United States v. Gibson , 60 F.3d 1514 ( 1995 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-4104.
UNITED STATES of America, Plaintiff-Appellee,
v.
Oliver L. GIBSON, Defendant-Appellant.
Sept. 19, 1995.
Appeal from the United States District Court for the Southern
District of Florida. (No. 93-375-CR), Edward B. Davis, Judge.
CORRECTED OPINION
*
Before COX, Circuit Judge, HILL and REYNALDO G. GARZA , Senior
Circuit Judges.
REYNALDO G. GARZA, Senior Circuit Judge:
On August 10, 1993, a federal grand jury returned a one count
indictment against Oliver L. Gibson ("Gibson") for being a
convicted felon in knowing possession of a firearm in violation of
18 U.S.C. § 922(g)(1). Gibson pled not guilty to the charge and
filed a motion to suppress the firearm. The district court denied
the motion, finding that public policy permits the stop and frisk
of an individual when police have a partially corroborated
anonymous tip that the individual has a firearm.1
On November 8, 1993, Gibson was tried and convicted by a jury
of his peers and was subsequently sentenced to a fifteen year
imprisonment term, five years of supervised release, and a $50
*
Honorable Reynaldo G. Garza, Senior U.S. Circuit Judge for
the Fifth Circuit, sitting by designation.
1
Gibson also filed a motion to suppress certain statements
made to the police officers after his arrest. This motion was
denied as well. He does not appeal the denial of that motion.
special assessment. Gibson appeals both the district court's
failure to suppress the physical evidence and the sentence it
imposed. For the reasons discussed below we affirm the district
court's judgement.
BACKGROUND
On the evening of February 28, 1993, the Miami Police
Department received an anonymous telephone call informing it that
two African-American men at Tiny's Bar were believed to be armed.
Although it was unknown at that time, the call was placed by the
bar's manager.2 She described one of the individuals as wearing
beige pants and a white shirt and the other as wearing a long black
trench coat. Police Officers J.R. Green ("Green") and Kevin McNair
("McNair") arrived at the scene between one and two and a half
minutes after the phone call was received.
The officers observed an African-American male, wearing beige
pants and a white shirt, standing outside the club. After Officer
Green made eye contact with him, the subject walked quickly from
3
the bar. The officers were unable to stop or apprehend him. The
officers then entered the bar and scanned the room. They quickly
established that Gibson, an African-American male, was the only
individual wearing a long black trench coat and therefore
2
Although the manager did not actually observe the two men
with firearms, she believed they were armed because a bar patron
told her as much.
3
The officers explained that a median divided the street
where the bar was located. When they first observed the suspect,
they were on the street opposite the bar. Thus, to reach the
bar, they had to drive to the end of the block and make a U-turn
around the median. By the time they finally reached Tiny's Bar,
the individual had walked away.
approached him. Both officers testified that Gibson, who had his
back to them, turned to face them and simultaneously reached behind
his back with both hands. At that point, Officer Green unholstered
his weapon and pointed it at Gibson while explaining that he was
believed to be carrying a firearm. Officer McNair frisked Gibson,
felt a hard bulge in the right trench coat pocket, and removed the
object. It was an ammunition clip. Officer Green re-holstered his
weapon, frisked Gibson, and removed a firearm from his back waist
area underneath the trench coat. Gibson was placed under arrest.
The officers testified that, when they entered Tiny's Bar,
they had no facts on which to base the investigatory stop and frisk
apart from the information provided by the anonymous caller.
However, Officer McNair did testify that he knew weapons were
common in the area. Officer McNair also testified that though he
was not afraid of Gibson, he nevertheless unfastened the safety
snap on his holster when he approached him. Officer Green, on the
other hand, testified that he felt fear and apprehension as he
approached Gibson due to the fact that he was allegedly armed.
Furthermore, as we already noted, both officers testified to
Gibson's reaction when he was confronted.
DISCUSSION
I.
Gibson states that the anonymous tip did not exhibit
sufficient indicia of reliability to justify the stop and frisk.
