NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0748n.06 No. 12-1637
UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. J ONATH AN HAL E DAVI S, a.k.a. Jo-Nathan Hale D avis, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF MI CHI GAN

BEF ORE: MARTI

N and SUTTON , Circuit J udg es; ADAMS, District J udg e. *

ADAMS, J

. J onathan Hale Davis appea ls the denial of his motion to suppress and his 324- month sentenc e. Be cause there is no err or in the denial of the suppression motion and any err or in imposing Davis’ sentenc e wa s harmless, we aff irm the district court’s judg ment. On Aug ust 18, 2011, Davis was indicted on the following char g es: 1) being a felon i n possession of a firea

rm in violation of 18 U.S.C

. § 922(g )(1) ; 2) possession of coca ine base with intent to distribute in violation of 21 U.S.C. §§ 841(a) (1) and (b)( 1)(C); and 3) possessi o n o f a firea rm in further ance of a drug traff icking in violation of 18 U.S.C. § 924(c) (1)( A)(I ). On October 24, 2011, Da v i s m o v ed to suppress the firea rm and cra ck coca ine that was found on his person during his arr est. On Dec ember 14, 2011, the district court held a hear ing on the motion, rec eiving

The Honora

ble J ohn R

. Adams, United States District J udg e for the Norther n District of * Ohio, sitti ng by

desig nation.No. 12-1637

United States v. Dav is testimony from Officer Michae l Fe rg uson and Serg eant Michael Kelley

. At the conclusion of t he hear ing, the court ora lly

denied the motion. Foll o wi n g the denial of his motion, Davis enter ed into a conditional plea ag ree ment,
prese rving his rig ht to challeng e t h e suppression issue on appea l. There afte r, on May 11, 2012, Davis appea

red for his sentenc ing hear ing. During that hear ing, Davis objected to his classification

as an arme d car eer criminal, arg uing that his juvenile conviction for home invasion did not qualify

as a predic ate offe nse for that enhanc ement. The district court reje cted Davis’ arg ument and found him to be an arme d car eer criminal. I n addition, Davis was found to be a car eer offe nder, ultimately resulting in a

sentenc ing r ang e of 262 to 327 months. The district cour t also acknow ledg ed that it

was require d to impose the 60 month sentenc e on count three consec utive to the sentenc es on counts

one and two, eff

ectively resulting in a rang e of 322 to 387 months. Ultimately , Davis was sentenc ed to 324 months of incarc eration. This appeal followe d. Davis first asser

ts that the district court err ed when it denied his motion to suppress. Davis contends that the district err ed when it analy zed his detention utiliz ing a rea sonable susp i cion standard rathe r than a probable cause standard. Fur ther, Davis asser

ts that the district court should have limit ed its totality -of- the-c ircumstance s revie w to activity direc tly observe d by the office rs in question, Offic er Fe rg uson and S er gea n t Kelly

. The Court finds no err or in the denial of Davis’ motion. This Court applies a mix ed standard of revie w in evalua ting a district court’s ruling on a motion to suppress. United States v. Howard , 621 F.3d 433, 450 (6th Cir. 2010). The district court’s finding s of fact are reviewed for clear error , while any rela ted conclusions of l aw a re reviewe d de -2-No. 12-1637

United States v. Dav is

novo . Id

. A fac tual finding is clea rly err oneous when the revie wing court is left with the definite and firm conviction that a mistake has been committed. Id. (citing United States v. Smith , 594 F.3d 530, 535 (6th Cir. 2010)). I n that vein, due reg ard must be g iven to the trial court’s opportunity to judge the cr edibility

of the witnesse s. United States v. Blair , 524 F.3d 740, 749 ( 6th Cir. 2008). Whil e Davis has not prec isely articula ted the contours of his challeng e on appea l, it first
appea rs that he asser

ts e rror in the leg al standard utiliz ed by the district c ourt. I n order to e valuate this claim, a revie w of the f acts lea ding to Da

vis’ ultimate arre st is necessar y . On Ap ri l 1 5 , 2011, police in Van Bur en County , Michig an, lear ned of a violent home invasion that left t he home residents robbed and beate n by arme d assailants. The assailants made off with nume rous wea

pons and near ly $16,000 in c ash. Throug h a confide ntial inf ormant (“CI ”), office rs rec eived information that three individuals wer e i nvolved in the home invasion. The CI informed office rs that an individual named Billy Crawf ord, an Afric an Americ an man named Milo, and an Afric an Americ an man known as J .P. wer e involved in the invasion. The day afte r the home i n v as i o n, Kalama zoo Public Safety Offic er Michae l Fe rg uson rec eived a telephone call about th e wher eabouts of Crawf

ord. Offic er Fe rg uson lear ned that Crawf

ord was stay ing at numerous local hotels, having others use their names to rent rooms on his behalf

