NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 08a0710n.06 F iled: Novem ber 19, 2008 No. 07-3394 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT

UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. RO BER T HOR

NE , Defendan t-Appellant. ) ) ) ) ) ) ) ) ) On Appeal from the Un ited St at e s D is tr ic t C our t fo r th e Sout he r n Di st r ic t o f Ohio

Be for e : BOG G S, C hie f Judg e , a nd M ER RI TT a nd G RI F F IN , C ir c uitJudg e s. P ER CURIAM . Def

endant- Appellant Robert Horne appea ls f rom the district court’s de nial of his mot ion

to s up pr e ss t

he e vid e nc e un de rl y ing

his ple a of g uil ty to p osses si on of a fi re a rm in further ance of a drug traff icking offe nse. Horne also appea ls the denial of his motion to withdraw his g uil ty ple a and the imp os e d s e nte nc e of 26 2 mo nth s. We h old

that po li ce off

ice rs lawf ull y

a pp ro a c he d H or

ne and se arc he d him pur su ant to his co ns e nt, and that mor e ov e r, the y ha d r e a so na

ble

s u s p i ci o n t o j ustify

a Te rry stop and frisk. We also hold that Horne ’s plea w as knowing and int e lli g e nt, and

that th e se nte nc e imp os e d b y the dis tr ic t cou

rt wa s r e a so na

ble . T he re fo re , w e a ff

ir m. I ANo. 07-3394

United States v. Horne

- 2 - Horne was a

rre sted on Octobe r 2, 2005 by Cincinnati Police O ffice rs Thomas Weig and and Eric Scha ible. The g overnme nt’s and Hor ne’s a ccounts of e vents leading up to the arr est of Hor ne dif fe r s ig nif ic antl y . Ac c or din g to O ff ic e r We ig and , o n O c tob e r 2 , 2 00 5, he and his pa rt ne r S c ha ibl e

wer e patr olling their a ssigne d neig hborhood, which Weig and cha rac terized as a hig h-c ri m e area , wher e drugtraff

icking and violent cr ime are common. Shortly afte r 1:00 am, the off

icer s approa ched

an a pa rtme nt b uil din g loc a te d at 35 01 B ur ne t A ve nu e , w hich was famili ar t o th e of fi c e rs be c a

us e of “hig h activity

in drug sales and dr

ug u s age” and the numer ous arr ests made in the building for drug - and gun-re lated offe nses. The building had “N o Trespa ssing” signs posted on it, and the owner of 35 01 B ur

ne t ha d r e qu e sted in wr iti ngthat th e Cin c inn a ti Po lic e he lp e nf or c e c ri min a l tr e sp a ss laws on his proper

ty

. The office rs observe d a g roup of pe ople standing in the bree zeway of 3501 B urnet, a

n “ar ea located at the entra

nce of the apa rtment building at 3501 Burne t A venue with a step down onto the sid e wa lk. ” Wei g and

op e ne d th e wi nd owof his c ar an d ca lle d out to the g ro up that the y ne e de d to

move on if they did not live in the building. Whil e two people stepped a way , Weiga

nd saw Hor

ne “duck[] behind one of the g irls” who re mained standing . Weiga nd interpre ted Horne ’s movement as a suspicious “attempt to concea l his person,” a nd decide d to investigate: he appr oache d Horne and asked w hether

Horne lived there , to which Horne replied tha t he did not

. Weiga

nd then aske d whether Horne had “a

ny thing” on him, to which the latter re plied, “No, you can c heck.” Weiga nd proce eded to pat down Horne , but when the of fice r’s ha nds approa ched H orne’ s waist, Horne suddenly collapsed to the g round. Off icer Schaible helpe d Weiga

nd to stand Horne up, but Hor ne kept his knees be nt. Weigand c ontinued the sea rch a nd felt a ha

