United States v. Hockenberry, Nos. 12–3720

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtSARGUS
Citation730 F.3d 645
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Troy Dennis HOCKENBERRY (12–3720) and Billy Harris Gray, Jr. (12–3757), Defendants–Appellants.
Decision Date19 September 2013
Docket NumberNos. 12–3720,12–3757.

730 F.3d 645

UNITED STATES of America, Plaintiff–Appellee,
v.
Troy Dennis HOCKENBERRY (12–3720) and Billy Harris Gray, Jr. (12–3757), Defendants–Appellants.

Nos. 12–3720, 12–3757.

United States Court of Appeals,
Sixth Circuit.

Argued: June 20, 2013.
Decided and Filed: Sept. 19, 2013.


[730 F.3d 653]


ARGUED:Gretchen A. Holderman, Lillie & Holderman, Cleveland, Ohio, for Appellant in 12–3757.
Daniel R. Ranke, United States Attorney's Office, Cleveland, Ohio, for Appellee in 12–3757. ON BRIEF:Vicki Lynn Ward, Cleveland, Ohio, for Appellant in 12–3720. Gretchen A. Holderman, Lillie & Holderman, Cleveland, Ohio, for Appellant in 12–3757. Daniel R. Ranke, United States Attorney's Office, Cleveland, Ohio, for Appellee in 12–3720 and 12–3757.

Before: MOORE and GRIFFIN, Circuit Judges; SARGUS, District Judge *.


OPINION

SARGUS, District Judge.

Defendants–Appellants Troy Hockenberry (“Hockenberry”) and Billy Gray, Jr. (“Gray”) (collectively “Defendants”) appeal their judgments and sentences in the district court for being felons in possession of firearms in violation of 18 U.S.C. § 922(g)(1). Following the district court's denial of their motions to suppress evidence, Hockenberry and Gray—who were co-Defendants before the district court—pleaded guilty to beings felons in possession of firearms. After finding that both Defendants were armed career criminals pursuant to 18 U.S.C. § 924(e), the district court sentenced Hockenberry to 204 months imprisonment and Gray to 216 months imprisonment. Defendants maintain that the district court erred in denying their motions to suppress. Additionally, each Defendant challenges other aspects of the district court's rulings, including their classifications as armed career criminals. For the following reasons, with regard to Hockenberry, we AFFIRM in part, but REVERSE the district court's sentence of Hockenberry and REMAND for resentencing. We AFFIRM the district court's judgment and sentence as to Gray.

I.
A. Traffic Stop and Subsequent Search 1

On September 1, 2011, at approximately 2:20 p.m., the Youngstown Police Department received a telephone call reporting that a man driving a black Jeep Cherokee was attempting to sell firearms at a local auto parts store. The caller identified himself as an employee of the store. In addition to describing the color and model of the vehicle, the caller provided the vehicle's Pennsylvania license plate number. Youngstown Police Officer George Anderson and ATF Agent Nicholas J. Vouvalis began patrolling the area at approximately 4:00 p.m. Both Officer Anderson and Agent Vouvalis were part of the V–Grip Task Force, a law enforcement unit with the purpose of getting firearms off the streets.

Around 6:00 p.m., Officer Anderson and Agent Vouvalis encountered a Jeep driving through a parking lot with a license plate number matching the earlier report. Both

[730 F.3d 654]

Officer Anderson and Agent Vouvalis testified that, shortly thereafter, they witnessed the driver turn without signaling. The officers initiated a traffic stop. The officers conducted a felony traffic stop, ordering the vehicle's occupants to exit the vehicle. After the vehicle pulled over, both officers drew their weapons. The officers secured the vehicle occupants and patted them down for weapons.

The vehicle contained Gray, who was driving, as well as Hockenberry and Patricia Hunt. The vehicle was registered to Troy and Kelly Hockenberry. After ordering the occupants from the vehicle, Officer Anderson and Agent Vouvalis discovered that neither Gray nor Hockenberry had valid driver's licenses. The officers also eventually learned that there were active arrest warrants for Ms. Hunt, the third individual in the vehicle. Once they discovered that neither Gray nor Hockenberry had an active license, Officer Anderson and Agent Vouvalis decided to tow the vehicle. The officers did not give Hockenberry an opportunity to call someone to retrieve the vehicle. Prior to any search of the vehicle, the officers asked Hockenberry whether there were guns in the vehicle. Hockenberry did not respond to the question.

