UNITED STATES of America, Appellee v. Clifton M. PRICE, Appellant
No. 03-3088
United States Court of Appeals, District of Columbia Circuit.
Decided June 3, 2005.
Argued May 9, 2005.
The amici brief of the City of Naples and Collier County forcefully summarizes the state of the record. “Even if it had defined the term ‘uniquely quiet‘, the FAA did not cite any factual support for its finding that [Naples is] not a ‘uniquely quiet’ community.” The FAA did not visit the area as part of its investigation, did not perform any analysis of the local soundscape, did not contact any residents or local officials to obtain any information on this subject, and did not cross-examine the principal author of the Part 161 Study on this subject. Instead, the FAA Associate Administrator relied on the anecdotal information that there was some noise in the area—largely the typical suburban noise associated with streets and shops—in an attempt to establish that ambient noise levels must have been high. Moreover, the Associate Administrator ignored the Airport Authority Executive Director‘s actual testimony, wherein he explained that the existence of multi-family housing, streets and shops did not negate the quiet nature of the community.
“From this and other evidence, the Associate Administrator should have concluded that [the Naples] community revolves around this particular environment, that [its] economy is based almost entirely on the climate and amenities offered by [its] outdoor environment, and that [its] residents and visitors have an expectation of quiet throughout virtually the entire community. There was absolutely no basis for the Associate Administrator to conclude that the sound environment in this community does not support the Airport Authority‘s decision to ban Stage 2 aircraft.” Amici Brief of City of Naples and Collier County at 19-20.
The Airport Authority and the City of Naples introduced ample evidence—much of which went unrebutted—demonstrating that the Stage 2 ban was justified. Because the FAA‘s conclusion to the contrary is not supported by substantial evidence, the petition for review is granted, the FAA‘s order is vacated, and the case is remanded to the FAA.
So ordered.
John P. Gidez, Assistant U.S. Attorney, argued the cause for appellee. With him on the briefs were Kenneth L. Wainstein, U.S. Attorney, and John R. Fisher and Elizabeth Trosman, Assistant U.S. Attorneys.
Before: EDWARDS, HENDERSON, and TATEL, Circuit Judges.
HARRY T. EDWARDS, Circuit Judge.
Defendant-appellant Clifton Price entered a conditional guilty plea to possession of a firearm by a convicted felon in violation of
We affirm the District Court‘s denial of Price‘s suppression motion. A police officer recoverеd the evidence in question as a result of a frisk, which was justified by the officer‘s reasonable fear that Price was armed and dangerous. Because the frisk did not violate the Fourth Amendment, the District Court did not err in denying Price‘s suppression motion.
Applying the reasonableness standard set forth by the Supreme Court in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 765-67, 160 L.Ed.2d 621 (2005), we conclude that the sentence imposed by the District Court cannot withstand review. We therefore vacate and remand the District Court‘s sentencing decision. On remand, the District Court will be required to resentence Price pursuant to the commands of Booker.
I. BACKGROUND
The following facts are drawn from testimony given at Price‘s suppression hearing by Kyle Fulmer, a Special Agent with the Safe Streets Task Force unit of the Washington Field Office of the Federal Bureau of Investigation (“FBI“). Price has not contested these facts.
On September 20, 2002, Fulmer was contacted by an “extremely reliable informant” who told him that a man already known to Fulmer as “Julio” was driving a silver Cadillac at the 3200 block of 8th Street in Southeast Washington, D.C. See Tr. of Mots. Hr‘g of 1/28/03 at 6, 10, reprinted in Appendix of Appellant (“App.“). The informant relayed the tag number of the vehicle and he also told Fulmer that “Julio” possessed at least a quarter pound of marijuana in the car. See id. at 6-8. Fulmer told the informant to keep an eye on the vehicle and to contact him if the vehicle began to move. Id. at 8.
Fulmer then contacted Special Agent Kevin Ashby, indicating that he needed some assistance in possibly stopping a vehicle. Id. at 9. Fulmer began to drive toward 8th Street to locate the silver Cadillac. He contacted the informant again, who told him that “Julio” had begun driving the vehicle. See id. Fulmer located the silver Cadillac at the intersection of Alabama Avenue and Wheeler Road. Id.
