United States v. Spivey , 127 F. App'x 30 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
3-22-2005
USA v. Spivey
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2057
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"USA v. Spivey" (2005). 2005 Decisions. Paper 1439.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1439
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
NO. 04-2057
____________
UNITED STATES OF AMERICA
v.
LAWRENCE SPIVEY,
a/k/a Darryl Spivey
Lawrence Spivey,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 03-cr-00562-1)
District Judge: The Honorable Michael M. Baylson
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 8, 2005
BEFORE: SCIRICA, Chief Judge, and ROTH and VAN ANTWERPEN, Circuit Judges,
(Filed March 22, 2005 )
OPINION
VAN ANTWERPEN, Circuit Judge,
Appellant Lawrence Spivey appeals his conviction and sentence imposed by the
District Court (Baylson, J.) on two grounds. Spivey first claims that the police stopped
and frisked him without reasonable suspicion in violation of his Fourth Amendment
rights. Second, Spivey claims that his sentence violated his rights under the Sixth
Amendment because the District Court applied sentencing enhancements based on a
judicial determination of facts not charged in the indictment, admitted by the defendant,
or found beyond a reasonable doubt. For the reasons set forth below, we affirm the
conviction, vacate the sentence, and remand for resentencing.
I. FACTUAL AND PROCEDURAL HISTORY
A. Facts Relevant to the Suppression Claim
On June 24, 2002, at approximately 5:50 pm, two Philadelphia police officers
drove past Spivey on the 6200 block of Belfield Street and, according to their testimony,
thought that he resembled Aaron Thomas, a man who was wanted by the FBI and the
Philadelphia Police Department for bank robbery. The officers were carrying with them a
“wanted flyer” containing a color photograph of Thomas’ head, shoulders, and face. The
flyer also gave a limited verbal description of Thomas, listing his race (“black”), sex
(“male”), weight (“180”), height (“5'9"”), hair color (“black”), age (“23”), and date of
birth (“4/11/79”). The flyer also stated:
Thomas is wanted for the robbery of the Citizens Bank 6234 Stenton Ave.
on 4/29/02. His last known addresses are 545 E. Mayland St. and 538
Tulpehocken St. Thomas may frequent the areas of Chew and Washington
Lane and Musgrave St. and Washington Lane. He has previous VUFA
arrests and should be considered armed and dangerous.
After driving past Spivey and agreeing that he resembled Thomas, the officers
2
circled the block to return to where they had initially seen him. While circling the block,
one of the officers looked again at the wanted flyer. They then saw Spivey walking away
from the spot where they had initially seen him and towards the intersection of Belfield
Street with Mayland Street and Chew Avenue.
The officers got out of their car and, while Spivey was 15-20 feet away from them,
asked him to speak with them. Spivey paused, sighed, looked around, and stated, “I
didn’t do anything.” App. at 54, 89. One of the officers explained that he was looking
for someone in the area, and Spivey replied, “It’s not me.” Id. at 90. The officers then
asked for identification, and Spivey responded that he did not have any and walked
towards the officers. According to their testimony, the officers believed that Spivey was
an armed and dangerous robbery suspect, so they decided to “pat[] him down for
weapons.” Id. at 91. Spivey complied when the police asked him to place his hands on
the patrol car, and one of the officers frisked him. The frisk uncovered a gun in Spivey’s
back pocket.
On September 2, 2003, Spivey was charged in a one-count indictment with being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On October 3,
2003, Spivey moved to suppress the gun on the grounds that the police did not have
reasonable suspicion to stop and frisk him. He argued that his appearance did not
sufficiently match the description or photograph of Aaron Thomas to give rise to a
reasonable suspicion.
3
After a December 5, 2003, suppression hearing, the District Court agreed that
Spivey’s appearance was different from the photograph of Aaron Thomas in several
respects. For instance, the picture showed Thomas to have a dark complexion, whereas
Spivey has a more medium complexion. In addition, Spivey is bald, and the photo
showed Thomas with a full head of hair. One of the officers also acknowledged that
Spivey has narrower eyebrows than Thomas did in the photograph. Spivey also has a
small scar under his left eye, and there was no similar scar visible in the photograph of
Aaron Thomas. Most significant, however, was the difference in weight between Thomas
and Spivey. The flyer listed Thomas’ weight as 180 pounds, and Spivey stated that he
weighed 230 pounds.
