The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-14024 MAY 10, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 02-00543-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE C. ANDERSON,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 10, 2005)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Willie C. Anderson appeals his conviction and 188-month sentence for
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
On appeal, Anderson challenges the district court’s denial of his motion to
suppress evidence, as well as the constitutionality of his sentence. Although we
affirm the district court’s evidentiary ruling, Anderon’s preserved Booker
challenge requires us to vacate his sentence and remand for resentencing.
BACKGROUND
Prior to trial, Anderson had moved to suppress evidence obtained in
connection with a search incident to his arrest. At the suppression hearing, Officer
Chad Alexander of the Atlanta Police Department testified he and his partner were
flagged down by Bobby Bell, who then told the officers that: (i) a black male,
wearing a purple coat and blue jeans, had burglarized the home Bell and his wife
were restoring and was walking towards Officer Alexander’s location; (ii) Bell
had followed this individual (Anderson) after he had left Bell’s house; and (iii)
Bell saw Anderson recover a handgun from his left-front pant pocket and place it
in his front coat pocket. Officer Alexander further testified that: (i) after Bell
made these statements, Officer Alexander witnessed a black male wearing a purple
coat and blue jeans approaching them; (ii) Bell identified that individual as the
perpetrator, saying, “that’s him.” Officer Alexander stated that he and his partner
then approached Anderson, who had his hands in his pockets. The police ordered
Anderson to remove his hands from his pockets, and because of his reluctance to
do so, they ordered him to his knees. Alexander then conducted a “quick frisk” of
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Anderson’s person, during which he felt a hard object with the feel and shape of a
handgun. The officers removed the item, which proved to be a loaded
semiautomatic weapon. The officers then placed Anderson under arrest.
To the extent that Alexander’s testimony conflicted with Bell’s own
testimony, the magistrate expressly credited Alexander’s testimony, finding that
Bell’s equivocations and lapses of memory rendered him a less credible witness.
Based on Alexander’s testimony, the magistrate’s report concluded that the
officers had probable cause to arrest Alexander and to conduct a lawful
warrantless search incident to the arrest. In the alternative, the magistrate
concluded that the officers conducted a lawful “stop and frisk,” the results of
which then gave them probable cause to arrest Anderson. The magistrate
accordingly recommended a denial of Anderson’s suppression motion. The
district court adopted the magistrate’s report.
Following a stipulated bench trial, the district court found Anderson guilty
of violating 18 U.S.C. § 922 (g)(1) (2005). At sentencing, the district court found
that Anderson had three prior violent felony convictions, subjecting him to the
minimum fifteen-year sentence mandated by 18 U.S.C. § 924(e). The district court
granted an additional enhancement beyond the fifteen-year minimum, finding by a
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preponderance of the evidence that Anderson was using the weapon in connection
with burgling Bell’s home – a crime of which Anderson was never convicted.
Anderson objected to the court’s enhancements based on Blakely v.
Washington, 124 S.Ct. 2531 (2004). The district court overruled Anderson’s
Blakely objections, relying on our decision in United States v. Sanchez, 269 F.3d
1250 (11th Cir. 2001), which held that the principle embodied in Blakely had no
application to the U.S. Sentencing Guidelines. After the district court granted an
offense-level reduction for acceptance of responsibility, the guidelines range was
188 to 235 months. The district court sentenced Anderson to 188 months in
prison, the minimum sentence permissible under the guidelines, but eight months
above the statutory minimum sentence prescribed by § 924(e). Anderson appeals.
STANDARDS OF REVIEW
“This court reviews a district court’s denial of a defendant’s motion to
suppress under a mixed standard of review, reviewing the district court’s findings
of fact under the clearly erroneous standard and the district court’s application of
law to those facts de novo.” United States v. Desir, 257 F.3d 1233, 1235-36 (11th
Cir. 2001).
