United States v. Ricky A. Caruthers

POLSTER, District Judges; Circuit Judge.* J.,

MOORE, opinion delivered POLSTER, J., court, joined. D. in which McKEAGUE, 476), (p. J. delivered

separate concurring opinion.

OPINION MOORE, Judge. Circuit Ricky Defendanb-Appellant A. Caruth- (“Caruthers”) appeals his conviction ers by a of a firearm convicted possession 922(g)(1) §§ felon, 18 U.S.C. in violation of 924(e). argues Caruthers by denying his motion district court erred pursuant evidence obtained suppress detention, because investigative unjustified inception both its was con- in means. also its He excessive time on for the first tends erroneously enhanced court district * Ohio, Polster, sitting by designation. Dan The Honorable Aaron Judge District for the Northern States District 924(e), dow, “hey, man, second,” sentence under U.S.C. come here (“ACCA”). man, here, Armed Career Criminal Act “hey, me talk you come let justified by Because the detention was rea- (Suppression Hr’g second.” J.A. at 48-49 suspicion 11-12) (Stocks Test.). conducted in a sonable Tr. at manner, AFFIRM reasonable the dis- then “took off in a fashion hurried[ ] trict court’s denial Caruthers’s motion around the corner the business.” J.A. to suppress. also AFFIRM Caruth- (“He 49; see also at 50 took J.A. off real sentence, district ers’s because the court quick, semi-running kind of in a [fashion] err in applying did not the ACCA. ”). .... Officer Stocks exited his cruiser chase, give momentarily losing sight of

I. BACKGROUND Caruthers. Officer Stocks followed Ca- corner, ruthers around the where he saw Background A. Factual Caruthers of “kind hunched down a little approximately At 1:15 A.M. on June bit.” J.A. at 50. Caruthers was “kind 2003, a dispatcher central the with Nash- against the wall of the business and he was departments ville and fire received kind of leaned over kind his where anonymous emergency call. On the bit, knees were kind bent a little so he call, dispatcher basis of this the a created leaning was kind of the ground.” toward report containing following written in- the 51. J.A. at Officer Stocks “told him to shirt, formation: “Male black.... Red here,” whereupon come Caruthers “turned shorts, air, in gun arguing fired the around, put hands up[,] his and came walk- location, gun at female is in the suspect’s ing back toward at [Officer Stocks].” J.A. pocket, weapon fired the once.... Loca- “grabbed Officer Stocks ahold of [Ca- tion], Napier.” J.C. Appendix Joint ruthers], car, patrol escorted him to [the] (“J.A.”) at (Suppression Hr’g 143-^44 atTr. placed him in the seat.” at [and] back J.A. 106-07) (Heath Test.). Officers Carl 50. Officer Stocks did not tell Caruthers (“Officer Stocks”) Stocks and Jonathan arrest, that he was pat down, under him or (“Officer Mays Mays”) dispatched were to handcuff him placing before him in the the intersection of Lafayette Lewis and car, patrol the doors which were locked Streets, Napier the location of public J.C. such that Caruthers would unable to housing development, approximately at exit kicking the vehicle without out the They 1:20 A.M. arrived on the scene about window. to five three minutes later. unfolding, While these events were Offi- The officers observed a black man wear- Mays, cer position who had taken his at (later

ing a red shirt identified as Caruth- opposite alley, proceeded end to ers) entering parking nearby of a lot up alley drive toward Officer Stocks station; gas walking he was in the di- and Caruthers. Officer on Mays arrived away Napier rection from J.C. devel- the scene as Officer placed Stocks Caruth- opment. Nobody else inwas the area. patrol ers in the car. A “few seconds” Mays away Officer drove in order to take cruiser, after placing Caruthers in the Offi- position at opposite alley end of the cer Stocks “went back to where saw [he] building. behind the pulled Officer Stocks standing Caruthers, [Caruthers] hunched over and his alongside cruiser approxi- found the weapon laying loaded on mately two to feet away. three The cruis- in on, ground plain flashing lights er’s view.” were not J.A. Offi- (Stocks Test.); weapon (Mays cer Stocks did not have a see also drawn. J.A. Test.). Officer pistol Stocks remained in his The “[e]xactly vehicle’s was where through seat and said the rolled-down win- [Caruthers] was leaned down.” J.A. at Test.). respect (Stocks tion. the sentence that pistol’s In the chamber With tip. ultimately imposed, would be crimped with a Officer a round right from the cruis- waived certain issues. removed Caruthers Stocks down, discovering provision provided in relevant patted him The waiver er Officer Stocks pants pocket. part: in his bullet Caruthers, him in hand- placing

arrested that 18 defendant aware U.S.C. immediately found Mays Officer cuffs. right § 3742 affords defendant seat of Offi- more rounds in back five appeal the sentence Acknowl- imposed. All of the bullets had cruiser. cer Stocks’s this, knowingly edging defendant the one in the tips identical to crimped right appeal any sentence waives chamber. pistol’s maximum provided within the of- by the fense level as determined Court when Offi- The entire encounter —from manner which that sentence to when first saw Caruthers cer Stocks on set forth grounds was determined the ammunition Mays recovered Officer any ground 3742 or on 18 U.S.C. patrol car—lasted from the back of whatever, for the conces- exchange or four minutes. three by the government

sions made Background B. Procedural does plea agreement. Such waiver however, to involuntari- apply, claims of indicted for posses Caruthers was After misconduct, ness, ineffec- prosecutorial felon, convicted a firearm a sion of counsel, if the Court tive of assistance §§ 922(g)(1) of 18 and violation U.S.C. departs upward. the ammunition and suppress moved he ¶ (Plea 13). Agreement The court denied J.A. at 183 The district statements.1 motion, agreement provisions raising also included holding that there was reasonable possibility apply. that the would for to conduct an ACCA suspicion Officer Stocks court Caruthers’s accepted of Caruthers. The district investigative detention plea. court that Caruthers had also held district of privacy expectation

no reasonable found, on sentencing, At court had abandoned it and because he pistol burglary convic- basis of Caruthers’s three discovery pistol and the conviction, that Caruth- drug tions and one cause to arrest supplied probable bullet armed criminal and ers was an career Caruthers. range of sentencing a calculated (the statutory for minimum armed months gov- with the agreement

