United States v. Ivery

United States Court of Appeals
For the First Circuit

No. 03-2496

UNITED STATES OF AMERICA,

Appellee,

v.

IMAURI IVERY,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]

Before

Boudin, Chief Judge,
Torruella and Dyk*,
Circuit Judges.

Catherine K. Byrne for appellant Ivery.
Donald L. Cabell, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

October 20, 2005

*
Of the Federal Circuit, sitting by designation.
 DYK, Circuit Judge. Defendant-appellant Imauri Ivery

(“Ivery”) pleaded guilty to one count of possession of a firearm by

a convicted felon in violation of 18 U.S.C. § 922(g)(1) and was

sentenced to 180 months in prison under the Armed Career Criminal

Act (“ACCA”), 18 U.S.C. § 924(e). The plea was conditioned on

Ivery’s retention of the right to appeal the denial of his motion

to suppress a firearm and ammunition police recovered while

searching Ivery’s vehicle during a traffic stop. Fed. R. Crim. P.

11(a)(2) (2005). In addition to appealing the denial of the motion

to suppress, Ivery challenges the district court’s enhancement of

his sentence under the ACCA. We affirm.

I.

The primary question here goes to the scope of

permissible police authority under Terry v. Ohio, 392 U.S. 1

(1968).

The facts found by the district court are as follows:

Around 6:00 AM on August 11, 2002, Boston city police officer Grant

Callender was on duty in Boston’s Chinatown, an area known for

drug-related crime, when he observed Ivery driving a white Mercedes

with no front license plate and a partially detached rear license

plate. Callender pulled Ivery over two blocks later, where he was

joined by officer Kevin Ervin. While approaching Ivery’s vehicle

(Callender from the rear and Ervin from the front), the officers

noticed that Ivery was leaning to the right; that Ivery’s glove

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compartment was open, revealing “a box of ... plastic sandwich bags

sticking out from the glove box[;]”; and that both front seats of

Ivery’s car were fully reclined, obscuring the car’s rear

floorboard.

Still standing near the Mercedes with Ivery inside, Ervin

told Callender that he recognized Ivery as a person who had

previously fled from police. Hearing this, Ivery interjected “I

don’t run from the police” in a “quivering” voice. Both officers

said that Ivery appeared nervous; Callender noted that Ivery was

“actually shaking ... his hands were shaking.” After this verbal

exchange, Callender instructed Ivery to exit the car, frisked him,

found nothing, and then directed Ivery to the rear of the car where

Ervin was standing. Callender next “frisked” the inside of the

Mercedes, searching the front and rear compartments, floorboards,

and finally behind an armrest in the center of the rear seat-back,

where he found a loaded pistol. When Callender emerged, Ivery

unsuccessfully attempted to flee and was placed under arrest.

On December 4, 2002, Ivery was indicted in one count for

unlawful possession of a firearm and ammunition by a person

previously convicted of a crime punishable by imprisonment for one

year or more in violation of 18 U.S.C. § 922(g)(1). Ivery moved to

suppress the pistol and ammunition on Fourth Amendment grounds,

arguing that they were obtained through an illegal search of the

Mercedes. After an evidentiary hearing, the district court denied

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Ivery’s motion.

Relying on the officers’ observations of the character of

the neighborhood, Ivery’s nervousness, his possession of the

suspicious plastic bags, and his concealment of the car’s rear

floorboard, the district court concluded that the officers’ search

was permissible under Terry, based on their “observations of the

vehicle [and of] Mr. Ivery.”

While the district court credited Ervin’s testimony that

he recognized Ivery as someone who had previously run from police,

the district court did not rely on this testimony. The district

court neither credited nor relied on Ervin’s testimony that during

the traffic stop officer Chris Hamilton informed Ervin by telephone

that “there was a white Mercedes that frequents ... the Chinatown

area” whose driver “had assaulted an officer.” Ivery entered a

conditional guilty plea to the sole count in the indictment on July

2, 2003.

Ivery stipulated at sentencing that he had three earlier

convictions for “serious drug offense[s]” within the meaning of 18

U.S.C. § 924(e). This led the district court to calculate Ivery’s

sentence under the ACCA. The district court sentenced Ivery to 180

months in prison (the minimum sentence required by the ACCA),

followed by 60 months of supervised release, and imposed a $100

statutory assessment. Though the district court made a calculation

of Ivery’s sentence pursuant to the federal Sentencing Guidelines,

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ultimately the length of Ivery’s sentence was determined by

application of the ACCA, not the federal Sentencing Guidelines.