. Offic er Fe rguson then rea ched out
to Van Bur en County Sheriff deputies and lear ned that they had been able to tr ack Crawf ord to the Red Roof I nn in Kalamazoo. Offic er Fe rg us o n then made his way to the Red Roof I nn and confe rre d with the sheriff deputies. Following that meeting , Officer Fe rg uson depar ted for a near

by hotel to confirm that Crawf ord had stay ed there on the prior night using a differ ent name. After bein g unable to locate -3-No. 12-1637

United States v. Dav is Crawf ord at sever al other locations, Offic er Fe rg uson was informed that he had been spotted at the Red Roof I nn. I n route to the hotel, Offic er F erg uson learne d that Crawf ord had been dropped off

at the hotel by another individual, later identified as Davis. Offic er Fe rg uson also lear ned that Davis did not immediately leave the parking lot and appea red to be waiti ng for Crawf ord. Shortly there afte r, Davis left the Red Roof I nn parking lot, moving his vehicle to a n adjac ent Bur g er King parking lot, still w ith a

full view of the Re d Roof I nn. By this time, office rs had obtained a sear ch

war rant for the hotel room that was be ing use d by Crawf ord. As off

icer s believed Cra

wford to be

arme d and dang erous, they intended to wait for

him to depart to detain him and sea rch the room. No t long afte r Davis moved the vehicle, Crawf ord left the hotel room. Davis flashed hi s lights twice i n an appar ent eff ort to signa l his location to Crawf ord. Offic ers then approa ched Crawf ord who beg an running toward the parke d car . Crawf ord appar ently resisted arr est and cause d
q u i t e a s cene in the parking lot. Whil e this arr est was being eff ectua ted, Offic er Fe rgu s o n ap p ro ac h ed t he parked car on the passenge r si de with his g un draw n. At the s ame tim e, S erg ean t Kelly arr ived at the driver’ s side door with his g un draw n. Serg eant Kelly order ed Davis to keep his hands visible and rea ched in to phy sically remov e h i m from the vehicle. Acc ording to Serg eant Kelly , despite repe ated war nings, Davis continued to rea ch for his waistband once he was remove d from the ve hicle. As a

result, Davis wa s handcuf fed. Once Davis was handcuf

fed, Serg eant Kelly asked whether he possessed a wea pon and Davis indicated that he had a firea rm in his waistband. A pat down confirme d the prese nce of the firea rm and also reve aled ten individually -wra pped packa g es of cra ck coca ine and a razor blade on Davis’

-4-No. 12-1637

United States v. Dav is person. Davis then consente d to a sear ch of his vehicle in which office rs found a digital scale , pistol holster, and r

ubber g loves. Davis first contends that the district c ourt improperly analy zed his initial detention under a

rea sonable suspicion standar d. Davis conte nds that beca use off icer s approa ched w ith g uns draw n and handcuffe d him, he was immediatel y ar rested and therefor e a probable cause standard should have be en applied. H oweve r, this Court’ s prior prec edent makes clea r that office rs may

take suc h
prec autions without exceeding the bounds of a Terry stop so long as those prec autions are war rante d by the facts. Un i t ed S t a t es v. Marxe n , 410 F.3d 326, 332 (6th Cir. 2005) (citing United St ates v. Foster , 376 F.3d 577, 587 (6th Cir. 2004); Houston v. Clark County Sheriff Deputy John Does 1–5 , 174 F.3d 809, 815 (6th Cir.1999)). “Such r easona ble pre cautions include drawing and dis play ing

wea pons, the immediate remova l of the occupa nts from the subject vehicle, an d p l ac ing the
occupa nts in handcuff

s.” Marxe n , 410 F.3d a t 332. The facts herein full y support the pre cautions utiliz ed by the officers. At the t ime office rs
encounte red Davis, it was known that he had transporte d Crawf ord to the hotel. I t was also appar ent that Davis was waiting in the are a to ag ain transport Crawf ord. At that time, office rs had strong suspicions tha t Cra

wford had been involved in a home invasion with two Afric an Americ an males and that all 3 assailants had used firea rms in the invasion. Fur

ther, when office rs went to appre hend Crawf ord, he ran towards Davis’ vehicle. Under those circ umstances, of fice rs wer e fully

justified in approa ching the vehicle with their guns drawn. Moreove r, as Davis repeate dly reache d toward his waistband despite order s to stop, the office rs wer e also justified in handcuf fing him to prese rve

