Case Information
*1 Before B AUER P OSNER T INDER Circuit Judges . T INDER Circuit Judge
. Anthony M. appeals his criminal conviction before District Court Central District Illinois possession firearm felon, well as as Armed Career Criminal U.S.C. § 924(e). As conviction, he challenges denial motion sup press firearm during stop because, al leges, lacked him. As sentence, he argues the failed to state reasons for imposing a months’ imprisonment, and improperly sen ‐ tenced him five years supervised release er roneous assumption such a period was mandatory, ra ther than left discretion. We affirm conviction, we remand case for resentencing because failed state reasons supporting sentence, and because incorrectly believed it required impose five year period supervised release.
I. BACKGROUND
A. Traffic Stop On September four Springfield police officers went patrol in unmarked squad car. At about 9:00 p.m., officers spotted blue Cadillac driven James White. passenger seat. One police men, Officer Dodd, later testified he recognized White numerous previous encounters. Nine months earlier, he attempted pull White over violation, whereupon White fled crashed car; officers firearm inside vehicle. Five months after first inci dent, Officer Dodd fellow officer attempted execute warrant White’s arrest while he outside apart ment. Rather complying, fled inside blocked door. Upon forcing door open, discov ered drug manufacturing material plain view. They secured search warrant apartment discovered firearms significant amount cocaine. Another officer riding unmarked police night Sep tember Officer Burns, testified that, although nev er encountered White himself before that night, he aware White’s two previous attempts to flee arrest.
Aside these chases, Officer Dodd had pulled White over several times infractions, and he knew that license had been suspended. decided to stop White driving suspended license and activated squad car’s emergency lights. Instead pull ing over, White accelerated car. According to officers, he drove least blocks and ran “solid” red light (one that “near end red cycle”) before pulling car to curb.
At time, Officers Dodd and Burns belonged po lice department’s Street Crimes Unit, and both were veteran police officers, having served seven six years, respec tively. They later testified that, based White’s prior con duct their own experience, they suspected White fled attempt conceal contraband, retrieve weapon, give himself head start foot chase.
Once vehicle came stop, Officers Dodd ap proached asked him step out car. Anoth er officer frisked White. Meanwhile, Officer Burns ap proached passenger’s seat observed Lyons. He later testified he noticed immediately that Lyons’s hands were shaking he avoided eye contact when answer ing questions. Officer Burns then asked Lyons step out well. He observed hands were still shaking he exited vehicle, when he asked Lyons if he weapons, responded he did not.
Officer Burns announced intended weapons. According Officer Burns, hung his head and said, “I a gun me.” As Officer Burns proceeded handcuff Lyons, Officer Dodd approached from the driver’s side the car and lifted up Lyons’s shirt, revealing loaded firearm his waistband. Officer Dodd said that point he recognized Lyons someone he had seen with White “numerous occasions.” The officers placed him arrest. Officers Dodd Burns testi fied that entire encounter, from first observation White’s car subsequent arrest Lyons, lasted about seventeen minutes.
Lyons charged with possession firearm fel on. On January magistrate judge recommended that deny Lyons’s motion suppress firearm. judge advanced grounds recom mendation. First, he found that no search had occurred by time Lyons admitted possessed firearm, statement provided ample reason Officer Dodd lift up shirt. Alternatively, magistrate judge determined Officer Burns had reasonable, articulable suspicion Lyons might armed dangerous, therefore announced lawful, regardless whether began before Lyons made statement. agreed with magistrate judge’s second finding, declined reach question when search began.
To support decision, four fac tors triggered officers’ illegally possessed firearm other dangerous items. First, appeared nervous when questioned. Second, passenger driven someone suspend ed license, who just attempted flee police. Third, knew attempted flee ‐ from police officers during a stop within past sev eral months, and that police had firearm in White’s possession after giving chase. Fourth, officers knew that White fled separate incident near his apartment, firearms were discovered.
