US v. Hishaw

• Decision Date: 20 December 2000
• Docket Number: No. 99-6258,99-6258
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA Plaintiff-Appellee, v. ANTHONY DEWAYNE HISHAW Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 565

235 F.3d 565 (10th Cir. 2000)

UNITED STATES OF AMERICA Plaintiff-Appellee, v. ANTHONY DEWAYNE HISHAW Defendant-Appellant.

No. 99-6258

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

December 20, 2000

Appeal from the United States District Court for the W estern District of Oklahoma. (D.C. No. CR-98-128-A)

Beverly Quarles Watts, Watts & Watts, Oklahoma City, Oklahoma, for Defendant-Appellant.

Leslie M. Maye, Assistant United States Attorney, Western District of Oklahoma (Daniel G. Webber, Jr., United States Attorney, with her on the brief), for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, KELLY, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

A jury convicted Anthony Dewayne Hishaw of knowingly possessing a handgun after a felony conviction, a violation of 18 U.S.C. 922(g)(1), and possessing crack cocaine with the intent to distribute it, a violation of 21 U.S.C. 841(a)(1). The district court sentenced him to concurrent terms of imprisonment of 120 and 360 months, followed by three and five-year terms of supervised release.

Mr. Hishaw now advances the following arguments: (1) that the district court erred in denying his motion to suppress evidence discovered by the police during a June 27, 1998, traffic stop; (2) that the evidence was insufficient to support his 922(g)(1) conviction; (3) that the government failed to prove beyond a reasonable doubt the quantity of cocaine that he possessed, as required by the Supreme Court's recent decision in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000); and (4) that, by relying at sentencing on drug transactions of which he was not convicted, the district court erred in determining the quantity of drugs for he could be held responsible. For the reasons set forth below, we conclude that the district court properly denied Mr. Hishaw's motion to suppress and properly determined drug quantities at sentencing. However, we agree with Mr. Hishaw that the evidence presented to the jury was insufficient to support his 922(g)(1) conviction.

I. BACKGROUND

On the evening of June 27, 1998, Oklahoma City police officers Jarred Elliot and Michael Kelley observed an automobile straddling a lane line on a city street. After the officers stopped the car, Officer Elliot walked toward the driver's side, while Sergeant Kelley walked toward the passenger's side.

When Officer Elliot tapped on the glass, Mr. Hishaw rolled down the window and threw an object out of the car. Officer Elliot smelled burning marijuana, noticed what appeared to be a marijuana cigarette on the ground, and placed Mr. Hishaw under arrest. Sergeant Kelley ordered the passenger out of the car and observed what appeared to be another marijuana cigarette between the driver's and passenger's seats. After Sergeant Kelley placed the passenger under arrest, the two officers conducted an inventory search of the car. Sergeant Kelley discovered a Norinco nine-millimeter semiautomatic pistol under the passenger's seat. Subsequently, Mr. Hishaw was charged in state court with possession of marijuana and released on bond.

On the afternoon of July 10, 1998, Oklahoma City police officers observed Mr. Hishaw as they conducted surveillance outside an apartment for which they had obtained a search warrant. The officers had received information that the apartment was used to distribute drugs, and the affidavit in support of the warrant named Mr. Hishaw as a suspected drug dealer. Oklahoma City police officer Steve Bennett testified that, over a four-hour period on that afternoon, he noticed Mr. Hishaw entering and leaving the apartment numerous times. Outside the apartment, Officer Bennett observed Mr. Hishaw "dealing with several individuals in the parking lot." Rec. vol. II, at 17 (Tr. of Sept. 28, 1998, Hr'g on Defendant's Motion to Suppress). Officer Bennett could not tell if Mr. Hishaw was shaking hands, but he observed "a lot of contact." Id. at 18. Based on these observations, as well as the information he had received about Mr. Hishaw's prior involvement in distributing drugs, Officer Bennett suspected that Mr. Hishaw was distributing drugs.

At about 5:00 p.m., Mr. Hishaw left the apartment complex in a pickup truck driven by Kendric Watson. According to Oklahoma City police officer Mark McCaleb, the pickup truck straddled the lane line for about a block. Officer McCaleb instructed Sergeant Richard Alvarado to stop the pickup.