-5-No. 12-1637

United States v. Dav is their own safe ty

. None of these activities serve d to turn a lawful investigatory stop into an unlawful

arr est. To the extent that Davis has asser ted that office rs lacke d rea sonable suspicion to initiate the Terry stop, the Court finds no merit in such an ar g ument. This Court’s oft-re peate d standard f or re viewing a Terry stop is as follows:
An investigatory stop of a vehi cl e i s permissible under the Four th Amendment if supported by rea sonable suspicion. Terry v. Ohio , 392 U.S. 1, 22 (1968)

. Since an investigatory stop is less intrusive to one’s persona l secur ity than an arr est, the level of suspicion nece ssary for such a stop is “conside rably less than proof of wrong doing by a preponde ranc e of the evidenc e.” United States v. Sokolow , 490 U.S. 1, 7 (1989). For purposes of deter

mining whether rea sonable suspicion exis ts, the Supreme Court has i nstructed that a reviewing court m u st consider the totality of circumstance s to deter mine whether the detaining office r has a “par ticularized and objective basis for suspecting leg al wrong doin g. ” Un i t ed States v. Arvizu , 534 U.S. 266, 273 (2002) (citations omitted). I n considering all the circ umstances, the question is not whether there is a possible innocent explanation for eac h of the fac tors, but whether all of them taken t o gether g ive rise to rea sonable suspi cion t hat criminal activity may be afoot. Id . at 274–75.
I n Terry , the Supreme Court focuse d its discussion on brief investigatory stops made by police office rs on t h e basis of rea sonable suspicion not amounting to probable cause for arr est. There , the rea sonable suspicion arose from conduct observe d by the office r who made the stop. I n subsequent case s, howeve r, the Court has clar ified that a Terry stop is a lso pe rmissible w here the stop r elates to a crime alre ady completed and whe re the information s upply ing the rea sonable suspicion come s from anothe r person rathe r than the office r’s persona l observa tions. See United States v. Hensley , 469 U.S. 221, 227 (1985) (holding that an off icer has the authority to ma ke a Terry stop “whe n [he] has rea sonable, articula ble suspicion that the person has been, is, or is about to be eng ag ed in criminal activity ”) (quoting United States v. Place , 462 U.S. 696, 702 (1983)) ; United States v. Cortez , 449 U.S. 411, 417, n. 2 (1981).
Marxe n , 410 F.3d at 328-29. Fur thermore , office rs are permitted to make infere nces fr o m and deduct i o n s ab o u t the total information known to them based upon their specia liz ed training and experience

. Arvizu , 534 U.S. at 273. -6-No. 12-1637

United States v. Dav is Davis appea

rs to arg ue that b ecause office rs had no substantial evidenc e that he had been involved in the home invasion, they there fore lacke d rea sonable suspi cion t o approa ch his car . I n that light, the Court finds the fac ts of Marxe n to be instructive. I n Marxe n , office rs initiated a Terry stop of Marxen’s car following repor ts of an arme d robber

y . The stop was initiated beca use the vehicle matched the make, model, a nd color of the g etawa

y car used in the robbe ry . Fur thermore , the license plate number

matched or near ly matched the number seen by witnesses on the g etawa y

car . Howeve r, there was littl e to no evidenc e that tied Marxen himself to the robber y . I n finding that the stop was appr opriate, this Court noted:
Fur thermore , althoug h it is not clea r t hat t here was reasona

ble s uspicion to believe that Marxen himself was involved in the robber ies, the police h ad reasonable suspicion to believe that the stop of Marxen’s vehicle may produce evidenc e of a past crime. Under these circ umstances, a Terr y stop is permissible. See Hensley , 469 U.S. at 227–29. I n summary , we conclude that police are permitted to conduct a Terry stop to in v es t i g ate completed felonies if they have rea sonable suspicion to believe that the vehicle stopped was involved in criminal activity and the stop may produce evidenc e of a crime even if office rs do not have rea sonable suspicion to believe that the owner and/or driver of the vehicle was direc tly involved in the criminal activity

