In the
United States Court of Appeals
For the Seventh Circuit
No. 13‐1491
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
GUY RINEY,
Defendant‐Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11‐CR‐115— Matthew F. Kennelly, Judge.
ARGUED NOVEMBER 13, 2013 — DECIDED FEBRUARY 10, 2014
Before MANION, KANNE, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Defendant Guy Riney was
convicted in a jury trial of possession of a firearm after previ‐
ously having been convicted of a felony, in violation of
18 U.S.C. §922(g)(1). Riney had many felony convictions and
enough violent crimes, though from many years earlier, to
qualify as an armed career criminal under both 18 U.S.C.
§924(e) and U.S. Sentencing Guideline §4B1.4. The district
court sentenced Riney to 204 months in prison. Riney appeals
2 No. 13‐1491
both his conviction and sentence. He argues that the district
court erred in denying his motion to quash his arrest and
suppress evidence and then also erred in applying a two‐level
enhancement for obstruction of justice to the offense level in its
sentencing guideline calculation. We affirm.
I. Motion to Suppress
A. The Facts and the District Court’s Ruling
On September 2, 2009, Chicago police officers John
McKenna and Abraham Lara responded to a dispatch call
regarding a shooting at the intersection of Franklin Boulevard
and Drake Avenue. The call came in between 12:30 and
1:00 a.m. The officers learned that a victim had been shot by
two black males wearing dark clothing who had fled on foot.
The officers immediately began patrolling the area in their
police car, searching for the shooting suspects. They encoun‐
tered defendant Riney a few blocks away from the shooting.
According to the officers, they first saw Riney sitting in a
parked car with another black male on North Monticello
Avenue. The officers believed the pair matched the general
description of the shooting suspects. Officer Lara was driving.
He pulled the police car behind the parked car in which Riney
was sitting. The officers saw Riney get out on the passenger
side. When the police car stopped, Officer Lara exited, drew his
weapon, and yelled “show me your hands.” Officer McKenna
also exited and noticed what appeared to be a gun handle in
Riney’s waistband. He shouted commands at Riney, though at
the evidentiary hearing he was not able to recall exactly what
those commands were. Riney continued walking away at a fast
pace. Officer McKenna followed and, based on his observation
No. 13‐1491 3
and his belief that the suspects in the recent and nearby
shooting were in the area, detained Riney between the porch
and the fence of a house at 438 North Monticello. He con‐
ducted a pat‐down search and recovered a loaded revolver
from Riney. That weapon was the basis of the felon‐in‐posses‐
sion charge against Riney. Officer McKenna then alerted
Officer Lara to the presence of a weapon, secured the weapon,
and turned it over to Lara.
Riney filed a pretrial motion to suppress the gun and quash
his arrest, claiming that his search and arrest were illegal
because the officers lacked probable cause. In support of his
motion, he submitted his own affidavit. Statements within that
affidavit contradicted the officers’ version of their discovery of
the revolver in several critical respects. In Riney’s version, he
claimed he had been standing on his porch when Officer
McKenna ordered him to approach and then “forcefully
grabbed me by my clothing and physically pulled me through
the front outside gate of my home onto the sidewalk” before
recovering the weapon.
Based on Riney’s affidavit, Judge Pallmeyer conducted an
evidentiary hearing over the course of four days on his motion
to suppress.1 Four witnesses testified, but Riney himself did
not testify. Because Riney’s affidavit was hearsay, it was not
admitted as evidence at the hearing. None of the evidence
offered at the hearing supported the version of events pre‐
sented in Riney’s affidavit. Without supporting evidence,
1
Judge Pallmeyer presided over Riney’s motion to suppress, and Judge
Kennelly presided over Riney’s trial and sentencing.
4 No. 13‐1491
Riney’s counsel changed tactics and argued that the officers
did not have reasonable suspicion to stop Riney because it
would have been impossible for Officer McKenna to have seen
a gun in Riney’s waistband at night while Riney was wearing
dark clothing.
The district court rejected this argument, found the officers’
testimony both “plausible” and “truthful,” and denied Riney’s
motion to suppress. Based on Officer McKenna’s observation
of the weapon, the court found that the officers had reasonable
suspicion to detain Riney and to conduct a pat‐down search of
his person. Riney appeals the district court’s ruling.
