Unpublished Disposition, 921 F.2d 282 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 921 F.2d 282 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Stanley Devere ROCK, Defendant-Appellant.

No. 89-50292.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 5, 1990.Decided Dec. 20, 1990.

Before JAMES R. BROWNING, PREGERSON and LEAVY, Circuit Judges.


MEMORANDUM* 

Defendant-Appellant Stanley Devere Rock was indicted on April 19, 1988, and charged with possession with intent to distribute 357 grams of methamphetamine in violation of 21 U.S.C. § 841(a) (1), and with carrying a firearm during a drug-trafficking crime in violation of 18 U.S.C. § 924(c). Rock filed a motion in the district court to suppress all evidence obtained after police stopped and searched the vehicle he was driving on February 20, 1988. The motion was denied. Rock then entered a conditional guilty plea to Count One of the indictment.

On May 8, 1989, Rock was sentenced pursuant to the Sentencing Guidelines. The court found Rock's base offense was 26, and added a two-point increase for the use of firearms in the commission of the crime. The court sentenced Rock to 120 months, the upper end of the applicable Guidelines range of 97-121 months.

Rock appeals the district court's denial of his motion to suppress, as well as his sentence. We affirm the denial of the suppression motion, but reverse and remand for resentencing.

We review de novo the district court's conclusion regarding the lawfulness of an investigatory automobile stop, United States v. Fouche, 776 F.2d 1398, 1402 (9th Cir. 1985), and the lawfulness of a search, United States v. Limatoc, 807 F.2d 792, 794 (9th Cir. 1987). We review the district court's findings of fact on which its conclusions are based under a clearly erroneous standard. Fouche, 776 F.2d at 1402.

Police officers may make a brief investigatory stop of a vehicle if, under the totality of the circumstances, they are aware of articulable facts leading to a reasonable or founded suspicion that the person has been, is, or is about to be engaged in criminal activity. Fouche, 776 F.2d at 1402; see also Terry v. Ohio, 392 U.S. 1, 22 (1968); United States v. Cortez, 449 U.S. 411, 417 (1981).

A number of factors gave the officers reasonable suspicion that Rock and his passenger were involved in criminal conduct. These factors, which the district court found to be true, included the fact that (1) Officer Hurt was aware that an armed robbery had recently occurred in the area; (2) the individuals surrounding Rock's vehicle quickly dispersed when they saw the police car; (3) Rock and his passenger attempted to conceal their faces as they drove past the police officer; (3) the Santa Monica Motel was known to be a high crime area; (4) the officers saw Rock place a gun and satchel into the car's trunk in the supermarket parking lot; and (5) Rock made a number of evasive turns after leaving the parking lot.

Thus, under the totality of the circumstances in this case, the initial stop of the vehicle was justified. See Fouche, 776 F.2d at 1403 (reasonable suspicion justified stop where officer knew bank had been robbed and saw defendant's car quickly exit driveway near bank within minutes of robbery, defendant partially matched the description of the robber, and defendant ran a stop sign); United States v. Ramirez-Sandoval, 872 F.2d 1392, 1395 (9th Cir. 1989).

II. Probable Cause to Arrest Rock and Search The Car

Because the officers had reasonable suspicion to stop Rock's car, their actions after they initiated the stop were proper. First, because the officers saw Rock in possession of a weapon, they could reasonably have believed that Rock posed a threat to their (or others') safety. The officers were therefore entitled to conduct a limited "pat down" search of the suspects' clothing for concealed weapons. See Terry, 392 U.S. at 29 (1968).

Second, after the officers conducted the pat down search and discovered that Rock was carrying six concealed knives and $1,180 in cash their reasonable suspicion ripened into probable cause to arrest Rock. See Adams v. Williams, 407 U.S. 143 (1972) (gun found during Terry stop provided probable cause to arrest detainee); United States v. Greene, 783 F.2d 1364, 1368 (9th Cir. 1986) (reasonable suspicion ripened into probable cause to arrest when officers discovered concealed weapon during Terry frisk), cert. denied, 476 U.S. 1185 (1986).

