*1 timely ‘a divests the district court court appeal provide failed to Garcia-Robles with jurisdiction judgment to reconsider its an opportunity meaningfully to address until the case is remanded Court upward variance his sentence. Ac- ” Appeals.’ (quoting Pittock v. Otis Eleva- cordingly, we VACATE Garcia-Robles’s (6th Cir.1993))). Co., 325, tor 8 F.3d procedurally sentence as unreasonable and REMAND for resentencing. Because we sequence Given the of events in this conclude that Garcia-Robles’s sentence is case, Garcia-Robles was never afforded an procedurally unreasonable, we do not con- opportunity meaningfully respond to to sider at this time his arguments that his impose the district court’s decision to substantively sentence is upward unreasonable. variance. The district court chose to issue a sentencing opinion written permit object to Garcia-Robles to to his III. CONCLUSION sentence after that opinion issued rather We VACATE Garcia-Robles’s sentence
than permit objections to oral during the procedurally unreasonable and RE- However, sentencing hearing. the district MAND for resentencing. actually provide court failed oppor- tunity judgment when it entered before object
Garcia-Robles’s time had
elapsed and when it failed respond objections
Garcia-Robles’s until after its
jurisdiction was divested Garcia-Ro-
bles’s appeal. notice of The district court
imposed a significant upward variance giving without any opportu- Garcia-Robles America, UNITED STATES of nity meaningfully respond to this sub- Plaintiff-Appellant/Appellee, stantial increase in Although sentence. Supreme Court has held that a district court provide need not notice before im- JONES, Tobias Defendant- 3553(a) posing § a variance based on fac- Appellee/Appellant. tors, in the opinion same the Court ex- 07-5994, pressed Nos. 08-5771. its “confidence in ability judges district court and counsel-especial- United States Court of Appeals, ly in light of Rule procedural 32’s other Sixth Circuit. protections-to make sure that all relevant relating matters to a sentencing decision Argued: Sept. 2008. have been considered before the final sen- Decided April and Filed: tencing determination is Irizarry, made.” (footnote omitted). S.Ct. 2203-04 case, In this the district court did not
consider objections Garcia-Robles’s to a
significant upward variance until after the
district court had judgment entered
Garcia-Robles had filed his ap- notice of
peal. Because the district court had no
jurisdiction to alter Garcia-Robles’s sen-
tence at the time it objections heard his
a greatly sentence, increased the district *3 Terry
ARGUED: M. Cushing, Assistant Attorney, Louisville, United States Ken- Heft, Jr., ling pickup truck what Frank W. his unmarked for Plaintiff. tucky, Community regarded as a Kentucky drug-trafficking neigh- Federal Western Defender, Inc., Louisville, Louisville, for Kentucky, near borhood Seventh and Terry BRIEF: M. Cush- Kentucky Streets. He noticed maroon Defendant. ON Lawless, Wheatley, Monica As- ing, traveling E. Nissan automobile northbound Jo Louisville, Attorneys, it States on Seventh Street and watched as came sistant United Heft, stop Frank Kentucky, for Plaintiff. W. to a in front of a house at 1245 South occupied Ken- Jr., Wyrosdick, Laura R. Western The car was Seventh Street. Inc., Defender, Community tucky Federal a white female driver two black male *4 Louisville, Kentucky, pas- for Defendant. the passengers. Mattingly saw one of as sengers, later identified defendant Tobi- GUY, RYAN, Before: Jones, the as exit Nissan and enter the McKEAGUE, Judges. Circuit in house. Jones was the house—his While house, mother’s as it turned out—the driv- McKEAGUE, J., the opinion delivered other in passenger er the remained J., court, GUY, joined. of the in which car the engine running. the with After a 777), RYAN, separate a (p. J. delivered minutes, couple of came out and Jones judgment. opinion concurring the waiting returned to the car. OPINION years’ Based his experience on seven law and his McKEAGUE, enforcement observation of Judge. Circuit events, Mattingly suspected these he could being possession Charged with a felon witnessing an incident of “flagging.”1 be firearm, made Tobias Jones a defendant inquiry to make Intending Nissan’s key pretrial suppress a motion to evidence occupants, Mattingly had the meantime against granted him. The district court radioed for assistance. Before the Nissan government ap- the now motion and the curb, the Mattingly pulled up could leave peals. appeals also the district Jones it, bumper in front of so that the front denial his to revoke its court’s motion pickup his truck was about two or three For pretrial detention order. the reasons front Al- bumper. feet from the