U.S. v. Booker

• Decision Date: 28 August 2009
• Docket Number: No. 07-3094.,07-3094.
• Citation: 579 F.3d 835
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark A. BOOKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

579 F.3d 835

UNITED STATES of America, Plaintiff-Appellee, v. Mark A. BOOKER, Defendant-Appellant.

No. 07-3094.

United States Court of Appeals, Seventh Circuit.

Argued September 23, 2008.

Decided August 28, 2009.

Michael F. Iasparro (argued), Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee.

Richard H. Parsons, Kent V. Anderson (argued), Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before BAUER, CUDAHY, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Mark Booker was indicted on one count of being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1). Booker's indictment arose out of events that transpired in 2006 when an officer acting on a witness's tip stopped Booker's van and saw a gun inside. Booker challenges the district court's denial of his motion to suppress. Booker wishes to exclude the gun and his statements to police because he believes the police lacked reasonable suspicion to stop his vehicle. Booker also challenges his sentence, arguing that his involuntary manslaughter conviction does not qualify as a "crime of violence" under Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). Because the officers did have reasonable suspicion to stop Booker's van, we affirm the district court's denial of the motion to suppress. However, we remand for resentencing because Booker's prior involuntary manslaughter conviction does not qualify as a "crime of violence."

I. BACKGROUND

On July 27, 2006, at about 11:30 p.m., officers from the Rockford Police Department received a 911 call that shots may have been fired near Furman Street and Arthur Avenue in Rockford, Illinois. Officer James Presley arrived on the scene, and Tywon Tennin flagged him down. Tennin told Officer Presley that his daughter had been pushed earlier in the evening and that in response he went to 818 Furman Street, where the alleged battery had occurred. Tennin stated that when he arrived at the house, the occupants refused to speak to him. A short time later, he returned to the house on Furman with relatives of his daughter. As they approached the house, they spotted several African-American men standing outside, but upon seeing Tennin, the men went inside. Tennin said as he and the relatives stood on the front porch, they heard someone run out of the back of the house. Tennin and the relatives gave chase. At that time, Tennin said he heard a loud bang that sounded like a gunshot. Tennin did not report seeing a gun or a muzzle flash. Tennin reported to the officer that the men he believed were involved in the battery were no longer at the house. At that moment, he spotted a van in the driveway at 818 Furman. Tennin told Officer Presley, "I think that's the van that they were in." Tennin also described one suspect as being a bald, black male wearing black pants and no shirt. Officer Presley spoke to Tennin's daughter, but did not see any visible signs of injury.

After taking Tennin's statement, Officer Presley put out a radio call that a witness reported a maroon van at 818 Furman Street that may have been involved in a battery. Officer Timothy Campbell, who arrived next on the scene, saw a van matching the description, which contained one Black male who was wearing a hat and a shirt. The van was leaving the driveway at 818 Furman as Officer Campbell and his partner approached. Officer Campbell yelled at the man, who was later identified as Mark Booker, to stop, which he did. Officer Campbell ordered Booker out of the van and patted him down. Another officer peered in the van window and saw the handle of a .22 caliber revolver on the van's floor. The officers then arrested Booker. Once under arrest, Booker admitted the gun belonged to him and said, "I always carry my piece."

Booker filed a motion to suppress the gun and his post-arrest statements, arguing that the police did not have reasonable suspicion to stop his van. The district court denied Booker's suppression motion, concluding that the officers had reasonable suspicion to stop Booker's van based on Tennin's statement and that the gun was in plain view.

Booker pled guilty, and he reserved his right to appeal the denial of his suppression motion. In the plea agreement, the parties agreed that Booker's base offense level was 24 pursuant to U.S.S.G. § 2K2.1(a)(2) because of a 1997 involuntary manslaughter conviction and a 2001 drug conviction. The plea agreement stated Booker would receive a two-level enhancement because the gun was stolen and a three-level reduction for acceptance of responsibility. The parties agreed his criminal history category was VI and that his Sentencing Guidelines range would be 92 to 115 months in prison. The court sentenced Booker to 102 months' imprisonment, followed by three years of supervised release. Booker appeals.