Thus there was no Booker error. See United States v. Booker, 543

U.S. ___, 125 S. Ct. 738 (2005), United States v. Antonakopoulos,

399 F.3d 68, 76 (1st Cir. 2005) (“The error under Booker is ...

that the defendant was sentenced under a mandatory Guidelines

system.”).

II.

In Terry, the Supreme Court held that police “may in

appropriate circumstances and in an appropriate manner approach a

person for purposes of investigating possibly criminal behavior

even though there is no probable cause to make an arrest.” Terry,

392 U.S. at 22. We conduct a two-part inquiry to determine whether

a search complies with Terry. First, we evaluate whether the

officers’ initial interference with the defendant was justified;

second, we ask whether the ensuing search was “reasonably related

in scope to the circumstances which justified the officers’ initial

interference.” United States v. Nee, 261 F.3d 79, 83 (1st Cir.

2001) (citing Terry, 392 U.S. at 19-20). A search is “reasonable”

under the second part of this test where a law enforcement officer

“conduct[s] a patdown to find weapons that he reasonably believes

or suspects are then in the possession of the person he has

accosted.” Ybarra v. Illinois, 444 U.S. 85, 93 (1979). Vehicle

searches are also permissible where officers “possess[] a

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reasonable belief based on ‘specific and articulable facts which

... reasonably warrant’ the officer in believing that the suspect

is dangerous and the suspect may gain immediate control of ...

weapons” in the vehicle. Michigan v. Long, 463 U.S. 1032, 1049

(1982) (quoting Terry, 392 U.S. at 21). Here, the legitimacy of

the traffic stop is undisputed, so the first part of the Terry test

is satisfied. Thus the only issue on appeal is whether searching

the car was permissible under the circumstances. See Nee, 261 F.3d

at 83; United States v. Lott, 870 F.2d 778, 784 (1st Cir. 1989).

In United States v. Lott, we held that the second part of

the Terry test imposes a dual requirement for a permissible

warrantless search for weapons: (1) the officers must have actually

harbored a suspicion that the suspect was armed; and (2) that

suspicion must have been reasonable under the circumstances. See

Lott, 870 F.2d at 783-84. Here, the district court credited

Callender’s and Ervin’s testimony that they frisked Ivery and

searched his car based on their observations of the circumstances

and Ivery’s conduct. In crediting this testimony, the district

court also evidently concluded that the officers testified credibly

that they actually feared for their safety based on these

observations. Ivery contends that one of the professed factual

bases for the officers’ concern –- Hamilton’s statement to Ervin

about a white Mercedes in the Chinatown area whose driver had

assaulted an officer –- was discredited, so that it was error for

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the district court to rely on the officers’ remaining testimony.

Ivery thus insists that the district court’s finding that the

officers actually feared for their safety lacked a proper factual

predicate. We disagree.

Whether the officers actually feared for their safety is

a question of fact. On appeal from disposition of a motion to

suppress, we review the district court’s findings of fact only for

clear error. United States v. Pardue, 385 F.3d 101, 104 (1st Cir.

2004) (citing United States v. Maguire, 359 F.3d 71, 76 (1st Cir.

2004)); United States v. Watson, 76 F.3d 4, 6 (1st Cir. 1996).

“Where evaluations of witnesses’ credibility are concerned, we are

especially deferential to the district court’s judgment; we may

overturn its decision only if, after reviewing all of the evidence,

we have a ‘definite and firm conviction that a mistake has been

committed.’” United States v. Jones, 187 F.3d 210, 214 (1st Cir.

1999). We have no such conviction here, and thus no reason to

disturb the district court’s factual findings. The fact that the

district court disbelieved one part of the officers’ testimony but

credited other parts does not render suspect the district court’s

credibility finding. Thus, we conclude that the district court did

not commit clear error in finding that the officers actually feared

for their safety.1 Having concluded that Lott’s actual suspicion

1
Ivery makes a related claim -- that the officers’
professed safety concerns were based solely on the discredited
testimony about the phone call from Hamilton. We disagree. Both

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requirement is satisfied here, we decline the government’s

invitation to reconsider the continuing validity of that aspect of

Lott in light of the Supreme Court’s holding in United States v.

