United States v. Vickers

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 12, 2008

No. 07-10767

Summary Calendar Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MICHAEL DEWAYNE VICKERS

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

Michael Dewayne Vickers was convicted, after a jury trial, of being a felon

in possession of a firearm in violation of federal law. Vickers timely appeals and

challenges both his conviction and sentence. We AFFIRM.

I. BACKGROUND

On August 5, 2005, at approximately 3:00 p.m., the Dallas Police

Department received a 911 call reporting a burglary. The caller described the

burglar as a black male dressed in a red T-shirt and a dark-colored pair of

shorts, and stated that the perpetrator might still be in the area. Vickers was

walking down the street of his neighborhood in Dallas, Texas. The Dallas Police

Department dispatched officers to investigate.

No. 07-10767

The first officer to arrive at the scene observed a black male wearing a red

T-shirt and dark shorts walking on the sidewalk near the house that had been

burglarized. It was Vickers. The officer stepped out of his patrol car and

ordered Vickers to put his hands on the hood of the police vehicle. Vickers

initially complied, but as the officer began to pat him down, Vickers said, “I can’t

go to jail,” and attempted to flee. Vickers ran only a few steps before he was

subdued and handcuffed.

After Vickers was subdued, the officers completed the search and

discovered a .38 caliber pistol in the front left pocket of Vickers’s pants. After

Vickers’s arrest, the person who had placed the 911 call approached and told the

officers they “had the wrong guy.” It is now undisputed that Vickers was not

involved in the burglary that prompted the 911 call. Vickers’s arrest was based

solely on possession of the weapon found as a result of the search.

Vickers was charged with being a felon in possession of a firearm. See 18

U.S.C. §§ 922(g)(1) & 924(e)(1). Vickers’s prior felony convictions justifying the

charge included murder, burglary of a habitation, and unlawful delivery of a

controlled substance. At his trial, Vickers presented no defense. His counsel

informed the jury in closing arguments that the trial essentially “pertain[ed] to

Mr. Vickers’ right to appeal.” After brief deliberations, the jury returned a

verdict of guilty.

At sentencing, the district court adopted the recommendation of the

Presentence Report. The PSR determined that Vickers’s three prior felony

convictions constituted either a “violent felony” or a “serious drug offense,” and

designated Vickers as an Armed Career Criminal for purposes of sentencing.

This designation mandated the imposition of a minimum sentence of fifteen

years. Vickers objected to the characterization of his prior state conviction for

delivery of a controlled substance as a “serious drug offense.” The district court

overruled the objection. The district court also denied Vickers’s request for a

two-level reduction in his sentence for acceptance of responsibility.

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The final calculation placed Vickers’s offense level at 33 with a Criminal

History Category of IV. This resulted in a Sentencing Guideline range of 188 -

235 months. The district court sentenced Vickers to 190 months’ imprisonment

and three years of supervised release. The court adjusted the sentence from 190

months to 168 months to account for 22 months of incarceration by the state of

Texas that would not be credited to his sentence by the U.S. Bureau of Prisons.

On appeal, Vickers challenges both his conviction and sentence.

II. DISCUSSION

A. Motion to Suppress

Vickers’s first argument is that the district court erred in denying his

motion to suppress. In evaluating a refusal to suppress evidence, we review

questions of law de novo and factual findings for clear error. United States v.

Mata, 517 F.3d 279, 284 (5th Cir. 2008). In addition, where, as here, the police

acted without a warrant, the burden is on the Government to prove that the

search was valid. United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005).

Vickers argues that the initial police action – pulling up in marked police

vehicles and immediately instructing Vickers to place his hands on the police car

– constituted an unconstitutional seizure under the Fourth Amendment because

the officers had neither a warrant nor probable cause. The Government, on the

other hand, characterizes the officers’ actions as a permissible “stop and frisk”

because the officers had reasonable suspicion that Vickers was involved in the

reported burglary based on the information provided in the 911 call.

