United States v. Ibrahim McCants
Opinion
Ibrahim McCants appeals his judgment of conviction and sentence. McCants argues he was wrongly convicted based on evidence that was found during an unconstitutional search. He also claims his sentence cannot stand because he was wrongly designated a career offender under the United States Sentencing Guidelines. For the reasons that follow, we will affirm.
I
On the afternoon of June 28, 2015, a New Jersey woman dialed 911 to report an ongoing domestic dispute. Here's how the call went:
CALLER: Can I have the number to East Orange Police Department.
DISPATCHER: You need where?
CALLER: East Orange Police Department. It's [ sic ] emergency.
DISPATCHER: What's the problem?
CALLER: This guy is out here beating up his girlfriend. He's about to kill her.
DISPATCHER: Where's this at?
CALLER: It's on Grove Street in East Orange.
DISPATCHER: Grove and-where on Grove?
CALLER: Grove and, and, and like Williams Street.
DISPATCHER: What is he wearing?
CALLER: He's wearing a red hat, with braids and he's beating her up really bad right now I wanna break-I wanna break it up but, I don't wanna do nothing.
DISPATCHER: No-you don't want to do that. Stay-hold on a second, ma'am.
United States v. McCants
, No. 15-551,
Grove and William, Grove and William, right now from a caller, it's a male beating a female really badly, male has braids with a red hat.... Again, it's going to be Grove and William. Male, female. Male beating a female. Male has braids red hat-at this time, I am advising the caller not to intervene.... Now she is saying she believes he has a gun.... Red hat and braids. Alright, the caller disconnected.
East Orange police were in the area at the time the call was dispatched and they found a man matching the description near 146 Grove Street within one minute. Officer Moses Sangster was the first to arrive on the scene. He "noticed a male with dreads and a red hat" walking north on Grove Street with a woman. App. 76. The couple was later identified as Appellant Ibrahim McCants and Chelsea Fulton. Two other officers-Stephen Rochester and Cory Patterson-also arrived on the scene within minutes after hearing the call. Before they approached the couple, Officer Rochester confirmed with the dispatcher that "the male actor involved had dreadlocks." App. 78. Officers Rochester and Patterson then "immediately engaged" McCants and frisked him due to the "nature of the call for service."
Several written police reports described the interactions between McCants and Fulton when the officers arrived at the scene. Officer Rochester reported that he observed McCants "speaking with a black female."
II
A grand jury charged McCants with unlawful possession of a firearm by a convicted felon in violation of
The District Court then conducted a stipulated bench trial, and McCants was found guilty as charged on both counts. The United States Probation Office prepared a Presentence Investigation Report (PSR) in which it designated McCants a career offender. McCants objected to the PSR, arguing that his two previous second-degree robbery convictions in New Jersey did not qualify as crimes of violence under § 4B1.2 of the Sentencing Guidelines. Had the convictions not qualified as crimes of violence, his advisory range would have been lowered from 168-210 months to 63-78 months under Guidelines § 2K2.1. The District Court overruled McCants's objection, concluding that his two prior robbery convictions qualified as crimes of violence. At sentencing, the Court varied downward, imposing a sentence of 120 months' imprisonment followed by three years of supervised release. McCants timely appealed.
III
The District Court had jurisdiction under
IV
We begin by addressing McCants's argument that he was wrongly convicted because the District Court admitted into evidence the fruits (drugs and a gun) of an unconstitutional search. The dispositive question underlying this argument is whether the anonymous 911 tip provided sufficient indicia of reliability for reasonable suspicion of ongoing criminal activity.
The Fourth Amendment prohibits "unreasonable searches and seizures." U.S. CONST. amend. IV. Although searches generally require warrants supported by probable cause, officers may conduct brief investigatory stops under
Terry v. Ohio
,
A body of caselaw has developed over the years involving anonymous reports to police of criminal activity. These tips can provide reliable information helpful to investigations and can create reasonable suspicion of ongoing criminal activity.
Navarette v. California
,
Our Court has identified five factors that indicate reliability for anonymous tips:
(1) The tip information was relayed from the informant to the officer in a face-to-face interaction such that the officer had an opportunity to appraise the witness's credibility through observation.
(2) The person providing the tip can be held responsible if her allegations turn out to be fabricated.
(3) The content of the tip is not information that would be available to any observer....
(4) The person providing the information has recently witnessed the alleged criminal activity.
(5) The tip predicts what will follow, as this provides police the means to test the informant's knowledge or credibility[.]
United States v. Torres
,
Here, the District Court found that "the [c]aller's anonymous tip bore sufficient indicia of reliability," which provided the officers with reasonable suspicion to stop and frisk McCants consistent with
Terry
.
McCants
,
McCants argues that the 911 call could not have provided the officers with reasonable suspicion to justify the stop for two main reasons: (1) the tip was vague and did not demonstrate sufficient indicia of reliability; and (2) the officers did not find corroborating evidence of domestic violence at the scene. These arguments are unpersuasive in light of controlling precedent.
