*

 This order and judgment is not binding precedent except under the doctrines

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** The Honorable William P. Johnson, United States District Judge for the

District of New Mexico, sitting by designation.

FILED

United States Court of Appeals

Tenth Circuit

April 13, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 09-3343

 DARRON L. ESKRIDGE,

Defendant-Appellant.

 

(D.C. No. 2:08-CR-20153-KHV-01)

(D. Kan.)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 09-3362

JOHN T. ROLAND, JR.,

Defendant-Appellant.

(D.C. No. 2:08-CR-20153-KHV-02)

(D. Kan.)

 

ORDER AND JUDGMENT*

 

Before HOLMES and BALDOCK, Circuit Judges, and JOHNSON**, District

Judge.

 

Appellant Darron L. Eskridge (“Eskridge”) was convicted after jury trial of
2

felon in possession of a firearm and Appellant John T. Roland, Jr. (“Roland”) pled

guilty to the same charge. Eskridge and Roland both appeal the district court’s denial

of their motions to suppress based on a traffic stop by the police of the vehicle in

which they were the two occupants. They argue the traffic stop was initiated in

violation of their Fourth Amendment rights. Eskridge also challenges the district

court’s denial of his motion for acquittal on the basis of insufficient evidence to

support his conviction, and Roland challenges the district court’s calculation of his

sentence based on a relevant conduct enhancement and the determination that his

prior felony conviction was a “crime of violence.” Although Eskridge and Roland

filed appeals that were briefed and argued separately, we consolidate the appeals

because of the identical factual and legal issues surrounding the traffic stop. We have

jurisdiction under 28 U.S.C. § 1291 and we affirm.

I. Background

On September 22, 2009 at approximately 10:00 a.m., Captain William Howard

of the Kansas City, Kansas police department was heading home from the police

station to take an early lunch. He was in uniform and driving an unmarked white

Ford Crown Victoria. Captain Howard had sixteen years of experience as a law

enforcement officer and drove this route daily.

While heading northbound on Hutton Road in Kansas City, Kansas, he noticed

a black SUV with Missouri plates pulled over on the side of the road at an unusual

spot—part way into a ditch. Captain Howard, in all his years traveling that road, had
1

 Citations to the record are to United States v. Roland, No. 09-3362 (10th Cir.

filed Dec. 16, 2009).

3

never seen a vehicle parked in that manner at that location. He slowed his speed as

he approached the vehicle and noticed a man outside the SUV facing the rear

passenger door which was opened. The man was ducked into his car, concealed from

the waist up, and he was “moving very rapidly and working feverishly.” R. Vol. 2

at 20-21.1

 Captain Howard thought the man might be assaulting someone in the

vehicle, restraining someone, or spanking a child. He slowed his speed as the Crown

Victoria passed the SUV, and Captain Howard expected the man to flag him down

for help or wave at him to indicate that the situation was under control. Instead, the

man glanced up at the passing car with a deer-in-the-headlights look as though

alarmed to see Captain Howard. R. Vol. 2 at 26.

Captain Howard did not stop his vehicle at that point but continued northbound

on Hutton Road until the next major intersection. He made a U-turn and traveled

back to the spot he had seen the SUV. At first, he could not see the vehicle anywhere

on the road. As he got closer to the spot, he realized that the vehicle had backed into

a gravel driveway, deep enough to be hidden behind the trees. The SUV had turned

around and was exiting onto Hutton Road. The driver displayed uncertainty about

which way to turn, but ultimately took a left out of the driveway southbound onto

Hutton Road, right in front of Captain Howard’s car. Captain Howard found this to

be an odd decision, as the vehicle had originally been headed north. He decided to
4

stop the vehicle and inquire into the strange behavior he had observed.

