United States v. Cory Foster , 891 F.3d 93 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3650
_____________
UNITED STATES OF AMERICA
v.
CORY D. FOSTER,
Appellant
_____________
No. 16-4225
____________
UNITED STATES OF AMERICA
v.
LAWRENCE PAYTON,
Appellant
_____________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Nos. 1-15-cr-00021-01 and 02)
District Judge: Hon. Richard G. Andrews
_______________
ARGUED
March 13, 2018
Before: JORDAN, SHWARTZ, and KRAUSE, Circuit
Judges
(Filed: May 30, 2018)
_______________
Douglas L. Dolfman
1617 John F. Kennedy Blvd. – Ste. 1660
Philadelphia, PA 19103
Lisa B. Freeland
Renee D. Pietropaolo [ARGUED]
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellant Cory D. Foster
Edson A. Bostic
Tieffa N. Harper
Eleni Kousoulis [ARGUED]
Office of Federal Public Defender
800 King Street – Ste. 200
Wilmington, DE 19801
Counsel for Appellant Lawrence Payton
David C. Weiss
Robert F. Kravetz
Edmond Falgowski
2
Elizabeth L. Van Pelt [ARGUED]
Office of the United States Attorney
1007 N. Orange Street – Ste. 700
P.O. Box 2046
Wilmington, DE 19899
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
In this consolidated appeal, Cory Foster and Lawrence
Payton raise a number of issues arising out of their
prosecution for being felons in possession of firearms. For
the following reasons, we will affirm the convictions and
sentences.
I. Background
A. Facts Relevant to Both Foster and Payton 1
The events leading to prosecution began on
February 5, 2015, when Joseph Turchen, an employee of a
barbershop in the Branmar Plaza shopping center in
Wilmington, Delaware, observed what he perceived as
troubling behavior by occupants of a silver Honda Accord in
1
Unless otherwise noted, the facts contained in this
subsection derive from trial evidence and testimony that was
consistent with the evidence and testimony offered by the
government at a pre-trial suppression hearing.
3
the shopping center parking lot. Turchen watched the
Accord’s two occupants for approximately twenty minutes.
He testified that the man in the passenger seat had a full beard
and wore a hoodie, skull cap, and dark glasses and that the
man in the driver’s seat was wearing a hoodie and a red or
pink scarf over his face the whole twenty minutes he was
sitting in the car. Turchen found the occupants’ behavior
suspicious because they were repeatedly looking around the
strip of stores in Branmar Plaza, including the barbershop, a
bank, and a jewelry store, and because he thought one of the
occupant’s movements indicated “he was pumping himself up
to do something.” (App. at 547.) Turchen also testified that
the car’s occupants were “dressed like they was going to go
do something.” (App. at 543.) He could not identify the car’s
occupants; he could only tell that they were two black males,
one with lighter skin. His suspicions resulted in another
barbershop employee calling 911 to report the suspicious
behavior.
When Delaware State Troopers arrived, Turchen saw
the Accord’s occupants look towards the police cars, which
were at the opposite side of the parking lot. The Accord then
promptly left the lot. Before the car pulled away, the
barbershop’s owner, Joseph Strano, got into his truck,
followed the Accord, and took a picture of it and its license
plate. He provided that picture to Trooper Natalie George,
one of the troopers who had responded to the 911 call.
Trooper George ran the Accord’s license plate number
through a police database and discovered that the car had
been reported stolen in an armed robbery. She then sent an e-
mail to other troopers alerting them of that fact and attaching
4
the picture of the Accord, which revealed a distinct bumper
sticker on the rear of the car. 2
Trooper William Yeldell was one of the police officers
who received George’s e-mail. He patrolled the area around
Branmar Plaza on a daily basis and the e-mail prompted him
to pay particular attention to Branmar Plaza the following
morning, February 6, to see if the Accord would return. It
did, and he got a clear look at its occupants, but only when he
passed right in front of it, dressed in full uniform in an
unmarked police car. At that point, he made direct eye
contact with those individuals. He saw that the one in the
passenger seat was wearing glasses, a red or pink scarf, and a
white button-up shirt, and that the one in the driver’s seat was
a black male with facial hair and a black jacket over a purple
shirt. At trial, Yeldell identified the man in the passenger seat
as Foster and the man in the driver’s seat as Payton.
After passing in front of the Accord, Yeldell
communicated with other state troopers over the radio that he
would need assistance making a vehicle stop. He left the
parking lot to meet with the troopers responding to his radio
call and to put himself in a better position to make a safe stop.
In doing so, he lost sight of the Accord for less than a minute.
2
George’s e-mail, and the fact that she ran the
Accord’s license plate through a police database to discover
its stolen status, were only introduced during a pre-trial
suppression hearing. Trial testimony established that other
state troopers received an e-mail from George that contained
a picture of the Accord and, in summary, relayed that it was a
stolen car.
5
When the troopers returned to the parking lot, Yeldell noticed
one of the men he had seen was now standing outside of the
Accord. The second man was no longer in or near the car.
B. Foster-Specific Facts 3
Yeldell knew, with what he described as 100%
certainty, that the man outside of the car was the same one he
had observed in the Accord’s passenger seat. He testified that
he recognized the white button-up shirt and the “light red or
pink colored scarf.” (App. at 621.) That individual turned
out to be Foster.
After noticing that Foster was holding an object in his
hand, Yeldell pulled out his gun and ordered him to the
ground. Foster ran instead. He passed another trooper, who
shot him with a Taser. As he fell to the ground, “a hand gun
went flying through the air.” (App. at 623.) The troopers
attempted to subdue Foster, and, after a struggle, he was tased
a second time. The officers then placed him in handcuffs and
recovered a loaded .380 caliber black Smith & Wesson semi-
automatic pistol.
3
Facts contained in this subsection derive from trial
evidence and testimony.
6
Payton-Specific Facts 4
While Yeldell and other officers were detaining Foster,
Trooper Daniel McColgan responded to a radio call regarding
the Accord’s missing second occupant. He began a search of
the mixed commercial and residential area around Branmar
Plaza to locate the suspect, reported only as a black male.
McColgan had also received and read George’s e-mail from
the previous day, which noted that two potentially “armed
and dangerous” black men were observed in a stolen Honda
Accord at Branmar Plaza. (App. at 301.)
At around 10 o’clock in the morning, and within
approximately six minutes of receiving the alert about the
missing suspect, McColgan saw a black man, later identified
as Payton, walking along a road from the direction of
Branmar Plaza and about two-tenths of a mile from the
shopping center. He observed Payton holding a soda and
wearing a white skull cap, a dark jacket, and jeans. Payton
was walking “calmly down the street[.]” (App. at 235.)