The noted that Lyons’s association with White, known criminal, reasonably contributed officers’ sus picion. It observed that could have posed danger police, and that passenger him may have presented similar threat officer safety. The therefore concluded “Officer Burns reasonable, articulable suspicion [Lyons] … may been armed dangerous” reasonable. F. Supp. 2d (C.D. Ill. The time between beginning stop arrest—less than seventeen minutes, according officers’ testimo ny—indicated their did dissipate during stop. convicted fol lowing one day jury trial.
B. Sentencing Lyons’s Presentence Report (“PSR”) indicated qualified Armed Career Criminal U.S.C. § 924(e) due his prior commission three serious drug fenses. statute provides mandatory minimum years, federal guidelines range months’ imprisonment. PSR calculated statutory supervised release term “[n]ot more years,” U.S.C. § 3583(b)(1), guidelines range supervised release term spanned five years. ‐
At sentencing, the district court ruled was Armed Career Criminal and adopted the proposed guide ‐ lines range. The government requested sentence of months’ imprisonment, at the high end the range. In re ‐ sponse, Lyons’s trial counsel argued three alternative sentences. The first was sentence ten years’ imprison ‐ ment, which fell below mandated minimum provided Armed Career Criminal Act. The second sentence fifteen years, precise statutory minimum. The third sentence months, minimum guidelines sentence recommended by PSR.
The court acknowledged guidelines were advisory it considered both guidelines sentencing factors set forth U.S.C. § 3553(a). The explained it reviewed PSR, sen tencing commentary both parties, arguments made by counsel. It then sentenced months’ impris onment, proposed alternative Lyons. post sentencing order, considered objec tions PSR, stated that:
[A]fter considering case file, relevant Guideline provisions, relevant statutory sentencing factors, ar guments counsel, Defendant’s statements hearing, Court sentenced De fendant months imprisonment. Court sufficient, great er necessary. U.S.C. § 3553(a). 3:11 cr slip op. (C.D. Ill.
Aug. provided no explanation factors particular supported im *7 7 12 2905 posed, or why specific within guidelines appropriate. PSR calculated statutory supervised re ‐
lease term be “[n]ot more years.” But during hearing stated that “will still serve five years mandatory supervised release.” In its judgment, referred term as “5 years Man ‐ datory Supervised Release,” its Statement Reasons, checked box indicating that “mandatory minimum imposed.”
II. DISCUSSION
A. Suppression Motion first challenges denial motion sup press firearm product unreasonable frisk. We review legal judgment constitu tionality de novo , factual findings clear error. v. Tinnie , does dispute officers reasonable ba sis stop suspicion driving without license. Terry Ohio , U.S. (1968). Up initiating stop, may “frisk driver passengers upon suspicion they may be armed dangerous.” Tinnie 2011) (citing Arizona Johnson U.S. (2009)). This suspicion must be particularized; there must be “reasonable belief suspicion directed person frisked.” Ybarra Illi nois U.S. (1979). Ybarra Supreme Court held probable cause bartender tavern commit ted crime did automatically generate reasonable, par ticularized toward individual patrons present dur 12 2905 ing search. contends that officers this case likewise lacked particularized suspicion of him, as opposed to James White, driver of car.
This argument is unavailing. Officer Burns noted that appeared nervous, that his hands were shaking. Although conclusive, such observations may contribute to reasonable suspicion. “A display nervousness is fre quently recognized sign suspect has something to hide, including weapon.” United States v. Patton F.3d 734, (7th Cir. 2013); see United States Oglesby F.3d (7th Cir. 2010). It is true, points out, Officer Burns conceded such nervous reaction was typical traffic stops he had conducted throughout his ca reer, time apparent this was no ordinary stop. officers clearly had suspicion White, who been recently arrested with firearms least twice who just attempted to flee through red light, armed readily willing put safety oth ers risk avoid delay encounter with police. decision associate himself ride properly contributed officers’ him. Feliciano 1995) *9 9 2905 (An individual’s criminal association “is a permissible com ponent of articulable suspicion required a Terry stop.”); United States v. Duguay , F.3d 346, (7th Cir. 1996) (defendant’s “nefarious associates” contributed to rea sonable suspicion supporting a frisk); v. Wheeler 103–04 1986), overruled on oth er grounds by Sblendorio Finally, officers could have reasonably con cluded, based White’s behavior their experience, that accelerated car in order afford him time to transfer a firearm Lyons before police arrived. Based totality of circumstances, therefore officers suspect of being armed dangerous.