Nissan’s follow, court we conclude the district simultaneously, Detective Kevin most the granting suppress motion erred car, McKinney pulled arrived and his also that ruling. we therefore reverse We unmarked, five up to within four or feet deny affirm the district court’s decision to pulled Nissan. he in behind behind the As pending appeal. release Nissan, McKinney the turned on his emer- gency lights. I 29, 2006, in, thus hemmed In the afternoon of November As the Nissan was in the Mattingly of Louis- did not remain seated back Detective Jonathan Jones Rather, Department opened of the Nissan. he patrol- Metro Police seat ville hearing, Mattingly the driver to suppression testi- will then enter direct In the purchased, neighborhood drugs house where can be enter that the residents of the a fied deal, negotiate and then predominantly African-American. He the house were practice "flagging” a return to vehicle consummate described common Mattingly whereby person neighbor- with described actions a unfamiliar a transaction. occupants as buying drugs drives the Nissan's consistent but hood interested flagging, he had other reason neighborhood flagged-down but admitted no until around suspect activity waiting person criminal afoot. on a corner. someone That 772 out.” It was at this II “jumped
car door and already no- point Mattingly, having appeal grant On from order confused, nervous, “like a deer in ticed the motion, ing suppression review face, headlights” look on Jones’s also district findings court’s factual for clear “lump” “bulge” or on noticed Jones’s legal error and its conclusions de novo. front,” “in him person, “acting and saw United v. States 548 F.3d holding Cir.2008). ... stomach.” (6th weird kind of Whether seizure was run, Thinking that Jones was about reasonable under Fourth Amendment question himself as a is of law that must Mattingly identified be reviewed Pearce, de novo. United stop. him States officer and ordered Jones (6th Cir.2008). F.3d A warrant- immediately Mattingly complied. then unreasonable, presumptively less seizure is patted Jones down discovered .38 Supreme has “[t]he Court identified front pistol pocket caliber reasonable, types per three and thus pistol hooded sweatshirt. He removed missible, warrantless encounters between down, pat finding continued the a 9 *5 (1) police the and citizens: en consensual mm in of pistol the waistband Jones’s by counters in which contact is initiated a It pants. was later determined that the police any officer without rea articulable gun reported second was stolen in Indiana. son briefly whatsoever and the citizen is Mattingly marijuana also a bag found of (2) questions; temporary asked a involun right pants Jones’s front pocket, and tary Terry stop detention or which must McKinney bag marijuana found a of in the predicated be upon ‘reasonable suspicion;’ passenger compartment of the Nissan. As (3) and upon arrests which must be based Mattingly applied Jones, handcuffs to ” ‘probable cause.’ Id. at 380. go him easy, Jones asked because he had shot in couple been the chest a The of manner which officers Indeed, Mattingly McKinney and originally ap weeks earlier. later examination proached the not suggestive a Nissan is of a revealed of staples securing number a event, In any consensual encounter. a wound on'Jones’s chest and abdomen. consensual encounter becomes a seizure Jones was eventually arrested and when “in view of all the circumstances with charged being a felon in possession of incident, the surrounding per reasonable firearm violation of 18 U.S.C. son would have that he not believed was 924(a)(2). §§ 922(g)(1) trial, Before free to leave.” United States v. Menden Jones moved the suppress district court to hall, 544, 554, 1870, 446 100 U.S. S.Ct. 64 the police firearms the seized during the (1980). L.Ed.2d 497 Circumstances indica stop and the during statements he made tive of a threatening seizure include “the the incident. Jones contended the officers officers, presence of several the display of did not have reasonable suspicion when officer, weapon by an physical some they stop, initiated the the rendering Ter- touching person citizen, the or of the ry stop pat-down search unreasonable use language of or of indicating tone voice and violative of his Fourth Amendment that compliance request with the officer’s rights. Following evidentiary hearing, might compelled.” at be Id. 100 S.Ct. the district court agreed granted the Here, Nissan, by 1870. the blocking motion suppress, refused release officers had communicated to a reasonable Jones from parties detention. Both ap- person occupying the Nissan that he or peal. away. she was free to not drive See Unit-
773
impermissible
Baldwin,
investigatory seizure is
Fed.Appx.