McColgan, who was in an unmarked SUV but dressed in full
uniform, drove by him and they “basically both nodded at
each other.” (App. at 208.) The trooper did not stop because
he wanted to “see what kind of reaction” he would get from
Payton by driving by and did not want to approach a
potentially armed suspect alone. (App. at 209.) He continued
to monitor Payton for a little over four minutes. As he
did so, he radioed to ask if “anybody [had] a better
description … to work with” because, at that time, he knew
4
Facts contained in this subsection derive from
evidence and testimony proffered by the government during a
pre-trial suppression hearing.
7
simply that he was looking for a black male who had fled on
foot. (App. at 210-11.) Payton was the only pedestrian he
had seen in the search area matching the generic description
relayed over the radio.
McColgan testified that Payton was “just lackadaisical
walking down the street” and that it didn’t “seem like he[]
[was] going any place in particular.” (App. at 214.) He did
not observe Payton approach any stores or any other people.
Payton continued to walk beside the road at the same calm
pace. As McColgan watched Payton and maintained radio
contact with other officers who had arrived to assist him, he
told his fellow officers to continue searching the area “in case
this person was not the person we believe was involved in
this.” (App. at 221.) None of the officers, however, reported
seeing any pedestrians matching the general description of the
suspect.
Eventually, McColgan and his colleagues decided to
stop Payton. When they were in position to do so, McColgan
used his loudspeaker to tell Payton to put his hands on his
head. Payton promptly complied. The officers handcuffed
Payton, patted him down, and placed him in the back of
McColgan’s SUV. Payton did not have any weapons with
him. McColgan questioned him and learned that Payton did
not have identification, that he reported coming from the
“market up the street,” and that he was from Philadelphia.
(App. at 227-28.) What little identifying information Payton
chose to provide turned out to be false.
McColgan had fourteen years of experience patrolling
the area around Branmar Plaza. He acknowledged that he
was not familiar with all of the people who lived in that area
8
and that it was possible that Payton could have been a
resident of one of the developments nearby. McColgan
explained, however, that it was rare for pedestrians to be
walking on the side of the road where he saw Payton. It was
a 40 mile-per-hour road with no sidewalks at the location
where Payton was stopped. McColgan said that, in his
experience, only two pedestrians walked with any frequency
along that stretch – both white special needs adults. He
further testified that Payton was “new to the area” and
seemed to have “no rhyme or reason [for] where he was
going[.]” (App. at 225.) At the time McColgan stopped
Payton, he did not have a specific physical description of the
missing suspect or of the clothes the suspect was wearing.
After placing Payton in the back of his SUV,
McColgan drove him back to Branmar Plaza for
identification.
C. Search of the Accord 5
Following Foster’s and Payton’s apprehension, the
stolen Accord was transported to the state police’s “Evidence
Detection Unit.” (App. at 630.) A search of the car revealed
a loaded Hi-Point .9mm rifle, with a scope, inside a carrying
case on the back seat, along with multiple rolls of duct tape, a
pair of gloves, and a large drawstring bag. Trial testimony
later established that the Accord was stolen in December
2014 and that it did not contain the rifle, rolls of duct tape, or
5
The facts in this subsection are derived from trial
testimony and trial evidence.
9
gloves when it was stolen. No DNA or fingerprint evidence
connected Foster or Payton to the items found in the car.
D. Relevant Pre-Trial Evidentiary Rulings
The defendants filed several motions in limine,
challenging the admissibility of certain evidence and
testimony. 6 Two pre-trial rulings in particular are relevant on
appeal.
First, Payton sought to exclude evidence stemming
from what he argues was his unconstitutional stop and
detention. He asserted that McColgan did not have
reasonable suspicion to stop him when he was walking calmly
down the road. The government responded that the totality of
the circumstances provided reasonable suspicion for the stop.
The District Court concluded that McColgan had reasonable,
articulable suspicion to stop Payton, and thus did not exclude
any evidence on that ground. The Court explained that the
totality of the circumstances provided reasonable suspicion,
despite the vague description of the missing suspect. More
specifically, the Court highlighted that McColgan knew that a
potentially dangerous suspect had very recently fled on foot,
that he saw Payton within a defined search area in which no
other individuals matched the broad description of the
suspect, that Payton was stopped in close geographic
proximity to the last location the suspect was observed, and
that McColgan knew from experience that it was unusual to
6
Although the parties filed numerous motions in
limine, we discuss here only those motions and resulting
rulings that are the subject of this appeal.
10
see an unknown pedestrian walking in the area where he
spotted Payton.
Second, Foster and Payton both sought to exclude the
barbershop employees’ testimony concerning the events of
February 5, arguing that it was impermissible propensity
evidence, not relevant to the jury’s consideration of the crime
charged, and unduly prejudicial. The government responded
that the testimony constituted evidence of motive, properly
admissible pursuant to Federal Rule of Evidence 404(b). The
government argued that the testimony allowed it to “provide a
motive for Defendants’ gun possession” by demonstrating
that they were preparing to commit an armed robbery. (App.
at 34.) The District Court agreed with the government and
allowed the testimony to show motive. The Court further
reasoned that any prejudice to the defendants did not
outweigh the testimony’s probative value, which was relevant
to material facts (i.e., gun possession) that the government
had to prove to obtain convictions on the crimes charged.
The government was thus able to use the barbershop
employees’ testimony at trial to support its theory of the case,
arguing to the jury that the “case [was] about two days in a
row, two men, two guns, and a plot to commit a robbery.”
(App. at 505.)
E. Convictions and Sentencing Enhancements
Foster and Payton proceeded to a jury trial and were
each convicted of unlawful possession of a firearm by a felon,
in violation of 18 U.S.C. § 922(g)(1). Payton challenges the
sufficiency of the evidence underlying his conviction. Both
men challenge their resulting sentences.
11
Payton argues that the District Court erred by applying
a four-level enhancement pursuant to United States
Sentencing Guideline (“U.S.S.G.”) § 2K2.1(b)(6)(B). That
section provides for a sentencing enhancement when a
defendant uses a firearm in relation to another felony offense.
The enhancement was triggered by the District Court’s
determination that Payton was involved in a conspiracy with
Foster to commit robbery on the day he was arrested. Payton
timely objected, arguing that the evidence at trial was
insufficient for the government to prove, by a preponderance
of the evidence, that he was involved in any such conspiracy.
