United States v. Gibson

United States Court of Appeals,

Eleventh Circuit.

No. 94-4104.

UNITED STATES of America, Plaintiff-Appellee,

v.

Oliver L. GIBSON, Defendant-Appellant.

Aug. 11, 1995.

Appeal from the United States District Court for the Southern
District of Florida. (No. 93-375-CR), Edward B. Davis, Judge.
*
Before COX, Circuit Judge, HILL and REYNALDO G. GARZA , Senior
Circuit Judges.

REYNALDO G. GARZA, Senior Circuit Judge:

On August 10, 1993, a federal grand jury returned a one count

indictment against Oliver L. Gibson (Gibson) for being a convicted

felon in knowing possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1). Gibson pled not guilty to the charge and filed a

motion to suppress the physical evidence seized by the police,

i.e., the firearm. The district court denied the motion after a

hearing, finding that public policy permits the stop and frisk of

an individual when police have a partially corroborated anonymous

tip that the individual has a firearm.1
On November 8, 1993, Gibson was tried and convicted by a jury

of his peers and was subsequently sentenced to a fifteen year

imprisonment term, five years of supervised release, and a $50

*
Honorable Reynaldo G. Garza, Senior U.S. Circuit Judge for
the Fifth Circuit, sitting by designation.
1
Gibson also filed a motion to suppress certain statements
made to the police officers after his arrest. This motion was
also denied. He does not appeal the denial of that motion.
special assessment. Gibson appeals from the district court's

failure to suppress the physical evidence and the sentence it

imposed. For the reasons discussed below we affirm the district

court's judgement.

BACKGROUND

On the evening of February 28, 1993, the Miami Police

Department received an anonymous telephone call informing it that

two African-American men at Tiny's Bar were believed to be armed.

Although it was unknown at that time, the call was placed by the

bar's manager.2 She described one of the individuals as wearing

beige pants and a white shirt and the other as wearing a long black

trench coat. Police Officers J.R. Green (Green) and Kevin McNair

(McNair) were dispatched and arrived at the scene between one and

two and a half minutes after the phone call was received.

The officers observed an African-American male, wearing beige

pants and a white shirt, standing outside the club. After Officer

Green made eye contact with him, the subject quickly walked away

from the bar. The officers were unable to stop or apprehend the

subject.3 The officers then entered the bar and scanned the room.

They quickly established that Gibson, an African-American male, was

the only individual wearing a long black trench coat and thus

2
Although the manager did not actually observe the two men
with firearms, she believed they were armed because a bar patron
told her that they were armed.
3
The officers explained that a median divided the street
where the bar was located. When they first observed the suspect,
they were on the street opposite the bar. Thus, they had to
drive to the end of the block and make a U-turn around the median
to reach the bar. By the time they reached the bar the
individual had walked away.
approached him. Both officers testified that Gibson, who had his

back to them, turned to face them and reached behind his back with

both hands. At that point, Officer Green unholstered his weapon

and pointed it at Gibson while explaining that he (Gibson) was

believed to be carrying a firearm. Officer McNair frisked Gibson,

felt a hard bulge in the right trench coat pocket, and removed the

object. It was an ammunition clip. Officer Green re-holstered his

weapon, frisked Gibson, and removed a firearm from his back waist

area, under the trench coat. Gibson was placed under arrest.

The officers testified that, when they entered Tiny's bar,

they had no facts on which to base the investigatory stop and frisk

apart from the information provided by the anonymous caller.

However, Officer McNair did testify that he knew weapons were

common in that area. He also testified that though he was not

afraid of Gibson, he nevertheless unfastened the safety snap on his

holster while approaching him. Officer Green, on the other hand,

testified that he did feel fear and apprehension as he approached

Gibson due to the fact that he was allegedly armed. Furthermore,

we already noted, both officers testified to Gibson's reaction when

he was confronted.

DISCUSSION

I.

Gibson states that the anonymous tip did not exhibit

sufficient indicia of reliability to justify the stop and frisk.