114
v.
ed States
Cir.2004)
(6th
(concluding
any
that seizure
derived from the seizure
evidence
678
effected
parked park
of
was
Id.
occupants
subject
suppression.
would be
at
up in front of
pulled
police
vehicles
evaluate whether reasonable sus-
We
and block
surrounding
seizure,
behind
point
picion existed at the
not at
it).
California,
v.
Brendlin
See also
ing
attempted
seizure.
point
2400, 2406-07,
249, 127
168
551
S.Ct.
U.S.
at 443.
F.3d
(2007) (holding that automo
L.Ed.2d
that, at
district court concluded
The
during traffic
are seized
passengers
bile
in,
initially
the Nissan
blocked
time
though
police
command
stops even
observations
conduct
officers’
driver,
because rea
is directed
stop
neighborhood consistent
drug-trafficking
seats
persons
passenger
sonable
innocent did
flagging
but otherwise
police
to move once the
not feel free
would
suspicion.
not
rise to reasonable
On
give
vehicle). Hence, in this
stopped the
have
reconsideration,
government urged
had
“seizure”
oc
warrantless
respect,
Mattingly’s
also
observa-
court to consider
time the Nissan was hemmed
curred
frightened, “jumping
of Jones’s
out of
tions
vehicles.2 We
the unmarked
totality
part
reaction as
car”
investigatory
whether a brief
thus consider
The district court ad-
circumstances.
sus
stop
justified
reasonable
Terry
original ruling, stating
to its
hered
picion.
reasonable,
sug-
reaction was
Ohio,
1, 30,
Terry
In
U.S.
activity. Although
gestive of criminal
*6
(1968),
20 L.Ed.2d
S.Ct.
one,
question is
close
we conclude
a
may
held that an officer
Court
Supreme
ruling
by
is
district court’s
marked
two
stop of a
investigatory
a
conduct
brief
errors.
a warrant if the officer has
person without
suspicion that crimi
articulable
reasonable
Ill
Pearce,
activity
afoot.
531 F.3d
nal
is
See
decision,
In its initial
the dis
a temporary investiga
at
Whether
380.
by limiting
consider
trict court erred
its
justified
is
such reason
tive detention
ation to the circumstances known to the
of the
suspicion requires consideration
able
they
as of the time when
initiated
officers
The offi
totality of the circumstances.
Id.
by hemming
the Nissan.
the seizure
objec
particularized
cer must have a
seized,
Yes,
point,
at that
the Nissan was
wrongdoing,
suspecting
basis for
tive
only
occupants
were its
inso
and so
activity
criminal
need not
the likelihood of
—but
they
far
can be deemed
have submit
cause.
Id.
probable
to the level
rise
authority.
a
ted to the officers’ show
suspicion, such
brief
reasonable
Absent
While,
by Mattingly’s prior sudden arrival in
point,
conduct
forward
this
the officers’
at
Indeed,
occupant
McKinney
to a reasonable
be-
communicated
front of
Nissan.
to drive
he or she was not free
looking
the Nissan that
that
forward when
lieved
Jones
grounds
no
away, the
includes
for
words,
record
pulled
the instant
he
in.
