In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐2905
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ANTHONY M. LYONS,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:11‐cr‐30068‐SEM‐BGC‐1 — Sue E. Myerscough, Judge.
____________________
ARGUED SEPTEMBER 18, 2013 — DECIDED OCTOBER 28, 2013
____________________
Before BAUER, POSNER, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Anthony M. Lyons appeals his
criminal conviction before the United States District Court
for the Central District of Illinois for possession of a firearm
as a felon, as well as his sentencing as an Armed Career
Criminal under 18 U.S.C. § 924(e). As to the conviction, he
challenges the district court’s denial of his motion to sup‐
press the firearm found during a traffic stop because, he al‐
leges, the officers lacked reasonable suspicion to frisk him.
2 No. 12‐2905
As to the sentence, he argues that the district court failed to
state any reasons for imposing a sentence of 210 months’
imprisonment, and that the district court improperly sen‐
tenced him to five years of supervised release under the er‐
roneous assumption that such a period was mandatory, ra‐
ther than left to the court’s discretion. We affirm Lyons’s
conviction, but we remand the case for resentencing because
the district court failed to state the reasons supporting its
sentence, and because it incorrectly believed it was required
to impose a five‐year period of supervised release.
I. BACKGROUND
A. The Traffic Stop
On September 14, 2011, four Springfield police officers
went on patrol in an unmarked squad car. At about 9:00
p.m., the officers spotted a blue Cadillac driven by James
White. Lyons was in the passenger seat. One of the police‐
men, Officer Dodd, later testified that he recognized White
from numerous previous encounters. Nine months earlier,
he had attempted to pull White over for a traffic violation,
whereupon White fled and crashed his car; officers found a
firearm inside the vehicle. Five months after that first inci‐
dent, Officer Dodd and a fellow officer attempted to execute
a warrant for White’s arrest while he was outside his apart‐
ment. Rather than complying, White fled inside and blocked
the door. Upon forcing the door open, the officers discov‐
ered drug manufacturing material in plain view. They then
secured a search warrant for the apartment and discovered
two firearms and a significant amount of cocaine. Another
officer riding in the unmarked police car on the night of Sep‐
tember 14, Officer Burns, testified that, although he had nev‐
No. 12‐2905 3
er encountered White himself before that night, he was
aware of White’s two previous attempts to flee arrest.
Aside from these chases, Officer Dodd had pulled White
over several times for traffic infractions, and he knew that
his license had been suspended. The officers decided to stop
White on suspicion of driving with a suspended license and
activated the squad car’s emergency lights. Instead of pull‐
ing over, White accelerated the car. According to the officers,
he drove at least two blocks and ran a “solid” red light (one
that was “near the end of its red cycle”) before pulling his
car to the curb.
At the time, Officers Dodd and Burns belonged to the po‐
lice department’s Street Crimes Unit, and both were veteran
police officers, having served seven and six years, respec‐
tively. They later testified that, based on White’s prior con‐
duct and their own experience, they suspected White had
fled in an attempt to conceal contraband, retrieve a weapon,
or give himself a head start in a foot chase.
Once the vehicle came to a stop, Officers Dodd ap‐
proached White and asked him to step out of the car. Anoth‐
er officer frisked White. Meanwhile, Officer Burns ap‐
proached the passenger’s seat and observed Lyons. He later
testified that he noticed immediately that Lyons’s hands
were shaking and that he avoided eye contact when answer‐
ing questions. Officer Burns then asked Lyons to step out of
the car as well. He observed that Lyons’s hands were still
shaking as he exited the vehicle, but when he asked Lyons if
he had any weapons, Lyons responded that he did not.
Officer Burns then announced that he intended to frisk
Lyons for weapons. According to Officer Burns, Lyons hung
4 No. 12‐2905
his head and said, “I have a gun on me.” As Officer Burns
proceeded to handcuff Lyons, Officer Dodd approached
from the driver’s side of the car and lifted up Lyons’s shirt,
revealing a loaded firearm in his waistband. Officer Dodd
said that at this point he recognized Lyons as someone he
had seen with White on “numerous occasions.” The officers
then placed him under arrest. Officers Dodd and Burns testi‐
fied that the entire encounter, from the first observation of
White’s car to the subsequent arrest of Lyons, lasted about
seventeen minutes.