B. Factual Impossibility and Officer Credibility
In reviewing the denial of a motion to suppress, we review
the district court’s legal conclusions de novo and its factual
findings for clear error. United States v. Jackson, 598 F.3d 340,
344 (7th Cir. 2010). Before the district court and on appeal,
Riney has argued factual impossibility—because it was dark
outside and Riney was wearing dark clothing, Officer McKen‐
na could not have seen the handle of a gun in Riney’s
waistband—so that Officer McKenna’s testimony that he saw
a weapon was not credible.
We have no grounds to disturb the district court’s factual
findings. The court acknowledged that it was dark at the time
of Riney’s arrest but found that because the encounter between
Riney and Officer McKenna occurred beneath a streetlight and
because the handle of the Riney’s gun was particularly large,
it would not have been impossible for Officer McKenna to have
seen the gun handle in Riney’s waistband. The court’s finding
No. 13‐1491 5
was based on the available evidence and was not otherwise
contradicted. We find no error in that finding.
Riney also challenges Officer McKenna’s credibility
because, contrary to “common sense” and “years of [Chicago
Police Department] training and experience,” (1) McKenna did
not alert Officer Lara that he had seen a gun before seizing
Riney; (2) McKenna did not draw his own weapon; (3) he did
not immediately attempt to disarm Riney; (4) he did not try to
have the shooting victim identify Riney; (5) his testimony
contained small inconsistencies; and (6) Officer Lara did not
also see the weapon in Riney’s waistband before Officer
McKenna seized him. In the face of these criticisms, the district
court found that Officer McKenna’s testimony was “plausible”
and “truthful.” We give great deference to a district judge’s
credibility findings on appeal. United States v. Pabey, 664 F.3d
1084, 1094 (7th Cir. 2011); United States v. Pulley, 601 F.3d 660,
664 (7th Cir. 2010) (A district court’s determination of witness
credibility “can virtually never be clear error.”). Riney does not
approach that standard, especially since the officers’ testimony
was not contradicted. The district court did not err by crediting
Officer McKenna’s testimony.
C. Reasonable Suspicion
Riney also argues that the officers’ stop and search was
unconstitutional because he was effectively arrested before
Officer McKenna saw the weapon in his pants. Because Riney
did not present this theory to the district court, we review it
only for plain error, but only if Riney can show good cause for
failing to make the argument in the district court. Fed. R. Crim.
P. 12(e); United States v. Figueroa, 622 F.3d 739, 742 (7th Cir.
6 No. 13‐1491
2010); United States v. Murdock, 491 F.3d 694, 698 (7th Cir. 2007).
Even if Riney shows good cause, the district court’s ruling will
stand unless Riney “can demonstrate an error that is plain, that
affects his substantial rights, and that seriously affects the
fairness, integrity or public reputation of the judicial proceed‐
ing, effectuating a miscarriage of justice.” United States v.
Iacona, 728 F.3d 694, 699 (7th Cir. 2013). Riney fails to meet
either of these high bars.
Riney does not attempt to show that he had good cause for
failing to present his Fourth Amendment argument to the
district court, and his argument fails on that basis alone. Even
if Riney could overcome that initial threshold, he cannot show
that the district court plainly erred by finding that his Fourth
Amendment rights were not violated. Officers may detain a
suspect for a brief investigatory stop if they have a “reasonable
suspicion based on articulable facts that a crime is about to be
or has been committed.” United States v. Williams, 731 F.3d 678,
683 (7th Cir. 2013), quoting United States v. Carlisle, 614 F.3d
750, 754–55 (7th Cir. 2010); see generally Terry v. Ohio,
392 U.S. 1, 30 (1968). Officers must have “more than a hunch,”
but an investigatory stop does not require probable cause.
United States v. Snow, 656 F.3d 498, 500 (7th Cir. 2011), quoting
Jewett v. Anders, 521 F.3d 818, 823 (7th Cir. 2008). If the officer
has an articulable suspicion that the person stopped is both
armed and dangerous, the officer may conduct a pat‐down
search to determine whether the person is carrying a weapon.
Terry, 392 U.S. at 27. “The officer need not be absolutely certain
that the individual is armed; the issue is whether a reasonably
prudent man in the circumstances would be warranted in the
belief that his safety or that of others was in danger.” Id. This
No. 13‐1491 7
is an issue that turns on the totality of the circumstances
confronting the officer. E.g., Snow, 656 F.3d at 501.
