Submitted: June 9, 2017
from United States District Court for the Western District of
Missouri - Kansas City
LOKEN, MURPHY, and MELLOY, Circuit Judges.
MELLOY, CIRCUIT JUDGE.
Long was convicted by a jury of one count of possession with
intent to distribute a controlled substance, in violation of
21 U.S.C. § 841(a)(1), and one count of possession of a
firearm by a felon, in violation of 18 U.S.C. §
922(g)(1). Long was sentenced to 360 months'
imprisonment. He appeals, arguing the district
court erred by failing to suppress evidence
discovered during an inventory search. He also argues the
district court erred in calculating his criminal history. We
affirm Long's convictions and sentence.
October 26, 2013, Long parked his car in Valerie McCoy's
yard and left it there. McCoy called the Kansas City,
Missouri police at approximately 8:20 am. When officers
arrived, McCoy explained that a black male parked the car in
her yard, knocked on the door, and left when she did not
answer. The officers found a 2013 silver Avenger parked in
McCoy's yard, ran the license plate number, and learned
it was a rental car. After an unsuccessful attempt to contact
the rental company, the officers called a tow truck to remove
the car from McCoy's property.
the officers ordered the tow truck, Long ran towards them.
Long gave the officers his name, told the officers the name
of the person who rented the car, and explained that he had
parked the car in McCoy's yard. The officers handcuffed
and frisked Long and asked if they could look in the car.
Long said it would be okay but that the keys were at a nearby
house. Officers ran Long's name and a computer search
revealed two outstanding warrants for his arrest. Believing
these warrants were out of Kansas City, Missouri, the
officers placed Long in a patrol vehicle. Soon after, the
officers learned the warrants were out of Kansas City,
Kansas, and were non-extraditable. The officers did not,
however, remove Long's handcuffs or release him from the
Ballowe, one of the first officers on the scene, asked the
patrol vehicle driver to continue holding Long so he could
"determine if there was anything illegal in the
car." Around this time, Sergeant Hamilton, a member of
the Kansas City Police Department's illegal firearms
squad, arrived at the scene. He was called to the scene
because he was investigating Long as a possible suspect in
several homicides and had asked to be notified any time Long
had an encounter with police. Sergeant Hamilton was with
Officer Ballowe for the entire vehicle search.
the car was locked, the tow truck driver used a "slim
jim" to open the car door. On the passenger seat of the
car, Officer Ballowe found a backpack containing pepper
spray, a taser, and a coke can. The coke can felt hard and
solid so Officer Ballowe twisted the top of the can and
discovered a bag containing a white powder. At this point,
Sergeant Hamilton told Officer Ballowe to stop the inventory
search in order to obtain a search warrant.
test of the substance revealed that the powder was not
cocaine and had an extremely weak reaction for amphetamines.
Long was placed under arrest, the vehicle was towed, and Long
was issued a ticket for illegally parking the vehicle.
obtaining the search warrant, officers discovered a camcorder
in the car. The camcorder contained clips of Long with a
Glock pistol. Additionally, the white powder was tested and
determined to be 2-(Methylamino)-1-phenyl-1-butanone
(buphedrone), a Schedule I controlled substance. Long was
subsequently indicted for possession with intent to
distribute a controlled substance and possession of a firearm
by a felon.
trial, Long moved to suppress the evidence against him.
Following a suppression hearing, the magistrate judge
recommended denying the motion to suppress, finding that the
vehicle search was a valid inventory search and assuming,
without deciding, that Long had standing to challenge the
search. The district court adopted that recommendation.
was convicted of both counts at trial. The initial
Presentence Investigation Report ("PSR") calculated
a Guidelines range of 92-115 months, based on an offense
level of 26 and a criminal history category of IV. Long
objected to the PSR's computation of criminal history
points. Specifically, the PSR assessed three criminal history
points for Long's prior Missouri conviction for
second-degree murder, pursuant to United States Sentencing
Guidelines ("U.S.S.G.") § 4A1.1(a). The PSR
assessed an additional point for Long's Missouri
conviction for armed criminal action,  pursuant to
U.S.S.G. § 4A1.1(e). Long argued that his conviction for
armed criminal action is not a crime of violence and, thus,
he should not be assessed the additional criminal history
point. At sentencing, the district court concluded that armed
criminal action is a crime of violence and that ...