US v. Brown, PLAINTIFF-APPELLE

• Citation: 273 F.3d 747
• Decision Date: 07 December 2001
• Docket Number: PLAINTIFF-APPELLE,CROSS-APPELLANT,Nos. 00-3521,CROSS-APPELLEE,DEFENDANT-APPELLAN,s. 00-3521
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA,, v. CARNELL BROWN,& 00-3847
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 747

273 F.3d 747 (7th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, CROSS-APPELLANT, v. CARNELL BROWN, DEFENDANT-APPELLANT, CROSS-APPELLEE.

Nos. 00-3521 & 00-3847

U.S. Court of Appeals, Seventh Circuit

Argued September 13, 2001

December 07, 2001

Appeals from the United States District Court for the Northern District of Illinois, Western Division. No. 00-CR-50005--Philip G. Reinhard, Judge.

Michael James Elston (argued), Office of U.S. Attorney, Rockford, IL, for Appellee.

Mark A. Byrd (argued), Rockford, IL, for Appellant.

Before Ripple, Rovner, and Evans, Circuit Judges.

Evans, Circuit Judge

A few years ago, we observed that defendants who receive favorable calls under the federal sentencing guidelines should think twice (actually we said more than twice) about appealing their cases when they have little likelihood of success. United States v. Bradley, 165 F.3d 594 (1999). That caution was appropriate, we thought, because a defendant's appeal often draws a cross-appeal by the government of the sentence imposed where it otherwise might not be inclined to appeal. This case comes to us in precisely the same fashion as did Bradley, where we issued our cautionary advice. Carnell Brown appeals his conviction on a charge of being a felon in possession of a firearm (18 U.S.C. sec. 922(g)), but his appeal has little merit. On the other hand, the government's cross-appeal on a sentencing issue, which may or may not have been filed if Brown hadn't appealed (we'll never know for sure), has some bite. For the reasons we are about to state, we affirm Brown's conviction but vacate his sentence and remand for further proceedings.

Brown's appeal can be quickly resolved. Here are the only facts we really have to know.

A police officer stopped a car Brown was driving around midnight on a December evening in an area of Rockford, Illinois, where considerable criminal activity--including the shooting of a police officer a few months before--takes place. Brown's car was stopped because its license plate, which was lying down in the area of the rear window, was not visible. When the car was stopped, the officer said Brown appeared to be nervous, repeatedly glanced backwards, and seemed to be moving his hands around his lap area. When Brown could not produce a driver's license (apparently it was suspended) and had no other identification, he was told to step out of the car. Brown complied with the request but made a quick move, which caused the officer to decide to pat him down. The pat-down revealed a loaded .38 caliber Smith & Wesson revolver to be lurking in the right front pocket of the jacket Brown was wearing.

A nighttime traffic stop, especially in an area where crime is not a stranger, is more fraught with potential danger to an officer than would be a stop during the light of day. And a stop by a lone officer at night is even more dangerous. Add to this Brown's movements in the car, his failure to produce a license, and his quick movement, and we have, from the officer's perspective, more than what is necessary to conclude that a limited pat-down for weapons was a permissible and prudent course for the officer to take to better ensure his safety. As Terry v. Ohio, 392 U.S. 1, holds, if the facts demonstrate that "a reasonably prudent man in the circumstances would be warranted in the belief that his safety . . . was in danger," a limited search for a weapon is permissible. It was permissible here. All this means that the district judge did not err, as the defendant now argues, when he denied a motion to suppress the revolver from the evidence presented at the trial which resulted in Brown's conviction.

Brown also makes a half-hearted attack on the sufficiency of the evidence against him, but once the gun was received, any attempt to claim--as Brown did to the jury--that he didn't "knowingly" possess it was feeble. The evidence was clearly sufficient.

Brown's final argument also comes up dry. When he was sentenced, his guideline range was increased by 2 levels for obstructing justice under U.S.S.G. sec.3C1.1 because the judge determined that Brown lied when he testified that he told the officer "I don't know where that gun come (came) from" as it was removed from his jacket. The arresting officer gave contrary testimony during the trial, noting that Brown said nothing and expressed no surprise when the gun was discovered. The judge's determination that Brown lied, a finding of fact reviewable only for clear error, will not be disturbed.

Which brings us to the government's cross-appeal. The federal sentencing guideline scheme calls for more severe sentences when defendants have criminal records. In addition to the general ratcheting up of a sentence based on a defendant's criminal history under the guideline grid, substantially increased penalties are called for under several laws, including the Armed Career Criminal Act, 18 U.S.C. sec. 924(e), which is involved in this case. Under that Act, a third conviction for a "violent felony" triggers a greater sentence, and the issue presented by the government's cross-appeal is whether Brown had three qualifying convictions. Brown concedes that he has two qualifying "violent felony" prior convictions,¹ but he denies that a third conviction, one recorded in 1984, qualifies as a violent felony under sec. 924(e). The district court agreed with Brown on this issue and declined to impose sentence under the Armed Career Criminal Act.

The Armed Career Criminal Act defines a "violent felony" as including any crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. sec. 924(e)(2)(B)(ii). Brown's third felony involved a violation of the Illinois pandering statute, 720 ILCS sec. 5/11-16.

Everyone pretty much knows what a panderer is--quaint language in a 70-year-old Kentucky case colorfully tells us that he is someone "who procures for another the gratification for his lusts. He is a panderer who solicits trade for a prostitute, or lewd woman." Lutes v. Commonwealth, 33 S.W.2d 620 (Court of Appeals of Kentucky, 1930). The Illinois statute under which Brown was convicted describes two kinds of panderers, one being someone who merely "arranges" a situation in which a person may practice prostitution and the other being someone who "compels" a person to become a prostitute. Although both types of panderers must act "for money" and both are guilty of Class 4 felonies in Illinois if they do so, it is obvious that the "compeller" is a more serious violator of the law than a mere "arranger." Brown was charged and convicted under the "compelling" prong of the statute.

The very able district court in this case concluded that Brown's pandering-by-compulsion conviction was not a violent felony because "the potential risk of physical injury to another is not always present in this type of offense." The judge's conclusion was reached after comparing Brown's conviction to the prior convictions at issue in United States v. Shannon, 110 F.3d 382 (7th Cir. 1997) (en banc) (holding that statutory rape of 13-year-old girl is violent felony), and United States v. Thomas, 159 F.3d 296 (7th Cir. 1998) (holding that statutory rape where age of victim did not appear on charging document was not a violent felony). Focusing on the age of the victim in the two cases, the judge held that Brown's conviction "falls closer to" the conviction in Thomas.

We...