UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished 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 OF 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 Appellee.

Unpublished opinions are not binding precedent in this circuit.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. The district court sentenced 

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 fourlevel 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 the case for resentencing. 

I.

A.

Around 4:28 a.m. on February 14, 2009, a “dispatch” issued 

by the police department of the City of Charleston, South 

Carolina, alerted officers on duty about reports of gunfire

occurring at the corner of Hanover and Amherst Streets. Officer

Flaherty, who first responded to the scene, walked around the 
3

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, headed toward the 

intersection of Nassau and Amherst Streets. 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 located about one 

block from the area where the gunfire reportedly had occurred. 

Officer Moody considered this location as being a “high crime” 

area.

Officer Moody and Officer Vachowski approached Simmons and 

his companion. Officer Moody told the men about the reports of 

gunfire and asked, “Did 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 replied that he was not. When Officer 

Moody asked Simmons if he could conduct “a quick pat down for 

weapons,” Simmons agreed.

 1 The record 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 Simmons’ 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 observed Simmons reach into his right pocket and 

throw a metallic object onto the ground while continuing to run, 

Officer Moody reported by radio to Officer Flaherty that Simmons 

was running toward Officer Flaherty. Simmons eventually was 

apprehended by Officer Flaherty and another police officer. 

The police 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 ammunition inside Simmons’ pockets. 

B.

In April 2009, a grand jury indicted Simmons on the single 

count of possession of a firearm by a convicted felon. Simmons 

filed a motion to suppress evidence of the firearm, arguing that 
5

the police seized the weapon as 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) recommending 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 for 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 violation 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, the 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 Simmons’ 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 Cir. 2009). A factual finding is clearly 

erroneous if this Court “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, 337 (4th Cir. 2008) 

(internal quotation marks omitted). When the district court has 

denied a motion to suppress, we construe the evidence in the 
7

light most favorable to the government. United States v. 

Farrior, 535 F.3d 210, 217 (4th Cir. 2008). 

Simmons contends that the police officers unlawfully 

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 the Fourth Amendment 

when a police officer, “by means of physical force or show of 

authority,” restrains 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 encounter 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 engaged 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 feel 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. INS v. Delgado, 466 U.S. 
8

210, 216 (1984). The Court has explained that a contrary 

conclusion would 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 concluded 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 questioned by the police objectively 

“remains free to disregard the questions and walk away,” there 

is no demonstrable restriction on the person’s liberty and the 

encounter does not 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 beginning of the encounter, Officer Moody and Officer 
9

Vachowski merely approached Simmons and his companion on a 

public street and asked whether they had heard gunfire. When 

Simmons replied that he had heard gunfire and was walking away 

from the area for that reason, Officer Moody asked Simmons if he 

was carrying a weapon. Simmons voluntarily responded that 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. 

The 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, 

Officer Moody and Officer Vachowski approached 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. Thus, 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 that “a reasonable person 

would . . . believe[] that he was 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 support 
10

the district court’s finding that Simmons initially consented to 

the pat down 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 attempted to reposition him, that Simmons exhibited a 

reluctance to act in accord with his initial consent. 

Simultaneously with this attempted repositioning, Officer Moody 

felt the object in Simmons’ pocket that Moody thought was a 

firearm. 

Although Officer Moody acknowledged that a suspect’s act of 

leaning in one direction before a pat-down search “usually” is 

inconsistent with consent, the district court nevertheless found 

that Simmons “was hoping to get beyond the moment. He was 

talking on the phone. He postured 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.” Accordingly, 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 Officer Moody thought was a firearm and Simmons 
11

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 firearm 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. Blount, 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 that statute. The 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 those 

terms based on their plain meaning and the context in which they 

are employed. See United States v. Groce, 398 F.3d 679, 681 

(4th Cir. 2005). The language of the statute requires that a 
13

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 showed that Simmons was not 

holding the weapon in his hand when he was confronted by the 

officers. Instead, after the police officers approached 

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, Simmons 

reached into his pocket and discarded the weapon.

This 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 officers’ attempt to capture him. Thus, we 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 hold 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 committed a felony offense 

under that statute. 
14

III.

For these reasons, we affirm Simmons’s conviction, but we

vacate his sentence. We remand the case to the district court

for resentencing. 

AFFIRMED IN PART, 

VACATED IN PART, 

AND REMANDED