The Supreme Court has held that police in certain cir cumstances may impute suspicion of a vehicle’s driver passengers. For example, police may order passengers out a vehicle during a stop, in part because “the motivation passenger employ violence prevent ap prehension such crime is every bit great that driver.” Maryland Wilson U.S. (1997). The Court has held that police have probable cause arrest front seat passenger car they drugs. Maryland Pringle U.S. 372–73 (2003). Court noted “‘a passenger—unlike unwitting tavern patron Ybarra —will often engaged common enter No. ‐ prise with driver, and have same interest in conceal ‐ ing fruits evidence of their wrongdoing.’” Id. at (quoting Wyoming Houghton U.S. 304–05 (1999)). In case of James White, evidence of wrongdoing could easily have included possession of firearms, and abortive flight from gave him opportunity to transfer any such weapons Lyons. Under circumstanc ‐ es, police reasonably suspected both White and Lyons of carrying guns, it would been quite dangerous frisk alone simply hope unarmed. resists this conclusion by pointing our recent decision deeming unreasonable in Wil liams WL at *8 Sept. In case, police responded an anonymous call regarding group of men brandishing guns; when offic ers arrived scene few minutes later, they (possibly different) group eight ten men standing in parking lot, without guns visible. police zeroed in one men, Williams, frisked him. Without delving too deeply into facts reasoning deci sion, we find inapposite facts here. panel Williams explicitly distinguished case one in suspect “was part group openly vio lating law.” Id. *9. case, contrast, asso ciated himself person who flagrantly dangerous ly broke laws, full view police. And offic ers Williams made their stop during investigation an anonymous tip, based their previous first hand en *11 11 12 2905 counters with defendant’s companion. [3] Id. *1. Finally, Williams involved stop eight ten individuals standing in parking lot, group significantly less likely acting concert two people travelling together in car. Wil liams does not alter our conclusion frisk lawful.
Because reasonable frisk Ly ons, we need not decide whether frisk fact begun by time admitted he possessed firearm. We accordingly affirm denial Lyons’s sup pression motion uphold his conviction.
B. Sentencing Although we affirm Lyons’s conviction, we must remand for resentencing because committed two procedural errors. [4] We review procedural er ror de novo . United States v. Annoreno , 713 352, 356 2013), cert. denied , WL (Oct. 7, 2013) (No. In evaluating sentence, we must “ensure the district court committed no significant procedural error, such failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines mandatory, fail ing to consider the § 3553(a) factors, selecting sentence based clearly erroneous facts, failing to adequately ex plain the chosen sentence.” Gall United States U.S. (2007); see Jackson Because we find procedural errors Ly ons’s sentence, we vacate remand resentencing without reaching question whether sentence substantively reasonable.
1. Supervised release government concedes district sen tenced five years supervised release under misapprehension statutorily prescribed minimum sentence. fact, five years maximum term permitted statute. U.S.C. § 3583(b)(1). Therefore, sentence contains manifest procedural error must be vacated. Gall U.S. 51. On remand, shall impose term supervised release, exceeding five years, based own reasoned judgment.
2. Failure explain At outset, government contends failed object deficiencies explanation it reached, therefore our review should only plain error. However, never gave opportunity object until al ready imposed sentence. And defendant “is re quired except rulings trial judge” once they are handed down. Cunningham 679–80 2005). Although the court did substantively adopt what essentially second fallback proposal of months’ imprisonment, did not thereby forfeit right procedurally valid sentencing, including an ex ‐ planation for the term imprisonment imposed. According ‐ ly, this court will review the district court’s explanation for its sentence de novo .
“A sentencing court commits procedural error not ad ‐ equately explaining its choice sentence.” Garcia Oliveros The sentenc ing judge must, “at the time sentencing, … state open court reasons for its imposition the particular sen tence.” U.S.C. § 3553(c). Section 3553(c)(1) further requires that, sentence advisory guidelines range ex ceeding months, judge must state “the reason imposing sentence particular point within range.”
