US v. Martin Simmon, No. 10-4377 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4377 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARTIN SIMMONS, a/k/a Travis Green, a/k/a Marty Raashan Simmons, a/k/a Marty, a/k/a Martin Raashan Simons, a/k/a Martin Rahshan Simons, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:09-cr-00467-PMD-1) Argued: May 13, 2011 Decided: July 5, 2011 Before MOTZ, DAVIS, and KEENAN, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished opinion. Judge Keenan wrote the opinion, in which Judge Motz and Judge Davis joined. ARGUED: John Robert Haley, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, South Carolina, for Appellant. Sean Kittrell, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: William N. Nettles, United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. KEENAN, Circuit Judge: Martin Simmons was convicted, upon his plea of guilty, of one count of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). When entering his guilty plea, Simmons reserved his right to appeal the district court s denial of his motion to suppress evidence of the firearm. The district court sentenced Simmons to a term of 110 months imprisonment. On appeal, Simmons argues that the district court erred: 1) in denying his motion to suppress; and 2) in applying a fourlevel sentencing enhancement under U.S.S.G. § 2K2.1(b)(6). We conclude that the district court did not err in denying Simmons motion to suppress and, therefore, affirm Simmons conviction. However, because we conclude that the district court erred in applying the sentencing enhancement, we vacate Simmons sentence and remand the case for resentencing. I. A. Around 4:28 a.m. on February 14, 2009, a dispatch issued by the police Carolina, department alerted officers of the on duty City of about Charleston, reports South of gunfire occurring at the corner of Hanover and Amherst Streets. Officer Flaherty, who first responded to the scene, walked around the 2 area and reported by radio to Officer Michael Moody and Officer Vachowski that Flaherty did not observe any individuals in the area. 1 Around the same time, Officer Moody and Officer Vachowski were driving south on Nassau Street, intersection of Nassau and Amherst Streets. headed toward the The police officers observed Simmons and another man walking quickly, turning from Amherst Street onto Nassau Street in a northbound direction. that time, Simmons and his companion were located about At one block from the area where the gunfire reportedly had occurred. Officer Moody considered this location as being a high crime area. Officer Moody and Officer Vachowski approached Simmons and his companion. gunfire and Officer Moody told the men about the reports of asked, Did you guys happen to hear anything? Simmons nodded his head, and stated that he was leaving the area because he had heard the gunfire. Officer Moody asked Simmons whether he was carrying any weapons, and Simmons replied that he was not. When Officer Moody asked Simmons if he could conduct a quick pat down for weapons, Simmons agreed. 1 The record does not reflect the first names of Officer Flaherty and Officer Vachowski. 3 As Officer Simmons pants, against a feeling Simmons Moody began Simmons building, conducting leaned thereby right the a right preventing side. To pat-down side of Officer reposition search of his body Moody from Simmons body, Officer Moody placed his hands on Simmons hips. As Officer Moody s left hand moved across the front of Simmons hips, Officer Moody felt an object in Simmons right front pocket and sensed that the object was a firearm. When Officer Moody asked, Hey, what [is] this? Simmons ran away. Officer Moody chased Simmons along Amherst Street. After Officer Moody observed Simmons reach into his right pocket and throw a metallic object onto the ground while continuing to run, Officer Moody reported by radio to Officer Flaherty that Simmons was running toward Officer Flaherty. Simmons eventually was apprehended by Officer Flaherty and another police officer. The Simmons police officers discarded, revolver. which recovered they the metallic identified as a object .357 that caliber The firearm contained two spent rounds of ammunition, and four unspent rounds of ammunition. The police officers also found additional ammunition inside Simmons pockets. B. In April 2009, a grand jury indicted Simmons on the single count of possession of a firearm by a convicted felon. Simmons filed a motion to suppress evidence of the firearm, arguing that 4 the police seized the weapon as a result of an unlawful seizure of his person in violation of the Fourth Amendment. The district court denied Simmons suppression motion, holding that the police officers had reasonable suspicion to stop and frisk Simmons pursuant to Terry v. Ohio, 392 U.S. 1 (1968). The district court alternatively concluded that Simmons consented to the stop and frisk. Following Simmons guilty plea and conviction, a probation officer prepared a presentence report (PSR) recommending that Simmons receive a two-level enhancement under U.S.S.G. § 3C1.2 for reckless downward endangerment reduction under during U.S.S.G. flight, and a § for acceptance 3E1.1 three-level of responsibility. The government objected to the PSR, arguing that a instead of two-level enhancement for obstruction of justice, Simmons should receive a four-level enhancement under U.S.S.G. § 2K2.1(b)(6) for possessing a firearm in connection with another felony. 