Because Anderson made his Blakely objection before the district court,
preserving it for appellate review, we review his sentence de novo, but will reverse
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and remand only for harmful error. United States v. Riley, 250 F.3d 1303, 1307
n.5 (11th Cir. 2001).
SUPPRESSION OF THE EVIDENCE
As a threshold matter, Anderson takes issue with the district court’s findings
of fact. Specifically, Anderson points to the conflict between testimony given by
Alexander and that given by Bell, contending that Bell’s testimony is more
credible than Officer Alexander’s testimony. However, because the trier of fact
remains in a superior position to judge a witness’s demeanor and credibility, we
defer to a magistrate’s credibility determination in the face of conflicting
testimony unless his understanding of the facts appears to be “unbelievable.”
United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). Where the
record of Bell’s testimony included memory lapses and vacillations in testimony,
we certainly cannot say that the magistrate’s version of the facts, which credits
Alexander’s testimony, is incredible. Under that version of the facts, it becomes
clear that Alexander’s search was permissible.
Consistent with the Fourth and Fourteenth Amendments, a police officer
may conduct a brief, investigatory stop without a warrant when he or she has a
“reasonable, articulable suspicion” that criminal activity is afoot. Illinois v.
Wardlaw, 528 U.S. 119, 123 (2000). “Reasonable suspicion” is a less demanding
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standard than probable cause and requires considerably less than a preponderance
of the evidence. United States v. Sokolow, 490 U.S. 1, 7 (1989). However, the
officer must be able to articulate a level of objective justification that rises above
mere inchoate suspicion. Wardlaw, 528 U.S. at 123, citing Terry v. Ohio, 391
U.S. 1, 27 (1968). Where such justification exists, the officer may conduct a
limited warrant-less search of an individual’s outer clothing in an attempt to
discover weapons. Terry, 391 U.S. at 30.
In this case, Alexander clearly possessed “reasonable suspicion” to conduct
a Terry frisk of Anderson. Bell had flagged down Alexander and informed him
that a black male individual wearing a purple coat and blue jeans had burglarized
the home he and his wife were restoring, was carrying a concealed gun, and was
traveling towards their location. After Bell relayed this information to Alexander,
they both witnessed a black male wearing a purple coat and blue jeans coming
towards them. Bell identified the individual by saying, “that’s him.” When
Alexander approached, Anderson was resistant to remove his hands from his front
pockets. Taken together, this information reasonably suggested to Alexander that
Anderson had just committed a burglary and was armed with a concealed weapon.
Such information is objectively sufficient to rise to the level of “reasonable
suspicion” for a Terry frisk. Though Anderson relies on Florida v. J.L., 529 U.S.
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266, 270 (2000), that case involved information received via telephone from an
anonymous informant – an “unknown caller, at an unknown location.” Bell
cannot be categorized as an anonymous informant: he personally flagged down
Alexander and directly conveyed the information about Anderson. J.L. and its
insistence on indicia of an anonymous informer’s reliability are inapposite.
We thus agree with the district court that Alexander possessed reasonable
suspicion of criminal activity, and conducted a permissible Terry frisk on
Anderson.1 Once the Terry frisk revealed the concealed weapon of which Bell had
warned, Alexander had probable cause to arrest Anderson and to conduct a more
thorough search incident to that arrest.
SENTENCING
“Any fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” United States v. Booker, 125 S.Ct. 738, 756 (2005).
Following Booker, the sentencing guidelines are advisory, though a district court
1
Because we conclude that Alexander initially had reasonable suspicion to conduct a Terry
frisk, and upon discovery of the concealed weapon possessed probable cause to arrest, we need not
reach the district court’s alternative holding that Alexander had probable cause to arrest Anderson
prior to frisking his person.
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must still consult them along with the factors found at 18 U.S.C. § 3553(a). Id. at
764-65. However, Booker neither disturbs a district court’s ability to rely on prior
convictions to enhance a defendant’s sentence, United States v. Orduno-Mireles,
04-12630, 2005 U.S. App. LEXIS 5442 at *6 (11th Cir. April 6, 2005), nor does
Booker enable a district court to employ its discretion to impose a sentence below
the prescribed statutory minimum. United States v. Shelton, 400 F.3d 1325, 1333
n.10 (11th Cir. 2005).