Both during sentencing hearing its order, district simply acknowledged considered PSR, guidelines, § 3553(a) factors, both sides’ arguments, imposed sentence. We held “[a] rote statement judge considered all relevant fac tors will always suffice” meet statu tory obligations. Cunningham 679. only elab oration “rote statement” provided, either sentencing hearing or order, its remark “sentence sufficient, greater neces sary.” This partial boilerplate naturally raises question particular goals achieved—“necessary” what?—and why precise met those ends. record gives no indication how weighed various factors, what facts sup ‐ 2905 ported exercise of its discretion. The sentence is proce durally infirm.
To sure, district court is not required recite address each § 3553(a) sentencing factors, all a defendant’s arguments lighter sentence. United States Rodriguez Alvarez , F.3d (7th Cir. 2005); Cunningham F.3d at 679. And in general “cases in which we have remanded because insufficient explanation sentence usually involved failure judge respond principal, nonfrivolous argument mitigation.” Salvanki F. App ʹ x 562– (7th Cir. 2012); see also Garcia Oliveros 381–82 2011). We do require ex pend limited resources “belabor[ing] obvious.” Gary
Here, government argues presented only frivolous arguments favor sentence shorter months—first proposing unlawful sentence below statutory minimum, exactly statu tory minimum. For latter sentence, Lyons’s trial counsel argued that, because mandatory minimums control over lower guidelines ranges, they should trump higher guidelines ranges. Counsel added statutory mini mum Congress’s considered “a similarly situated defendant Mr. Lyons.” government points out argument, relies failure stand term “minimum,” is frivolous, type contention must address. government concludes that, without viable argument lower proposed sentences, justified *15 15 12 ‐ 2905 picking third, especially because it fell at extreme lower limit guidelines range.
However, government fails appreciate other below ‐ guidelines sentences—lying above statutory min ‐ imum—were available. And district court’s explanation declining impose such lower term is not merely ‐ sufficient, absent. A court may not arrive at sentence simply process eliminating defendant’s other proposals; fact suggested ‐ month sen ‐ tence one alternative does relieve district court obligation explain its own reasons. Without expla ‐ nation, “meaningful appellate review” sentence’s rea ‐ sonableness is impossible. Gall , U.S. at 50. government is correct “[l]ess explanation is typi
cally needed when district sentences within advi sory guidelines range.” United States Harris , F.3d 2009). But district may simply pre sume particular within guidelines sentence is reason able. See Rita U.S. (2007); Ross F.3d It requires some independent justification. Cunningham (“[I]nadequate explanation precludes our affirmance” even guidelines sentence.). Instead, record here reveals “complete silence” court’s reasoning. Garcia Oliveros 382. sum, “[t]he record before us is too thin discern considera tions motivated deci sion.” Id. As is considering term supervised release remand, it should provide suffi cient basis whatever custodial decides im pose. remanding, we express no view what sub stantively appropriate might this case.
III. CONCLUSION
We AFFIRM denial motion suppress. We VACATE Appellant’s re mand further proceedings consistent opinion.
[1] As already noted, Officer Burns testified he aware White’s past flight attempts. However, even if were not, he could still rely Officer Dodd’s experience support decision Lyons. “When law enforcement officers are communication regarding suspect, … knowledge one officer can imputed other collective knowledge doctrine.” Lenoir
[2] points out did not observe furtive move ments indicating White did transfer weapon, obviously their observation White’s movement could have been obscured flight. fact police did witness transfer does dispel objective may given weapon.
[3] These facts distinguish situation other cases he uses characterize unreasonable. United States v. Wilson 2007) (driver passenger pulled over not wearing their seat belts); Di Re U.S. 592–93 (1948) (driver passenger frisked counterfeit gasoline ration cou pons); Sibron New York U.S. 62–64 (1968) (defendant’s discus sions narcotics addicts did support protective frisk).
[4] addition issues discussed below, objects government required allege nature fact his prior con victions his indictment, prove them beyond doubt jury. But concedes argument is foreclosed Alamendarez Torres U.S. (1998). Therefore we do disturb ground.