He argues that the information provided by the tipster was vague
and relayed nothing more than easily obtained facts, that is, a
description of the clothes worn by Gibson and the second
individual. He alleges that the anonymous information failed to
predict his future behavior and that the officers failed to conduct
an independent investigation to corroborate the information
provided by the anonymous caller. Gibson adds that he did not do
anything suspicious at the bar that would lead the officers to
believe the tipster's information was reliable. Accordingly, he
maintains that the evidence should be suppressed on the ground that
it was the fruit of an unlawful stop and frisk because it was made
without reasonable suspicion.
The Supreme Court addressed the reliability of anonymous tips
in Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301(1990). In that case, the Montgomery Police Department had
received an anonymous phone call stating that a woman would be
leaving 235-C Lynwood Terrace Apartments at a particular time. The
caller predicted that she would drive a brown Plymouth station
wagon with a broken right taillight lens, that she would drive to
Dobey's Motel, and that she would be in possession of a brown
attachè case containing approximately one ounce of cocaine. Two
officers proceeded to the Lynwood Terrace Apartments and
established surveillance on the defendant's apartment. At the
designated time, the officers observed a woman, with nothing in her
hands, exit the building and leave in the station wagon. The
officers followed the vehicle, but stopped the driver before she
reached the Dobey Motel and informed her of their suspicions. The
officers obtained her permission to search the car and found a
brown attachè case. After the woman provided the officers with the
combination to the case, marijuana was discovered. She was placed
under arrest. Additionally, while the defendant was being
processed at the police station, officers discovered three
milligrams of cocaine in her purse. The defendant attempted to
suppress the marijuana and cocaine but the motion was denied by the
district court. This ruling was later reversed by the Court of
Criminal Appeals of Alabama on the basis that the officers did not
have the reasonable suspicion necessary to justify the
investigatory stop. The Supreme Court granted certiorari.
After reviewing the totality of the circumstances, the Court
held that the independently corroborated anonymous tip exhibited
sufficient indicia of reliability to justify an investigatory stop
of the defendant's vehicle. Id. at 332, 110 S.Ct. at 2417. The
Court reasoned that the "independent corroboration by the police of
significant aspects of the informer's predictions imparted some
degree of reliability to the other allegations made by the caller."
Id.4 The Court also believed it important, as in Illinois v.
Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (dealing
with anonymous tips in probable cause context), that
"the anonymous [tip] contained a range of details relating not
just to easily obtained facts and conditions existing at the
time of the tip, but to future actions of third parties
ordinarily not easily predicted." [ Gates ], at 245, 76
L.Ed.2d 527, 103 S.Ct. 2317. The fact that the officers found
a car precisely matching the caller's description in front of
the 235 building is an example of the former. Anyone could
have "predicted" that fact because it was a condition
presumably existing at the time of the call. What was
important was the caller's ability to predict respondent's
future behavior, because it demonstrated inside information—a
4
The Court noted that not all of the tipster's facts were
corroborated. For example, the police did not see the woman
leave the particular apartment described, she was not carrying an
attachè case, and the police stopped her before she actually
reached the motel.
special familiarity with respondent's affairs. The general
public would have had no way of knowing that respondent would
shortly leave the building, get in the described car, and
drive the most direct route to Dobey's Motel. Because only a
small number of people are generally privy to an individual's
itinerary, it is reasonable for police to believe that a
person with access to such information is likely to also have
access to reliable information about that individual's illegal
activities. See id. at 245, 76 L.Ed.2d 527, 103 S.Ct. 2317.
When significant aspects of the caller's predictions were
verified, there was reason to believe not only that the caller
was honest but also that he was well informed, at least well
enough to justify the stop.
White, 496 U.S. at 332, 110 S.Ct. at 2417 (original emphasis). The
Court concluded that the stop was justified, though, admittedly, it
was a "close call." Id. Therefore, the Court established that
anonymous tips corroborated by independent police work can be
reliable enough to provide reasonable suspicion to make
investigatory Terry5 stops.
This Circuit has not squarely addressed the extent to which a
tipster must detail the facts relating to an individual before the
information given becomes sufficiently "reliable" to justify an
investigatory stop and frisk under White. More importantly, we
have not addressed the issue in this particular context, i.e.,
where the police receive an anonymous phone call detailing innocent
details and warning of an armed or potentially armed individual.
However, at least two of our sister courts have addressed this
issue. We turn to these courts for guidance.
