RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0007p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
│ No. 14-3227
v. │
>
│
CHARLES GATSON, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:13-cr-00313-1—Christopher A. Boyko, District Judge.
Argued: December 4, 2014
Decided and Filed: January 15, 2015
Before: BATCHELDER and KETHLEDGE, Circuit Judges; COLLIER, District Judge.1
_________________
COUNSEL
ARGUED: Matthew J. Cronin, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio,
for Appellee. ON BRIEF: Paul F. Adamson, BURDON & MERLITTI, Akron, Ohio, for
Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY’S OFFICE, Cleveland,
Ohio, for Appellee.
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OPINION
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KETHLEDGE, Circuit Judge. A police officer found a pistol in Charles Gatson’s car,
which eventually led to his conviction for being both a felon in possession of a firearm and a
1
The Honorable Curtis L. Collier, United States District Judge for the Eastern District of Tennessee, sitting
by designation.
1
No. 14-3227 United States v. Gatson Page 2
misdemeanant with a domestic-violence conviction in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1) and (9), respectively. The district court sentenced Gatson to 180 months’
imprisonment. Gatson now challenges the denial of his motion to suppress evidence of the pistol
and his sentence, arguing as to the latter that the district court improperly designated him a career
offender. We affirm.
I.
The district court accepted the following facts as true. On June 5, 2014, East Cleveland
police officers Herbert Hupe and Shannon Cushman heard from dispatch that a school-bus driver
named Byrd had reported that a man was approaching young girls. Byrd described the man as a
black male with medium-toned skin and short hair, and said that he drove a black GMC SUV.
Byrd also said the man was on Euclid Avenue—an east-west street on which the school-bus
depot is located—and specifically that he was between Rally’s, a fast-food restaurant one block
west of the depot, and Eastham Avenue, which is a north-south cross-street just east of the depot.
Hupe and Cushman arrived within a minute, traveling east on Euclid. They drove past
Rally’s, where the parking lot was empty, and then past the bus depot, where a few adults stood
outside. Moments later the officers turned into a parking lot for Walgreen’s, which is located on
Euclid about a block east of the bus depot. There they saw a dark grey GMC SUV with a black
male with short hair and medium-brown skin sitting in the driver’s seat. Rather than approach
him, the officers drove back to the bus depot, where Cushman talked with Byrd while Hupe
waited in the car. At that point, another police officer, Brandon Tisdale, drove up. Cushman
told Hupe and Tisdale that their suspect was in the Walgreen’s parking lot.
Hupe was back at Walgreens less than a minute later, followed by Tisdale in his cruiser.
Their suspect—later identified as Gatson—still sat in his SUV. Hupe walked up to an open
window on the passenger’s side of the SUV and asked Gatson why he was at Walgreen’s.
Gatson said he was waiting for a friend. Then Tisdale walked up to the open driver’s side
window and likewise asked Gatson why he was there. Gatson said that he had just taken his kids
to school. The officers noticed that Gatson’s speech was slurred and his movements sluggish.
They asked if he had been drinking. Gatson said yes. They asked if he had been talking to
young girls. Gatson said yes.
No. 14-3227 United States v. Gatson Page 3
Tisdale asked Gatson for some ID. As Gatson tried to find it, the officers saw him use
both hands to push something between the driver’s seat and center console. Tisdale asked
Gatson to step out of the vehicle, which he did. Hupe handcuffed Gatson, then frisked him—
finding his driver’s license in his front pocket—and locked him in the police cruiser. Then
Tisdale entered Gatson’s license number into his cruiser’s computer while Hupe walked around
to the driver’s side of the SUV. He saw a pistol handle protruding from the space between the
driver’s seat and center console, where Gatson had been pushing something with his hands.
Hupe retrieved the pistol and gave it to Tisdale.
A grand jury later indicted Gatson for being a felon in possession of a firearm and a
misdemeanant with a domestic-violence conviction in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1) and (9). Gatson moved to suppress evidence of the pistol. The district
court held an evidentiary hearing, at which Hupe, Tisdale, and Gatson testified. The court
accepted the testimony of Hupe and Tisdale as true, and denied the motion. Gatson then pled
guilty, but reserved his right to appeal the denial of his suppression motion.
At sentencing, the court determined that Gatson was subject to a 15-year mandatory
minimum under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because of his prior
convictions for arson and domestic violence. This determination increased the lower end of
Gatson’s Guidelines range from 168 to 180 months; his upper end remained 210 months. The
court sentenced Gatson to 180 months’ imprisonment.
This appeal followed.
II.
A.
Gatson argues that the stop during which the police found the pistol was illegal. We
review the legality of an investigatory stop de novo, viewing the evidence in the light most
favorable to the district court’s decision. United States v. Campbell, 549 F.3d 364, 370 (6th Cir.