On the other hand, the District Court noted several similarities between Spivey and
the information contained on the flyer. The two men had similar heights (Spivey is 5'8")
and are close to the same age (Spivey was 28 years-old at the time). Spivey’s facial hair
was also similar to Thomas’ facial hair in the photograph. The most significant similarity
between Spivey and the photo of Thomas is that they both have “fairly full” and “round
faces.” Id. at 132. Furthermore, the officers encountered Spivey in an area where
Thomas was known to frequent, according to the flyer.
The District Court also credited the testimony of the two officers and accepted the
government’s reasons for discounting the differences between Spivey’s appearance and
the photograph of Thomas. For example, the police testified that they did not find the fact
4
that Spivey’s head was shaved to be a significant factor in determining whether he
matched the description of the robbery suspect because Thomas could have shaved his
head after robbing the bank. In addition, although Spivey’s scar was visible from seven
feet away in a courtroom, the police explained that they initially observed him from at
least 15 feet away and did not see a scar. With respect to the difference in weight, the
police testified that, although Spivey described his own weight as 230 pounds, he did not
look that heavy when they observed him on the street wearing “baggy” clothing, which
covered some of his bulk. Moreover, wanted flyers often do not accurately describe a
suspect’s weight. One officer stated that, because some of the height and weight
information on flyers can be old or inaccurate, they “go by, more the picture, his face
compared to the picture.” Id. at 49. Finally, the District Court found that, even though the
weight is “a little different,” their frames are the same. Id. at 132, 170.1
In the end, the District Court concluded, “I don’t think they’re that different,” and
that “the similarities are much more than the differences.” Id. at 132. The court therefore
found that the police reasonably believed that Spivey was the man wanted for bank
robbery and acted reasonably in stopping him. The District Court also noted that the frisk
was reasonable in light of the statement on the wanted flyer that Thomas may be armed
and dangerous. Finally, the District Court found that it was reasonable for the officers to
1
At the suppression hearing, Judge Baylson initially said, “The weight is a little different, but
the frame is different – the frame is the same . . . .” App. at 132. At the sentencing hearing,
however, Judge Baylson corrected this statement on the record and stated that he “intended to
say: the weight is a little different, but the frame is the same.” Id. at 170.
5
rely on the fact that Spivey was not carrying identification and could not give them any
reason to believe that he was not Thomas. As such, the District Court found that the
police had reasonable suspicion to search Spivey and therefore denied the Motion to
Suppress.
B. Facts Relevant to the Sentencing Claim
On January 14, 2004, Spivey plead guilty to one count of possession of a firearm
by a felon but reserved the right to appeal from the District Court’s unfavorable ruling on
the Motion to Suppress. The District Court held a sentencing hearing on April 15, 2004,
and sentenced Spivey to 66 months in prison, to be followed by three years of supervised
release. In determining this sentence, Judge Baylson adopted the recommendations of the
United States Probation Office contained in its Presentence Investigation Report (“PSR”).
Basing those recommendations on the United States Sentencing Guidelines, the PSR
assigned Spivey a base offense level of 24 pursuant to U.S.S.G. § 2K2.1(a)(2) because of
his two previous controlled substance convictions. The court then applied a three-level
downward adjustment based on Spivey’s acceptance of responsibility under U.S.S.G. §
3E1.1. The court finally arrived at a Guidelines sentencing range of 57-71 months by
applying a criminal history category of IV to Spivey’s total offense level of 21.
Spivey’s criminal history category was set at IV based on his 9 criminal history
points. Spivey does not dispute the applicability of 6 criminal history points, which were
based on his two prior controlled substance convictions. On appeal, however, he argues
6
that the application of the other 3 criminal history points violates his Sixth Amendment
rights because they were based on facts not admitted or proved beyond a reasonable
doubt. Two of these points were assigned based on the judge’s finding that Spivey
committed the instant offense while on parole. See U.S.S.G. § 4A1.1(d). The other point
was assigned based on the judge’s finding that Spivey committed the instant offense less
than two years after his release from prison. See U.S.S.G. § 4A1.1(e). Had Spivey only
received 6 criminal history points, his criminal history category would have been set at
III, and his sentencing range under the guidelines would have been 46-57 months.
At the sentencing hearing, Spivey declined to object to the findings contained in
the PSR. App. at 158. He also admitted that he was on parole when he committed the
instant offense, id. at 159, 164, and initially agreed to his criminal history category being
set at level IV, id. at 158. Spivey’s counsel agreed that the applicable Guidelines range
was 57-71 months and only argued the issue of where in the Guidelines range Spivey’s
sentence should fall. Id. at 158-59.
II. DISCUSSION
A. Fourth Amendment Claim
1. Standard of Review
“This Court reviews the District Court’s denial of a motion to suppress for clear
error as to the underlying factual findings and exercises plenary review of the District
Court’s application of the law to those facts.” United States v. Perez, 280 F.3d 318, 336
7
(3d Cir. 2002). We thus review de novo the District Court’s conclusion that the officers
in this case had reasonable suspicion to stop and frisk Spivey. United States v. Valentine,
232 F.3d 350, 353 (3d Cir. 2000) (citing Ornelas v. United States, 517 U.S. 690 (1996);
United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998)).
2. Analysis
It is without dispute that the officers’ stop and frisk of Spivey amounted to a
seizure under California v. Hodari D., 499 U.S. 621, 626-28 (1991), thereby triggering the
Fourth Amendment protection against unreasonable searches and seizures. See also Terry
v. Ohio, 392 U.S. 1, 19 (1968). Under the Supreme Court’s ruling in Terry, the police
may, consistent with the Fourth Amendment, stop and frisk individuals without probable
cause if they have a reasonable, articulable suspicion that criminal activity is afoot. Id. at
20-22; see also Illinois v. Wardlow, 528 U.S. 119, 123 (2000). It is clear that, had the
police seen Aaron Thomas walking on the street, they at least would have had sufficient
reasonable suspicion, based on the information contained on the wanted flyer, to conduct
an investigative stop. See United States v. Hensley, 469 U.S. 221, 227-33 (1985) (finding
reasonable suspicion based on information contained in a wanted flyer, even where the
suspected criminal activity had been completed and was no longer imminent or ongoing).2
2
Although the parties do not argue the issue on appeal, it also appears that the District Court
was correct to find that the statement on the wanted flyer that Thomas could be armed and
dangerous would be sufficient to justify searching him for weapons under Terry. See Hensley,
469 U.S. at 235 (a search of a suspect’s vehicle for weapons “was well within the permissible
range in the context of suspects who are reported [in a wanted flyer] to be armed and dangerous.”
(citing Michigan v. Long, 463 U.S. 1032, 1049-50 (1983); Pennsylvania v. Mimms, 434 U.S.
8
This case thus boils down to whether or not the officers who stopped Spivey had a
reasonable, good faith belief that he was in fact Aaron Thomas. Hill v. California, 401
U.S. 797, 802 (1971) (probable cause to arrest one suspect gives rise to probable cause to
arrest an individual whom the police reasonably believe is that suspect).
On appeal, Spivey focuses on the differences between his appearance and the
description and photo of Thomas. We agree with the District Court that there are some
differences to be found. However, it is not the task of the Court of Appeals to conduct an
isolated review of each factor relied on by the officers and the District Court in
determining that there was reasonable suspicion to stop Spivey. United States v. Arvizu,
534 U.S. 266, 274 (2002). The Supreme Court stated in Arvizu that Terry “precludes this
sort of divide-and-conquer analysis.” Id. Instead, appellate courts must review the
“totality of the circumstances” relied on in making the reasonable suspicion
determination. Id. at 273; see also United States v. Sokolow, 490 U.S. 1, 8-9 (1989);
United States v. Cortez, 449 U.S. 411, 417 (1981); Valentine, 323 F.3d at 353.
In reviewing the totality of the circumstances, we give substantial deference to
both the District Court’s factual determinations and the inferences drawn by the officers
on the scene. Ornelas, 517 U.S. at 699; Valentine, 232 F.3d at 355. Here, the District
Court found that the officers who stopped Spivey were credible, that there were important
similarities between Spivey and Thomas, and that the “similarities are more than the
106, 110-11 (1977) (per curium))).
