UNITED STATES OF AMERICA v. MICHAEL HESTER,
No. 16-3570
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
November 30, 2018
PRECEDENTIAL; Argued: September 28, 2017
Before: SMITH, Chief Judge, McKEE, and RESTREPO, Circuit Judges.
On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal Action No. 2-15-cr-00296-001) District Judge: Honorable Kevin McNulty
MARK E. COYNE, ESQ. JOHN F. ROMANO, ESQ. [ARGUED] Office of United States Attorney 970 Broad Street Room 700 Newark, NJ 07102 Counsel for Appellee United States of America
LETICIA OLIVERA, ESQ. [ARGUED] K. ANTHONY THOMAS, ESQ. Office of Federal Public Defender 1002 Broad Street Newark, NJ 07102 Counsel for Appellant Michael
OPINION OF THE COURT
RESTREPO, Circuit Judge.
Michael Hester was convicted of being a felon in possession of a firearm following the District Court‘s denial of his motion to suppress. At sentencing, the District Court applied a four-level enhancement to Hester‘s Guidelines range under the theory that Hester‘s possession itself constituted New Jersey evidence tampering. In light of the District Court‘s uncertainty regarding the proper application of the enhancement, the court varied downward to mitigate its effect, and sentenced Hester to 86 months’ imprisonment. Hester appeals both the denial of the motion to suppress and the application of the enhancement at sentencing.
For the reasons that follow, we will affirm the denial of the motion to suppress. However, we hold that the application of the evidence tampering sentencing enhancement was erroneous. Accordingly, we will vacate the sentence and remand to permit resentencing.
I
On October 7, 2014 around 11:40 p.m., Hiddayah Muse parked a car in front of a corner store in Newark, New Jersey, in close proximity to a crosswalk. Muse left the car idling while she entered the store, with Appellant Michael Hester waiting in the passenger seat. Meanwhile, four officers in two police cars—one marked, one not—were on patrol in the area and noticed that the idling vehicle was illegally parked fewer than twenty-five feet from the crosswalk.1
The officers remained to investigate in light of the parking violation and the vehicle‘s location in front of a store with a known history of narcotics sales. Several of the officers had specific knowledge of the store‘s history. One had made multiple drug arrests there; another testified that he was “very familiar” with the store because it had “been the subject of many investigations” connected to “distribution of many various narcotics.” App. 242. The officers also knew that the store had a buzzer system, which would allow staff to deny them permission to enter without a warrant.
As soon as Muse exited the store and re-entered the vehicle, the marked police car pulled up along the driver‘s side of the car, and the unmarked car pulled up behind it. The officers exited their cruisers and approached both sides of the vehicle on foot. One of the officers from the marked police car approached Muse at the driver‘s side window; the other three approached and stood at the passenger‘s side of the vehicle—in this case, on Hester‘s side.
When an officer began his questioning of Muse, she admitted that she did not have a driver‘s license and that the car was not registered in her name. At that point, the officer directed Muse to turn off the engine
Because Hester had previously been convicted of a felony, he was indicted for being a felon in possession of a firearm under
At Hester‘s sentencing, the parties disputed the applicable Guidelines range. The pre-sentence report calculated an offense level of 26, which included a four-level enhancement for possession of a firearm in connection with another felony.
Although the District Court twice described the Government‘s proposed application of the sentencing enhancement as “a little crazy,” the Court nevertheless applied the enhancement. App. 357. To mitigate its effect, however, the Court varied downward by four offense levels—the exact number added by the enhancement. The District Court sentenced Hester to 86 months’ imprisonment, the Guidelines range that would have applied without the enhancement was 84 to 105 months.
Hester timely appealed both the denial of the motion to suppress and his sentence.
II
The District Court had jurisdiction under
III
“Warrantless searches and seizures are presumptively unreasonable and are therefore prohibited under the Fourth Amendment, unless an exception applies.” United States v. Mundy, 621 F.3d 283, 287 (3d Cir. 2010). One such exception to the warrant requirement permits brief, investigatory seizures commonly called “Terry stops.” Terry v. Ohio, 392 U.S. 1 (1968). A police officer may conduct such a stop “when [the] officer has a reasonable, articulable suspicion that criminal activity is afoot[.]” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). However, this reasonable suspicion requirement is only triggered by a seizure, which occurs when an officer applies physical force or when a person submits to an officer‘s “show of authority[.]” California v. Hodari D., 499 U.S. 621, 625 (1991); see also Terry, 392 U.S. at 19, n.16.