Pursuant 924(e)) § to 210 career criminals under ernment, a conditional Caruthers entered (the level ceiling for an offense to months explicitly reserving right his guilty plea, category history a criminal VI suppression mo- the denial of his appeal (1998); 87-88, argues "all L.Ed.2d suppress The motion to 1. Waller, following obtained 844 n. 1 evidence statements v. United States (6th Cir.2005), right [Caruthers] and arrest of must was counsel Caruthers's (Mot. Suppress suppressed.” J.A. at 15 point. See Hodari to concede the California 5). conceivably could include This statement D., 621, 629, hearing suppression Ca pistol, but at the (1991) (holding property- conceded, (Sup J.A. ruthers's counsel running by a while defendant abandoned 120), Hr'g that Caruthers had pression Tr. at fruit of a "not the away is from "standing” challenge only the ammunition excludable); and therefore is not seizure” Although Supreme Court and statements. Martin, United States standing rejected the use of doctrine has (6th Cir.2005). Carter, context, Minnesota Guidelines) in Sentencing under the U.S. Merits prison. court imposed The district sen- recently reviewed the relevant prison tence of 180 months five analytical framework assessing an in years supervised release. Ohio, vestigative detention under Terry appeals now the denial his (1968): suppress. argues motion to He also “In evaluating the constitutionality burglary first time on that his of a Terry stop, engage two-part convictions are not “violent felonies” within analysis of the stop.” reasonableness of the Therefore, meaning Davis, of the ACCA. Ca- contends, fifteen-year Cir.2005). ruthers sentence first “We ask ‘whether exceeds the maximum of ten there a proper was basis for stop, (as 924(a)(2)) years set forth in for an judged by which examining is whether the § 922(g)(1) unenhanced conviction. law enforcement officials were aware of

specific and gave articulable facts which II. ANALYSIS rise to reasonable suspicion.’” (quot Id. Garza, ing A. Fourth Amendment (6th Cir.1993)). If the stop prop was 1. Standard of Review er, “then we must determine ‘whether the degree of intrusion ... reasonably reviewing “When denial in scope hand, related to the situation at suppress, motion to we review district judged which by examining the reason findings court’s of fact for clear error and ableness of the officials’ given conduct its conclusions of law de novo.” United their suspicions and the surrounding cir Henry, ” (omission cumstances.’ Id. in original) (internal Cir.2005) quotation marks omit Garza, 1245). (quoting 10 F.3d at Caruth ted). doing, In so we consider the evi ers challenges constitutionality the of the light dence in the most to favorable the Terry instant stop along dimensions, both government. Rodriguez contending that the initial stop was not Suazo, (6th Cir.2003). F.3d supported by suspicion reasonable and “With regard Terry-stop analysis to degree of intrusion was unreason particular, ‘[a]lthough the standard re able. view suspicion on the ultimate reasonable novo, inquiry de is the district court is at Suspicion a. Reasonable advantage, having institutional ob served testimony the witnesses and part analysis The first of the is understanding conditions, local in making whether was there reasonable suspicion to this determination. Accordingly, justify investigative “due detention. This weight” given determination, should be to the inferences light which made in drawn from by facts “resident the totality circumstances, of the United Foster, judges.”’” Arvizu, United 266, 273, States 376 States v. 534 U.S. (6th Cir.) (alteration in origi (2002), S.Ct. 151 L.Ed.2d 740 requires nal) Townsend, (quoting States detaining United “the officers particu have a [to] (in (6th Cir.2002) 305 objective turn larized and basis for suspecting States, quoting Ornelas v. the particular person stopped of criminal 690, 698, 116 S.Ct. activity,” Cortez, 449 U.S. (1996))), 411, 417-18, 543 U.S. (2004). 635, 160 (1981).

S.Ct. L.Ed.2d 478 An “inchoate and unparticularized ” where, here, call oth- Terry ymous altogether not as or ‘hunch’ will do. suspicion Ohio, 1, 27, suspicious circumstances also existed. er of the At the time Supreme explicitly has instruct- Court knew that Caruth- Officer Stocks stop, approach giving to ed courts avoid general appear- individual whose ers—an weight,” certain factors “no because description matched the and location ance rejection of “evaluation and ... factors call— anonymous in the shot-fired given take from each other does not isolation when and made furtive movements fled totality of the circum- into account the in a night late at approached Arvizu, 274, 122 stances.” 534 U.S. at conclude that area. We high-crime (internal quotation marks omit- S.Ct. totality amounted in their circumstances ted). suspicion. reasonable Yet be we must mindful Su with the fact begin inquiry our teachings in area. An preme Court’s given description matched anonymous tip less than “a tip is reliable anonymous 911 call. In Florida reputation from a known informant whose J.L., S.Ct. who re can be assessed and can be held (2000), Supreme Court L.Ed.2d if sponsible allegations her turn out be anonymous reporting that an call held J.L., 529 U.S. at fabricated.” at a standing male young “that a black Although here was tip wearing plaid and a bus particular more, accurately in the sense carrying gun,” was without corroborated shirt justify Terry stop. was insufficient “readily Caruthers’s observable described J.L., 1375. As Id. sus appearance,” location and reasonable anonymous gave a here caller “requires tip that a in its picion reliable gun- alleged of an general description just in its ten illegality, assertion of a black appearance location: wielder’s dency identify person.” determinate gun fired a man in a red shirt shorts add (emphasis 120 S.Ct. 1375 Id. hous Napier public air into the at the J.C. ed). “provided tip Because the otherwise fact, In here was ing development. tip information and therefore predictive no J.L., as it vaguer the one in even than to test police left the without means and lacked precise a less location included credibility,” it knowledge or informant’s age. any indication of the individual’s even “moderate indicia of reliabili lacked Thus, stop there is no doubt that 271, A sister ty.” Id. at 120 S.Ct. 1375. impermissible would have been effectively articulated appeals court of has solely anony justified by been if it had underlying Supreme reasons two See, e.g., Aey, call. v. 319 mous Feathers tips skeptical anonymous view of Court’s (6th Cir.2003); 843, 846, Nor F.3d 850 the one like here: 372, 265 382-83 throp Trippett, v. F.3d the motives first concern relates to The 955, (6th Cir.2001), U.S. 535 A refuses tipster. tipster who (2002); 1358, 122 S.Ct. making may identify simply be himself Johnson, 1053, States v. United use the trying to up story, perhaps (7th Cir.2005); v. United States 1057 A another citizen.... police harass (4th Cir.2005); Brown, tip’s to a concern relates not second Morales, 1070, States v. United specificity. its level of anonymity but to (9th Cir.2001); v. States 1076-77 United good in Overly generic tips, even if made (2d 130, 132, 134, Colon, 250 138 F.3d faith, discre- Cir.2001). give police could excessive mean, how cases do not These large numbers ever, stop anon- tion to and search may simply we that dismiss 466 J.L.) stances,” Gordon, in tip [like the one United [A]