. Marxe n , 410 F.3d a t 332. Simi lar to the fac ts detailed in Marxe n , p o li c e d id not have substantial information that linked Davis to the home invasion. Howeve r, they did have such information about Crawf ord. A reliable confide ntial informant had provided information about Crawf ord’s involvement in the violent home invasion. Moreove r, office rs had corr oborate d information that indicated that Crawf ord was using assumed names at local hotels to avoid detec tion. Perhaps the most full explanation of the office rs’

rea sonable suspicion wa s provided by Offic er F erg uson himself during the suppression hea ring :

-7-No. 12-1637

United States v. Dav is I can list wh at I h av e. I had rec eived information that there was a violent home invasion that had taken place in Van Bur en County involving multipl e wea po n s . I had also rec eived information that multipl e wea pons wer e stolen in the incident, which would lead me to believe that potential l y Billy Crawf ord or his associate s could have one of those w eapons on the ir person. The fac t that he had rente d a room at two differ ent locations, one at the Knig hts I nn and then t he following ni g ht at t he R ed R oof, which would lead me to believe that he' s potentially try

ing to avoid police detec tion. I had the information that Mr. -- that the red Pontiac Bonne ville was located at the Red Roof I nn ear lier that day , but then it's found on North Princeton Street without Mr. Crawf ord in it, which would lead me to believe that they ' re attempting to av o i d police detection by not driving the s ame vehicles. The fac t that Mr. Crawf ord was dropped off by Mr. Davis at the motel and that Mr. Davis is waiting for him and then pulls out afte r potentially being spooked. And then at that point Mr. Davis pulls into a parking lot which has no other vehicles to the left or to the rig ht of it whi ch has a clea r sight or clea

r path of sight for Mr. Crawf ord to walk throug h. We see Mr. Crawf ord walking throug h

. T h e fa ct that officer s at t empt to stop him and he runs, which would lead a rea sonable person to believe that he' s try ing to g et awa y from something that he’s done. And then the fac t that he was running towards Mr. Davis’s vehicle and al s o t h e fac t that Mr. Davis flashed his lights as he was coming -- as Mr. Crawf ord was coming out, and that Mr. Davis maintained on sight and was staring intently at Mr. Crawf ord as he was being detain ed i n the parking lot, which would lead me to believe potentially he’s g ot evidenc e of a crime inside of his vehicle, h e’ s i nvolved in the incident or he’s involved in some sort of Mr. Crawford’ s esca pe or he could be part of t he incident that Mr. Crawf

ord was identified as being part of as a suspect in the home invasion. Offic er Fe rg uson’s rec itation makes it clea r that rea sonable suspicion exis ted to det ain Davis. I f nothing else, an individual strong ly suspected of an arme d home invasion sprinted toward Davis’ vehicle while being chase d by police. That vehicl e h ad not only rema ined afte r it had dropped Crawf ord off at t he hotel, but for a wholly unexplained rea son had moved to a n ea rb y p arking lot while waiting for Crawf

ord. As such, officers had ample re as o n ab l e s u s picion to believe that the stop of the vehicle “may produce evidenc e of a past crime” – the home invasion. Acc ording ly , the district court committed no err or in denying the motion to s uppress. -8-No. 12-1637

United States v. Dav is Davis next contends that the dist ri ct court err ed in finding that one of his prior state court adjudications was a viol ent felony under the Armed Caree r C riminal Act. This issue is subject t o

a de novo revie w on appe al. United States v. Bartee , 529 F.3d 357, 358–59 ( 6th Cir. 2008). Under the ACCA, a defe ndant who violates 18 U.S. C