Sergeant Alvarado followed Officer McCaleb's instructions. He stopped the pickup truck, directed Mr. Hishaw and Mr. Watson to get out, and conducted pat-down searches of both men. Sergeant Alvarado felt two hard objects in Mr. Hishaw's crotch and asked him for permission to retrieve them. Mr. Hishaw agreed, and Sergeant Alvarado discovered what he believed to be several large rocks of crack cocaine. The government offered expert testimony at trial indicating that the suspected substance had tested positive for cocaine base. In trial testimony, Mr. Hishaw admitted that the substance was crack cocaine.

In August 1998, a federal grand jury returned an eight-count indictment against Mr. Hishaw. Three of the counts charged him with distributing cocaine base (in November and December 1995). Four other counts charged him with possessing cocaine base with the intent to distribute it. A final count charged him with the June 27, 1998, possession of a firearm after a former felony conviction.

Prior to trial, Mr. Hishaw filed a motion to suppress the crack cocaine discovered by Sergeant Alvarado on July 10, 1998. He argued that the stop of the pickup and subsequent pat-down search violated the Fourth Amendment because the officers lacked a a reasonable suspicion of either a traffic violation or the commission of a drug offense.

After conducting an evidentiary hearing, the district court denied Mr. Hishaw's motion. Although it acknowledged that Sergeant Alvarado lacked a reasonable suspicion of a violation of the traffic laws, the court concluded that the officers' information about Mr. Hishaw's distributing drugs provided sufficient justification for the stop:

We have credible testimony that there was a reasonable identification of the defendant, Anthony Hishaw, as the person in the . . . apartment [for which the officers had a search warrant]. We have a reasonable basis for [the] officers to seek a warrant that contraband and weapons are in that apartment. Under circumstances where a search is impending, the case law is pretty clear, I think, that the officers don't have to just sit outside and watch people come and go . . . . It's quite proper for the officers to make inquiry of people leaving premises, which premises are under a search warrant, shortly before the warrant's execution. Otherwise, there would be just total porosity in the warrant.

Now, that in itself justifies the stop. There are two processes in the stop: [s]afety factors, and then a brief investigation. In the nature of things, the safety factors have to be taken care of first; and given information about this particular defendant, the officers were very reasonable in a brief pat-down. And in the pat-down, there was discovery of whatever object was in the trousers of the defendant; and given the circumstances of recent departure from the premises which were the subject of the warrant; the officers were fully entitled to move on and find out what that was.

Id. at 168-69.

At trial, the government presented evidence from police officers concerning the drug distribution scheme in which Mr. Hishaw was allegedly involved. It also offered testimony from witnesses who stated that they had purchased crack cocaine from him. In response, Mr. Hishaw testified in his own defense. He admitted that he had been previously convicted of a felony. He further admitted that he had possessed crack cocaine on July 10, 1998. However, he denied that he had distributed or possessed crack cocaine in the other instances alleged in the indictment and also denied that he knew that there was an automatic pistol under the passenger's seat of the car he was driving on the evening of June, 27, 1998.

After hearing the parties' evidence, the jury was unable to reach a verdict on six of the eight counts. However, the jury found Mr. Hishaw guilty of the 18 U.S.C. 922(g)(1) violation for possessing a firearm after conviction of a felony (charged in count seven) and the 21 U.S.C. 841(a)(1) violation for possessing cocaine with the intent to distribute on July 10, 1998 (charged in count eight).

The presentence report concluded that Mr. Hishaw should be held responsible for the distribution of 1857 grams of cocaine. It relied, in part, on evidence that the government had presented at trial concerning Mr. Hishaw's possession and distribution of cocaine from 1995 through 1997. The report also relied on Mr. Hishaw's admission at trial that he had obtained crack from a previously unnamed source, see Rec. vol. VIII, at 30, and on information from a confidential informant that Mr. Hishaw and his brother had distributed crack cocaine in the early part of 1995.

Mr. Hishaw objected to the inclusion of drug quantities beyond what he had admitted possessing on July 10, 1998. At sentencing, the government presented several witnesses in support of its contention that Mr. Hishaw should be held responsible for the 1857-gram amount. The court then overruled Mr. Hishaw's objections to the drug quantity determinations.

II DISCUSSION

A. Motion to Suppress

Mr. Hishaw first challenges the district court's denial of his motion to suppress. He maintains that the Oklahoma City police officers lacked the necessary justification to make a traffic stop and also lacked a reasonable suspicion that he was engaging in the illegal distribution of drugs. We engage in de novo review of the district court's conclusion that the stop of the pickup and the pat-down search of Mr. Hishaw were reasonable under the Fourth Amendment. See United States v. Hernandez, 93 F.3d 1493, 1498 (10th...