In United States v. Clipper, 973 F.2d 944 (D.C.Cir.1992),
cert. denied, --- U.S. ----, 113 S.Ct. 1025, 122 L.Ed.2d 171(1993), the police department received an anonymous telephone call
5
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968).
reporting that an armed African-American male was in a particular
area. According to the caller, the individual was wearing a green
and blue jacket and a black hat. Two officers responded
immediately to the tip. After they arrived at the designated area,
they observed an individual matching the description of the
suspect. The officers detained him and performed a protective
frisk. Although no firearm was recovered, they discovered a wad of
currency and a bag of crack cocaine. The suspect was arrested for
possession of a cocaine substance with the intent to distribute.
The district court upheld the investigatory stop and the
defendant was convicted. On appeal the defendant argued, among
other things, that the anonymous tip did not provide the police
with reasonable suspicion to stop him. Specifically, he argued
that Alabama v. White required an anonymous tip to contain
information predicting future behavior and that the police confirm
the accuracy of the prediction before they assumed the tip was
sufficiently reliable to act upon. Id. at 949. Thus, the
defendant maintained that the evidence seized should have been
suppressed.
The Clipper Court reviewed White and stated,
[w]hile it is true that the Court said, in that case, that the
police's ability to corroborate the informant's predictions
was important, Alabama v. White does not establish a
categorical rule conditioning a Terry stop (when police are
acting on an anonymous tip) on the corroboration of predictive
information. The Supreme Court in that case dealt with
information that a particular individual was in possession of
drugs, not of a gun.... We believe that the totality of the
circumstances to which the Court refers in Alabama v. White
must include those in which the anonymous informant makes no
predictions, but provides the police with verifiable facts
while alerting them to an imminent danger that the police
cannot ignore except at risk to their personal or the public's
safety.
Clipper, 973 F.2d at 949-950. Then, after reviewing worrisome
statistics on firearm related fatalities, the court balanced the
hazards that firearms present to the public and to the government's
law enforcement officers against the public's interest in remaining
free of unreasonable governmental intrusions. Id. at 951. The
court ultimately concluded that the government's intrusion into an
individual's privacy was outweighed by the dangers inherent in
situations involving firearms:
This element of imminent danger distinguishes a gun tip
from one involving possession of drugs. If there is any doubt
about the reliability of an anonymous tip in the latter case,
the police can limit their response to surveillance or engage
in "controlled buys." Where guns are involved, however, there
is the risk that an attempt to "wait out" the suspect might
have fatal consequences.
Here, as in [United States v. McClinnhan, 660 F.2d 500(D.C.Cir.1981) ], the police received an anonymous tip
providing a detailed description of the appearance, clothing,
and location of a man who allegedly possessed a weapon.
Officers at the scene were able to corroborate all the
innocent details of the tip. In these circumstances, ... a
reasonable trier of the facts could find that the officers had
a reasonable suspicion sufficient to justify a Terry stop and
search.
Id. at 951.
The Second Circuit followed Clipper to uphold the
investigatory stop of a vehicle prompted by an anonymous telephone
call. United States v. Bold, 19 F.3d 99 (2d Cir.1994). In that
case, the police department received an anonymous tip that there
was a gray four-door Cadillac at the White Castle restaurant
parking lot with four African-American males, one of whom was armed
with a gun. The armed man was reported to be 21 years old and
wearing a hooded sweater. Five police officers quickly responded
to the call and found a four-door gray Cadillac parked at the
specified location. One of the police officers approached the
vehicle from the rear, opened the back door, and looked in. The
officer found two African-American men in the front seat of the car
and asked them to step out. The officer observed money on the
passenger's lap and saw money fall from under his shirt as he
stepped out of the vehicle. The passenger was frisked, but no
weapon was recovered. The driver was also removed from the car and
frisked, but again, no weapon was found. Upon a closer inspection
of the vehicle, however, the officers discovered $100 bills and a
plastic toy gun. An officer recalled a robbery earlier that day
and radioed in for a description of the robbers. The driver fit
one of the descriptions reported. The officers also learned that
a robber had worn a tweed coat and carried a briefcase, two items
found in the car. The suspects were arrested and indicted for bank
robbery.
