United States v. Martin Simmons

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4377
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARTIN SIMMONS, a/k/a Travis Green, a/k/a Marty Raashan
Simmons, a/k/a Marty, a/k/a Martin Raashan Simons, a/k/a
Martin Rahshan Simons,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00467-PMD-1)
Argued: May 13, 2011 Decided: July 5, 2011
Before MOTZ, DAVIS, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
opinion. Judge Keenan wrote the opinion, in which Judge Motz
and Judge Davis joined.
ARGUED: John Robert Haley, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, South Carolina, for Appellant. Sean
Kittrell, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee. ON BRIEF: William N. Nettles, United
States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
KEENAN, Circuit Judge:
Martin Simmons was convicted, upon his plea of guilty, of
one count of unlawful possession of a firearm by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and
924(e). When entering his guilty plea, Simmons reserved his
right to appeal the district court’s denial of his motion to
suppress evidence of the firearm. The district court sentenced
Simmons to a term of 110 months’ imprisonment.
On appeal, Simmons argues that the district court erred: 1)
in denying his motion to suppress; and 2) in applying a four-
level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6). We
conclude that the district court did not err in denying Simmons’
motion to suppress and, therefore, affirm Simmons’ conviction.
However, because we conclude that the district court erred in
applying the sentencing enhancement, we vacate Simmons’ sentence
and remand the case for resentencing.
I.
A.
Around 4:28 a.m. on February 14, 2009, a “dispatch” issued
by the police department of the City of Charleston, South
Carolina, alerted officers on duty about reports of gunfire
occurring at the corner of Hanover and Amherst Streets. Officer
Flaherty, who first responded to the scene, walked around the
2
area and reported by radio to Officer Michael Moody and Officer
Vachowski that Flaherty did not observe any individuals in the
area. 1
Around the same time, Officer Moody and Officer Vachowski
were driving south on Nassau Street, headed toward the
intersection of Nassau and Amherst Streets. The police officers
observed Simmons and another man walking quickly, turning from
Amherst Street onto Nassau Street in a northbound direction. At
that time, Simmons and his companion were located about one
block from the area where the gunfire reportedly had occurred.
Officer Moody considered this location as being a “high crime”
area.
Officer Moody and Officer Vachowski approached Simmons and
his companion. Officer Moody told the men about the reports of
gunfire and asked, “Did you guys happen to hear anything?”
Simmons nodded his head, and stated that he was leaving the area
because he had heard the gunfire.
Officer Moody asked Simmons whether he was carrying any
weapons, and Simmons replied that he was not. When Officer
Moody asked Simmons if he could conduct “a quick pat down for
weapons,” Simmons agreed.
1
The record does not reflect the first names of Officer
Flaherty and Officer Vachowski.
3
As Officer Moody began conducting a pat-down search of
Simmons’ pants, Simmons leaned the right side of his body
against a building, thereby preventing Officer Moody from
feeling Simmons’ right side. To reposition Simmons’ body,
Officer Moody placed his hands on Simmons’ hips.
As Officer Moody’s left hand moved across the front of
Simmons’ hips, Officer Moody felt an object in Simmons’ right
front pocket and sensed that the object was a firearm. When
Officer Moody asked, “Hey, what [is] this?” Simmons ran away.
Officer Moody chased Simmons along Amherst Street. After
Officer Moody observed Simmons reach into his right pocket and
throw a metallic object onto the ground while continuing to run,
Officer Moody reported by radio to Officer Flaherty that Simmons
was running toward Officer Flaherty. Simmons eventually was
apprehended by Officer Flaherty and another police officer.
The police officers recovered the metallic object that
Simmons discarded, which they identified as a .357 caliber
revolver. The firearm contained two spent rounds of ammunition,
and four unspent rounds of ammunition. The police officers also
found additional ammunition inside Simmons’ pockets.
B.
In April 2009, a grand jury indicted Simmons on the single
count of possession of a firearm by a convicted felon. Simmons
filed a motion to suppress evidence of the firearm, arguing that
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the police seized the weapon as a result of an unlawful seizure
of his person in violation of the Fourth Amendment.
The district court denied Simmons’ suppression motion,
holding that the police officers had reasonable suspicion to
stop and frisk Simmons pursuant to Terry v. Ohio, 392 U.S. 1(1968). The district court alternatively concluded that Simmons
consented to the stop and frisk.
Following Simmons’ guilty plea and conviction, a probation
officer prepared a presentence report (PSR) recommending that
Simmons receive a two-level enhancement under U.S.S.G. § 3C1.2
for reckless endangerment during flight, and a three-level
downward reduction under U.S.S.G. § 3E1.1 for acceptance of
responsibility. The government objected to the PSR, arguing
that instead of a two-level enhancement for obstruction of
justice, Simmons should receive a four-level enhancement under
U.S.S.G. § 2K2.1(b)(6) for possessing a firearm in connection
with another felony. 2
2
According to the government, Simmons possessed the firearm
in connection with two felony offenses under South Carolina law:
discharging a firearm at or into a dwelling in violation of
South Carolina Code § 16-23-440, and pointing a firearm at any
person in violation of § 16-23-410. However, because the
district court did not apply an enhancement based on either of
these two offenses, we do not address whether they would have
been applicable in the present case.