First, McCants contends that the 911 call was unreliable because it was akin to the bare-bones tip deemed inadequate by the Supreme Court in
Florida v. J.L.
,
As the Government argues, the indicia of reliability in McCants's case are like those in
Navarette v. California
. The Supreme Court there concluded that a tip created reasonable suspicion of drunk driving because it was highly specific, based on substantially contemporaneous eyewitness knowledge, and reported over the 911 system.
Navarette
,
Relatedly, McCants argues that the District Court did not give adequate consideration to three of the reliability factors we identified in
Torres
: the lack of face-to-face interaction between the informant and police; the absence of predictive information in the call; and the fact that the content of the caller's tip was available to any observer. Although it is true that the 911 call here does not present all of the reliability factors, this deficiency does not preclude a finding of reasonable suspicion because, as we have explained, "a tip need not bear all of the indicia-or even any particular indicium-to supply reasonable suspicion."
Torres
,
McCants next argues that "[n]o reasonable officer would have stopped and frisked" him based on an allegation of ongoing domestic violence when Fulton, the putative victim, showed no signs of injury. McCants Br. 30. This argument too is contrary to the Supreme Court's decision in
Navarette
, where the officers followed Navarette's car for five minutes without noticing any sign of drunk driving. The absence of corroborative evidence, the Court held, did not negate the reasonable suspicion created by the 911 call.
Navarette
,
In considering the officers' reasonable inferences about Fulton's demeanor, we note that we have given "considerable deference to police officers' determinations of reasonable suspicion given their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person."
United States v. Graves
,
In
Wooden
, the police responded to an anonymous report that a tall, black male wearing a black jacket and blue jeans was arguing with his girlfriend and had drawn a gun at a specific location.
McCants's argument regarding Fulton's demeanor does not give proper weight to law enforcement officers' experiences and training regarding domestic violence. He contends that while it was "plausible that the suspect car in
Navarette
was observed driving normally after running someone off the road," no officer could have reasonable suspicion of ongoing domestic violence after approaching Fulton, who was composed and unscathed. McCants Br. 32. This comparison to
Navarette
is unpersuasive: considering officers' experiences, it might be
less
plausible that a drunk-driving suspect could drive normally for five minutes than that Fulton might appear calm and uninjured during her interaction with the police.
See
Wooden
,
In sum, viewing all the circumstances, the anonymous tip bore sufficient indicia of reliability and provided the officers with reasonable suspicion that justified the Terry stop. The caller used the 911 system to report an eyewitness account of domestic violence and provided the officers with a detailed description of the suspect and location, both of which were quickly confirmed by the police. Accordingly, we hold that the District Court did not err in denying McCants's motion to suppress the evidence collected during the Terry stop.
V
We turn next to the sentence imposed upon McCants. The District Court agreed with the Probation Office that McCants is a career offender because two of his prior convictions for second-degree robbery in New Jersey qualify as crimes of violence under the Sentencing Guidelines. The Guidelines define a "crime of violence" as any felony offense under state or federal law that:
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another [the "elements" clause], or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in26 U.S.C. § 5845 (a) or explosive material as defined in18 U.S.C. § 841 (c) [the "enumerated offense" clause].
Guidelines § 4B1.2(a).
A
We use the categorical approach to determine whether a prior conviction is a predicate offense for a crime-of-violence sentencing enhancement.
United States v. Ramos
,
McCants's designation as a career offender was based on two convictions under N.J. STAT. ANN. § 2C:15-1, which provides:
a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or (3) Commits or threatens immediately to commit any crime of the first or second degree.
....
b. Grading. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon.
N.J. STAT. ANN. § 2C:15-1.
We can look beyond the elements of the statute for this comparison only if it is "divisible" and lists "elements in the alternative, and thereby define[s] multiple crimes."
Mathis v. United States
, --- U.S. ----,
McCants insists the New Jersey robbery statute is indivisible because the alternatives in subsections (a)(1)-(3) are means, rather than elements. He contends that under
Mathis
, alternatively-phrased statutes contain elements only when each subsection carries different punishments, which is not true of the New Jersey robbery statute. We disagree. In
Mathis
, the Supreme Court explained that "the statute on its face may resolve the issue" of characterizing alternatives.
We agree with the Government that the New Jersey robbery statute sets out alternative elements for sustaining a conviction rather than the means of committing the offense. Crimes comprise elements; means illustrate ways of satisfying individual elements. If the subsections of § 2C:15-1 were means, they would list "diverse means of satisfying
a single element
" of robbery.
By contrast, in
Mathis
, the burglary statute defined burglary to require "enter[ing] an occupied structure," IOWA CODE § 713.1, and gave as examples of an occupied structure "any building, structure, [or] land, water, or air vehicle,"
Subsections (a)(1)-(3) are elements because each requires different proof beyond a reasonable doubt to sustain a second-degree robbery conviction. Under (a)(1), the prosecutor must prove that the defendant inflicts injury or uses force upon another person. However, the defendant need only threaten or place another person in fear of immediate bodily injury under (a)(2), or threaten to commit another first- or second-degree crime under (a)(3).