Lyons was charged with possession of a firearm as a fel‐
on. On January 8, 2012, a magistrate judge recommended
that the district court deny Lyons’s motion to suppress the
firearm. The judge advanced two grounds for the recom‐
mendation. First, he found that no search had occurred by
the time Lyons admitted he possessed the firearm, and his
statement provided ample reason for Officer Dodd to lift up
Lyons’s shirt. Alternatively, the magistrate judge determined
that Officer Burns had reasonable, articulable suspicion that
Lyons might be armed and dangerous, and therefore that the
announced frisk was lawful, regardless of whether it began
before Lyons made his statement. The district court agreed
with the magistrate judge’s second finding, and declined to
reach the question of when the search began.
To support its decision, the district court found four fac‐
tors triggered the officers’ reasonable suspicion that Lyons
illegally possessed a firearm or other dangerous items. First,
Lyons appeared nervous when questioned. Second, Lyons
was a passenger in a car driven by someone with a suspend‐
ed license, who had just attempted to flee from the police.
Third, the officers knew that White had attempted to flee
No. 12‐2905 5
from police officers during a traffic stop within the past sev‐
eral months, and that police had found a firearm in White’s
possession after giving chase. Fourth, the officers knew that
White had fled from officers in a separate incident near his
apartment, in which firearms were also discovered.
The court noted that Lyons’s association with White, a
known criminal, reasonably contributed to the officers’ sus‐
picion. It observed that White could have posed a danger to
the police, and that any passenger in the car with him may
have presented a similar threat to officer safety. The court
therefore concluded that “Officer Burns had a reasonable,
articulable suspicion that [Lyons] … may have been armed
and dangerous” and that the frisk was reasonable. United
States v. Lyons, 856 F. Supp. 2d 946, 954 (C.D. Ill. 2012). The
time between the beginning of the stop and the arrest—less
than seventeen minutes, according to the officers’ testimo‐
ny—indicated to the court that their reasonable suspicion
did not dissipate during the stop. Lyons was convicted fol‐
lowing a one‐day jury trial.
B. Sentencing
Lyons’s Presentence Report (“PSR”) indicated that he
qualified as an Armed Career Criminal under 18 U.S.C. §
924(e) due to his prior commission of three serious drug of‐
fenses. The statute provides a mandatory minimum sentence
of 15 years, and Lyons’s federal sentencing guidelines range
was 210‐262 months’ imprisonment. The PSR calculated his
statutory supervised release term as “[n]ot more than 5
years,” 18 U.S.C. § 3583(b)(1), and the guidelines range for
his supervised release term spanned two to five years.
6 No. 12‐2905
At sentencing, the district court ruled that Lyons was an
Armed Career Criminal and adopted the proposed guide‐
lines range. The government requested a sentence of 262
months’ imprisonment, at the high end of the range. In re‐
sponse, Lyons’s trial counsel argued for three alternative
sentences. The first was a sentence of ten years’ imprison‐
ment, which fell below the mandated minimum provided
under the Armed Career Criminal Act. The second was a
sentence of fifteen years, the precise statutory minimum. The
third was a sentence of 210 months, the minimum guidelines
sentence recommended by the PSR.
The district court acknowledged that the guidelines were
advisory and that it had considered both the guidelines and
the sentencing factors set forth in 18 U.S.C. § 3553(a). The
court also explained that it had reviewed the PSR, the sen‐
tencing commentary from both parties, and arguments made
by counsel. It then sentenced Lyons to 210 months’ impris‐
onment, as proposed in the alternative by Lyons. In a post‐
sentencing order, the district court considered Lyons’s objec‐
tions to the PSR, and then stated that:
[A]fter considering the case file, relevant Guideline
provisions, relevant statutory sentencing factors, ar‐
guments of counsel, and Defendant’s statements at
the sentencing hearing, this Court sentenced De‐
fendant to 210 months of imprisonment. The Court
found that the sentence was sufficient, but not great‐
er than necessary. See U.S.C. § 3553(a).
