UNITED STATES of America, Plaintiff-Appellee, v. Charles GATSON, Defendant-Appellant.
No. 14-3227.
United States Court of Appeals, Sixth Circuit.
Argued: Dec. 4, 2014. Decided and Filed: Jan. 15, 2015.
Rehearing Denied Feb. 6, 2015.
776 F.3d 405
The district court‘s error affected Wilson‘s substantial rights because there is a reasonable probability that the error affected the outcome of thе sentencing proceedings. See United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010). The district court did not explain its reasons for imposing the five-year term of supervised release. However, the district court did impose a prison term that was substantially below the Guidelines range of imprisonment, and thus there is a reasonable probability that the court did not intend to impose a term of supervised release that was above the statutory minimum.
Finally, the district court‘s error affected the fairness, integrity, and public reputation of the judicial proceedings. See Inman, 666 F.3d at 1004. A defendant‘s right to due process is violated where, as here, the sentencing judge relied on erroneous information. See United States v. Wilson, 614 F.3d 219, 225 (6th Cir.2010). Thus, it is аppropriate for us to exercise our discretion and conclude that the fourth factor weighs in Wilson‘s favor. See id.
Accordingly, we vacate the district court‘s judgment as to Wilson‘s term of supervised release, and we grant the government‘s motion to remand the action to the district court for necessary proceedings consistent with this order.
Before: BATCHELDER and KETHLEDGE, Circuit Judges; COLLIER, District Judge.1
OPINION
KETHLEDGE, Circuit Judge.
A police officer found a pistol in Charles Gatson‘s car, which eventually led to his conviction for being both a felon in possession of a firearm and a misdemeanant with a domestic-violence conviction in possession of a firearm, in violation of
I.
The district court accepted the following facts as true. On June 5, 2014, East Cleveland police officers Herbert Hupe and Shannon Cushman heard from dispatch that a school-bus driver named Byrd had reported that a man was approaching young girls. Byrd described the man as a black male with medium-toned skin and short hair, and said that he drove a black GMC SUV. Byrd also said the man was on Euclid Avenue—an east-west street on which the school-bus depot is located—and specifically that he was between Rally‘s, a fast-food restaurant one block west of the depot, and Eastham Avenue, which is a north-south cross-street just east of the depot.
Hupe and Cushman arrived within a minute, traveling east on Euclid. They drove past Rally‘s, where the parking lot was empty, and then past the bus depot, where a few adults stood outside. Moments later the officers turned into a parking lot fоr Walgreen‘s, which is located on Euclid about a block east of the bus depot. There they saw a dark grey GMC SUV with a black male with short hair and medium-brown skin sitting in the driver‘s seat. Rather than approach him, the officers drove back to the bus depot, where Cushman talked with Byrd while Hupe waited in the car. At that point, another police officer, Brandon Tisdale, drove up. Cushman told Hupe and Tisdale that their suspect was in the Walgreen‘s parking lot.
Hupe was back at Walgreens less than a minute later, followed by Tisdale in his cruiser. Their suspect—later identified as Gatson—still sat in his SUV. Hupe walked up to an open window on the passenger‘s side of the SUV and аsked Gatson why he was at Walgreen‘s. Gatson said he was waiting for a friend. Then Tisdale walked up to the open driver‘s side window and likewise asked Gatson why he was there. Gatson said that he had just taken his kids to school. The officers noticed that Gatson‘s speech was slurred and his movements sluggish. They asked if he had been drinking. Gatson said yes. Thеy asked if he had been talking to young girls. Gatson said yes.
Tisdale asked Gatson for some ID. As Gatson tried to find it, the officers saw him use both hands to push something between the driver‘s seat and center console. Tisdale asked Gatson to step out of the vehicle, which he did. Hupe handcuffed Gatson, then frisked him—finding his driver‘s license in his front pocket—and locked him
A grand jury later indicted Gatson for being a felon in possession of a firearm and a misdemeanant with a domestic-violence conviction in possession of a firearm, in violation of
At sentencing, the court determined that Gatson was subject to a 15-year mandatory minimum under the Armed Career Criminal Act,
This appeal followed.
II.
A.
Gatson argues that the stop during which the police fоund the pistol was illegal. We review the legality of an investigatory stop de novo, viewing the evidence in the light most favorable to the district court‘s decision. United States v. Campbell, 549 F.3d 364, 370 (6th Cir.2008).