rd metal objec t in Horne’s w aistbandNo. 07-3394

United States v. Horne

- 3 - that he thoug ht was a gun. Weiga nd handcuf

fed H orne, a

nd remove d the g un, a .38-ca liber Charte r Ar ms r e vo lve r w ithfi ve liv e ro un ds , a nd ano the r l ive ro un d h e fo un d in Ho rn e ’s le ft pa nts po c ke t. Ho rn e wa s r e a d h is Miranda ri gh t s an d t ra n s p o rt edt o t h e p o l i ce v eh i cl e. I na v i d eo t ap edex ch an ge inside the car , the office rs questioned Horne about the g un. Horne said he boug ht it on the street for $4 0 f or pr ote c tio n. Duri ng a se arc h inc ide nt to Hor ne ’s bo ok ing , s e pa

rate a mou nts of c oc a ine ba se

wer e found in his rig ht sleeve shirt poc ket and his shoe. On c ross-examination, Weigand stated that wh e n h e a sk e d th e g ro up ou tsi de 35 01 B ur ne t if the y liv e d th e re , “ [n]ob od

y ans we re d, ” that he did not know whether

any of the individuals wer e tre spassing , and th at h e did not ask anyone for identification. Horne ’s ver sion of event diff ere d from Weig and’s. Ac cordi n g t o Ho rne, he was standing with his girlfr i en d or ex-g irlfriend, Tisha Br adley , outside the building, in which he lived. He claimed that the a ddress of the building wa s 3101 Bur net, that Br adley

lived in Apartment 8, a

nd that his name was on the l ease . Horne explained that he was outside the bui lding because he wa s waiting for a pizz a delivery

with Tisha Br adley , and they rema ined outside afte r the de livery beca use Horne

was wa iting for a “ride ” to ta ke him to his mother ’s house. When a Cincinnati Police c ruiser pulled up, Offic er Weig and left the vehicle, came up to H orne dire ctly and plac ed him in handcuf fs. Horne testified that Weiga

nd did not ask or say any

thing. Horne denied that he tried to hide behind another person a nd he denie d consenting to the s ea rc h or doubling over dur ing the sear ch. He could not

rec a ll that he wa s g ive n h is Miranda r ig h ts o r th a t h e ma d e an y

s tate me n ts r e g ar d in g h is f ir e a r m. On cr oss-examination, Horne restate d that he wa s living at 3101 B urnet Ave nue, Apa rtment 8, and that his name “ is on the paper work.” When the court pointed out that the a d d re s s o f t heNo. 07-3394

United States v. Horne

- 4 - building in front of which the arrest t ook place was 3501, Horne stated that he meant 3501. When the g overnme nt indicated that B radle y is list ed as a resident at 3501 Burne t, Apartment 17 , and that Horne ’s name is not on the tenant list, Horne seeme d to indicate that Br adley was livin g i n t hat apar tment before the two “g ot toge ther,” and that his name is on the paperw ork for Apar tment 8. When a sked why he went downstairs to r ece ive his pizza w ith a g un and cra ck coca ine on his person, Ho rn e re sp on de d tha t th e g un wa s f or pr ote c tio n, and

tha t he “ did no t take no c ra c k d ow n w ith[him ] to ge t no pizz a.” He further explained that he was waiting for a ride to take the pizza to his mother, who worke d a late shift. Hor n e cl ai m ed t hat he did not re member making a ny statements to the police about hi s g u nan d s tate d th a t “ d id

n ’ t g e t t h e g u nf o r n o $ 4 0

. ” H e r e me mb e r e d the

conver sation howeve r, whe n confr onted with a videotape of his statement about the gun. B O n D e c e mb e r 3 , 2 0 0 3 , H o r n e w a s c h ar g e d w i t h : C o u n t 1 , P o s s e s s i o n w i t h t h e I n te nt t o Distribute Co ca i n e Ba se, in violation of 21 U.S.C. §841(a)(1) and §841(b) (1)( C); Count 2, Posse s s io n o f a F ir e ar

m a s a Co n v ic te d F e lo n , in v io lati o n o f 1 8 U

. S. C. § 9 2 2 ( g ) ( 1 ) ; an d Co unt 3, Pos se s s i o no f

a F i r e ar m i nF u rt h e r an c e o f

a D r u g T r a f f i c k i n g O f f e n s e , i nv i o l a t i o no f

1 8 U. S.C. §924(c) (1). Hor

ne filed a motion to suppress evidenc e, which w as denie d on April 5, 2006, afte r