He argues that the information provided by the tipster was vague

and relayed nothing more than easily obtained facts, that is, a

description of the clothes worn by Gibson and the second
individual. He alleges that the anonymous information failed to

predict his future behavior and that the officers failed to conduct

an independent investigation to corroborate the information

provided by the anonymous caller. Gibson adds that he did not do

anything suspicious at the bar that would lead the officers to

believe the tipster's information was reliable. Accordingly, he

maintains that the evidence should be suppressed on the ground that

it was the fruit of an unlawful stop and frisk because it was made

without reasonable suspicion.

The Supreme Court addressed the reliability of anonymous tips

in Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301

(1990). The Court held that an anonymous tip that was corroborated

by independent police investigation "exhibited sufficient indicia

of reliability to provide reasonable suspicion to make an

investigatory stop." Id. at 326, 110 S.Ct. at 2414. The

Montgomery Police Department received an anonymous phone call

stating that a woman would be leaving 235-C Lynwood Terrace

Apartments at a particular time. The caller predicted that she

would drive a brown Plymouth station wagon with a broken right

taillight lens, that she would drive to Dobey's Motel, and that she

would be in possession of a brown attachè case containing

approximately one ounce of cocaine. Two officers proceeded to the

Lynwood Terrace Apartments and established surveillance on the

defendant's apartment. At the designated time the officers

observed a woman with nothing in her hands leave the building and

enter the station wagon. The officers then followed the vehicle

but stopped the driver before she reached the Dobey Motel and
informed her of their suspicions. The officers obtained her

permission to search the car and found a brown attachè case. The

woman provided officers with the combination to the case, which

contained marijuana. She was then placed under arrest. While

being processed at the police station officers also discovered

three milligrams of cocaine in the defendant's purse.

After reviewing the totality of the circumstances the Court

held that the corroborated anonymous tip exhibited sufficient

indicia of reliability to justify an investigatory stop of the

defendant's car. Id. at 332, 110 S.Ct. at 2417. The Court

reasoned that the "independent corroboration by the police of

significant aspects of the informer's predictions imparted some

degree of reliability to the other allegations made by the caller."

Id.4 The Court also believed it important, as in Illinois v.

Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (dealing

with anonymous tips in probable cause context), that

"the anonymous [tip] contained a range of details relating not
just to easily obtained facts and conditions existing at the
time of the tip, but to future actions of third parties
ordinarily not easily predicted." [Gates], at 245, 103 S.Ct.
at 2335-36, 76 L.Ed.2d 527. The fact that the officers found
a car precisely matching the caller's description in front of
the 235 building is an example of the former. Anyone could
have "predicted" that fact because it was a condition
presumably existing at the time of the call. What was
important was the caller's ability to predict respondent's
future behavior, because it demonstrated inside information—a
special familiarity with respondent's affairs. The general
public would have had no way of knowing that respondent would
shortly leave the building, get in the described car, and
drive the most direct route to Dobey's Motel. Because only a

4
The Court noted that not all of the tipster's facts were
corroborated. For example, the police did not see the woman
leave the particular apartment described, she was not carrying an
attaché case, and the police stopped her before she actually
reached the motel.
 small number of people are generally privy to an individual's
itinerary, it is reasonable for police to believe that a
person with access to such information is likely to also have
access to reliable information about that individual's illegal
activities. See id. at 245, 103 S.Ct. at 2335-36, 76 L.Ed.2d
527. When significant aspects of the caller's predictions
were verified, there was reason to believe not only that the
caller was honest but also that he was well informed, at least
well enough to justify the stop.

White, 496 U.S. at 332, 110 S.Ct. at 2417 (original emphasis). The

Court concluded that the stop was justified, though, admittedly, it

was a "close call." Id. Therefore, the Court established that an

anonymous tip corroborated by independent police work could be

reliable enough to provide reasonable suspicion to make an

investigatory Terry5 stop.

This Circuit has not squarely addressed the extent to which a

tipster must detail the facts surrounding an individual before the

information given becomes sufficiently "reliable" to justify an

investigatory stop and frisk under White. More importantly, we

have not addressed the issue in this particular context, that is,

where the police receive an anonymous phone call detailing innocent

details and warning of an armed or potentially armed individual.

However, at least two of our sister courts have addressed the

issue. Thus, we turn to them for guidance in resolving this

dispute.