The defendants moved to suppress the physical evidence seized
on the ground that the search and seizure was made without
reasonable suspicion. The district court suppressed the evidence,
holding that an anonymous tip under White would not provide
reasonable suspicion if it was corroborated only by "easily
obtained facts and conditions existing at the time of the tip" and
that "independent corroboration by the police of significant
aspects of the informer's predictions was required." Bold, 19 F.3d
at 101 (quoting United States v. Bold, 825 F.Supp. 25, 28
(E.D.N.Y.1993)).
On appeal the Second Circuit held that the officers had a
reasonable suspicion to stop and search the individuals and thus
reversed the suppression of the evidence. The court reasoned that
though the anonymous tip did not provide sufficient information by
itself to conclude that the caller was honest or the information
reliable, the officers were able to corroborate the tipster's
information concerning the car and its location, thus supporting
the reliability of the tip. Id. at 103. The officers' suspicions
were also raised due to the car's darkly tinted windows and its
remote location. Id. The panel concluded that the officer's
independent corroboration of the anonymous tipster's information,
the remote location of the car in the lot, the inability to see
through the tinted windows, together with the report of a firearm,
was sufficient to allow the officers to perform a Terry stop. Id.The court stated that the fact that no future events were
predicted by the caller did not render the stop unlawful: "There
was no need here for any predictions of future conduct, because
when verified by the officers, the tipster's information was
sufficient under Terry to warrant investigation." Id. at 103-04.
It found that White did not preclude the police from "acting on an
anonymous tip when the information to be corroborated refer[ed] to
present rather than future actions." Id. at 104 (citing United
States v. Clipper, 973 F.2d 944, 949 (D.C.Cir.1992), cert. denied,
--- U.S. ----, 113 S.Ct. 1025, 122 L.Ed.2d 171 (1993)). White was
also distinguished on the facts because the Bold Court considered
anonymous gun tips to be significantly different from drug tips—an
officer dealing with a suspect who may possibly be armed may either
frisk the individual or wait until the weapon is used or
brandished, while a suspected drug dealer may be placed under
surveillance until the officer observes sufficient facts to take
action. Id. Thus, the court decided that "[w]here the tip
concerns an individual with a gun, the
totality-of-the-circumstances test for determining reasonable
suspicion should include consideration of the possibility of the
possession of a gun, and the government's need for a prompt
investigation." Id.In the case at bar, Officers Green and McNair independently
corroborated all the information that the anonymous tipster
relayed. When the officers arrived at the scene they witnessed a
person matching the description of one of the potentially armed
men, in other words, the individual was of the race specified and
wore the clothing described. Suspiciously, once they made eye
contact with him he walked quickly from the bar. After they
entered the club, the officers immediately established that only
Gibson, an African-American male, wore a long black trench coat.
As the officers approached Gibson, he reached behind his back with
both hands. Although these details were innocent, once they were
corroborated they added credibility to the anonymous tip.6
6
Gibson claims that the officers only had the tipster's
innocent information on which to base their stop and frisk. So,
even if this information was corroborated, he alleges that it was
insufficient to justify the officers actions. Gibson cites
United States v. McLeroy, 584 F.2d 746 (5th Cir.1978), to support
his argument. In McLeroy, a confidential informant, whose
reliability was not established at trial, reported that McLeroy
was in possession of a stolen vehicle and might have been
involved in a hit-and-run accident. The stolen car was described
as a black and white Chevrolet, with 1977 Alabama license tag BMB
023, and was parked at 1720 27th Street in Ensley, Alabama. The
informant also stated that McLeroy might be in possession of a
sawed-off shotgun. Two officers acted on the information and
drove to McLeroy's house. They verified the description of the
car and established surveillance on the house. After several
The officers also reached the bar no more than two and a half
minutes after the call was received. The timing of their arrival
ensured that the reported information was still fresh, increasing
the chance that the officers would confront the potentially armed
individual before any violence broke out, while also reducing the
possibility that the officers would mistakenly detain the wrong
person. Thus, we agree with both Clipper and Bold that White does
not prevent law enforcement officers from relying and acting on
hours passed, McLeroy left the house, got into the car, and drove
away. The officers followed McLeroy and stopped him. They
checked the vehicle's identification number and established that
the car was stolen. After conducting an inventory search of the
vehicle, a sawed-off shotgun was discovered.
This Court found that the investigatory stop was not
justified, concluding that "[r]easonable suspicion requires
more than this minimal corroboration of innocent details."
