United States v. Michael Delow Medlock , 146 F. App'x 470 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 14, 2005
No. 05-11508
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 03-00183-CR-F-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL DELOW MEDLOCK,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(October 14, 2005)
Before DUBINA, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Appellant Michael Delow Medlock appeals his conviction and 108-month
sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. §
922(g). On appeal, Medlock argues that the district court (1) erred by denying his
motion to suppress where the investigating officer who discovered the firearm in
his back pocket lacked reasonable suspicion to conduct a stop-and-frisk search
pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); and
(2) violated United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d
621 (2005), by applying a two-level enhancement under U.S.S.G. § 2K2.1(b)(4)
for possession of a stolen firearm based on facts that were not proved beyond a
reasonable doubt or admitted by him.
Upon a thorough review of the record on appeal, including the transcripts of
the suppression, change-of-plea, and sentencing hearings, as well as the
presentence investigation report (“PSI”), and after consideration of the briefs of
the parties to this court, we find no reversible error and affirm.
I.
Medlock first argues that Montgomery Police Officer Jason Lloyd Brosius
did not have an independent reasonable suspicion that Medlock was in possession
of a weapon. Medlock contends that the named informant who contacted the
police regarding an individual with a gun did not reasonably identify him as a
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suspect because the call referenced only two men (one of whom was in a
wheelchair), while Officer Brosius observed three men when he responded to the
scene. Medlock further states that there was nothing inherently suspicious about
any of the three mens’ actions in crossing the street, and that it was not unusual for
individuals to be outside at night in the residential area where the relevant events
occurred. Medlock asserts that another individual’s separate act of throwing down
a baggie of marijuana near the officers’ patrol car did not raise any reasonable
suspicion regarding Medlock’s own conduct and did not justify an investigatory
search. Finally, Medlock argues that this case is similar to Florida v. J.L., 529
U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), because the calls received by
the police did not contain any inherently reliable description of illegal conduct,
and the officers “did not observe illegal or even unusual conduct.”
On appeal of a district court’s ruling on a motion to suppress, we review the
district court’s factual findings for clear error and its application of the law to
those facts de novo. United States v. Gil, 204 F.3d 1347, 1350 (11th Cir. 2000).
The facts must be construed in the light most favorable to the party that prevailed
in the district court. United States v. Santa, 236 F.3d 662, 668 (11th Cir. 2000).
The Fourth Amendment to the U.S. Constitution prohibits “unreasonable
searches and seizures.” U.S. Const. amend. IV. Although warrantless searches are
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presumptively unreasonable, the Supreme Court in Terry recognized a narrow
exception, noting that “an officer may, consistent with the Fourth Amendment,
conduct a brief, investigatory stop when the officer has a reasonable, articulable
suspicion that criminal activity is afoot.” United States v. Gordon, 231 F.3d 750,
754 (11th Cir. 2000) (quoting Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct.
673, 675, 145 L.Ed.2d 570 (2000)). When evaluating whether such reasonable
suspicion exists, the district court must examine the totality of the circumstances
to determine whether the arresting officer had a “particularized and objective basis
for suspecting legal wrongdoing.” United States v. Hunter, 291 F.3d 1302, 1306
(11th Cir. 2002) (quoting United States v. Arvizu, 534 U.S. 266, 274, 122
S.Ct. 744, 750, 151 L.Ed.2d 740 (2002)) (internal quotations omitted). The
reputation of an area for criminal activity is a factor that may be considered when
determining whether reasonable suspicion exists. Gordon, 231 F.3d at 755-56.
“An officer who has a reasonable suspicion that an individual is engaged in
illegal activity and is armed with a concealed weapon” may search the individual
for weapons. Hunter, 291 F.3d at 1307. The test 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.” Id. (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883).
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According to the Supreme Court, an uncorroborated, anonymous tip that a
person is carrying a gun does not provide a police officer with reasonable
suspicion to stop and frisk that person. Florida v. J.L., 529 U.S. at 268, 120 S.Ct.
at 1377. One of the primary justifications for not allowing uncorroborated,
anonymous tips to establish probable cause is that the anonymous informant
cannot be held responsible if the information is determined to be fabricated. Id. at
270, 120 S.Ct. at 1378. Additionally, the presence of an individual, matching the
physical description given by an anonymous tip, in the area indicated by the tip is
insufficient, standing alone, to establish reasonable suspicion. Id. at 271-72, 120
S.Ct. at 1379. However, “a tip from a known, albeit unproven, informant coupled
with subsequent corroboration of the tip’s details” can provide reasonable
suspicion. United States v. Kent, 691 F.2d 1376, 1380 (11th Cir. 1982).