In United States v. Clipper, 973 F.2d 944 (D.C.Cir.1992),

cert. denied, --- U.S. ----, 113 S.Ct. 1025, 122 L.Ed.2d 171

(1993), the police department received an anonymous call reporting

that an African-American male armed with a gun was in a particular

5
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968).
area. According to the caller, the individual was wearing a green

and blue jacket and a black hat. Two officers responded

immediately after the tip was relayed by the police dispatcher.

After the officers arrived at the described area they observed an

individual matching the description of the suspect. The officers

detained him and performed a protective frisk. Although no firearm

was recovered, they detected and recovered a wad of currency and a

bag of crack cocaine. The suspect was arrested for possession of

a cocaine substance with the intent to distribute. The district

court upheld the investigatory stop and the conviction. On appeal

the defendant argued, among other things, that the anonymous tip

did not provide the police with reasonable suspicion to stop him.

Specifically, he argued that Alabama v. White requires an anonymous

tip to contain information predicting future behavior and that the

police confirm the accuracy of the prediction before they assume

the tip is sufficiently reliable to act upon. Id. at 949. Thus,

the defendant maintained that the evidence seized should have been

suppressed.

The Clipper Court reviewed White and determined that

[w]hile it is true that the Court said, in that case, that the
police's ability to corroborate the informant's predictions
was important, Alabama v. White does not establish a
categorical rule conditioning a Terry stop (when police are
acting on an anonymous tip) on the corroboration of predictive
information. The Supreme Court in that case dealt with
information that a particular individual was in possession of
drugs, not of a gun.... We believe that the totality of the
circumstances to which the Court refers in Alabama v. White
must include those in which the anonymous informant makes no
predictions, but provides the police with verifiable facts
while alerting them to an imminent danger that the police
cannot ignore except at risk to their personal or the public's
safety.

Clipper, 973 F.2d at 949-950. After reviewing worrisome statistics
on firearm related fatalities, the appellate court balanced the

hazards that firearms present to the public and to the government's

law enforcement officers against the public's interest in remaining

free of unreasonable governmental intrusions. Id. at 951. The

court concluded that the government's intrusion into an

individual's privacy was outweighed by the dangers inherent in

situations where a firearm was involved:

This element of imminent danger distinguishes a gun tip
from one involving possession of drugs. If there is any doubt
about the reliability of an anonymous tip in the latter case,
the police can limit their response to surveillance or engage
in "controlled buys." Where guns are involved, however, there
is the risk that an attempt to "wait out" the suspect might
have fatal consequences.

Here, as in [United States v. McClinnhan, 660 F.2d 500
(D.C.Cir.1981) ], the police received an anonymous tip
providing a detailed description of the appearance, clothing,
and location of a man who allegedly possessed a weapon.
Officers at the scene were able to corroborate all the
innocent details of the tip. In these circumstances, ... a
reasonable trier of the facts could find that the officers had
a reasonable suspicion sufficient to justify a Terry stop and
search.

Id. at 951.

The Second Circuit followed Clipper to uphold the

investigatory stop of a vehicle prompted by an anonymous phone

call. United States v. Bold, 19 F.3d 99 (2nd Cir.1994). In that

case, the police department received an anonymous tip that there

was a gray four-door Cadillac at the White Castle restaurant

parking lot with four African-American males, one of whom was armed

with a gun. The armed man was reported to be 21 years old and

wearing a hooded sweater. Five police officers quickly responded

to the call and found a four-door gray Cadillac parked at the

specified location. One of the police officers approached the
vehicle from the rear, opened the back door and looked in. The

officer found two African-American men in the front seat of the car

and asked them to step out. The officer observed money on the

passenger's lap and saw money fall from under his shirt as he

stepped out of the vehicle. The passenger was then frisked but no

weapon was recovered. The driver was also removed from the car and

frisked but again no weapon was found. Upon a close inspection of

the vehicle, however, the officers discovered $100 bills and a

plastic toy gun on the floor of the car. At that point, one of the

officers recalled a robbery earlier that day and radioed in for a

description of the robbers. The driver fit one of the descriptions

reported. The officers also learned that the robber had worn a

tweed coat and carried a briefcase, two items found in the car.