citizens.... States 231 could, police excuse obviously, give an (11th 750, Cir.2000), F.3d 757 large and search number of 1200, 1207, 531 121 U.S. S.Ct. 149 L.Ed.2d men. Court’s insistence on young The 121 (2001). detail from tipster additional corroborating by police observation However, flight only type is not the helps police ensure that not use do “nervous, evasive behavior.” Furtive tips to vague violate the Fourth Amend- response movements in a police made rights ment of innocent citizens. presence may properly also contribute to Johnson, 1185, United States See, J.L., an suspicions. e.g., officer’s (10th Cir.2004). light 1190-91 In of these 1375; U.S. at Ybarra S.Ct. concerns, call give anonymous little Illinois, 444 U.S. S.Ct.

weight the reasonable-suspicion in calcu- (1979); L.Ed.2d 238 Henry v. United lus. States, 98, 103-04, 361 U.S. S.Ct. turn next to Caruthers’s reac DeWitt, (1959); Joshua encountering tion upon Officer Stocks. Cir.2003); F.3d Supreme The has explained Court that Barrett, “nervous, pertinent evasive behavior is a Cir.1989); Brown, determining factor in suspi reasonable 1161, 1167-68 (D.C.Cir.2003), cert. de Wardlow, cion.” Illinois v. nied, (2000). behavior at issue Wardlow L.Ed.2d Although “unprovoked flight upon noticing po may validly consider fur individual’s lice,” as the defendant “looked di tiveness in deciding whether to conduct rection of the officers and Id. at fled.” Terry stop, courts must take care 122, 124, 120 S.Ct. 673. Caruthers does factor not be cavalierly. Judge invoked not dispute recognized that he Officer skillfully Posner has illustrated the diffi a police Stocks as officer and fled when culty: Instead, approached Officer Stocks him. [T]he officer testified that he was addi- argues he suspi his actions were less tionally cious because he simply away suspicious “hurried” because when he a “semi-running” than manner rather en drove squad Broomfield car gage in “headlong flight” that occurred turning before getting around and out Wardlow, 120 S.Ct. 673. and accosting him he noticed that Given simply walking away from the “starting] straight Broomfield was police does not give rise to reasonable ahead.” Had Broomfield instead suspicion, see v. Royer, Florida 460 U.S. glanced him, around the officer would 491, 498, 1319, 103 S.Ct. 75 L.Ed.2d 229 doubtless have testified that Broomfield (1983); Wardlow, 125, 528 U.S. at 120 or, preferred seemed nervous term (reaffirming S.Ct. Royer); 673 United vagueness, of because its “furtive.” Patterson, 368, States v. F.3d 340 371-72 you move, Whether stand still or drive (6th Cir.2003); Baca, Moreno v. 431 F.3d above, below, limit, speed you or at the (9th 633, Cir.2005); 643 United States v. will be described the police acting as Valentine, (3d 350, Cir.2000), 357 suspiciously they should wish to or denied, 1014, 1748, cert. 532 U.S. 121 S.Ct. you. subjective, promiscuous arrest Such (2001), 149 agree that “the appeals an speed suspect’s ineffable intuition should may movements be relevant totality of circum- not be credited.

467 Diaz-Juarez, 654, 1138, Broomfield, 417 F.3d v. 299 1142 v. States F.3d United States Cir.2005) (second (7th (9th Cir.2002), denied,. 934, alteration in 655 cert. 538 U.S. original). 1601, (2003), 123 S.Ct. 155 L.Ed.2d 334 they relevant to the suspi are reasonable furtive here is purportedly conduct

The calculus, see, Wardlow, cion e.g., objective, sufficiently particularized of a 124, 673; Williams, at Adams v. such concerns. Soon after sort to alleviate chase, 143, 147-48, 1921, began to Ca 407 92 give Officer Stocks U.S. S.Ct. 32 (1972); down” near a ruthers was seen “hunched 612 City L.Ed.2d Watkins v. of wall, leaning ground.” (6th of 883, “kind toward 221 Southfield, F.3d 888-89 Cir. suspi more Bending leaning tends to be Harris, 2000); v. 192 United States F.3d accompanied by when some other cious (6th 580, Cir.1999); 584-85 States United , an attempt conceal contra indication 1427, (8th Cir.), Dawdy v. 46 1429 F.3d such weapon, to reach for a as band or 195, arm the sound of item movements or (1995). Thus, the contex moved, being see United support tual considerations in this case (6th McGlown, Fed.Appx. 150 468 Cir. stop. 2005); Wynn, v. 148 Fed. United States note, however, dangers rely (6th Cir.2005); Appx. 475 ing easily or too on these heavily too con McClellan, 93-4084, No. WL States “[A]ny person hap textual factors. who Oct.25, 1994); 589497, at *5 Cir. Unit area, high-crime into a pened to wander Edmonds, ed F.3d States late night, at in the immediate aftermath (D.C.Cir.2001); Ray United States crime, of a serious could be detained.” mond, Cir. Woodrum, United States v. 1998), although may even the combination (1st Cir.), U.S. circumstances, enough in some see (2000); see also McKoy, 40- United States Ford, F.3d United States v. (1st Cir.2005); John (7th Cir.2003); Gray, 213 son, (D.C.Cir.2000). F.3d (8th Cir.2000). Further Here, was Caruth other indication more, labeling an area raises “high-crime” immediately flight police from the ers’s racial, so special concerns ethnic, preceding posture. his unusual Viewed profiling. cioeconomic As a sister circuit together, these two reactions could reason convincingly explained: has from ably suggest fled Offi Caruthers citing “high-crime” of an area as a weap cer so that he could discard Stocks examination by the requires careful on or other contraband. court, a description, because such unless Finally, we the “contextual con address based, can properly factually limited and Wardlow, siderations.” easily proxy serve as a for race or eth- Officer Stocks encountered carefully nicity. District courts must (1:20 A.M.) late night testimony officers examine high-crime Although area. these factors this, make fair in cases such as not, more, may give without rise reason forthright of the evidence evaluation see, id.; suspicion, e.g., able Bennett v. offer, they regardless of conse- 810, 830, City Eastpointe, quences. must care- particularly We (6th Townsend, Cir.2005); States v. United crime” area “high ful to ensure that 537, (6th Cir.2002); United 543 respect is not used with entire factor Dennison, 410 1213 F.3d States — in (10th denied, or communities which Cir.), U.S.—, neighborhoods cert. 126 (2005); minority regularly groups United members 468 business, Degree daily their but b.