5
At the sentencing hearing, the district court concluded
that Simmons qualified for a four-level enhancement under
U.S.S.G. § 2K2.1(b)(6), finding that Simmons possessed a firearm
in connection with another felony, namely, resisting arrest with
a deadly weapon. The resulting offense level of 25, when
combined with a criminal history category of VI, yielded a
guidelines range of 110 to 120 months’ imprisonment. Based on
this guidelines range, the district court sentenced Simmons to a
term of 110 months’ imprisonment.
II.
A.
We first consider whether the district court erred in
denying Simmons’ motion to suppress evidence of the firearm. We
review the factual findings underlying the district court’s
denial of the motion to suppress for clear error, and the
court’s legal conclusions de novo. United States v. Blake, 571
F.3d 331, 338 (4th Cir. 2009). A factual finding is clearly
erroneous if this Court “on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
United States v. Harvey, 532 F.3d 326, 337 (4th Cir. 2008)
(internal quotation marks omitted). When the district court has
denied a motion to suppress, we construe the evidence in the
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light most favorable to the government. United States v.
Farrior, 535 F.3d 210, 217 (4th Cir. 2008).
Simmons contends that the police officers unlawfully
seized him at the time that they initially approached and
questioned him and his companion. According to Simmons, the
police officers lacked reasonable suspicion to conclude that he
was engaged in criminal activity.
A person is seized for purposes of the Fourth Amendment
when a police officer, “by means of physical force or show of
authority,” restrains that person’s freedom of movement. United
States v. Mendenhall, 446 U.S. 544, 553 (1980); see Terry, 392
U.S. at 19 n.16. Conversely, a voluntary encounter between the
police and a citizen does not constitute a seizure prohibited by
the Fourth Amendment. See Florida v. Bostick, 501 U.S. 429, 434
(1991). Thus, even when police officers do not have a
reasonable suspicion that an individual may be engaged in
criminal activity, they may approach that person and ask
questions without violating the Fourth Amendment. See id. at
435; United States v. Lewis, 606 F.3d 193, 197-98 (4th Cir.
2010).
The Supreme Court has acknowledged that most individuals
will feel obligated to respond when asked questions by a police
officer, but has held that this fact alone will not convert a
consensual encounter into a seizure. INS v. Delgado, 466 U.S.
7
210, 216 (1984). The Court has explained that a contrary
conclusion would create constitutional barriers to everyday
encounters between the police and individual citizens, imposing
unrealistic burdens on “a wide variety of legitimate law
enforcement practices.” Mendenhall, 446 U.S. at 554. Thus, the
Supreme Court has concluded that an encounter between the police
and a citizen does not constitute a seizure unless, taking into
account all the circumstances of the encounter, “a reasonable
person would . . . believe[] that he was not free to leave.”
Id.If the person being questioned by the police objectively
“remains free to disregard the questions and walk away,” there
is no demonstrable restriction on the person’s liberty and the
encounter does not result in a seizure. Id. Some factors that
might indicate the occurrence of a seizure include the
threatening presence of several police officers, their display
of weapons, a physical touching of the person to whom the
questions are directed, and the use of language indicating that
compliance with the police request is required. Id.; United
States v. Perry, 560 F.3d 246, 253 (4th Cir. 2008).
Upon review of the present record, we conclude that the
evidence supports the district court’s conclusion that the
police officers’ initial encounter with Simmons was consensual.
At the beginning of the encounter, Officer Moody and Officer
8
Vachowski merely approached Simmons and his companion on a
public street and asked whether they had heard gunfire. When
Simmons replied that he had heard gunfire and was walking away
from the area for that reason, Officer Moody asked Simmons if he
was carrying a weapon. Simmons voluntarily responded that he
was not. The police officers did not tell Simmons that he was
required to stay and answer their questions, and Simmons did not
make any attempt to leave.
The evidence refutes Simmons’ contention that the only
reason he was stopped was “because he was a black man walking in
a predominantly black neighborhood,” about 4:30 a.m. Based on
the officers’ testimony, which the district court accepted,
Officer Moody and Officer Vachowski approached Simmons and his
companion in furtherance of their investigation of the reported
gunfire in that area. Simmons responded freely to Officer
Moody’s questions and did not express any reluctance to speak
with him. Thus, considering all these circumstances, the
initial encounter between the officers and Simmons was
consensual and did not constitute a seizure of Simmons’ person,
because the record failed to show that “a reasonable person
would . . . believe[] that he was not free to leave.” See
Mendenhall, 466 U.S. at 554.
