United States v. Michael Walker, Jr. , 771 F.3d 449 ( 2014 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 14-1752
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Michael E. Walker, Jr.
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Southern District of Iowa - Des Moines
    ____________
    Submitted: September 11, 2014
    Filed: November 14, 2014
    ____________
    Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
    ____________
    LOKEN, Circuit Judge.
    Responding to a reported drive-by shooting, police stopped a car near the
    scene. A search uncovered a handgun in the pouch of the seat in front of passenger
    Michael Walker. Walker was charged with being a felon in possession of a firearm
    in violation of 18 U.S.C. § 922(g)(1). He moved to suppress the firearm, challenging
    the initial stop but not the search. The motion was denied, and he entered a
    conditional guilty plea. On appeal, Walker argues the district court1 erred in denying
    his motion to suppress. He also appeals his forty-four month prison sentence, arguing
    the court erred in applying a four-level enhancement for possessing the firearm in
    connection with another felony offense. See U.S.S.G. § 2K2.1(b)(6)(B). We affirm.
    I. The Suppression Issue
    The facts relied on by the district court in denying Walker’s motion to suppress
    are not disputed. Shortly before 1:00 a.m., a caller informed emergency dispatch of
    a drive-by shooting at 1405 Idaho Street in Des Moines, Iowa. The dispatcher
    reported to police that the caller saw two African-American males getting into a
    “Suburban,” which then headed east on Cleveland Avenue. Officer Todd Wilshusen,
    on patrol nearby, responded. He knew that a witness in a recent murder investigation
    resided at the reported address, and that a suspect in the murder, Corey Rankins, lived
    two or three blocks east of 1405 Idaho Street. “Approximately a minute” after
    receiving the dispatch, Wilshusen spotted a Suburban backing out of the driveway to
    Rankins’s house, the second vehicle Wilshusen encountered after the dispatch.
    Unable to see how many people were in the Suburban or their identities, Wilshusen
    turned his patrol car towards the vehicle and turned on his spotlight. Wilshusen
    exited his car and approached the Suburban, which had stopped. He saw Walker
    sitting in the driver’s side backseat. The other occupants were three women. A
    search of the Suburban revealed the handgun that Walker seeks to suppress.
    Walker argues that Wilshusen lacked reasonable suspicion to stop the
    Suburban. “For an officer to perform an investigatory stop of a vehicle, there must
    be reasonable suspicion. . . . that criminal activity is afoot,” that is, “some minimal,
    1
    The Honorable John A. Jarvey, United States District Judge for the Southern
    District of Iowa, adopting the Report and Recommendation of the Honorable Ross
    A. Walters, United States Magistrate Judge for the Southern District of Iowa.
    -2-
    objective justification for an investigatory stop.” United States v. Farnell, 
    701 F.3d 256
    , 261 (8th Cir. 2012) (quotations omitted). We determine whether an officer had
    reasonable suspicion de novo, evaluating “the totality of the circumstances . . . to see
    whether the detaining officer has a particularized and objective basis for suspecting
    legal wrongdoing.” United States v. Humphrey, 
    753 F.3d 813
    , 816 (8th Cir. 2014),
    quoting United States v. Arvizu, 
    534 U.S. 266
    , 273 (2002).
    We reviewed a case involving similar facts in United States v. Juvenile TK,
    
    134 F.3d 899
    (8th Cir. 1998). After receiving reports that a man with a gun broke a
    window and got into a “gray vehicle,” and a short time later brandished a weapon at
    a gas station, a police officer stopped a gray car about two blocks away from the gas
    station. 
    Id. at 900-01.
    We concluded that the officer had reasonable suspicion to stop
    the car based on “the temporal and geographic proximity of the car to the scene of the
    crime, the matching description of the vehicle, and the time of the stop.” 
    Id. at 903.
    Here, as in TK, police were responding to reports of “clearly criminal activity,” 
    id. at 904,
    a drive-by shooting at the residence of a witness in a murder investigation.
    A Suburban was reported leaving the scene of this early morning crime. Officer
    Wilshusen spotted a Suburban leaving the driveway of a suspect in the investigation,
    a short distance from the reported shooting. All this was more than enough
    reasonable suspicion to stop the Suburban and investigate its occupants. Walker
    argues there was no reasonable suspicion because the vehicle contained one male
    passenger and the dispatcher reported two males getting into a Suburban. But
    Wilshusen could not see who was in the car until he made the initial stop. His actions
    after making the stop and using his spotlight to determine who was in the vehicle are
    not at issue. The district court did not err in denying the motion to suppress.
    II. The Sentencing Issue
    Walker argues the district court erred in imposing a four-level enhancement to
    his advisory guidelines offense level because he “used or possessed [the] firearm . . .
    -3-
    in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). “Another
    felony offense” is defined as “any federal, state, or local offense, other than the
    explosive or firearms possession or trafficking offense, punishable by imprisonment
    for a term exceeding one year, regardless of whether a criminal charge was brought,
    or a conviction obtained.” U.S.S.G. § 2K2.1 cmt. n.14(C).
    Walker’s Presentence Investigation Report stated that police interviewed the
    resident of 1405 Idaho Street after she called emergency dispatch. She reported
    hearing five or six shots outside the residence and saw two males running away and
    getting in the Suburban. Brought to the scene of the investigative stop, she identified
    Walker as one of the males. He was “visually tired, sweating, and out of breath,” and
    a loaded .40 caliber handgun was found in the pouch of the seat in front of him. The
    PSR recommended imposing the four-level enhancement. In response to Walker’s
    objection, the Probation Officer identified “multiple felonious offenses” under the
    Iowa Code that “could be used to justify” the enhancement. At sentencing, the
    government established the facts stated in the PSR by the testimony of Officer James
    Chadwick, who interviewed the resident at the same time Wilshusen was stopping
    and searching the Suburban. The government argued, as it does on appeal, that
    Walker’s conduct violated Iowa Code § 724.4(1), an aggravated misdemeanor that
    qualifies as “another felony offense” because it is punishable by imprisonment for up
    to two years. United States v. Anderson, 
    339 F.3d 720
    , 724 (8th Cir. 2003).
    At sentencing and on appeal, Walker raised a recurring issue regarding
    application of the § 2K2.1(b)(6)(B) enhancement. The definition of another felony
    offense in Application Note 14(C) has an exclusion -- “other than the explosive or
    firearms possession or trafficking offense.” Prior to 2011 amendments to § 2K2.1,
    the exclusion was found in Note 15 and was more broadly worded -- “offenses other
    than explosives or firearm possession or trafficking offenses.” See III U.S.S.G. app.
    -4-
    C, amendment 691, at 172.2 Although we construed the prior exclusion narrowly, see
    United States v. English, 
    329 F.3d 615
    , 616-17 (8th Cir. 2003), other circuits
    concluded that the exclusion “categorically removed” firearm possession and
    trafficking offenses from the four-level enhancement. See United States v. Lindquist,
    