If a police officer has reasonable suspicion that a person is engaged in criminal activity, the officer may briefly detain the person to investigate. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Reasonable suspicion must be based on specific, articulable facts. Campbell, 549 F.3d at 371.
“Reasonable suspicion need not arise from an officer‘s direct observation, but can be based on informant tips and dispatcher information.” Smoak v. Hall, 460 F.3d 768, 779 (6th Cir.2006). Specifically, a tip from an identifiable informant who gives reasonably detailed information сan provide reasonable suspicion, especially if an investigating officer‘s own observations contribute to his suspicions. Id. at 779-80. Here, Gatson argues that Byrd was more like an anonymous informant, because the officers who detained him did not talk to her directly. But the law did not require them to. See id. at 779. And Byrd was not anonymous: Hupe аnd Tisdale undisputedly knew her name and that she drove a school bus, which in turn enhanced the credibility of her report that she had seen a man soliciting schoolgirls. The officers also spotted a dark-colored GMC SUV less than a block from where Byrd had seen such a vehicle—and inside sat a man matching the description she had provided. These facts were enough to give the officers reasonable suspicion that Gatson had been engaged in criminal activity.
Gatson next argues that the officers exceeded the bounds of an investigatory stop when they removed him from his vehicle and then searched it. The question here depends on whеther the officers had reason to suspect that Gatson was armed and dangerous; if so, the officers were entitled—among other measures for their own safety—to remove him from the vehicle, handcuff him, frisk him for weapons,
We review a district court‘s credibility determination for clear error, but give the court an extra measure of deference. United States v. Smith, 594 F.3d 530, 535 (6th Cir.2010). That is not to say those determinations are beyond review; but to overcome them, a party must contradict them with objective evidence or show that a witness‘s story is “so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it[.]” Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).
Gatson contends that standard is met here because the officers included in their testimony at least two details they had omitted from some earlier statements regarding their encounter with Gatson. First, Gatson asserts that neither officer mentioned, during interviews with an ATF agent after Gatson‘s arrest, that Gatson‘s pistol had been in plain view next to the GMC‘s center console. But the record does not support that assertion as to Hupe: the ATF agent testified only that Tisdale had not mentioned that the pistol was in plain view; the agent said nothing abоut whether the same was true of Hupe. And Tisdale‘s omission is not especially significant given that he was not the officer who had spotted the gun. Second, Gatson points out, correctly, that neither officer mentioned in his police report of the incident that Gatson told them he had been talking to young girls. But that point is collаteral both to the question whether Gatson was armed and dangerous and to the reports’ focus by then—which was Gatson‘s unlawful possession of the gun. So that omission does not upend the court‘s credibility determination either.
Gatson also contends the officers contradicted each other at the hearing. But again that stretches the record farther than we can on appeal. Each officer testified that he asked Gatson what he was doing in the parking lot at Walgreen‘s. According to Hupe, Gatson told him that he was waiting for a male friend; according to Tisdale, Gatson told him that he had just dropped his kids off at school. That testimony is nоt necessarily contradictory, in part because Gatson responded separately to each of them; and to the extent there is any contradiction, it impeaches Gatson as much as it does the officers.
Finally, Gatson argues that his pistol could not have been in plain view because the officers did not see it when they removed him from the SUV. But the officers plausibly explained that they were focused on Gatson himself while they removed him from the SUV, and that Gatson‘s body—he weighs about 240 pounds—might have obstructed their view of the gun, whose handle alone protruded from the seat cushion. The district court did not clearly err when it creditеd the officers’ testimony.
B.
Gatson challenges the district court‘s conclusion that Gatson was a career offender under
A violent felony is a felony that either “has as an element the use, attempted use, or threatened use of physical force against another” or “is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]”
Section
When Gatson committed arson in Ohio, he “knowingly caused or created a substantial risk of physiсal harm to property without the victim‘s consent” by “means of fire or explosion[.]”
That leaves his domestic-violence convictions. In addition to the listed offenses,
Gatson‘s domestic-violence convictions establish that he “knowingly caused, or attempted to cause, physical harm to a family or household member.”
But Gatson argues that the Supreme Court‘s recent decision in United States v. Castleman, --- U.S. ---, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014), supports the opposite conclusion. In Castleman, the Court interpreted the same two words that the Court interpreted in Johnson—“physical force“—but did so for purposes of a different provision, namely,
The district court‘s judgment is affirmed.