a he ari ngon

Ap ri l 4, 20 06 . O n Apr il 11, 20 06 , H or ne e nte re d a

c on dit ion a l g uil ty

ple a to C ount 3 of the Indictment, reta ining his rig ht to appea l the denial of the motion to s uppress. Hor ne filed a pr o s e mot ion

to w ith dr aw guil ty

ple a on June 28 , 2 00 6, wh ic h he wi thd re w a ft e r a

he ari ngon

July 26. Horne filed a se cond motion to withdraw g uilty plea on January

5, 2007, which wa s denied on J anuar y 10. A t hird motion to withdraw was denied at t he sentencing hear ing. On Marc h 27, 2007,No. 07-3394

United States v. Horne

- 5 - Horne was sente nced to a 262-month term of imprisonment followed by fi ve year s of supervise d rele ase. II When we re view a district c ourt' s suppression deter mination, “we r eview f

indings of fac t for clea r er ror, a nd leg al conc lusions de novo.” United States v. Moon , 513 F.3d 527, 536 ( 6th Cir. 2008). “When considering the denial of a suppression motion, we must view the evidenc e i n the light most favor able to the g overnme nt.” Un ite d Sta te s v . M on tgo me ry , 377 F.3d 582, 585 ( 6th Cir. 2004). I n his appea l, Horne a rg ues that off

icer s did not have rea sonable suspicion to stop a nd sear ch him. As the district court points out, there ar e thre e kinds of enc ounters that ca n occur betwee n the police and c it i z en s: consensual e ncounter s, investigative Te rry stops, and arr ests. I f Horne had

vo lun tari ly

c on se nte d to the se arc h, “ we need not inq uir e wh e the r t

he of fi c e rs ha d r e a so na

ble suspicion.” Un ite d S

tat es v . B ar e

fie ld , 4 9 F. Ap p ’x 4 9 7 , 5 0 0 (6 t h C i r. 2 0 0 2 ) ( ci t i n g Schnec kloth v. Bu sta mo nte , 412 U.S. 218, 219 (1973)). While in h i s t es t i m o ny Horne denied c onsenting to the

sear ch, the district court appra ised the witnesses’ cre dibilit y and cr edited Of fice r Weig and’s ve rsion of events as true. T he district cour t determined that the consent wa s voluntary , as Horne “ente red no

cre dible evidenc e int o the record showing that he was coer ced to permit” the sear ch of his person. I n v iew of

the nume ro us inc on g ru iti e s in Ho rn e ’s te sti mony , th e dis tr ic t c ourt ’s c on c lus ion is

rea sonable. As the Supre me Court unambig uously stated, “when a trial judge ' s finding is based on his decision to cre dit the testimony of one of

two or more w itnesses, ea ch o f wh o m h as told a coher ent and f

acia lly plausible story

that is not contra dicted by extrinsi c evidenc e, that finding , if notNo. 07-3394

United States v. Horne

- 6 - internally inconsistent, c an virtually never be cle ar e rror .” An de rso n v. City of B esse me r Ci ty , 470 U.S. 564, 575 (1985). Moreove r, t he officer s did have re asonable suspicion to support a Terry stop. Under Te rry

v . O hio , 3 92 U. S. 1 (1 96 8) , a br ie f d e te nti on

to i nv e sti g a te su sp ic iou s c ir c ums tanc e s is wa rr ante d if “a la w enf orce ment office r lac ks probable c ause, b ut p o s s e s s e s a r easona ble and a rticulable suspicion that a per son has bee n involved in c riminal activity .” United States v. Foster , 376 F.3d 577, 584- 85 (6th Cir. 2004) (citations omitted). “An investigative detention is pe rmissible w hen it is based upon ‘spec ific and articula

ble facts which, taken toge ther with rational infere nces f rom those fa cts,’ g ive ri se to a re a so na ble su sp ic ion

tha t th e ind ivi du a l is , wa s, or is a bo ut to be e ng a g e d in c ri min a l a c tiv ity

