United States v. Michael Hester
Opinion
Michael Hester was convicted of being a felon in possession of a firearm following the District Court's denial of his motion to suppress. At sentencing, the District Court applied a four-level enhancement to Hester's Guidelines range under the theory that Hester's possession itself constituted New Jersey evidence tampering. In light of the District Court's uncertainty regarding the proper application of the enhancement, the court varied downward to mitigate its effect, and sentenced Hester to 86 months' imprisonment. Hester appeals both the denial of the motion to suppress and the application of the enhancement at sentencing.
For the reasons that follow, we will affirm the denial of the motion to suppress. However, we hold that the application of the evidence tampering sentencing enhancement was erroneous. Accordingly, we will vacate the sentence and remand to permit resentencing.
I
On October 7, 2014 around 11:40 p.m., Hiddayah Muse parked a car in front of a corner store in Newark, New Jersey, in close proximity to a crosswalk. Muse left the car idling while she entered the store, with Appellant Michael Hester waiting in the passenger seat. Meanwhile, four officers in two police cars-one marked, one not-were on patrol in the area and noticed that the idling vehicle was illegally parked fewer than twenty-five feet from the crosswalk. 1
The officers remained to investigate in light of the parking violation and the vehicle's location in front of a store with a known history of narcotics sales. Several of the officers had specific knowledge of the store's history. One had made multiple drug arrests there; another testified that he was "very familiar" with the store because it had "been the subject of many investigations" connected to "distribution of many various narcotics." App. 242. The officers also knew that the store had a buzzer system, which would allow staff to deny them permission to enter without a warrant.
As soon as Muse exited the store and re-entered the vehicle, the marked police car pulled up along the driver's side of the car, and the unmarked car pulled up behind it. The officers exited their cruisers and approached both sides of the vehicle on foot. One of the officers from the marked police car approached Muse at the driver's side window; the other three approached and stood at the passenger's side of the vehicle-in this case, on Hester's side.
When an officer began his questioning of Muse, she admitted that she did not have a driver's license and that the car was not registered in her name. At that point, the officer directed Muse to turn off the engine and step out of the car. Hester-who had remained in the passenger seat as the officers pulled up, approached the car on foot, and began questioning Muse-interjected, "We're good, officer. I can drive." App. 11. Hester then began to rise and exit the vehicle but, as he did so, one of the officers heard what sounded to him like the familiar thud of a gun hitting the floorboards of a vehicle. Another officer, who had been observing Hester's hands and testified to seeing him drop the gun, verbally alerted the other officers to the presence of a weapon. At the verbal signal, Hester attempted to run, but one officer reached for and caught Hester's shirt and Hester was quickly apprehended. In the interim, one of the officers near the vehicle confirmed the presence of a gun at the foot of the passenger's seat and remained with the weapon per police protocol. Hester was then arrested and taken into custody. Because of the rapid turn of events, the officers did not search Muse and ultimately allowed her to drive away, notwithstanding her lack of a license to drive the vehicle. 2
Because Hester had previously been convicted of a felony, he was indicted for being a felon in possession of a firearm under
At Hester's sentencing, the parties disputed the applicable Guidelines range. The pre-sentence report calculated an offense level of 26, which included a four-level enhancement for possession of a firearm in connection with another felony. U.S.S.G. § 2K2.1(b)(6)(B). Without the enhancement, the applicable Guidelines range would have been 84 to 105 months; with the enhancement, the range increased to 120 to 150 months. The Government sought the enhancement on the grounds that Hester's cousin had previously used the same firearm in an unrelated crime and had given it to Hester for disposal. In support of this theory, the Government cited recordings of calls Hester made to relatives from jail in which he expressed regret that he had still been in possession of the firearm when he encountered the officers, having intended to dispose of it. The Government argued that this was tantamount to evidence tampering, a separate felony under New Jersey law. See N.J. Stat. Ann. § 2C:28-6.
Although the District Court twice described the Government's proposed application of the sentencing enhancement as "a little crazy," the Court nevertheless applied the enhancement. App. 357. To mitigate its effect, however, the Court varied downward by four offense levels-the exact number added by the enhancement. The District Court sentenced Hester to 86 months' imprisonment, the Guidelines range that would have applied without the enhancement was 84 to 105 months.
Hester timely appealed both the denial of the motion to suppress and his sentence.
II
The District Court had jurisdiction under
III
"Warrantless searches and seizures are presumptively unreasonable and are therefore prohibited under the Fourth Amendment, unless an exception applies."
