Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 06-CR-183-John Daniel Tinder, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge.
Before EASTERBROOK, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.
A series of 911 calls reporting shots fired in broad daylight led police officers to a busy area in Indianapolis to arrest the gunman. One caller fingered the occupants of a white sports utility vehicle ("SUV"), which carried defendant Anthony Hampton. When officers stopped Hampton and the driver, they recovered two guns. After applying enhancements be- cause of Hampton's previous felony convictions, the court sentenced him to 387 months' imprisonment. We affirm Hampton's conviction because we conclude that the officers had reasonable suspicion to stop the SUV in which Hampton was riding and that there was sufficient evidence to show that Hampton constructively or actually possessed the gun. As to his sentence, although we agree with the district court that a conviction for residential entry in Indiana qualifies as a "violent felony" for the purposes of the Armed Career Criminal Act ("ACCA"), we conclude that Hampton's prior conviction for criminal recklessness in Indiana does not qualify, and therefore, Hampton must be resentenced.
Anthony Hampton was charged with possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). His arrest arose out of events that occurred on July 13, 2006. The Indianapolis Metropolitan Police Department received several 911 calls after someone fired shots in a parking lot behind a Subway restaurant in Indianapolis.
The first 911 call came in at 4:29 p.m., when a woman who identified herself as Monica Drawn called and reported hearing five gunshots outside of her apartment building at 3777 N. Meridian Street. She described two African-American men getting out of an SUV near Subway and standing behind a dumpster. She said one man wore black shorts and a black shirt. Eleven seconds later, a man who identified himself as John Adkins called 911 and reported hearing six or seven shots. He also described seeing an African-American man, wearing a dark, short-sleeved shirt, running with a gun in his hand. One second later, a Subway employee called 911 and stated individuals were shooting from inside an orange van.
At 4:33 p.m., police arrived at the scene. Drawn called 911 again and reported that the man with the black shorts and shirt whom she had called to report earlier had just walked past police officers. The 911 dispatcher relayed this to officers on the scene, and Drawn was able to verify that the person had white beads in his hair. One minute later, another caller, later identified as Anthony Smith phoned 911 and reported watching the shooter stand between two buildings near Pennsylvania and 38th streets talking on a cell phone. Smith would later testify that he recognized the shooter as Anthony Hampton because he was from the neighborhood. However, he did not report to the 911 operator that he recognized Anthony Hampton or that the person he was watching supposedly was holding a gun. He described the person as a bald, black man wearing blue jeans and a blue shirt with stripes. Smith also reported that he saw the man get into a white Jeep Cherokee with Ohio plates and head northbound on Pennsylvania Street. