United States v. Torres, No. 19-2940 (3d Cir. 2020)
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New York City Officer Pickel was patrolling an area known for violent crime, when a man flagged him down, pointing to the only pedestrian on a bridge (later identified as Torres). The man stated that Torres fired a gun into an old factory across the street. Pickel radioed for backup and followed Torres in his car, believing that Torres posed a potential danger to others and that any delay would make it difficult to locate Torres. As other officers arrived, Pickel activated his emergency lights, exited his patrol car, drew his service pistol, and ordered Torres to “get to the ground.” Torres complied. Officer Hatterer knelt and asked Torres if he had a firearm. According to Hatterer, Torres indicated that it was in his right pocket. Hatterer handcuffed Torres; another officer retrieved the firearm.
The district court denied a motion to suppress, reasoning that the gun was found during a constitutional “Terry” investigatory stop rather than during an arrest and that Pickel had reasonable suspicion. Convicted under 18 U.S.C. 922(g)(1) for possessing a firearm as a convicted felon, Terry received the mandatory-minimum sentence, 180 months’ imprisonment, based on enhanced sentencing under 18 U.S.C. 924(e), the Armed Career Criminal Act. Although Torres' prior state drug possession offenses were part of a federal drug distribution conspiracy conviction, the conspiracy conviction counted as a separate predicate offense. The Third Circuit affirmed. A drug conspiracy conviction counts as an ACCA predicate offense, if it was distinct in time from the underlying substantive offenses.
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