U.S. v. Williams, No. 04-3175.

• Decision Date: 15 April 2005
• Docket Number: No. 04-3175.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry Lee WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

403 F.3d 1188

UNITED STATES of America, Plaintiff-Appellee, v. Jerry Lee WILLIAMS, Defendant-Appellant.

No. 04-3175.

United States Court of Appeals, Tenth Circuit.

April 15, 2005.

COPYRIGHT MATERIAL OMITTED

Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the briefs), Wichita, KS, for Defendant-Appellant.

David C. Smith, Assistant United States Attorney (Eric F. Melgren, United States Attorney and David M. Lind, Assistant United States Attorney with him on the brief), Wichita, KS, for Plaintiff-Appellee.

Before BRISCOE, ANDERSON, and MURPHY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Defendant/Appellant Jerry Lee Williams was found guilty following a jury trial of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and sentenced as an armed career criminal to a 210-month term of imprisonment. For the following reasons, we AFFIRM in part and REVERSE in part and REMAND for resentencing.

BACKGROUND

On July 19, 2003, at approximately 2:00 a.m., three Wichita police officers responded to a 911 call from a Denny's restaurant in Wichita, Kansas, indicating a male customer had a gun. When the officers arrived at the restaurant, they talked to security guard Donald Lacy, who had made the 911 call. Lacy indicated that two customers who had been sitting at the back of the restaurant had told him that a black male at a table in the back of the restaurant was waving a gun around underneath the table. Lacy testified that he recognized the two customers because they were regulars, although he did not know their names. The first patron to report the gun-waving incident indicated that the man with the gun was sitting in a group of six individuals in the corner of the restaurant. After she relayed this information to Lacy, her table companion came up to Lacy and told him the same thing. Both customers did not want to be identified or get involved, and they left the restaurant before the police arrived.

When the police officers arrived at the restaurant, Lacy told them which table the two patrons had identified. The officers proceeded immediately to the table where the six individuals, including defendant Williams, were sitting. Williams was intoxicated to some degree.¹ The officers told the individuals at the table that a complaint had been made concerning a person waving a gun. The officers first patted down Terry Douglas, who was sitting in the chair nearest the officers, and found nothing suspicious on him. They next patted down Montae Alford, again finding nothing. As the officers patted down Douglas and Alford, Williams and Ivan Miller sat on a booth-style seat with their backs to the restaurant wall. There was a discrepancy in the testimony about exactly where Williams was seated. While everyone agreed that Miller was seated on the outside of the table near the walkway, the officers testified that Williams was seated a little distance away from him, in the corner of the booth, with a female companion in between them. Douglas and McClary, the waitress, testified that Williams was sitting right next to Miller.

The officers repeatedly told Williams and Miller to place and keep their hands on the table so their hands were visible. Neither individual complied with the officers' requests, and both fidgeted on the seat.² The officers next patted down Miller, on whom they found no weapon. When they turned to search Williams, he hesitated getting up from his seat. Eventually, he made it to the edge of the table where officers assisted him up. As soon as Williams stood up, he immediately shoved his hands in his pockets. The officers repeatedly told Williams to take his hands out of his pockets but he refused. As one of the officers grabbed Williams' right arm, a gun in Williams' right pocket discharged, hitting him in the thigh. The gun then fell to the floor. As another officer attempted to retrieve the gun, Alford dove for the gun and reached it first. When Alford pointed the gun at the officer, the officer kicked the gun out of Alford's hand and took possession of the weapon, a Raven Arms .25 caliber semi-automatic pistol. Miller ran out of the restaurant after the gun discharged.

