U.S. v. Billingsley

• Decision Date: 30 May 1997
• Docket Number: No. 96-1782,96-1782
• Citation: 115 F.3d 458
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lavoyce R. BILLINGSLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 458

115 F.3d 458

UNITED STATES of America, Plaintiff-Appellee, v. Lavoyce R. BILLINGSLEY, Defendant-Appellant.

No. 96-1782.

United States Court of Appeals Seventh Circuit.

Argued Dec. 9, 1996.

Decided May 30, 1997.

Barry Rand Elden, Chief of Appeals, Gregory T. Mitchell (argued), Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for Plaintiff-Appellee.

Paul A. Wagner (argued), Chicago, IL, for Defendant-Appellant.

Before COFFEY, MANION and EVANS, Circuit Judges.

COFFEY, Circuit Judge.

Lavoyce Billingsley (Billingsley) was convicted by a jury on one count of interstate transportation of a stolen motor vehicle. See 18 U.S.C. § 2312. He was sentenced to 41 months' incarceration. We affirm.

I. Background

In early October 1994, Billingsley made plans at his home in South Holland, Illinois to visit his girlfriend at Iowa State University, in Ames, Iowa. Billingsley invited his friend, DeJuan Ward (Ward), who had travelled to Ames with Billingsley on a prior occasion, to accompany him. Neither Billingsley nor Ward owned a car, but Billingsley told Ward that his cousin would rent a car for them to use during the trip.

On October 14, Billingsley told Ward that his cousin had decided not to rent the car for them, and the trip to Iowa was canceled. Instead, Ward visited Billingsley at his home in South Holland on Friday the 14th. That evening, the two left Billingsley's house and took a walk around the neighborhood and to a local park. They were joined by another friend, Shawn Brown (Brown), and walked down a residential street in South Holland. At approximately 9:00 p.m., as the three were walking down the residential street, a red 1993 Pontiac Bonneville pulled immediately in front of them and drove into a driveway. The three were forced to stop momentarily, and they then proceeded about three houses past the driveway. As they were walking past the driveway, Billingsley remarked to Ward and Brown that the car was "nice," and further stated that he "wanted a car like that." After Billingsley made these statements, the three returned to the driveway the car had entered, and observed that the vehicle was now parked in a garage detached from the house and about twenty-five feet from the rear door of the house. When they returned to the driveway, Billingsley and Brown stationed themselves off to the side of the garage in the dark, and Billingsley instructed Ward to knock on the rear door of the house and attempt to get the owner to come outside. Ward reported that Billingsley repeatedly told him: "It will be easy. Just knock on the door." After Ward refused a number of times to knock on the door, and finally told the other two to "come on," making clear that he wanted to leave, the three left the area.

The next night, Billingsley and Brown returned without Ward to the house where they had seen the red Pontiac. The two waited in the dark near the garage. At approximately 9:00 p.m., the Bonneville reentered the driveway and the owner parked in the garage. Arthur Patten (Patten), the owner of the car and an 82-year old man, exited his car and began walking toward the rear door of his house twenty-five feet away. As Patten was about to enter his back door and began to step up onto the back stoop, the defendant and Brown rushed from the darkness of the garage and intercepted him. Billingsley displayed a small handgun ¹ and removed Patten's wallet as well as his car keys. Billingsley opened the back door of Patten's house and ordered him to go inside, and instructed the elderly man to turn off the house alarm. Billingsley then ordered the elderly gentleman Patten to open the garage door from an electronic opener located inside the house near the back door as he pushed Patten out the back door toward the garage. The defendant also directed Patten to produce the title to the car, but the elderly man replied that he did not know where the title was. At that point, Billingsley again pointed the handgun at Patten, and again demanded the title. In response, Patten suggested that the title might be in the glove compartment of the Bonneville. At this time Billingsley and Brown both entered the car and searched for the title. While they were searching, Patten escaped to his neighbor's house, and heard the car being driven away. Patten's neighbor called the police.

