U.S. v. Price, 03-3088.

• Decision Date: 03 June 2005
• Docket Number: No. 03-3088.,03-3088.
• Citation: 409 F.3d 436
• Parties: UNITED STATES of America, Appellee v. Clifton M. PRICE, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

409 F.3d 436

UNITED STATES of America, Appellee v. Clifton M. PRICE, Appellant

No. 03-3088.

United States Court of Appeals, District of Columbia Circuit.

Argued May 9, 2005.

Decided June 3, 2005.

COPYRIGHT MATERIAL OMITTED

Appeal from the United States District Court for the District of Columbia. (No. 02cr00429-01).

Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Neil H. Jaffee and Tony W. Miles, Assistant Federal Public Defenders, entered appearances.

John P. Gidez, Assistant U.S. Attorney, argued the cause for appellee. With him on the briefs were Kenneth L. Wainstein, U.S. Attorney, and John R. Fisher and Elizabeth Trosman, Assistant U.S. Attorneys.

Before: EDWARDS, HENDERSON, and TATEL, Circuit Judges.

HARRY T. EDWARDS, Circuit Judge.

Defendant-appellant Clifton Price entered a conditional guilty plea to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (2000). On appeal, Price challenges the District Court's denial of his motion to suppress evidence, including the gun found on his person, which he argues was obtained in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. In addition, Price raises several challenges to his sentence.

We affirm the District Court's denial of Price's suppression motion. A police officer recovered the evidence in question as a result of a frisk, which was justified by the officer's reasonable fear that Price was armed and dangerous. Because the frisk did not violate the Fourth Amendment, the District Court did not err in denying Price's suppression motion.

Applying the reasonableness standard set forth by the Supreme Court in United States v. Booker, ___ U.S. ___, ___-___, 125 S.Ct. 738, 765-67, 160 L.Ed.2d 621 (2005), we conclude that the sentence imposed by the District Court cannot withstand review. We therefore vacate and remand the District Court's sentencing decision. On remand, the District Court will be required to resentence Price pursuant to the commands of Booker.

I. BACKGROUND

The following facts are drawn from testimony given at Price's suppression hearing by Kyle Fulmer, a Special Agent with the Safe Streets Task Force unit of the Washington Field Office of the Federal Bureau of Investigation ("FBI"). Price has not contested these facts.

On September 20, 2002, Fulmer was contacted by an "extremely reliable informant" who told him that a man already known to Fulmer as "Julio" was driving a silver Cadillac at the 3200 block of 8th Street in Southeast Washington, D.C. See Tr. of Mots. Hr'g of 1/28/03 at 6, 10, reprinted in Appendix of Appellant ("App."). The informant relayed the tag number of the vehicle and he also told Fulmer that "Julio" possessed at least a quarter pound of marijuana in the car. See id. at 6-8. Fulmer told the informant to keep an eye on the vehicle and to contact him if the vehicle began to move. Id. at 8.

Fulmer then contacted Special Agent Kevin Ashby, indicating that he needed some assistance in possibly stopping a vehicle. Id. at 9. Fulmer began to drive toward 8th Street to locate the silver Cadillac. He contacted the informant again, who told him that "Julio" had begun driving the vehicle. See id. Fulmer located the silver Cadillac at the intersection of Alabama Avenue and Wheeler Road. Id. He was able to corroborate the vehicle's tag and he recognized the driver as the man he knew as "Julio." See id. at 10-11. Fulmer also soon observed that there was a passenger in the vehicle, later identified as the defendant Clifton Price. See id. at 11, 35.

Fulmer and Ashby, driving separate cars, began following the Cadillac. After some time, Ashby joined Fulmer in Fulmer's vehicle. See id. at 11-13. When the Cadillac pulled into an alley parallel to Wheeler Road, Fulmer activated his emergency lights and siren. He and Ashby, wearing FBI vests and displaying their badges, exited Fulmer's vehicle and began yelling verbal commands, identifying themselves as police officers and instructing the occupants of the Cadillac to raise their hands and place them outside the car windows. See id. at 13-15, 40-41. Price does not contest that the stop of the vehicle was lawful.

Fulmer and Ashby next began to approach the Cadillac. Fulmer testified:

As I was approaching the passenger side, issuing the verbal commands, the passenger, who we later identified as the defendant, Mr. Price, was sticking his hands outside the window, and at that time as I was getting closer, he began to reach down to his waistband area with his left hand....

