[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15292 ELEVENTH CIRCUIT
JANUARY 6, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00035-CR-2-IPJ-HGD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEX NATHAN MITCHELL,
a.k.a. Alex Nathion Mitchell,
a.k.a. Alex Nathen Mitchell,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(January 6, 2011)
Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Alex Mitchell appeals his conviction and 235-month sentence for possession
of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). After a
careful review of the record, we affirm.
Mitchell was indicted for possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g). Mitchell moved to suppress the evidence obtained
when Officer Gilbert Turner searched him during an alleged improper seizure.
According to Turner’s testimony at the suppression hearing, while on patrol,
Turner spotted Mitchell and another man coming out of a known drug house.
When the men saw Turner, Mitchell walked to a gas station across the street and
his companion ran back into the drug house. Turner followed Mitchell to conduct
a field interview. As Turner asked Mitchell for identification, Mitchell began
swearing at him. Mitchell’s hand was in his jacket pocket and Turner became
concerned he had a weapon. Mitchell refused to remove his hand from his jacket
and began to walk away. As Turner approached Mitchell with his weapon drawn,
Mitchell dropped a gun from his jacket.
After the court denied the motion to suppress, Mitchell proceeded to trial. In
addition to Turner’s testimony, the government presented the testimony of Officer
John Sanders, who assisted Turner with Mitchell’s arrest, Detective Cortice Mills,
who interviewed Mitchell after his arrest, and ATF agent Eric Hoxter, who
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examined the gun. Mitchell did not call any witnesses. The jury found Mitchell
guilty.
The probation officer calculated Mitchell’s guideline range as 235 to 293
months’ imprisonment based in part on Mitchell’s status as an armed career
criminal under 18 U.S.C. § 924(e) (the ACCA). The probation officer listed the
predicate offenses as aggravated assault by threat, resisting an officer with
violence, and third-degree robbery. The probation officer further noted Mitchell’s
background including his numerous other convictions, his mental disorders,
multiple traumatic injuries, prior drug use, and his up-bringing in foster care.
Mitchell disputed that his prior offenses qualified him as a career offender
under the ACCA and requested a downward departure or variance. At sentencing,
the court concluded that Mitchell’s conviction for resisting arrest with violence
qualified as a predicate offense under the ACCA. The court considered Mitchell’s
home life, his prior record, and his mental status but found no basis to depart from
the advisory guideline range. The court noted that Mitchell had a history of violent
conduct and the purpose of § 922(g) was to keep violent felons from “walk[ing]
around with guns.” The court sentenced Mitchell to 235 months’ imprisonment.
On appeal, Mitchell argues that (1) the district court improperly denied his
motion to suppress the gun he was arrested for carrying; (2) he was improperly
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categorized as an armed career criminal under 18 U.S.C. § 924(e); and (3) his
sentence was unreasonable. We address each issue in turn.
I.
We review a district court’s denial of a motion to suppress as a mixed
question of law and fact. United States v. Boyce, 351 F.3d 1102, 1105 (11th Cir.
2003). The district court’s findings of fact are reviewed under the clearly
erroneous standard, and its application of the law to those facts is reviewed de
novo. Id. We will construe all facts in the light most favorable to the party who
prevailed below. Id. In reviewing a motion to suppress, we may consider any
evidence presented at trial. United States v. Newsome, 475 F.3d 1221, 1224, 1226
(11th Cir. 2007).
For the purposes of Fourth Amendment analysis, there are three broad
categories of police-citizen encounters: “(1) police-citizen exchanges involving no
coercion or detention; (2) brief seizures or investigatory detentions; and (3) full-
scale arrests.” United States v. Perez, 443 F.3d 772, 777 (11th Cir. 2006). A
consensual encounter does not implicate Fourth Amendment scrutiny. Id. An
investigatory stop involves reasonably brief encounters in which a reasonable
person would have believed that he or she was not free to leave. Id. In order to
justify such a stop, the government must show a reasonable, articulable suspicion
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that the person has committed or is about to commit a crime. Id. When the totality
of the circumstances indicate that an encounter has become too intrusive to be
classified as a brief seizure, the encounter is an arrest requiring probable cause. Id.
“Law enforcement officers do not violate the Fourth Amendment’s
prohibition of unreasonable seizures merely by approaching individuals on the
street or in other public places and putting questions to them if they are willing to
listen.” United States v. Drayton, 536 U.S. 194, 200 (2002). Even when a police
officer has no basis for suspecting an individual, he may pose questions and ask for
identification, provided he does not induce cooperation by coercive means. Id. at
201. If a reasonable person would feel free to terminate the encounter, then he or
she has not been seized. Id. Factors relevant to this inquiry include, among other
things: whether the police officer blocked the individual’s path, the display of
weapons, whether identification is retained, the individual’s age and intelligence,
the number of police officers present, any physical touching of the suspect, and the
language and tone of voice of the police. Perez, 443 F.3d at 778. A Fourth
Amendment “seizure” occurs “only when, by means of physical force or a show of
authority, a person’s freedom of movement is restrained.” Id. (quotation and
alteration omitted).