The officers took Williams and Alford into custody. After Williams was treated and released from a hospital for his gunshot wound, he talked to officers at the police station. Detective Jose Salcida testified at trial that, although he could smell a "faint odor of alcohol" on Williams' breath, Williams "was answering logically to my questions ... so he didn't appear so intoxicated that he didn't understand why he was there." R. Vol. III at 256. Williams told Salcida that Miller had been trying to push the gun on him and that he finally just took the gun from him, although he claimed he never put it in his pocket.³

Williams was charged in a one-count indictment with "knowingly possess[ing], in and affecting commerce, a firearm" after previously being convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). R. Vol. I, tab 11. He filed a motion to suppress the gun seized from him as well as his statements to the police, which, following a hearing, was denied. He was found guilty by the jury and sentenced to 210 months' imprisonment. Further details about specific events at trial will be discussed in connection with the relevant issues.

While this case was pending on appeal, the Supreme Court issued its opinion in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which held that in a state prosecution the Sixth Amendment requires that the maximum permissible sentence in a particular case must be determined solely by reference to "facts reflected in the jury verdict or admitted by the defendant." Id. at 2537. In January of this year, the Court held that Blakely applies to sentences imposed under the federal Sentencing Guidelines as well. United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 755, 160 L.Ed.2d 621 (2005). The Court in Booker further held that the Guidelines are not mandatory, but are merely advisory. Id. at 756-57.

Williams appeals, arguing: (1) the district court erred in denying his motion to suppress the firearm because it was based upon an allegedly anonymous tip; (2) there was insufficient evidence to support his conviction for knowingly possessing a firearm which was "in or affecting commerce"; (3) the district court erred in refusing to give Williams' requested "theory of defense" instruction on "fleeting possession" of the firearm; (4) the district court erred when, in response to a jury inquiry, it gave the jury a supplemental instruction on the issue of Williams' knowing possession of the firearm; (5) mere movement of the firearm from one state to another fails to satisfy the § 922(g) requirement that the firearm be possessed "in or affecting commerce"; (6) the district court's enhancement of Williams' sentence under the Armed Career Criminal Act violates his rights under Blakely, Booker, and the Double Jeopardy Clause; and (7) the district court erred in failing to depart downward and in concluding that it was bound to sentence Williams within the Guideline range.

DISCUSSION

I. Motion to Suppress

Williams filed a motion to suppress the gun seized from him and his statements to police on the ground that the police searched him and seized the gun based solely upon an anonymous tip.⁴ "When reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the government, accept the district court's findings of fact unless clearly erroneous, and review de novo the ultimate determination of reasonableness under the Fourth Amendment." United States v. Katoa, 379 F.3d 1203, 1205 (10th Cir.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1390, ___ L.Ed.2d ___ (2005).

Williams argues that the "tip" provided by the two restaurant patrons to Lacy, who in turn told the police, informing him that they had seen a black male waving a gun underneath a restaurant table, was an anonymous tip similar to the one held unreliable in Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). In J.L., the Supreme Court held that an anonymous telephone call indicating that "a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun," id. at 268, 120 S.Ct. 1375, was, standing alone, unreliable and therefore insufficient to justify a police officer's stop and frisk of the defendant. The Court noted that "the officers' suspicion that J.L. was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller." Id. at 270, 120 S.Ct. 1375.

Even were we to assume that the tip was truly "anonymous" like the one in J.L.,⁵ this case is distinguishable from J.L. As indicated above, the police in J.L. relied exclusively on an anonymous tip to search the defendant. Here, the police officers seized Williams and searched him only after his own conduct gave them reasonable suspicion to believe he was possibly armed and dangerous. When the officers first approached the table where Williams was sitting, they simply informed Williams and his associates that there had been a report of a firearm and asked to search each individual for weapons. The officers did eventually seize Williams, but only after they observed him behaving suspiciously, fidgeting in his seat and keeping his hands in his pockets despite repeated requests to place them on the table, thereby giving rise to a reasonable suspicion that he had a weapon in his pocket. The district court therefore properly denied Williams' motion to suppress the firearm.

II. Sufficiency of Evidence Supporting Knowing Possession of Firearm "In or Affecting Commerce"

Williams argues that there was insufficient evidence demonstrating that he knowingly possessed the firearm, nor was there sufficient evidence that the gun was possessed ...