United States v. Jason Clinton ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2464
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
JASON E. C LINTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:08-cr-00096-JVB-APR-1—Joseph Van Bokkelen, Judge.
A RGUED D ECEMBER 2, 2009—D ECIDED JANUARY 15, 2010
Before B AUER, K ANNE and T INDER, Circuit Judges.
B AUER, Circuit Judge. Jason Clinton appeals his con-
viction and sentence for unlawful possession of a
firearm by a previously convicted felon, in violation of
18 U.S.C. § 922(g)(1). Clinton claims that the district court
erred by admitting evidence of the handgun, and
by finding that his prior behavior leading to a convic-
tion for criminal recklessness under Indiana law was
a “crime of violence” for purposes of enhancing his
sentence to one hundred months under the United States
2 No. 09-2464
Sentencing Guidelines § 2K2.1(a)(4)(A). We have
reviewed the district court’s legal conclusions de novo
and its findings of fact for clear error. Finding no error,
we affirm.
I. BACKGROUND
Jason Clinton traveled with his friend, Louis Matta, and
his girlfriend to Brown County, Indiana, in June 2008, to
pick up his son, who had been staying with Clinton’s
mother and stepfather. They stayed part of the weekend
and drove to Gary early Monday morning. Later that
morning, police received a dispatch from Brown County
that Clinton was suspected of stealing his stepfather’s
handgun. Officer Orlich saw Clinton stopped at a red
light, pulled him over, and with the assistance of two
officers removed Clinton and his passenger Matta from
the car and placed them in the back of separate squad
cars. Clinton told Orlich, “You can search the car. You
ain’t gonna find nothin’.” Matta also separately told the
officers, “I think what you are looking for is in the
trunk.” The officers searched the trunk and found a
black .44 magnum handgun in a brown leather holster.
A jury convicted Clinton of unlawful possession of a
firearm by a previously convicted felon, in violation of
18 U.S.C. § 922(g)(1). The district court sentenced Clinton
to one hundred months in prison. The district court
might have sentenced Clinton to about half that time
had it not found that Clinton’s prior behavior leading to
a 1996 conviction for criminal recklessness under Indiana
No. 09-2464 3
law was a “crime of violence” under the United States
Sentencing Guidelines § 2K2.1(a)(4)(A)—Clinton had
stabbed an unarmed man, two or three times with a
paring knife he grabbed from his kitchen, after the
man chased Clinton up the stairs in Clinton’s home
threatening to beat him. According to Clinton’s plea
colloquy at the time, the first stab was justified. But he
admitted to stabbing his unarmed attacker “too many
times.”
II. DISCUSSION
We need not discuss Clinton’s and Matta’s conflicting
stories and other evidence presented at trial regarding
who stole the gun, because Clinton does not contend
that the evidence presented at trial was insufficient to
sustain his conviction under Fed. R. Crim. P. 29. See, e.g.,
United States v. Harris, 394 F.3d 543, 559 (7th Cir. 2005)
(finding that arguments not raised on appeal are
waived). Rather, Clinton challenges only the district
court’s denial of his motion to suppress the gun from
being entered into evidence at trial, and the district
court’s sentence enhancement.
A. Motion to Suppress
In reviewing the district court’s denial of Clinton’s
motion to suppress the gun, we review questions of law
de novo and questions of fact for clear error. See, e.g.,
United States v. Ford, 333 F.3d 839, 843 (7th Cir. 2003).
Under the clearly erroneous standard, we will not over-
4 No. 09-2464
turn the district court’s factual findings unless we are
left with a “definite and firm conviction” that the
district court was mistaken. United States v. Corral, 324
F.3d 866, 870 (7th Cir. 2003).
The Fourth Amendment protects people from “unrea-
sonable searches and seizures.” Evidence may be inad-
missible if obtained as a result of an unreasonable
search. Mapp v. Ohio, 367 U.S. 643 (1961); Weeks v.
United States, 232 U.S. 383 (1914); see also Herring v. United
States, 129 S. Ct. 695, 700 (2009) (“The fact that a Fourth
Amendment violation occurred—i.e., that a search or
arrest was unreasonable—does not necessarily mean
that the exclusionary rule applies.”). But here the
police’s search for the gun was reasonable, and thus the
gun was admissible, for three independent reasons.
First, the police had probable cause to search the car.
Police do not need a warrant to search vehicles, which
“can be quickly moved out of the locality or jurisdiction
in which the warrant must be sought.” Carroll v. United
States, 267 U.S. 132, 153 (1925). Rather, police may
search “any area of the vehicle in which the evidence
might be found” so long as there is probable cause to
believe a vehicle contains evidence of criminal activity.