In other
at
occupant
finding
a
would
that
reasonable
jumped
"immediately”
Jones
out
when
his or her freedom of
have understood that
car,
apprehension
occupants'
reasonable
by law
being restrained
en-
movement was
movement was re-
that
their
freedom of
officers drove un-
forcement officers. Both
ostensibly on the manifest
strained was based
While there is evidence that
marked vehicles.
Nissan, not on an
physical obstruction of the
emergency lights just
McKinney activated his
unambiguous
law enforcement au-
show of
Nissan,
likely
is
pulled up behind the
it
as he
thority.
occupants’
drawn
attention had been
that
that, generally,
“lump”
it clear
or
“bulge”
Brendlin makes
on
“in
person,
police
front,”
officer
over a
pulls
when
vehicle
“acting
and saw him
...
weird
during
stop,
a traffic
the officer seizes kind of
holding
stomach.” Then Mat-
vehicle,
everyone
just
in the
not
the driver.
tingly
police
identified himself as a
officer
Yet,
at 2406-07.
127 S.Ct.
Brendlin
stop.
and ordered Jones to
Jones immedi-
observed,
Court also
“there is no seizure
ately
It
complied.
was then that Jones
actual submission.” Id. at 2405.
without
authority.
submitted to the show of
It was
submission,
at
Without actual
“there is
then that the seizure of Jones was effect-
an attempted
most
seizure.” Id. See also
Up
point,
actions,
ed.
that
the officers’
D.,
621, 626,
v. Hodari
499 U.S.
Jones,
in relation
California
amounted to no more
(1991)
111 S.Ct.
with the SUV’s court, ruling, initial its its limited as- house, yelling cursing, still suspicion sessment of reasonable to the approached the officer. When the officer to the information available officers when final- pointed weapon suspect, he initiated, it the seizure was erred.4 To the ly The court held that submitted. expanded extent that the district court its suspect until he exited the was not seized record on view the reconsideration of its the show of au- house submitted *8 order, original suppression yet and still thority. of whether the offi- Irrespective suspicion lacking, found reasonable we suspicion when he first cer had reasonable hold, follow, for the reasons that it that by activating the vehicle attempted stop concluded, totality in of erred its assessment of his the court lights, overhead totality of based on the the circumstances the circumstances. earlier, reaction, court, drug-traffick- In
weeks his in defense of district acknowl- ing neighborhood, of clarity Supreme to the sudden arrival edge by the that the afforded obstructing vehicles a vehicle two unmarked hardly Court Brendlin was available when in re-entered, just may he had not have been ruling, the district court made its initial Brendlin, all. See 127 S.Ct. unreasonable at days two Brendlin had been decided mere ambiguity (recognizing at 2408 in by earlier and was not cited the court plays evaluating authority show a role in parties. either of the reaction). occupant's the reasonable 776
IV action to the sudden arrival of the un- totality little to marked vehicles added Mat- suppression hearing, In the of the circumstances. The court treated almost tingly testified he had seven frightened dismissively, Jones’s reaction with years’ experience law enforcement finding unexpected it not an or unrea- Department, Louisville Metro Police suspi- sonable reaction and therefore not drug-related of it crime most devoted Yet, comprising cious. circumstances investigations. experience, Based on this objective and flag particularized indicia basis for rea- Mattingly recognized the (i.e., ob ging drug trafficking) suspicion he sonable need not be uncommon and conduct its served the Nissan especially unique. McCauley, or 548 F.3d patrolled he in a known occupants, as Further, particular at 444. each although neighborhood. ob drug-trafficking These may act a series of acts be innocent servations, Mattingly believed, justified itself, they together, may taken substanti- inquiry. recognized further We have suspicion warranting of wrongdoing ate allowing police importance officers investigation. further United States v. from their ob draw reasonable inferences Marxen, (6th Cir.2005). 