Both suspects were placed under arrest and were consequently

indicted for bank robbery. The defendants moved to suppress the

physical evidence seized on the ground that the search and seizure

was made without reasonable suspicion. The district court

suppressed the evidence, holding that an anonymous tip under White

would not provide reasonable suspicion if it is corroborated only

by "easily obtained facts and conditions existing at the time of

the tip" and that "independent corroboration by the police of

significant aspects of the informer's predictions was required."

Bold, 19 F.3d at 101 (quoting United States v. Bold, 825 F.Supp.

25, 28 (E.D.N.Y.1993)).

The Second Circuit held that the officers had a reasonable

suspicion to stop and search the individuals and reversed the

suppression of the evidence. Although the anonymous tip did not
provide sufficient information by itself to conclude that the

caller was honest or the information reliable, the officers were

able to corroborate the tipster's information concerning the car

and its location, thus supporting the reliability of the tip. Id.

at 103. The officers' suspicions were also raised due to the car's

darkly tinted windows and its remote location. Id. The panel

reasoned that the officer's independent corroboration of the

anonymous tipster's information, the remote location of the car in

the lot, the inability to see through the tinted windows, together

with the report of a firearm, was sufficient to allow the officers

to perform a Terry stop. Id.

The appellate court also found that the fact that no future

events were predicted by the caller, as in White, did not render

the stop unlawful: "There was no need here for any predictions of

future conduct, because when verified by the officers, the

tipster's information was sufficient under Terry to warrant

investigation." Id. at 103-04. White does not preclude the police

from "acting on an anonymous tip when the information to be

corroborated refers to present rather than future actions." Id. at

104 (citing United States v. Clipper, 973 F.2d 944, 949

(D.C.Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1025, 122

L.Ed.2d 171 (1993)). White was also distinguishable because

anonymous gun tips are significantly different from drug tips—an

officer dealing with a suspect who may possibly be armed may either

frisk the individual or wait until the weapon is used or

brandished, while a suspected drug dealer may be placed under

surveillance until the officer observes sufficient facts to take
action. Id. Thus, "[w]here the tip concerns an individual with a

gun, the totality-of-the-circumstances test for determining

reasonable suspicion should include consideration of the

possibility of the possession of a gun, and the government's need

for a prompt investigation." Id.

In the case at bar, Officers Green and McNair independently

corroborated all the information that the anonymous tipster

relayed. When the officers arrived at the scene they witnessed a

person matching the description of one of the potentially armed
men, that is, the individual was of the race described and wore the

clothing specified. Suspiciously, once they made eye contact with

him he quickly walked away from the bar. After they entered the

club, the officers immediately established that only Gibson, an

African-American male, wore a long black trench coat. As the

officers approached Gibson, he reached behind his back with both

hands. Although these details were innocent, once they were

corroborated they added credibility to the anonymous tip.6

6
Gibson claims that the officers only had the tipster's
innocent information on which to base their stop and frisk. So,
even if this information was corroborated, he alleges that it was
insufficient to justify the officers actions. Gibson cites
United States v. McLeroy, 584 F.2d 746 (5th Cir.1978), to support
his argument. In McLeroy, a confidential informant, whose
reliability was not established at trial, reported that McLeroy
was in possession of a stolen vehicle, and might have been
involved in a hit-and-run accident. The stolen car was described
as a black and white Chevrolet, with 1977 Alabama license tag BMB
023, and was parked at 1720 27th Street in Ensley, Alabama. The
informant also stated that McLeroy might possess a sawed-off
shotgun. Two officers acted on the information and drove to
McLeroy's house. They verified the description of the car
reported and established surveillance on the house. After
several hours passed, McLeroy left the house, got into the car,
and drove away. The officers followed McLeroy and stopped him.
They checked the vehicle's identification number and established
that the car was stolen. After conducting an inventory search of
 The officers reached the bar no more than two and a half

minutes after the call was received. The timing of their arrival

ensured that the reported information was still fresh, increasing

the chance that the officers would confront the potentially armed

individual before any violence broke out, while also reducing the

possibility that the officers would mistakenly detain the wrong

person. Thus, we agree with both Clipper and Bold that White does

not prevent law enforcement officers from relying and acting on

anonymous tips when the information to be corroborated does not
refer to future actions but instead details present circumstances.