    421 F.3d 751
    , 755 (8th Cir. 2005). Thus, the narrowing of the exclusion in the 2011
    amendments was significant.
    We construed amended Note 14(C) in United States v. Jackson, 
    633 F.3d 703
    ,
    705-06 (8th Cir. 2011), explaining that:
    the plain language of § 2K2.1(b)(6) casts a broad net. . . . Application
    note 14(C) narrows the scope only slightly by defining “another felony
    offense” to exclude “the explosive or firearms possession or trafficking
    offense.” . . . The phrase “the . . . firearms possession . . . offense” in
    application note 14(C) most plainly refers to the underlying offense of
    conviction -- in [this] case, possession of a firearm by a felon. Thus, the
    plain language of application note 14(C) excludes only the underlying
    firearms possession offense of conviction from the definition of “another
    felony offense.”
    The other felony offense at issue in this case, Iowa Code § 724.4(1), is a firearm
    offense. It provides that -
    a person who goes armed with a dangerous weapon concealed on or
    about the person, or who, within the limits of any city, goes armed with
    a pistol or revolver, or any loaded firearm of any kind, whether
    concealed or not, or who knowingly carries or transports in a vehicle a
    pistol or revolver, commits an aggravated misdemeanor.
    2
    In reviewing relevant cases, it is important to remember that the numerous
    2011 amendments moved the four-level enhancement from § 2K2.1(b)(5) to (b)(6),
    and moved the definition of “another felony offense” from Note 15 to Note 14(C).
    -5-
    At sentencing, Walker argued that the district court “can’t use another firearms
    offense” as the basis for applying the four-level enhancement. That argument was
    contrary to the plain language of Note 14(C) as construed in Jackson. On appeal,
    without citing Jackson, Walker complains that the district court, while finding by a
    preponderance of the evidence that Walker was involved in the shooting at 1405
    Idaho Street, did not identify what other offense under state law Walker had
    committed. But this omission, if an error at all, was harmless because the facts as
    found by the court obviously supported a charge that Walker had violated § 724.4(1).
    At oral argument, defense counsel put forward a different argument, suggesting
    that this case falls within the purview of Lindquist, where we held that the state law
    offense at issue -- acquiring a handgun without a valid permit -- was not “another
    felony offense” for purposes of the four-level enhancement because it “involved
    essentially the same conduct as his conviction for being a felon in possession of a
    
    firearm.” 421 F.3d at 756
    . We addressed this issue in Jackson, where we limited the
    rule in Lindquist to cases where a defendant “could not have committed the
    underlying federal offense without also violating the state offense that the district
    court used to support the 
    [enhancement].” 633 F.3d at 707
    . That was true in
    Lindquist because state law precluded convicted felons from obtaining permits to
    acquire handguns.
    Here, as in Jackson, Walker was not “doomed to automatically commit the
    additional felony when he violated 18 U.S.C. § 922(g) by possessing a firearm as a
    felon.” 
    Id. Iowa Code
    § 724.4(1), unlike 18 U.S.C. § 922(g), requires proof that the
    defendant went armed “with a dangerous weapon concealed on or about the person,”
    or went armed with a handgun “within the limits of any city,” or “knowingly carrie[d]
    or transport[ed] [a handgun] in a vehicle.” (Emphasis added). Thus, § 724.4(1) does
    not fall within the narrow Note 14(C) exclusion for “the . . . firearms possession . . .
    offense” (emphasis added), and applying the four-level enhancement in U.S.S.G.
    § 2K2.1(b)(6) does not implicate the “double counting” concerns underlying our
    -6-
    decision in 
    Lindquist, 421 F.3d at 756
    . Rather, Walker “used . . . [the] firearm . . . in
    connection with another felony offense” when he was involved in the shooting at
    1405 Idaho Street. Therefore, the district court did not err in imposing the four-level
    enhancement.3
    The judgment of the district court is affirmed.
    ______________________________
    3
    Given our decision the four-level enhancement was properly imposed, we need
    not address the government’s alternative argument that any error was harmless. In
    imposing the forty-four-month sentence, the district court explicitly stated that, due
    to Walker’s connection with the drive-by shooting and history of violent crimes, it
    would impose that sentence after considering the sentencing factors in 18 U.S.C.
    § 3553(a) “regardless of how I resolve the issue of the four-point enhancement.” See
    United States v. LaRoche, 
    700 F.3d 363
    , 365 (8th Cir. 2012).
    -7-