. § 9 22(g ) and has three prior convictions of serious drug offe nses o r violent felonies must rec eive a fiftee n-y ear mandatory minimum sentenc e. United States v. Johnson , 675 F.3d 1013, 1016 (6th Cir. 2012) (citing 18 U.S.C. § 924(e) (1)) . The ACCA def ines “violent fe lony ” as:
any crime punishable by imprisonment f or a term exceeding one y ear , or any act of juvenile delinquency involving the use or car ry ing of a firea

rm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-- (I ) has as an element the use, attempted u s e, o r threa tened use of phy sical forc e ag ainst the person of

another ; or (ii) is burg lary , arson, or extorti on, involves use of explos ives, or otherwise involves conduct that pr esents a se rious potential risk of phy sical injury to another; a

nd (C) the ter

m “conviction” inc ludes a finding that a per son has committed an ac t of juvenile delinquenc y

involving a violent f

elony

. 18 U.S.C. § 924(e) (2)( B) -(C). This Court ref ers to 18 U.S.C. § 924(e) (2)( B) (I ) as the “for ce” prong and the portion of 1 8 U.S.C. § 924(e) (2)( B) (ii) involving the non-enume rate d offe nses as the “re sidual clause.”
I n United States v. W

ynn , we e x plained:
To deter mine whether a prior conviction constitutes a “cr ime of violence,” we must apply the cate g orica l approa ch.... Under this cate g orica l approa ch , t h e court must look only to the fact of conviction and the statutory definition—not the fac ts underlying the offe nse—to deter mine whether that definition supports a conclusion that the conviction was for a crime of violence.... There is, howeve r, an exception to -9-No. 12-1637

United States v. Dav is the categ orica l approa ch: When the statutory definition of the prior c rime t o which the defe ndant pleade d g uilty is ambig uous ... the court may examine

... the terms of the char g ing document, the terms of a plea ag ree ment or transc ri pt of colloquy betwee n judge and def

endant in which the fac tual basis for the plea wa s confirme d by the def endant, or to some compara

ble judicial re cord of

this information. 579 F.3d 567, 571 ( 6th Cir. 2009) (quotations and citations omitted). Offe nses that ty

pically qualify under the residual clause are “roug hly simil ar, in kind as well

as i n d egre e of risk posed” to the enumerated felonies. Begay v. United States , 553 U.S. 137, 1 4 3 (2008). The statute’s specific ally identified offe nses involve “purpose ful, v i o l en t , and ag g ressive conduct.” Id. at 144–45. Thus, crimes with “a stringe nt mens rea require ment” ty pically qualify if, “as a cate g orica l matter, [t hey prese nt] a serious potential risk of phy sical injury to another ” in a way “compa rable to that posed by its closest analog among the [ACC A’s] enumer ated offe nses.” Syke s

v. United States ,131 S.Ct

. 2267, 2273, 2275 (2011) (quoting Jame s v. United States , 550 U.S. 192, 203 (2007))

. A crime committed by a juvenile ( an ac t of juvenile delinquency ) can also constitute

a violent felony , but only if, in addition to meeting the qualifica tions for an adult predic ate offe nse, i t al s o “involv[es] the use or car ry ing of a firea

rm, knife, or destructive device .” 18 U.S

. C

. § 924(e) (2)( B)

. On appea l, the parties dispute whether Davis’ juvenile a djudication for brea king and enter ing

a home is a predic ate offe nse u n d er t h e ACCA. Davis asser ts that the district court improperly combined two juvenile adjudications — one for brea king and enter i n g, t h e other for stealing a firea rm — in order to produce a single offe nse “involving the use or car ry ing of a firea

rm.” We need

not decide whether Davis’s interpre tation of the statute is rig ht. Even if i t i s , we wo u l d have to aff irm beca use any err or the district court committed was harmless. See Fe d.R. Crim.P. 52(a)

. The -10-No. 12-1637

United States v. Dav is district court sentenc ed Davis to imprisonment for 3 2 4 months, or 27 y ear s—well more than the 15-y ear mandatory minimum established by the AC C A. This 324-month sentenc e fits within the
rang e rec ommended by the Sentencing Guidelines. The district court’s insistence on following the
g uidelines is appar ent from its expli cit denial of the defense’ s request for a downwar d depar ture. See R. 39 at 413 (TH E COURT: “I find I cannot g rant [a dow nwar d varia nce] due to the nature of the sentenc ing structure , due to the nature of the extensive criminal rec ord in this matter.” ). “B ased

on the co u rt ’s ex p re s s decision to focus on the Guidelines and not the mandatory minimum , it is highly unlikely that a differ ent finding with reg ard to the mandatory minimum would have aff ecte d [Davis’s] sentenc e.” United States v. Mauck , 469 Fe d.Appx. 424, 429 (6th Cir. 2012). Thus, even if the district court was wrong to apply the ACCA’s mandatory minimum , its mistake was harmless

err or. For

the fore g oing r easons, the district c ourt’s judg ment is affirme d.

-11-