Consensual encounters, by contrast, “implicat[e] no Fourth Amendment interest.” Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984)). They therefore need not be supported by reasonable suspicion or probable cause. Such voluntary interactions occur when an officer “approach[es] an individual on the street or in another public place[,]” id., and a reasonable person in that position “would feel free to decline the officers’ request or otherwise terminate the encounter[,]” id. at 430.
Relevant here, any evidence obtained incident to an unconstitutional seizure unsupported by reasonable suspicion “must be suppressed as ‘fruit of the poisonous tree.‘” Brown, 448 F.3d at 244 (quoting Wong Sun v. United States, 371 U.S. 471, 487-88 (1963)). Thus, the crux of the Fourth Amendment issue before us is whether the weapon in the vehicle was recovered either during the course of a consensual encounter or a permissible seizure, or if, instead, it was recovered during an unconstitutional seizure and must be suppressed.
A.
“[I]t is settled law that a traffic stop is a seizure of everyone in the stopped vehicle.” United States v. Mosley, 454 F.3d 249, 253 (3d Cir. 2006); see also Delaware v. Prouse, 440 U.S. 648, 653 (1979). We have so held, because a traffic stop necessarily entails the communication by police of a “show of authority” and, by virtue of a vehicle‘s slowing down, ceasing to move, or refraining from reentering the roadway, submission to that authority. The circumstances under which a parked vehicle may be seized, however, is a question we have answered to different effect.4 Two cases in particular are instructive here.
In United States v. Edwards, two police cars pulled up to a parked, occupied convertible matching a description suspected to be involved in a crime. 53 F.3d 616, 617 (3d Cir. 1995). One police car pulled in front of the convertible, and the second pulled behind to box it in and inhibit an escape attempt. Id. One officer exited his car and approached the passenger‘s side on foot, and a second crouched behind his cruiser. Id. Soon thereafter, a third patrol car arrived, and a third officer approached with a police dog. Under that set of circumstances, we considered not whether the situation involved a consensual encounter or a seizure, but rather, a seizure or an arrest. We then recognized that the police conduct in Edwards was unquestionably a show of authority, at a minimum. Id. at 619. We ultimately held that the interaction was a permissible seizure that did not rise to the level of an arrest. Id. at 620.
By contrast, in United States v. Williams, we held that police officers who inadvertently came upon an open, parked van in broad daylight engaged in a consensual encounter—not a seizure. 413 F.3d 347, 353-54 (3d Cir. 2005). There, the officers had stopped their vehicle twelve to thirteen feet away before approaching on foot. Id. at 349. Because “the van was parked in a public place with the rear doors open” in the mid-afternoon, the officers could see the van‘s occupant bagging a substance that appeared to be marijuana even from a distance. Id. at 354. When Williams noticed the officers approaching, he attempted to dispose of the bags, which the officers also saw. The Court ruled that this arms-length interaction was consistent with a consensual encounter by virtue of the obvious activity taking place in “in plain and open view.” Id. at 352. We held that the information gleaned in that instance was sufficient to support a finding of probable cause to search the van and arrest Williams. Id. at 353. But prior to such arrest, no seizure had occurred and, therefore, no Fourth Amendment interest was implicated. Id. at 354; Bostick, 501 U.S. at 429.
Here, when Muse returned to the car, the officers drove up to it and parked around the vehicle, with the marked police
We conclude that the initial police conduct in this case is closer in kind, if not in degree, to the conduct in Edwards than to that in Williams. Here, Muse reentered the idling parked car, which would have been capable of leaving the scene, but for the change in circumstances signaled by the surrounding police cruisers and officers. Following this and the subsequent directive to turn off the engine, Muse assuredly would not have felt free to drive away, and a reasonable person in Hester‘s position would likewise not have felt free “to ignore the police presence and go about his business.” Bostick, 501 U.S. at 437. It is this restraint on liberty that “marks the line between a fourth amendment seizure of any degree and a consensual encounter which does not require any minimal objective justification.” Edwards, 53 F.3d at 620. We conclude that the officers’ conduct falls on the seizure side of the line and is consistent with a show of authority.
B.
Our seizure analysis does not end with our conclusion that there was a show of authority, however. For us to conclude that a seizure occurred, we must find that Hester submitted to that show of authority. The Government argues—and the District Court found, in the alternative—that Hester failed to submit to any show of authority and the interaction was, therefore, not a seizure. See Hodari D., 499 U.S. at 626. We are unpersuaded. We hold that Hester had submitted to the officers’ show of authority when he waited in the vehicle with Muse prior to and during questioning, before Hester‘s momentary attempt to flee once the officers became aware of the gun.
In evaluating whether an individual has submitted to authority, brief, subsequent flight does not necessarily indicate an individual has failed to submit. We have held that “not fleeing” in response to a show of authority suggests an individual has submitted to authority. United States v. Lowe, 791 F.3d 424, 434 (3d Cir. 2015). Indeed, we have held that simply remaining in place can constitute submission, regardless of subsequent flight. United States v. Coggins, 986 F.2d 651, 654 (3d Cir. 1993) (holding suspect had been seized after officers ordered him to remain, and he sat in a stairwell before fleeing “soon after“). Our sister circuits have reached the same conclusion under similar circumstances. See United States v. Shields, 789 F.3d 733, 744-46 (7th Cir 2015); United States v. Morgan, 936 F.2d 1561, 1567 (10th Cir. 1991).
By contrast, in our cases holding that the suspect had not manifested sufficient submission to authority, compliance was extraordinarily brief. In one case, the “momentary compliance” of a person who officers ordered to put his hands on a car was as brief as the suspect taking two steps towards the car in a feint, and subsequently dashing off. United States v. Smith, 575 F.3d 308, 315-16 (3d Cir. 2009). Similarly, we held that an individual had not submitted to authority when compliance was as brief as the individual responding “Who me?” to an officer‘s request that he stop, before immediately running. United States v. Valentine, 232 F.3d 250, 259 (3d Cir. 2000).
Here, in considering the totality of the circumstances, we are persuaded that Hester submitted to authority while he remained in the vehicle prior to his failed attempt to flee. Hester‘s short-lived flight followed a longer period of acquiescence. As previously addressed, Hester waited in the passenger seat when two police cars boxed in Muse‘s car along the curb and four officers approached the car on foot, and he continued to wait as one of the officers questioned Muse, and ordered her out of the car. Unlike in Smith, by the time Hester said he could drive, stood up, and tried to run, Hester had long since submitted to authority.
C.
Having concluded that Hester was seized, our inquiry now turns to whether the Terry stop was supported by “reasonable, articulable suspicion that criminal activity [wa]s afoot[.]” Wardlow, 528 U.S. at 123. Because we conclude that it was, we will affirm the denial of the motion to suppress.
We determine whether reasonable suspicion existed to support a stop under an objective standard and a totality of the circumstances approach. See Terry, 392 U.S. at 21-22; Brown, 448 F.3d at 246-47. That is, we consider whether “a reasonable, trained officer standing in [the detaining officer‘s] shoes could articulate specific reasons justifying” the stop. Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir. 2003); see also United States v. Cortez, 449 U.S. 411, 417-18 (1981). The “subjective intentions” of the officers do not factor into our analysis. Whren v. United States, 517 U.S. 806, 813 (1996); see also United States v. Delfin-Colina, 464 F.3d 392, 398 (3d Cir. 2006).
Among the factors we consider, “[t]he Supreme Court has repeatedly recognized that a reasonable suspicion may be the result of any combination of one or several factors [including, inter alia] specialized knowledge and investigative inferences . . . [as well as] personal observation of suspicious behavior.” Brown, 448 F.3d at 247 (3d Cir. 2006) (quoting United States v. Nelson, 284 F.3d 472, 478 (3d Cir. 2002)). Sub-factors that indicate suspicious behavior include the suspect‘s “[p]resence . . . in a high crime area[,]” “presence on a street at a late hour,” and behavior “that conforms to police officers’ specialized knowledge of criminal activity.” Id. at 251 (internal quotation marks and citations omitted).5 Although we evaluate each factor “in turn,” the relevant analysis is whether an officer would have reasonable suspicion given the “the whole picture.” Id. at 247. Thus, even if any factor alone would be insufficient to support reasonable suspicion, the relevant factors, taken together, could nonetheless suffice.