The Court rejected Payton’s argument and determined that
the government had satisfactorily shown use of the firearm at
issue “in connection with another felony offense, namely;
conspiracy to commit a robbery[.]” (App. at 1088.) The
Court explained, “I heard the evidence at trial. I think there is
no reasonable conclusion from the evidence other than the
two defendants were casing the business in the Branmar
Shopping Center with the intent to rob it.” (App. at 1088.)
Payton was sentenced to 37 months of incarceration.
Foster contends that the District Court erred by
applying the enhancement contained in U.S.S.G.
§ 2K2.1(c)(1) to increase his advisory guidelines range from
63-78 months to 210-262 months. Section 2K2.1(c)(1)
provides for a sentencing enhancement if a defendant used the
same gun associated with the offense of conviction in
connection with another offense. U.S.S.G. § 2K2.1(c)(1).
The District Court applied that enhancement because Foster’s
Presentence Report (“PSR”) concluded that he had used the
same pistol recovered during his Delaware arrest to commit a
12
string of robberies and a carjacking in Pennsylvania. 7 Foster
did not object to that enhancement during his sentencing
proceedings, and he was sentenced to 120 months of
incarceration, the statutory maximum.
II. Discussion 8
Five issues are presented on appeal. First, Payton
contends that the District Court erred by concluding that
McColgan had reasonable suspicion to stop and question him.
Second, both Foster and Payton challenge the Court’s
evidentiary ruling allowing the government to introduce the
barbershop employees’ testimony concerning the events of
February 5. Third, Payton argues that there was insufficient
evidence to support his conviction for constructive possession
of a firearm. Fourth, Payton asserts that the District Court
erred by applying U.S.S.G. § 2K2.1(b)(6)(B) to enhance his
sentence. Finally, Foster argues that the District Court erred
by applying U.S.S.G. § 2K2.1(c)(1) to enhance his sentence.
None of those challenges warrants changing the results of the
trial or sentencing proceedings.
7
Foster was convicted of those crimes after a jury trial
in the Eastern District of Pennsylvania. He challenged his
conviction in that case in a separate appeal. See United States
v. Foster, No. 17-1902 (3d Cir.).
8
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have appellate jurisdiction pursuant to 18 U.S.C.
§ 3742 and 28 U.S.C. § 1291.
13
A. There Was Reasonable Suspicion to Stop
Payton. 9
Payton argues that the District Court erred in denying
his motion to suppress evidence discovered as a result of
McColgan’s detaining him. He argues that McColgan did not
have reasonable suspicion to stop him because the only
identifying information available before the seizure was that a
black male had fled the Branmar Plaza parking lot. Although
Payton is correct that that was the only identifying
information, it was not the only relevant information known
to McColgan at the time he made the stop. We agree with the
District Court that the totality of the circumstances known to
McColgan, combined with his experience as a law
enforcement officer, provided him with reasonable,
articulable suspicion to stop Payton.
A law enforcement officer “may constitutionally
conduct a brief, investigatory stop and frisk … if he has a
reasonable, articulable suspicion that criminal activity is
afoot.” United States v. Graves, 877 F.3d 494, 498 (3d Cir.
2017) (quotation marks, editorial marks, and citation
omitted). Such a detention is often called a “Terry stop,”
after the well-known Supreme Court decision in Terry v.
Ohio, 392 U.S. 1 (1968). Reasonable suspicion must exist at
the time of a Terry stop. United States v. Brown, 448 F.3d
9“We review the District Court’s order granting a
motion to suppress for clear error with respect to the
underlying factual findings, but we exercise plenary review
over legal determinations.” United States v. Mallory, 765
F.3d 373, 381 (3d Cir. 2014) (quotation marks and citation
omitted).
14
239, 245 (3d Cir. 2006). Information acquired after the initial
seizure is not relevant to the reasonable suspicion analysis.
United States v. Goodrich, 450 F.3d 552, 559 (3d Cir. 2006).
To meet the reasonable suspicion standard, an officer needs
only “a minimal level of objective justification[.]” Illinois v.
Wardlow, 528 U.S. 119, 123 (2000). “The officer must be
able to articulate more than an inchoate and unparticularized
suspicion or hunch of criminal activity.” Id. at 123-24(internal quotation marks and citation omitted). And even a
stop “that is supported by reasonable suspicion … may
nonetheless violate the Fourth Amendment if it is excessively
intrusive in its scope or manner of execution.” United States
v. Johnson, 592 F.3d 442, 451 (3d Cir. 2010).
We afford significant deference to a law enforcement
officer’s determination of reasonable suspicion. Police are
allowed to utilize “their own experience and specialized
training to make inferences from and deductions about the
cumulative information available to them that might well
elude an untrained person.” Graves, 877 F.3d at 499 (internal
quotation marks and citation omitted). “[A] trained officer
may find reasonable suspicion ‘based on acts capable of
innocent explanation.’” Id. (citation omitted). “[W]e must
consider the totality of the circumstances, including the police
officer’s knowledge, experience, and common sense
judgments about human behavior.” United States v.
Robertson, 305 F.3d 164, 167 (3d Cir. 2002); see also
Graves, 877 F.3d at 498 (emphasizing that courts must look
to “the totality of the circumstances leading up to the moment
of the defendant’s seizure” when assessing reasonable
suspicion).
15
The facts relevant to our reasonable suspicion analysis
are not in dispute. On February 5, an e-mail was sent to
Delaware State Troopers referencing two potentially “armed
and dangerous” black men in a stolen Honda Accord at
Branmar Plaza. (App. at 301.) The following morning,
February 6, Yeldell observed two black men in the same car
and at the same location. When he and other troopers
approached the car, there was only one man, Foster, next to it.
After detaining Foster and discovering that he was armed,
Yeldell radioed to other police officers that the second
suspect was at large. The radio message did not provide any
precise description of the suspect, such as defining physical
traits or clothing. By way of physical description, the officers
receiving the radio alert knew only that they were looking for
a potentially armed black male leaving on foot from Branmar
Plaza.
Payton thus frames the issue at hand as a police officer
pulling over the first black man he saw after hearing a report
that a black suspect was at large. If viewed in isolation, we
agree that so general a description could not support
reasonable suspicion. Our case law is clear – “an excessively
general description … in the absence of corroborating
observations by the police[] does not constitute reasonable
suspicion[.]” Brown, 448 F.3d at 252; see also, e.g., United
States v. Arthur, 764 F.3d 92, 99 (1st Cir. 2014) (“Let us be
perfectly clear. Ubiquitous or vague physical descriptions …
, without more, are not enough to support reasonable
suspicion.”); United States v. Bailey, 743 F.3d 322, 349 (2d
Cir. 2014) (“[G]eneric descriptions of race, gender, and build,
without more, have been held insufficient to justify
reasonable suspicion.”). But we cannot and do not view that
description in isolation. We must view it in light of the
16
totality of the circumstances known to McColgan at the time
he made the stop and with due deference to his fourteen years
of experience patrolling the area surrounding Branmar Plaza.
