United States v. Robinson, Abraham N.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2428
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ABRAHAM N. ROBINSON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 06 CR 40113—Michael M. Mihm, Judge.
____________
ARGUED JANUARY 16, 2008—DECIDED AUGUST 12, 2008
____________
Before MANION, WOOD, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Abraham Robinson conditionally
pleaded guilty to being a felon in possession of a firearm,
reserving the right to appeal the district court’s denial of
his suppression motion. He argues that the gun found in
his pocket should have been suppressed because it was
seized in violation of the Fourth Amendment when police
detained and frisked him without reason to suspect he
was armed and involved in a crime. We disagree. The
officers who conducted the stop and frisk knew that
Robinson was a felon, and they had just received informa-
tion suggesting he was then carrying a gun. They also
2 No. 07-2428
personally observed him loitering in a high-crime area
at two thirty in the morning, visibly carrying some-
thing heavy in his right pants pocket. Together, this
information was sufficient to justify the stop and weapons
frisk.
Robinson also challenges his sentence, claiming the
district court improperly applied sentencing guidelines
enhancements for assault of an official victim and for
possessing a gun in connection with another felony. See
U.S.S.G. §§ 3A1.2(c)(1), 2K2.1(b)(6).1 We conclude that
the enhancement for assault of an official victim was
properly applied, but the district court’s findings do not
adequately support application of the “other felony”
enhancement. Accordingly, we affirm Robinson’s con-
viction but vacate his sentence and remand for further
proceedings consistent with this opinion.
I. Background
At two thirty in the morning on a late-September day
in 2006, police in Rock Island, Illinois, established a
substantial presence outside Jimmy’s Bar, a tavern in a
tough neighborhood on the west end of town. The bar
was notorious for fights and shootings that tended to
erupt around closing time, and six officers were stationed
there to ensure there was no repeat of recent violent
incidents. As they stood watch, a citizen known to one
of the officers approached and reported that “Salty Dog”
1
In the November 1, 2006 edition of the guidelines—which
applied at Robinson’s sentencing—the guideline was num-
bered U.S.S.G. § 2K2.1(b)(5). We cite to the current (2007) version
of the guidelines because no relevant changes have been made.
No. 07-2428 3
was in the area carrying a handgun. A few minutes later
the source—who said he had heard this information from
a woman inside the bar—told the officers that Salty Dog
had come to Jimmy’s to avenge a fight that occurred
there a week earlier but had been turned away by bar
employees when they learned he was armed and planning
revenge.
The officers were well-acquainted with Salty Dog. He
was Abraham Robinson, a habitual criminal with gang
ties who had served time in prison for a drug offense. They
also knew he was a suspect in a 2002 shooting and had
himself been the target of a separate shooting that
same year. The officers’ source on the scene outside
Jimmy’s said Robinson was wearing a red t-shirt and
jeans and was about a half block away, milling about in a
large crowd in an open field abutting a house that had
recently been the scene of several fights, drive-by shoot-
ings, and a homicide.
About fifteen minutes later, officers received a report
of a 911 call from Jeffie Lee, the owner of the house next
to the field where Robinson was located. Lee told the 911
operator she had just received a telephone call informing
her that a man with a gun was standing in the crowd
outside her house. The officers (who were also familiar
with Lee) then approached the home but did not act
immediately because they were seriously outnumbered.
The throng of people was about 60 or 70 strong, and the
officers feared a riot if they tried to confront Robinson. As
they waited for the crowd to disperse, one officer observed
that Robinson kept “favoring his right side,” pulling
his pants up on that side and patting his right pants pocket.
He was acting as if he had something heavy in that pocket,
and the officer, not surprisingly, suspected it was the
gun Robinson was reported to be carrying.
4 No. 07-2428
As the crowd began to clear out, the police supervisor
on the scene ordered the officers to “take [Robinson]
down now.” Five or six officers approached from behind,
and when they were arm’s length from Robinson, one
officer yelled: “Police. Stop. Put your hands up.”
A struggle ensued. Robinson reached for his waist-
band or his right pants pocket, and the officers tried to grab
his hands to get control over him. That effort did not
initially succeed, and one officer warned Robinson that
he would be Tasered if he did not put his hands up.
Robinson kept on struggling, and the officers continued
to have difficulty subduing him—he was more than six
feet tall and weighed more than 300 pounds. The officers
ultimately resorted to using the Taser, and although
Robinson’s resistance continued, one officer managed to
remove a large, loaded Smith & Wesson revolver from
Robinson’s right pants pocket.