He activated his emergency lights and the car pulled over in response. There

were two males inside: the driver, Eskridge, and the passenger, Roland. Captain

Howard asked the driver what he had been doing parked on the side of the road, and

Eskridge responded that he had been wiping crumbs off of the backseat. While

speaking with the driver, Captain Howard noticed various household electronic

devices, including a DVD player, stacked in the backseat and on the front passenger

floorboard, under the feet of the passenger, Roland. Eskridge explained that the items

were his, which he had with him because he had left his girlfriend’s house after a

fight. Captain Howard did not believe Eskridge’s story about crumbs or owning all

the items in the SUV. He obtained the girlfriend’s phone number from Eskridge and

called her. She confirmed that she did have a fight with Eskridge, but said that he

had not taken any household items with him when he left her house.

Another officer, Sgt. George Simms, arrived at the scene while Captain

Howard was on the phone. Sgt. Simms observed a handgun on the floorboard of the

driver’s side of the vehicle. Dispatch had informed the officers that Eskridge had a

prior felony conviction for burglary, so Sgt. Simms placed Eskridge under arrest for

possessing the firearm. Eskridge explained that it was just a pellet gun and pellets

would be found in the backseat. Captain Howard asked for permission to search the

car for the pellets, and Eskridge consented. Captain Howard recovered several items,

including a box and paperwork all bearing a name that did not match Eskridge’s or
5

Roland’s, and on further investigation the police matched that name to a local

address. Officers went to the address and determined that the residence had been

burglarized. Items reported missing from that residence matched many of the items

Captain Howard had found in the SUV.

Captain Howard then performed a search of the area along Hutton Road and

found scattered items that had been thrown into the ditch on the side of the road

where the SUV had originally been parked. The residents of the burglarized home

arrived and identified their property in the ditch and the backseat of the SUV. A

report of three missing firearms from the residence prompted Captain Howard to

return with several other officers to search the area around the gravel drive which

Captain Howard had observed the SUV exiting. They found two of the three reported

missing firearms. A subsequent search, which included dredging a nearby pond,

failed to uncover the third firearm.

Eskridge and Roland were each charged with felon in possession of a firearm

in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2) in an indictment returned on

November 5, 2008. On March 9, 2009, both defendants filed motions to suppress

based on the traffic stop which they argued was initiated illegally. An evidentiary

hearing was held on the motions on April 1 and 2, 2009. The district court denied the

motions in an order issued April 14, 2009. Roland pled guilty on June 10, 2009,

preserving his right to challenge the district court’s denial of his suppression motion

and the calculation of his sentence. Eskridge’s case proceeded to jury trial and he
2

 Eskridge raised no challenge to the 327 month sentence imposed by the

district court.

6

was found guilty on August 27, 2009. Eskridge was sentenced to 327 months’

imprisonment on December 2, 20092

 and Roland was sentenced to 100 months on

December 9, 2009.

II. Discussion

A. Legality of the Stop

Eskridge and Roland challenge the validity of the initial traffic stop, arguing

that it was not justified at its inception because Captain Howard admittedly did not

observe a traffic violation. Eskridge also challenges the scope of the traffic stop,

arguing there was no valid consent or reasonable suspicion to justify continuing the

encounter once Eskridge, the driver, presented a valid license and registration. The

United States argues that reasonable suspicion existed throughout the encounter

because of the suspicious behavior observed by Captain Howard. As an initial matter,

we find that Eskridge’s challenge to the scope of the detention is waived because it

was not properly presented to the district court. See R. Vol. 1 at 23-25 (motion to

suppress by Eskridge presenting argument only relating to initial stop). Therefore,

we concentrate only on the validity of the initial stop.

We review de novo the district court’s denial of the motion to suppress

evidence, but we “view the evidence in the light most favorable to the district court’s

determination.” United States v. Williams, 271 F.3d 1262, 1266 (10th Cir. 2001). A
7

routine traffic stop is a seizure within the meaning of the Fourth Amendment, but it

need not be supported by a full showing of probable cause. A police officer may

initiate a traffic stop on the basis of “specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant th[e]

intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968). “Reasonable suspicion arises when

‘an officer of reasonable caution’ has a ‘particularized and objective basis for

suspecting the person stopped of criminal activity . . . .’” United States v. PenaMontes, 589 F.3d 1048, 1052 (10th Cir. 2009) (quoting United States v. Winder, 557

F.3d 1129, 1133-34 (10th Cir. 2009)). The officer’s actions must be “judged against

the totality of the circumstances,” and the officer’s “subjective motivations are

irrelevant to [the] inquiry.” Id.