The totality of the circumstances here includes the
following. McColgan received the radio call from Branmar
Plaza and quickly worked to coordinate a search perimeter
with other law enforcement officers. Within approximately
six minutes of receiving the alert, he observed a black male,
Payton, walking along a road and coming from the direction
of Branmar Plaza. Payton was walking calmly with a soda in
his hand. McColgan followed Payton for approximately four
minutes and observed him walk a short distance beyond the
commercial establishments towards a stretch of road with
only residences. At the time McColgan made the Terry stop,
no law enforcement officer had observed any other
pedestrians in the defined search area matching the suspect’s
description. The suppression hearing established that
McColgan was familiar with the area, that McColgan did not
recognize Payton as being from the area, that it was rare for
individuals to be walking along the stretch of road where
Payton was walking, that it was a relatively high-speed road
with no sidewalk at that point, and that the two people
McColgan did see from time to time walking along that
stretch of road were two white adults with special needs.
“[R]elevant circumstances” like those known to
McColgan can overcome a “vague and imprecise
description[.]” Goodrich, 450 F.3d at 553. We have
previously identified a non-exclusive set of four factors that
may cumulatively overcome a “general or indefinite
description,” namely, “(1) the reputation of the area [where]
the stop occurred …; (2) the time of day [the suspect was
17
stopped]; (3) the geographical and temporal proximity of the
stop to the scene of the alleged crime; and (4) the number of
persons in the area.” Id. at 560-61. Those points “must be
considered alongside any other relevant factors[.]” Id. at 561.
The prior experience of the officer conducting the stop can
serve to strengthen or weaken the weight afforded to any
particular factor or factors.
A mid-morning stop in a residential area with no
reported reputation for criminal activity can weigh against a
reasonable suspicion determination. See id. (explaining that
constitutional concerns arise when “the police perform a
Terry stop in an otherwise tranquil neighborhood during the
daylight hours based only on a general description”). But we
do not ignore context. McColgan knew that a potentially
armed suspect had just fled from a nearby stolen vehicle. The
trooper observed Payton within a defined search area set up to
locate the missing suspect. He saw Payton very soon after the
suspect was reported missing and within two-tenths of a mile
of the stolen car. After locating Payton within close
geographic and temporal proximity of the last sighting of the
suspect, McColgan confirmed with other officers that no
other pedestrian matching the description, generic as it was,
had been observed in the search area.
On top of the facts he learned that day, McColgan’s
fourteen years of experience patrolling the area around
Branmar Plaza must be accounted for when weighing whether
it was reasonable for him to view Payton’s presence as
suspicious. Deference is owed McColgan’s knowledge that it
was rare to see anybody other than two white special needs
adults walking along the stretch of road where Payton was
stopped. Although an untrained person not familiar with the
18
area might have viewed Payton’s behavior as unremarkable,
McColgan’s experience gave him reason to think otherwise.
When he ultimately stopped Payton, he was acting on more
than an inchoate hunch of criminal activity premised on an
individual matching a generic description.
The geographic and temporal proximity of Payton to
the stolen car and the lack of any other suspect matching the
general description of the suspect, along with McColgan’s
long experience and familiarity with the area, combine to
show there was indeed constitutionally sufficient, reasonable,
and articulable suspicion to stop Payton, even if the stop did
occur mid-morning in a relatively crime-free area. Cf. United
States v. Quinn, 812 F.3d 694, 699 (8th Cir. 2016) (“We have
held that generic suspect descriptions and crime-scene
proximity can warrant reasonable suspicion where there are
few or no other potential suspects in the area who match the
description.”); Arthur, 764 F.3d at 98 (explaining that a law
enforcement officer was entitled to rely on generic
descriptions of two suspects “in combination with other
clues” such as “the suspects’ close proximity to the crime
scene, the direction in which the men were headed, and the
dearth of others in the critical … area”). 10
10
Payton argues that our decision in United States v.
Brown, 448 F.3d 239 (3d Cir. 2006), compels us to conclude
otherwise. We disagree. Brown involved an unreliable
location tip and a generic description of two suspects, which
led a police officer to stop two black males simply because
they were the only two black males at the given location. Id.
at 241-43, 248-51. Because of those factors, we held that the
generic descriptions provided to the police did not give rise to
reasonable suspicion. Id. at 252. In short, the totality of the
19
Payton further argues, however, that his Terry stop
was not reasonable as conducted because he was handcuffed
and transported back to Branmar Plaza for identification
purposes. A Terry stop must be “minimally intrusive” and
tailored by police to “diligently pursue[] a means of
investigation that [is] likely to confirm or dispel their
suspicions quickly[.]” United States v. Sharpe, 470 U.S. 675,
685-86 (1985) (citation omitted). The reasonableness of a
Terry stop’s scope is case-specific and, again, judged by the
totality of the circumstances. Johnson, 592 F.3d at 452.
Although Payton claims that the officers made “no attempt to
investigate or use less intrusive means to determine if Mr.
Payton was involved in the Branmar Plaza incident” (Payton
Opening Br. at 47), he has suggested no alternative means the
officers could have used and cites no legal authority
supporting his position that the officers’ actions were
unreasonable under the circumstances.
Here, the officers conducting the Terry stop had
received an alert that a potentially armed suspect was
missing. Placing Payton in handcuffs while confirming that
he was not armed and dangerous was not outside the scope of
a reasonable Terry stop. See Johnson, 592 F.3d at 448(explaining that “placing a suspect in handcuffs while
securing a location or conducting an investigation [does not]
automatically transform an otherwise-valid Terry stop” into
an unreasonable Terry stop). Nor was it unreasonable to
transport Payton the very short distance back to Branmar
Plaza. See United States v. McCargo, 464 F.3d 192, 198 (2d
circumstances in Brown was insufficient to overcome the
generic description of the suspects. That is not the case here.
20
Cir. 2006) (“[I]n some circumstances, police may transport a
suspect short distances in aid of a Terry stop.”). Yeldell was
still there and it was appropriate to bring Payton to him since
that was the course of action most “likely to confirm or dispel
their suspicions quickly[.]” Sharpe, 470 U.S. at 686. Thus,
McColgan and his colleagues acted within the scope of a
proper Terry stop.
Accordingly, we will affirm the District Court’s denial
of Payton’s motion to suppress evidence obtained as a result
of the Terry stop.