Officer Anderson and Agent Vouvalis testified that they performed an inventory search prior to towing the vehicle pursuant to the policy of the Youngstown Police Department. The Youngstown Police Department policy provided as follows:

5.29 TOWED VEHICLES—ADMINISTRATIVE INVENTORY

The purpose of the following procedure is to:

A. Protect officers from danger.

B. Protect property in police custody.

C. Insure against frivolous claims of lost, stolen, and/or damaged property.

In all cases, when any officer of the department lawfully impounds a motor vehicle, a complete, detailed inventory of the vehicle shall be conducted. This includes opening all closed containers and listing the contents thereof. Officers shall inventory all areas of the vehicle accessible to them, including all compartment of the vehicle that can be opened without being damaged.

All packages, bags, suitcases, and/or any other types of containers, including containers found inside other containers shall be opened and inventoried. The only exception to this is containers that may become damaged if forced open. Any article, such as a briefcase, found to be locked is to be opened and inventoried if the officer can readily obtain a key or combination of the lock.

All items of value found during the inventory shall be listed in the appropriate sections on the Towed Car Report (PD–3) and continued on a Supplemental Report Form (PD–4), if necessary.

(Gov't Resp. Mot. Supp., Dist. Ct. Docket No. 33, 3.) At the February 2012 suppression hearing, Officer Anderson summarized the policy as requiring officers to remove everything of value and everything that may be related to a crime from the vehicle.


Upon opening the back tailgate of the vehicle, the officers immediately viewed a handgun case as well as the barrels of long guns. In addition to several guns, the vehicle contained an assortment of other items including tools, clothing, duffel bags, and drug paraphernalia. Officer Anderson testified that within his police report he listed the “items of value or obvious contraband” that he discovered during the search. (Supp. Tr., Dist. Ct. Docket No. 78, 14–15.) Officer Anderson admitted there were some items that he left in the vehicle and did not inventory. According

[730 F.3d 655]

to Officer Anderson, he did not think that some of the items in the car were valuable items.

Officer Anderson ultimately cited Gray for failure to signal and driving under suspension.

On September 8, 2011, one week after the above incident, Officer Anderson sought a warrant to conduct a second search of the vehicle. Officer Anderson stated that he had received information from a local store indicating that there might be stolen property within the vehicle. In requesting the search warrant, Officer Anderson submitted a sworn affidavit to the Youngstown Municipal Court. Officer Anderson averred that “during the inventory search I only seized those items which were obviously contraband at the time.” ( Id. at 47.) On September 9, 2011, after receiving a search warrant, Officer Anderson searched the vehicle. The second search revealed that several items—including a crowbar and bolt cutters—were left in the car after the initial September 1, 2011 search.

B. Suppression Hearing and Guilty Pleas

On October 20, 2011, a grand jury indicted Gray and Hockenberry for possession of firearms as felons in violation of 18 U.S.C. § 922(g)(1). The grand jury also indicted Defendants for unlawfully transporting stolen goods in interstate commerce in violation of 18 U.S.C. § 2314.

Both Defendants moved to suppress evidence that the Government obtained through the September 1, 2011 vehicle search. The district court held a suppression hearing on February 22, 2012. Officer Anderson and Agent Vouvalis testified at the hearing. At the end of the hearing, the district court orally denied the motions to suppress. The court first found that the officers had probable cause to stop the vehicle, crediting their testimony that they witnessed a traffic violation. The court then reasoned:

And the question really is this: Was this an unconstitutional search; not whether the City of Youngstown's policy was violated. That's two separate things. We can't mix the two. There is probable cause, which this Court finds the stop was proper.

Once that stop was proper, based upon the information that the officers had at that time, they can approach with extreme caution, can draw their guns, can order people out because, number one, Officer Anderson spoke specifically with [the caller]; verified the information. The plate was exact. The color was exact. It was a Jeep.

All that information matched. Sure, it is V Grip's job to get guns off the street, and it doesn't matter whether that was their objective. The question really is, first, whether there was probable cause, and based upon that and based upon the information that they had and verified, that is, Gray was under suspension, Hockenberry didn't have a license, and Hunt had warrants, there is no obligation whatsoever to release that vehicle to any of them or have them call somebody to pick it up.