An officer may conduct an “investigatory stop” and briefly detain an
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individual upon a reasonable suspicion that he is involved in criminal activity, even
though probable cause may be lacking. United States v. White, 593 F.3d 1199,
1202 (11th Cir. 2010) (citing Terry v. Ohio, 392 U.S. 1 (1968)). Reasonable
suspicion is determined from the totality of the circumstances. Id. at 1203.
Here, the district court properly denied Mitchell’s motion to suppress.
Turner’s initial encounter with Mitchell did not implicate the Fourth Amendment.
Turner approached Mitchell in a public place and told him that he was conducting
a “field interview.” He explained what a “field interview” was: a request for
identifying information so that he could run a criminal check. Turner was alone,
he did not physically touch or detain Mitchell, he did not have his weapon drawn
when he initially requested Mitchell’s identification, and he spoke to Mitchell in a
“basically calm” fashion. Contrary to Mitchell’s argument, Turner needed no basis
to approach Mitchell and ask for identifying information. Drayton, 536 U.S. at
201; Perez, 443 F.3d at 778 (“[T]he mere fact that a law enforcement officer
approaches an individual and so identifies himself, without more, does not result in
a seizure . . . . Moreover . . . the simple act of police questioning does not
constitute a seizure.”) (quotation and citation omitted).
To the extent, however, that the encounter progressed into a seizure, it was
an investigatory stop for which Turner had reasonable suspicion. When Turner
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first saw them, Mitchell and his companion were leaving a house Turner knew to
be associated with narcotics. Although an area’s reputation for criminal activity,
standing alone, cannot support a reasonable suspicion of criminal activity, it is a
factor that may be considered when determining if a reasonable suspicion exists.
United States v. Gordon, 231 F.3d 750, 755-56 (11th Cir. 2000). When Turner
turned his emergency lights on and Mitchell and his companion noticed him, the
companion ran back into the house, and Mitchell attempted to evade Turner by
quickly entering a gas station. Evasive behavior is a “pertinent factor,” and
unprovoked flight may serve as the basis for a reasonable suspicion. Illinois v.
Wardlow, 528 U.S. 119, 125 (2000).
Once inside the store, Mitchell responded with profanity to Turner’s request
for identification. Mitchell had his hand inside the breast pocket of his jacket and
he refused to remove it, which made Turner nervous for his safety. An officer may
conduct an investigative stop if a reasonably prudent person in the same
circumstances would be warranted in the belief that his safety was in danger.
White, 593 F.3d at 1202-03. Considering the totality of the circumstances, Turner
had a reasonable suspicion that Mitchell was engaged in criminal activity and that
his own safety was in danger.
II.
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Finally, Mitchell argues that he did not qualify as an armed career criminal
because his prior conviction for resisting an officer with violence under Florida
Statute § 843.01 is not a violent felony.
We review de novo a district court’s determination that a particular
conviction qualifies as a “violent felony” under the ACCA. United States v. Canty,
570 F.3d 1251, 1254 (11th Cir. 2009).
The ACCA defines a “violent felony” as “any crime punishable by
imprisonment for a term exceeding one year” that “(i) has as an element the use,
attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B).
To determine whether a prior felony conviction falls within ACCA’s
residual clause, we interpret the crime of conviction using a categorical approach,
“read[ing] the face of the relevant statute itself to discern the crime as it is
ordinarily committed.” United States v. Harris, 608 F.3d 1222, 1227 (11th Cir.
2010) (quotations, citation marks, and original alterations omitted). We ask
whether the crime is “similar in kind and in degree to the enumerated crimes”
listed in subsection (B)(ii), namely, burglary, arson, and extortion. Id. (citation
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omitted). To that end, we ask whether the conduct inherent in the commission of
the crime is “purposeful, violent and aggressive,” Begay v. United States, 553 U.S.
137, 146 (2008), “or, whether it is a more passive crime of inaction, such as the
failure to report to a penal institution or driving under the influence of alcohol,”
Harris, 608 F.3d at 1227 (citation omitted).
Under Florida law, “[w]hoever knowingly and willfully resists, obstructs, or
opposes any officer . . . in the lawful execution of any legal duty, by offering or
doing violence to the person of such officer or legally authorized person, is guilty
of a felony of the third degree.” Fla. Stat. § 843.01. This offense falls squarely
within ACCA’s residual clause.
