United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 2005 Decided September 30, 2005
No. 04-3038
UNITED STATES OF AMERICA,
APPELLEE
v.
JAMES W. EDWARDS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00234-01)
Walter S. Booth, appointed by the court, argued the cause
and filed the briefs for appellant.
Patricia A. Heffernan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, and John R. Fisher and Roy W.
McLeese, III, Assistant U.S. Attorneys.
Before: SENTELLE, RANDOLPH and ROGERS, Circuit Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM: James Edwards appeals the judgment of
conviction for unlawful possession of PCP with intent to
2
distribute in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C)
(2000). He makes two claims: First, he argues the District
Court erred in denying his motion to suppress evidence obtained
by a police search of his car. Second, he argues the District
Court erred when it sentenced Edwards under a mandatory
Guidelines scheme.
Having considered Edwards’s arguments, we conclude that
the District Court properly denied his motion to suppress. We
do, however, remand the record in this case in light of United
States v. Booker, 125 S. Ct. 738 (2005), for the limited purpose
described in United States v. Coles, 403 F.3d 764, 771 (D.C. Cir.
2005) (per curiam).
I. Background
Responding to neighborhood complaints, police drove to a
parking lot on Pomeroy Road to investigate an area known for
drug trafficking. Edwards and a friend sat in a parked car in the
lot. As the police entered, Edwards drove his car quickly toward
the exit, nearly colliding with the police car. The officer exited
his car, approached Edwards, and ordered him to stop. Although
the police were driving unmarked cars and were not in uniform,
the officer who exited the car was wearing a blue vest with an
orange police department emblem on it and a badge. Peering
into the car, the officer noticed an open bottle of cognac and a
clear cup containing a dark liquid. Edwards defied the order and
slowly backed his car while reaching furtively under his seat.
The officer again ordered Edwards to stop. As the officer
approached the car, he saw Edwards pushing two guns under his
seat. The officer alerted his fellow officers to the guns and
seized them. The police then searched Edwards’s person and
found three vials of PCP.
3
Prior to trial, Edwards moved to suppress the guns and
drugs. He claimed that the officers lacked reasonable suspicion
to stop and search him and therefore violated his Fourth
Amendment rights. The District Court denied his motion.
Edwards was indicted on three counts: (1) possession of a
handgun and ammunition by a felon; (2) unlawful possession
with intent to distribute a controlled substance; and (3) unlawful
possession of a firearm during a drug trafficking offense. A jury
convicted Edwards on count two but acquitted him of count
three. The District Court declared a mistrial on the first count.
In the pre-Booker sentencing regime, Edwards’s conviction
resulted in a base sentencing level of 20 under the United States
Sentencing Guidelines. Despite the acquittal on count three, the
District Court found by a preponderance of the evidence that
Edwards had possessed a firearm during the drug offense. That
finding bumped the sentencing level to 22, which, along with
Edwards’s criminal history category of 5, resulted in a
sentencing range of 77 to 96 months. The court sentenced
Edwards to 79 months incarceration. Edwards did not challenge
the constitutionality of his sentence at the time.
On appeal, Edwards challenges both his conviction and his
sentence. First, he contends that the District Court erred by
denying his pretrial motion to suppress. Second, citing the
Supreme Court’s decision in Booker, he contends that the
District Court erred in applying the Guidelines as mandatory.
II. Motion to Suppress
A. Standard of Review
We review a District Court’s findings of fact for clear error.
United States v. Brown, 334 F.3d 1161, 1164 (D.C. Cir. 2003).
4
We review de novo whether those factual findings constitute
reasonable suspicion or probable cause. Id.
B. Analysis
In determining whether police had reasonable suspicion to
stop a suspect under the Fourth Amendment, see Terry v. Ohio,
392 U.S. 1 (1968), the inquiring court must go beyond discrete
facts and consider “the totality of the circumstances as the
officer on the scene experienced them.” United States v.
Edmonds, 240 F.3d 55, 59 (D.C. Cir. 2001). This Court has
made clear “that ‘furtive’ gestures in response to” police
presence are relevant to the reasonable suspicion inquiry. See
id. at 61. The area’s high-crime character also serves as relevant
context, though it may not provide the sole grounds for a stop.
See Illinois v. Wardlow, 528 U.S. 119, 124 (2000).
This case remarkably resembles Edmonds. See 240 F.3d at
57. In both cases, police approached a parked car in an area
known for crime. In addition, suspects in both cases made
furtive movements in response to identifiable police presence.
In Edmonds, those facts sufficed for reasonable suspicion to
conduct a stop, id. at 60, and they therefore suffice here.
The “totality of the circumstances” in this case includes
additional facts that support reasonable suspicion. Not only did
Edwards act furtively, but he did so while backing his car away
from the officer. In addition, before Edwards actually stopped
his car, the officer discovered an open bottle of alcohol and two
weapons in plain view. The stop and its resulting seizures were
therefore constitutional, and the District Court correctly denied
Edwards’s motion to suppress. See Wardlow, 528 U.S. at 121.
5
III. Sentencing
The District Court sentenced Edwards under the pre-
Booker, mandatory Guidelines scheme. This Court decided the
appropriate procedures for addressing “plain error” Booker
appeals in United States v. Coles, 403 F.3d 764 (D.C. Cir. 2005)
(per curiam). Accordingly, we remand the record to the District
Court “for the limited purpose of allowing it to determine
whether it would have imposed a different sentence, materially
more favorable to the defendant, had it been fully aware of the
post-Booker sentencing regime.” Id. at 771.
Edwards makes an additional Sixth Amendment
claim—that the District Court denied his right to a trial by jury
when it sentenced him based on conduct for which he was
acquitted. As Booker states, “[a]ny fact . . . which is necessary
to support a sentence exceeding the maximum authorized by the
facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a
reasonable doubt.” 125 S. Ct. at 756. Edwards argues that,
under Booker’s holding, his acquittal on the gun possession
charge precludes the District Court from finding that fact by a
preponderance of the evidence and then using it to raise his
sentence. The Supreme Court has upheld this practice against
a Fifth Amendment double jeopardy challenge. See United
States v. Watts, 519 U.S. 148, 157 (1997). The Court has not,
however, determined whether the practice violates the Sixth
Amendment. Cf. Booker, 125 S. Ct. at 754 (stating Sixth
Amendment issue was not presented in Watts). Although
Edwards raises a potentially important question, we need not
address it because we have already determined to remand the
record according to Coles.
6
IV. Conclusion
For the above reasons, we affirm the denial of Edwards’s
motion to suppress, and we remand the record to the District
Court pursuant to Coles, 403 F.3d at 771.