Under an objective analysis in this case, many factors which may be independently insufficient constitute reasonable suspicion in the aggregate. Here, the officers observed a vehicle illegally idling near a crosswalk, in front of a store with a known history of narcotics-related activity, close to midnight, in a high-crime area of
IV
Having concluded that Hester‘s weapon was permissibly obtained, we now turn to whether the District Court erroneously applied a four-point enhancement to Hester‘s Guidelines calculation pursuant to
The Guidelines provision at issue here provides for a four-point increase of a defendant‘s Guidelines range calculation, where the defendant “used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense[.]”
We conclude that the District Court‘s application of the sentencing enhancement for the purported commission of New Jersey evidence tampering was erroneous for two reasons. First, the District Court‘s application of the enhancement to the specific facts of this case was clearly erroneous, because the Government did not show by a preponderance of the evidence that Hester had committed New Jersey evidence tampering. Second, the District Court incorrectly interpreted the Guidelines provision, as a matter of law, by finding that the possession itself—which was coextensive with the alleged secondary felony—occurred “in connection with” the subsequent felony offense. We hold that the application of the enhancement in such
A
Even if the only issue before this Court were whether Hester had tampered with evidence, the Government did not meet its burden to show that Hester committed such a crime. The secondary offense at issue during sentencing was tampering with evidence under New Jersey law.
Therefore, in order for the enhancement to apply, the Government would have had to show that Hester effectuated the permanent alteration of the gun in a manner that deprived the police of its evidentiary value, or that he took affirmative steps to do so. See id. The Government argues that Hester attempted to tamper with evidence, by virtue of his apparent intention to dispose of the gun, expressed after-the-fact in telephone conversations while Hester was incarcerated. But we cannot agree that ex post expressions of regret about not having committed a potentially criminal act amounts to an attempt to commit that same criminal act. Accordingly, because the Government failed to meet its burden to show by a preponderance of the evidence that Hester committed or attempted to commit evidence tampering as defined by New Jersey law, the District Court committed clear error by applying the sentencing enhancement to the facts in this case.
B
However, even without regard to whether the Government met its burden to show that Hester tampered with evidence, the sentencing enhancement under (b)(6)(B) would not apply to Hester‘s circumstances as a matter of law. The Guidelines provide for a four-point offense level enhancement “[i]f the defendant . . . used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.”
In Smith v. United States, the Supreme Court expressed concern that this enhancement, as enshrined in an earlier analogous provision, would be erroneously applied to defendants who committed subsequent felonies while merely also possessing a firearm. 508 U.S. 223, 237-38 (1993). There, the Court emphasized that “the gun at least must facilitate, or have the potential of facilitating” the subsequent offense for the enhancement to apply. Id. at 238.
Following this decision, the commentary to the Sentencing Guidelines was amended in 2006 to include, inter alia, Application Note 14, which clarified that the (b)(6)(B) enhancement applies “if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense.”
We subsequently agreed with this understanding of the enhancement, holding that it applies when the defendant has “committed another felony offense . . . that the firearm facilitated.” West, 643 F.3d at 110. We clarified that, in the drug context, the enhancement typically applies in situations of trafficking, whereas mere possession of drugs by a person who also possessed a gun was insufficient. West, 643 F.3d at 113.8 We further admonished more generally that our past precedent “should not be read to imply that simply possessing a firearm during the commission of another felony offense is sufficient to invoke the enhancement of § 2K2.1(b)(6).” West, 643 F.3d at 115-16.
In Keller v. United States, mere months after we decided West, we permitted the enhancement‘s application where the firearm at issue had been used in the commission of a burglary. 666 F.3d at 107. There, we reasoned that burglary and felon in possession differed on an element-by-element basis. “[M]ore than mere possession of the firearm—brandishment or other use—was an integral aspect of the predicate offense.” Id. at 106 (quoting United States v. Navarro, 476 F.3d 188, 196 (3d Cir. 2007)). In reaching our conclusion we also relied on the 2006 amendment, finding that the Guidelines confirmed both that “facilitation” was a critical component of any predicate offense, and that “burglary” was the type of crime contemplated by the enhancement. Id. at 107.