There is no legal obligation to do that. The vehicle can be towed. Once that decision is made, it can be inventoried; not whether the policy was complied with to the T. To me, it doesn't rise to [ ] an unconstitutional violation.

Maybe Officer Anderson is subject to [ ] discipline by his department. That's their call. As far as a constitutional violation, I don't see it. Probable cause to stop, proper decision to tow, once that's made, [an] inventory search can be done and was done. I don't see any unconstitutional act here.

[730 F.3d 656]

The policy were it violated doesn't mean it is [a] constitutional violation. Again, it could subject him to internal discipline, but the two are totally separate inquiries. It is not to say that [a] violation of policy could...

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139 practice notes
  • People v. Ferris, No. 4–13–0657.
    • United States
    • United States Appellate Court of Illinois
    • April 21, 2014
    ...93 L.Ed.2d 739 (1987); People v. Clark, 394 Ill.App.3d 344, 349, 333 Ill.Dec. 315, 914 N.E.2d 734 (2009); United States v. Hockenberry, 730 F.3d 645, 658 (6th Cir.2013) (“ ‘[d]iscretion as to impoundment is permissible so long as that discretion is exercised according to standard criteria a......
  • United States v. Armes, No. 19-5539
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 26, 2020
    ...(1) Wynn ’s forerunner, United States v. Bartee , 529 F.3d 357 (6th Cir. 2008) ; (2) Wynn itself; and (3) United States v. Hockenberry , 730 F.3d 645 (6th Cir. 2013). Once we understand these three cases, the rest fall easily into place.1. Start with Bartee . There, the defendant had a conv......
  • United States v. Prater, No. 13–5039.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 2, 2014
    ...statute divisible under Descamps because it “lists several, alternative ways to violate the statute”); United States v. Hockenberry, 730 F.3d 645, 669 (6th Cir.2013) (Pennsylvania burglary statute divisible under Descamps because it “lists alternative elements in the statutory text”). A per......
  • Carcamo v. Lynch, No. 15-1005
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 6, 2016
    ...denied, 135 S. Ct. 1447 (2015); United States v. Herrera-Alvarez, 753 F.3d 132, 139-40 (5th Cir. 2014); United States v. Hockenberry, 730 F.3d 645, 669 (6th Cir. 2013). But see United States v. Simmons, 782 F.3d 510, 517 (9th Cir. 2015) (declining to look to an outside statute defining a te......
  • Request a trial to view additional results
139 cases
  • People v. Ferris, No. 4–13–0657.
    • United States
    • United States Appellate Court of Illinois
    • April 21, 2014
    ...93 L.Ed.2d 739 (1987); People v. Clark, 394 Ill.App.3d 344, 349, 333 Ill.Dec. 315, 914 N.E.2d 734 (2009); United States v. Hockenberry, 730 F.3d 645, 658 (6th Cir.2013) (“ ‘[d]iscretion as to impoundment is permissible so long as that discretion is exercised according to standard criteria a......
  • United States v. Armes, No. 19-5539
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 26, 2020
    ...(1) Wynn ’s forerunner, United States v. Bartee , 529 F.3d 357 (6th Cir. 2008) ; (2) Wynn itself; and (3) United States v. Hockenberry , 730 F.3d 645 (6th Cir. 2013). Once we understand these three cases, the rest fall easily into place.1. Start with Bartee . There, the defendant had a conv......
  • United States v. Prater, No. 13–5039.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 2, 2014
    ...statute divisible under Descamps because it “lists several, alternative ways to violate the statute”); United States v. Hockenberry, 730 F.3d 645, 669 (6th Cir.2013) (Pennsylvania burglary statute divisible under Descamps because it “lists alternative elements in the statutory text”). A per......
  • Carcamo v. Lynch, No. 15-1005
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 6, 2016
    ...denied, 135 S. Ct. 1447 (2015); United States v. Herrera-Alvarez, 753 F.3d 132, 139-40 (5th Cir. 2014); United States v. Hockenberry, 730 F.3d 645, 669 (6th Cir. 2013). But see United States v. Simmons, 782 F.3d 510, 517 (9th Cir. 2015) (declining to look to an outside statute defining a te......
  • Request a trial to view additional results

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