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United States v. Robinson

August 12, 2008


Appeal from the United States District Court for the Central District of Illinois. No. 06 CR 40113-Michael M. Mihm, Judge.

The opinion of the court was delivered by: Sykes, Circuit Judge


Before MANION, WOOD, and SYKES, Circuit Judges.

Abraham Robinson conditionally pleaded guilty to being a felon in possession of a firearm, reserving the right to appeal the district court's denial of his suppression motion. He argues that the gun found in his pocket should have been suppressed because it was seized in violation of the Fourth Amendment when police detained and frisked him without reason to suspect he was armed and involved in a crime. We disagree. The officers who conducted the stop and frisk knew that Robinson was a felon, and they had just received information suggesting he was then carrying a gun. They also personally observed him loitering in a high-crime area at two thirty in the morning, visibly carrying something heavy in his right pants pocket. Together, this information was sufficient to justify the stop and weapons frisk.

Robinson also challenges his sentence, claiming the district court improperly applied sentencing guidelines enhancements for assault of an official victim and for possessing a gun in connection with another felony. See U.S.S.G. §§ 3A1.2(c)(1), 2K2.1(b)(6).*fn1 We conclude that the enhancement for assault of an official victim was properly applied, but the district court's findings do not adequately support application of the "other felony" enhancement. Accordingly, we affirm Robinson's conviction but vacate his sentence and remand for further proceedings consistent with this opinion.

I. Background

At two thirty in the morning on a late-September day in 2006, police in Rock Island, Illinois, established a substantial presence outside Jimmy's Bar, a tavern in a tough neighborhood on the west end of town. The bar was notorious for fights and shootings that tended to erupt around closing time, and six officers were stationed there to ensure there was no repeat of recent violent incidents. As they stood watch, a citizen known to one of the officers approached and reported that "Salty Dog" was in the area carrying a handgun. A few minutes later the source-who said he had heard this information from a woman inside the bar-told the officers that Salty Dog had come to Jimmy's to avenge a fight that occurred there a week earlier but had been turned away by bar employees when they learned he was armed and planning revenge.

The officers were well-acquainted with Salty Dog. He was Abraham Robinson, a habitual criminal with gang ties who had served time in prison for a drug offense. They also knew he was a suspect in a 2002 shooting and had himself been the target of a separate shooting that same year. The officers' source on the scene outside Jimmy's said Robinson was wearing a red t-shirt and jeans and was about a half block away, milling about in a large crowd in an open field abutting a house that had recently been the scene of several fights, drive-by shootings, and a homicide.

About fifteen minutes later, officers received a report of a 911 call from Jeffie Lee, the owner of the house next to the field where Robinson was located. Lee told the 911 operator she had just received a telephone call informing her that a man with a gun was standing in the crowd outside her house. The officers (who were also familiar with Lee) then approached the home but did not act immediately because they were seriously outnumbered. The throng of people was about 60 or 70 strong, and the officers feared a riot if they tried to confront Robinson. As they waited for the crowd to disperse, one officer observed that Robinson kept "favoring his right side," pulling his pants up on that side and patting his right pants pocket. He was acting as if he had something heavy in that pocket, and the officer, not surprisingly, suspected it was the gun Robinson was reported to be carrying.

As the crowd began to clear out, the police supervisor on the scene ordered the officers to "take [Robinson] down now." Five or six officers approached from behind, and when they were arm's length from Robinson, one officer yelled: "Police. Stop. Put your hands up."

A struggle ensued. Robinson reached for his waist-band or his right pants pocket, and the officers tried to grab his hands to get control over him. That effort did not initially succeed, and one officer warned Robinson that he would be Tasered if he did not put his hands up. Robinson kept on struggling, and the officers continued to have difficulty subduing him-he was more than six feet tall and weighed more than 300 pounds. The officers ultimately resorted to using the Taser, and although Robinson's resistance continued, one officer managed to remove a large, loaded Smith & Wesson revolver from Robinson's right pants pocket.

Robinson was charged with being a felon in possession of a firearm but sought to have the evidence of the gun suppressed, arguing that the stop and frisk were conducted without reasonable suspicion, in violation of his Fourth Amendment rights. The district court denied the suppression motion, and Robinson conditionally pleaded guilty, reserving the right to appeal the suppression decision.

At sentencing the judge applied a sentencing enhancement for assault of an official victim because Robinson had assaulted the officers who were trying to frisk him. See U.S.S.G. § 3A1.2. The judge also found that Robinson had attempted to shoot the officers and on that basis applied an enhancement for illegal possession of a firearm in connection with another felony. See U.S.S.G. § 2K2.1(b)(6). With these enhancements Robinson's guidelines sen- tence was equal to the statutory maximum-120 months, see 18 U.S.C. § 924(a)(2); U.S.S.G. § 5G1.1-but the court imposed a ...

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