The following day (October 16), Billingsley called the home of another of his friends, Gerald Simms (Simms), and Ward was present in the house. Billingsley spoke with Ward over the phone and asked if he was still interested in going to Iowa. Ward responded that he was, and Billingsley made arrangements to pick him up. Billingsley arrived at Simms' house, where, after visiting briefly with Simms, the defendant and Ward left to walk to the car. Upon arriving at the parked car, Ward observed what he believed to be the vehicle he and Billingsley had noticed on the evening of October 14. Ward remarked to Billingsley, "[y]ou got it," by which he meant Billingsley "got" the red Pontiac they had seen on October 14. Billingsley nodded response in the affirmative with a head gesture. Ward and Billingsley entered the vehicle, picked up their clothes, and thereafter left for Ames. Billingsley drove during the six-hour trip and told Ward that he planned to leave the Pontiac in Ames with a friend and borrow a different car for the return trip.

At approximately 12:30 a.m., when the defendant and Ward arrived in Ames, a local police officer, Kevin Holmes, observed Billingsley speeding, and followed the Bonneville as it pulled up to a gas pump outside of a convenience store. Officer Holmes walked up to the defendant, who was in the process of pumping gas, and requested a driver's license and registration. Billingsley produced a receipt from a ticket he received in Illinois, as well as the vehicle's title. Officer Holmes noticed that the name on the receipt from the ticket did not correspond with the owner's name on the title, and asked Billingsley who owned the vehicle. The defendant responded that his grandfather had allowed him to use the car. As the officer continued to question Billingsley, additional officers, who had received reports that the vehicle Officer Holmes had pulled over was reported stolen, arrived at the scene. The officers exited their squad car with their weapons drawn, and ordered Billingsley and Ward to the ground. At this time the suspects fled on foot. Billingsley was apprehended almost immediately, handcuffed, subjected to a pat-down search, and placed in Officer Holmes' squad car. Ward was caught a few minutes thereafter and ordered into a different police vehicle.

Upon returning to his squad car, Officer Holmes observed that Billingsley was handcuffed with his hands in front of him, though Ames police officers generally handcuff suspects with their hands behind their backs. Officer Holmes further observed that there were perspiration marks on the seat, which led him to believe that the defendant had slid from one side of the seat to the other. Billingsley was removed from this squad car, and transferred to another police vehicle. Officer Holmes then performed a search of the seating area of his car, which revealed the presence of a small loaded handgun, and a separate magazine containing three bullets, hidden under the cushions of the front passenger seat. Officer Holmes testified that, prior to commencing his shift that night, he performed a thorough search of his squad car, and there were no weapons in the vehicle at that time. He also testified that no one else had entered the car other than Billingsley.

Billingsley was questioned as to how he obtained possession of the reported stolen red Pontiac. He changed his initial story that he had obtained it from a grandparent, and now stated that he had traded a car he owned earlier in the day in Chicago with a person named "Carlos." He was unable to identify Carlos nor was he able to provide either a last name or address for Carlos. When questioned about his possession of a gun and bullets at the time of his arrest, Billingsley denied either owning or possessing a gun or bullets. When he was confronted with the weapon found in the back of Officer Holmes' squad car, the defendant laughed at the officers and said "[p]rove it."

Billingsley was brought before a grand jury and charged with transporting a motor vehicle across state lines knowing it to be stolen, in violation of 18 U.S.C. § 2312. ² Ward, also in custody, agreed to testify against the defendant. After a three-day jury trial, Billingsley was found guilty of transporting the stolen Pontiac across state lines. At the initial sentencing hearing, the government argued that, since Billingsley had obtained the Pontiac from Mr. Patten through the use of force, the defendant should be sentenced pursuant to the Sentencing Guideline applicable to robbery, see U.S.S.G. § 2B3.1, which yields a base offense level of twenty. Billingsley argued that, since the crime of interstate transportation of a stolen car does not require proof of the use of force to obtain the car, he should be sentenced according to the guideline provision applicable to transporting stolen property, see U.S.S.G. § 2B1.1. This provision yields a base offense level of four. The district judge ordered briefing on the issue of the applicable guideline and offense level, and scheduled a second sentencing hearing.

At the second sentencing hearing, the district judge agreed with the defendant Billingsley's argument that he should be sentenced under § 2B1.1 instead of § 2B3.1, and proceeded to add a number of enhancements to Billingsley's sentence. He enhanced Billingsley's offense level two pointsnafter finding that, based on Mr. Patten's advanced age, he was a "vulnerable victim" within the meaning of § 3A1.1. Next, he enhanced the defendant's offense level two points for being an "organizer or leader" of the criminal activity under § 3B1.1(c). ³...