Arizona v. Gant, 129 S. Ct. 1710, 1721 (2009). Probable
cause existed here, because the totality of the circum-
stances indicated a “fair probability” that the stolen gun
would be found in the car Clinton was driving. United
States v. Zahursky, 580 F.3d 515, 521 (7th Cir. 2009) (quoting
Illinois v. Gates, 462 U.S. 213, 238 (1983)). Indeed, Clinton’s
stepfather had just reported his gun stolen and had
No. 09-2464 5
identified Clinton as the probable suspect and the type
of car Clinton was driving, Orlich found Clinton driving
that type of car, Clinton turned his head when stopped
at the red light to evade identification by police, and
after pulling over Clinton the officers were told by
Matta to look in the trunk.
Second, Clinton consented to the search. The govern-
ment bears the burden of proving, by a preponderance
of the evidence, that a person who consents to a search
does so freely and voluntarily. See, e.g., United States v.
McGraw, 571 F.3d 624, 628 (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 222 (1973)). Clinton argues that
the consent he gave was involuntary. In support, he
cites only (1) possibly conflicting testimony, which does
not persuade us that the district court committed clear
error in finding that Orlich read Clinton his Miranda
rights before Clinton consented; and (2) that he gave
consent only after he was faced with the officers’ guns,
physically removed from his car, placed on the ground,
and handcuffed (as one would expect police to behave
in apprehending a suspect thought to be carrying a
weapon). Appellant’s Br. at 10. But the government met
its burden of proving the consent’s voluntariness,
because Clinton told the officers they should search the
car, even before they asked for permission, and Clinton
had been in the squad car only briefly, had been advised
of his Miranda rights, is over thirty years old, and has
had extensive experience with the criminal justice sys-
tem. See McGraw, 571 F.3d at 628-30.
Third, the police would inevitably have discovered the
gun during an inventory search of the vehicle. See Nix v.
6 No. 09-2464
Williams, 467 U.S. 431, 446 (1984) (“Exclusion of
physical evidence that would inevitably have been dis-
covered adds nothing to either the integrity or fairness
of a criminal trial.”). Police who lawfully impound a
vehicle may take an inventory search of its contents,
because they are responsible for those contents while
the car and its contents are in their custody. Colorado v.
Bertine, 479 U.S. 367, 373 (1987). Here the officers’ towing
and inventorying of the car Clinton was driving was
lawful, because they followed a standard police
procedure after both Clinton and his passenger Matta
were arrested on suspicion of stealing a firearm, leaving
no one to drive the car. United States v. Cherry, 436 F.3d
769, 775 (7th Cir. 2006). That Clinton’s girlfriend, the
owner of the car, could have been called to take pos-
session of the car, is irrelevant. Id. (finding that the
Fourth Amendment does not “demand that police offer
a motorist an alternative means of removing his vehicle
that will avoid the need to tow it and conduct an
inventory search”) (citations omitted).
In sum, we find no error with the district court’s ad-
mission of the gun into evidence. As Clinton raises no
further challenge to his conviction, his conviction stands.
B. Sentence Enhancement
We proceed with Clinton’s challenge to his sentence. At
issue is whether the district court permissibly enhanced
Clinton’s sentence by finding his prior criminal reckless-
ness, under Indiana law, to be a “crime of violence” as
defined by the United States Sentencing Guidelines. This
No. 09-2464 7
is a question of law we decide de novo. United States v.
Woods, 576 F.3d 400, 408 (7th Cir. 2009).
Criminal recklessness in Indiana is a crime of violence
only if it is similar to burglary or arson in the sense of
entailing conduct that is “purposeful, violent, and aggres-
sive.” See Sentencing Guidelines § 4B1.2(a)(2); United
States v. Gear, 577 F.3d 810, 812 (2009) (quoting United
States v. Begay, 128 S. Ct. 1581, 1586 (2008)). As to the
latter two elements requiring violence and aggressive-
ness, we can think of no action more violent and
aggressive than unjustifiably stabbing someone with a
knife. So our inquiry focuses on whether Clinton
was convicted for conduct that was intentional. United
States v. Smith, 544 F.3d 781, 784 (7th Cir. 2008) (citing
Begay, 128 S. Ct. at 1587).