The Fourth Amendment provides these relevant protections:

The Fourth Amendment prohibits unreasonable searches and

seizures by the Government, and its protections extend to brief

investigatory stops by persons or vehicles that fall short of

traditional arrest. Because the balance between the public interest

and the individual’s right to personal security tilts in favor of a

standard less than probable cause in such cases, the Fourth

Amendment is satisfied if the officer’s action is supported by

reasonable suspicion to believe that criminal activity may be afoot.

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No. 07-10767

United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotes and citations

omitted). The legality of a “stop and frisk” requires this analysis: were the

officer’s initial actions justified when they occurred, and was there a reasonable

relation between subsequent actions and the circumstances that supported the

stop? United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc).

(a) The initial stop

The initial stop in a situation such as this is proper when “the officer has

reasonable, articulable suspicion that the person has been, is, or is about to be

engaged in criminal activity.” United States v. Hensley, 469 U.S. 221, 227 (1985)

(emphasis and citation omitted). Reasonable suspicion requires less information

and certainty than the probable cause needed to make an arrest. United States

v. Jones, 234 F.3d 234, 241 (5th Cir. 2000). Whether an officer has reasonable

suspicion to stop is answered from the facts known to the officer at the time.

The Fourth Amendment does not require a policeman who lacks the

precise level of information necessary for probable cause to arrest to

simply shrug his shoulders and allow a crime to occur or a criminal

to escape. On the contrary, Terry [v. Ohio, 392 U.S. 1 (1968),]

recognizes that it may be the essence of good police work to adopt an

intermediate response. A brief stop of a suspicious individual, in

order to determine his identity or to maintain the status quo

momentarily while obtaining more information, may be most

reasonable in light of the facts known to the officer at the time.

Adams v. Williams, 407 U.S. 143, 145-46 (1972).

The record shows that the police received an emergency phone call, in

which the caller reported that his own home had just been burglarized. The

victim provided his name, address, telephone number, as well as other personal

information. In response to the call, the following dispatch was sent: “Burglary

just occurred by unknown black male last seen wearing red shirt, blue or black

shorts. Suspect near location.” Upon arriving at the location, the officers

discovered Vickers – about 75 to 100 yards from the burglarized home – wearing

clothing that met the description of the reported burglar. Considering the

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No. 07-10767

totality of the circumstances in this case, we find that the officers had a

“particularized and objective basis” to believe that a crime had been committed

and that Vickers was involved. Arvizu, 534 U.S. at 277.

Vickers argues that the 911 call was nothing more than an unreliable

anonymous tip, which did not provide reasonable suspicion. Vickers is factually

and legally incorrect. This was not anonymously-provided information; an

identified citizen had been victimized by a crime and was reporting it. The

question of whether a 911 call has a sufficient indicia of reliability to provide

reasonable suspicion to justify a stop is evaluated based on the circumstances of

each case. A good starting point is the presumption of “the reliability of an

eyewitness 911 call reporting an emergency situation for purposes of

establishing reasonable suspicion, particularly when the caller identifies” who

he or she is. United States v. Drake, 456 F.3d 771, 775 (7th Cir. 2006); see also

United States v. Burbridge, 252 F.3d 775, 778-79 (5th Cir. 2001) (“when an

average citizen tenders information to the police, the police should be permitted

to assume that they are dealing with a credible person in the absence of special

circumstances suggesting that such might not be the case.”) (citation omitted).

In this case, a burglary victim not only gave his name, he also provided

several other pieces of information to identify himself and the burglar. The 911

call in this case was sufficiently detailed that the police were justified in relying

on it to establish reasonable suspicion.

(b) Scope of the stop

Though the police had reasonable suspicion to stop Vickers, the officers’

actions must not exceed the permissible scope of the stop. United States v.