“[W]hen used by trained law enforcement officers, objective facts,

meaningless to the untrained, can be combined with permissible deductions from

such facts to form a legitimate basis for suspicion . . . .” United States v. Cortez, 449

U.S. 411, 419 (1981). Courts must evaluate the officer’s conduct “in light of

common sense and ordinary human experience,” deferring to “the ability of a trained

law enforcement officer to distinguish between innocent and suspicious actions.”

United States v. Stephenson, 452 F.3d 1173, 1176 (10th Cir. 2006). An officer need

not rule out the possibility of innocent conduct in order to form reasonable suspicion.

United States v. Arvizu, 534 U.S. 266, 277 (2002). “Terry itself involved ‘a series of

acts, each of them perhaps innocent’ if viewed separately, ‘but which taken together
8

warranted further investigation.’” United States v. Sokolow, 490 U.S. 1, 9-10 (1989)

(quoting Terry, 392 U.S. at 22). Once reasonable suspicion is formed, the officer is

entitled to initiate an investigatory detention in order to dispel that suspicion. Id. at

30-31.

Eskridge relies on United States v. Guzman, 864 F.2d 1512, 1515 (10th Cir.

1988), to argue that evidence of at least a minor traffic infraction should be required

in order to initiate a traffic stop. However, Guzman’s holding that pretextual stops

were actionable under the Fourth Amendment was overruled by United States v.

Botero-Ospina, 71 F.3d 783 (10th Cir. 1995) (en banc), which adopted a purely

objective standard in judging the actions of police officers. We therefore find

Eskridge’s argument to be wholly without merit.

Here, Captain Howard had reasonable suspicion to stop Eskridge and Roland.

By itself, each factor which the government points to in support of the detention

would not be enough to justify the stop. However, when combined and viewed from

the perspective of a trained law enforcement officer familiar with the scene, the

factors observed by Captain Howard in their totality gave rise to an inference of

illegal activity.

Eskridge’s behavior after noticing Captain Howard is a factor that plays a

large role in our analysis. “[N]ervous, evasive behavior [in the presence of law

enforcement] is a pertinent factor in determining reasonable suspicion.” Illinois v.

Wardlow, 528 U.S. 119, 124 (2000). Eskridge gave the Crown Victoria an alarmed
3

 Counsel for Eskridge at oral argument did not take issue with the notion that

an officer in uniform driving a white unmarked Ford Crown Victoria constitutes the

noticeable presence of law enforcement.

9

look as it passed, stopped what he was doing immediately, backed up the SUV into

the gravel driveway hidden by trees to turn around, and then displayed indecision

about what to do when confronted with the Crown Victoria the second time. This

behavior is evidently indicative of nervousness and discomfort in the presence of a

police officer.3

Certainly, evasive behavior alone is not enough. However, the circumstances

and location of the scene also play a role in evaluating reasonable suspicion.

“[O]fficers are not required to ignore the relevant characteristics of a location in

determining whether the circumstances are sufficiently suspicious to warrant further

investigation.” Wardlow, 528 U.S. at 124. The United States draws our attention to

the manner in which the SUV was parked, which Captain Howard noted as odd for

that particular area. Captain Howard was very familiar with the area and drove that

route down Hutton Road daily. He thought that the placement of the car was

suspicious because he had never before seen a vehicle parked in that particular

manner in that particular location. Although Hutton Road, Kansas City is not a “high

crime area,” see id., the odd location of the vehicle certainly added to the officer’s

suspicions. Captain Howard also observed frantic movements, the exact character

of which could not be seen behind a tinted window, but which were consistent with
10

the commission of some type of an assault. “[I]n cases where ‘the conduct justifying

the stop was ambiguous and susceptible of an innocent explanation,’ ‘Terry

recognized that the officers could detain the individuals to resolve the ambiguity.’”

