**UNPUBLISHED** UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 10**  **- 4377** 

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,
v. MARTIN SIMMONS, a/k/a Travis Green, a/k/a Marty Raashan Simmons, a/k/a Marty, a/k/a Martin Raashan Simons, a/k/a Martin Rahshan Simons , Defendant

- Appellant.

Appeal from the United States District Court for the District of South Carolina , at Charleston
. Patrick Michael Duffy , Senior District Judge. ( 2:09

- cr - 00467

- PMD

- 1 )
Argued : May 13, 2011 Decided: July 5, 2011

Before MOTZ, DAVIS, and KEENAN , Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished opinion. Judge Keenan wrote the opinion , in which Judge Motz and Judge Davis joined.

**ARGUED:** John Robert Haley, OFFICE O F THE FEDERAL PUBLIC DEFENDER, Charleston, South Carolina, for Appellant. Sean Kittrell, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. **ON BRIEF:** William N. Nettles, United States Attorney, Columbia, South Carolina, for App ellee.
Unpublished opinions are not binding precedent in this circuit.2 KEENAN, Circuit Judge: Martin Simmons was convicted, upon his plea of guilty, of one count of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922 (g)(1), 924(a)(2), and 924(e). When entering his guilty plea, Simmons reserved his right to appeal the district court’s denial of his motion to suppress evidence of the firearm. Th e district court s entenced Simmons to a term of 110 months’ imprisonment. On appeal, Simmons argues that the district court erred : 1) in denying his motion to suppress ; and 2) in applying a four

level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6) . We conclude that the district court did not err in denying Simmons’ motion to suppress and , therefore, affirm Simmons’ conviction. However, because we conclude that the district court erred in applying the sentencing enhancement, we vacate Simmons’ sentence and remand th e case for resentencing
.

I. A.
A round 4:28 a
. m . on Febr uary 14, 2009, a “dispatch” issued by the police department of the City of Charleston , South Carolina, ale rted officers on duty about reports of gun fire occurring at the corner of Hanover and Amherst Streets. Officer Flaherty , who first responded to the s cene, w alked around the3 area and reported by radio to Officer Michael Moody and Officer Vachowski that Flaherty did not observe any individuals in the

area . 1 Around the same time, Officer Moody and Officer Vachowski were driving south on Nassau Street, h eaded toward the intersection of Nassau and Amherst Street s . The police officers observed Simmons and another man walking quickly, turning from Amherst Street onto Nassau Street in a northbound direction
. At that time, Simmons and his companion were loca ted about one block from the area where the gun fire reportedly had occurred
. Officer Moody considered th is location as being a “high crime”

area. Officer Moody and Officer Va chowski approached Simmons and his companion
. Officer Moody told the men about the reports of
gun fire and asked , “ D id you guys happen to hear anything?” Simmons nodded his head , and stated that he was leaving the area because he had heard the gunfire
. Officer Moody asked Simmons whether he was carrying any weapons , and Simmons repl ied that he was not . When Officer Moody asked Simmons if he could conduct “a quick pat down for
weapons , ” Simmons agreed
.

1 The recor d does not reflect the first names of Officer Flaherty and Officer Vachowski.4 As Officer Moody began conducting a pat

- down search of Simmons’ pants , Simmons leaned the right side of his body against a building , thereby preventing Officer Moody from feeling Simmons’ right side. To reposition Simmons’ body, Officer Moody placed his hands on Simmons’ hips.
As Officer Moody’s left hand moved across the front of Simmons’ hips, Officer Moody felt an object in Simmon s’ right front pocket and sensed that the object was a firearm
. When Officer Moody asked, “Hey, what [is] this?” Simmons ran away . Officer Moody chased Simmons along Amherst Street
. After Officer Moody observ ed Simmons reach into hi s right pocket and thr ow a metallic object onto the ground while continuing to run , Officer Moody reported by radio to Officer Flaherty t hat Simmons was running toward Officer Flaherty
. Simmons eventually was apprehended by Officer Flaherty and another police officer. The pol ice officers recovered the metallic object that Simmons discarded , which they identified as a .357 caliber revolver . The firearm contained two spent rounds of ammunition , and four unspent rounds of ammunition
. The police officers also found additional am munition in side Simmons’ pockets.
B. In April 2009, a grand jury indicted Simmons on the single count of possessi on of a firearm by a convicted felon. Simmons filed a motion to suppress evidence of the firearm , arguing that5 the police seized the weapon a s a result of an unlawful seizure of his person in violation of the Fourth Amendment. The district court denied Simmons’ suppression motion , holding that the police officers had reasonable suspicion to stop and frisk Simmons pursuant to Terry v. Ohio , 392 U.S. 1 (1968) . The district court alternatively concluded that Simmons consented to the stop and frisk. Following Simmons’ guilty plea and conviction, a probation officer prepared a presentence report (PSR) recommend ing that Simmons receive a two

- level enhancement under U
. S . S . G . § 3C1.2 for reckless endangerment during flight , and a three

- level downward reduction under U
. S . S . G . § 3E1.1 for acceptance of responsibility
. The government objected to the PSR, arguing that instead of a two

