United States v. Michael Hester, 910 F.3d 78

Background

Late at night in Newark, Muse parked an idling car in front of a corner store with a known history of narcotics activity; Hester was in the passenger seat.
Two police cruisers (one marked, one unmarked) pulled up around the parked car and four officers approached on foot; an officer questioned Muse and ordered the engine off.
While Hester rose from the passenger seat and attempted to exit, an officer heard/observed a gun being dropped to the floorboard; officers recovered the firearm and arrested Hester, who is a convicted felon.
Hester moved to suppress the gun, arguing the officers had seized him when they boxed the car and lacked reasonable suspicion; the District Court denied suppression, finding either a consensual encounter or a Terry stop supported by reasonable suspicion.
At sentencing, the PSR applied a 4-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) on the theory Hester tampered with evidence (a New Jersey felony); the District Court applied the enhancement but varied downward by four levels and sentenced Hester to 86 months.
On appeal, the Third Circuit affirmed denial of suppression but held the § 2K2.1(b)(6)(B) enhancement was erroneous, vacated the sentence, and remanded for resentencing.

Issues

Issue	Hester's Argument	Government's Argument	Held
Whether police conduct amounted to a Fourth Amendment seizure when they boxed in the parked car and approached on foot	The boxed-in approach and positioning of officers seized Hester and required reasonable suspicion, which was lacking	The encounter was consensual (no submission) or, alternatively, a Terry stop supported by reasonable suspicion	Court: The conduct was a seizure (a show of authority) and Hester submitted to it by remaining in the car; but the seizure was supported by reasonable suspicion, so suppression was denied
Whether the firearm should be suppressed as fruit of an unconstitutional seizure	The gun was recovered during an unconstitutional seizure and must be suppressed	The stop was at least a permissible Terry stop supported by reasonable suspicion; evidence admissible	Court: Evidence admissible because officers had reasonable suspicion under the totality of circumstances (parking violation near a known narcotics site late at night in a high-crime area)
Whether the District Court correctly applied a 4-level § 2K2.1(b)(6)(B) enhancement based on New Jersey evidence-tampering	The enhancement was improperly applied because evidence-tampering was not proven and possession alone cannot be the predicate felony	The government relied on jail calls showing intent to dispose of the gun and argued that possession related to tampering	Court: Reversed — enhancement improperly applied: (1) government failed to prove New Jersey tampering (requires permanent alteration/loss/destruction), and (2) as a matter of law § 2K2.1(b)(6)(B) requires that the firearm facilitate a separate felony, not mere coextensive possession
Whether the sentencing error requires resentencing	Hester argued the Guidelines miscalculation was prejudicial and required resentencing	Government argued remand was pointless because the district court varied to offset the enhancement	Court: Remanded for resentencing because the erroneous Guidelines calculation is a procedural error likely to affect the outcome; downward variance did not cure the procedural error

Key Cases Cited

Terry v. Ohio, 392 U.S. 1 (establishing investigatory stop standard)
California v. Hodari D., 499 U.S. 621 (seizure occurs on application of force or submission to show of authority)
Florida v. Bostick, 501 U.S. 429 (consensual encounters vs. Fourth Amendment seizures)
Illinois v. Wardlow, 528 U.S. 119 (reasonable suspicion standard for Terry stops)
United States v. Edwards, 53 F.3d 616 (3d Cir. 1995) (police boxing a parked vehicle can constitute a seizure)
United States v. Williams, 413 F.3d 347 (3d Cir. 2005) (consensual encounter with parked vehicle in open daylight)
United States v. West, 643 F.3d 102 (3d Cir. 2011) (§ 2K2.1(b)(6) enhancement requires that firearm facilitated another felony)
Smith v. United States, 508 U.S. 223 (firearm must facilitate or have potential to facilitate another offense for enhancement)
Keller v. United States, 666 F.3d 103 (3d Cir. 2011) (enhancement proper where firearm was used in committing burglary)
Molina-Martinez v. United States, 136 S. Ct. 1338 (procedural Guidelines errors generally require remand for resentencing)