9
differences.” These are all factual findings that we will not disturb absent clear error.3
Furthermore, the totality of the circumstances surrounding Spivey’s stop and frisk
support the District Court’s legal conclusion that the police acted with reasonable
suspicion. The patrolling officers saw a man who they believed, in good faith,4 had
similar facial features to a suspected armed robber in a high-crime area where the suspect
was known to frequent. Both men had “fairly full” and “round faces” and were similar in
height and age. Although there is a difference in weight between the two men, the police
acted reasonably in relying more on their comparison of Spivey’s face to Thomas’
photograph because, based on their experience, the weight information on wanted flyers
is often old and inaccurate. Moreover, the officers stopped Spivey two months after
Thomas allegedly robbed the bank, and it is not unreasonable to think that he could have
gained weight in that time. In addition, Spivey was wearing baggy clothing when the
officers stopped him, making it difficult to accurately assess his weight.5 Finally, the
3
Upon reviewing photographs of Spivey and Thomas, we cannot say that the District Court’s
finding that the two men had a number of similar facial features was clearly erroneous.
4
As noted, we defer to the District Court’s finding that the officers were credible and that
they were acting in good faith.
5
Cf. United States v. Lawes, 292 F.3d 123 (2d Cir. 2002). The Second Circuit in Lawes was
faced with a factual background very similar to the case before us. In Lawes, the police were
looking for a murder suspect and were relying on a mugshot along with a description of the
suspect’s age, race, weight, height, and scars. They stopped the defendant believing that he was
the murder suspect. The defendant was actually taller and weighed 40 pounds more than the
suspect and had a distinctive scar on his face. The Second Circuit, considering all of the relevant
circumstances, upheld the District Court’s finding of reasonable suspicion, “notwithstanding
some differences,” because the two men had similar facial features. Id. at 127. The Second
Circuit also noted that the District Court had credited the officers’ testimony and accepted the
10
District Court was correct to note that the officers reasonably relied on Spivey’s failure to
produce identification to dispel their suspicion that he was Aaron Thomas. Cf. Hill, 401
U.S. at 803 & n.9 (the defendant’s ability to produce identification indicating that he was
not the suspected armed robber the police were looking for was “entitled to little weight”
because “aliases and false identifications are not uncommon.”).6
Because the police acted based on their reasonable, good faith belief that Spivey
was an armed and dangerous robbery suspect, we agree with the District Court that the
stop and frisk of Spivey was justified by reasonable suspicion. We therefore affirm the
District Court’s denial of Spivey’s Motion to Suppress.
B. Sixth Amendment Claim
1. Standard of Review
Because this case was pending on direct review at the time of the Supreme Court’s
decision in United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), we will apply the
ruling of that case. We may only review Spivey’s sentence for plain error, however,
because he failed to raise a Sixth Amendment objection in the District Court. See id. at
explanation for disregarding the difference in weight – that the defendant was wearing a heavy
coat when the officers saw him. Id.
6
On appeal, Spivey argues that he should not be faulted for his failure to carry identification,
as it was not unusual under the circumstances to leave home without identification. Spivey is
correct to point out that the failure to carry identification on its own does not create a reasonable
suspicion. As noted, however, we must view the totality of the circumstances. Once the police
reasonably believed that Spivey was an armed and dangerous robbery suspect, the fact that he
could not produce identification to the contrary adds to the mix of facts facing the police when
they determined whether or not an investigative stop was warranted.
11
769; United States v. Vazquez, 271 F.3d 93, 99 (3d Cir. 2001).
2. Analysis
Under Booker and Apprendi v. New Jersey, 530 U.S. 466, 488 (2000), courts are
permitted to base sentences on facts admitted by the defendant. Under the Guidelines,
counsel’s admission that Spivey was on parole when he committed the instant offense
may have been sufficient to raise Spivey’s criminal history score from 6 to 8. See
U.S.S.G. § 4A1.1(d). As such, even without the additional enhancement for committing
the present offense less than two years after being released from prison, Spivey might still
have a criminal history category of IV. See id., at § 5A (assigning category IV to
defendants with a criminal history score a of 7, 8, or 9). It is thus at least arguable that
the resulting sentence did not violate the Sixth Amendment as interpreted by Booker.
However, in addition to holding that sentencing enhancements under the
Guidelines may violate the Sixth Amendment, the Supreme Court in Booker also held that
the Guidelines are advisory. Booker, 125 S. Ct. at 757. As such, the District Court’s
mandatory application of the Guidelines to Spivey’s sentence was in error, and we cannot
say from the record before us whether that error “had a substantial and injurious effect or
influence in determining the [sentence].” Kotteakos v. United States, 328 U.S. 750, 776
(1946). Therefore, having determined that the sentencing issues Spivey raises are best
determined by the District Court in the first instance, we will vacate the sentence and
remand for resentencing in accordance with Booker.
12