Because we conclude from the record that Officer Brosius had a reasonable
suspicion to conduct a stop-and-frisk search of Medlock, we hold that the district
court correctly denied the motion to suppress evidence.
II.
Medlock next argues that the district court violated his Sixth Amendment
rights under Booker by applying a two-level enhancement under § 2K2.1(b)(4) for
possession of a stolen firearm based on facts not charged in the indictment or
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proved beyond a reasonable doubt. According to Medlock, the only information a
sentencing court may consider after Booker are facts either found by a jury beyond
a reasonable doubt or admitted by the defendant. Medlock also claims that the use
of extra-verdict findings to increase his sentence violated his Fifth Amendment
right to due process. Medlock then asserts that his 108-month sentence is
unconstitutional under Booker because it exceeds the 105-month guideline
maximum applicable solely to the facts to which he admitted, which did not
include any admission by him that the firearm was stolen. Medlock argues that the
district court erred in relying on this Court’s “unconstitutional interpretation of
Booker/Fanfan” in United States v. Rodriguez, 398 F.3d 1291 (11th Cir.), cert.
denied, 125 S.Ct. 2935 (2005), because the Supreme Court “in its part one
holding” did not state that the Sixth Amendment was violated only if the sentence
was imposed in a mandatory guideline scheme.
Because Medlock raised a timely, constitutional objection to his sentence
under Blakely at the sentencing hearing, he is entitled to de novo review on appeal.
United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (holding that appellant
was entitled to de novo review of his Booker claim because he raised a
constitutional objection to his sentence in the district court). “We will reverse the
district court only if any error was harmful.” Id. “[C]onstitutional errors are
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harmless where the government can show, beyond a reasonable doubt, that the
error did not contribute to the defendant’s ultimate sentence.” United States v.
Phillips, 413 F.3d 1288, 1293 (11th Cir. 2005) (quoting United States v. Mathenia,
409 F.3d 1289, 1291 (11th Cir. 2005)).
In Booker, the Supreme Court held that the Federal Sentencing Guidelines
violate the Sixth Amendment right to a trial by jury to the extent that they permit a
judge to increase a defendant’s sentence based on facts that are neither found by
the jury nor admitted by the defendant. Booker, 543 U.S. at ___, 125 S.Ct. at 756.
To remedy this violation, the Court excised two specific provisions of the
Sentencing Reform Act of 1984—18 U.S.C. § 3553(b)(1) (requiring a sentence
within the guideline range, absent a departure) and 18 U.S.C. § 3742(e)
(establishing standards of review on appeal, including de novo review of
departures from the applicable guideline range)—thereby rendering the guidelines
“effectively advisory.” Id. at ___, 125 S.Ct. at 756-57. As a result, a sentencing
court must still “consider Guidelines ranges,” but it may “tailor the sentence in
light of other statutory concerns as well.” Id. at ___, 125 S.Ct. at 757 (citing 18
U.S.C. § 3553(a)).
In Rodriguez, we clarified that Booker error “is not that there were
extra-verdict enhancements—enhancements based on facts found by the judge that
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were not admitted by the defendant or established by the jury verdict—that led to
an increase in the defendant’s sentence. The error is that there were extra-verdict
enhancements used in a mandatory guidelines system.” Rodriguez, 398 F.3d
at 1300. Thereafter, in Shelton, we further noted that district courts also can
violate Booker, even in the absence of a Sixth Amendment violation, by applying
the Guidelines as mandatory. United States v. Shelton, 400 F.3d 1325, 1330-31
(11th Cir. 2005).
Notably, we recently rejected the exact argument raised by Medlock in this
appeal, namely, that the Sixth Amendment right to a jury trial prohibits the
sentencing court from making factual determinations that go beyond a defendant’s
admissions even when the sentencing guidelines are applied in an advisory
fashion. United States v. Chau, ___ F.3d ___, No. 05-10640 (11th Cir. Sept. 27,
2005). In Chau, we stressed that “all nine [justices in Booker] agreed that the use
of extra-verdict enhancements in an advisory guidelines system is not
unconstitutional.” Id. at ___ (quoting Rodriguez, 398 F.3d at 1301). As such, we
held that “[i]t was okay” for the district court to make additional factual findings
by a preponderance of the evidence “because it applied the guidelines in an
advisory way. Nothing in Booker is to the contrary.” Id. at ___.
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Because the district court applied the Sentencing Guidelines as advisory, we
conclude that the court did not violate Booker by enhancing Medlock’s sentence
two levels under § 2K2.1(b)(4) based on extra-verdict facts found under the
preponderance-of-the-evidence standard.
For the foregoing reasons, we affirm Medlock’s conviction and sentence.
AFFIRMED.
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