Id. at 748. The only elements of the tip independently
corroborated by the police were innocent details and did not
suggest that the "informant could have known more personal
facts about McLeroy, such as whether he was involved in
crime." Id. The corroboration was insufficient to believe
that the information was reliable. Id. However, the
McLeroy court then added that "[i]n some cases,
corroboration of innocent details might change an otherwise
insubstantial tip into a proper basis for a reasonable
suspicion of criminality." Id. This is one of those cases.
The instant case is distinguishable from McLeroy
because the tips involve two unrelated situations. Unlike
our case, the tip in McLeroy was not contemporaneous, i.e.,
the tip did not reflect an on-going danger that required
immediate police action. Instead, the police had ample time
to set up surveillance and wait for several hours before
they stopped McLeroy's vehicle. Moreover, in McLeroy, there
was no immediate threat to the safety of the public. In the
instant case, besides the safety of the officers, the safety
of 20 to 40 innocent bar patrons was at stake. Officers
Green and McNair did not have the luxury of waiting for the
defendant to brandish or use a firearm before acting. They
had no option but to act quickly and carry out the
investigatory stop. Therefore, the nature of this tip,
combined with the independent corroboration of innocent
details, provided the officers with reasonable suspicion.
anonymous tips when the information to be corroborated does not
refer to future actions but instead details present circumstances.
United States v. Bold, 19 F.3d 99 (2nd Cir.1994) ("There is nothing
in White that precludes police from acting on an anonymous tip when
the information to be corroborated refers to present rather than
future actions."); United States v. Clipper, 973 F.2d 944, 949
(D.C.Cir.1992) ("Alabama v. White does not establish a categorical
rule conditioning a Terry stop (when police are acting on an
anonymous tip) on the corroboration of predictive information."),
cert. denied, --- U.S. ----, 113 S.Ct. 1025, 122 L.Ed.2d 171(1993). The police officers were compelled to act immediately upon
their arrival at Tiny's Bar.
More importantly, the anonymous tip concerned the presence of
two potentially armed individuals in a public establishment. This
fact raised the stakes for the officers involved because they not
only had to worry about their own personal safety, but that of the
20 to 40 innocent bystanders who were also present. In Terry v.
Ohio, the Supreme Court held that a law enforcement officer, during
the course of an investigatory stop, may conduct a "reasonable
search for weapons for the protection of the police officer, where
he has reason to believe that he is dealing with an armed and
dangerous individual...." 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20
L.Ed.2d 889 (1968). The test is "whether a reasonably prudent man
in the circumstance would be warranted in the belief that his
safety or that of others was in danger." Id. (citations omitted).
In determining whether the officer acted reasonably under the
circumstances, "due weight must be given, not to his inchoate and
unparticularized suspicion or "hunch,' but to the specific
reasonable inferences which he is entitled to draw from the facts
in light of his experience." Id. (citations omitted) (emphasis
added). Before upholding the stop, the Court also
weigh[ed] the interest of the individual against the
legitimate interest in "crime prevention and detection," ...
and the "need for law enforcement officers to protect
themselves and other prospective victims of violence in
situations where they may lack probable cause for an arrest."
Michigan v. Long, 463 U.S. 1032, 1047, 103 S.Ct. 3469, 3479, 77
L.Ed.2d 1201 (1983) (quoting Terry, 392 U.S. at 22, 88 S.Ct. at
1880). Thus, by allowing the stop and frisk of potentially armed
individuals, the Court demonstrated an overriding concern for both
the public and the lives of peace officers. See Terry, 392 U.S. at
27, 88 S.Ct. at 1883.
Law enforcement officers are at greatest risk when dealing
with potentially armed individuals because they are the first to
confront this perilous and unpredictable situation.7 A law
enforcement officer "responding to a tip involving guns may take
these hazards into consideration when balancing the suspect's
interests against the "need for law enforcement officers to protect
themselves and other prospective victims of violence[.]' "
Clipper, 973 F.2d at 951 (quoting Terry, 392 U.S. at 24, 88 S.Ct.
7The D.C. and Second Circuits noted the alarming increase of
firearms in our nations streets and the growing threat of
violence faced by the public and our law enforcement officers.