go about of Intrusion specific, circumscribed loca- limited proceed part to the second particular occur tions where crimes investigative-detention analysis: regularity. unusual degree whether the of intrusion was rea Montero-Camargo, part sonable. “As of the second we prong, Cir.) (en (9th banc), F.3d must ‘ascertain whether the detention is (1) reasonable, is, sufficiently was it generally See L.Ed.2d David time, (2) in investiga limited and were the Harris, A. Suspi Factors Reasonable tive used means the least intrusive means cion: When Black and Poor Means ” Davis, reasonably available.’ 430 F.3d at Frisked, Stopped and L.J. 659 IND. 825-26). Bennett, (quoting 410 F.3d at (1994). Fortunately, these concerns are grounds in challenge here because alleviated Caruthers con (which duration of the detention appears to “[t]he cedes that area around the intersec brief) means, very have but in been its Lafayette tion of Lewis and streets in specifically objecting placement to his ‘high is a crime’ area offi Nashville where police back of cruiser while Officer nightly expect regarding cers calls robber alley Stocks searched the for a discarded Appellant ies or Br. shots fired.” at 6. weapon or other contraband. circuit “[N]o Notably, “high-crime” area is circum has concluded that back detention a specific scribed to intersection rather police automatically car a Terry than an entire turns neighborhood. Further more, Bennett, frequently the crimes that occur in into an arrest.” 410 F.3d at specific the area are and 837; related Bradshaw, see also United States v. reason which stopped. Caruthers was (6th Cir.1996), F.3d cert. de Thus, are satisfied we have not too nied, easily permitted the consideration of this (1997). Nevertheless, “it is factor. one of the factors to consider determin above, analysis Based on the totality ing investigative whether” an detention individual, of the circumstances—-an whose Bennett, was unreasonably intrusive. general appearance and location matched F.3d at 837. The ultimate question is description given anonymous “whether the pur [the] detention exceeded call, shot-fired fled made furtive move pose objective stop.” Brad approached by ments when late (footnote shaw, omitted). 102 F.3d at 212 at night high-crime provided in a area — When approached Officer Stocks Ca- suspicion to reasonable conduct a Terry investigating ruthers while a shot-fired stop. This and courts other have conclud call, Caruthers fled then was observed ed likewise similar circumstances. See in a position suggesting that he was dis- McAllister, Fed.Appx. carding given the might have what— call— (6th Cir.2002); 864-65 United States gun. Naturally, been a Officer Stocks Williams, (10th 1193-94 wanted to search that area for an aban- — Cir.), U.S.—, weapon. doned Given Caruthers had (2005); United States already flight demonstrated that he awas Sims, Cir. risk, it was reasonable for Officer Stocks 2002); Dupree, United States to take (8th Cir.2000). steps attempted avert another We need not escape he while conducted search. any and do not hold that subset these Bennett, 840; See circumstances would constitute reasonable suspicion. Jacob,

469 denied, Cir.2004), begun inquiry public 125 “what had an in a as cert. (2005); place 150 United had escalated into custodial inter- 161 L.Ed.2d (8th Maltais, rogation police in what in States was essence — U.S.—, Cir.2005), Jacob, interrogation room.” 377 F.3d at (2006); United subjected 580. Caruthers was to no such F.3d Conyers, States interrogation here. Furthermore, (D.C.Cir.1997). stop the Butler, In F.3d weapons-related, so it was reasonable

was (6th Cir.2000), we also held that the defen- for to secure Caruthers for Officer Stocks dant been arrested when the officer had the while he searched safety reasons patrol in the of a car. placed her back very the least ground weapon, for as at the herself, Butler key is that had “identified back lunging it from prevented Caruthers questions, answered the officer’s and con- Bennett, See, e.g., the weapon.2 for patdown sented to which did not reveal [a] 840; v. Lopez-Arias, at States F.3d suspicious,” so “the officers anything were (6th Cir.2003); Cortez required under Fourth Amendment to the Cir.2006); McCauley, 375; go allow to free.” Id. at [her] see Fiore, wers Flo Bennett, (noting also (1st Cir.2004). was Finally, Officer Stocks patrol in the car detention was unwarrant- (because yet not Mays Officer had alone where, alia, already had police ed inter the rely not up alley), so he could driven the suspects). and handcuffed the In searched to securely on detain Ca another officer contrast, investigation Stocks’s Officer was Maltais, he searched. See ruthers while just placed was beginning when Caruthers In circum light F.3d at 556. of these Thus, justification the the into cruiser. stances, in the briefly placing yet expired, had not and Terry patrol searching ground car while duty there no Caruthers. was release weapon investigative was an an abandoned reasonably scope in means related Thompson, Finally, in United States v. situation at hand. Cir.), on Caruthers re- The three cases which (1990), Eighth place Circuit held In distinguishable. lies are squad cars ex ment of the defendants (6th Cir.1991), Richardson, 949 F.2d 851 scope Terry constituted ceeded the investigatory detention we held that many a full because there were arrest officers a full arrest when the ripened into scene, the defendants had officers on of a placed defendant back movements, any threatening not made Id. questioned him. vehicle original stop evinced officers who made the explained that have since We concerns, the entire encounter safety no the critical fact Richardson hours, vehicle: lasted 1.5 defendants were of the defendant questioning the Fourth complains Stocks reasonableness standard 2. Caruthers that Officer event, by safety con- any been motivated even with this must have In Amendment. cerns, an- could have had patrol because Caruthers detaining oversight, Caruthers in person yet weapon Stocks other on Officer safety benefit mentioned in the car had the placing him in did not Caruthers before frisk Finally, argument the Fourth text. may acknowledge that this the cruiser. ac- is violated when an officer's Amendment policing, as could have constituted bad have (i.e., enough he tions were not intrusive being left an armed individual resulted in curious, Caruthers, too) is should have frisked vehicle, unsupervised but an officer's say the least. objective are not relevant motivations ” added)). apply at the scene. at 1297. .... photographed (emphasis Id. visions will readily It that circum- apparent Second, is the have an agreement held that of the instant case fall far short of stances be sentenced under the Guidelines does Thompson. in degree intrusion not appeal. effect a waiver of United Smith, States v. & n. 626-27 Sentencing B. (6th Cir.2005); Puckett, States v. (6th Cir.2005); 422 F.3d 1. Waiver (6th Amiker, 414 F.3d that argues Caruthers his sentence ex Cir.2005). Similarly, a defendant not does ceeds the maximum for his con waive right appeal simply by agree- his viction, because the district court errone ing to be sentenced under a particular ously qualified ruled that he for the ACCA statute. government responds enhancement.3 The waived,