2008).
No. 14-3227 United States v. Gatson Page 4
If a police officer has reasonable suspicion that a person is engaged in criminal activity,
the officer may briefly detain the person to investigate. Terry v. Ohio, 392 U.S. 1, 30 (1968).
Reasonable suspicion must be based on specific, articulable facts. Campbell, 549 F.3d at 371.
“Reasonable suspicion need not arise from an officer’s direct observation, but can be
based on informant tips and dispatcher information.” Smoak v. Hall, 460 F.3d 768, 779 (6th Cir.
2006). Specifically, a tip from an identifiable informant who gives reasonably detailed
information can provide reasonable suspicion, especially if an investigating officer’s own
observations contribute to his suspicions. Id. at 779-80. Here, Gatson argues that Byrd was
more like an anonymous informant, because the officers who detained him did not talk to her
directly. But the law did not require them to. See id. at 779. And Byrd was not anonymous:
Hupe and Tisdale undisputedly knew her name and that she drove a school bus, which in turn
enhanced the credibility of her report that she had seen a man soliciting schoolgirls. The officers
also spotted a dark-colored GMC SUV less than a block from where Byrd had seen such a
vehicle—and inside sat a man matching the description she had provided. These facts were
enough to give the officers reasonable suspicion that Gatson had been engaged in criminal
activity.
Gatson next argues that the officers exceeded the bounds of an investigatory stop when
they removed him from his vehicle and then searched it. The question here depends on whether
the officers had reason to suspect that Gatson was armed and dangerous; if so, the officers were
entitled—among other measures for their own safety—to remove him from the vehicle, handcuff
him, frisk him for weapons, and conduct a protective search of the vehicle itself to ensure that
Gatson could not retrieve a weapon upon reentering it. Arizona v. Johnson, 555 U.S. 323, 330-
32 (2009); United States v. Graham, 483 F.3d 431, 440 (6th Cir. 2007). Gatson disputes none of
these points, or even that the district court’s findings supported its determination that the officers
had reason to think Gatson was armed and dangerous. Instead, he contends that the court should
have found that his testimony at the evidentiary hearing was more credible than the officers’ was.
We review a district court’s credibility determination for clear error, but give the court an
extra measure of deference. United States v. Smith, 594 F.3d 530, 535 (6th Cir. 2010). That is
not to say those determinations are beyond review; but to overcome them, a party must
No. 14-3227 United States v. Gatson Page 5
contradict them with objective evidence or show that a witness’s story is “so internally
inconsistent or implausible on its face that a reasonable factfinder would not credit it[.]”
Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985).
Gatson contends that standard is met here because the officers included in their testimony
at least two details they had omitted from some earlier statements regarding their encounter with
Gatson. First, Gatson asserts that neither officer mentioned, during interviews with an ATF
agent after Gatson’s arrest, that Gatson’s pistol had been in plain view next to the GMC’s center
console. But the record does not support that assertion as to Hupe: the ATF agent testified only
that Tisdale had not mentioned that the pistol was in plain view; the agent said nothing about
whether the same was true of Hupe. And Tisdale’s omission is not especially significant given
that he was not the officer who had spotted the gun. Second, Gatson points out, correctly, that
neither officer mentioned in his police report of the incident that Gatson told them he had been
talking to young girls. But that point is collateral both to the question whether Gatson was armed
and dangerous and to the reports’ focus by then—which was Gatson’s unlawful possession of the
gun. So that omission does not upend the court’s credibility determination either.
Gatson also contends the officers contradicted each other at the hearing. But again that
stretches the record farther than we can on appeal. Each officer testified that he asked Gatson
what he was doing in the parking lot at Walgreen’s. According to Hupe, Gatson told him that he
was waiting for a male friend; according to Tisdale, Gatson told him that he had just dropped his
kids off at school. That testimony is not necessarily contradictory, in part because Gatson
responded separately to each of them; and to the extent there is any contradiction, it impeaches
Gatson as much as it does the officers.
Finally, Gatson argues that his pistol could not have been in plain view because the
officers did not see it when they removed him from the SUV. But the officers plausibly
explained that they were focused on Gatson himself while they removed him from the SUV, and
that Gatson’s body—he weighs about 240 pounds—might have obstructed their view of the gun,
whose handle alone protruded from the seat cushion. The district court did not clearly err when
it credited the officers’ testimony.
No. 14-3227 United States v. Gatson Page 6
B.
Gatson challenges the district court’s conclusion that Gatson was a career offender under
18 U.S.C. § 924(e). That section requires a minimum sentence of 15 years’ imprisonment for a
defendant who is convicted of a firearms crime listed in 18 U.S.C. § 922(g) and who has been
convicted of three or more violent felonies. 18 U.S.C. § 924(e)(1). Here, the district court
determined that Gatson had three convictions for Ohio state-law crimes that are violent felonies
for purposes of § 924(e): one for arson, and two for domestic violence. We review that
determination de novo. United States v. Mitchell, 743 F.3d 1054, 1058 (6th Cir. 2014).