. . . . I n r e vie wi nga

c ha lle ng e d inve sti g a tiv e sto p, ‘t he tot a lity

of the c ir c ums tanc e s –

the wh ole p ic tu r e – mu s t b e ta

k e nin to a ccount.’ ” Id

. at 5 8 5 (c i t at i o n s o m i t t edi no ri gi n al ) ( qu o t i n g United Sta te s v . H ur st , 228 F.3d 751, 756 ( 6th Cir. 2000)). The office rs had rea sonable suspicion to just ify a Te rry sto p o n th e ba sis of

se ve ra l “ sp e c if

ic and articula

ble fac ts,” which the district court identifies. F irst, “the ar ea is a hot spot for drug and g un activity ” – so much so that the owner of 3501 Bur net Avenue reque sted in w riting that the police assist in enforc ing cr i m i nal trespa ssing law s on his property . Second, it was late at nig ht. Third, Ho rn e “ a c te d s tr ang e ly

by du c kin g be hin d o ne of

the fe ma le s in the br e e zew ay .” Un de r t he tot a lity of the c ircumstance s standard, “[e] ven if eac h specific fac t relied upon by the authorities to make a Te rry stop would not be a basis for suspicion when considered in isolation, the re asonable suspicion

nece ssary to support an investig atory stop can still be found whe n it is base d upon an asse ssment of all circ umstances surr ounding the actions of a suspected wrongdoe r . . . .” Un ite d S tat es v . G ar

za ,No. 07-3394

United States v. Horne

- 7 - 10 F .3 d 1 24 1, 12 45 (6 th C ir . 1 99 3) (i nte rn a l qu otatio n ma rk s o mit te d) . We hav e fo un d r e a so na ble suspicion in factua lly

simil ar c ases. See, e .g., United States v. Finley , 239 F . App ’x 24 8, 25 2 ( 6th Cir. 2 0 0 7 ) ( f

in d in g r e a s o n a

b le s u s p ic io n o n th e b a s is o f th e c r im e - r id d e n c h ar a c te r o f the ar ea, another office r’s repor

t of males loitering in inc lement weather, a nd suspicious behavior of two men in a pa rk e d c ar, wh o s lum

pe d d ow n in

the ir se a ts t o avo id b e ingse e n) ; Un ite d Sta tes v . M c Gu ire , 258 F. App’ x 749 (6th Cir. 2007) (pe r cur iam) (f inding rea s o n ab l e s u s p icion on the basis of the la te ne ss o f t

he ho ur , a re c e nt s e ri e s of c ri me s in the are a , and the su sp e c ts’ sittin g in a ve hic le wi th the head l i gh t s and eng ine turned of f at the e nd of a longdrivewa y to a private residenc e). Ac c or din g ly , e ve n if

Ho rn e did no t c on se nt, of fi c e rs ha d re a so na

ble su sp ic ion to i nv e sti g a te a nd , in view of the place , time, a

nd behavior of the suspect, Weig and wa s not unreasona ble in conducting a pat- down. III As the iss ue was rai sed at tr ia l le ve l, w e re vie w t he de nia l of

the de fe nd ant’ s mo tio n to withdraw his g uilty

plea de novo. Un ite d S

tat es v . B e v e rly , 369 F.3d 516, 536 ( 6th Cir. 2004). Horne has filed thre e motions to withdraw his guilty plea, all of which rested chief ly on the

c la im that H or

ne wa s mi sin fo rm e d b y

c ouns e l w ithre g ard

to t he se nte nc e he wo uld

be fa c inga s a conseque nce of

so pleading . I n particula

r, Horne ’s first counse l informed Hor ne that he w as fa cing

a sentenc ing rang e of twelve to f ifteen y ear s. Howeve r, af ter the Pre sentenc e Investig ation Report (PSI ) was prepa

red, it beca

me evident that as a result of Horne ’s caree r offender status, he fa ced a term of imprisonment ra

ng ing f rom 360 months to li fe.No. 07-3394

United States v. Horne

- 8 - I ti s w e l l s e t t l e d

t h a t“ [a ] gu i l t y

p l e a i s v a l i d o n l y i f t h e d e f e n d an tkn o w i n g l y , i n t e l l i g e n t ly and voluntarily

waives the many

constitutional rights assoc iated wit h a cr iminal trial . . . and has ‘suffic ient awa