that via plea agree Caruthers his does, agreement plea Caruthers’s ment, right appeal his sentence. however, an explicit appeal contain waiver provision: knowingly “[T]he defendant Scope Agreement a. right waives appeal any sentence initially address whether Caruth- within maximum provided of appeal scope ers’s comes within the of the by fense level as determined Court plea agreement. According govern- to the the manner which that was sentence ment, by appeal spe- Caruthers waived his grounds determined on the set forth in 18 cifically agreeing that the sentenc- ACCA ground U.S.C. 3742 or on any whatev ing apply enhancement would to him. ¶ (Plea 13). Agreement er.” J.A. at 183 First, This claim fails for two reasons. argues that does by is text of provisions belied come within the literal terms of the waiver contemplating application ACCA, clause, especially in light principle qualified which are written rather than plea that agreements to be interpreted are (Peti- unconditional J.A. at terms. 172-73 strictly, ambiguities against construed ¶ 5) (“I tion to Enter a Plea of Guilty See, government. e.g., United States that I may qualify understand as an Fitch, (6th 367-68 Cir. Armed Career Criminal enhancement 2002); Johnson, United States v. do, subject I I will be mandatory to a if Cir.1992); United States v. .... minimum sentence I have been ad- Gebbie, (3d Cir.2002) 551-52 by my attorney vised guideline cases). (collecting principle of narrow range could be 180-210 imprison- months of ambiguities construction the face ment I qualify for the ‘Armed Career if inapplicable here because the text waiver’s Criminal’ enhancement.” (emphases add- unambiguously encompasses Caruthers’s (Plea ¶ (“The ed)), 2) Agreement de- sentence. The sentence 180 months understands, fendant quali- should he provided was “within the maximum fy Criminal, as an Armed Career he faces ” Court,” offense level as mandatory determined minimum .... sentence (Plea added)), (emphasis because the district court Agreement calculated ¶ 3) (“The government and offense provides the defendant level which anticipate following guideline pro- maximum sentence of 210 months deny agreement Cir.), Caruthers does not that his knowing, voluntary, intelligent. See Fleming, United States v. 763- (6th Cir.2001); Ashe, (8th Cir.) (en denied, banc), of cert. history category a criminal those with 997, (2003); Moreover, 501, district court’s decision 157 L.Ed.2d 398 the VI. Teeter, 14, minimum of the v. 257 F.3d n. mandatory the United States 25 apply to (1st Cir.2001); v. literally aspect an of “the manner 10 United States Phil ACCA is (9th 1074, Cir.1999); lips, 174 F.3d 1076 in that sentence was determined.” which Bushert, 1343, Therefore, v. F.2d appeal applies waiver’s text United States 997 (11th Cir.1993), denied, n. 1350 18 cert. 513 to Caruthers’s sentence. 652, U.S. S.Ct. 130 L.Ed.2d 556 Enforceability b. of the Waiver Clause (1994); Marin, 496; 961 F.2d at see also Khattak, United States 273 F.3d if the next contends that even (3d Cir.2001); Rosa, 563 United States provision’s language encompasses waiver (2d Cir.1997). 100 & n. 5 it a matter of law appeal, his cannot as Cf. Hollins, Fed.Appx. United States v. 97 a attacking sentence on preclude (5th Cir.2004) curiam) (“[A] (per 479 statutory maxi grounds that it exceeds the preclude § 2255 not waiver does review of has no cases from mum. Caruthers cited statutory a sentence that exceeds the maxi and it addressing argument, this his court mum.”).5 to matter of first appears indeed be a in impression this circuit.4 These courts offer several differ for sug ent rationales the doctrine. Some It is in federal well settled gest juris that a district court is without his courts that “a defendant who waives impose exceeding diction to a sentence subject to right appeal to does not himself maximum, Bushert, statutory 997 F.2d of entirely at the whim being sentenced (“It juris n. is 1350 18 both axiomatic v. Mar district court.” United States a of (4th dictional that court the United in, States Cir.1992). F.2d Pur 496 may a impose penalty a crime this sister circuits principle, suant to our beyond by that which is authorized stat that an uniformly position taken the have ute.”); Andis, also F.3d at 886 see appellate may appeal not bar an waiver (calling supramaximal “illegal”), a sentence asserting that the sentence exceeds See, unenforceability means that the of which statutory e.g., maximum. (7th Bownes, simply application the waiver is States — Cir.) may (Posner, J.), general jurisdictional rule that defects U.S. —, 273 not be Other courts invoke no 163 L.Ed.2d waived. Hahn, Bownes, (2005); process. tions of due See (“[S]ome Cir.2004) (en banc); F.3d at minimum of civilized Unit Andis, required by community ed is feel- procedure (or thereof) similarly development appears 5. The have been This lack circuits uniform many principle language accepting who be an artifact of the used in defendants circuit, appellate appellate rights waivers this which have otherwise waived their may yet permit appeals attack based on constitu explicitly of sentences exceed sentences See, See, impermissible race. ing statutory e.g., tionally criteria like maximum. Bownes, Luebbert, e.g., 637. The soundness incontrovertible, Cir.2005) plea agreement, fact (quoting which rule is provided additionally paired the doctrine we that it is often "[t]he defendant today support appeal any to the latter. To right on consider lends waives sentence paraphrase adage ground any imposed in a familiar from another ... other than sentence ...(em "a com [doctrine] context: known excess maximum Co., added) (first pany keeps.” Alloyd phasis original)), omission Gustafson - -, U.S. (1995). being possession mum a ing regardless of what the defendant felon in (internal firearm, 924(a)(2), willing accept.” or is see 18 U.S.C. and Ca wants Marin, omitted)); fifteen-year quotation marks ruthers’s sentence it. exceeded (“[A] argument against waives his The F.2d at defendant who such characteriza subject right being possession does not himself to tion is that of a felon entirely whim being being sentenced at the firearm and an armed career crimi court.”). nal possession the Still others use the of a firearm two district are not Hahn, justice,” offenses, of “miscarriage separate simply term 359 but recidivism- Khattak, 1327; 563; contingent at 273 F.3d at variants of the same offense. Teeter, implic- view, statutory 257 which Under F.3d at seems this the baseline itly unconscionability purposes inqui invoke the maximum the to both for of waiver (since ry agree- life-imprisonment doctrine of contract law is the for plea maximum contracts) are supervisory being ments the an armed career criminal in posses firearm, 924(e)(1); of of power appeals. the courts We need sion of a see 18 U.S.C. Wolak, among justifications, from these choose United States (6th Cir.), theory, no what because matter the 501 U.S. (1991), general appar- is soundness of doctrine L.Ed.2d 995 Thus, ent. we agree fifteen-year our unanimous Caruthers’s sentence did not an appellate sister circuits that waiver exceed it. preclude appeal asserting does not an that Unfortunately, party neither or briefed statutory-maximum sentence has been argued (Indeed, this issue. govern exceeded. ment did not bother to address Caruth all.) question enforceability