When they encountered Riney, Officers McKenna and Lara
were searching for two active shooters in the immediate area
who were described only as black males wearing dark cloth‐
ing. Within a short period of time they saw Riney, a black
male, sitting in a car with another black male approximately
two blocks away from the shooting. The officers stopped their
car, and as Riney and Officer McKenna exited their respective
cars, Officer McKenna saw what he believed to be the handle
of a gun protruding from Riney’s waistband. Officer Lara
yelled “show me your hands” and Officer McKenna also
directed commands at Riney, but Riney ignored them and
continued walking away at a fast pace. At that point, Officer
McKenna stopped Riney, frisked him, and recovered the
weapon.
Riney contends that as soon as the officers began shouting
commands at him, he was effectively arrested without proba‐
ble cause and that any evidence recovered after that
point—especially the revolver in his waistband—was recov‐
ered in violation of his Fourth Amendment rights. He cites
California v. Hodari D., 499 U.S. 621 (1991), for support, but
under Hodari D. a person who flees from a show of authority
by the police has not yet been seized. 499 U.S. at 626. Here,
when the officers issued commands to Riney, he did not yield
to their authority but walked away quickly. Given the
circumstances—the proximity to a recent violent crime, the
description of the shooters, Officer McKenna’s observation of
a weapon, Riney’s flight—Officer McKenna had reasonable
suspicion to stop and frisk Riney. See Illinois v. Wardlow,
8 No. 13‐1491
528 U.S. 119, 124 (2000) (evasive behavior is a factor that
contributes to a reasonable suspicion); Terry, 392 U.S. at 33
(Harlan, J., concurring) (“the right to frisk must be immediate
and automatic if the reason for the stop is, as here, an
articulable suspicion of a crime of violence”); United States v.
Patton, 705 F.3d 734 ,738–39 (7th Cir. 2013) (suspect’s refusal to
comply with police orders and high incidence of crime in the
area contributed to officer’s reasonable suspicion); Snow,
656 F.3d at 501 (affirming pat‐down of burglary suspect: “some
crimes by their very nature are so suggestive of the presence
and use of weapons that a frisk is always reasonable when
officers have reasonable suspicion that an individual might be
involved in such a crime”) (internal quotation omitted); United
States v. Richmond, 641 F.3d 260, 262 (7th Cir. 2011) (officer had
reasonable suspicion sufficient for frisk when he saw handgun
handle‐shaped bulge in suspect’s waistband); United States v.
Lenoir, 318 F.3d 725, 729 (7th Cir. 2003) (“[P]olice observation
of an individual, fitting a police dispatch description of a
person involved in a disturbance, near in time and geographic
location to the disturbance establishes a reasonable suspicion
that the individual is the subject of the dispatch.”). The district
court did not err, much less plainly err, in denying Riney’s
motion to quash or suppress evidence.
II. Obstruction of Justice Enhancement
In sentencing Riney, the district court imposed a two‐level
enhancement for obstruction of justice based on the affidavit
Riney submitted to the court in support of his motion to
suppress. Sentencing Guideline §3C1.1 permits such an
enhancement if:
No. 13‐1491 9
(1) the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the administra‐
tion of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to
(A) the defendant’s offense of conviction and any
relevant conduct; or (B) a closely related offense[.]
A finding that the defendant committed perjury supports this
enhancement. United States v. Dunnigan, 507 U.S. 87, 94 (1993);
U.S.S.G. § 3C1.1, App. Note 4(B).
“A defendant commits perjury if, while testifying under
oath, he ‘gives false testimony concerning a material matter
with the willful intent to provide false testimony, rather than
as a result of confusion, mistake, or faulty memory.’” United
States v. Johnson, 680 F.3d 966, 981 (7th Cir. 2012), quoting
Dunnigan, 507 U.S. at 94. To apply the enhancement based on
perjury, “the district court should make a finding as to all the
factual predicates necessary for a finding of perjury: false
testimony, materiality, and willful intent.” United States v.
Johnson, 612 F.3d 889, 893 (7th Cir. 2010). We review a district
court’s interpretation and application of the federal Sentencing
Guidelines to the facts de novo and its findings of fact for clear
error. United States v. White, 737 F.3d 1121, 1139 (7th Cir. 2013).
Here, the sentencing judge failed to make a finding concerning
Riney’s willfulness. Though that omission was an error, it was
harmless.