Fulmer and Ashby, driving separate cars, began following the Cadillac. After some time, Ashby joined Fulmer in Fulmer‘s vehicle. See id. at 11-13. When the Cadillac pulled into an alley parallel to Wheeler Road, Fulmer activated his emergency lights and siren. He and Ashby, wearing FBI vests and displaying their badges, exited Fulmer‘s vehicle and began yelling verbal commands, identifying themselves as police officers and instructing the occupants of the Cadillac to raise their hands and place them outside the car windows. See id. at 13-15, 40-41. Price does not contest that the stop of the vehicle was lawful.
Fulmer and Ashby next began to approach the Cadillac. Fulmer testified:
As I was approaching the passenger side, issuing the verbal commands, the passenger, who we later identified as the defendant, Mr. Price, was sticking his hands outside the window, and at that time as I was getting closer, he began to reach down to his waistband area with his left hand....
Id. at 16. Fulmer believed that Price might be reaching for a weapon, causing Fulmer to fear for his safety. See id. at 18, 20.
As soon as Price moved his hands toward his waistband, Fulmer reiterated his verbal commands for Price to put his hands outside the window. Id. at 19. Price complied and Fulmer opened the car door and removed Price from the vehicle, placing him on the ground. Fulmer then rolled Price onto his side and frisked Price‘s left waistband and pocket area, where he found a small handgun. See id. at 19-21.
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On October 17, 2002, a federal grand jury indicted Price for violating
On March 25, 2003, at another status hearing, the prosecutor informed the District Court that the parties were working out the final language of a conditional guilty plea, in which Price would plead guilty to the offense but reserve his right to appeal the District Court‘s denial of his suppression motion. See Tr. of Status Hr‘g of 3/25/03 at 2, reprinted in App. One week later, Price indicated an interest in retaining a new attorney. See Tr. of Status Conference of 4/1/02 at 2-5, reprinted in App. Price subsequеntly agreed to pro-
On May 28, 2003, a United States probation officer prepared Price‘s Presentence Investigation Report (“PSR“). Using the 2001 version of the Sentencing Guidelines, the probation officer found that Price‘s total offense level was 18 and that his criminal history score was 8 and, thus, his criminal history category was IV. This offense levеl and criminal history category resulted in a sentencing range of 41-51 months. These calculations included a two-point reduction in Price‘s offense level under
Price‘s counsel filed written objections to the PSR, arguing that Price was entitled to an additional one-level reduction in his offense level under
At a July 17, 2003 sentencing hearing before the District Court, Price‘s counsel again raised objections on the issues of the third-level reduction for acceptance of responsibility and the asserted improper use of two Maryland convictions in calculating Price‘s criminаl history category. The District Court granted Price the two-level reduction for acceptance of responsibility under
It‘s a choice that [Price] has to make. He was not accepting responsibility if he was able to convince the court that he had been the victim of a constitutional violation. That‘s not a frank and candid acknowledgment of guilt.
Because Price was sentenced in July 2003, more than a year before the Supreme Court‘s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the District Court applied the Sentencing Guidelines as if they were mandatory. This was error under Booker. The Court in Booker “sever[ed] and excise[d]” two provisions of the Sentencing Reform Act of 1984, as amended,
Price challenges both the District Court‘s denial of his suppression motion and the length of his sentenсe. We affirm in part, vacate in part, and remand the case for further proceedings.
II. ANALYSIS
A. The Denial of Price‘s Suppression Motion
Price argues that Special Agent Fulmer violated the Fourth Amendment‘s prohibition against unreasonable searches and seizures by forcing Price from the car and patting him down. The Government responds that a reasonable officer in Special Agent Fulmer‘s position would have been warranted in the belief that his safety was in danger, and therefore Fulmer‘s actions were justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We agree with the Government.
As we have explained, “[i]n Terry v. Ohio, the Supreme Court held that a police officer needs neither probable cause nor a warrant to conduct a brief investigatory stop of an individual if [the officer] has a reasonable suspicion that ‘criminal activity may be afoot.‘” United States v. Brown, 334 F.3d 1161, 1164 (D.C.Cir.2003) (quoting Terry, 392 U.S. at 30). Moreover, the officer “may conduct a protective search of the outer layers of the suspect‘s clothing if [the officer] has a ‘reasonable fear’ that the suspect is armed and dangerous.” Id. (quoting Terry, 392 U.S. at 30).