Dortch, 199 F.3d 193, 198 (5th Cir. 1999). The question is whether the police

“diligently pursued a means of investigation that was likely to confirm or dispel

their suspicions quickly, during which time it was necessary to detain the

defendant.” United States v. Sharpe, 470 U.S. 675, 686 (1985).

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No. 07-10767

The means of investigation pursued here was a frisk, which the Supreme

Court has held is appropriate when the officer fears that the suspect is armed

and poses a danger to the officer or others. Terry, 392 U.S. at 24. “The officer

need not be absolutely certain that the individual is armed; the issue is whether

a reasonably prudent man in the circumstances would be warranted in the belief

that his safety or that of others was in danger.” Id. at 27. The responding officer

testified that he immediately frisked Vickers because Vickers fit the description

provided by the 911 caller and Vickers was near where the burglary occurred.

The officer also testified, based on seventeen years of experience, that burglary

suspects are often armed. He felt his own safety required a pat-down of Vickers.

The reasonableness of police conduct includes consideration of “the specific

reasonable inferences that the officer is entitled to draw from the facts in light

of his experience and training.” United States v. Sanders, 994 F.2d 200, 203 (5th

Cir. 1993). Based on the totality of the circumstances, the district court did not

err in finding that the officer’s pat-down was reasonable.

The question of whether the officer should have pursued less intrusive

means (for example engaging in conversation with Vickers before commencing

the frisk) does not factor into our analysis. The Supreme Court has instructed

that, once an officer has established reasonable suspicion, appellate courts are

limited in reviewing how the police choose to alleviate that suspicion if the

intrusion is no longer than necessary to dispel the suspicion:

The reasonableness of the officer’s decision to stop a suspect does

not turn on the availability of less intrusive investigatory

techniques. Such a rule would unduly hamper the police’s ability to

make swift, on-the-spot decisions . . . and [ ] would require courts to

indulge in unrealistic second-guessing.

United States v. Sokolow, 490 U.S. 1, 11 (1989) (internal quotes and citations

omitted). In that case, the defendant’s argument that officers were obligated to

engage in conversation prior to detaining defendant was rejected. Id.

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Vickers argues that two factors weigh against a finding that the officers

had a reasonable basis to stop and frisk him. First, he cites to a discrepancy in

police documentation regarding the time that the police were dispatched and the

time of Vickers’s arrest. Specifically, the arrest report indicated that Vickers

was arrested at 2:57 p.m., even though the dispatch related to the burglary

occurred at 2:59 p.m. Vickers argues that, if the times as reported are true, the

officers lacked reasonable suspicion to stop Vickers, because they had not

learned of the burglary at the time of the stop. The officers testified that the

time discrepancy was a clerical mistake by a data entry clerk. The district court

accepted that testimony. There was no clear error in that factual conclusion.

United States v. Jordan, 232 F.3d 447, 448 (5th Cir. 2000).

Vickers’s second argument is that any reasonable suspicion for a Terry

stop and frisk was tainted by the arresting officer’s subjective belief that he was

going to arrest Vickers at the time of the initial stop. Courts “are precluded from

giving weight to the subjective intent of police officers” in evaluating the

constitutionality of a stop. United States v. Holloway, 962 F.2d 451, 458 (5th

Cir. 1992). The standard we apply to the reasonableness of a stop is an objective

one – were the officers objectively authorized to act as they did viewing the

totality of the circumstances. Id. at 458 n.19. The officers’ actions were

objectively reasonable regardless of their subjective intent.

In sum, reasonable suspicion existed to believe that Vickers was engaged

in a recently completed burglary, which gave the officers the right to stop him.

Furthermore, the officers did not exceed the permissible scope of the stop when

the officers sought to pat down Vickers. True, the police were incorrect in their

initial suspicion that Vickers was involved in the burglary that prompted the

police response. That hindsight does not change the Fourth Amendment

analysis of whether the stop and frisk of Vickers was reasonable. Therefore, the

district court did not err in denying Vickers’s motion to suppress.