Third, the search of the entire vehicle, including the trunk and the containers found inside, was proper. Where police officers have probable cause to believe that a lawfully-stopped vehicle contains evidence of criminal activity, they may search the entire vehicle, including the trunk and all containers that might conceal the object of the search, without a warrant. United States v. Ross, 456 U.S. 798, 825 (1982); United States v. Weicking, 757 F.2d 969, 971 (9th Cir. 1983).

We review the application of the Sentencing Guidelines de novo, but review the district court's findings of fact for clear error. United States v. Restrepo, 884 F.2d 1294, 1295 (9th Cir. 1989), reh'g en banc granted, 912 F.2d 1568 (9th Cir. 1990).

In applying Sec. 2D1.1(b), the district court need not find a connection between the firearm and the charged offense; if the court finds that the defendant possessed the weapon during commission of the offense, the enhancement is appropriate. Restrepo, 884 F.2d at 1296 (9th Cir. 1989).

In general, " 'trafficking in narcotics is very often related to the carrying and use of firearms.' " United States v. Willis, 899 F.2d 873, 875 (9th Cir. 1990), quoting United States v. Ramos, 861 F.2d 228, 231 n. 3 (9th Cir. 1988). Here, numerous firearms were found in close proximity to the drugs which Rock admitted he possessed with intent to distribute. The district court could properly have determined that Rock possessed a weapon during the commission of his narcotics offense. See United States v. Gillock, 886 F.2d 220, 223 (9th Cir. 1989) (enhancement under Sec. 2D1.1 was proper where firearm was discovered in closet in close proximity to drugs defendant was in business of distributing).

The fact that Rock's possession of the firearms formed the basis of a charge which was later dismissed is irrelevant. A district court may consider a wide range of information in sentencing, United States v. Columbus, 881 F.2d 785, 787 (9th Cir. 1989), including dropped counts in an indictment. United States v. Monaco, 852 F.2d 1143, 1149 (9th Cir. 1988), cert. denied, 488 U.S. 1040 (1989). Thus, the district court's imposition of the two-point increase was not clearly erroneous.

The Federal Rules of Criminal Procedure mandate that before a district court imposes a sentence, it must address the defendant personally and ask him if he wishes to make a statement in his behalf to present any information that might mitigate his punishment. Fed. R. Crim. P. 32(a) (1) (C).

It is undisputed that, at the sentencing hearing, the district court did not address Rock personally and ask him if he wished to make a statement in his behalf. Both Rock and the Government agree that this matter should therefore be remanded for resentencing to allow Rock to exercise his right of allocution.

Rock also contends that the matter should be remanded for resentencing to a different district judge to properly preserve his right of allocution. We agree that in order to avoid any appearance of prejudice that might arise from the district judge's remarks about Rock at the time of sentencing, the matter should be remanded to a different judge. See United States v. Navarro-Flores, 628 F.2d 1178, 1184 (9th Cir. 1980).

We therefore remand to the district court and direct the clerk of the court to reassign this matter randomly to a different district judge for resentencing. On remand, it should be noted that Rock pleaded guilty to possessing the entire 357 grams of methamphetamine with intent to distribute and has not sought to withdraw that plea. He is therefore foreclosed from relitigating the issue of the quantity of drugs he actually possessed, as it relates to calculation of his base offense level. See United States v. Kidder, 869 F.2d 1328, 1332-33 (9th Cir. 1989); United States v. Broce, 109 S. Ct. 757, 760-62 (1989).

Rock is not foreclosed, however, from introducing evidence at the resentencing hearing regarding his entitlement to a two-point reduction in his sentence for acceptance of responsibility pursuant to Sentencing Guidelines Sec. 3E1.1.

REVERSED and REMANDED in accordance with this opinion.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3