B. The District Court Did Not Abuse Its
Discretion When It Permitted the
Barbershop Employees’ Testimony Pursuant
to Rule 404(b). 11
The District Court allowed the government to
introduce the barbershop employees’ testimony regarding
11
We review a district court’s evidentiary rulings for
an abuse of discretion. United States v. Repak, 852 F.3d 230,
240 (3d Cir. 2017). “An abuse of discretion occurs only
where the district court’s decision is arbitrary, fanciful, or
clearly unreasonable—in short, where no reasonable person
would adopt the district court’s view.” United States v.
Green, 617 F.3d 233, 239 (3d Cir. 2010) (quotation marks
and citation omitted). We exercise plenary review over a
district court’s interpretation of the Federal Rules of
Evidence, which includes “whether evidence falls within the
scope of Rule 404(b).” United States v. Steiner, 847 F.3d
103, 110-11 (3d Cir. 2017) (citation omitted).
21
their observations on February 5 of the men in the Honda
Accord, over Foster’s and Payton’s objections that the
testimony was speculative, not relevant to the events of
February 6, and unduly prejudicial. We discern no error in
that decision.
Rule 404(b) precludes a party from introducing
“[e]vidence of a crime, wrong, or other act … to prove a
person’s character,” but permits the introduction of such
evidence if it is used “for another purpose, such as proving
motive[.]” Fed. R. Evid. 404(b). We have been clear that
“Rule 404(b) is a rule of general exclusion, and carries with it
no presumption of admissibility.” United States v. Caldwell,
760 F.3d 267, 276 (3d Cir. 2014) (quotation marks and
citation omitted). It “must be applied with careful precision,
and … evidence of a defendant’s prior bad acts is not to be
admitted unless both the proponent and the District Court
plainly identify a proper, non-propensity purpose for its
admission.” Id. at 274.
The proponent of Rule 404(b) evidence carries the
burden to meet a four-step test: “(1) the other-acts evidence
must be proffered for a non-propensity purpose; (2) that
evidence must be relevant to the identified non-propensity
purpose; (3) its probative value must not be substantially
outweighed by its potential for causing unfair prejudice to the
defendant; and (4) if requested, the other-acts evidence must
be accompanied by a limiting instruction.” United States v.
Repak, 852 F.3d 230, 241 (3d Cir. 2017). Foster and Payton
declined a limiting instruction on the basis that no such
instruction could “be crafted that would not tend to
legitimatize the fact that there may have been a robbery
22
planned.” (App. at 503.) Accordingly, we address only the
first three elements of Rule 404(b)’s admissibility test.
1. Non-Propensity Purpose
Evidence of uncharged wrongful acts satisfies the non-
propensity step for Rule 404(b) admissibility when it is
admitted for a purpose “that is ‘probative of a material issue
other than character.’” United States v. Green, 617 F.3d 233,
250 (3d Cir. 2010) (quoting Huddleston v. United States, 485
U.S. 681, 686 (1988)). Simply invoking a non-propensity
purpose “does not magically transform inadmissible evidence
into admissible evidence.” Caldwell, 760 F.3d at 276
(citation omitted). Rather, the testimony concerning other
acts must “materially advance the prosecution’s case.”
United States v. Brown, 765 F.3d 278, 291 (3d Cir. 2014). In
determining whether it does so, “courts should consider the
material issues and facts the government must prove to obtain
a conviction.” Caldwell, 760 F.3d at 276 (quotation marks
and citation omitted).
The District Court ruled the barbershop employees’
testimony admissible primarily because the Court considered
it as proper proof of motive under Rule 404(b). It observed
that “[n]umerous courts of appeals, including the Third
Circuit, have concluded that Rule 404(b) other acts evidence
is admissible to show motive in § 922(g)(1) cases[.]” (App.
at 36); see United States v. Lee, 612 F.3d 170, 187 n.19 (3d
Cir. 2010) (explaining in a felon-in-possession case that “it is
highly relevant to show that a defendant had a motivation to
commit the crime for which he is being charged”). In
particular, it explained that allowing the testimony advanced
the government’s case because it supported the government’s
23
“‘casing businesses’ motive, which in turn [made] it more
likely that [Foster and Payton] each possessed a firearm on
February 6, 2015.” (App. at 36); see also Brown, 765 F.3d at
291-92 (explaining that the government must prove that “the
defendant knowingly possessed the firearm” to obtain a
conviction under § 922(g)(1)).
While they obviously deny any illicit motive, neither
Foster nor Payton suggests that the District Court erred in
determining that motive was a proper non-propensity purpose
for admitting testimony under Rule 404(b), and we too are
persuaded that the government satisfied the first element of
Rule 404(b)’s admissibility test.
2. Relevance
In addition to identifying a proper purpose, the
proponent of Rule 404(b) testimony must establish the
relevance of the evidence to that purpose. Brown, 765 F.3d at
292. That requires the proponent to demonstrate how the
proffered evidence fits into a logical chain of inferences, no
link “of which is the inference that the defendant has a
propensity to commit [the] crime.” United States v. Steiner,
847 F.3d 103, 111 (3d Cir. 2017) (citation omitted). The
proponent must also show that the proffered evidence would
allow a “jury [to] reasonably conclude that the [prior] act
occurred and that the defendant was the actor.” Huddleston,
485 U.S. at 689. In determining whether a jury could
reasonably reach such a conclusion, we “examine[] all the
evidence in the case” because “[i]ndividual pieces of
evidence, insufficient in themselves to prove a point, may in
cumulation prove it.” Id. at 690-91. At bottom, “[r]elevance
is a relationship between the evidence and a material fact at
issue which must be demonstrated by reasonable inferences
24
that make a material fact more probable or less probable than
it would be without the evidence.” United States v. Sampson,
980 F.2d 883, 888 (3d Cir. 1992).
Foster and Payton argue that the barbershop
employees’ testimony was not relevant because it was purely
speculative, failed to identify either Foster or Payton as being
present in the Accord on February 5, and required the jury to
make an impermissible inference that “suspicious” black
males have the propensity to possess firearms. They
presented similar arguments to the jury, contending that the
testimony concerning February 5, which did not identify
either defendant, had no relevance to the events of February 6
and should be afforded no weight. That perfectly legitimate
litigation strategy does not, however, dictate whether
evidence meets Rule 404(b)’s relevancy requirement. Id.That determination is made by assessing whether, viewed in
the context of all the evidence in the case, the Rule 404(b)
evidence made a material fact more or less probable.
