985 F.2d 151 (4th Cir. 1993), 92-5099, United States v. Lender

Docket Nº:92-5099, 92-5103.
Citation:985 F.2d 151
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Calvin Edwin LENDER, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Calvin Edwin LENDER, Defendant-Appellant.
Case Date:February 01, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 151

985 F.2d 151 (4th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellant,

v.

Calvin Edwin LENDER, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellee,

v.

Calvin Edwin LENDER, Defendant-Appellant.

Nos. 92-5099, 92-5103.

United States Court of Appeals, Fourth Circuit

February 1, 1993

Argued Dec. 2, 1992.

Page 152

John S. Bowler, Office of U.S. Atty., Raleigh, NC, argued (Margaret Person Currin, U.S. Atty., Jane H. Jolly, Asst. U.S. Atty., on brief), for plaintiff-appellant.

George Alan DuBois, Jr., Asst. Federal Public Defender, Raleigh, NC, argued, for defendant-appellee.

Page 153

Before WILKINSON and NIEMEYER, Circuit Judges, and MORGAN, United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

WILKINSON, Circuit Judge:

We address herein two issues relating to Calvin Edwin Lender's conviction and sentence for possessing a firearm in violation of 18 U.S.C. § 922(g)(1). Lender challenges the denial of his motion to suppress the firearm, and the government has appealed the district court's refusal to sentence Lender as an armed career criminal under 18 U.S.C. § 924(e). We uphold the district court's denial of the motion to suppress, because the police officers had a reasonable suspicion to stop Lender after they observed him in what they believed to be a drug transaction. We hold, however, that defendant should have been sentenced as an armed career criminal, even though one of his three predicate convictions was handed down when he was seventeen, because North Carolina tried the defendant as an adult.

I.

At approximately 12:50 a.m. on August 11, 1990, Officer Christopher Hill of the Kinston Police Department and Officer Richard Thornell of the North Carolina Alcohol Law Enforcement Division were patrolling an area in Kinston, North Carolina. The officers knew the area to be one where heavy drug traffic occurred. As they crossed an intersection, the officers observed a group of four or five men, including the defendant, huddled on a corner. The defendant had his hand stuck out with his palm up, and the other men were looking down toward his palm.

Suspecting a drug transaction, the officers stopped their car, got out, and approached the men. Although the officers wore plain clothes and drove an unmarked car, they were readily identifiable as police officers because of their firearms and badges worn at belt-level. As the officers approached, the group began to disperse, and the defendant walked away from the officers with his back to them. Officer Hill called out for the defendant to stop, but the defendant refused. As he walked, the defendant turned and told Hill, "You don't want me; you don't want me."

While Lender continued to walk away, both officers observed him bring his hands to the front of his waist as though reaching for or fumbling with something in that area. Officer Hill again called for the defendant to stop. At this point, the defendant stopped, and a loaded semi-automatic pistol fell from his waist to the ground. Both Lender and Officer Hill reached for the gun, but Officer Thornell immediately subdued the defendant, preventing him from grabbing the weapon. Officer Hill then placed the defendant under arrest for carrying a concealed weapon. Because Lender had a history of prior felony convictions, he eventually was indicted on one count of possessing a firearm after having been convicted of a crime punishable by a term exceeding one year, a violation of 18 U.S.C. § 922(g)(1).

Prior to trial, the defendant moved to suppress the gun on the grounds that it had been discovered only after the officers had unlawfully seized him. Lender argued both that the officers had no reasonable suspicion to justify stopping him, and that he was seized from the moment he came to a stop after Officer Hill's second call for him to do so. The district court denied defendant's motion, finding that although the officers had no reasonable suspicion to stop defendant, he had not been seized at the time the gun fell into plain view.

On October 21, 1991, a jury convicted Lender on the sole count of the indictment. Prior to trial, the government had filed notice that it would seek the fifteen-year mandatory minimum sentence provided in the Armed Career Criminal Act (the "Act"), 18 U.S.C. § 924(e)(1). The government maintained that the defendant qualified for the enhancement because he previously had been convicted of three violent felonies as defined by the Act: breaking and entering in 1982, breaking, entering, and larceny in 1985, and common-law robbery in 1988.

The district court declined to sentence Lender as an armed career criminal. The court focused upon the defendant's 1982 breaking and entering conviction, handed down when he was seventeen. According

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to the district court, section 924(e) left it unclear whether convictions of persons meeting the federal definition of juvenile, a "person who has not attained his eighteenth birthday" under 18 U.S.C. § 5031, should be...

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