326, 410 F.3d 329 light specialized servations in of their regard, analysis In this the district court’s training experience. See an is tainted improper parsing 445; Perez, F.3d at v. 548 United States Mattingly. information available to See (6th Cir.2006) (“While 440 F.3d Orsolini, United States F.3d be on suspicion reasonable must based (6th Cir.2002) (district court held to hunches, than may more ill-defined officers suspicious have erred analyzing circum- on experience special draw their own individually stances rather than in their training ized to make inferences from and totality). deductions about the cumulative informa might tion available to them that elude Although the purported district court (Internal person.” quotation untrained totality circumstances, consider the omitted.)). marks citations weight it gave Mattingly’s no observa- (1) Indeed, bulge tions of a in the front of paid lip the district court service (2) sweatshirt, ruling, to this initial weirdly consideration its hooded of Jones (3) flagging stomach, deemed the indicia of holding insuffi- ap- of Jones cient to establish suspicion reasonable pearing to want to run. In our opinion, where, fact, flagging was not on. going observations, these are critical suggesting Yet, the fact that the occupants Nissan’s possible presence firearm were not engaged flagging does setting, confrontational for an calling negate the fact that their conduct authority immediate show of to neutralize un- flagging. consistent Nor does it potential danger and in- conduct further dermine Mattingly’s the reasonableness of vestigation. Pearce, 531 See F.3d at 382 flagging may deduction that have been (reasonable suspicion deemed established *9 Mattingly’s afoot. observation and deduc- suspect high- where officer observed tion, though perhaps not sufficient exiting glancing crime area to- suspi- themselves establish reasonable him, hunching over, ward placing right his cion, certainly represented a part relevant hand the starting small his back and totality of the of the circumstances. away); McCauley, to back 548 F.3d (reasonable reconsideration,
On 444-46 suspicion the district measured court re- frightened concluded that Jones’s on based information known when seizure
777 case, continued of this that Jones’s deten- gathered information was initiated and seizure). process tion in a due violation. resulted effectuating while denial of Accordingly, the district court’s circumstances totality of relevant The motion revoke detention or- defendant’s had sub- Mattingly the that: included facts affirmed. der will be enforcement, experience in law stantial spent investigating drug-related much of it
crimes; in a known patrolling he was VI observed area when he drug-trafficking reasons, district foregoing For flag- undisputedly conduct consistent REVERSED, suppression is court’s order Mattingly the occu- confronted ging; denying revoca- district court’s order Nissan, in a of the Jones reacted pants AFFIRMED, detention is tion of order manner, appar- frightened nervous case REMANDED to the dis- is defiance; that, jumped Jones as ent for further proceedings. trict court run, though to he was out the car as bulge have in the front of his seen to RYAN, Judge, concurring Circuit in a weird holding which he was sweatshirt judgment. circumstances, togeth- way. These viewed er, individually, comprise particular- I agree California, that Brendlin v. 551 suspecting for objective ized and basis 2400, 168 L.Ed.2d U.S. 127 S.Ct. 132 wrongdoing. (2007), and United States v. (6th denied, Cir.2008), cert. F.3d
Accordingly, when Jones’s seizure (2009),require S.Ct. 1601 a second look at effected, supported by it was reasonable question whether Jones “seized” suspicion. Fourth It follows as purposes, for Fourth Amendment his rights not violated and Amendment were were, passengers undisputably fellow de suppression that the district court’s car spite stepping standing out of the The sup- was erroneous. evidence seized will, my judgment, to it. That next reversed. pression order must therefore be require finding by further fact the trial V court, whether, particularly emerg car, ing from the Jones intended indi appealed has also the district Jones submitting to that he was not cate to revoke his court’s denial of motion authority of the officers. government’s pending the detention order order. The mo- appeal suppression Therefore, judgment I concur in the order pretrial tion to revoke the detention reverse remand. sup- on largely was based issuance order, government’s appeal of pression trial postponed proceedings.
which further order,
By reversing suppression impetus primary thus
have removed detention order.
for the motion revoke
Moreover, gov- on due consideration of factors, prescribed at 18 U.S.C.
erning DOE, Plaintiff-Appellant, 3142(g), unpersuaded § we remain John not to re- deciding district court erred in pending appeal. from detention lease Jones *10 BRILEY, al., Defendants, Beverly et find,
Nor under the circumstances do