Simmons argues, nonetheless, that his motion to suppress
should have been granted because the evidence failed to support
9
the district court’s finding that Simmons initially consented to
the pat down of his person. Simmons’ argument, however, fails
to acknowledge that Officer Moody testified that Simmons agreed
to a “brief pat down” for weapons. It was only when Simmons
leaned the right side of his body against a building and Officer
Moody attempted to reposition him, that Simmons exhibited a
reluctance to act in accord with his initial consent.
Simultaneously with this attempted repositioning, Officer Moody
felt the object in Simmons’ pocket that Moody thought was a
firearm.
Although Officer Moody acknowledged that a suspect’s act of
leaning in one direction before a pat-down search “usually” is
inconsistent with consent, the district court nevertheless found
that Simmons “was hoping to get beyond the moment. He was
talking on the phone. He postured himself in a way that perhaps
the pistol wouldn’t be found. But when it was, he was prepared
to run.” Thus, the district court found “it credible that the
officer said that [Simmons] gave consent, but upon finding the
pistol, [Simmons] fled.” Accordingly, based on this record, the
district court’s factual finding that Simmons consented to the
pat-down search prior to fleeing from the officers is not
clearly erroneous.
We further observe that once Officer Moody felt on Simmons’
person an object Officer Moody thought was a firearm and Simmons
10
immediately ran away from the officers, the officers had, at
minimum, reasonable suspicion to detain Simmons for further
investigation. See Terry, 392 U.S. at 30. When Simmons was
observed to discard the firearm during the officers’ ultimately
successful effort to apprehend him, he abandoned any residual
expectation of privacy he may have harbored in respect to his
possession of the firearm. Thus, we hold that the district
court did not err in denying Simmons’ motion to suppress
evidence of the weapon discarded by Simmons at the scene of the
crime.
B.
The next issue we consider is whether the district court
erred in applying a four-level sentencing enhancement under
U.S.S.G. § 2K2.1(b)(6). A district court’s determination that
such an enhancement is applicable is a factual finding, which we
review for clear error. United States v. Carter, 601 F.3d 252,
254 (4th Cir. 2010).
Section 2K2.1(b)(6) provides for a four-level enhancement
if a defendant “used or possessed any firearm or ammunition in
connection with another felony offense.” U.S.S.G. §
2K2.1(b)(6). Before applying the enhancement, a district court
must conclude that the defendant committed a separate felony
offense. See United States v. Blount, 337 F.3d 404, 406-07 (4th
Cir. 2003). In this case, the district court applied the §
11
2K21.1(b)(6) enhancement based on the court’s conclusion that
Simmons had “resist[ed] arrest with [a] deadly weapon,” an
offense that is a felony under South Carolina Code § 16-3-625.
To determine whether Simmons committed a felony offense
under South Carolina Code § 16-3-625, we examine the express
language of that statute. The statutory language defines
“resisting arrest with [a] deadly weapon” as “resist[ing] the
lawful efforts of a law enforcement officer to arrest [the
defendant] or another person with the use or threat of use of a
deadly weapon against the officer, and the [defendant] is in
possession or claims to be in possession of a deadly weapon.”
S.C. Code § 16-3-625.
According to Simmons, the act of discarding a weapon while
fleeing from police officers is not sufficient to establish that
he “use[d]” or “threat[ened] to use” a dangerous weapon within
the meaning of § 16-3-625. The government contends, however,
that Simmons “used” a dangerous weapon by retrieving the loaded
firearm from inside his pants pocket and discarding it. We
disagree with the government’s position.
Although the terms “use” and “threat of use” are not
defined in South Carolina Code § 16-3-625, we interpret those
terms based on their plain meaning and the context in which they
are employed. See United States v. Groce, 398 F.3d 679, 681
(4th Cir. 2005). The language of the statute requires that a
12
person “use,” or make a “threat of use,” of a deadly weapon
“against” a law enforcement officer. S.C. Code § 16-3-625.
The evidence in this case showed that Simmons was not
holding the weapon in his hand when he was confronted by the
officers. Instead, after the police officers approached
Simmons, Officer Moody conducted a pat-down search of Simmons’
person, feeling what Moody thought was a weapon in Simmons’
front right pocket. When Simmons fled from the police, the
weapon remained in his pocket. As he was running away, Simmons
reached into his pocket and discarded the weapon.
This evidence does not show that Simmons, by discarding the
weapon, “used” the weapon, or made a “threat of use” of the
weapon, to impede Officer Moody’s pursuit or to defend “against”
the officers’ attempt to capture him. Thus, we conclude that
Simmons’s “use” or “threat of use” of the weapon, if any, did
not constitute a “use” or “threat of use” “against” a law
enforcement officer, as required by the plain language of the
statute. Accordingly, we hold that Simmons did not “resist[]
arrest with [a] deadly weapon,” as prohibited by South Carolina
Code § 16-3-625, and that the district court clearly erred in
applying the § 2K2.1(b)(6) enhancement based on the court’s
contrary conclusion that Simmons committed a felony offense
under that statute.
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III.
For these reasons, we affirm Simmons’s conviction, but we
vacate his sentence. We remand the case to the district court
for resentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
14