UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4676

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LATRELL BARNES,

Defendant - Appellant.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.

(CR-04-128-MJG)

Submitted: October 19, 2005 Decided: November 9, 2005

Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Harold I. Glaser, GLASER & SOLOMON, L.L.C., Baltimore, Maryland,

for Appellant. Allen F. Loucks, United States Attorney, Harry M.

Gruber, P. Michael Cunningham, Assistant United States Attorneys,

Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Latrell Barnes appeals his conviction and sentence for

possession of a firearm in violation of 18 U.S.C. § 922(g)(1)

(2000). Finding no reversible error, we affirm.

Baltimore Police Officers Christine Hyatt and Kimberly

Betts responded to a dispatch call for an aggravated assault. On

arrival they observed Latrell Barnes standing in the open doorway

of a dark green Toyota Camry. Barnes directed their attention

toward a crowd of people. The officers then received a dispatch

call informing them that an anonymous caller had just advised

dispatch that the officers had just passed the person with the gun

and that he was getting into a green Toyota Camry. Officer Hyatt

told Barnes to get out of the car. Barnes hesitated to turn off

the engine, and Hyatt repeated her order. As Barnes turned the

engine off, he began reaching down as if attempting to place or

retrieve an object under the seat. Officer Hyatt ordered Barnes to

exit the car, but he continued to dip down toward the floor.

Officer Hyatt opened the car door and ordered Barnes out of the

car. 

Officer Betts used her flashlight to illuminate the

inside of the car. From outside the vehicle, Officer Hyatt saw the

outline of a handgun wrapped in a white cloth material under the

front seat. After seeing the handgun, Officer Hyatt placed

handcuffs on Barnes and seized the gun.
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Barnes first claims that the district court erred in

denying his motion to suppress. This court reviews the factual

findings underlying a motion to suppress for clear error, and the

district court’s legal determinations de novo. See Ornelas v.

United States, 517 U.S. 690, 699 (1996). When a suppression motion

has been denied, this court reviews the evidence in the light most

favorable to the Government. See United States v. Seidman, 156

F.3d 542, 547 (4th Cir. 1998).

“An officer may, consistent with the Fourth Amendment,

conduct a brief, investigatory stop when the officer has a

reasonable, articulable suspicion that criminal activity is afoot.”

Illinois v. Wardlow, 528 U.S. 119, 123 (2000); Terry v. Ohio, 392

U.S. 1, 30 (1968). To conduct a Terry stop, there must be “at

least a minimal level of objective justification for making the

stop.” Id. Reasonable suspicion requires more than a hunch but

less than probable cause, and it may be based on the collective

knowledge of the police officers. Id. In assessing police conduct

in a Terry stop, courts must look to the totality of the

circumstances. United States v. Sokolow, 490 U.S. 1, 8 (1989).

Barnes claims the officers did not have reasonable

suspicion for a Terry stop. The officers based their stop upon:

(1) the report of a gun assault; (2) an anonymous tipster stating

that the officers had just passed the individual with the gun and

that he was getting into a green Toyota Camry; (3) Barnes’ failure
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to comply with Officer Hyatt’s directive to get out of the vehicle;

and (4) Barnes’ motion that suggested he was reaching under the

front seat of the car. These actions, taken together, provided the

officers with a reasonable and articulable suspicion that Barnes

was engaged in criminal activity, thus justifying his detention and

removal from the vehicle. See Maryland v. Wilson, 519 U.S. 408,

411 (1997) (no Fourth Amendment violation in requiring defendant to

exit car to be frisked); Michigan v. Long, 463 U.S. 1032, 1049

(1983) (no Fourth Amendment violation for searching car’s passenger

compartment where a gun may have been secreted). 

Barnes claimed the anonymous tip was not sufficient to

establish reasonable suspicion because not enough suitable

corroborative information existed to satisfy Florida v. J.L., 529

U.S. 266 (2000). The police officers in this case sufficiently

corroborated the anonymous tipster through their observations of

the car and Barnes’ actions. The green Toyota Camry that the

anonymous tip said the officers had passed matched the car the

officers had earlier observed. The tipster also specifically

referenced the officers and that they had just walked past the

person with the gun. Barnes exhibited furtive behavior, including

failure to comply with the officer’s order to turn the engine off

and exit the vehicle and suspicious motions as if he was reaching

under the car seat. See United States v. Sims, 296 F.3d 284, 287

(4th Cir. 2002) (evasive behavior is a relevant factor in Terry
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analysis and sufficient corroboration to satisfy J.L.). Taken in

context, the officers’ observations of the car and Barnes’ actions

sufficiently corroborated the anonymous tip, and the district court

properly found the facts justified a Terry stop and detention of

Barnes.

Further, the officers properly searched the car and

seized the gun because they saw the gun in plain view from outside

the vehicle. “The plain view doctrine authorizes warrantless

seizures of incriminating evidence when (1) the officer is lawfully

in a place from which the object may be plainly viewed; (2) the

officer has a lawful right of access to the object itself; and

(3) the object’s incriminating character is immediately apparent.”

United States v. Jackson, 131 F.3d 1105, 1109 (4th Cir. 1997). An

officer who sees an incriminating object in plain view inside a

vehicle during a vehicle stop may seize that object. Texas v.

Brown, 460 U.S. 730, 741 n.6 (1983). Officer Hyatt clearly saw the

outline of the gun and properly seized it. The district court did

not err in denying Barnes’ motion to suppress.

Barnes also claims the district court erred when it

sentenced him as an armed career criminal under 18 U.S.C.

§ 924(e)(1) (2000). We review the district court’s legal

determinations de novo and its factual findings for clear error.

See United States v. Brandon, 247 F.3d 186, 188 (4th Cir. 2001).

Barnes argues that his prior conviction for escape is not a violent
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felony because he merely did not return from a work release.

However, this court has consistently held that the offense of

felony escape qualifies as a violent felony for purposes of the

classification of an armed career criminal. See United States v.

Wardrick, 350 F.3d 446, 455 (4th Cir. 2003); United States v.

Hairston, 71 F.3d 115, 188 (4th Cir. 1995). The district court did

not err in finding that Barnes’ felonies were violent felonies.

Barnes also claims the district court improperly enhanced

his sentence by using his prior convictions to conclude he was an

armed career criminal under U.S. Sentencing Guidelines Manual

§ 4B1.4(a) (2004). Because Barnes preserved his Sixth Amendment

claim by objecting to his armed career criminal classification

based upon Blakely v. Washington, 124 S. Ct. 2531 (2004), this

court’s review is de novo. See United States v. Mackins, 315 F.3d

399, 405 (4th Cir. 2003). This court has recently ruled that the

nature and occasion of prior offenses are facts inherent in the

convictions and that the government does not have to allege prior

convictions in the indictment or submit proof of them to a jury to

invoke the armed career criminal enhancement. United States v.

Thompson, 421 F.3d 278, 285-87 (4th Cir. 2005). Thus, the district

court did not err when it used Barnes’ prior convictions in

calculating Barnes’ sentence.

Barnes finally claims that the district court erred when

it sentenced him under the mandatory sentencing guidelines. The
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district court sentenced Barnes to the statutory minimum sentence

under 18 U.S.C. § 924(e)(1). In United States v. Robinson, 404

F.3d 850, 862 (4th Cir. 2005), this court stated that “Booker did

nothing to alter the rule that judges cannot depart below a

statutorily provided minimum sentence.” As the district court

could not depart below the statutory minimum, the district court

did not commit Booker error.

Accordingly, we affirm Barnes’ conviction and sentence.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED