UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5297
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARQUETTE HOEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Robert J. Conrad, Jr.,
Chief District Judge. (3:06-cr-00086))
Submitted: September 17, 2007 Decided: October 12, 2007
Before WILKINSON and MOTZ, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Peter Adolf, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Jonathan A. Vogel, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On the evening of February 2, 2006, Officers Robert
Childs and Jerome Whitlow of the Charlotte-Mecklenburg Police
Department were on patrol driving through the Sailboat Bay
Apartments area. Officer Childs knew the apartment complex was a
high robbery and drug crime area. In December of 2005, Childs had
arrested two people at the apartment complex for possession of
cocaine. Also, Childs was aware that on January 6, 2006, an armed
robbery had occurred at the complex and that another armed robbery
had occurred in November or December of 2005. The robbery suspect
had been described as approximately 5'8" tall and wore a
camouflaged jacket with a hood.
As Childs and Whitlow patrolled they noticed Marquette
Hoey. Hoey stands approximately 5'5" and was wearing a black,
“flight type jacket” with a hood. Hoey was walking approximately
100 feet from the building where the January armed robbery had
occurred. As the officers’ patrol car approached Hoey, Hoey
noticed the officers and immediately cut to his right away from the
officers into a dark alley.
Based on Hoey’s evasive conduct, the officers drove
around to where Hoey exited the dark alleyway. Whitlow exited the
patrol car and asked to speak to Hoey. In response to the
officers’ request to speak to him, Hoey became visibly agitated,
began waiving his arms around, and accused the officers of
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harassing him on several occasions. Hoey also assumed a stance
that partially concealed the right side of his body, and repeatedly
touched his right pocket, indicating that he might be hiding
something.
Childs asked Hoey whether he lived in the apartment
complex and for some identification. Although Hoey stated that he
lived in the complex, the address listed on the identification he
provided to Childs was not within the apartment complex.
Childs then asked his dispatcher to check whether there
were outstanding warrants for Hoey. The dispatcher informed Childs
that Hoey was entered in the NCIC database as a “dangerous gang
member” affiliated with the Bloods.
Childs then re-approached Hoey and informed him that the
officers were going to pat him down for their safety. As Whitlow
patted Hoey down, Childs asked Hoey whether he was a member of a
gang. Hoey stated that he was a member of the Bloods gang. During
the search, Whitlow found a .357 caliber handgun in Hoey’s right
front pocket. Hoey was arrested and, ultimately, indicted for
possession of a firearm after having been convicted of a felony, in
violation of 18 U.S.C. § 922(g)(1) (2000).
In the court below, Hoey filed a motion to suppress,
arguing that the officers lacked reasonable articulable suspicion
of criminal activity prior to seizing him. The district court
denied Hoey’s motion, and Hoey entered a conditional guilty plea,
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reserving his right to appeal the district court’s decision. Hoey
timely noted his appeal. On appeal, Hoey argues that the district
court erred in concluding that the officers had reasonable
suspicion of criminal activity at the time they seized him and in
enhancing his sentence based on facts not found beyond a reasonable
doubt by a jury. We affirm the judgment of the district court.
The Supreme Court has held that, consistent with the
Fourth Amendment, police officers may conduct brief investigatory
stops of individuals if officers have reasonable suspicion that
criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1 (1968);
see Illinois v. Wardlow, 528 U.S. 119, 123 (2000). Such an
investigatory stop must be based on "at least a minimal level of
objective justification" but the standard for reasonable suspicion
is less demanding than for probable cause. Wardlow, 528 U.S. at
123.
In assessing whether officers had a reasonable suspicion
of criminal activity, this court must consider the totality of the
circumstances surrounding the seizure. United States v. Sprinkle,
106 F.3d 613, 618 (4th Cir. 1997) (quoting United States v.
Sokolow, 490 U.S. 1 (1989) (internal quotations omitted)).
"Reasonable suspicion is a commonsensical proposition. Courts are
not remiss in crediting the practical experience of officers who
observe on a daily basis what transpires on the streets." United
States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993).
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To establish reasonable articulable suspicion, an officer
must be able to articulate something more than an inchoate and
unparticularized suspicion or hunch. Sokolow, 490 U.S. at 7
(quoting Terry, 392 U.S. at 27) (internal quotations omitted)).
However, reasonable articulable suspicion may be established by a
series of acts, each of them perhaps innocent when viewed
separately, but when viewed in the aggregate by a trained police
officer warrant further investigation. See id. at 9-10 (quoting
Terry, 392 U.S. at 22).
Assuming Hoey was seized within the meaning of the Fourth
Amendment when first accosted by the officers, the officers had, at
that moment, reasonable articulable suspicion sufficient to seize
Hoey. Officer Childs knew that the Sailboat Bay Apartments was a
high crime area. Moreover, Childs and Whitlow first observed Hoey
walking within 100 feet of the site of a recent armed robbery at
the Sailboat Bay Apartments. Also, when Hoey observed the
officers, he immediately “cut to his right” to head down a dark
alley. Hoey’s evasive response to seeing the officers added to the
officers’ reasonable articulable suspicion that Hoey might be
involved in criminal activity. See Wardlow, 528 U.S. at 124. All
of these facts, viewed in the totality of the circumstances,
created reasonable articulable suspicion of criminal activity
sufficient to seize Hoey.
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Hoey also avers the district court erred in enhancing his
sentence based on facts not found beyond a reasonable doubt by a
jury. Hoey failed to raise his alleged error in the court below.
Accordingly, his claim is subject to plain error review. Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993).
To establish plain error, Hoey must show that: (1) there was
error; (2) the error was plain; and (3) the error affected his
substantial rights. Id. Even if Hoey makes this showing, “Rule
52(b) leaves the decision to correct the forfeited error within the
sound discretion of the court of appeals, and the court should not
exercise that discretion unless the error seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.”
Id. (quoting United States v. Young, 470 U.S. 1, 15 (1985)
(internal quotations omitted)). Hoey fails to establish error
under Olano.
This court has stated that after United States v. Booker,
543 U.S. 220 (2005), a sentencing court continues to make factual
findings concerning sentencing factors by a preponderance of the
evidence. United States v. Morris, 429 F.3d 65, 72 (4th Cir.
2005), cert. denied, 127 S. Ct. 121 (2006). Moreover, long-
standing authority has permitted a sentencing court to consider any
evidence at sentencing that “has sufficient indicia of
reliability,” see USSG § 6A1.3(a), including “conduct underlying
[an] acquitted charge, so long as that conduct has been proved by
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a preponderance of the evidence.” United States v. Watts, 519 U.S.
148, 156-57 (1997) (per curiam); United States v. Montgomery, 262
F.3d 233, 249 (4th Cir. 2001). Accordingly, the district court did
not err in enhancing Hoey’s sentence pursuant to USSG
§§ 2K2.1(b)(4); 4A1.1(d); 4A1.1(e) based on facts found by the
court by a preponderance of the evidence, and we therefore affirm
the judgment of the district court. We dispense with oral argument
as the facts and legal contentions are adequately presented in the
materials before the court, and oral argument would not aid the
decisional process.
AFFIRMED
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