2 2 According to the government, Simmons possessed the firearm in connection with two felony offenses under South Carolina law: discharging a firearm at or into a dwelling in violation of South Carolina Code § 16-23-440, and pointing a firearm at any person in violation of § 16-23-410. However, because the district court did not apply an enhancement based on either of these two offenses, we do not address whether they would have been applicable in the present case. 5 At that the sentencing Simmons hearing, qualified for a the district four-level court concluded enhancement under U.S.S.G. § 2K2.1(b)(6), finding that Simmons possessed a firearm in connection with another felony, namely, resisting arrest with a deadly combined weapon. with a The resulting criminal offense history level category of of VI, 25, when yielded guidelines range of 110 to 120 months imprisonment. a Based on this guidelines range, the district court sentenced Simmons to a term of 110 months imprisonment. II. A. We first erred in denying Simmons motion to suppress evidence of the firearm. We review the denial of consider factual the whether findings motion to the district underlying suppress the district clear error, court s and the United States v. Blake, 571 court s legal conclusions de novo. F.3d 331, 338 (4th Cir. 2009). for court A factual finding is clearly erroneous if this Court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. United States v. Harvey, 532 F.3d (internal quotation marks omitted). 326, 337 (4th Cir. 2008) When the district court has denied a motion to suppress, we construe the evidence in the 6 light most favorable to the government. United States v. Farrior, 535 F.3d 210, 217 (4th Cir. 2008). Simmons seized him contends at the that time the that police they questioned him and his companion. officers initially unlawfully approached and According to Simmons, the police officers lacked reasonable suspicion to conclude that he was engaged in criminal activity. A person is seized for purposes of the Fourth Amendment when a police officer, by means of physical force or show of authority, restrains that person s freedom of movement. United States v. Mendenhall, 446 U.S. 544, 553 (1980); see Terry, 392 U.S. at 19 n.16. Conversely, a voluntary encounter between the police and a citizen does not constitute a seizure prohibited by the Fourth Amendment. (1991). reasonable criminal Thus, See Florida v. Bostick, 501 U.S. 429, 434 even suspicion activity, when that they police an may officers individual approach may that do be not engaged person questions without violating the Fourth Amendment. have and a in ask See id. at 435; United States v. Lewis, 606 F.3d 193, 197-98 (4th Cir. 2010). The Supreme Court has acknowledged that most individuals will feel obligated to respond when asked questions by a police officer, but has held that this fact alone will not convert a consensual encounter into a seizure. 7 INS v. Delgado, 466 U.S. 210, 216 (1984). conclusion The would create Court has explained constitutional that barriers a contrary to everyday encounters between the police and individual citizens, imposing unrealistic burdens on enforcement practices. a wide variety of legitimate Mendenhall, 446 U.S. at 554. law Thus, the Supreme Court has concluded that an encounter between the police and a citizen does not constitute a seizure unless, taking into account all the circumstances of the encounter, a reasonable person would . . . believe[] that he was not free to leave. Id. If the person being questioned by the police objectively remains free to disregard the questions and walk away, there is no demonstrable restriction on the person s liberty and the encounter does not result in a seizure. might indicate the occurrence of Id. a Some factors that seizure include the threatening presence of several police officers, their display of weapons, a physical touching of the person to whom the questions are directed, and the use of language indicating that compliance with the police request is required. Id.; United States v. Perry, 560 F.3d 246, 253 (4th Cir. 2008). Upon review of the present record, we conclude that the evidence supports the district court s conclusion that the police officers initial encounter with Simmons was consensual. At the beginning of the encounter, Officer Moody and Officer 8 Vachowski merely approached Simmons and his companion on public street and asked whether they had heard gunfire. a When Simmons replied that he had heard gunfire and was walking away from the area for that reason, Officer Moody asked Simmons if he was carrying a weapon. was not. Simmons voluntarily responded that he The police officers did not tell Simmons that he was required to stay and answer their questions, and Simmons did not make any attempt to leave. The evidence refutes Simmons contention that the only reason he was stopped was because he was a black man walking in a predominantly black neighborhood, about 4:30 a.m. the officers testimony, which the district court Based on accepted, Officer Moody and Officer Vachowski approached Simmons and his companion in furtherance of their investigation of the reported gunfire in that area. Simmons responded freely to Officer Moody s questions and did not express any reluctance to speak with him. initial Thus, encounter considering between all the these officers circumstances, and Simmons the was consensual and did not constitute a seizure of Simmons person, because the record failed to show that a reasonable would . . . believe[] that he was not free to leave. person See Mendenhall, 466 U.S. at 554. Simmons argues, nonetheless, that his motion to suppress should have been granted because the evidence failed to support 9 the district