Robinson was charged with being a felon in possession
of a firearm but sought to have the evidence of the gun
suppressed, arguing that the stop and frisk were con-
ducted without reasonable suspicion, in violation of his
Fourth Amendment rights. The district court denied the
suppression motion, and Robinson conditionally pleaded
guilty, reserving the right to appeal the suppression
decision.
At sentencing the judge applied a sentencing enhance-
ment for assault of an official victim because Robinson had
assaulted the officers who were trying to frisk him. See
U.S.S.G. § 3A1.2. The judge also found that Robinson had
attempted to shoot the officers and on that basis applied
an enhancement for illegal possession of a firearm in
connection with another felony. See U.S.S.G. § 2K2.1(b)(6).
With these enhancements Robinson’s guidelines sen-
No. 07-2428 5
tence was equal to the statutory maximum—120 months,
see 18 U.S.C. § 924(a)(2); U.S.S.G. § 5G1.1—but the court
imposed a below-guidelines sentence of 95 months in
prison. On appeal, Robinson challenges the denial of his
suppression motion and the two sentencing enhancements.
II. Analysis
A. The Stop and Frisk
Robinson argues the district court should have sup-
pressed the evidence of the revolver because it was recov-
ered during an illegal search. We disagree. The stop and
frisk were legal so long as the officers had a sufficiently
good reason—a “reasonable suspicion”—to believe Robin-
son was illegally carrying a weapon. See Terry v. Ohio,
392 U.S. 1 (1968); United States v. Barnett, 505 F.3d 637, 639-
40 (7th Cir. 2007). There was ample reasonable suspicion
of that here.2
2
The parties argue about precisely when Robinson was
“seized” for purposes of the Fourth Amendment. Robinson
maintains he was seized when the officers approached and
ordered him to stop and put his hands up. The government
asserts that because Robinson did not initially submit to the
officers’ command and show of authority, he was not seized
until they applied physical force and he submitted. See California
v. Hodari D., 499 U.S. 621, 627-29 (1991); United States v. Ford, 333
F.3d 839, 843 (7th Cir. 2003). If this later point in the encounter
is considered the seizure, the government argues, then Robin-
son’s resistance supplied probable cause to arrest him for
resisting or obstructing an officer under Illinois law. See 720 ILL.
COMP. STAT. 5/31-1(a). We need not resolve the question; there
was reasonable suspicion to support a Terry stop and frisk for
weapons.
6 No. 07-2428
First, the officers had information from two tips: one
reporting that Robinson was armed with a gun and
looking for a fight, the other relaying a report that a man
with a gun was outside Jeffie Lee’s house, precisely
where Robinson was loitering. Because the officers knew
that Robinson was a felon, these tips alone suggested
Robinson was committing a crime.3 See 18 U.S.C. § 922(g)(1)
(prohibiting firearm possession by felons, the offense
of conviction here). These leads were corroborated by a
wealth of other information. The officers personally
observed that Robinson was carrying something heavy
in his right pants pocket. They knew that Jimmy’s, the
bar that had turned Robinson away, was the regular
scene of fights and shootings, particularly at that time
of night—bar closing time. They knew that the area
around Jeffie Lee’s house—where Robinson was loitering,
in the midst of a large crowd—had recently been the
scene of a murder, a drive-by shooting, and a number of
violent fights. Cf. United States v. Jackson, 300 F.3d 740, 746
(7th Cir. 2002) (citing United States v. Brown, 188 F.3d 860,
865 (7th Cir. 1999)) (defendant’s presence in “high crime
area” is relevant). All of this made it more likely that the
tips were accurate.
Moreover, the officers knew that Robinson’s criminal
history included involvement with guns. They knew he
was a gang member, was a suspect in a shooting, and
3
When officers stopped Robinson, they knew he had
served time in prison for a drug offense. Although it can
be inferred from this that they knew he was a felon, the record
is a bit unclear on the point. However, both Robinson and the
government acknowledge the officers knew that Robinson
was a felon, so we take that fact as established.
No. 07-2428 7
was himself the target of a shooting. Cf. Jackson, 300 F.3d
at 746 (officer’s knowledge of prior criminal activity
contributes to reasonable suspicion). Combined, this
information was more than sufficient to provide reason-
able suspicion that Robinson was illegally carrying a gun.
Robinson attempts to avoid this conclusion by emphasiz-
ing that the officers’ two sources hadn’t personally ob-
served that Robinson was carrying a gun. Since the
sources were merely relaying information obtained from
others, whom the officers didn’t know, Robinson character-
izes their leads as uncorroborated “anonymous tips,”
which are generally insufficient to create reasonable
suspicion. See Florida v. J.L., 529 U.S. 266, 271-72 (2000).