Indiana’s criminal recklessness statute outlaws bodily-
harm-risking acts performed “recklessly, knowingly, or
intentionally.” Indiana Code § 35-42-2-2(b)(1) (emphasis
added). Only if Clinton was convicted for the “inten-
tional” part of this “divisible” statute did he commit a
crime of violence subjecting him to a sentence enhance-
ment. Begay, 128 S. Ct. at 1586; Gear, 577 F.3d at 813;
Woods, 576 F.3d at 405-06; Smith, 544 F.3d at 786; see also
Chambers v. United States, 129 S. Ct. 687, 690-91 (2009);
United States v. Hart, 578 F.3d 674, 680 (7th Cir. 2009). In
determining which part of the statute Clinton violated, we
look only to certain additional court materials, such as
Clinton’s plea colloquy, Smith, 544 F.3d at 786 (citing
Shepard v. United States, 544 U.S. 13, 26 (2005)), in which
Clinton admitted to stabbing his victim “too many times.”
8 No. 09-2464
United States v. Clinton, No. 2-08-CR-96 JVB, 2009 WL
1513143, at *3 (N.D. Ind. May 28, 2009).
Clinton violated the intentional part of the statute and
thus he is subject to the sentencing enhancement. Indeed,
Clinton is subject to the enhancement because he was
convicted for intending both (1) the act of stabbing his
victim an extra time (we do not consider the first stab,
which may have been performed justifiably, because
we cannot say whether it constituted part of his convic-
tion); and (2) the act’s consequences. See Woods, 576 F.3d
at 410 (finding that where a statute codifies an act’s
consequences as an element of the offense, sentencing
enhancement requires a finding that the defendant in-
tended both the act and its consequences). But cf. Gear, 577
F.3d at 813 (requiring only recklessness with respect
to consequences).
First, Clinton behaved intentionally when he
performed the act of the extra stab. A review of the plea
colloquy reveals that Clinton gripped, aimed, and ex-
tended the knife while exercising volition. See also Ap-
pellant’s Br. at 16 (“Clinton’s actions were intentional.”).
Second, Clinton necessarily intended the extra stab’s
consequences, i.e., the resulting bodily injury. Indeed,
we cannot conceive of a possible situation with circum-
stances like those revealed by Clinton’s plea colloquy—
where someone again stabs an unarmed, already stabbed,
bleeding man—in which the stabber is not necessarily
aware that bodily injury will result. Our determination
of Clinton’s awareness is unaffected by the fact that
Clinton was high on cocaine. See Schlatter v. State, 891
No. 09-2464 9
N.E.2d 1139, 1142 (Ind. Ct. App. 2008) (“[V]oluntary
intoxication is not a defense in Indiana . . . and may not
be taken into consideration in determining the existence
of a mental state that is an element of the offense.”).
Nor do we credit Clinton’s wavering, ambiguous state-
ments at the plea colloquy that he was acting in self-
defense. Specifically, he claimed that either he thought he
was acting in self-defense or did not know whether the
victim was going to kill him or cause him serious bodily
harm, without regard to whether either of these two
possible states of mind applied to either the first stab or
the extra stab. Clinton, 2009 WL 1513143, at *3. Had
Clinton actually been properly defending himself with
the extra stab as well as the first one, he would have had
a complete defense to his felony conviction, as the sen-
tencing judge recognized. Id.; see also Bryan v. State, 450
N.E.2d 53, 64 (Ind. 1983) (“The right to self-defense passes
when the danger passes.”). But when a defendant main-
tains his innocence—e.g., by asserting a complete
defense—the state of Indiana refuses to accept guilty
pleas. See, e.g., Rowe v. State, 912 N.E.2d 441, 444 n.2 (Ind.
Ct. App. 2009) (citing North Carolina v. Alford, 400 U.S.
25, 38 (1970)). So the sentencing judge who accepted
Clinton’s guilty plea must have disbelieved that Clinton
was maintaining that he had been defending himself
also with the extra stab. Indeed, Clinton admitted to
stabbing his victim “too many times,” Clinton’s testi-
mony regarding self-defense was wavering and ambigu-
ous, and the sentencing judge had ample opportunity to
assess Clinton’s demeanor—a luxury we lack when
reviewing the transcript. So we find no clear error in the
10 No. 09-2464
sentencing judge’s determination that Clinton’s extra
stab was not a defensive blow.
In sum, Clinton was convicted for intentionally stabbing
an unarmed man more times than was necessary to
defend himself. So we are satisfied that Clinton is “the kind
of person who might deliberately point the gun and
pull the trigger,” Begay, 128 S. Ct. at 1587, and thus whom
Congress had in mind when enhancing sentences for
unlawful possession of a firearm by a previously con-
victed felon.
III. CONCLUSION
The district court acted properly in denying Clinton’s
motion to suppress and in finding that Clinton had been
previously convicted of a crime of violence under the
Sentencing Guidelines. Therefore, we A FFIRM Clinton’s
conviction and sentence.
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