See, e.g., United States v. Bold, 19 F.3d 99 (2nd Cir.1994)
(recounting number of firearms circulating in the Nation, New
York City and firearm related fatalities and injuries); United
States v. Clipper, 973 F.2d 944, 949 (D.C.Cir.1992) (discussing
firearm related fatalities in the police force and citizenry),
cert. denied, --- U.S. ----, 113 S.Ct. 1025, 122 L.Ed.2d 171(1993).
at 1881). Otherwise, an officer who corroborates every item of
information reported by an anonymous tipster other than actual
possession of a firearm is left with "an unappealing choice." Id.(quoting United States v. McClinnhan, 660 F.2d 500, 502
(D.C.Cir.1981)). He must either stop and frisk the individual, or
wait to see if he ultimately brandishes or uses the firearm. Id.As the record demonstrates, Officer Green feared for his
safety and drew his firearm as a consequence—"I had a certain
amount of fear and apprehension because [Gibson] was supposed to be
armed, and I have a family and I have to protect myself."
Furthermore, the officers were cognizant of calls that were
regularly received concerning individuals with firearms in that
particular area. Drawing from the facts known to them at that time
and in light of their experience, Officers Green and McNair had a
valid safety concern to warrant a stop and frisk under Terry.
After carefully balancing the dangers that firearms present to
law enforcement officers and the general public against the
citizen's privacy interests, we conclude that the stop and frisk
was justified. The totality of the circumstances, including the
independently corroborated details, the suspicious activity outside
the bar, the knowledge that guns were common in the area, and the
contemporaneous report that two individuals were potentially armed,
leads us to find that the officers had a reasonable suspicion
sufficient to conduct a stop and frisk under Terry.8 The
8
We also note that Gibson was observed acting in a fashion
that, to trained law enforcement officers, might well have been a
corroboration of the information given in the tip. If Gibson
was, as the tipster had said, carrying a weapon, if might well be
predicted that, when he perceived himself to be in peril, he
governmental intrusion upon the defendant's privacy interest was
minimal and justified in this situation.
Although the potential for abuse of anonymous tips gives us
pause, it does not provide grounds for this Court to hold
otherwise. The state of Florida provides a significant deterrent
against reporting false information to its law enforcement agencies
and officers by making such acts punishable by law. F LA.STAT.ANN.
§ 365.171(16) (West 1995) (false "911" calls); Id. § 817.49 (false
reports of commission of crimes to law enforcement officers). This
deterrent increases the odds that an anonymous tip is legitimate.
II.
A felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1) is punishable by a maximum of ten years imprisonment.
18 U.S.C. § 924(a)(2). The sentence is subject to enhancement
under 18 U.S.C. § 924(e)(1) if the defendant has been previously
convicted of at least three violent felonies or serious drug
offenses. Gibson argues that the government must elect the
enhancement and give timely notice of its intent to do so before a
sentence under § 924 may be enhanced. He states that due process
does not allow the enhancement to occur automatically. And,
because he did not receive notice of the government's intent to
would reach for the weapon—either for use of for reassurance of
its presence. When he was confronted by Officer Green, Gibson
reached behind his back, where concealed firearms might well be
carried, tucked into the belt. As a person in a crowd might
instinctively touch his wallet when warned of the presence of
pickpockets, so might an armed felon instinctively reassure
himself of the presence of his weapon when confronted by one he
perceived to be a threat.
9
seek enhancement until the day of sentencing, Gibson claims the
government should be barred from electing the enhancement.
This Circuit recently addressed the above issues in United
States v. Cobia, 41 F.3d 1473 (11th Cir.) (per curiam), cert.
denied, --- U.S. ----, 115 S.Ct. 1986, 131 L.Ed.2d 873 (1995).
This Court held that § 924(e) does not require the Government to
affirmatively seek an enhancement: "Because the statute clearly
indicates that the intent of Congress was to require mandatory
enhancement, we hold that sentence enhancement pursuant to § 924(e)
should automatically be applied by the courts regardless of whether
the Government affirmatively seeks such enhancement." Id. at 1475
(citations omitted). Yet, because the case involved the entering
of a guilty plea pursuant to a plea agreement, we required that the
defendant be notified of the mandatory minimum and maximum penalty
possible under § 924(e) as required by Fed.R.Crim.P. 11(c)(1). Id.
at 1476.10 Furthermore, due process mandated that the defendant
9
Gibson claims he was surprised to find that his sentence
would be enhanced because the enhancement was not included in the
first presentence report. The enhancement first appeared in a
revised presentence report, which was given to Gibson on the day
of sentencing.