The then becomes whether Ca- ers’s In argument at appeal accurately any event, can ruthers’s be called a need not we determine whether grounds challenge his sentence on the qualifies challenge Caruthers’s as a that it exceeds the on grounds maximum. that his sentence exceeds argument maximum, because, for a the statutory such characterization for being below, is a in possession that felon of a reasons it discussed fails on the Thus, being firearm and an armed crimi- present pur career merits. for assume possession nal in poses firearm are two that appellate Caruthers’s is waiver view, separate unenforceable, Under offenses. and we now turn statutory maximum purposes baseline merits of sentencing argum Caruthers’s inquiry the waiver is the maxi- ten-year ent.6 acknowledge questions), 6. We that we said have that a ele III appellate valid waiver leaves this court with But jurisdiction sentencing out appeal. see, Inc., hear e.g., Phillips Sys., v. Ameritech Info. McGilvery, 362- 97-1942, No. *2 WL n. 1 (6th Cir.2005). might suggest This Feb.5, 1999) (not (unpublished opinion) Cir. reaching by assuming the merits that Caruth ing majority agreed that a of the Justices appellate ers’s waiver unenforceable is tan assuming jurisdic certain circumstances reaching by assuming tamount merits appropriate, long jurisdiction tion is as the so jurisdiction, approach Supreme that the resolving al issue is difficult and on case disapproved, Court has see Co. v. Steel Citi party contesting jurisdic merits favors the Env’t, 83, 94-101, a Better zens for tion); NCAA, Bowers 416 n. (1998), L.Ed.2d (3d Cir.2003) (same); Reprod. Ctr. Law respect jurisdiction, least with to Article III Bush, (2d Cir.2002) n. 5 see, e.g., Georgia-Pacific Penobscot Nation (same). (1st Cir.2001) (Boud Corp., 254 F.3d in, J.) reasons, however, (suggesting mandatory Steel There Co.’s are several to read disposition might McGilveiy might order be limited Arti for less than worth. all (4) error, notice a only forfeited but if of Review Standard seriously fairness, error integ- affect[s] “This Court reviews a district rity, public reputation judicial pro- that a crime constitutes court’s conclusion ceedings.” States, Johnson v. United felony under the ... violent ACCA de 461, 466-67, Hargrove, novo.” (1997) (alterations original) (6th Cir.2005). par As both (citations and quotation internal marks however, recognize, ties because Caruthers omitted). sentencing objection did not raise his be court, fore the district it is reviewed for 3. Merits 52(b). plain error. FED. R. CRIM. P. To Burglaries a. as Violent Felonies standard, satisfy plain error “there Under the ACCA (1) (2) (3) error, plain, must be that is A rights. person If all of being substantial convicted a felon in affeet[s] met, appellate possession § three conditions are of a 922(g)(1) firearm under may generally subject court then exercise its discretion to is a prison to maximum First, have, (2004); 443, Ryan, we both before and after McGil Kontrick v. 540 U.S. 124 906, very, challenged by (2004); affirmed sentences S.Ct. defen 157 L.Ed.2d 867 accord Inc., 543, validly appeals. dants who had waived their Transp., Cobb Contract Dillard, 675, (6th Cir.2006); Recoveries, See United States v. 548-550 Primax (6th Cir.2006); Yoon, Gunter, 515, 684-85 Inc. v. — (6th Cir.), Cir.2006). Although 808 F.3d these decisions admit —, contexts, tedly 126 S.Ct. 163 L.Ed.2d 460 involved different at least two (2005); Sykes, principles apply articulated therein with force First, (6th Cir.), “[o]nly Congress may 537 U.S. here. determine (2002). By subject-matter jurisdic S.Ct. 154 L.Ed.2d 322 af a lower federal court's Kontrick, firming dismissing appeals, rather than tion.” 540 U.S. at 124 S.Ct. added). necessarily jurisdiction we (emphasis Congress exercised in these established cases, suggesting appellate appellate jurisdiction appeals that an waiver over criminal 3742(a), jurisdiction. § does not divest court of § To via 28 U.S.C. and 18 U.S.C. and, McGilvery principle, the extent that conflicts with the may under this a defendant decisions, by prior destroy jurisdiction by earlier agreeing are bound to an Second, Sec’y appellate cases. See "[cjlarity Salmi v. Health & Human waiver. would be of Servs., 1985); litigants Cir. facilitated 6TH if courts and used the label 206(c) (a rules, panel 'jurisdictional’ CIR. claim-processing R. later cannot overrule not for Second, prior panel’s published opinion). only prescriptions delineating but McGilvery authority jurisdic (subject-matter jurisdiction) cited no for its classes of cases characterization, persons (personal jurisdiction) tional falling while the en banc and the powerful adjudicatory authority.” Tenth Circuit has articulated rea within a court’s Kontrick, concluding (em sons for that even when defen 540 U.S. at S.Ct. added). validly appeals, phasis appellate dants waive their the courts The enforcement of appeal jurisdiction comfortably of do indeed have under fits waivers in the rubric of a (28 § claim-processing recog both the relevant statutes U.S.C. mere rule—as we 3742(a)(1)) (encour § McGilvery, 18 U.S.C. and Article III. nized in 403 F.3d at 363 Hahn, aging See government 359 F.3d at 1320-24. to file in this court a Finally, Supreme recently Court has motion dismiss the whenever the waiver, repeatedly agreed appellate admonished courts not defendant has to an "jurisdiction cavalier in their use of the term as it would facilitate referral to a motions Arbaugh Corp.,-U.S.-, panel) al.” See v. Y&H therefore should not be labeled —and (2006); "jurisdictional.” 163 L.Ed.2d 1097 States, -, reasons, Eberhart v. United -U.S. For these we conclude that our (2005) (per assumption S.Ct. appellate cu that Caruthers's waiver riam); Scarborough Principi, imper- is unenforceable does not constitute an 413-14, assumption jurisdiction. missible of 924(a)(2). only to the burglary by “looking] § neric 18 U.S.C. years. of ten term prior statutory or more has three conviction and the defini person If that fact of drug or offense[s]” “serious convictions for Id. at prior tion of the offense.” (in combination), any felon[ies]” “violent of If the definition S.Ct. 2143. subject to however, him makes the ACCA however, inqui nongeneric, is burglary imposes a enhancement sentence “actual the defendant ry shifts to whether fif- term of prison mandatory minimum generic burglary.” Id. at ly committed 924(e)(1). qual- A crime § years. Id. teen Where, here, 599-600, 110 as felony” purposes ifies as a “violent guilty from a burglary conviction flows by punishable it is if the enhancement inquiry “is limited to the terms plea, this prison and either year more than one document, of a charging the terms use, “(i) attempted has as an element transcript colloquy or plea agreement use, physical force use or threatened in which the judge between and defendant “(ii) or of another” against person confirmed plea factual for the basis extortion, arson, use involves or burglary, defendant, comparable judi some involves con- or otherwise explosives, Shepard cial record of this information.” risk potential a serious presents duct that States, v. United to another.” Id. physical injury 1254, 1263, 161 L.Ed.2d added). 