United States v. Mundy
,
Consensual encounters, by contrast, "implicat[e] no Fourth Amendment interest."
Florida v. Bostick
,
Relevant here, any evidence obtained incident to an unconstitutional seizure unsupported by reasonable suspicion "must be suppressed as 'fruit of the poisonous tree.' "
Brown
, 448 F.3d at 244 (quoting
Wong Sun v. United States
,
A.
"[I]t is settled law that a traffic stop is a seizure of everyone in the stopped vehicle."
United States v. Mosley
,
In
United States v. Edwards
, two police cars pulled up to a parked, occupied convertible matching a description suspected to be involved in a crime.
By contrast, in
United States v. Williams
, we held that police officers who inadvertently came upon an open, parked van in broad daylight engaged in a consensual encounter-not a seizure.
Here, when Muse returned to the car, the officers drove up to it and parked around the vehicle, with the marked police cruiser at the driver's side and the unmarked car behind. Only once the patrol cars were stationed at the perimeter of the vehicle did the officers approach on foot. The officers, too, positioned themselves around the vehicle, near any potential exit points-one officer at the driver's side, and three officers on the passenger's side. Against this backdrop, the officer nearest Muse initiated the familiar line of questioning typical of a traffic stop: he asked her for her driver's license.
We conclude that the initial police conduct in this case is closer in kind, if not in degree, to the conduct in
Edwards
than to that in
Williams
. Here, Muse reentered the idling parked car, which would have been capable of leaving the scene, but for the change in circumstances signaled by the surrounding police cruisers and officers. Following this and the subsequent directive to turn off the engine, Muse assuredly would not have felt free to drive away, and a reasonable person in Hester's position would likewise not have felt free "to ignore the police presence and go about his business."
Bostick
,
B.
Our seizure analysis does not end with our conclusion that there was a show of authority, however. For us to conclude that a seizure occurred, we must find that Hester submitted to that show of authority. The Government argues-and the District Court found, in the alternative-that Hester failed to submit to any show of authority and the interaction was, therefore, not a seizure.
See
Hodari D.
,
In evaluating whether an individual has submitted to authority, brief, subsequent flight does not necessarily indicate an individual has failed to submit. We have held that "not fleeing" in response to a show of authority suggests an individual has submitted to authority.
United States v. Lowe
,
By contrast, in our cases holding that the suspect had not manifested sufficient submission to authority, compliance was extraordinarily brief. In one case, the "momentary compliance" of a person who officers ordered to put his hands on a car was as brief as the suspect taking two steps towards the car in a feint, and subsequently dashing off.
United States v. Smith
,
United States v. Valentine
,
Here, in considering the totality of the circumstances, we are persuaded that Hester submitted to authority while he remained in the vehicle prior to his failed attempt to flee. Hester's short-lived flight followed a longer period of acquiescence. As previously addressed, Hester waited in the passenger seat when two police cars boxed in Muse's car along the curb and four officers approached the car on foot, and he continued to wait as one of the officers questioned Muse, and ordered her out of the car. Unlike in Smith , by the time Hester said he could drive, stood up, and tried to run, Hester had long since submitted to authority.
C
Having concluded that Hester was seized, our inquiry now turns to whether the
Terry
stop was supported by "reasonable, articulable suspicion that criminal activity [wa]s afoot[.]"
Wardlow
,
We determine whether reasonable suspicion existed to support a stop under an objective standard and a totality of the circumstances approach.
See
Terry
,
Among the factors we consider, "[t]he Supreme Court has repeatedly recognized that a reasonable suspicion may be the result of any combination of one or several factors [including,
inter alia
] specialized knowledge and investigative inferences ... [as well as] personal observation of suspicious behavior."
United States v. Brown
,
Under an objective analysis in this case, many factors which may be independently insufficient constitute reasonable suspicion in the aggregate. Here, the officers observed a vehicle illegally idling near a crosswalk, in front of a store with a known history of narcotics-related activity, close to midnight, in a high-crime area of
Newark. The officers' attention was initially, permissibly attracted by the illegally parked car.
Delfin-Colina
,
IV
Having concluded that Hester's weapon was permissibly obtained, we now turn to whether the District Court erroneously applied a four-point enhancement to Hester's Guidelines calculation pursuant to U.S.S.G. § 2K2.1(b)(6)(B). We review a district court's interpretation of the United States Sentencing Guidelines
de novo
.