Here, the District Court’s ruling laid out the logical
chain of inferences explaining why the barbershop
employees’ testimony made it more probable that Foster and
Payton each possessed a gun on February 6. As the Court
explained, testimony concerning the events of February 5,
viewed with other evidence in the case, showed that (i) two
black males in a silver Honda Accord were “scoping out”
Branmar Plaza on February 5; (ii) the suspicious activity
prompted barbershop employees to photograph the car and its
license plate and to contact police; (iii) police discovered that
the Accord had been stolen; (iv) Trooper Yeldell later
observed the same stolen Accord in the same parking lot
“with two black male occupants who appeared to be
25
feverishly looking about the shopping center”; (v) law
enforcement then found Foster outside of the Accord with a
gun on his person; and (vi) a search of the Accord revealed an
additional firearm on the back seat. (App. at 35-36 (quotation
marks and citations omitted).) No step in that chain of
inferences required an impermissible inference about the
defendants’ propensity to possess firearms. Rather, it helped
establish the defendants’ motive for possessing firearms on
February 6. Moreover, evidence at trial established that
Yeldell identified Payton as the driver of the stolen Accord on
February 6, Foster as the passenger, and that items commonly
used when committing a robbery were found in the car.
One can imagine a scenario in which two men show up
in a small shopping plaza parking lot in a stolen car and case
the stores in a way that arouses suspicion, and then, one day
later, two different men do the exact same thing at the same
place in the same car. That is a stretch, but imaginable. Yet
the totality of the evidence was certainly sufficient to allow a
jury to reasonably conclude that Foster and Payton were the
individuals in the Accord on February 5, and hence the
barbershop employees’ testimony had relevance to motive.
There was no error in the District Court’s conclusion that the
government met the second element of Rule 404(b)’s
admissibility test.
3. Undue Prejudice
Rule 404(b) evidence must also meet Rule 403’s
balancing test. Steiner, 847 F.3d at 111. Rule 403 instructs
courts to exclude evidence “if its probative value is
substantially outweighed by a danger of … unfair prejudice,
confusing the issues, [or] misleading the jury[.]” Fed. R.
26
Evid. 403. “[W]hen evidence is highly probative, even a
large risk of unfair prejudice may be tolerable.” United States
v. Bailey, 840 F.3d 99, 119 (3d Cir. 2016) (quotation marks
and citations omitted). We afford significant deference to a
trial court’s Rule 403 evidentiary rulings, United States v.
Finley, 726 F.3d 483, 491 (3d Cir. 2013), and we agree with
the District Court here that the prejudicial effect of the
barbershop employees’ testimony on Foster or Payton did not
substantially outweigh its probative value.
The testimony in question was significant as to both
Foster and Payton because it supported the government’s
theory that the defendants had a motive to possess firearms on
February 6. At trial, Foster contested the government’s
assertion that he had actual possession of a gun on
February 6. He said that law enforcement officers falsely
testified that a gun flew out of his hand, and that the police
had planted the gun at the scene. Given that defense, the
government was entitled to rebut Foster’s argument by
presenting evidence of his motive for possessing a gun that
day. See Lee, 612 F.3d at 187 n.19 (“In a case like this,
where [the defendant] is asserting that he never had a gun on
the day in question, it is important to know that he had a
personal motivation to possess a gun.”).
The government’s constructive possession case against
Payton, meanwhile, required it to prove that he had
knowledge of the rifle found on the back seat of the Accord.
Brown, 765 F.3d at 292. We have recognized that
“[e]vidence of knowledge … is critical in constructive
possession cases[.]” Id. (some alterations in original). The
government’s use of the barbershop employees’ testimony to
demonstrate that Payton was motivated to possess a gun on
27
February 6, and therefore had knowledge of its existence on
the back seat of the car he was seen driving, was key to the
government’s constructive possession case against Payton.
Cf. Lee, 612 F.3d at 186-87 (explaining that knowledge was
not a critical part of a case against the defendant because the
trial was not about whether the defendant “knew that he had a
rifle in the back seat of his [car]”).
Foster argues that the barbershop employees’
testimony, and the government’s reliance on that testimony
throughout the trial, could have misled the jury into
convicting the defendants for conspiring to commit robbery,
when they were only charged with unlawful possession of a
firearm. We do not share that concern. The verdict sheet
explicitly referenced the charged offenses – unlawful
possession of a firearm by a felon – and the District Court,
referencing that form, instructed the jury to convict if they
found “that the government ha[d] proved either of the
defendants guilty on [that] charge beyond a reasonable
doubt[.]” 12 (App. at 938.) That instruction was clear, and we
presume it was followed. Richardson v. Marsh, 481 U.S.
200, 211 (1987); United States v. Hodge, 870 F.3d 184, 205
(3d Cir. 2017). The District Court thus did not err in its
conclusion that the government met the third element of Rule
404(b)’s admissibility test.
In sum, the Court made a reasonable determination to
admit the barbershop employees’ testimony because that
12
The Court’s instructions and verdict sheet made
clear that the jury was to consider the evidence as to each
defendant individually.
28
evidence was introduced to prove motive, was relevant, was
highly probative, and was not unduly prejudicial.
C. Sufficient Evidence Supported the Jury’s
Verdict Against Payton. 13
The government presented sufficient evidence during
the trial for a rational jury to convict Payton of constructive
possession of a firearm by a felon, in violation of 18 U.S.C. §
922(g)(1). Payton’s argument that the government relied on
nothing but his proximity to the rifle found on the Accord’s
back seat to prove constructive possession ignores
circumstantial evidence connecting him to the rifle.
Section 922(g)(1) required the government to prove
beyond a reasonable doubt that “(1) [Payton] ha[d] been
convicted of a crime of imprisonment for a term in excess of
one year; (2) [Payton] knowingly possessed the firearm; and
(3) the firearm traveled in interstate commerce.” United
States v. Huet, 665 F.3d 588, 596 (3d Cir. 2012). Payton
stipulated to the first and third elements, so the only element
at issue was whether he knowingly possessed the gun found
13
When reviewing a sufficiency-of-the-evidence
challenge to a jury verdict, “[w]e review the evidence in the
light most favorable to the government. We do not reweigh
the evidence or assess witness credibility.” Hodge, 870 F.3d
at 204 (citation omitted). Our sole task is to determine
“whether the jury’s verdict is permissible.” Id. (citation
omitted). Our governing standard is “whether ‘a rational trier
of fact could have found the defendant guilty beyond a
reasonable doubt, and the verdict is supported by substantial
evidence.’” Id. (brackets and citation omitted).
29
in the Accord. Because he was not found in actual possession
of a firearm, the government’s case against him proceeded on
a constructive possession theory. See Caldwell, 760 F.3d at
278 (explaining that the government can prove a § 922(g)(1)
conviction in two ways: actual possession or constructive
possession). “Constructive possession may be proved by
circumstantial evidence.” United States v. Iglesias, 535 F.3d
150, 156 (3d Cir. 2008).