United States v. Bold, 19 F.3d 99 (2nd Cir.1994) ("There is nothing

the vehicle, a sawed-off shotgun was discovered.

This Court found that the investigatory stop was not
justified, concluding that "[r]easonable suspicion requires
more than this minimal corroboration of innocent details."
Id. at 748. The only elements of the tip independently
corroborated by the police were innocent details and did not
suggest that the "informant could have known more personal
facts about McLeroy, such as whether he was involved in
crime." Id. The corroboration was insufficient to believe
that the information was reliable. Id. However, the
McLeroy court added that—"In some cases, corroboration of
innocent details might change an otherwise insubstantial tip
into a proper basis for a reasonable suspicion of
criminality." Id. This is one of those cases. Our case is
distinguishable from McLeroy because the tips involve two
unrelated situations. Unlike our case, the tip in McLeroy
was not contemporaneous, i.e., the tip did not reflect an
on-going danger that required immediate police action.
Instead, the police had ample time to set up surveillance
and wait for several hours before they stopped McLeroy's
vehicle. Moreover, in McLeroy there was no immediate threat
to the safety of the public. In the instant case, besides
the safety of the officers, the safety of 20 to 40 innocent
bar patrons was at stake. Officers Green and McNair did not
have the luxury of waiting for the defendant to brandish or
use a firearm before acting. They had no option but to act
quickly and carry out the investigatory stop. Therefore,
the nature of this tip, combined with the independent
corroboration of innocent details, provided a proper basis
for reasonable suspicion.
in White that precludes police from acting on an anonymous tip when

the information to be corroborated refers to present rather than

future actions."); United States v. Clipper, 973 F.2d 944, 949

(D.C.Cir.1992) ("Alabama v. White does not establish a categorical

rule conditioning a Terry stop (when police are acting on an

anonymous tip) on the corroboration of predictive information."),

cert. denied, --- U.S. ----, 113 S.Ct. 1025, 122 L.Ed.2d 171

(1993). The police officers were compelled to act immediately upon

their arrival at Tiny's Bar.

More importantly, the anonymous tip concerned the presence of

two potentially armed individuals in a public establishment,

raising the stakes for the officers involved, who not only had to

worry about their own safety but that of the 20 to 40 innocent

bystanders present at the bar. In Terry v. Ohio, the Supreme Court

held that a law enforcement officer, during the course of an

investigatory stop, may conduct a "reasonable search for weapons

for the protection of the police officer, where he has reason to

believe that he is dealing with an armed and dangerous

individual...." 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d

889 (1968). The test is "whether a reasonably prudent man in the

circumstance would be warranted in the belief that his safety or

that of others was in danger." Id. (citations omitted). In

determining whether the officer act reasonably under the

circumstances, "due weight must be given, not to his inchoate and

unparticularized suspicion or "hunch,' but to the specific

reasonable inferences which he is entitled to draw from the facts

in light of his experience." Id. (citations omitted) (emphasis
added). The Court

weigh[ed] the interest of the individual against the
legitimate interest in "crime prevention and detection," ...
and the "need for law enforcement officers to protect
themselves and other prospective victims of violence in
situations where they may lack probable cause for an arrest."

Michigan v. Long, 463 U.S. 1032, 1047, 103 S.Ct. 3469, 3479, 77

L.Ed.2d 1201 (1983) (quoting Terry, 392 U.S. at 22, 88 S.Ct. at

1880). Thus, by allowing the stop and frisk of potentially armed

individuals, the Court demonstrated an overriding concern for both

the public and the lives of peace officers. See Terry, 392 U.S. at

27, 88 S.Ct. at 1883.

Law enforcement officers are at greatest risk when dealing

with potentially armed individuals because they are the first to

confront this perilous and unpredictable situation.7 A law

enforcement officer "responding to a tip involving guns may take

these hazards into consideration when balancing the suspect's

interests against the "need for law enforcement officers to protect

themselves and other prospective victims of violence[.]' "

Clipper, 973 F.2d at 951 (quoting Terry, 392 U.S. at 24, 88 S.Ct.

at 1881). Otherwise, an officer who corroborates every item of

information reported by an anonymous tipster other than actual

possession of a firearm is left with "an unappealing choice." Id.