United States v. Keller
,
The Guidelines provision at issue here provides for a four-point increase of a defendant's Guidelines range calculation, where the defendant "used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense[.]" U.S.S.G. § 2K2.1(b)(6)(B). We have previously held that the "[p]roper application of the four-level enhancement under [U.S.S.G.] § 2K2.1(b)(6) requires finding, by a preponderance of the evidence ... that the defendant committed another felony offense."
United States v. West
,
We conclude that the District Court's application of the sentencing enhancement for the purported commission of New Jersey evidence tampering was erroneous for two reasons. First, the District Court's application of the enhancement to the specific facts of this case was clearly erroneous, because the Government did not show by a preponderance of the evidence that Hester had committed New Jersey evidence tampering. Second, the District Court incorrectly interpreted the Guidelines provision, as a matter of law, by finding that the possession itself-which was coextensive with the alleged secondary felony-occurred "in connection with" the subsequent felony offense. We hold that the application of the enhancement in such a manner is erroneous under any circumstances.
A
Even if the only issue before this Court were whether Hester had tampered with evidence, the Government did not meet its burden to show that Hester committed such a crime. The secondary offense at issue during sentencing was tampering with evidence under New Jersey law. N.J. Stat. Ann. § 2C:28-6. The New Jersey Supreme Court has held that "the crime of tampering with evidence of a possessory crime
includes as a necessary element the permanent alteration, loss, or destruction of the evidence itself
."
State v. Mendez
,
Therefore, in order for the enhancement to apply, the Government would have had to show that Hester effectuated the permanent alteration of the gun in a manner that deprived the police of its evidentiary value, or that he took affirmative steps to do so. See id . The Government argues that Hester attempted to tamper with evidence, by virtue of his apparent intention to dispose of the gun, expressed after-the-fact in telephone conversations while Hester was incarcerated. But we cannot agree that ex post expressions of regret about not having committed a potentially criminal act amounts to an attempt to commit that same criminal act. Accordingly, because the Government failed to meet its burden to show by a preponderance of the evidence that Hester committed or attempted to commit evidence tampering as defined by New Jersey law, the District Court committed clear error by applying the sentencing enhancement to the facts in this case.
B
However, even without regard to whether the Government met its burden to show that Hester tampered with evidence, the sentencing enhancement under (b)(6)(B) would not apply to Hester's circumstances as a matter of law. The Guidelines provide for a four-point offense level enhancement "[i]f the defendant ... used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense." U.S.S.G. § 2K2.1(b)(6)(B) (emphasis added). Supreme Court precedent, this Court's case law, and the Guidelines all make clear that, in this particular context, the phrase to use or possess "in connection with" means the facilitation of the secondary felony offense.
In
Smith v. United States
, the Supreme Court expressed concern that this enhancement, as enshrined in an earlier analogous provision, would be erroneously applied to defendants who committed subsequent felonies while merely also possessing a firearm.
Following this decision, the commentary to the Sentencing Guidelines was amended in 2006 to include, inter alia , Application Note 14, which clarified that the (b)(6)(B) enhancement applies "if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense." U.S.S.G. § 2K2.1(b)(6)(B), cmt. n.14. Application Note 14 specifically cites burglary or drug trafficking offenses as those scenarios in which the enhancement might apply. Id .
We subsequently agreed with this understanding of the enhancement, holding that it applies when the defendant has "committed another felony offense ... that the firearm facilitated."
West
,
In
United States v. Keller
, mere months after we decided
West
, we permitted the enhancement's application where the firearm at issue had been used in the commission of a burglary.
Hester's possession of the firearm did not facilitate or enhance his ability to tamper with evidence in the manner contemplated by the Guidelines. He did not brandish or otherwise use the firearm to tamper with evidence; he merely possessed it. 9 Indeed, Hester's purported evidence tampering was coextensive with the possession of the weapon itself. The Government argues that "Hester's possession of the firearm was not an integral aspect of the evidence tampering offense." Appellee Br. at 35. But had Hester not possessed the gun, there would be no discussion regarding whether he tampered with it and there would also be no underlying charge.
Consistent with our clear precedent and the Guidelines commentary, we hold that applying the § 2K2.1(b)(6)(B) enhancement to a sentence for an underlying offense of possession of a weapon is improper when the alleged evidence tampering involves merely possessing that same weapon. Rather, in order for the enhancement to apply, the weapon must facilitate a subsequent felony offense of the kind contemplated by the Guidelines and our precedent.
West
,
V
We review criminal sentences for abuse of discretion in two steps.