To establish that Payton had constructive possession of
the rifle, the government had to demonstrate that he knew of
the rifle and that “he exercised dominion or control over the”
Accord’s back seat. Caldwell, 760 F.3d at 278; see also
United States v. Iafelice, 978 F.2d 92, 96 (3d Cir. 1992)
(“Constructive possession exists if an individual knowingly
has both the power and the intention at a given time to
exercise dominion or control over a thing, either directly or
through another person or persons.” (quotation marks and
citation omitted)). Factors we have considered when
determining whether the government has proven dominion or
control include “evidence that the defendant attempted to hide
or to destroy the contraband, … that the defendant lied to
police about his identity,” and the defendant’s proximity to
the prohibited item. United States v. Jenkins, 90 F.3d 814,
818 (3d Cir. 1996) (citation omitted); see also United States
v. Walker, 545 F.3d 1081, 1088 (D.C. Cir. 2008) (“Proximity
to a weapon, coupled with some other factor such as
connection with a gun, proof of motive, a gesture implying
control, evasive conduct, or a statement indicating
involvement in an enterprise may suffice to show dominion
and control over a weapon.” (quotation marks and citation
omitted)). Constructive possession cannot be proven by
proximity alone; there must be “other proof” linking the
30
defendant to the prohibited item. Jenkins, 90 F.3d at 820;
accord United States v. Benjamin, 711 F.3d 371, 376-77 (3d
Cir. 2013).
Contrary to Payton’s argument, the evidence before
the jury sufficiently established the “other proof” necessary to
show dominion or control. A barbershop employee observed
two suspicious black males in a silver Honda Accord on
February 5, whom he perceived to be “up to no good.” (App.
at 544-45.) The following morning, on February 6, Yeldell
observed Payton in the driver’s seat of that same car in the
Branmar Plaza parking lot, a car that police by then knew was
stolen. A subsequent search of the car revealed a gun case
containing a rifle in plain view on the back seat. The search
also revealed rolls of duct tape, gloves, and a drawstring bag.
After Payton saw police arrive at Branmar Plaza, he fled the
scene, and after he was stopped, he provided false
identification information to the police.
Viewed in the light most favorable to the government,
that evidence demonstrated more than just Payton’s proximity
to the rifle. The government set forth a plausible motive for
Payton to possess the gun – armed robbery – that was
supported by the items recovered from the Accord. The
evidence also established Payton’s evasive conduct, and
Yeldell’s testimony that he saw Payton in the driver’s seat of
the Accord further supported a finding that Payton exercised
dominion or control over the interior of the Accord, see
Walker, 545 F.3d at 1088 (stating that drivers are “held to a
higher level of accountability for” contraband found in a car)
(citation omitted).
31
Accordingly, we will not disturb the jury verdict
convicting Payton of unlawful possession of a firearm.
D. Payton’s Sentence Was Properly Enhanced
Pursuant to U.S.S.G. § 2K2.1(b)(6)(B). 14
Payton argues that the District Court erred in
applying the § 2K2.1(b)(6)(B) enhancement after it concluded
that he used a firearm in connection with another felony
offense. He contends that the evidence presented during trial
and at sentencing was insufficient to show he was involved in
an offense separate from his gun possession conviction
because the barbershop employees’ testimony did not identify
him as being present on February 5. The District Court saw it
differently, and so do we.
At this point, we are not dealing with a “beyond a
reasonable doubt” standard. “The government bears the
burden of proving by a preponderance of the evidence that a
sentencing enhancement applies,” United States v. Napolitan,
762 F.3d 297, 309 (3d Cir. 2014), and the evidence used at
sentencing is “subject to a due process standard of
reliability.” United States v. Paulino, 996 F.2d 1541, 1547
(3d Cir. 1993); see also United States v. Roman, 121 F.3d
136, 141 (3d Cir. 1997) (explaining that the government can
only meet its “burden by presenting reliable and specific
evidence” (citation omitted)).
14
“[W]e review the District Court’s interpretation of
the Sentencing Guidelines de novo,” “findings of fact for
clear error[,]” and “application of the [g]uidelines to facts for
abuse of discretion.” United States v. Kluger, 722 F.3d 549,
555 (3d Cir. 2013) (citations omitted).
32
Section 2K2.1(b)(6)(B) provides, in relevant part, for
an enhancement “[i]f the defendant … used or possessed any
firearm … in connection with another felony offense[.]”
U.S.S.G. § 2K2.1(b)(6)(B). A sentencing court can apply the
§ 2K2.1(b)(6)(B) enhancement only if it determines that a
defendant “[u]sed or possessed any firearm or ammunition in
connection with another felony offense.” United States v.
Harris, 751 F.3d 123, 127-28 (3d Cir. 2014) (alteration in
original). In making that determination, courts can consider
relevant and reliable “information without regard to its
admissibility under the rules of evidence applicable at trial[.]”
U.S.S.G. § 6A1.3. The District Court applied that
enhancement after finding that Payton was conspiring with
Foster to rob a store in Branmar Plaza on the morning of
February 6, the day of his arrest. For purposes of the
enhancement, the Court did not “think it matter[ed] whether
[Payton] was present” on February 5 (App. at 1083), because
it determined that the totality of the circumstances led to “no
reasonable conclusion … other than the two defendants were
casing the business in the Branmar Shopping Center with the
intent to rob it,” (App. at 1088). Moreover, the evidence
established by a preponderance that his co-conspirator,
Foster, was present on both February 5 and February 6 to case
stores in Branmar Plaza. In addition, the Court referred to
video surveillance evidence not admitted at trial, but that was
properly considered at sentencing, that Foster was also at
Branmar Plaza on January 19 casing businesses. Then, on
February 6, Payton and Foster were sitting in a stolen car in
the same shopping center parking lot, with “no apparent
reason” for being there and with “almost nothing with them
other than useful tools for a robbery, including the two loaded
weapons, the backpack along with the two rolls of duct tape,
33
[and] the gloves[.]” (App. at 1089.) And, as the Court
highlighted, Payton fled the scene on February 6 after
“realiz[ing] the police were there.” (App. at 1089.)
Payton has not pointed to anything in the record
disputing the accuracy of the findings described above or to
any evidence leaving us “with the definite and firm
conviction that a mistake has been committed.” United States
v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (citation omitted).
We therefore conclude that the District Court’s factual
findings were not clearly erroneous and there was no error
when it applied § 2K2.1(b)(6)(B) to enhance Payton’s
sentence.