7
The D.C. and Second Circuits noted the alarming increase of
firearms in our nations streets and the growing threat of
violence faced by the public and our law enforcement officers.
See, e.g., United States v. Bold, 19 F.3d 99 (2nd Cir.1994)
(recounting number of firearms circulating in the Nation, New
York City and firearm related fatalities and injuries); United
States v. Clipper, 973 F.2d 944, 949 (D.C.Cir.1992) (discussing
firearm related fatalities in the police force and citizenry),
cert. denied, --- U.S. ----, 113 S.Ct. 1025, 122 L.Ed.2d 171
(1993).
(quoting United States v. McClinnhan, 660 F.2d 500, 502

(D.C.Cir.1981)). He must either stop and frisk the individual, or

wait to see if he ultimately brandishes or uses the firearm. Id.

As the record demonstrates, Officer Green feared for his

safety and drew his firearm as a consequence—"I had a certain

amount of fear and apprehension because [Gibson] was supposed to be

armed, and I have a family and I have to protect myself."

Furthermore, the officers were cognizant of calls that were

regularly received concerning individuals with firearms in that

area. Drawing from the facts known to them at the time in light of

their experiences, Officers Green and McNair had a valid safety

concern to warrant a stop and frisk under Terry.

After carefully balancing the dangers that firearms present to

law enforcement officers and the general public against the

citizen's privacy interests, we conclude that the stop and frisk

was justified. The totality of the circumstances, including the

independently corroborated details, the suspicious activity outside

the bar, the knowledge that guns were common in the area, and the

contemporaneous report that two individuals were potentially armed,

leads us to find that the officers had a reasonable suspicion

sufficient to conduct a stop and frisk under Terry.8 The

8
We note, also, that Gibson was observed acting in a fashion
that, to trained law enforcement officers, might well have been a
corroboration of the information given in the tip. If Gibson
was, as the tipster had said, carrying a weapon, it might well be
predicted that, when he perceived himself to be in peril, he
would reach for the weapon—either for use of for reassurance of
its presence. When he was confronted by Officer Green, Gibson
reached behind his back, where concealed firearms might well be
carried, tucked into the belt. As a person in a crowd might
instinctively touch his wallet when warned of the presence of
pickpockets, so might an armed felon instinctively reassure
governmental intrusion upon the defendant's privacy interest was

minimal and justified in this situation.

Although the potential for abuse of anonymous tips gives us

pause, it does not provide grounds for this Court to hold

otherwise. Florida provides a significant deterrent against

reporting false information to its law enforcement agencies and

officers by making such acts punishable by law. F LA.STAT.ANN. §

365.171(16) (West 1995) (false "911" calls); Id. § 817.49 (false

reports of commission of crimes to law enforcement officers). This

deterrent increases the odds that an anonymous tip is legitimate.

II.

A felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1) is punishable by a maximum of ten years imprisonment.

18 U.S.C. § 924(a)(2). The sentence is subject to enhancement

under 18 U.S.C. § 924(e)(1) if the defendant has been previously

convicted of at least three violent felonies or serious drug

offenses. Yet, Gibson argues that the government must elect the

enhancement and give timely notice of its intent to do so before a

sentence under § 924 may be enhanced. He states that due process

does not allow the enhancement to occur automatically. And,

because he did not receive notice of the government's intent to
9
seek enhancement until the day of sentencing, Gibson claims the

himself of the presence of his weapon when confronted by one he
perceived to be a threat.
9
Gibson claims he was surprised to find that his sentence
would be enhanced because the enhancement was not included in the
first presentence report. The enhancement first appeared in a
revised presentence report, which was given to Gibson on the day
of sentencing.
government should be barred from electing the enhancement.

This Circuit recently addressed the above issues in United

States v. Cobia, 41 F.3d 1473 (11th Cir.), cert. denied, --- U.S.