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No. 07-10767

B. Lack of Nexus Between Interstate Commerce

Vickers’s other challenge to his conviction is that the Government failed

to sustain its burden that the gun found on Vickers “affect[ed] interstate

commerce” – an essential element of the statute Vickers was charged with

violating. This court has held that evidence similar to what was presented in

this case is sufficient to establish the “interstate commerce” element of Section

922(g)(1). United States v. Dancy, 861 F.2d 77, 81 (5th Cir. 1988). To the extent

Vickers challenges the constitutionality of this section, this argument has been

foreclosed in this Circuit. Vickers has preserved the issue should that later be

relevant. See United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).

C. Armed Career Criminal Act enhancement

Vickers also challenges his sentence. The first issue is whether the district

court properly found him subject to the Armed Career Criminal Act (ACCA). See

18 U.S.C. § 924(e). The designation caused a fifteen-year mandatory minimum

sentence. An armed career criminal is a felon in possession of a firearm who has

three prior convictions for a “violent felony” or a “serious drug offense.” Id. For

a “serious drug offense” to qualify under the enhancement, it must also have a

possible sentence of ten years or more. 18 U.S.C. 924(e)(2)(A)(i).1

The district court found that three of Vickers’s prior convictions satisfied

these statutory requirements. Vickers does not challenge the findings on two of

the three convictions – murder and burglary of a habitation. However, he

alleges that the third conviction – delivery of a controlled substance – is not a

“serious drug offense” under the ACCA.

A “serious drug offense” under the ACCA is “an offense under State law,

involving manufacturing, distributing, or possessing with intent to manufacture

1

The parties do not dispute that Vickers’s prior drug conviction was a first degree

felony punishable by a maximum prison term of 99 years. Tex. Pen. Code Ann. § 12.32(a).

Therefore, that conviction meets the minimum penalty requirement of the ACCA.

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No. 07-10767

or distribute, a controlled substance . . . for which a maximum term of

imprisonment of ten years or more is prescribed by law.” 18 U.S.C. §

924(e)(2)(ii). The Texas statute supporting Vickers’s conviction applied to a

person who “knowingly manufactures, delivers, or possesses with intent to

deliver” a controlled substance. Tex. Health & Safety Code Ann. § 481.112

(2003). The Texas statute defines delivery to include actual or constructive

transfer or “offering to sell” the substance. Tex. Health & Safety Code §

481.002(8) (2003).

We review application of the armed career criminal enhancement de novo.

United States v. Munoz, 150 F.3d 401, 419 (5th Cir. 1998). In determining

whether an offense satisfies the ACCA, a court is limited to “examining the

statutory definition, charging document, written plea agreement, transcript of

plea colloquy, and any explicit factual findings by the trial judge to which the

defendant assented.” Shepard v. United States, 544 U.S. 13, 16 (2005).

We have noted that the Texas statute could be violated by a range of

conduct between an offer to sell to actual delivery of a controlled substance. The

charging document and state court judgment do not inform us what Vickers was

accused of doing. The charging document states that Vickers

did knowingly and intentionally deliver, to-wit: actually transfer,

constructively transfer, and offer to sell a controlled substance, to-

wit: COCAINE in an amount . . . of less than 28 grams, to CS

Shields.

The state court judgment adds no useful detail. It does not reflect whether the

judge found that Vickers: (1) actually transferred; (2) constructively transferred;

(3) offered to sell; or (4) offered to sell and then actually or constructively

transferred the cocaine. The Government concedes that conviction could be

based on any one of the alternatives. Therefore, nothing negates the possibility

that Vickers was convicted solely for offering to sell a controlled substance.

