holding today is in accord with our holding in the unpublished case of United

States v. Wilson, 95 Fed. Appx. 970, 974 (10th Cir. 2004), vacated on other grds., 543

U.S. 1103 (2005), and the reasoning of United States v. Lender, 985 F.2d 151 (4th Cir.

1993), and United States v. Cure, 996 F.2d 1136 (11th Cir. 1993).2

 We have found no

decision by any federal court to the contrary. Mr. Johnson’s arguments are unavailing in

light of the clarity of the statutory provisions at issue.

We are publishing this opinion which will be a binding precedent for the courts of

this Circuit and for executive branches of the Circuit.
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Conclusion

For the foregoing reasons, the judgment of conviction and the sentence are

AFFIRMED.