----, 115 S.Ct. 1986, 131 L.Ed.2d 873 (1995). This Court held that

§ 924(e) does not require the Government to affirmatively seek an

enhancement: "Because the statute clearly indicates that the

intent of Congress was to require mandatory enhancement, we hold

that sentence enhancement pursuant to § 924(e) should automatically

be applied by the courts regardless of whether the Government

affirmatively seeks such enhancement." Id. at 1475 (citations

omitted). Yet, because the case involved the entering of a guilty

plea pursuant to a plea agreement, we required that he be notified

of the mandatory minimum and maximum penalty possible under §

924(e) as required by Fed.R.Crim.P. 11(c)(1). Id. at 1476.10

Furthermore, due process mandated that the defendant receive

reasonable notice of and opportunity to be heard concerning the

prior convictions. Id.

After reviewing the facts, we concluded that the requirements

of due process and the Federal Rules of Criminal Procedure were

10
The relevant section of this rule states that

(c) ... Before accepting a plea of guilty or nolo
contendere, the court must address the defendant
personally in open court and inform the defendant of,
and determine that the defendant understands, the
following:

(1) the nature of the charge to which the plea is
offered, the mandatory minimum penalty provided by law,
if any, and the maximum possible penalty provided by
law ...

FED.R.CRIM.P. 11.
satisfied. For instance, the district court notified the defendant

of the possibility of an enhancement during his plea agreement

hearing and of the possible sentences that he could receive under

§ 924(e). Id. The defendant also received notice of the prior

convictions to be used for enhancement purposes in the government's

response to the district court's standing discovery order, filed

before the plea hearing, and in the presentence investigation

report, filed after the plea hearing. Id. Finally, Cobia had the

opportunity to challenge the validity and applicability of the

convictions at the sentencing hearing. Id.

Because it is now settled that an enhancement under § 924(e)

is mandatory and therefore automatic, the question remains whether

Gibson received reasonable notice of his prior convictions and an

opportunity to challenge them to satisfy due process. 11 Although

the government listed only one prior conviction in the indictment

to support its charge that Gibson was a convicted felon in

possession of a firearm, as in Cobia, it did file a response to the

district court's standing discovery order prior to sentencing. The

response included a print-out of Gibson's criminal history and

copies of each information and judgment filed in state court

relating to three of Gibson's prior state convictions. In each

instance, the judgment listed the attorney who accompanied Gibson

at sentencing, thus, providing ample opportunity to confer with

former counsel if he wished to attack any prior judgment.

Furthermore, Gibson's counsel was unquestionably familiar with his

11
Unlike Cobia, our case does not involve a plea agreement.
Thus, Rule 11 of the Federal Rules of Criminal Procedure is
inapplicable here.
client's criminal history since he filed a motion in limine to

exclude evidence of other crimes. In the motion, counsel argued

that "not one of Gibson's prior offenses has a significant

characteristic in common with the offense charged in the instant

matter. Accordingly, Gibson's prior crimes would not be relevant

to the issues raised in this matter." This representation to the

district court implies counsel's intimate knowledge of Gibsons's

prior crimes and convictions. Moreover, before sentencing,

Gibson's attorney recognized that the enhancement was applicable in

the instant case. When counsel received the first presentence

report, Gibson's attorney found it "somewhat strange" that it

lacked the penalty enhancement; he believed that the report should

have included the enhancement.12 He called the probation office to

inquire about the omission and was informed that the enhancement

had not been included because it had not been elected by the

government. Consequently, a revised presentence report was issued

which did reflect the enhancement under § 924(e)(1). Despite

Gibson's arguments to the contrary, it is clear that he had

reasonable notice of his prior convictions and also knew that the

enhancement was applicable to him.

Finally, Gibson had the opportunity to attack the validity and

applicability of these convictions during sentencing when the

district court announced that it would follow the revised

12
During sentencing counsel for the defendant stated "... I
myself called the Probation Officer when I got my copy of the
[presentence report] because I, too, found it to be somewhat
strange and brought it to her attention at the potential demise
of my client because I felt responsible that that document at
least could have had an indication [of the enhancement] and
didn't."
presentence report and enhance his sentence. However, Gibson did

not attack the convictions nor did he request a continuance to

further investigate the issue. Therefore, we find that Gibson's

due process rights were not violated.

CONCLUSION

We have carefully considered the arguments presented and find

there is no basis on which to suppress the evidence nor disturb the

defendant's sentence. Therefore, the judgment below is

AFFIRMED.