Id. at 16. Fulmer believed that Price might be reaching for a weapon, causing Fulmer to fear for his safety. See id. at 18, 20.

As soon as Price moved his hands toward his waistband, Fulmer reiterated his verbal commands for Price to put his hands outside the window. Id. at 19. Price complied and Fulmer opened the car door and removed Price from the vehicle, placing him on the ground. Fulmer then rolled Price onto his side and frisked Price's left waistband and pocket area, where he found a small handgun. See id. at 19-21.

* * * * * *

On October 17, 2002, a federal grand jury indicted Price for violating 18 U.S.C. § 922(g)(1), which forbids persons who have been convicted of a crime punishable by a term of imprisonment exceeding one year "to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." On November 26, 2002, at the first status conference regarding Price's case, defense counsel informed the District Court that Price wished to file a motion to suppress evidence obtained in connection with the frisk. Price's counsel made it clear, however, that his client would likely plead guilty if the suppression motion was denied. See Tr. of Status Conference of 11/26/02 at 3, reprinted in App. On January 28, 2003, the District Court held a hearing on Price's suppression motion. Following the hearing, the trial judge denied Price's motion in an oral ruling. Price's counsel then informed the District Court that it was not necessary to set a trial date, because Price was likely to plead guilty. Tr. of 1/28/03 at 81-82.

On March 25, 2003, at another status hearing, the prosecutor informed the District Court that the parties were working out the final language of a conditional guilty plea, in which Price would plead guilty to the offense but reserve his right to appeal the District Court's denial of his suppression motion. See Tr. of Status Hr'g of 3/25/03 at 2, reprinted in App. One week later, Price indicated an interest in retaining a new attorney. See Tr. of Status Conference of 4/1/02 at 2-5, reprinted in App. Price subsequently agreed to proceed with his appointed counsel and he pleaded guilty on April 22, 2003, reserving the right to appeal the denial of his suppression motion. See Tr. of Status Call of 4/22/03 at 9-10, reprinted in App. It is undisputed that, as a result of Price's indication that he was likely to plead guilty and his ultimate guilty plea, the Government was spared the burdens of preparing for trial. See Recording of Oral Argument at 17:45-18:02.

On May 28, 2003, a United States probation officer prepared Price's Presentence Investigation Report ("PSR"). Using the 2001 version of the Sentencing Guidelines, the probation officer found that Price's total offense level was 18 and that his criminal history score was 8 and, thus, his criminal history category was IV. This offense level and criminal history category resulted in a sentencing range of 41-51 months. These calculations included a two-point reduction in Price's offense level under § 3E1.1(a) of the Guidelines, because Price accepted responsibility for his conduct. See U.S.S.G. § 3E1.1(a) (2001). However, the probation officer recommended denying an additional one-level reduction under § 3E1.1(b)(2). The additional reduction is available to defendants who qualify for the two-level reduction under § 3E1.1(a), if the defendant's offense level prior to this two-level reduction is 16 or greater and the defendant has given timely notice of an intent to plead guilty so that the Government is spared the burden of preparing for trial and the district court may allocate its resources efficiently. Id. § 3E1.1(b)(2). In determining Price's criminal history score, the probation officer included two Maryland convictions that Price allegedly received in 1999 and 2000.

Price's counsel filed written objections to the PSR, arguing that Price was entitled to an additional one-level reduction in his offense level under § 3E1.1(b)(2) and that the PSR's use of the two alleged prior Maryland convictions to increase Price's criminal history score was erroneous. According to Price's counsel, under the proper calculations of Price's offense level and criminal history score, the applicable sentencing range was 30-37 months. See Letter from Tony W. Miles, Assistant Federal Public Defender, to United States Probation Officer of 6/5/03, reprinted in App. at 41, 41-42. The probation officer rejected both of these objections in a revised PSR. The only sources cited by the probation officer to support the existence of either of the alleged Maryland convictions were unspecified "documents" and "documentation" in the Maryland court system. The probation officer did not give any indication of the nature or reliability of these documents.

At a July 17, 2003 sentencing hearing before the District Court, Price's counsel again raised objections on the issues of the third-level reduction for acceptance of responsibility and the asserted improper use of two Maryland convictions in calculating Price's criminal history category. The District Court granted Price the two-level reduction for acceptance of responsibility under § 3E1.1(a)...