United States v. Lyons, 3:11‐cr‐30068, slip op. at 16 (C.D. Ill.
Aug. 24, 2012). The district court provided no explanation as
to which factors in particular supported the sentence it im‐
No. 12‐2905 7
posed, or why this specific within‐guidelines sentence was
appropriate.
The PSR also calculated Lyons’s statutory supervised re‐
lease term to be “[n]ot more than 5 years.” But during the
sentencing hearing the court stated that Lyons “will still
have to serve five years of mandatory supervised release.” In
its judgment, the court referred to the term as “5 years Man‐
datory Supervised Release,” and in its Statement of Reasons,
it checked the box indicating that the “mandatory minimum
sentence was imposed.”
II. DISCUSSION
A. The Suppression Motion
Lyons first challenges the denial of his motion to sup‐
press the firearm as the product of an unreasonable frisk. We
review a district court’s legal judgment as to the constitu‐
tionality of a frisk de novo, and its factual findings for clear
error. United States v. Tinnie, 629 F.3d 749, 751 (7th Cir. 2011).
Lyons does not dispute that officers had a reasonable ba‐
sis to stop the car on the suspicion that White was driving
without a license. See Terry v. Ohio, 392 U.S. 1, 27 (1968). Up‐
on initiating a traffic stop, officers may “frisk the driver and
any passengers upon reasonable suspicion that they may be
armed and dangerous.” Tinnie, 629 F.3d at 751 (7th Cir. 2011)
(citing Arizona v. Johnson, 555 U.S. 323 (2009)). This suspicion
must be particularized; there must be “reasonable belief or
suspicion directed at the person to be frisked.” Ybarra v. Illi‐
nois, 444 U.S. 85, 94 (1979). In Ybarra, the Supreme Court held
that probable cause that a bartender of a tavern had commit‐
ted a crime did not automatically generate reasonable, par‐
ticularized suspicion toward individual patrons present dur‐
8 No. 12‐2905
ing the search. Lyons contends that the officers in this case
likewise lacked particularized suspicion of him, as opposed
to James White, the driver of the car.
This argument is unavailing. Officer Burns noted that
Lyons appeared nervous, and that his hands were shaking.
Although not conclusive, such observations may contribute
to reasonable suspicion. “A display of nervousness is fre‐
quently recognized as a sign that a suspect has something to
hide, including a weapon.” United States v. Patton, 705 F.3d
734, 740 (7th Cir. 2013); see United States v. Oglesby, 597 F.3d
891, 894 (7th Cir. 2010). It is true, as Lyons points out, that
Officer Burns conceded that such a nervous reaction was
typical of traffic stops he had conducted throughout his ca‐
reer, but by this time it was apparent this was no ordinary
traffic stop. The officers clearly had reasonable suspicion
that White, who had been recently arrested with firearms at
least twice and who had just attempted to flee through a red
light, was armed and readily willing to put the safety of oth‐
ers at risk to avoid or delay an encounter with the police.1
Lyons’s decision to associate himself with White and ride in
his car properly contributed to the officers’ suspicion of him.
See United States v. Feliciano, 45 F.3d 1070, 1074 (7th Cir. 1995)
1 As already noted, Officer Burns testified that he was aware of White’s
past flight attempts. However, even if he were not, he could still rely on
Officer Dodd’s experience to support his decision to frisk Lyons. “When
law enforcement officers are in communication regarding a suspect, …
the knowledge of one officer can be imputed to the other officers under
the collective knowledge doctrine.” United States v. Lenoir, 318 F.3d 725,
728 (7th Cir. 2003).