Our conclusion would be different if McCants could show "that a jury" in New Jersey "need not make any specific findings (or a defendant admissions) on" which of these subsections a defendant violated.
Mathis
,
This analysis parallels our decision in
United States v. Blair
,
B
Having determined that the relevant statute is divisible, we must ascertain whether McCants's New Jersey robbery convictions were predicate offenses that render him a career offender. For divisible statutes, we use the modified categorical approach to decide whether the defendant was convicted of a qualifying offense under the Guidelines.
Shepard v. United States
,
Although the charging documents do not state explicitly which subsection of the statute McCants was convicted under, they do indicate that McCants was charged with violent crimes.
3
And a review of McCants's plea colloquy leads necessarily to the conclusion that he pleaded guilty to violating subsection (a)(2) of the New Jersey robbery statute. Therein, McCants acknowledged using force in committing both robberies. Regarding the first robbery offense on December 13, 2003, the court asked McCants: "On that day did you attempt or succeed by the use of threat of force, in taking some items from an individual in the City of Newark?" App. 266. He responded, "Yeah." App. 267. Regarding the second robbery offense on April 28, 2004, the court asked McCants: "And on that occasion did you take or attempt to take from an individual by the threat of force some items?"
Although McCants concedes that the colloquy shows he did not plead guilty under subsection (a)(1), which requires the use of force, he makes two semantic arguments that his admissions do not fall under subsection (a)(2). First, he contends the colloquy does not address injury or fear, which he believes are required by the statute. Second, he argues his admissions regarding force do not equate to threats of immediate bodily injury. Taken together, he claims the colloquy allows for the possibility that he was convicted under subsection (a)(3), which does not require violent force.
We disagree that McCants's colloquy shows he could have been convicted under subsection (a)(3). First, his semantic arguments are inconsistent with the plea colloquy. His admissions of attempting or successfully using threat of force to take items from individuals most closely match subsection (a)(2). Second, McCants points to nothing in the colloquy permitting even the inference that he pleaded guilty under subsection (a)(3). Had McCants pleaded guilty to subsection (a)(3), he would have needed to admit that he committed or threatened to commit another crime. Yet his plea colloquy makes reference to neither. Because he could not have pleaded guilty to subsection (a)(3) and McCants concedes he was not convicted under subsection (a)(1), the only logical choice is subsection (a)(2). Thus, we have no reason to overturn the District Court's finding that the natural reading of the plea colloquy is that McCants's two prior robbery convictions fall under N.J. STAT. ANN. § 2C:15-1(a)(2).
C
Finally, we must decide whether McCants's convictions under subsection (a)(2) are predicate offenses under either the "elements" clause or the "enumerated offense" clause of § 4B1.2(a) of the Guidelines. In our view, they satisfy both.
Under the elements clause (§ 4B1.2(a)(1)), a conviction qualifies if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." We have explained that the "use of physical force ... involves the intentional employment of something capable of causing physical pain or injury to another person, regardless of whether the perpetrator struck the victim's body."
Chapman
,
We reach the same result with regard to the enumerated offense clause (§ 4B1.2(a)(2)), which lists "robbery" as a crime of violence. When the Guidelines specifically list an offense, we "compare the elements of the crime of conviction to the generic form of the offense as defined by the States, learned treatises, and the Model Penal Code."
United States v. Marrero
,
McCants and the Government agree that "the generic definition of robbery is ... the taking of property from another person or from the immediate presence of another person by force or by intimidation." App. 199. We held in
Graves
that "generic robbery requires no more than
de minimis
force" to meet this definition.
Subsection (a)(2) requires that the defendant "[t]hreaten[ ] another with or purposely put[ ] him in fear of immediate bodily injury." N.J. STAT. ANN. § 2C:15-1(a)(2). We agree with the Government that subsection (a)(2) falls within the definition of generic robbery because the statute requires the threat of bodily injury, which involves more force-and is therefore categorically narrower-than
de minimis
force,
Graves
,
* * *
The District Court did not err in denying McCants's motion to suppress or in imposing his sentence. We will affirm the judgment of conviction and sentence.
Although the parties largely agreed on the facts, they disputed whether McCants and Fulton were arguing when the officers arrived. The Government claimed they were "yelling at each other."
McCants
,
We held that this Pennsylvania robbery statute, which was alternatively-phrased, is divisible:
(1) A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
(iii) commits or threatens immediately to commit any felony of the first or second degree;
(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or
(v) physically takes or removes property from the person of another by force however slight.
Peppers
,
In
Ramos
, we explained that a similarly-structured Pennsylvania assault statute is divisible two ways.
The first robbery indictment charges that McCants used or threatened the use of what the victim perceived as a deadly weapon. The second indictment charges that he threatened the use of a deadly weapon.
Reference
- Full Case Name
- UNITED STATES of America v. Ibrahim MCCANTS, Appellant
- Cited By
- 5 cases
- Status
- Published