In reviewing such [protective] searches, we apply an objective test based on the facts available to the officer at the time of the search: “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” He must be able to point to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”
Price does not dispute the lawfulness of the stop of the vehicle in which he was a passenger. Therefore, the stop preceding the Terry frisk is not an issue. There are two factors in this case, which, taken together, demonstrate that an officer in Special Agent Fulmer‘s position reasonably would fear that Price was armed and dangerous. First, a reliable informant told Fulmer that the driver of the vehicle was transporting a stash of illicit drugs. Second, after Fulmer and Ashby approached the car and issued verbal commands to the vehicle‘s occupants to place their hands outside the windows, Price reached back inside the car toward his waistband.
We do not mean to suggest that a Terry frisk would have been justified absent the totality of these circumstances. On this record, however, we find that Agent Fulmer acted reasonably. Where a police officer conducts a lawful traffic stop and has been told by a reliable informant that the driver of the stopped vehicle is transporting a stash of illegal drugs, the officer has a reasonable fear that a passenger in the vehicle is armed and dangerous if that passenger disobeys the officer‘s command to keep his hands in plain view and instead reaches back toward his waistband in a motion that is consistent with an attempt to retrieve a weapon. See United States v. Edmonds, 240 F.3d 55, 60 (D.C.Cir.2001) (“[E]ven though a single factor might not itself be sufficiently probative of wrongdoing to give rise to a reasonable suspicion [justifying a Terry stop], the combination of several factors—especially when viewed through the eyes of an experienced officer—may.“); see also id. at 61-62 (recognizing that furtive gestures undertaken in response to police presence can serve as a factor in establishing reasonable suspicion). Therefore, the District Court properly denied Price‘s motion to suppress evidence.
B. Sentencing
Price argues that the District Court also erred in its application of the Sentencing Guidelines to his case. Under Booker, we review the District Court‘s sentence to ensure that it is reasonable in light of the sentencing factors that Congress specified in
In deciding whether a sentence is reasonable, we must also consider whether the District Court committed legal error. “[A] sentence would not be ‘reasonable,’ regardless of length, if legal errors, properly to be considered on appeal, led to its imposition.” United States v. Crosby, 397 F.3d 103,
On the record in this case, we hold that the District Court committed error by: (1) denying Price‘s request for a third-level reduction for acceptance of responsibility when, under the plain language of the Guidelines, Price was entitled to such a reduction; and (2) including one of the two Maryland convictions in the calculation of Price‘s criminal history score, when Price clearly disputed that conviction and the Government did not sustain its burden of proof in establishing the conviction. Because we remand the case in light of errors made by the District Court in applying the Sentencing Guidelines, we need not decide whether a remand is required under United States v. Coles, 403 F.3d 764 (D.C.Cir.2005) (per curiam) (setting forth principles governing the application of plain-error doctrine to appeals of pre-Booker sentences).
1. Acceptance of Responsibility
Under the Guidelines, Price was entitled to a third-level reduction in his offense level pursuant to
The District Court reached a contrary result, apparently in the belief that a defendant who moves to suppress evidence cannot be eligible for a third-level reduction under
In its brief to this court, the Government suggests that Price should not be awarded a third-level reduction under
2. Prior Convictions
Price also argues that the District Court erred in applying the Guidelines by enhancing his sentence based on two prior Maryland convictions, because the Government failed to satisfy its burden of proving the existence of those convictiоns. Price‘s objection is well taken with respect to one of the two convictions.
The Government does not dispute that it carries the burden of proving any facts that may be relevant in sentencing. We have held that the Government generally may satisfy this burden by relying on undisputed facts in a presentence investigation report, so long as the facts of the report are not internally contradictory, wildly implausible, or inconsistent with evidence from the trial. See United States v. Pinnick, 47 F.3d 434, 437 (D.C.Cir.1995). However, the Government may not simply rely on assertions in a presentence report if those assertions are contested by the defendant. Thus, when the defendant calls into dispute a presentence report‘s description of an аlleged prior conviction, the Government must demonstrate that the description in the report is based on a sufficiently reliable source to establish the accuracy of that description. See United States v. Richardson, 161 F.3d 728, 737-38 (D.C.Cir.1998). This burden is triggered whenever a defendant disputes the factual assertions in the report. The defendant need not produce any evidence, for the Government carries the burden to prove the truth of the disputed assertion. See Pinnick, 47 F.3d at 437-38; Richardson, 161 F.3d at 737-38.