No. 12‐2905 9
(An individual’s criminal association “is a permissible com‐
ponent of the articulable suspicion required for a Terry
stop.”); United States v. Duguay, 93 F.3d 346, 350 (7th Cir.
1996) (defendant’s “nefarious associates” contributed to rea‐
sonable suspicion supporting a frisk); United States v.
Wheeler, 800 F.2d 100, 103–04 (7th Cir. 1986), overruled on oth‐
er grounds by United States v. Sblendorio, 830 F.2d 1382 (7th
Cir. 1987). Finally, the officers could have reasonably con‐
cluded, based on White’s behavior and their experience, that
he accelerated his car in order to afford him time to transfer
a firearm to Lyons before the police arrived.2 Based on the
totality of circumstances, it was therefore reasonable for the
officers to suspect Lyons of being armed and dangerous.
The Supreme Court has held that police in certain cir‐
cumstances may impute suspicion of a vehicle’s driver to its
passengers. For example, the police may order passengers
out of a vehicle during a traffic stop, in part because “the
motivation of a passenger to employ violence to prevent ap‐
prehension of such a crime is every bit as great as that of the
driver.” Maryland v. Wilson, 519 U.S. 408, 414 (1997). The
Court has also held that police have probable cause to arrest
a front‐seat passenger of a car in which they found drugs.
Maryland v. Pringle, 540 U.S. 366, 372–73 (2003). The Court
noted that “‘a car passenger—unlike the unwitting tavern
patron in Ybarra—will often be engaged in a common enter‐
2 Lyons points out that the officers did not observe any furtive move‐
ments indicating that White did transfer a weapon, but obviously their
observation of White’s movement could have been obscured by his
flight. The fact that the police did not witness a transfer does not dispel
objective suspicion that White may have given Lyons a weapon.
10 No. 12‐2905
prise with the driver, and have the same interest in conceal‐
ing the fruits or the evidence of their wrongdoing.’” Id. at
373 (quoting Wyoming v. Houghton, 526 U.S. 295, 304–05
(1999)). In the case of James White, evidence of wrongdoing
could easily have included possession of firearms, and his
abortive flight from the officers gave him the opportunity to
transfer any such weapons to Lyons. Under the circumstanc‐
es, the police reasonably suspected both White and Lyons of
carrying guns, and it would have been quite dangerous to
frisk White alone and simply hope Lyons was unarmed.
Lyons resists this conclusion by pointing to our recent
decision deeming a frisk unreasonable in United States v. Wil‐
liams, No. 12‐3864, 2013 WL 5314594 at *8 (7th Cir. Sept. 24,
2013). In that case, police responded to an anonymous 911
call regarding a group of men brandishing guns; when offic‐
ers arrived at the scene a few minutes later, they found a
(possibly different) group of eight to ten men standing in a
parking lot, without any guns visible. The police then zeroed
in on one of the men, Williams, and frisked him. Without
delving too deeply into the facts and reasoning of that deci‐
sion, we find it to be inapposite to the facts here. The panel
in Williams explicitly distinguished that case from one in
which the suspect “was part of a group that was openly vio‐
lating the law.” Id. at *9. In this case, by contrast, Lyons asso‐
ciated himself with a person who flagrantly and dangerous‐
ly broke the traffic laws, in full view of the police. And offic‐
ers in Williams made their stop during an investigation of an
anonymous tip, not based on their previous first‐hand en‐
No. 12‐2905 11
counters with the defendant’s companion. 3 Id. at *1. Finally,
Williams involved a stop of eight to ten individuals standing
in a parking lot, a group significantly less likely to be acting
in concert than two people travelling together in a car. Wil‐
liams does not alter our conclusion that the frisk was lawful.
Because the officers had reasonable suspicion to frisk Ly‐
ons, we need not decide whether the frisk had in fact begun
by the time Lyons admitted that he possessed a firearm. We
accordingly affirm the district court’s denial of Lyons’s sup‐
pression motion and uphold his conviction.