United States v. Dennison, 410 F.3d 1203, 1208 (10th Cir. 2005) (quoting Wardlow,

528 U.S. at 125). In this case, criminal activity was one possibility out of a wide

array of possible explanations for this conduct. Captain Howard was justified in

initiating an investigatory detention in order to dispel his concern that illegal conduct

was occurring.

B. Sufficiency of the Evidence at Eskridge’s Trial

In two short paragraphs of his brief-in-chief, Eskridge challenges the

sufficiency of the evidence to support his conviction. We find that this argument is

waived on appeal due to the inadequate development of any factual or legal issues.

Femedeer v. Haun, 227 F.3d 1244, 1255 (10th Cir. 2000) (“On appeal . . . parties

must do more than offer vague and unexplained complaints of error. Perfunctory

complaints that fail to frame and develop an issue are not sufficient to invoke

appellate review.” (internal quotation marks omitted)).

C. Roland’s Sentence

Roland challenges his sentence on two grounds. First, he argues that the

district court improperly calculated his sentence to include a relevant conduct

enhancement on the basis of evidence that he possessed a third firearm in addition

to the two firearms charged. Roland contends that the evidence was insufficient to
11

support this enhancement. Second, he argues that his sentence was improperly

calculated because the district court applied a base offense level of 20 under a

provision of the U.S. Sentencing Guidelines (“U.S.S.G.”) which applies if the instant

offense was committed subsequent to a felony conviction of a crime of violence.

Roland argues that his prior felony conviction is not a “crime of violence” under

federal law. We reject both challenges and affirm the sentence.

1. Relevant Conduct

The district court calculated a 2-level relevant conduct enhancement under

U.S.S.G. § 2K2.1(b)(1)(A) on the basis that Roland possessed a third firearm in

addition to the two he pled guilty to possessing. The district court’s factual finding

that Roland possessed the third firearm is reviewed for clear error. A finding is

clearly erroneous only “if it is without factual support in the record or if the

appellate court, after reviewing all the evidence, is left with a definite and firm

conviction that a mistake has been made.” Manning v. United States, 146 F.3d 808,

812 (10th Cir. 1998). The government bears the burden of proving sentencing

enhancements and increases by a preponderance of the evidence. United States v.

Keifer, 198 F.3d 798, 800 (10th Cir. 1999).

At the sentencing hearing, the government presented testimony by a resident

of the house that was burglarized by Roland and Eskridge. The witness testified that

he had three firearms in his bedroom: two pistols and a shotgun. He kept the pistols

in the closet, locked in a box with his name on it—the same box which Captain
12

Howard found in the back seat of Eskridge’s car after the traffic stop. The witness

indicated that he had last seen the pistols the month before the burglary, and that he

believed no one else in the house had known where to find the key to the box.

Finally, he testified that all three firearms and the box were missing from the

residence after the burglary. 

Roland argues that due to the length and thoroughness of the search conducted

for the missing pistol, the district court’s determination that he possessed the third

firearm—one of the pistols—was clear error. Police personnel conducted several

searches of the area, utilizing canines and even partly dredging a nearby pond, but

could not find the missing firearm. We disagree that this evidence conclusively rules

out the possibility that the third firearm was stolen by him or Eskridge. The district

court clearly found the victim’s testimony to be credible. It would be improper for

us to weigh the victim’s testimony against the other evidence to which Roland directs

us. There is no clear error in the district court’s conclusion.

2. “Crime of Violence”

Roland next challenges the district court’s determination that his prior

conviction for burglary from 1996 was for a “crime of violence” pursuant to

U.S.S.G. §§ 2K2.1(a)(4)(A) and 4B1.2(a), and contends that the base offense level

of 20 was therefore incorrectly calculated. We review the district court’s

determination de novo. United States v. Perez-Vargas, 414 F.3d 1282, 1284 (10th

Cir. 2005).
13

“When determining whether a prior conviction is a crime of violence, the

Supreme Court has instructed sentencing courts to take a formal categorical

approach, looking only to the statutory definitions of the prior offenses, and not to

the particular facts underlying those convictions.” Id. (internal quotation marks

omitted). The Missouri statute under which Roland was convicted in 1996 defines

the crime of first degree burglary in pertinent part as “knowingly enter[ing]

unlawfully or knowingly remain[ing] unlawfully in a building or inhabitable

structure for the purpose of committing a crime therein.” Mo. Rev. Stat. § 569.160

(1979).