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No. 07-10767

Vickers relies on a precedent in which the defendant was convicted of

reentry by a removed alien. United States v. Gonzales, 484 F.3d 712, 714 (5th

Cir.), cert. denied, 127 S. Ct. 3031 (2007). At sentencing, the Government sought

to enhance Gonzales’s sentence under the Sentencing Guidelines as a prior “drug

trafficking offense.”2 The ACCA was not discussed. The only relevance of

Gonzales is that the prior conviction was under the Texas statute that is at issue

here. We held that Gonzales’s conviction under the Texas statute for offering to

sell a controlled substance was not a “drug trafficking offense.” For the

enhancement to be applicable, the offense must be one that “prohibits the

manufacture, import, export, distribution, or dispensing of a controlled

substance . . . or the possession of a controlled substance . . . with intent to

manufacture, import, export, distribute or dispense.” Id. at 715 n.1 (quoting

U.S.S.G. § 2L1.2, cmt. n.1(B)(iv)). Our question was whether an offer to sell

could be considered any of those actions. It could not be, and we found the

enhancement inapplicable. Gonzales, 484 F.3d at 716.

Unlike the Gonzales court, we are not faced with interpreting the “drug

trafficking” enhancement under the Sentencing Guidelines. Our interpretive

issues arise from the Armed Career Criminal Act. If the definition in the ACCA

of a “serious drug offense” were identical to the definition of a “drug trafficking

offense” in the Guidelines, then the Gonzales holding would be relevant. The

two definitions are not identical. The drug trafficking enhancement lists specific

convictions (e.g., manufacture, import) that support the enhancement. The

ACCA applies to convictions “involving manufacturing, distributing, or

possessing with intent to manufacture or distribute, a controlled substance . . .

.” 18 U.S.C. § 924(e)(2)(A)(ii) (emphasis added).

2

The Sentencing Guidelines (§ 2L1.2) provide for a 16-level enhancement for a

defendant convicted of unlawfully reentering the United States if the defendant has a prior

felony conviction for a “drug trafficking offense.”

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No. 07-10767

The word “involving” is an exceedingly broad term for a statute. One of

our precedents has addressed this part of the ACCA. United States v. Winbush,

407 F.3d 703 (5th Cir. 2005). There, one of the underlying felonies justifying

imposition of the ACCA enhancement was a conviction for attempted possession

of cocaine with intent to distribute under a Louisiana statute. Id. at 704.

Winbush argued that the inchoate crime of attempt to possess did not qualify as

a “serious drug offense” to justify the ACCA enhancement. Id. at 705. The court

held that the inclusion of the word “involving” in the ACCA demonstrated that

Congress intended the category of convictions considered a “serious drug offense”

to be expansive:

[t]he word ‘involving’ has expansive connotations, and we think it

must be construed as extending the focus of § 924(e) beyond the

precise offenses of distributing, manufacturing, or possessing, and

as encompassing as well offenses that are related to or connected

with such conduct.

Id. at 707 (quoting United States v. King, 325 F.3d 110, 113 (2d Cir.), cert denied,

540 U.S. 920 (2003)). In Winbush, the court concluded that an attempted

possession of cocaine was of a type “involving” possession.

Vickers correctly points out that the Louisiana statute in Winbush is not

identical to the Texas delivery statute. The Louisiana attempt statute requires

a showing that the defendant took steps toward obtaining possession of the

controlled substance with the specific intent to commit the offense of possession

with intent to distribute. State v. Harris, 846 So. 2d 709, 713 (La. 2003). The

Texas delivery statute requires less: “The offense is complete when by words or

deed, a person knowingly or intentionally offers to sell what he states is a

controlled substance.” Stewart v. State, 718 S.W.2d 286, 288 (Tex. Crim. App.

1986). The intentional offer to sell a controlled substance is the crime; the

accused need not have any drugs to sell or even intend ever to obtain the drugs

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No. 07-10767

he is purporting to sell. Francis v. State, 890 S.W.2d 510, 513 (Tex. App. 1994)

(statute requires neither possession nor actual/constructive transfer of a

controlled substance at the time of an offer to sell).