B. Sentencing
Although we affirm Lyons’s conviction, we must remand
for resentencing because the district court committed two
procedural errors.4 We review a sentence for procedural er‐
ror de novo. United States v. Annoreno, 713 F.3d 352, 356 (7th
Cir. 2013), cert. denied, 2013 WL 4080028 (Oct. 7, 2013) (No.
13‐5775). In evaluating the sentence, we must “ensure that
3 These facts also distinguish Lyons’s situation from the other cases he
uses to characterize the frisk as unreasonable. See United States v. Wilson,
506 F.3d 488, 494 (6th Cir. 2007) (driver and passenger pulled over for
not wearing their seat belts); United States v. Di Re, 332 U.S. 581, 592–93
(1948) (driver and passenger frisked for counterfeit gasoline ration cou‐
pons); Sibron v. New York, 392 U.S. 40, 62–64 (1968) (defendant’s discus‐
sions with narcotics addicts did not support protective frisk).
4 In addition to the two issues discussed below, Lyons objects that the
government was required to allege the nature and fact of his prior con‐
victions in his indictment, and prove them beyond a reasonable doubt to
a jury. But he concedes that his argument is foreclosed by Alamendarez‐
Torres v. United States, 523 U.S. 224 (1998). Therefore we do not disturb
his sentence on this ground.
12 No. 12‐2905
the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, fail‐
ing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately ex‐
plain the chosen sentence.” Gall v. United States, 552 U.S. 38,
51 (2007); see also United States v. Jackson, 547 F.3d 786, 792
(7th Cir. 2008). Because we find two procedural errors in Ly‐
ons’s sentence, we vacate and remand for resentencing
without reaching the question of whether the sentence was
substantively reasonable.
1. Supervised release
The government concedes that the district court sen‐
tenced Lyons to five years of supervised release under the
misapprehension that this was the statutorily prescribed
minimum sentence. In fact, five years was the maximum
term permitted under the statute. 18 U.S.C. § 3583(b)(1).
Therefore, the sentence contains manifest procedural error
and must be vacated. See Gall, 552 U.S. at 51. On remand, the
district court shall impose a term of supervised release, not
exceeding five years, based on its own reasoned judgment.
2. Failure to explain the sentence
At the outset, the government contends that Lyons failed
to object to any deficiencies in the district court’s explanation
for the sentence it reached, and therefore that our review
should be only for plain error. However, the district court
never gave Lyons an opportunity to object until it had al‐
ready imposed the sentence. And a defendant “is not re‐
quired to except to rulings by the trial judge” once they are
handed down. United States v. Cunningham, 429 F.3d 673,
No. 12‐2905 13
679–80 (7th Cir. 2005). Although the court did substantively
adopt what was essentially Lyons’s second fallback proposal
of 210 months’ imprisonment, Lyons did not thereby forfeit
his right to a procedurally valid sentencing, including an ex‐
planation for the term of imprisonment imposed. According‐
ly, this court will review the district court’s explanation for
its sentence de novo.
“A sentencing court commits procedural error by not ad‐
equately explaining its choice of sentence.” United States v.
Garcia‐Oliveros, 639 F.3d 380, 381 (7th Cir. 2011). The sentenc‐
ing judge must, “at the time of sentencing, … state in open
court the reasons for its imposition of the particular sen‐
tence.” 18 U.S.C. § 3553(c). Section 3553(c)(1) further requires
that, for a sentence with an advisory guidelines range ex‐
ceeding 24 months, the judge must also state “the reason for
imposing a sentence at a particular point within the range.”
Both during the sentencing hearing and in its order, the
district court simply acknowledged that it had considered
the PSR, the guidelines, the § 3553(a) factors, and both sides’
arguments, and then imposed sentence. We have held that
“[a] rote statement that the judge considered all relevant fac‐
tors will not always suffice” to meet the district court’s statu‐
tory obligations. Cunningham, 429 F.3d at 679. The only elab‐
oration on that “rote statement” the district court provided,
in either the sentencing hearing or its order, was its remark
that the “sentence was sufficient, but not greater than neces‐
sary.” This partial boilerplate naturally raises the question of
which particular goals the sentence achieved—“necessary”
for what?—and why this precise sentence met those ends.