Hester‘s possession of the firearm did not facilitate or enhance his ability to tamper with evidence in the manner contemplated by the Guidelines. He did not brandish or otherwise use the firearm to tamper with evidence; he merely possessed it.9 Indeed, Hester‘s purported evidence tampering was coextensive with the possession of the weapon itself. The Government argues that “Hester‘s possession of the firearm was not an integral aspect of the evidence tampering offense.” Appellee Br. at 35. But had Hester not possessed the gun, there would be no discussion regarding whether he tampered with it and there would also be no underlying charge.
Consistent with our clear precedent and the Guidelines commentary, we hold that applying the § 2K2.1(b)(6)(B) enhancement to a sentence for an underlying offense of possession of a weapon is improper when the alleged evidence tampering involves merely possessing that same weapon. Rather, in order for the enhancement to apply, the weapon must facilitate a subsequent felony offense of the kind contemplated by the Guidelines and our precedent. West, 643 F.3d at 110.
V
We review criminal sentences for abuse of discretion in two steps. See United States v. Wright, 642 F.3d 148, 152 (3d Cir. 2011). First, we assess whether there has been a procedural error in the sentencing process. Second, if we find no procedural error, then we review for substantive reasonableness. Id. “If we find procedural error at any step, we will generally ‘remand the case for re-sentencing, without going any further.‘” Id. (quoting United States v. Merced, 603 F.3d 203, 215 (3d Cir. 2010)).
The improper calculation of the Guidelines range is a procedural error. Id. “When a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant‘s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Molina-Martinez v. United States, 136 S.Ct. 1338, 1345 (2016); see also Wright, 642 F.3d at 152 (recognizing we ordinarily remand for resentencing without conducting any additional inquiry upon a finding of procedural error). Thus, the application of the four-point enhancement to Hester‘s Guidelines range was procedural error, and we will remand for resentencing.
In doing so, we recognize that we have, in exceedingly rare instances, declined to remand for resentencing where there are indicia suggesting “that an erroneous Guidelines calculation did not affect the sentencing process and the sentence ultimately imposed.” Langford, 516 F.3d at 219. We further recognize that, here, the District Court provided an explicit statement that it intended to rectify a likely Guidelines miscalculation when imposing the sentence—it set the parameters of the downward variance in reference to “[i]f that four-point guideline adjustment had not applied, [when] the range would not be 120 to 150, but would be 84 to 105” months. App. 378.
Despite these assurances, however, we ordinarily remand for sentencing upon a finding of a procedural error. Indeed, we have done so under similar circumstances, where a district court departs downward from an erroneously-calculated sentencing range to impose a sentence that seems reasonable, because “we cannot be sure that the district court would have imposed the same sentence if not for the errors.” United States v. Vazquez-Lebron, 582 F.3d 443, 446 (3d Cir. 2009); see also United States v. Langford, 516 F.3d 205, 219 (3d Cir. 2008) (remanding for resentencing in a case involving an erroneous Guidelines calculation, even when the ultimate sentence imposed stood at the “lowest point in the advisory Guidelines range[]“). Though we recognize the District Court‘s careful consideration of the effect of the enhancement, we will not rely on conjecture to conclude that the District Court necessarily would have imposed the same sentence absent the error.
Moreover, we will remand to correct the procedural error to ensure the “fairness[] [and] integrity . . . of judicial proceedings” and prevent the erosion of public confidence in our judicial system writ large. Rosales-Mireles v. United States, 138 S. Ct. 1897, 1908 (June 18, 2018) (quoting United States v. Olano, 507 U.S. 725, 735-36) (1993)); see id. at 9-10 (“Ensuring the accuracy of Guidelines determinations also serves the purpose of ‘providing certainty and fairness in sentencing’ on a greater scale.“). Although the Government maintains that remanding for resentencing would be a “pointless formality” on the facts of this case, Appellee Resp. to Rule 28(j) Letter, at 2, advancing these interests and ensuring Hester‘s sentence is procedurally sound are neither pointless endeavors, nor mere formality.
VI
For the reasons set forth above, we will affirm the District Court‘s denial of Hester‘s motion to suppress, vacate the District Court‘s Judgment, and remand for resentencing.