10
The relevant section of this rule states that
(c) ... Before accepting a plea of guilty or nolo
contendere, the court must address the defendant
personally in open court and inform the defendant of,
and determine that the defendant understands, the
following:
(1) the nature of the charge to which the plea is
offered, the mandatory minimum penalty provided by law,
if any, and the maximum possible penalty provided by
law ...
FED.R.CRIM.P. 11.
receive reasonable notice of and an opportunity to be heard
concerning the prior convictions. Id.
After reviewing the facts, we concluded that the requirements
of due process and the Federal Rules of Criminal Procedure were
satisfied. For instance, the district court notified the defendant
of the possibility of an enhancement during his plea agreement
hearing and of the possible sentences that he could receive under
§ 924(e). Id. The defendant also received notice of the prior
convictions to be used for enhancement purposes in the government's
response to the district court's standing discovery order, filed
before the plea hearing, and in the presentence investigation
report, filed after the plea hearing. Id. Finally, Cobia had the
opportunity to challenge the validity and applicability of the
convictions at the sentencing hearing. Id.11
Because it is now settled that an enhancement under § 924(e)
is mandatory and therefore automatic, the question remains whether
Gibson received reasonable notice of his prior convictions and an
12
opportunity to challenge them to satisfy due process. Although
the government listed only one prior conviction in the indictment
to support its charge that Gibson was a convicted felon in
possession of a firearm, like in Cobia, the government filed a
11
Although Cobia did not define the breadth of these
challenges, we now note that prior state convictions used for
enhancement purposes may only be collaterally attacked when the
convictions were obtained in violation of a defendant's right to
appointed counsel, as established in Gideon v. Wainwright, 372
U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Custis v. United
States, --- U.S. ----, 114 S.Ct. 1732, 128 L.Ed. 517 (1994).
12
Because our case does not involve a plea agreement, Rule
11 of the Federal Rules of Criminal Procedure is inapplicable.
response to the district court's standing discovery order prior to
sentencing. The response included a print-out of Gibson's criminal
history and copies of each information and judgment filed in state
court relating to three of Gibson's prior state convictions. In
each instance, the judgment listed the attorney who accompanied
Gibson at sentencing, thus precluding a claim that his right to
counsel was violated. See Custis v. United States, --- U.S. ----,
114 S.Ct. 1732, 128 L.Ed. 517 (1994).
Furthermore, Gibson's attorney was unquestionably familiar
with his client's criminal history since he filed a motion in
limine to exclude evidence of other crimes. In this motion,
counsel argued that "not one of Gibson's prior offenses had a
significant characteristic in common with the offense charged in
the instant matter. Accordingly, Gibson's prior crimes would not
be relevant to the issues raised in this matter." This
representation to the district court implied counsel's intimate
knowledge of Gibson's prior crimes and convictions.
Moreover, before sentencing, Gibson's attorney recognized that
the enhancement was indeed applicable. When Gibson's attorney
received the first presentence report, he found it "somewhat
strange" that it lacked the penalty enhancement; he believed that
13
the report should have included one. He called the probation
office to inquire about the omission and was informed that the
13
During sentencing counsel for the defendant stated "... I
myself called the Probation Officer when I got my copy of the
[presentence report] because I, too, found it to be somewhat
strange and brought it to her attention at the potential demise
of my client because I felt responsible that that document at
least could have had an indication [of the enhancement] and
didn't."
enhancement had not been included because it had not been elected
by the government. Consequently, a revised presentence report was
issued which did reflect the enhancement under § 924(e)(1). In
light of these facts, Gibson cannot claim any surprise as the
enhancement was expected from the onset.
Despite Gibson's arguments to the contrary, it is clear that
he had reasonable notice of his prior convictions and knew that the
enhancement was applicable to him. Therefore, we find that
Gibson's due process rights were not violated.
CONCLUSION
We have carefully considered the arguments presented and find
there is no basis on which to suppress the evidence nor disturb the
defendant's sentence. Therefore, the judgment below is
AFFIRMED.