The record gives no indication of how the district court
weighed the various sentencing factors, or what facts sup‐
14 No. 12‐2905
ported the exercise of its discretion. The sentence is proce‐
durally infirm.
To be sure, the district court is not required to recite and
address each of the § 3553(a) sentencing factors, or all of a
defendant’s arguments for a lighter sentence. See United
States v. Rodriguez‐Alvarez, 425 F.3d 1041, 1047 (7th Cir. 2005);
Cunningham, 429 F.3d at 679. And in general “cases in which
we have remanded because of insufficient explanation of a
sentence have usually involved a failure by the sentencing
judge to respond to a principal, nonfrivolous argument in
mitigation.” United States v. Salvanki, 458 F. Appʹx 559, 562–
63 (7th Cir. 2012); see also Garcia‐Oliveros, 639 F.3d at 381–82
(7th Cir. 2011). We do not require that the district court ex‐
pend its limited resources “belabor[ing] the obvious.” United
States v. Gary, 613 F.3d 706, 709 (7th Cir. 2010).
Here, the government argues that Lyons presented only
frivolous arguments in favor of a sentence shorter than 210
months—first proposing an unlawful sentence below the
statutory minimum, and then a sentence exactly at the statu‐
tory minimum. For the latter sentence, Lyons’s trial counsel
argued that, because mandatory minimums control over
lower guidelines ranges, they should also trump higher
guidelines ranges. Counsel added that the statutory mini‐
mum was Congress’s considered sentence for “a similarly
situated defendant to Mr. Lyons.” The government points
out that this argument, which relies on a failure to under‐
stand the term “minimum,” is frivolous, and not the type of
contention the district court must address. The government
concludes that, without a viable argument for Lyons’s two
lower proposed sentences, the district court was justified in
No. 12‐2905 15
picking the third, especially because it fell at the extreme
lower limit of the guidelines range.
However, the government fails to appreciate that other
below‐guidelines sentences—lying above the statutory min‐
imum—were available. And the district court’s explanation
for declining to impose such a lower term is not merely in‐
sufficient, but absent. A court may not arrive at a sentence
simply by the process of eliminating the defendant’s other
proposals; the fact that Lyons suggested a 210‐month sen‐
tence as one alternative does not relieve the district court of
its obligation to explain its own reasons. Without this expla‐
nation, “meaningful appellate review” of the sentence’s rea‐
sonableness is impossible. Gall, 552 U.S. at 50.
The government is correct that “[l]ess explanation is typi‐
cally needed when a district court sentences within an advi‐
sory guidelines range.” United States v. Harris, 567 F.3d 846,
854 (7th Cir. 2009). But a district court may not simply pre‐
sume that a particular within‐guidelines sentence is reason‐
able. See Rita v. United States, 551 U.S. 338, 351 (2007); United
States v. Ross, 501 F.3d 851, 853 (7th Cir. 2007). It requires
some independent justification. See Cunningham, 429 F.3d at
680 (“[I]nadequate explanation for the sentence precludes
our affirmance” even of a guidelines sentence.). Instead, the
record here reveals “complete silence” as to the district
court’s reasoning. Garcia‐Oliveros, 639 F.3d at 382. In sum,
“[t]he record before us is too thin to discern the considera‐
tions which motivated the district court’s sentencing deci‐
sion.” Id. As the district court is considering Lyons’s term of
supervised release on remand, it should also provide a suffi‐
cient basis for whatever custodial sentence it decides to im‐
16 No. 12‐2905
pose. In remanding, we express no view as to what a sub‐
stantively appropriate sentence might be in this case.
III. CONCLUSION
We AFFIRM the district court’s denial of the motion to
suppress. We VACATE the Appellant’s sentence and re‐
mand for further proceedings consistent with this opinion.