An “inhabitable structure” under Missouri state law includes “a ship, trailer,

sleeping car, airplane, or other vehicle or structure [w]here any person lives or

carries on business or other calling.” Id. § 569.010(2). Under the Sentencing

Guidelines, however, only the offense of burglary of a “dwelling” is a crime of

violence. U.S.S.G. § 4B1.2. Under our precedent, a “dwelling” is “any ‘enclosed

space that is used or intended for use as a human habitation.’” United States v.

Rivera-Oros, 590 F.3d 1123, 1132 (10th Cir. 2009) (quoting Black’s Law Dictionary

582 (9th ed. 2009)). Thus, the state statute at issue defines “burglary” more broadly

than does federal law, and as such it encompasses violent and non-violent crimes.

When the statutory count of conviction is ambiguous because it encompasses

violent and non-violent crimes alike, the court looks beyond the statute to the

charging document or other court records of comparable reliability and any
14

admissions the defendant made regarding the facts of his prior convictions.

Perez-Vargas, 414 F.3d at 1285. At sentencing, the government bears the burden of

proof to show that the defendant’s prior conviction was one for a “crime of

violence.” United States v. Rice, 52 F.3d 843, 848 (10th Cir. 1995). 

At sentencing, the government introduced the plea colloquy between the state

court judge and Roland from the February 5, 1996 sentencing hearing. In this

transcript, the burglarized building at issue was referred to as a “house” or a

“residence” at least twelve times. R. Vol. 2 at 191. However, Roland himself

apparently never referred to the building as a “residence”; only a “house.” Roland

reads Shepard v. United States, 544 U.S. 13 (2004), to hold that only statements that

a defendant made or ratified can be considered in determining the type of crime for

which he has a prior felony conviction. Roland therefore argues that the record is

ambiguous as to whether the structure in question was a dwelling or a house with a

business or something else in it that would qualify as an “inhabitable structure” but

not a “dwelling.”

We find this argument to be somewhat disingenuous. “House” and “residence”

are synonymous and both mean “dwelling.” See Black’s Law Dictionary 807 (Brian

Garner ed., 9th ed. 2009) (defining “house” as a “home, dwelling, or residence”); id.

at 1423 (defining “residence” as a “house or other fixed abode; a dwelling”). In

addition, Shepard cannot fairly be read as indicating that the specific relevant word

in the plea colloquy must come from the defendant himself. It is sufficient if the
4

 Another panel of this Court has reached the same conclusion in United States

v. Wright, 166 F. App’x 393, 395-96 (10th Cir. 2006) (unpublished table decision).

The decision is not binding on this panel, but we agree with its reasoning.

5

 We note that resolving this issue would have been significantly easier had

counsel included a copy of the transcript of this plea colloquy in the record on

appeal.

15

factual basis for the plea is summarized by another party—an attorney for the

defense or the government, or the court—and then confirmed by the defendant. There

is no requirement that the factual basis be stated in a defendant’s own words.4

 We

agree with the district judge below, who noted that “if the Judge was talking about

him [the defendant] burglarizing a residence and it wasn’t a residence, he would have

said something to that effect.” R. Vol. 2 at 194.

 Roland objects that because the government bears the burden of proving

enhancements in the 2009 sentencing hearing, it was improper to place the burden

on him to object to the word “residence” in the 1996 sentencing hearing. One issue

has nothing to do with the other. The United States’ burden in the instant case does

not affect the fact that Roland allowed the judge to think it was a “residence” at the

1996 hearing. Therefore, we find there was ample evidence in the record to support

the district court’s determination that Roland had a prior felony conviction of a crime

of violence.5
16

Based on the foregoing, we AFFIRM the judgments of the district court as to

both Eskridge and Roland.

Entered for the Court,

William P. Johnson

United States District Judge