We thus reject Anderson’s initial contention that Booker prevented the
district court – rather than a jury – from finding his three prior felony convictions.
Booker itself makes clear that a district court’s fact-finding as to prior convictions
works no Sixth Amendment violation. Booker, 125 S.Ct. at 756; see also,
Orduno-Mireles, 2005 U.S. App. LEXIS 5442 at *6. Thus, there is no
constitutional Booker error in the district court’s findings as to Anderson’s prior
convictions, nor its consequential application of the § 924(e)(1) statutory
minimum which resulted. Moreover, there can be no non-constitutional
“statutory” Booker error in the district court’s application of § 924(e)(1), because
Booker’s excise of the statutory provision that made the guidelines mandatory left
undisturbed statutory minimums. Shelton, 400 F.3d at 1333 n.10.
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We likewise find no merit in Anderson’s argument that Booker requires a
jury to find that the predicate convictions qualified as “violent felonies” within the
meaning of 18 U.S.C. § 924(e)(2)(b).2 To the contrary, the question of whether the
prior felonies qualify as “violent” remains a matter of law to be determined by the
court. This is made clear by the Supreme Court’s recent decision in Shepard v.
United States, 125 S.Ct. 1254 (2005). Shepard reaffirmed that “a court sentencing
under [§ 924(e)] could look to statutory elements, charging documents, and jury
instructions to determine whether an earlier conviction” qualified as a violent
felony. Shepard, 125 S.Ct. at 1257 (emphasis added). While Shepard thus limited
the categories of material a court could consider in making its “violent felony”
determination, it in no way unsettled a court’s power to pass on this matter of law
or even suggested it was appropriate for jury consideration. Accord United States
v. Schlifer, No. 04-3398, 2005 U.S. App. LEXIS 5613 at *7 (7th Cir. April 7,
2005) (refusing to “parse out the recidivism inquiry” where appellant argued that
judge’s findings as to whether prior convictions were for crimes of violence
violated Sixth Amendment); United States v. Marcussen, No, 04-2935, 2005 U.S.
2
Anderson does not raise his claim, made below, that the predicate aggravated stalking
conviction does not satisfy the definition of a “violent felony” for § 924 purposes. Nonetheless we
note that the Georgia courts have interpreted the aggravated stalking offense (Ga. Code. Ann. § 16-5-
91(a)) to require “a knowing and willful course of conduct directed at a specific person which causes
emotional distress by placing such person in reasonable fear of death or bodily harm.” See Fly v.
State, 494 S.E.2d. 95, 97 (Ga. Ct. App. 1997).
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App. LEXIS 5877 at *5 (8th Cir. April 11, 2005) (holding that Shepard “lends
further support to the rule that the sentencing court, not a jury, must determine
whether prior convictions qualify as violent felonies”) (emphasis added).
Nonetheless, the district court did engage in fact-finding beyond its
conclusion as to Anderson’s prior convictions and their status as “violent felonies”
under § 924(e)(2)(b). Specifically, the district court found by a preponderance of
the evidence that Anderson committed burglary of Bell’s residence prior to his
arrest, and used the concealed firearm found on his person in connection with that
burglary. Though the Georgia courts never convicted Anderson of the burglary
offense, the district court relied on testimony presented to the magistrate at the
suppression hearing to reach its conclusion as to the burglary and the weapon’s
relation thereto. The district court then used those findings to enhance Anderson’s
offense level by four points pursuant to § 2K2.1(b)(5) of the guidelines. In so
doing, the district court clearly violated Anderson’s Sixth Amendment rights
under Booker. Because Anderson’s objections below preserved this issue, and
where the government has not even argued that this Booker error was harmless,
we vacate Anderson’s sentence and remand for re-sentencing.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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