Despite the statutory differences, our issue is whether a Texas conviction

for offering to sell a controlled substance is one “involving” distribution of a

controlled substance under the ACCA. We begin with the presumption that

Congress “says in a statute what it means and means in a statute what it says

there.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992). The

plain meaning of the term “involving” means “related to or connected with.”

Winbush, 407 F.3d at 707 (quoting King, 325 F.3d at 113). The ACCA is

intended to cover those individuals whose prior convictions indicate an

“increased likelihood that the offender is the kind of person who might

deliberately point the gun and pull the trigger.” Begay v. United States, 128 S.

Ct. 1581, 1587 (2008). The expansiveness of the word “involving” supports that

Congress was bringing into the statute’s reach those who intentionally enter the

highly dangerous drug distribution world. Being in the drug marketplace as a

seller – even if, hypothetically, the individual did not possess any drugs at that

time – is the kind of self-identification as a potentially violent person that

Congress was reaching by the ACCA.

We have discussed that there is no evidence of how Vickers participated

in the drug marketplace. It is the nature of the jurisprudence surrounding some

sentencing enhancements based on prior convictions, when the details of those

prior convictions do not appear in usable documentation, to have to discuss

speculative possibilities. We find nothing illogical, unreasonable or unfair about

interpreting this part of the ACCA in its most straightforward way. The offenses

specified by the Texas statute – from the offer to sell, to attempted delivery, to

actual delivery – are all offenses which are “related to or connected with” the

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No. 07-10767

distribution of drugs. Winbush, 407 F.3d at 707 (quoting King, 325 F.3d at 113).

Therefore, we hold that the district court did not err in concluding that Vickers’s

Texas conviction for delivery of a controlled substance was a “serious drug

offense” for purposes of the ACCA.3

D. Sentence Reduction for Acceptance of Responsibility

Vickers’s final argument is that the district court erred in denying his

request for a reduction in sentence for acceptance of responsibility. The

Sentencing Guidelines provide that if a defendant “clearly demonstrates

acceptance of responsibility” for the offense, his sentence can be reduced two

levels. U.S.S.G. § 3E1.1. Because the district judge is well-positioned to

evaluate the appropriateness of a reduction in sentence based on acceptance of

responsibility, the standard to review a denial is extremely deferential. United

States v. Chapa-Garza, 62 F.3d 118, 122 (5th Cir. 1995).

Vickers argues that the district court erred in failing to find the following

to be decisive: (1) Vickers went to trial solely to preserve his ability to appeal

questions of law; (2) the defense presented no evidence at trial; (3) at trial

counsel only cross examined one of the Government’s witnesses; (4) Vickers

stipulated to the fact that he had previously been convicted of a felony; (5) in

closing argument counsel all but conceded guilt – by telling the jury Vickers was

proceeding to trial to preserve issues for appeal; and (6) Vickers pled guilty to

3

We recognize that this holding means that an offense could be found to satisfy the

ACCA requirements, while the same offense would not be sufficient to trigger an enhancement

under the Sentencing Guidelines. For example, in Gonzales as well as United States v. Price,

516 F.3d 285 (5th Cir. 2008), we held that “delivery” under this Texas statute does not

constitute either a “drug trafficking offense” (Gonzales) or a “controlled substance offense”

(Price) for sentencing purposes. These cases, however, are based on the specific language of

those two enhancements. Here we are faced with a statute whose language encompasses

offenses “involving” distribution – broad enough language to cover an offer to sell.

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essentially the same crime in state court based on the same underlying events

– indicating an admission of guilt.

Vickers placed these same facts before the district court and the court

found them unconvincing. Vickers had rejected a conditional guilty plea offered

by the Government, put the Government to its burden of proof in a jury trial,

sought a judgment of acquittal pursuant to Federal Rule of Criminal Procedure

29, and in closing argument urged the jury to find that the Government had not

proven its case beyond a reasonable doubt. Based on this record we cannot find

that the district court abused its broad discretion in denying Vickers’s request

for a reduction in sentence for acceptance of responsibility.

AFFIRMED.

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