- level enhancement f or obstruction of justice, Simmons should receive a four

- level enhancement under
U . S . S . G . § 2K2.1(b) (6) for possessing a firearm in connection with another felony
. 2

2 According to the government, Simmons possessed the firearm in connection with two felony offenses under South Carolina law: discharging a firearm at or into a dwelling in vio lation of South Carolina Code § 16

- 23

- 440 , and pointing a firearm at any person in violation of § 16

- 23

- 410. However, because the district court did not apply an enhancement based on either of these two offenses, we do not address whether they would have been applicable in the present case.6 At the sentencing hearing, t he district court concluded that Simmons qualified for a four

- level enhancement under
U . S . S . G . § 2K2.1(b) (6) , finding that Simmons possessed a firearm in connection with another felony, namely, resisting arrest with a deadly weapon. The resulting offense level of 25, when combined with a criminal history category of VI, yielded a guidelines range of 110 to 120 months’ imprisonment. Based on this guidelines range, the district court sentenced Simmons to a term of 110 months’ imprisonment.

II. A. We first consider whether the district court erred in denying Simm ons ’ motion to suppress evidence of the firearm
. We review the factual findings underlying the district court’s denial of the motion to suppress for clear error , and the
court’s legal conclusions de novo. United States v. Blake , 571 F.3d 331, 338 (4th Ci r. 2009). A factual finding is clearly erroneous if this C ourt “on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Harvey , 532 F.3d 326, 33 7 (4th Cir. 2008) (internal quotation marks omitted). When the district court has denied a motion to suppress, we construe the evidence in the7 light most favorable to the government. United States v. Farrior , 535 F.3d 210, 217 (4th Cir. 2008). Simmons contends that the police officers unlawfull y seized him at the time that they initially approached and questioned him and his companion. According to Simmons, the police officers lacked reasonable suspicion to conclude that he was engaged in criminal activity. A person is seized for purposes of t he Fo urth Amendment when a police officer, “ by means of physical force or show of authority , ” restrain s that person’ s freedom of movement. United States v. Mendenhall , 446 U.S. 544, 553 (1980) ; see Terry , 392 U.S. at 19 n. 16
. Conversely, a voluntary enco unter between the police and a citizen does not constitute a seizure prohibited by the Fourth Amendment. See Florida v. Bostick , 501 U.S. 429, 434 (1991). Thus, even when police officers do not have a reasonable suspicion that an individual may be engage d in criminal activity, they may approach that person and ask questions without violating the Fourth Amendment. See id. at 435; United States v. Lewis , 606 F.3d 193, 197

- 98 (4th Cir. 2010). The Supreme Court has acknowledged that most individuals will f eel obligated to respond when asked questions by a police officer, but has held that this fact alone will not convert a consensual encounter into a seizure. I NS v. Delgado , 466 U.S.8 210, 216 (1984). The Court has explained that a contrary conclusion woul d create constitutional barriers to everyday encounters between the police and individual citizens, imposing unrealistic burdens on “a wide variety of legitimate law enforcement practices.” Mendenhall , 446 U.S. at 554. Thus, the Supreme Court has conclud ed that an encounter between the police and a citizen does not constitute a seizure unless, taking into account all the circumstances of the encounter, “a reasonable person would . . . believe[] that he was not free to leave.” Id. If the person being que stioned by the police objectively “remains free to disregard the questions and walk away,” there is no demonst rable restriction on the person’ s liberty and the encounter does n ot result in a seizure. Id. Some factors that might indicate the occurrence of a seizure include the threatening presence of several police officers, their display of weapons, a physical touching of the person to whom the questions are directed, and the use of language indicating that compliance with the police request is required. Id. ; United States v. Perry , 560 F.3d 246, 253 (4th Cir. 2008). Upon review of the present record, we conclude that the evidence supports the district court’s conclusion that the police officers’ initial encounter with Simmons was consensual. At the b eginning of the encounter , Officer Moody and Officer9 Vachowski merely approached Simmons and his companion on a public street and asked whether they had heard gun fire
. When Simmons replied that he had heard gun fire and w as walking away from the area for t hat reason , Officer Moody asked Simmons if he was carrying a weapon. Simmons volunta rily responded t hat he

was not . The police officers did not tell Simmons that he was required to stay and answer their questions, and Simmons did not make any attempt to leave. Th e evidence refutes Simmons’ contention that the only reason he was stopped was “because he was a black man walking in a predominantly black neighborhood,” about 4:30 a.m. Based on the officers’ testimony, which the district court accepted, Offi cer Moody and Officer Vachowski ap proached Simmons and his companion in furtherance of their investigation of the reported gunfire in that area. Simmons responded freely to Officer Moody’s questions and did not express any reluctance to speak with him . T hus, considering all these circumstances , the initial encounter between the officers and Simmons was consensual and did not constitute a seizure of Simmons’ person, because the record failed to show t hat “a reasonable person would . . . believe[] that he w as not free to leave. ” See Mendenhall , 466 U.S. at 554. Simmons argues, nonetheless , that his motion to suppress should have been granted because the evidence failed to support10 the district court’s finding that Simmons initially consented to the pat d own of his person. Simmons ’ argument, however, fails to acknowledge that Officer Moody testified that Simmons agreed
to a “ brief pat down ” for weapons. It was only when Simmons leaned the right side of his body against a building and Officer Moody attemp ted to reposition him, that Simmons exhibited a reluctance to act in accord with his initial consent. Simultaneo u sly with this attempted repositioning, Officer Moody felt the object in Simmons’ pocket that Moody thought was a firearm
. A lthough Officer M oody acknowledged that a suspect’s act of leaning in one direction before a pat