924(e)(2)(B)(emphasis 924(e) § applied court The district Application to the Pre-November- b. prior felony of four on the basis Caruthers Burglary 1989 Tennessee Statute third- in Tennessee: two for convictions second-degree one for degree burglary, argues burgla that the Caruthers drug a serious of- and one for burglary, under which he was convicted ry statute 924(e)’s § argues fense. Caruthers require entry, one did not unlawful felony” encompasses “violent definition of Taylor elements. Such generic-burglary burglary third-degree neither second-nor appear to have no argument an would in at the time of they existed Tennessee as respect with to Tennessee’s current merit convictions, leaving him with fewer statute, the ele burglary includes which predicate offenses qualifying three than con acting ment of “without the effective of the ACCA making application property owner.” TENN. sent erroneous. enhancement 39-14-402(a). However, § ANN. CODE States, 575, In 495 U.S. Taylor United of offenses occur Caruthers was convicted (1990), 2143, 109 L.Ed.2d 607 110 S.Ct. the current statute went into ring before meaning delineated the Supreme Court 1, on November 1989.7 The second- effect 924(e)(2)(B)(ii). § “burglary” degree burglary pro statute then effect adopted a explained Congress Court part: in relevant vided burglary: “any “generic” definition of degree is the Burglary the second crime, definition or regardless of its exact entering dwelling into a breaking and label, having the basic elements of unlaw- house, any building, room house or other into, entry remaining or unprivileged ful or occupied by or rooms therein used structure, in, intent to building or persons dwelling as a any person or 599, a crime.” Id. at commit or place lodging permanently or either determine Generally, 2143. a court is to owner, rent- temporarily and whether as ge- convicted of whether defendant was second-degree degree burglaries and on committed in 1983 7. was convicted of 1, September burglary and of third- committed er, tenant, committed, or paying guest, lessee it burglary.”); is no Page v. State, day, felony. 586, with the intent to commit a 98, 170 Tenn. 98 S.W.2d 98-99 (1936) (holding that the defendant commit 39-3-403(a) TENN. CODE ANN. burglary by unlawfully ted breaking and (1982). Third-degree burglary was de- entering a room with intent to commit a breaking entering fined as “the into a felony, though even he lawfully on the house, outhouse, any business other premises); v. Puryear, State No. 88-190- another, dwelling house of other than III, *1 WL house, (Tenn.Crim.App. felony.” with the intent to commit a 1989); Aug.14, Funzie, State v. 39-3-404(a)(l). No. §Id. 1986 WL at *1 (Tenn.Crim.App. We first address whether Tennessee’s Mar.19, 1986). Even the case on which pre-November-1989 burglary statute is Caruthers relies required an unlawful en generic.8 Caruthers is that a correct bur try; just happened to involve an unlaw glary statute that fails to include unlawful entry ful into a payphone’s coin receptacle. entry as a distinct generic. element is not State, Fox v. Tenn. 383 S.W.2d Maness, See United States (1964), (6th Cir.), (1965). Thus, pre-November-1989 burglary statute incorrect, however, Caruthers is in assert generic along unlawful-entry dimen ing that the statute did require sion. entry. unlawful The Tennessee courts State, have held otherwise. See Goins v. burglary may Yet a statute also be non- (1951) (“It 192 Tenn. generic S.W.2d if places, it “inelud[es] such as cannot be doubted that machines, where the owner of vending automobiles and other building invites another to enter for a buildings.” Taylor, than 495 U.S. at purpose, making keys lawful available 110 burglary S.Ct. The Tennessee peaceable entry, for a felony and a is statute nongeneric along was indeed ” squarely 8. We have not felony.’ (quoting addressed this issue. commit a TENN. CODE Unfortunately, the two we 39-904)), times came close to § ANN. with TENN. CODE ANN. answering question, we reached different 39-3-404(a)(l) (1982) § (“Burglary in the First, conclusions. in United States v. degree breaking entering third is the and into Anderson, (6th Cir.), 923 F.2d 450 house, outhouse, any a business or other 111 S.Ct. 113 L.Ed.2d another, house, dwelling house of other than 729 and 500 U.S. 111 S.Ct. felony.”). with the intent to commit a (1991), we held that Tennessee’s observed that the statute was “broader than burglary “generic” definition of is but did not generic Taylor definition in in that it specify the version statute to which we requirement entry omits the of 'unlawful’ referring. likely were Id. at 454. It is but not places building.” includes than a other Id. pre-November-1989 burglary certain that the at 110 S.Ct. 2143 n. 6. This statement (i.e., statute the version under which Caruth dictum, however, question was as the actual convicted) ers was was at issue in Anderson. ly addressed was whether the defendant's at case, clearly In second we identified tempted burglary conviction could serve as a examined, the version of statute we and it predicate felony" “violent under the ACCA's was identical to the definition under which “otherwise” clause. Id. at Compare Caruthers was convicted. affirmative). (answering Bureau, 52 Cir. Finally, Eighth we note that the Circuit held 1995) (“In 1975, burglary degree in the third generic, the statute in effect in 1966 to be was defined under Tennessee law as: 'the Moore, house, breaking entering into a business outhouse, another, 1997), any any helpful or other Cir. but it did so without house of oth house, dwelling analysis. er than a with the intent to dimension, structure, building or with intent to com- as “building or structure” burglary crime,” i.e., convic third-degree permitted generic burglaries. Tay- mit a recepta into coin entry for unlawful tions lor, 2143; see Fox, 27; and the like. 383 S.W.2d cles Maness, 23 F.3d at 1009-10. There- also 39-3-404(b)(l) TENN. ANN. CODE fore, properly applied the district court vault, (1982) safe, “any or (encompassing sentencing enhancement. ACCA Thus, turn to place”). we other secure “actually committed a Caruthers whether III. CONCLUSION Taylor, 495 U.S. at generic burglary,” above, the reasons set forth For 2143, according to “the terms of AFFIRM court’s denial of the district Ca- document, plea the terms of a charging AF- suppress ruthers’s motion agreement transcript colloquy be FIRM Caruthers’s sentence. judge tween and defendant which the plea factual for the was confirmed basis McKEAGUE, Judge, concurring. Circuit defendant, judi comparable or to some full, join I majority opinion but information,” Shepard, cial record of this separately points write to address two at 1263.9 related to the discussion of whether Ca contains the indictments of The record appellate rights ruthers’s waiver of only burglary three two Caruthers’s argument regard sentencing to his was convictions,10but the absence of the third First, majority opinion enforceable. analysis our because the does affect court, dicta, that one held states has only qualifying three con requires ACCA right that a defendant cannot waive the dispute victions and Caruthers does not statutory a sentence above the prior drug qualifies. that his conviction maximum because a district court alleged that These indictments jurisdiction impose such a without sen unlawfully broke and entered “business house,” tence. This decision misconceives “dwelling respective house” and a 282, 288, jurisdiction. A district court ly, J.A. at which means that he nature actually burglarizing convicted of jurisdiction either has to sentence a de buildings, though permit even the statute jurisdict fendant or does not have such burglary ted convictions for of non-build imposed ion.1 A sentence above ings. certainly maximum would be le error, gal saying judge but that a conclusion, light