34
E. The District Court Did Not Plainly Err
When It Enhanced Foster’s Sentence
Pursuant to U.S.S.G. § 2K2.1(c)(1). 15
Similarly, the District Court did not commit plain error
when it enhanced Foster’s sentence pursuant to U.S.S.G.
§ 2K2.1(c)(1). That guideline provides, in relevant part, for
an enhancement “[i]f the defendant used or possessed any
firearm … cited in the offense of conviction in connection
with the commission or attempted commission of another
offense[.]” U.S.S.G. § 2K2.1(c)(1). Section 2K2.1(c)(1) was
amended in 2014 to limit its application only to instances in
which the defendant used the exact same firearm “cited in the
offense of conviction” in connection with another offense.
U.S.S.G. Supp. to App. C, Amend. 784, Reason for
Amendment.
15
We apply plain error review to Foster’s appeal of
the § 2K2.1(c)(1) enhancement because he did not preserve
his objection below. Under plain error review, an appellate
court can correct an error not raised at trial where (1) the
district court erred; (2) the error was clear or obvious; and
(3) the “error ‘affected the appellant’s substantial rights,’”
which typically means that there is a reasonable probability
that the error affected the outcome of the proceedings. United
States v. Stinson, 734 F.3d 180, 184 (3d Cir. 2013) (quoting
Puckett v. United States, 556 U.S. 129, 135 (2009)). If those
three conditions are met, we then have discretion to remedy
the error, and we exercise this discretion “only if the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (quoting Puckett, 556 U.S. at 135(alteration omitted)).
35
Foster contends that the government did not meet its
burden to introduce reliable evidence sufficient to support the
§ 2K2.1(c)(1) enhancement. It is well established, though,
“that a sentencing court may rely on the facts set forth in the
presentence report when their accuracy is not challenged by
the defendant.” United States v. Watkins, 54 F.3d 163, 166-
67 (3d Cir. 1995); see also Fed. R. Crim. P. 32(i)(3)(A) (“At
sentencing, the court … may accept any undisputed portion of
the presentence report as a finding of fact[.]”).
Foster argues that the District Court erred when it
applied the § 2K2.1(c)(1) enhancement because it relied “on
an unsupported and unsupportable assertion in the [PSR].”
(Foster Opening Br. at 13.) His argument depends primarily
on a line of cases from the United States Court of Appeals for
the Fifth Circuit holding that “[b]ald, conclusionary
statements do not acquire the patina of reliability by mere
inclusion in the PSR.” United States v. Elwood, 999 F.2d
814, 817-18 (5th Cir. 1993). 16 That authority is
16
See also United States v. Zuniga, 720 F.3d 587, 591
(5th Cir. 2013) (“If the factual recitation [in the PSR] lacks
sufficient indicia of reliability, then it is error for the district
court to consider it at sentencing—regardless of whether the
defendant objects or offers rebuttal evidence.” (alteration in
original) (citation omitted)); United States v. Taylor, 277 F.3d
721, 724 (5th Cir. 2001) (“The PSR … cannot just include
statements, in the hope of converting such statements into
reliable evidence, without providing any information for the
basis of the statements.” (citation omitted)); United States v.
Shacklett, 921 F.2d 580, 584 (5th Cir. 1991) (explaining that
a probation officer’s unsupported assertion in a PSR as to
drug quantity amount had “no indicia of reliability,”
36
distinguishable, however, because each of those cases
involved either a defendant who had objected to factual
assertions contained in the relevant PSR or a PSR containing
unsupported factual assertions. The Fifth Circuit has itself
stressed that, “[g]enerally, a PSR bears sufficient indicia of
reliability to permit the district court to rely on it at
sentencing. … [T]he defendant has the burden to show that
the information relied on in a PSR is inaccurate.” United
States v. Taylor, 277 F.3d 721, 724 (5th Cir. 2001) (internal
citation omitted). Unlike the cases Foster cites, Foster did not
object to the factual statements contained in the relevant
PSRs, and the record contains sufficient evidence to support
the District Court’s determination – by a preponderance of the
evidence – that the gun recovered during Foster’s arrest in
Delaware was the same gun used during robberies and a
carjacking he committed in Pennsylvania.
The PSR stated that the Smith & Wesson .380 caliber
semi-automatic pistol gun seized at Branmar Plaza was the
same gun as the one Foster used during those earlier crimes.
Foster did not object to that conclusion during his sentencing
proceedings but on appeal characterizes it as unsupportable.
He argues that the PSR in this case relied on the PSR
prepared in connection with his Eastern District of
Pennsylvania convictions and that that underlying PSR only
identifies the gun used in Pennsylvania as being consistent
with, rather than the same as, the one recovered in Delaware.
Although Foster is correct on that point, the conclusion that
the Smith & Wesson recovered in Delaware was the same
especially since the defendant objected to the PSR’s drug
quantity conclusion).
37
gun used in the Pennsylvania crimes is supported by at least
three categories of direct and circumstantial evidence.
First, a relatively short time separated the crimes
Foster committed in Pennsylvania, which took place in
November and December 2014, from his Delaware arrest in
February 2015. It is not unreasonable to conclude that Foster
used the same gun over that time period and kept it in his
possession to perpetrate future crimes. Second, there is
surveillance video from each of the Pennsylvania robberies
that allows the conclusion that the gun used in those crimes
and the gun recovered in Delaware are the same. Third,
although the victims of the robberies could not identify with
certainty that the gun recovered in Delaware – and later
shown to each of them during the Eastern District of
Pennsylvania trial – was the same gun they were confronted
with when robbed, they each agreed that the gun looked
similar. 17 Those facts, coupled with Foster’s failure to object
17
Victim Kumar testified that he could not be sure
that it was the same gun, but that “it looks like to me it’s the
same gun. But I can’t tell you for 100 percent because I was
so scared that day.” (App. at 1025.) Victim Kabatt testified
that, although he agreed the guns were “similar,” he could not
know for sure because he was scared and the perpetrator’s
hands obscured his view of the gun. (App. at 1028.) Victim
Singh testified that the gun “could be [the same] because it’s
kind of [the] same size,” but that he was not sure because the
robbery had taken place a year-and-a-half prior and he had
not thought “about that incident again since then.” (App. at
1034.) Victim Borkowski testified that the gun looked
“similar in size and color,” (App. at 1038,) but he could not
say for certain that it was the same gun.
38
to the PSR during his sentencing proceedings before the
District Court, lead us to conclude that the District Court did
not plainly err by applying § 2K2.1(c)(1) to enhance Foster’s
sentence.
III. Conclusion
For the foregoing reasons, we will affirm Foster’s and
Payton’s convictions and sentences.
39