- down search “usually” is inconsistent with consen t , the district court nevertheless found that Simmons “was hoping to get beyond the moment. He was talking on the phone. He p ostured himself in a way that perhaps the pistol wouldn’t be found. But when it was, he was prepared to run.” Thus, the district court found “ it credible that the officer said that [Simmons] gave consent, but upon finding the pistol, [Simmons] fled.” Ac cordingly , based on this record, the district court’s factual finding that Simmons consented to the pat

- down search prior to fleeing from the officers is not clearly erroneous. We further observe that once Officer Moody felt on Simmons’ person an object Of ficer Moody thought was a firearm and Simmons11 immediately ran away from the officers , the officers had , at minimum, reasonable suspicion to detain Simmons for further investigation
. See Terry , 392 U.S. at 30 . When Simmons was observed to discard the fire arm during the officers’ ultimately successful effort to apprehend him, he abandoned any residual expectation of privacy he may have harbored in respect to his possession of the firearm. Thus, we hold that the district court did not err in denying Simmons ’ motion to suppress evidence of the weapon discarded by Simmons at the scene of the crime
. B. The next issue we consider is whether the district court erred in applying a four

- level sentencing enhancement under
U . S . S . G . § 2K2.1(b)(6). A district court ’s determination that such an enhancement is applicable is a factual finding , which we review for clear error
. United States v. Carter , 601 F.3d 252, 254 (4th Cir. 2010). Section 2K2.1(b)(6) provides for a four

- level enhancement if a defendant “used or possessed any firearm or ammunition in connection with another felony offense.” U . S . S . G . § 2K2.1(b)(6)
. Before applying the enhancement , a district court
must conclude that the defendant committed a separate felony offense. See United States v. Bloun t , 337 F.3d 404, 406

- 07 (4th Cir. 2003). In this case, the district court applied the §12 2K21.1(b)(6) enhancement based on the court’s conclusion that Simmons had “resist [ed] arrest with [ a ] deadly weapon ,” an offense that is a felony under South Carolina Code § 16

- 3

- 625
. To determine whether Simmons committed a felony offense under South Carolina Code § 16

- 3

- 625, we examine the express language of th at statute. Th e statutory language defines “resisting arrest with [a] deadly weapon” as “resist[ing] the lawful efforts of a law enforcement officer to arrest [the defendant] or another person with the use or threat of use of a deadly weapon against the officer , and the [defendant] is in possession or claims to be in possession of a deadly weapon .” S.C. Code § 16

- 3

- 625. According to Simmons, the act of discarding a weapon while fleeing from police officers is not sufficient to establish that he “use[d]” or “threat[ened] to use” a dangerous weapon within the meaning of § 16

- 3

- 625
. The government contends, however, that Simmons “used” a dangerous weapon by retrieving the loaded firearm from inside his pants pocket and discarding it
. We disagree with the government’s position
. Although the terms “use” and “threat of use” are not defined in South Carolina Code § 16

- 3

- 625 , we interpret th ose terms based on their plain meaning and the context in which the y
are employed
. See United States v. Groce , 3 98 F.3d 679, 681 (4th Cir. 2005 ). The language of the statute requires that a13 person “ use , ” or make a “threat of use,” of a deadly weapon “against” a law enforcement officer. S.C. Code § 16

- 3

- 625. The evidence in this case show ed that Simmons was not holding the weapon in his hand when he was confronted by the officers. Instead, after the police officers appr oached Simmons, Officer Moody conducted a pat

- down search of Simmons’
person , feeling what Moody thought was a weapon in Simmons’ front right pocket
. When Simmons fled from the police , the
weapon remained in his pocket. As he was running away, Simmo ns reached into his pocket and discarded the weapon . T h is evidence does not show that Simmons , by discarding the
weapon , “used” the weapon , or made a “threat of use” of the
weapon , to impede Officer Moody’s pursuit or to defend “ against ” the officer s ’ att empt to capture him
. Thus, w e conclude that Simmons’s “use” or “threat of use” of the weapon , if any, did not constitute a “use” or “threat of use” “against” a law enforcement officer , as required by the plain language of the
statute . Accordingly, we hol d that Simmons did not “resist[] arrest with [a] deadly weapon , ” as prohibited by South Carolina Code § 16

- 3

- 625, and that the district court clearly erred in applying the § 2K2.1(b)(6) enhancement based on the court’s contrary conclusion that Simmons comm itted a felony offense under that statute
.14 III. For these reasons , we affirm Simmons’s c onviction, but we
vacate his sentence . We remand the case to the district court for resentencing.
A FFIRMED IN PART, VACATED IN PART , AND REMANDED