rene ss of the rele vant circ umstances and likely conseque nces’ of the plea .” United States v. Taylor , 2 8 1 F. Ap p ’x 4 6 7 (6 t h C i r. 2 0 0 8 ) ( ci t i n g B o yk i n v. A l abama , 395 U.S. 238, 243 (1 96 9) ; Brady v. U

nited States , 397 U.S. 742, 748 (1970)). We h a ve pr e vio us ly

c on sid e re d s itu a tio ns , in wh ic h d e fe nd ants so ug ht t o w ith dr aw guil ty pleas on the g rounds of ignor ance with r eg ard to the likely sentenc e. In Un ite d S

tat es v . Co ntr e ra sA rm e n d ar iz , we r ejec ted a similar cla im that the defe ndant’s g uilty plea wa s not knowing or voluntary beca use he mist akenly

believed his c riminal history cate g ory was lowe r than it was ultimately

deter mined to be. 207 F. App’x 594, 596-97 (6th C ir. 2006). The plea wa s knowing and intelligent beca

use the district c ourt “re viewed the rig hts that Contre ras was waiving , the fa ctual and le g a l natur e of

the of fe ns e s w ithwh ic h h e wa s c ha rg e d, and the po te nti a l se nte nc e s h e fa c e d a s a

re su lt o f t he g uil ty ple a ,” and

be c a us e Con tr e ra s pr e se nte d “ no fa c tua l ba sis up on wh ic h to d isp ute the probation officer ' s final ca lculation” of his cr iminal hist ory cate g ory . Id. at 596. I n United States v. Hodge , we considered a challeng e to the denia l of a motion to withdraw, based on the district court’s fa ilure to advise de fenda nt at the plea he aringof the amount of monetary loss to be used to calc ulate his offe nse leve l under the G uid el i n es . 259 F.3d 549 ( 6th Cir. 2001). Hodg e ar g ued that this failure rende red his plea not knowing or intellige nt. I n aff irming, w e made clea r that “the district court nee d no t i d en t i fy a par ticular sente ncing rang e under the Guidelines when a cce pting a

g uilty plea a s long a s the d ef

en d an t is made aw are of the maximum potential sentenc e” a

nd t h e fact that the district cour t could exercise its discre tion in im posing a sentenc eNo. 07-3394

United States v. Horne

- 9 - under the statutory maxi mum (and, at the t ime, within the s entenc ing rang e of the Guidelines). Id.

a t 55 3- 54 (c itatio n o mit te d) . A lth ou g h H od g e ’s c la im hin g e d on an a lle g e d f a ilure of the c ourt to

c omp ly wi th F e de ra l Rul e 11 duri ng the c oll oq uy wh ile Ho rn e a ttr ibute s his mis take n b e lie f t o h is counsel, the sa

me level of

awa rene ss is necessa

ry and suff icient t o make a

plea knowingand intelligent in either

situation. Horne was made awa

re of the same fac tors that wer e decisive in de termining that the pleas in Con tre ra s-

Ar me nd ar iz and Hodge we re kn ow ingand int e lli g e nt. Th e ple a a g re e me nt c or re c tly informed Hor

ne about the ma x imum potential sentence a nd the mandator

y minimum

. I t d id not g uara ntee Hor ne any particul ar s en t ence , stating only that the offe nse to which Hor ne is pleading g uilty “ca rries a maxi mum penalty of up to life imprisonment with a mandatory minimum term of imprisonment of five (5) y ear s . . . .” The ple a ag ree ment also stated that the Guide lines were advisory and not binding on the court. F inally , the plea a g ree ment stated: “[S] entenc ing guideline sti pu la tio ns and

re c omm e nd a tio ns se t f

or th .