In of this equivalent wrong saying is not actually convicted of offenses includ- judge beyond that a has acted his or her ing “the basic elements of unlawful or un- into, in, jurisdiction. privileged entry remaining Fortunately, majority a nongeneric only department. 9. Because the statute is J.A. at 313. We not satis- are permitted burglaries the sense that it of non- "comparable judi- fied that this document is a only "building buildings, we need look for the [the] cial record of information” contained in or structure” element in the indictments and Shepard, the indictment. 125 S.Ct. at 1263. words, related documents. In other because already we have determined that the statute case, jurisdic- court had 1. In this district entry, requires we need itself unlawful not pursuant tion to sentence Caruthers to 18 unlawful-entry in Ca- search for element provides § 3231 which dis- "[t]he U.S.C. ruthers's indictments. trict courts of the United States shall have original jurisdiction, exclusive of the courts of regarding 10. bur- The information third States, against of all offenses the laws glary conviction is contained in "Classifica- the United States.” Report” prepared tion the state corrections wisely relying refrains from on opinion support jurisdictional rationale in this case that Caruth- assumption

its appellate waiver is unenforceable. ers’s Second, agree approach I with the while issue, avoiding resolution of the waiver adequately it was not ad both because by the it is parties dressed because case, unnecessary it in this I to resolve briefly my view on separately write note I the issue. do believe Caruth should be char ers’s of his sentence challenge grounds on the acterized as maximum. exceeds Instead, being I adhere to the view that possession being felon in of a firearm and possession an armed career criminal in offenses, separate a firearm are not two simply recidivism-contingent variants but offense, and therefore the same statutory maximum of offense is life.2 America,

UNITED STATES of Plaintiff-Appellee, PRUITT, Demetrius Defendant- Appellant. No. 05-3577. Appeals, United States Court of Sixth Circuit. June 2006. Submitted: Aug. Decided and Filed: to ascertain that a defendant I further note that where ACCAstatus is an the trial court issue, possible penalty” required “any maximum district courts are to advise understands accepting guilty plea (emphasis add- the defendant that the maximum is before ed)). 11(b)(1)(H) (requiring life. See Fed.R.Crim.P.

Case Details

Case Name: United States v. Ricky A. Caruthers

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 11, 2006

Citation: 458 F.3d 459

Docket Number: 05-5307

Court Abbreviation: 6th Cir.