II. ANALYSIS

Booker raises two issues on appeal. First, he claims the district court erred in denying his motion to suppress because the officers did not have reasonable suspicion when they stopped his van. Second, he argues the district court committed plain error when it used his involuntary manslaughter conviction to enhance his offense level. We discuss each in turn.

A. The district court properly determined the officers had reasonable suspicion to justify Booker's stop.

Booker argues Officer Campbell did not have reasonable suspicion to stop his van because the officers had no corroborating evidence that a battery actually occurred or that someone fired a gun. Further, Booker claims the group of men Tennin reported were involved in the battery had already left on foot and that Tennin did not mention a van until he spotted Booker's. Finally, Booker argues he was the only one in the van, which did not match Tennin's description that several men were involved in the incident. Booker contends that if the officers had not stopped his van, they would not have seen the gun inside. Under the fruit of the poisonous tree doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), Booker argues the gun and his statements should be suppressed. When reviewing a district court's decision on a motion to suppress, we review legal conclusions de novo and factual determinations for clear error. United States v. Burks, 490 F.3d 563, 565 (7th Cir.2007).

The Fourth Amendment protects individuals against unreasonable searches and seizures. U.S. CONST. amend. IV. The requirement that officers obtain a warrant from a neutral, detached magistrate ensures individuals receive Fourth Amendment protection. United States v. Whitaker, 546 F.3d 902, 906 (7th Cir.2008). However, police may initiate an investigatory stop — a Terry stop — when the officer has reasonable suspicion that a crime occurred. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Grogg, 534 F.3d 807, 810 (7th Cir.2008). Although an officer does not need probable cause to conduct an investigatory stop, the brief detention must be based on reasonable suspicion that the stopped individual has or is about to commit a crime. United States v. LePage, 477 F.3d 485, 487-88 (7th Cir.2007). When an officer initiates a Terry stop, he must be able to point to "specific and articulable facts" that suggest criminality so that he is not basing his actions on a mere hunch. Jewett v. Anders, 521 F.3d 818, 823 (7th Cir.2008); United States v. Lawshea, 461 F.3d 857, 859 (7th Cir.2006). Reasonable suspicion must be evaluated in the totality of the circumstances. United States v. Hicks, 531 F.3d 555, 558 (7th Cir.2008).

In denying Booker's motion to suppress, the district court determined that Officer Campbell learned from Officer Presley's radio call that the maroon van may have been involved in the battery. The district court also found it was inconsequential that Booker did not match the description of the suspect Tennin gave because that description was not relayed to Officer Campbell, who made the stop. The trial court also pointed to our decision in United States v. Drake, for the proposition that Tennin's statement to police was entitled to greater weight because he was not an anonymous or confidential informant. 456 F.3d 771 (7th Cir.2006) (concluding reasonable suspicion existed when an identified eyewitness made a 911 call to report an ongoing emergency).

Tennin's statements to police provided the officers with enough information for officers to believe a crime occurred and that Booker may have been involved. First, police received a 911 call reporting gunshot fire. When Officer Presley arrived, Tennin flagged him down, identified himself, and reported a battery that occurred earlier in the evening. Tennin gave the address of where the battery occurred and the area in which he believed he heard the gunshot. He also gave a specific description of a suspect and pointed out Booker's van as the one that he thought carried the men involved in the battery.

"When a single informant provides the tip that brought police to a Terry stop, this court looks to the amount of information given, the degree of reliability, and the extent that the officers can corroborate some of the informant's information." LePage, 477 F.3d at 488 (citation omitted). Like the caller in Drake, Tennin was not an anonymous informant, and he gave specific details, including describing two crimes that occurred, an address where the crimes occurred and a suspect description. Drake differs from this case because the witness in that case reported an ongoing emergency; however, Drake nonetheless supports the government's position that reports made by identified witnesses should be given more weight than anonymous callers. See Drake, 456 F.3d at 775. Tennin was willing to identify himself to police and have officers speak with his daughter, which differentiates him from other anonymous tipsters whose reports may not give rise to reasonable suspicion. See United...