The tips at issue here, however, did not suffer from the
problems typically associated with anonymous tips. In the
usual anonymous-tip case, officers cannot assess the
credibility of the source and have no way to hold the
source responsible if the information turns out to be
fabricated. See id. That makes the tips less reliable and
generally not sufficient to create reasonable suspicion.
Here, by contrast, the officers were familiar with both of
the sources who relayed information about Robinson,
could assess their credibility, and knew where to find
them if the information they provided turned out to be
false. While the information they conveyed was second-
hand, we think it significant that the sources who did
come forward were willing to identify themselves to
police, suggesting that they found the information about
Robinson to be credible and worthy of police attention. The
information from these sources was corroborated by other
information already known to or acquired by the offi-
cers—the officers’ personal observations of Robinson
protecting something heavy in his pocket, their knowl-
8 No. 07-2428
edge of his criminal background, and the crime-laden
history of the area where he was loitering—and provided
good reason to suspect that Robinson was illegally
carrying a gun. The suppression motion was properly
denied.
B. Sentencing Enhancements
1. Assault of an Official Victim, U.S.S.G. § 3A1.2(c)
Robinson challenges the six-level sentencing guide-
lines enhancement for assaulting the police officers, see
U.S.S.G. § 3A1.2(c)(1), claiming there was insufficient
evidence to support it. This victim-related adjustment
applies when the defendant (1) assaulted an officer
during his offense or while fleeing, (2) created substan-
tial risk of bodily harm to the officer, and (3) knew or
had reason to believe that the person assaulted was an
officer.
The evidence easily supported the second and third of
these requirements. Officers testified that Robinson
struggled with them and repeatedly attempted to draw his
loaded gun, which created a grave risk of serious injury.
Robinson knew he was dealing with police officers: they
were in uniform and identified themselves by shouting
“Police.”
But the first requirement—that Robinson assaulted
police—requires a bit more explanation. The guideline
doesn’t define assault, and the exact requirements for
assault vary from jurisdiction to jurisdiction. See United
States v. Lee, 199 F.3d 16, 18-19 (1st Cir. 1999). In most
jurisdictions (and in Illinois), assault includes any “conduct
which places another in reasonable apprehension of
receiving a battery,” a standard easily met in this case. See,
No. 07-2428 9
e.g., 720 ILL. COMP. STAT. 5/12-1(a) (2008). The problem is
that in some jurisdictions there is also an intent require-
ment that has spawned a great deal of confusion. Lee, 199
F.3d at 18-19. Under the most demanding standard, a
defendant must intend to “cause apprehension” or actual
“bodily harm.” 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMI-
NAL LAW § 16.3(b) (2d ed. 2003).
We doubt that such a stringent intent requirement
applies to § 3A1.2(c). See Lee, 199 F.3d at 19. But even if
it did, Robinson’s conduct would still qualify as assault.
The district court explicitly found that Robinson reached
for his gun because he intended to “use the gun unlaw-
fully against” officers, and we can’t imagine a use of the
gun that wouldn’t involve an intent to intimidate or to
cause bodily harm.
There was, of course, another reasonable explana-
tion—that Robinson was trying to get rid of the gun before
the police found it. Cf. United States v. Agee, 333 F.3d
864 (8th Cir. 2003). But we are satisfied that the judge
considered and reasonably rejected this possibility. At
sentencing the prosecutor addressed the possibility that
Robinson was just trying to throw away his revolver but
argued that this explanation was improbable because
Robinson was already flanked by half a dozen officers. The
district court apparently agreed, and given the evidence,
was entitled to do so. The court properly applied the
enhancement for assault of an official victim under
§ 3A1.2(c).
2. Firearm Possession “in connection with another
felony, ” U.S.S.G. § 2K2.1(b)(6)
More problematic, however, is the application of the
four-level enhancement under U.S.S.G. § 2K2.1(b)(6),
10 No. 07-2428
which applies if Robinson “used or possessed” the gun “in
connection with another felony offense.” The district
court applied the guideline after finding that Robinson
repeatedly reached for the gun while resisting the officers.
Cf. United States v. Jackson, 276 F.3d 1231, 1235 (11th Cir.
2001); United States v. Rodriquez, 185 F. App’x 813, 815 (11th
Cir. 2006) (unpublished). The court’s theory was that
Robinson was attempting to shoot the officers and there-
fore had committed the felony offenses of attempted
aggravated battery and attempted aggravated firearm
discharge.