See
United States v. Wright
,
The improper calculation of the Guidelines range is a procedural error.
Id
."When a defendant is sentenced under an incorrect Guidelines range-whether or not the defendant's ultimate sentence falls within the correct range-the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error."
Molina-Martinez v. United States
, --- U.S. ----,
In doing so, we recognize that we have, in exceedingly rare instances, declined to remand for resentencing where there are indicia suggesting "that an erroneous Guidelines calculation did not affect the sentencing process and the sentence ultimately imposed." Langford , 516 F.3d at 219. We further recognize that, here, the District Court provided an explicit statement that it intended to rectify a likely Guidelines miscalculation when imposing the sentence-it set the parameters of the downward variance in reference to "[i]f that four-point guideline adjustment had not applied, [when] the range would not be 120 to 150, but would be 84 to 105" months. App. 378.
Despite these assurances, however, we ordinarily remand for sentencing upon a finding of a procedural error. Indeed, we have done so under similar circumstances, where a district court departs downward from an erroneously-calculated sentencing range to impose a sentence that seems reasonable, because "we cannot be sure that the district court would have imposed the same sentence if not for the errors."
United States v. Vazquez-Lebron
,
Moreover, we will remand to correct the procedural error to ensure the "fairness[ ] [and] integrity ... of judicial proceedings" and prevent the erosion of public confidence in our judicial system writ large.
Rosales-Mireles v. United States
, --- U.S. ----,
Because we conclude that the procedural error here is, in and of itself, "sufficient to show a reasonable probability of a different outcome absent the error[,]"
Molina-Martinez
,
VI
For the reasons set forth above, we will affirm the District Court's denial of Hester's motion to suppress, vacate the District Court's Judgment, and remand for resentencing.
See
The officers testified that they gave Muse a parking ticket. No corroborating evidence exists in the city's record-keeping system, and the officers could not (or did not) produce any evidence indicating they had done so.
The District Court found that the officers "had not turned on their overhead lights[.]" App. 10. But one officer testified that the unmarked vehicle did not have overhead lights, though it did have interior and rear lights. That officer also testified that they would "customarily" activate available lights so as to clarify that police were present. App. 253. Yet the Court made no findings as to whether the unmarked cruiser's internal or rear lights were activated. The District Court also failed to make reference to the incident report noting that the officers had in fact activated the emergency lights. Although these open questions remain, we do not resolve them or decide whether the District Court erred in failing to resolve them, as we ultimately conclude that answering these factual questions would not alter our outcome.
The District Court expressed incredulity at the idea that a police officer can conduct a "traffic stop" of a parked car. However, the court seems to conflate a "stop" for Fourth Amendment purposes with a stop in common parlance. But this concern is of no moment, as even the common, non-legal definition of the verb "to stop" describes the transitive verb as, inter alia , "to hinder or prevent the passage of[,]" "to get in the way of[,]" "to close up or block off[,]" and the intransitive verb as, inter alia , "to cease to move on[.]" See Stop , Merriam Webster, https://www.merriam-webster.com/dictionary/stop.
Here, the officers requested that the engine be turned off, thereby preventing it from re-entering the roadway. Simply because officers did not pursue the vehicle or pull the vehicle over does not render that vehicle incapable of being "stopped," in common parlance, or from seizure for Fourth Amendment purposes. Nonetheless, we need not address whether the interaction at issue in this case constitutes a "traffic stop." Rather, we focus on whether the vehicle was seized.
Cases to which
Brown
cites for support in cataloguing these relevant factors include
Wardlow
,
State high courts have occasionally distinguished between moving violations and parking violations.
See
State v. Holmes
,
The Government argues that Hester's objections at sentencing did not properly preserve his claim of error as to the enhancement. We conclude that Hester has sufficiently objected to the application of the enhancement for us to regard the claim as preserved.
In so doing we joined the Fourth, Fifth, and Eighth Circuits, which make the same distinction.
United States v. Jenkins
,
Though we do not address whether or to what extent violence might be contemplated by the enhancement, the District Court recognized that "there [we]re no indications that [Hester] had [the weapon] with him because he intended to use it in some violent manner, just to be clear on that." App. 375. We so state merely to clarify that the Government did not allege and the District Court did not find that burglary, drug trafficking, or conduct of the type contemplated in Guidelines commentary Note 14 was implicated here.
Reference
- Full Case Name
- UNITED STATES of America v. Michael HESTER, Appellant
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- Published