In this kind of case, we rely on “our own common-sense analysis of whether
this conduct poses a serious potential risk of physical injury.” United States v.
Alexander, 609 F.3d 1250, 1257 (11th Cir. 2010). We have no difficulty
concluding that “[t]he act of resisting arrest poses a threat of direct confrontation
between a police officer and the subject of the arrest, creating the potential for
serious physical injury to the officer and others.” United States v. Wardrick, 350
F.3d 446, 455 (4th Cir. 2003).
In addition, the plain language of the statute reveals that the Florida crime of
resisting arrest with violence is “purposeful, violent, and aggressive.” Begay, 553
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U.S. at 145. Commission of the crime requires, by its own terms, that the
defendant have knowingly and willfully resisted, obstructed, or opposed an officer
by offering or doing violence to the person of that officer. Fla. Stat. § 843.01. This
crime shares with the other crimes enumerated in subsection (B)(ii) the element of
purposeful violence and aggression. Accordingly, we conclude that Mitchell’s
prior conviction for resisting an officer with violence is a violent felony under
§ 924(e).
III.
We review a district court’s sentence for reasonableness. Gall v. United
States, 552 U.S. 38, 46 (2007). We determine if the sentence is reasonable under
an abuse-of-discretion standard. Id. Reasonableness review includes both
procedural and substantive components. Id. Once we determine that a sentence is
procedurally reasonable, we consider the substantive reasonableness of the
sentence under a “totality-of-the-circumstances” analysis. Id. Our reasonableness
review is deferential, and the party challenging the sentence “bears the burden of
establishing that the sentence is unreasonable in the light of both the record and the
factors in section 3553(a).” United States v. Thomas, 446 F.3d 1348, 1351 (11th
Cir. 2006) (citing United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005)).
A sentence may be procedurally unreasonable if the sentencing court fails to
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accurately calculate the advisory guideline range, treats the Sentencing Guidelines
as mandatory, fails to consider the factors set forth in 18 U.S.C. § 3553(a), or fails
to adequately explain the chosen sentence. Gall, 552 U.S. at 51. The district court
need not discuss or explicitly state each factor on the record, and an
acknowledgment that it has considered the defendant’s arguments and the
§ 3553(a) factors is sufficient. United States v. Gonzalez, 550 F.3d 1319, 1324
(11th Cir. 2008), cert. denied, 129 S.Ct. 2848 (2009).
A sentence is substantively unreasonable “if it does not achieve the purposes
of sentencing stated in § 3553(a).” United States v. Pugh, 515 F.3d 1179, 1191
(11th Cir. 2008) (quotation omitted). The analysis involves “examining the totality
of the circumstances, including an inquiry into whether the statutory factors in
§ 3553(a) support the sentence in question.” Gonzalez, 550 F.3d at 1324. The
§ 3553(a) factors are:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need
to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant
with needed educational or vocational training or medical
care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy
statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need
to provide restitution to victims.
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Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)). We may vacate a sentence if
we are left “with the definite and firm conviction that the district court committed a
clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence
that lies outside the range of reasonable sentences dictated by the facts of the case.”
Pugh, 515 F.3d at 1191 (quotation omitted).
We conclude that Mitchell’s sentence is procedurally reasonable. The
district court heard each of the parties’ arguments and considered Mitchell’s
sentencing memorandum but found no reason to depart from the advisory
Guidelines. The court considered Mitchell’s mental health condition and his
history of violent conduct, and noted that the armed career criminal enhancement
was designed to keep violent offenders from obtaining weapons. The district
court’s statements demonstrate that it “ha[d] a reasoned basis for exercising [its]
own legal decisionmaking authority.” United States v. Flores, 572 F.3d 1254,
1270-71 (11th Cir.) (citing Rita v. United States, 551 U.S. 338, 356 (2007)), cert.
denied, 130 S.Ct. 568 (2009).
Mitchell also argues that his sentence was substantively unreasonable, but
this argument is unavailing. The weight to be accorded to any § 3553(a) factor is a
matter committed to “the sound discretion” of the sentencing court, and we will not
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substitute our own judgment in weighing the relevant factors. United States v.
Langston, 590 F.3d 1226, 1237 (11th Cir. 2009). The district court considered
Mitchell’s criminal history, and it noted his mental illness and the challenges in his
upbringing. Consequently, it sentenced him to the lowest imprisonment term
within the Guidelines range. Mitchell has not shown that the district court
committed a clear error of judgment when weighing those considerations. See
Pugh, 515 F.3d at 1191.
For the foregoing reasons, we affirm Mitchell’s conviction and sentence.
AFFIRMED.
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