While we have accepted the district court’s finding that
Robinson was not reaching for his gun in order to discard
it, the district court’s remaining findings do not support
the inference that Robinson intended and was attempting
to shoot the officers. Reaching for a gun may indicate an
intent to point, brandish, or fire it, or perhaps to use it in
another way—for example, to hold the officers at bay in
order to effectuate an escape. Although attempting to
shoot (or pistol-whip or otherwise harm) the officers
would be a felony attempted aggravated battery, attempt-
ing to point or brandish the gun would only be a misde-
meanor attempted aggravated assault under Illinois law.
Compare 720 ILL. COMP. STAT. 5/12-4(b)(18), (e)(2) & (3)
(aggravated battery is a Class 1 or 2 felony) and 720 ILL.
COMP. STAT. 5/8-4(c)(3), (4) (attempt to commit Class 1 or
2 felony is also a felony), with 720 ILL. COMP. STAT. 5/12-
2(a)(6), (b) (aggravated assault is a Class 4 felony) and 720
ILL. COMP. STAT. 5/8-4(c)(5) (attempt to commit a Class 4
felony is a misdemeanor).4
4
Robinson’s refusal to obey police orders coupled with his
repeated attempts to reach the gun in his pocket may also have
(continued...)
No. 07-2428 11
The district judge apparently concluded that any use of
the gun would have been felonious, so he did not distin-
guish an attempt to shoot the officers from any of the other
attempt possibilities that exist on this record, some of
which are only misdemeanors. The judge did not formally
explain why he chose one option over any other. Further
factfinding is required on the application of this enhance-
ment.
Robinson asks us to affirmatively hold that the guide-
line cannot be applied on remand, but we think the dis-
trict court could find that Robinson’s conduct amounted
to attempted aggravated battery, depending on the
court’s parsing of the direct and circumstantial evidence.
To establish attempted aggravated battery, the government
needs to show that Robinson intended to commit a
4
(...continued)
qualified as aggravated assault based on the status of his victims
as police officers. Robinson knew they were officers, and his
conduct would have put them in “reasonable apprehension of
receiving a battery.” See 720 ILL. COMP. STAT. 5/12-1(a);
5/12-2(a)(6), (16). But this form of aggravated assault is a
misdemeanor unless “a firearm [was] used in the commission of
the assault.” See 720 ILL. COMP. STAT. 5/12-2(b) (describing
aggravated assault under § 5/12-2(a)(6) and (16) as a misde-
meanor “if a firearm is not used”). We cannot conclude that
Robinson “used” his gun to commit assault; “use” generally
goes beyond mere possession. Cf. Bailey v. United States, 516 U.S.
137, 143 (1995) (in federal statute, use of firearm “signifies active
employment” and connotes “more than mere possession of a
firearm”). So if Robinson’s conduct amounted to this form of
aggravated assault, it would have been the misdemeanor class
of the offense because a firearm was not “used in the commis-
sion of the assault.”
12 No. 07-2428
battery and that he took a substantial step toward doing
so. See 720 ILL. COMP. STAT. 5/8-4; People v. Britz, 349 N.E.2d
418, 420 (Ill. App. Ct. 1976) (discussing attempted aggra-
vated battery). While there is no direct evidence of Robin-
son’s intent, there is some circumstantial support for an
inference that he intended to shoot. Robinson was, after
all, reaching for a loaded gun, and the fact that it was
loaded suggests that he didn’t carry the gun just for show.
There is also evidence that he was a suspect in another
shooting, which might suggest that he uses guns to shoot
rather than intimidate. As for the “substantial step”
requirement, one officer testified that he believed that
Robinson had managed to put his hand on his gun, and at
a minimum, Robinson repeatedly reached for his waist-
band or pocket in an attempt to retrieve his gun, which
would qualify as a “substantial step.”
Accordingly, we conclude that the police had reasonable
suspicion to conduct a Terry stop and frisk for weapons,
and therefore AFFIRM Robinson’s conviction. We reject the
first of Robinson’s challenges to his sentence, regarding
application of the enhancement for assault of an official
victim under § 3A1.2(c). We conclude, however, that the
district court’s findings were insufficient to permit applica-
tion of the enhancement for possession of a firearm in
connection with another felony under § 2K2.1(b)(6).
Accordingly, we VACATE Robinson’s sentence and REMAND
for further proceedings consistent with this opinion.
8-12-08