United States v. Djuane L. McPhaul ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1162
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DJUANE MCPHAUL,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:14-cr-00203 — Tanya Walton Pratt, Judge.
____________________
ARGUED MAY 31, 2016 — DECIDED AUGUST 26, 2016
____________________
Before EASTERBROOK and WILLIAMS, Circuit Judges, and
YANDLE, District Judge. *
WILLIAMS, Circuit Judge. Djuane McPhaul already had a vi-
olent felony conviction on his record when he was caught
* Of the Southern District of Illinois, sitting by designation.
2 No. 16-1162
driving with a loaded gun in the car, while wearing body ar-
mor. He was charged with being a felon in possession of a
gun, and with being a violent felon in possession of body ar-
mor. A jury convicted him on the body armor charge but ac-
quitted him on the gun charge. On appeal, he argues that the
body armor should have been suppressed because it was dis-
covered through an unconstitutional search. We disagree. The
pat-down that revealed the body armor was lawful because
officers had probable cause to stop McPhaul—for minor traf-
fic violations, driving on a suspended license, and using a car
to flee officers.
McPhaul also challenges two Sentencing Guidelines en-
hancements, one for using the body armor “in connection
with another felony offense,” and another for attempting to
obstruct justice. We reject these challenges too. McPhaul used
a car to flee officers, which is a felony, and he wore the body
armor while doing so. And when he was in pre-trial custody,
he attempted to obstruct justice through several letters he
wrote to his cousin. So we affirm his conviction and sentence.
I. BACKGROUND
Police Officer Andrew Sell saw a car turn right from the
center lane on a three-lane road and then drive through pri-
vate property to avoid a red light. Using his computer, Sell
learned that the car was registered to Djuane McPhaul, whose
license was suspended. Sell observed that the driver looked
like McPhaul (the computer displayed McPhaul’s picture).
Sell decided to stop the car, but the driver made some quick
turns and then led the police on a mile-long “slow-speed”
chase, even after Sell activated his lights and siren. When the
driver finally stopped and was arrested, a pat-down revealed
No. 16-1162 3
that he was wearing body armor, and a loaded gun was found
in the car’s center console.
The driver was McPhaul, who had previously been con-
victed of a crime of violence. He was charged with being a
felon in possession of a gun, and with being a violent felon in
possession of body armor. While in pre-trial custody, he wrote
letters to his cousin, telling her she could ignore a grand jury
subpoena, and asking her to swear that she put the gun in his
car without his knowledge.
McPhaul unsuccessfully moved to suppress the body ar-
mor, arguing it was discovered through an unconstitutional
search. At sentencing, the judge applied Guidelines enhance-
ments for using the body armor in connection with another
felony offense, and for attempting to obstruct justice.
McPhaul’s Guidelines range was 24–30 months and the judge
imposed a 24-month sentence. McPhaul appeals.
II. ANALYSIS
A. No Abuse of Discretion in Denying Motion to Sup-
press Body Armor
The Fourth Amendment provides that “[t]he right of the
people to be secure in their persons, houses, papers, and ef-
fects, against unreasonable searches and seizures, shall not be
violated.” U.S. Const. amend. IV. Under certain circum-
stances, evidence gathered in violation of a defendant’s
Fourth Amendment rights will be suppressed. See generally
United States v. Martin, 807 F.3d 842, 845–46 (7th Cir. 2015). In
reviewing the district judge’s denial of McPhaul’s motion to
suppress, we review legal conclusions de novo and findings
of fact for clear error. United States v. Jackson, 598 F.3d 340, 344
(7th Cir. 2010).
4 No. 16-1162
“As a general matter, the decision to stop an automobile is
reasonable where the police have probable cause to believe
that a traffic violation has occurred.” Whren v. United States,
517 U.S. 806, 810 (1996); Carmichael v. Vill. of Palatine, 605 F.3d
451, 456 (7th Cir. 2010). The district court wrote that “Officer
Sell observed Mr. McPhaul commit two, and possibly three,
traffic infractions, and after running his license plate (which
is a reasonable practice of police officers), learned that the car
was registered to [a] driver with a suspended license. Officer
Sell had probable cause to initiate a traffic stop.” We agree.
But McPhaul did not stop right away. Instead, as the dis-
trict court wrote, “After Officer Sell turned on his police lights
and siren, Mr. McPhaul did not immediately stop but instead
traveled for nearly a mile and made four turns before finally
coming to a stop in a gas station parking lot. These facts are
sufficient probable cause for an arrest for resisting law en-
forcement in a vehicle.” Again, we agree. Under Indiana law,
it is a felony to use a vehicle to flee from a law-enforcement
officer who has activated his lights and siren in an attempt to
make a stop. See Ind. Code §§ 35-44.1-3-1(a)(3), (b)(1)(A). Be-
cause our focus is on probable cause, McPhaul’s argument that
he was not, in fact, resisting law enforcement—he was only
trying to get to a safe place before stopping—is legally irrele-
vant. E.g., United States v. Reaves, 796 F.3d 738, 741 (7th Cir.
