United States v. Michael Ray Bishop, 940 F.3d 1242

Background

Deputies lawfully stopped a pickup for traffic violations; Bishop was a passenger and became argumentative, agitated, and initially refused orders to exit the vehicle.
Deputies performed a protective pat-down after Bishop exited; they felt and removed a high-capacity magazine and recovered the matching semi-automatic handgun from his pant leg. K-9 and vehicle search later yielded marijuana, empty baggies, and a scale.
Deputies also recovered three syringes and one hydromorphone pill from Bishop; hydromorphone is a Schedule II controlled substance.
Bishop moved to suppress the items seized during the pat-down, arguing lack of reasonable suspicion that he was armed and dangerous; the district court denied the motion and Bishop pled guilty while preserving the suppression issue.
At sentencing the PSR applied: base offense level 22 under U.S.S.G. §2K2.1(a)(3) (based on prior Florida drug conviction and a large-capacity-capable firearm), +2 for a stolen firearm, and +4 under §2K2.1(b)(6)(B) for possessing a firearm “in connection with” another felony (the hydromorphone possession), yielding an 80-month sentence.
On appeal the Eleventh Circuit affirmed denial of suppression and the §2K2.1(a)(3) enhancement, but reversed the §2K2.1(b)(6)(B) four-level enhancement and remanded for the district court to apply the correct standard.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether pat-down was justified under Terry (reasonable suspicion that Bishop was armed and dangerous)	Bishop: nervousness, fidgeting, and prior jail history insufficient to justify frisk	Government: totality of circumstances (prior inmate knowledge, woman’s heroin arrest referencing Bishop, Bishop’s noncompliance and agitated behavior) created reasonable suspicion	Affirmed: pat-down reasonable under totality of circumstances (officers may rely on collective knowledge and behavior; command of the stop justified ordering exit)
Whether §2K2.1(b)(6)(B) +4 enhancement applies because firearm was in proximity to hydromorphone pill	Bishop: single-pill possession is simple possession; proximity alone cannot trigger enhancement for non‑trafficking felonies—court must find facilitation potential	Government: proximity to drugs and paraphernalia supports enhancement; Carillo‑Ayala supports that proximity indicates potential facilitation	Reversed and remanded: proximity alone insufficient for a simple possession felony; district court must make an express finding that the firearm facilitated or had potential to facilitate the offense before applying the enhancement
Whether prior Florida conviction qualifies as a “controlled substance offense” for §2K2.1(a)(3) enhancement	Bishop: Fla. Stat. §893.13(1)(a) lacks mens rea as to illicit nature and thus does not categorically match Guideline definition	Government: Smith controls; prior Florida conviction qualifies	Affirmed: binding Eleventh Circuit precedent (Smith) supports treating the Florida conviction as a predicate controlled-substance offense for §2K2.1(a)(3)

Key Cases Cited

Terry v. Ohio, 392 U.S. 1 (establishes stop-and-frisk standard)
Arizona v. Johnson, 555 U.S. 323 (officer may order occupants out of vehicle and frisk passenger if reasonably believed armed and dangerous)
Illinois v. Wardlow, 528 U.S. 119 (nervous, evasive behavior is a factor supporting reasonable suspicion)
United States v. Carillo‑Ayala, 713 F.3d 82 (11th Cir.) (proximity of gun to drugs supports a finding that gun could facilitate a drug trafficking offense)
United States v. Smith, 775 F.3d 1262 (11th Cir.) (Florida §893.13(1)(a) conviction qualifies as a controlled-substance offense under the Guidelines)
United States v. Shields, 664 F.3d 1040 (6th Cir.) (proximity alone insufficient to apply §2K2.1(b)(6) for simple possession; facilitation finding required)
United States v. Jenkins, 566 F.3d 160 (4th Cir.) (distinguishing trafficking from possession for §2K2.1(b)(6) application)