NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 20 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-10240
Plaintiff - Appellee, D.C. 4:09-cr-00527-DLJ-1
v.
MEMORANDUM*
VINCENT HUNTER,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
D. Lowell Jensen, District Judge, Presiding
Argued and Submitted May 9, 2011
San Francisco, California
Before: THOMAS, MCKEOWN, and MURGUIA, Circuit Judges.
Defendant-Appellant Vincent Hunter appeals the decision of the district
court denying his pretrial motion to suppress evidence and the sentences imposed
for the two charges of which he was convicted, being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1) and possession of cocaine base in
violation of 21 U.S.C. §844(a). For the reasons discussed below, we affirm in part
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
and reverse in part and remand for further proceedings.
The district court did not err in denying Hunter's motion to suppress.
Reviewing the issue de novo, we agree with the district court that the officer's
investigatory stop did not ripen into an arrest. The totality of the circumstances
justified the methods the police officer employed to restrain Hunter, who was
suspected to have fled from a stolen car, had suspiciously run on mere sight of the
police, had made furtive movements by a bush, and had refused to comply with the
officer's first request that he put his hands up. Given the threat of physical danger
or flight Hunter posed, the officer was justified in drawing his gun and ultimately
handcuffing him to conduct his investigation. Washington v. Lambert, 98 F.3d
1181, 1189 (9th Cir. 1996); United States v. Greene, 783 F.2d 1364, 1367-68 (9th
Cir. 1986). Moreover, the circumstances provided reasonable suspicion supporting
the investigatory stop of Hunter. Hunter argues for the first time on appeal that the
search of the bush where the gun was found was a warrantless search. Hunter
waived this argument by failing to raise it before the district court and providing no
justification for failing to raise it until now. United States v. Murillo, 288 F.3d
1126, 1135 (9th Cir. 2002); United States v. Wright, 215 F.3d 1020, 1026 (9th Cir.
2000).
The district court erred, however, in imposing a 36-month sentence for
2
Hunter's drug possession charge. Because Hunter only possessed .23 grams of
cocaine base, the maximum sentence he could have received under federal law was
twelve months. 21 U.S.C. § 844(a). Although the sentence can be enhanced based
on prior convictions, in order for the court to do so, the prosecution must file an
information stating in writing the previous conviction or convictions upon which it
intends to rely. 21 U.S.C. §851(a)(1). Compliance with this requirement is
mandatory. United States v. Hamilton, 208 F.3d 1165, 1168 (9th Cir. 2000). In
this case, the Government failed to comply with the requirements of §851(a), and
the case should be remanded so that the district court can impose a sentence in
compliance with §844(a).
The district court did not consider the Sentencing Guidelines mandatory in
violation of United States v. Booker, 543 U.S. 220 (2005). Nor was the district
court required to submit the issue of the gun possession's connection to the drug
possession to a jury to be proved beyond a reasonable doubt pursuant to Apprendi
v. New Jersey, 530 U.S. 466 (2000), in order to apply a 4-level enhancement
pursuant to the United States Sentencing Guidelines ("U.S.S.G.") §2k2.1(b)(6).
See, e.g., United States v. Gonzales, 506 F.3d 940, 947 (9th Cir. 2007); United
States v. Polanco, 93 F.3d 555, 567 (9th Cir. 1996). Cocaine possession in any
amount is a felony under the laws of California, see Cal. Health & Safety Code §
3
11350(a), so this offense could under some circumstances support an enhancement
pursuant to U.S.S.G. §2k2.1(b)(6) even if Hunter was only convicted of a
misdemeanor under federal law. "Another felony offense," for purposes of
subsection (b)(6), means any "Federal, state, or local offense . . . punishable by
imprisonment for a term exceeding one year, regardless of whether a criminal
charge was brought, or a conviction obtained." U.S.S.G. §2K2.1(b)(6) cmt. n.14
(emphasis added). On remand, however, the district court should more explicitly
articulate its reasoning for applying the 4-level sentencing enhancement pursuant
to U.S.S.G. §2k2.1(b)(6) and specifically explain the connection between the gun
possession charge and the drug possession.
The district court’s order denying Hunter's motion to suppress is
AFFIRMED and the case is REMANDED for further proceedings consistent with
this memorandum disposition.
4