# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 21

- 50308

**United States of America,**

Plaintiff

— Appellee **,**

versus

**Raymond McKinney,**

Defendant

— Appellant

**.**

Appeal from the United States District Court for the Western District of Texas USDC No. 5: 18

- CR

- 131

- 1

Before **Clement, Graves,** and **Costa,** Circuit Judges

**. Per Curiam**  **:** *

Defendant

- Appellant Raymond McKinney was charged with one count of possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1). He moved to suppress evidence of the firearm, which was discovered during a pat

- down search followi ng a warrantless investigatory stop. The district court denied the motion without a hearing ,

* Pursuant to **5th Circuit Rule** 47.5, the court has determined that this opinion shoul d not be published and is not precedent except under the limited circumstances set forth in **5th Circuit Rule** 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED June 10, 2022
Lyle W. Cayce Clerk Case: 21-50308 Document: 00516352756 Page: 1 Date Filed: 06/10/2022No. 21

- 50308

2 and McKinney entered a conditional guilty plea pursuant to a written plea
agreement , reserv ing the right to challenge the denial of his suppression
motion. He was sentenced to time served , which was around two years, and three years ’ supervised release. McKinney appealed the denial of his suppression motion and we reversed, holding that that the evidence before
the district court

— the officers’ body

- camera footage, t he police report, and some photographs

— did not indicate that the officers had reasonable suspicion to detain McKinney for questioning. United States v. McKinney , 980 F.3d 485, 488

- 89 (5th Cir. 2020).
McKinney renewed his motion to suppress on remand

. 1 T he district court held an evidentiary hearing at which the two arresting officers testified. The district court again denied the suppression motion , holding that the officers had reasonable suspicion to detain McKinney and probable cause to
frisk him

. The district court reentered the judgment of conviction and reinstated McKinney’s sentence. McKinney timely appealed

. On remand, the Government offered no evidence that could materially alter our earlier analysis , even though we had described the type
of evid ence that might support reasonable suspicion

. McKinney , 980 F.3d

1 McKinney’s counsel suggested that proceeding with an evidentiary hearing would be a “nullity” given that McKinney had already served his sentence, and asked the district court to dismiss the charges against McKinney because “subtracting one conviction from Mr. McKinney’s record does not materially [affect] his criminal history.” The Government, however, contended that we had instructed the district court to hold an evidentiary hearing. The district court then scheduled an evidentiary hearing, but gave McKinney time to consider withdrawing his suppression motion. The district court then stated: I follow Judge [Lucius Desha] Bunton ’ s rule abou t Fifth Circuit opinions.

“ They can reverse me if they want to, but they can ’ t make me read it, ” which I'm glad you all have read it. But I also

-- if my recollection is correct, none of those fine judges have ever tried a case or dealt with what we deal with on the street. But, anyway, what do I know? Case: 21-50308 Document: 00516352756 Page: 2 Date Filed: 06/10/2022No. 21

- 50308

3 at 4 93. To the contrary, the officers’ testimony confirms our previous interpretation of the facts: t he y specifically confirmed that the body

- camera footage on which we previously relied refl ected accurately what happened that night. Moreover, they confirmed that they stopped McKinney based on little more than the color of his clothing (while neglecting to stop or even question others wearing the same color), his location in a high

- crime area (even though McKinney was carrying a grocery bag from the nearby food mart), and his wearing a windbreaker (which the officers admitted on remand was not particularly suspicious). In short, the officers’ testimony does nothing to assuage our earlier concer n that the officers stopped McKinney based on nothing more than a hunch. Nonetheless, the district court entered an order denying McKinney’s motion to suppress that mirrored almost exactly its earlier order that we found wanting. Because the evidence
intro duced on remand does nothing to undercut our earlier analysis finding no reasonable suspicion to detain McKinney , we are bound to reverse the district court’s denial of McKinney’s motion to suppress

. We therefore **VACATE** the district court’s order denying McKinney ’ s motion to suppress, **VACATE** his conviction and sentence,
and **REMAND** the case to the district court for further proceedings. Case: 21-50308 Document: 00516352756 Page: 3 Date Filed: 06/10/2022