742 F.3d 785 (7th Cir. 2014), 13-1491, United States v. Riney

Docket Nº:13-1491
Citation:742 F.3d 785
Opinion Judge:Hamilton, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GUY RINEY, Defendant-Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Christopher V. Parente, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL. For GUY RINEY, Defendant - Appellant: Michael J. Petro, Attorney, PETRO & ASSOCIATES, Chicago, IL.
Judge Panel:Before MANION, KANNE, and HAMILTON, Circuit Judges.
Case Date:February 10, 2014
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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742 F.3d 785 (7th Cir. 2014)



GUY RINEY, Defendant-Appellant

No. 13-1491

United States Court of Appeals, Seventh Circuit

February 10, 2014

Argued: November 13, 2013.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11-CR-115-- Matthew F. Kennelly, Judge.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Christopher V. Parente, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL.

For GUY RINEY, Defendant - Appellant: Michael J. Petro, Attorney, PETRO & ASSOCIATES, Chicago, IL.

Before MANION, KANNE, and HAMILTON, Circuit Judges.


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Hamilton, Circuit Judge.

Defendant Guy Riney was convicted in a jury trial of possession of a firearm after previously having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Riney had many felony convictions and enough violent crimes, though from many years earlier, to qualify as an armed career criminal under both 18 U.S.C. § 924(e) and U.S. Sentencing Guideline § 4B1.4. The district court sentenced Riney to 204 months in prison. Riney appeals both his conviction and sentence. He argues that the district court erred in denying his motion to quash his arrest and suppress evidence and then also erred in applying a two-level enhancement for obstruction of justice to the offense level in its sentencing guideline calculation. We affirm.

I. Motion to Suppress

A. The Facts and the District Court's Ruling

On September 2, 2009, Chicago police officers John McKenna and Abraham Lara responded to a dispatch call regarding a shooting at the intersection of Franklin Boulevard and Drake Avenue. The call came in between 12:30 and 1:00 a.m. The officers learned that a victim had been shot by two black males wearing dark clothing who had fled on foot. The officers immediately began patrolling the area in their police car, searching for the shooting

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suspects. They encountered defendant Riney a few blocks away from the shooting. According to the officers, they first saw Riney sitting in a parked car with another black male on North Monticello Avenue. The officers believed the pair matched the general description of the shooting suspects. Officer Lara was driving. He pulled the police car behind the parked car in which Riney was sitting. The officers saw Riney get out on the passenger side. When the police car stopped, Officer Lara exited, drew his weapon, and yelled " show me your hands." Officer McKenna also exited and noticed what appeared to be a gun handle in Riney's waistband. He shouted commands at Riney, though at the evidentiary hearing he was not able to recall exactly what those commands were. Riney continued walking away at a fast pace. Officer McKenna followed and, based on his observation and his belief that the suspects in the recent and nearby shooting were in the area, detained Riney between the porch and the fence of a house at 438 North Monticello. He conducted a pat-down search and recovered a loaded revolver from Riney. That weapon was the basis of the felon-in-possession charge against Riney. Officer McKenna then alerted Officer Lara to the presence of a weapon, secured the weapon, and turned it over to Lara.

Riney filed a pretrial motion to suppress the gun and quash his arrest, claiming that his search and arrest were illegal because the officers lacked probable cause. In support of his motion, he submitted his own affidavit. Statements within that affidavit contradicted the officers' version of their discovery of the revolver in several critical respects. In Riney's version, he claimed he had been standing on his porch when Officer McKenna ordered him to approach and then " forcefully grabbed me by my clothing and physically pulled me through the front outside gate of my home onto the sidewalk" before recovering the weapon.

Based on Riney's affidavit, Judge Pallmeyer conducted an evidentiary hearing over the course of four days on his motion to suppress.1 Four witnesses testified, but Riney himself did not testify. Because Riney's affidavit was hearsay, it was not admitted as evidence at the hearing. None of the evidence offered at the hearing supported the version of events presented in Riney's affidavit. Without supporting evidence, Riney's counsel changed tactics and argued that the officers did not have reasonable suspicion to stop Riney because it would have been impossible for Officer McKenna to have seen a gun in Riney's waistband at night while Riney was wearing dark clothing.

The district court rejected this argument, found the officers' testimony both " plausible" and " truthful," and denied Riney's motion to suppress. Based on Officer McKenna's observation of the weapon, the court found that the officers had reasonable suspicion to detain Riney and to conduct a pat-down search of his person. Riney appeals the district court's ruling.

B. Factual Impossibility and Officer Credibility

In reviewing the denial of a motion to suppress, we review the district court's legal conclusions de novo and its factual findings for clear error. United States v. Jackson, 598 F.3d 340, 344 (7th Cir. 2010). Before the district court and on appeal, Riney has argued factual impossibility--

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because it was dark outside and Riney was wearing dark clothing, Officer McKenna could not have seen the handle of a gun in Riney's waistband--so that Officer McKenna's testimony that he saw a weapon was not credible.

We have no grounds to disturb the district court's factual findings. The court acknowledged that it was dark at the time of Riney's arrest but found that because the encounter between Riney and Officer McKenna occurred beneath a streetlight and because the handle of the Riney's gun was particularly large, it would not have been impossible for Officer McKenna to have seen the gun handle in Riney's waistband. The court's finding was based on the available evidence and was not otherwise contradicted. We find no error in that finding.

Riney also challenges Officer McKenna's credibility because, contrary to " common sense" and " years of [Chicago Police Department] training and experience," (1) McKenna did not alert Officer Lara that he had seen a gun before seizing Riney; (2) McKenna did not draw his own weapon; (3) he did not immediately attempt to disarm Riney; (4) he did not try to have the shooting victim identify Riney; (5) his testimony contained small inconsistencies; and (6) Officer Lara did not also see the weapon in Riney's waistband before Officer McKenna seized him. In the face of these criticisms, the district court found that Officer McKenna's testimony was " plausible" and " truthful." We give great deference to a district judge's credibility findings on appeal. United States v. Pabey, 664 F.3d 1084, 1094 (7th Cir. 2011); United States v. Pulley, 601 F.3d 660, 664 (7th Cir. 2010) (A district court's determination of witness credibility " can virtually never be clear error." ). Riney does not approach that standard, especially since the officers' testimony was not contradicted. The district court did not err by crediting Officer McKenna's testimony.

C. Reasonable Suspicion

Riney also argues that the officers' stop and search was unconstitutional because he was effectively arrested before Officer McKenna saw the weapon in his pants. Because Riney did not present this theory to the district court, we review it only for plain error, but only if Riney can show good cause for failing to make the argument in the district court. Fed. R. Crim. P. 12(e); United States v. Figueroa, 622 F.3d 739, 742 (7th Cir. 2010); United States v. Murdock, 491 F.3d 694, 698 (7th Cir. 2007). Even if Riney shows good cause, the district court's ruling will stand unless Riney " can demonstrate an error that is plain, that affects his substantial rights, and that seriously affects the fairness, integrity or public reputation of the judicial proceeding, effectuating a miscarriage of justice." United States v. Iacona, 728 F.3d 694, 699 (7th Cir. 2013). Riney fails to meet either of these high bars.

Riney does not attempt to show that he had good cause for failing to present his Fourth Amendment argument to the district court, and his argument fails on that basis alone. Even if Riney could overcome that initial threshold, he cannot show that the district...

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