Whren, 517 U.S. 806 (1996).2

The district court also concluded, as indicated by its

reference to Terry, that Callender’s and Ervin’s suspicions were

reasonable under the circumstances. Ivery challenges this

conclusion as well. The district court’s reasonableness

determination is a decision of law based on factual findings. We

review the legal determination of reasonableness de novo. Pardue,

385 F.3d at 104; Maguire, 359 F.3d at 76. We are mindful that

“[t]he circumstances under which the officers acted ‘are to be

viewed through the eyes of a reasonable and cautious police officer

on the scene, guided by his experience and training.’” United

States v. Trullo, 809 F.2d 108, 112 (1st Cir. 1987) (quoting United

States v. Hall, 525 F.2d 857, 859 (D.C. Cir. 1976)).

The district court relied on four features of the

situation at the time of the search to conclude that the officers’

suspicion was reasonable: (1) Ivery’s presence in a high-crime

Callender and Ervin clearly testified that their suspicions were
provoked primarily by their observations of Ivery.
2
In Whren, the Supreme Court concluded that precedent
“foreclose[s] any argument that the constitutional reasonableness
of traffic stops depends on the actual motivations of the
individual officers involved.” Whren, 517 U.S. at 813. We have
previously declined an invitation to address Whren’s effect on
Lott. See Nee, 261 F.3d at 85.

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neighborhood; (2) Ivery’s nervousness; (3) Ivery’s concealment of

the car’s rear floorboard; and (4) Ivery’s possession of objects

suggesting illegal conduct. We have previously found circumstances

similar to each of these features relevant to determining

reasonable suspicion. See, e.g., Trullo, 809 F.2d at 111-12

(finding “the characteristics of the area in which [officers]

encounter a vehicle” relevant to reasonableness of suspicion);

United States v. Gilliard, 847 F.2d 21, 25 (1st Cir. 1988) (finding

suspect’s nervousness relevant); United States v. Stanley, 915 F.2d

54, 56 (1st Cir. 1990) (concluding that defendant’s nervous

movements and apparent attempt to conceal something supported

reasonable suspicion); United States v. Cook, 277 F.3d 82, 86-87

(1st Cir. 2002) (officers’ observation that defendant “appeared to

be secreting some object in his pants or in the [car] seat beneath

him” supported reasonable suspicion); United States v. Moore, 235

F.3d 700, 704 (1st Cir. 2000) (concluding suspicion was reasonable

where officers observed both defendant “clench[ing] his hand in a

manner indicating that he was attempting to hide something” and a

number of plastic bags in apartment building consistent with drug

trafficking).

Though Ivery is correct that any one of these features,

standing alone, may be insufficient to support reasonable

suspicion, we have repeatedly held that when evaluating the

validity of a Terry stop, we “must consider all of the relevant

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circumstances . . . which ‘are not to be dissected and viewed

singly; rather they must be considered as a whole.’” Gilliard, 847

F.2d at 24-25; see Lott, 870 F.2d at 783; Trullo, 809 F.2d at 111.

No case has been brought to our attention holding that

circumstances similar to those surrounding the search of Ivery’s

car, when viewed as a whole, were insufficient to justify a Terry

search.

The only authority that comes close to supporting Ivery’s

position is Trullo, in which we observed that our finding of

reasonable suspicion “represent[ed] the outermost reach of a

permissible Terry stop.” Trullo, 809 F.2d at 111. There, this

court upheld the district court’s denial of a suppression motion

where narcotics officers conducted a Terry stop based on their

observations of a suspect in a high-crime neighborhood engaging in

several short conversations that, in their experience, were

“indicative of some sort of illegal transaction.” Id. at 110-12.

The court noted that the permissibility of the Terry stop was a

“close” question on the facts of Trullo. Id. at 109. If Trullo

was a close case, this one is not. In addition to the high-crime

location and nervous behavior, here Ivery was found in possession

of objects suggesting illegal conduct and behaved in a manner that

led the officers to believe he was concealing something.

Viewing the totality of the circumstances from the

perspective of experienced police officers, we conclude that

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Callender and Ervin had a reasonable basis for suspecting that

Ivery might be armed, and thus that their search of Ivery’s car was

valid under Terry.

III.

We next address Ivery’s Sixth Amendment challenge to the

district court’s use of Ivery’s prior convictions to enhance his

sentence under the ACCA. The ACCA enhances the sentence for a

violation of 18 U.S.C. § 922(g)(1) to a minimum 15-year term of

imprisonment when the defendant has “three previous convictions ...

for a violent felony or a serious drug offense, or both, committed

on occasions different from one another. . . .” 18 U.S.C. §

924(e)(1) (2000). At sentencing before the district court, Ivery

stipulated to three prior convictions sufficient to require a

minimum 15 year prison term under the ACCA.