Under Pinnick, however, it is clear that the Government‘s Richardson burden is triggered only when the defendant disputes the factual accuracy of the description of prior convictions in the presentence report. In this case, Price clearly contested the factual accuracy of one of the two convictions. Specifically, aftеr the probation officer prepared Price‘s initial PSR, Price‘s counsel wrote a letter to the probation officer, which objected that “Mr. Price is not associated with Prince George‘s County, Maryland case number [number intentionally omitted],” a 1999 offense for attempting to elude the police. Letter from Miles to probation officer of 6/5/03, App. at 41. This statement plainly disputes the factual accuracy of the PSR with regard to the 1999 conviction. Therefore, the Government‘s burden under Richardson to prove the existence of that conviction through a reliable source was indeed triggered. And, because the Government failed to meet its burden, the District Court erred by enhancing Price‘s sentence based on that conviction.
However, with regard to the second disputed Maryland conviction, an alleged 2000 offense for possession of marijuana and a handgun, the record is unclear as to whether Price objected to the accuracy of the PSR‘s description. Therefore, we cannot say that the District committed legal error by enhancing Price‘s sentence based on this conviction.
III. CONCLUSION
We affirm the District Court‘s denial of Price‘s suppression motion. We vacate the District Court‘s sentencing decision and remand the case for resentencing. On remand, the District Court will be required to start anew, under the legal regime established by Booker, which makes it clear that the Sentencing Guidelines are advisory.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring in part.
I join the majority opinion but write separately on two points. First, under the federal sentencing standards regime announced by the United States Supreme Court in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and on the record in this case, I believe the sentencing court on remand can reasonably decline to consider award-
Following Booker, a sentencing court is no longer “bound” to apply the Guidelines but must only “consult those Guidelines and take them into account when sentencing“; for our part, we now review a sentencing decision only for “unreasonаbleness.” 125 S.Ct. at 767. These changes flow from the remedy portion of the Booker opinion, in which the Court severed two provisions of the Sentencing Reform Act of 1984 (SRA or Act), as amended,
The district court‘s duty to consult the Guidelines is, however, quite different from the previous duty to apply them mandatorily. Now, in setting a particular sentence, the district court must “take account of the Guidelines together with other sentencing goals.” Id. at 764. This means that the district court must consider the criteria set forth in section 3553(a), including the Guidelines sentencing range established for “the applicable category of offense committed by the applicable category of defendant” as well as policy statements of the Sentencing Commission.
Under the new sentencing regime, and on this record, I believe it would be reasonable for the sentencing court on remand to decline to consider awarding Price any credit for accepting responsibility and to re-impose, if not increase, the sentence vacated herein. To say that Price is no stranger to the criminal justice system is
As to the two Maryland convictions, I do not agree that, on remand, the government must “meet its burden under Richardson.” Maj. Op. at 445. In Richardson, we held that, under the Guidеlines, the sentencing court could not “turn to potentially unreliable second-hand information in designating a prior offense as a crime of violence.” 161 F.3d at 738. We explained that the description of the defendant‘s prior conviction in the pre-sentence report failed to “reliably indicate the precise crime to which appellant pled guilty” because “there was simply no way of knowing at sentencing whether this description was obtained from a legitimate and reliable source, such as a charging document, a plea agreement, or a previous presentence investigation report adopted by the state court.” Id. at 737-38 (emphasis added). The reason such pin-point accuracy was necessary, however, was that the prior conviction had to constitute a “crime of violence” in order to be used in computing the defendant‘s offense level. Id. at 737. But “offense levels,” “adjustments,” “departures” and all of the other Guidelines argot has been jettisoned by Booker. We now operate in a “back to the future” sentencing world when, pre-Guidelines, all that our Circuit required of the government in this regard was that it submit “some verification,“—that is, any “evidence of a sufficiently reliable caliber“—to support the information that it supplied the sentencing court and that the defendant challenged. See United States v. Lemon, 723 F.2d 922, 934, 942 (D.C.Cir.1983); United States v. Bass, 535 F.2d 110, 121 (D.C.Cir.1976). In my view, that is all that is required once again.
HARRY T. EDWARDS
UNITED STATES CIRCUIT JUDGE