UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4782
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY STARKIE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:13-cr-00128-FL-1)
Submitted: April 30, 2015 Decided: May 5, 2015
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joshua W. Willey, Jr., MILLS & WILLEY, New Bern, North Carolina,
for Appellant. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Shailika S. Kotiya, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Starkie appeals his conviction and 300-month sentence
for possession of a firearm by a convicted felon, in violation
of 18 U.S.C. §§ 922(g)(1), 924 (2012). Starkie argues that the
district court erred by denying his motion to suppress, by
finding that a first-degree kidnapping conviction qualified as a
predicate felony under the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e), and by finding that he possessed the firearm
in connection with a crime of violence. We affirm.
Starkie’s motion to suppress challenged the investigative
stop that led to his arrest. We review factual findings
underlying a district court’s denial of a motion to suppress for
clear error and legal conclusions de novo. United States v.
Foster, 634 F.3d 243, 246 (4th Cir. 2011). A police officer may
stop a person for investigative purposes when he has reasonable
suspicion based on articulable facts “that criminal activity
‘may be afoot.’” United States v. Arvizu, 534 U.S. 266, 273
(2002) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).
“[R]easonable suspicion is a less demanding standard than
probable cause and requires a showing considerably less than
preponderance of the evidence.” Illinois v. Wardlow, 528 U.S.
119, 123 (2000). Whether there is reasonable suspicion to
justify a stop depends on “the totality of the circumstances,”
including the information known to the officer and any
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reasonable inferences to be drawn at the time of the stop.
Foster, 634 F.3d at 246. A stop begins when the officer applies
physical force or the defendant submits to a show of authority.
California v. Hodari D., 499 U.S. 621, 626 (1991).
The district court found, and Starkie does not contest on
appeal, that the arresting officer was in a high-crime area at
11:00 p.m. on a hot, humid midsummer night when he saw Starkie,
who was wearing a fully zipped winter coat and a winter hat.
Starkie unsuccessfully attempt to open the door to a business
and then talked to his brother, who was standing outside an
idling car. When the officer hailed Starkie, Starkie moved to
the other side of the car, hunched over, and appeared to fiddle
with something in his waistband. The officer told Starkie to
show his hands, but Starkie did not comply. The officer heard
the sound of metal hitting the ground and scraping along it.
The officer then told Starkie to put his hands on the car, and
Starkie complied. Contrary to Starkie’s contentions that the
stop began the first time the officer told him to show his
hands, we conclude that the stop began only when Starkie
complied with the officer’s request to put his hands on the car.
See id. Because the officer’s observations at this point were
more than sufficient for the officer to reasonably suspect that
criminal activity might be afoot, the district court properly
denied the motion to suppress.
3
Starkie also challenges the calculation of his Sentencing
Guidelines range. In assessing Guidelines calculations, we
review the district court’s factual findings for clear error and
its legal conclusions de novo. United States v. White, 751 F.3d
225, 235 (4th Cir. 2014), cert. denied, 135 S. Ct. 1593 (2015).
Starkie first argues that his conviction for first-degree
kidnapping under N.C. Gen. Stat. § 14-39 does not qualify as a
predicate offense under the ACCA because the statute under which
he was convicted encompasses nonviolent kidnapping and there was
no evidence that the particular kidnapping at issue involved
violence.
We have noted that the North Carolina kidnapping statute
can be violated in multiple ways. See United States v. Flores-
Granados, __ F.3d __, __, 2015 WL 1652524, at *3 (4th Cir. Apr.
15, 2015) (No. 14-4249). Although courts typically apply the
modified categorical approach when a statute is divisible, in
Flores-Granados, we used the categorical approach to determine
whether second-degree kidnapping under North Carolina law
satisfied the generic definition of kidnapping. We used the
categorical approach because there were no Shepard-approved 1
documents available in the record under review in Flores-
1
Shepard v. United States, 544 U.S. 13, 16 (2005) (setting
forth documents courts may consider when applying modified
categorical approach).
4
Granados. Id. at *3-4; see id. at *8 (defining generic offense
of kidnapping).
Applying the categorical approach, we held that, “because
the North Carolina statute requires a specific nefarious purpose
for conviction, even for second-degree kidnapping, it is well
within [the generic] definition and as such, it is categorically
a crime of violence [under the Guidelines].” 2 Id. at *5, *9.
Following Flores-Granados, we conclude that Starkie’s first-
degree kidnapping conviction qualifies categorically as a
violent felony under the ACCA. Thus, the district court did not
err in classifying Starkie as an armed career criminal.
Starkie also argues that the district court erred in
finding that he possessed the firearm in connection with a crime
of violence—specifically, attempted armed robbery. Although the
parties dispute whether the Government established the
commission of the offense by a preponderance of the evidence, we
need not resolve the issue. The evidence presented amply proved
that Starkie possessed the firearm in connection with the
offense of conspiracy to commit armed robbery. See Republican
Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)
(explaining that we may affirm for any reason apparent on face
2
This Court applies the analysis under the Sentencing
Guidelines interchangeably with the ACCA. Flores-Granados, 2015
WL 1652524, at *2.
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of record); see State v. Oliphant, 747 S.E.2d 117, 125 (N.C. Ct.
App. 2013) (stating elements of conspiracy offense), review
denied, 753 S.E.2d 677 (N.C. 2014). In addition to Starkie’s
suspicious behavior, a search incident to arrest revealed that
Starkie had eyeholes cut into his hat and was carrying cotton
gloves. We conclude that these facts are sufficient to prove by
a preponderance of the evidence that Starkie conspired with his
brother and his brother’s girlfriend, who was driving the car,
to commit armed robbery, and that he possessed the firearm in
connection with this offense. Conspiracy to commit robbery is a
crime of violence because it has the object of committing a
violent crime. United States v. Ward, 171 F.3d 188, 193 (4th
Cir. 1999). Accordingly, the district court did not err in
applying the enhancement. See White, 771 F.3d at 235 (stating
standard of review).
We affirm the judgment of the district court. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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