2015) (“[W]e need only inquire whether the officer had proba-
ble cause to believe that a traffic violation occurred, not whether
a violation actually occurred.”) (emphasis added) (internal ci-
tation and quotation marks omitted).
McPhaul says that even if there was probable cause to ar-
rest him, the body armor was still discovered through an un-
No. 16-1162 5
reasonable search. He argues that his violations were rela-
tively minor so they did not justify the officers’ use of their
“felony stop” procedures (including removing McPhaul from
the car and patting him down). The argument is fundamen-
tally misplaced. Whether the officers acted in accordance with
their departmental policies, or even state law, is irrelevant.
Virginia v. Moore, 553 U.S. 164, 176 (2008). Federal constitu-
tional law—the applicable law—is clear. Having lawfully ar-
rested McPhaul, the officers were allowed to pat him down.
Id. at 176–78; United States v. Robinson, 414 U.S. 218, 235 (1973)
(“A custodial arrest of a suspect based on probable cause is a
reasonable intrusion under the Fourth Amendment; that in-
trusion being lawful, a search incident to the arrest requires
no additional justification.”). There was no Fourth Amend-
ment violation, so the district judge did not err in denying
McPhaul’s motion to suppress.
B. No Clear Error in Finding Body Armor Used in Con-
nection with Another Felony Offense
The Guidelines assign a base offense level of 10 to the
crime of being a violent felon in possession of body armor.
U.S.S.G. § 2K2.6(a). The offense level is increased to 14 if the
defendant “used the body armor in connection with another
felony offense.” Id. § 2K2.6(b)(1). The district judge found that
McPhaul used a vehicle to flee law enforcement, and found
that the body armor was connected to that felony because
McPhaul wore it as he fled. So the judge applied the enhance-
ment. We review that decision for clear error. United States v.
Schmitt, 770 F.3d 524, 538–39 (7th Cir. 2014).
The Guidelines explicitly state that the enhancement does
not apply “if the body armor was merely possessed.” U.S.S.G.
§ 2K2.6 App. Note 1(C). Instead, to be “used,” the body armor
6 No. 16-1162
must be “actively employed in a manner to protect the person
from gunfire.” Id. We can envision an argument that
McPhaul’s body armor was not “actively employed in a man-
ner to protect [him] from gunfire,” but McPhaul made no such
argument (and his lawyer explicitly confirmed at oral argu-
ment that no such argument was being advanced). Instead,
McPhaul’s only argument is that he did not commit “another
felony offense” because he was not trying to flee, he was only
trying to get to a safe place before stopping. He stresses that
his speed during the pursuit never exceeded 40 miles per
hour. But he ignores the fact that he drove for almost a mile
and made several turns along the way. The district judge con-
sidered the issue and found that the preponderance of the ev-
idence supported the conclusion that McPhaul committed the
Indiana felony. That finding was not clearly erroneous.
C. No Error in Finding McPhaul Attempted to Obstruct
Justice
Attempting to obstruct justice earns offenders a two-level
increase under the Guidelines. U.S.S.G. § 3C1.1. We review
the district judge’s underlying factual findings for clear error,
and we review de novo the determination that those findings
support the enhancement. United States v. Taylor, 637 F.3d 812,
817 (7th Cir. 2011).
While in pre-trial custody, McPhaul wrote several letters
to his cousin, Dayonia Ivey. He asked her to swear that the
gun was hers and that she put it in his car without his
knowledge. He tried to allay any fears she might have by tell-
ing her that the gun would not lead to serious charges for her,
as she did not have a prior felony conviction. He implored,
“without you I can’t win my case.” He offered to give her
money, which he would earn by settling a civil suit that he
No. 16-1162 7
intended to bring against the police. And he told her she could
ignore the subpoena she had received to testify before the
grand jury. (Indeed, he said the advice about skipping grand
jury proceedings came from his attorney.)
Ivey listened. She skipped the grand jury proceedings and
signed an affidavit saying she put the gun in McPhaul’s car
without his knowledge. Because she skipped the grand jury
sitting, she was brought to court to determine whether she
should be held in contempt. After the judge appointed her a
lawyer, Ivey testified, retracting her claim that she was re-
sponsible for the gun.
In challenging the finding that he attempted to obstruct
justice, McPhaul stresses that he was not able to cross-exam-
ine Ivey when she testified at her contempt hearing. But we
agree with the district judge—the ability to cross-examine
Ivey is irrelevant because the obstruction enhancement was
based on McPhaul’s own statements in his multiple letters
from jail. In particular, we note that urging Ivey to skip the
grand jury sitting was an attempt to obstruct justice. See
United States v. Monem, 104 F.3d 905, 909 (7th Cir. 1997).
III. CONCLUSION
We AFFIRM McPhaul’s conviction and sentence.