. . do no t in c lud e any ma tte rs re g ard ing[de fe nd a nt’ s] criminal history

cate g ory which will be deter

mined by the Court a fter a pre -sentenc e investig ation. The de fenda

nt fully understands that afte r investigation a nd revie w, the Court may deter mine that the offe nse fa ctors and r ecommenda tions as outlined previ o u s l y are not appropriate and is not obligat ed t o ac cept suc h. I n that event, the de fenda nt fully understands that he shall not have the rig ht to withdraw his g uilty plea.” Any mistaken belief H orne ma y h av e h ar b ored a s a re sult of misl eadinginformation from his counsel at the time of e ntering the plea w as re medied at the ple a coll oquy . During the plea colloquy , the district court c lear ly informed Hor

ne of the conditions and conseque nces of his plea.No. 07-3394

United States v. Horne

- 10 - The c o u rt i n fo rm edHo rn e ab o u tt h e m ax i m u m p o t en t i al p en al t y o f l i fe i mp ri s o n m en t , t h e m an d at o ry minimum penalty

of five y ear s, and that the c ou rt m ust impose the mandatory minimum and may impose the maxi mum penalty ; the court asked for Horne’s confirmation of under standing of eve ry piece of information communicated. The co u rt fu rt her e nsured that Hor ne under stood that the Guidelines cr eate d a ra

ng e within which the c ourt could exercise discretion, that the Guidelines are “not mandator

y but strictly

advisory ,” a n d t hat cr

ucially , “the Court will not be able to de termine wh ic h guid e lin e a

pp lie s in [Ho rn e ’s ] ca se un til a ft e r a pr e se nte nc e re po rt is c omp le te d a nd bo th [Horne] and the g overnme nt have ha d an opportunity to challeng e t h e fa cts as re ported by the probation off

icer .” Hor

ne spec ifically confirme d his unde rstanding of eac h of these statements. The court fur ther e nsured that Hor

ne wa s not under the influe nce of alcoho l or nar cotics, that he w as otherwise clea

rhea ded and in “ full possession of his fac ulties,” and that he understood the nature a nd conseque nces of

his plea. Although H orne’ s counsel in i t i al l y misinformed Horne about the likely sentenc ing r ang e, both the plea a g ree ment and the plea colloqu y adequately

informed Hor

ne about a ll the operative fac tors reg ardinghis possibl e sente nce. A s in Con tre ra s- Ar me nd ar iz , H or ne of fe rs no fa c tua l ba sis to justi fy his mistaken belief with r eg ard to his criminal history . There fore , the denial of the motion to withdraw the guilty

plea wa s proper . IV We reviewthe re asonable ness of the se ntence for plain e rror , beca use t h i s i s s u e was not raised be low. United States v. Bailey , 488 F.3d 363, 367- 68 (6th Cir.), cert. de nied , 128 S. Ct . 507 (2007).No. 07-3394

United States v. Horne

- 11 - Ho rn e a r g u e s t h a t h i s s e n t e n c e

– t h e m i n i m u m u n d e r t h e a p p l i c a b l e G u i d e l i n e r an g e – is

unrea sonable, be cause of t h e “strong inf ere nce” that a district cour t would have imposed a

lesser sentenc e, if it did not treat the Guide lines as mandatory . This argument is mispl ace d. The c ases Horne identifies i n support of his contention, United States v. Gonzales , 1 24 F . App ’x 34 7, 34 9 ( 6th Cir. 2005), and Un ite d S

tat es v . H all , 411 F.3d 651 (6th Cir. 2005), are inapposite. In Gonzales , a pre- Booke r

mandatory

minimum sentenc e was vacated and the case was rema nded for rese ntencing in light of United States v. Book er, 543 U.S. 220 (2005). 124 F. App’x at 349. Ha ll hinge d on our deter mination that, b a s e d

o n e xp li cit rese rvations expressed by the district court a

bout imposi ng even the minimum s entenc e under the Guidelines ra

ng e, it was likely

that the district court would have imposed a lesser

sentenc e “but f

or its belief that the U .S. Sentencing Guid el i n es Manua l was mandatory .” Ha ll , 411 F.3d at 653. I n the prese nt c ase, the rec ord is r eplete w ith evidence that the district court knewand communicated to Horne that the Guidelines wer e advisory

. Horne identifies no other ba sis to doubt t he re asonable ness of the district c ourt ’s s en tence . Thus, we hold that the district court did not commit plain error in imposing the sentenc e. V F or the re a so ns se t out a

bo ve , w e AF F I RM the dis tr ic t c ourt ’s de nia l of t he mo ti on to suppress, the de nial of the motion to withdraw the guilty plea, a nd the imposed sentenc e.