On appeal, Ivery argues for the first time that the

government’s failure to prove the facts of his prior convictions to

a jury beyond a reasonable doubt violated his Sixth Amendment

rights. The question here is whether the district court erred in

relying on Ivery’s stipulations, rather than a jury finding, to

establish the existence of the prior convictions for ACCA purposes.

Ivery did not present his Sixth Amendment argument to the district

court. Thus, we review the district court’s sentencing

determination for plain error. United States v. Colon-Munoz, 192

F.3d 210, 221 (1st Cir. 1999), cert. denied 529 U.S. 1055 (2000).

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 Ivery relies on Apprendi v. New Jersey, 530 U.S. 466

(2000), and Blakely v. Washington, 542 U.S. 296 (2004), in his

first supplemental brief, and United States v. Booker in his second

supplemental brief. None of these cases supports Ivery’s position.

In Apprendi, the Supreme Court held that “[o]ther than the fact of

a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt.” 530 U.S. at 490

(emphasis added). Apprendi’s explicit exemption of sentence

enhancements based on prior criminal convictions from the scope of

its constitutional holding left intact the Supreme Court’s earlier

decision in Almendarez-Torres v. United States, 523 U.S. 224

(1998). There, the Court endorsed treating prior convictions as

sentencing factors rather than elements of federal criminal

offenses. See Almendarez-Torres, 523 U.S. at 226-27, 247. “We

have ruled with a regularity bordering on the monotonous that,

given the explicit exception and force of Almendarez-Torres, the

rationale of Apprendi does not apply to sentence-enhancement

provisions based upon prior criminal convictions.” United States

v. Moore, 286 F.3d 47, 51 (1st Cir. 2002). Nothing in Blakely or

Booker alters the continuing vitality of the Almendarez-Torres

exception to Apprendi.

Blakely relied on Apprendi to invalidate a state

statutory sentencing scheme and reasserted Apprendi’s admonition

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that the Sixth Amendment requires proof to a jury of all facts

affecting punishment “other than the fact of a prior conviction.”

542 U.S. at ___, 124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at

490). The Booker Court, applying Apprendi to hold the federal

Sentencing Guidelines constitutionally invalid to the extent that

they are mandatory, also took care to leave the “prior conviction”

exception intact. Booker, 543 U.S. at ___, 125 S. Ct. at 756

(requiring proof to a jury of “[a]ny fact (other than a prior

conviction)” that supports a sentencing enhancement).

The Supreme Court addressed the scope of the prior

conviction exception in United States v. Shepard, ___ U.S. ___, 125

S. Ct. 1254 (2005), holding that the Sixth Amendment limits

judicial fact-finding to resolve disputed issues. Even where there

are disputes concerning prior convictions, a jury trial is not

required when the ACCA predicate question can be resolved by “the

terms of the charging document, the terms of a plea agreement or

transcript of colloquy between judge and defendant in which the

factual basis for the plea was confirmed by the defendant, or to

some comparable judicial record of this information.” Shepard, ___

U.S. at ___, 125 S. Ct. at 1263. Here, Ivery did not and does not

now dispute the facts of his prior convictions or their sufficiency

as ACCA predicate offenses. See Shepard, ___ U.S. at ___, 125 S.

Ct. at 1262-63 (emphasizing that its holding only “limit[s] the

scope of judicial factfinding on the disputed ... character of a

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prior plea” undertaken to determine ACCA applicability) (emphasis

added).

Ivery insists, relying on Justice Thomas’s concurrence in

Shepard, that Almendarez-Torres is inconsistent with Apprendi and

Booker. See Shepard, ___ U.S. at ___, 125 S. Ct. at 1264 (Thomas,

J., concurring) (advising that “in an appropriate case, this Court

should consider Almendarez-Torres’ continuing viability”). We

disagree. The Shepard majority noted the possibility that Apprendi

may eventually be extended to require proof of prior convictions to

a jury, but cautioned that this “is up to the future to show.” See

id., ___ U.S. at ___, 125 S. Ct. at 1263 n.5. As noted above, both

Blakely and Booker recognized the continued viability of the

Almendarez-Torres exception. It is not our place to anticipate the

Supreme Court’s reconsideration of its prior rulings; thus

Almendarez-Torres remains binding law that we must apply until

overruled by a majority of the Supreme Court. State Oil Co. V.

Kahn, 522 U.S. 3, 20 (1997); see also Figueroa v. Rivera, 147 F.3d

77, 81 (1st Cir. 1998). The district court did not err in

sentencing Ivery under the ACCA on the basis of prior convictions

established by stipulation rather than jury findings.

Affirmed.

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