A violent felony is a felony that either “has as an element the use, attempted use, or
threatened use of physical force against another” or “is burglary, arson, or extortion, involves the
use of explosives, or otherwise involves conduct that presents a serious potential risk of physical
injury to another[.]” § 924(e)(2)(B). To determine if a felony fits either category, we first look
to the statutory definition of the offense. Mitchell, 743 F.3d at 1058. If the elements of the
offense show that it is always a violent felony, then we look no further. Id. If the offense
contains alternative elements that would render the felony nonviolent, however, then we review
the indictment or jury instructions to determine which of the alternative elements were met in the
defendant’s case. Descamps v. United States, 133 S. Ct. 2276, 2283-84 (2013).
Section 924(e) specifically lists arson as a violent felony. But not every felony that a
state labels an arson fits § 924(e)’s definition of arson. See Taylor v. United States, 495 U.S.
575, 590-92 (1990). Instead, we ask whether Gatson’s offense comports with the “generic,
contemporary meaning” of arson. See id. at 598.
When Gatson committed arson in Ohio, he “knowingly caused or created a substantial
risk of physical harm to property without the victim’s consent” by “means of fire or explosion[.]”
Ohio Rev. Code § 2909.03(A)(1). (His arson was a felony instead of a misdemeanor, the
indictment tells us, because he damaged property—a car—worth $500 or more.) Gatson
contends this crime is not arson in the generic sense because the crime does not include, as an
element, a risk of harm to people. But even a fire whose purpose is to destroy personal
property—say, a car—might well harm an occupant, bystander, or firefighter. And more to the
point, a risk of harm to people is not an element of generic arson; most states (and federal law)
No. 14-3227 United States v. Gatson Page 7
“make arson of personal property a crime” regardless. United States v. Misleveck, 735 F.3d 983,
986 (7th Cir. 2013). Thus, like every other court to consider the question, we conclude that
generic arson embraces “the intentional or malicious burning of any property[,]” id. at 988—
which is what Gatson was convicted of doing.
That leaves his domestic-violence convictions. In addition to the listed offenses, § 924(e)
covers any crime that “has as an element the use, attempted use, or threatened use of physical
force against another[.]” § 924(e)(2)(B)(i). Physical force in this context means “violent force—
that is, force capable of causing physical pain or injury to another person.” Johnson v. United
States, 559 U.S. 133, 140 (2010) (emphasis in original).
Gatson’s domestic-violence convictions establish that he “knowingly caused, or
attempted to cause, physical harm to a family or household member.” Ohio Rev. Code
§ 2919.25(A). (Once again, the indictments tell us these convictions were for felonies instead of
misdemeanors, because Gatson had two or more prior domestic-violence convictions.) Here, the
key term is “physical harm,” which Ohio defines as “any injury, illness, or other physiological
impairment, regardless of its gravity or duration.” Ohio Rev. Code § 2901.01(A)(3). Force that
causes any of those things is (to some extent, by definition) force “capable of causing physical
injury or pain to another person.” Johnson, 559 U.S. at 140. That means Gatson’s domestic-
violence convictions are violent felonies within the meaning of § 924(e).
But Gatson argues that the Supreme Court’s recent decision in United States v.
Castleman, 134 S. Ct. 1405 (2014), supports the opposite conclusion. In Castleman, the Court
interpreted the same two words that the Court interpreted in Johnson—“physical force”—but did
so for purposes of a different provision, namely, 18 U.S.C. § 922(g)(9), which bars possession of
a firearm by any person convicted of a “misdemeanor crime of domestic violence.” Id.
“Ultimately, context determines meaning,” Johnson, 559 U.S. at 139; and in Castleman the
Court concluded that “physical force” has an even broader meaning in the context of
“misdemeanor crime of domestic violence” under § 922(g)(9) than that same term does in the
context of “violent felony” under § 924(e). 134 S. Ct. at 1412-13. So the actual holding of
Castleman does not help Gatson. But he says some dicta does: the Court observed that
“domestic violence” is “a term of art encompassing acts that one might not characterize as
No. 14-3227 United States v. Gatson Page 8
‘violent’ in a nondomestic context.” Id. at 1411. From that, Gatson infers that his domestic-
violence convictions were based upon acts that we should not characterize as violent in the
context of § 924(e). But the inference does not follow: the Court did not say that every act of
domestic violence would be considered nonviolent in a nondomestic context; and so far as
Gatson’s convictions are concerned, we have already demonstrated that they satisfy the
definition of “violent felony” under § 924(e). So we reject his argument.
The district court’s judgment is affirmed.