court s finding that Simmons initially consented to the pat down of his person. Simmons argument, however, fails to acknowledge that Officer Moody testified that Simmons agreed to a brief pat down for weapons. It was only when Simmons leaned the right side of his body against a building and Officer Moody attempted reluctance to to act reposition in him, accord that with Simmons his exhibited initial a consent. Simultaneously with this attempted repositioning, Officer Moody felt the object in Simmons pocket that Moody thought was a firearm. Although Officer Moody acknowledged that a suspect s act of leaning in one direction before a pat-down search usually is inconsistent with consent, the district court nevertheless found that Simmons was hoping to get beyond the moment. talking on the phone. He postured himself in a way that perhaps the pistol wouldn t be found. to run. He was But when it was, he was prepared Thus, the district court found it credible that the officer said that [Simmons] gave consent, but upon finding the pistol, [Simmons] fled. Accordingly, based on this record, the district court s factual finding that Simmons consented to the pat-down search prior to fleeing from the officers is not clearly erroneous. We further observe that once Officer Moody felt on Simmons person an object Officer Moody thought was a firearm and Simmons 10 immediately ran away from the officers, the officers had, at minimum, reasonable investigation. suspicion to detain Simmons See Terry, 392 U.S. at 30. for further When Simmons was observed to discard the firearm during the officers ultimately successful effort to apprehend him, he abandoned any residual expectation of privacy he may have harbored in respect to his possession of the firearm. court did not err in Thus, we hold that the district denying Simmons motion to suppress evidence of the weapon discarded by Simmons at the scene of the crime. B. The next issue we consider is whether the district court erred in applying a four-level U.S.S.G. § 2K2.1(b)(6). sentencing enhancement under A district court s determination that such an enhancement is applicable is a factual finding, which we review for clear error. United States v. Carter, 601 F.3d 252, 254 (4th Cir. 2010). Section 2K2.1(b)(6) provides for a four-level enhancement if a defendant used or possessed any firearm or ammunition in connection with 2K2.1(b)(6). another felony offense. U.S.S.G. § Before applying the enhancement, a district court must conclude that the defendant committed a separate felony offense. See United States v. Blount, 337 F.3d 404, 406-07 (4th Cir. 2003). In this case, the district court applied the § 11 2K21.1(b)(6) enhancement based on the court s conclusion that Simmons had resist[ed] arrest with [a] deadly weapon, an offense that is a felony under South Carolina Code § 16-3-625. To determine whether Simmons committed a felony offense under South Carolina Code § 16-3-625, we examine the express language of that statute. The statutory language defines resisting arrest with [a] deadly weapon as resist[ing] the lawful efforts of a law enforcement officer to arrest [the defendant] or another person with the use or threat of use of a deadly weapon against the officer, and the [defendant] is in possession or claims to be in possession of a deadly weapon. S.C. Code § 16-3-625. According to Simmons, the act of discarding a weapon while fleeing from police officers is not sufficient to establish that he use[d] or threat[ened] to use a dangerous weapon within the meaning of § 16-3-625. The government contends, however, that Simmons used a dangerous weapon by retrieving the loaded firearm from inside his pants pocket and discarding it. We disagree with the government s position. Although the terms use and threat of use are not defined in South Carolina Code § 16-3-625, we interpret those terms based on their plain meaning and the context in which they are employed. See United States v. Groce, 398 F.3d 679, 681 (4th Cir. 2005). The language of the statute requires that a 12 person use, or make a threat of use, of a deadly weapon against a law enforcement officer. The evidence in this case S.C. Code § 16-3-625. showed that Simmons was not holding the weapon in his hand when he was confronted by the officers. Instead, after the police officers approached Simmons, Officer Moody conducted a pat-down search of Simmons person, feeling what front right pocket. Moody thought was a weapon in Simmons When Simmons fled from the police, the weapon remained in his pocket. As he was running away, Simmons reached into his pocket and discarded the weapon. This evidence does not show that Simmons, by discarding the weapon, used the weapon, or made a threat of use of the weapon, to impede Officer Moody s pursuit or to defend against the officers attempt to capture him. Thus, we conclude that Simmons s use or threat of use of the weapon, if any, did not constitute a use or threat of use against a law enforcement officer, as required by the plain language of the statute. Accordingly, we hold that Simmons did not resist[] arrest with [a] deadly weapon, as prohibited by South Carolina Code § 16-3-625, and that the district court clearly erred in applying the § 2K2.1(b)(6) contrary conclusion that enhancement Simmons under that statute. 13 based committed a on the court s felony offense III. For these reasons, we affirm Simmons s conviction, but we vacate his sentence. We remand the case to the district court for resentencing. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 14

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