Judge Kennelly presided over Riney’s trial and imposed the
sentence. The obstruction issue was raised late, well after the
judge had made his Guideline finding, but the judge listened
10 No. 13‐1491
to the late and unexpected objection. He reviewed Riney’s
affidavit and found that his sworn description of his arrest and
search was very different from the version of those events
presented by Officer Lara’s and Officer McKenna’s testimony
before Judge Pallmeyer, and that Judge Pallmeyer had credited
the officers’ testimony. Though Judge Kennelly had not
reviewed the transcript of the evidentiary hearing, he heard the
officers’ testimony at trial and noted that the officers’ trial
testimony varied greatly from Riney’s affidavit. Judge Kennel‐
ly then decided that the affidavit had been material to Judge
Pallmeyer’s decision to grant an evidentiary hearing on Riney’s
motion to suppress. However, he did not make an explicit
finding as to whether the false statements in Riney’s affidavit
were willful before applying the two‐level enhancement for
obstruction of justice. On appeal, Riney argues that the district
court erred by finding that the affidavit was material and by
failing to find willfulness.
For these purposes a matter is “material” if it concerns
information “that, if believed, would tend to influence or affect
the issue under determination.” U.S.S.G. §3C1.1, App. Note 6.
Riney’s affidavit concerned a material matter. The affidavit
caused the district court to hold an evidentiary hearing to
determine whether the critical evidence supporting Riney’s
prosecution—the gun—was obtained by Officers McKenna and
Lara in violation of Riney’s Fourth Amendment rights. Riney’s
arguments to the contrary simply miss the point that the
affidavit caused the court to hold the evidentiary hearing. That
made it material. And of course, if Riney’s affidavit had been
believed, it would have required suppression of the evidence,
making it doubly material.
No. 13‐1491 11
The lack of an explicit finding of willfulness is more
problematic. Separate findings on each element of perjury,
though preferable, are not necessary if the court makes a
finding that “encompasses all of the factual predicates for a
finding of perjury.” Dunnigan, 507 U.S. at 95. A finding that the
defendant “lied” about a material matter can be sufficient in
some cases. See Johnson, 680 F.3d at 982 (finding “that the
defendant lied to the judge…about matters crucial to the
question of the defendant’s guilt” can be sufficient to support
perjury finding), quoting United States v. White, 240 F.3d 656,
662 (7th Cir. 2001); see also United States v. Grigsby, 692 F.3d
778, 786 (7th Cir. 2012) (finding that defendant made a “clear
material misrepresentation” in plea hearing testimony could
support perjury finding for obstruction of justice enhance‐
ment). But, like perjury, lying involves willfully making a false
statement. This record is sufficiently clear that the sentencing
judge believed statements in Riney’s affidavit were false, and
the record would easily have supported a finding of willful‐
ness. The differences between Riney’s affidavit and the offi‐
cers’ testimony were stark and would have been difficult to
attribute to faulty memory, confusion, haste, or other honest
mistake. The fact remains, though, that there was no finding
of willful falsity.
The error was harmless here, however, because the armed
career criminal guideline trumped the effect of the obstruction
enhancement, and there is no indication that the enhancement
had any effect on the ultimate sentence. Riney’s base offense
level was 24, and the obstruction enhancement added two
levels to 26. But the district court also found that Riney was an
armed career criminal, a finding that Riney does not dispute,
12 No. 13‐1491
which increased the offense level to 33. U.S.S.G.
§4B1.4(b)(3)(B). With a criminal history category of VI, Riney’s
resulting Guideline range was 235 to 293 months in prison. The
district judge sentenced Riney below that range, to 204 months
in prison, which took into account the uncredited time that
Riney had spent in state custody before the federal charge was
filed and the judge’s view that the age of Riney’s convictions
meant that criminal history category VI was a little too high to
fit Riney.
Because of the finding that Riney was an armed career
criminal, Riney’s offense level and guideline range would have
been the same regardless of the application of the obstruction
of justice enhancement. See United States v. Harmon, 721 F.3d
877, 892 (7th Cir. 2013) (any error in dating drug distribution
conspiracy was harmless; although finding affected criminal
history, defendant’s guideline range was the same whether
sentenced under criminal history category I or II); United
States v. Carter, 410 F.3d 942, 955 (7th Cir. 2005) (application of
obstruction of justice enhancement was harmless error because
it had no effect on defendant’s sentencing range). And after
making the obstruction finding, the district court never
mentioned it again. The court’s thoughtful explanation of the
sentence focused on the particulars of this defendant and his
offense, but not the obstruction issue. In the absence of any
indication that the obstruction enhancement had any effect on
the sentence, the absence of a willfulness finding was harmless.
The judgment of the district court is AFFIRMED.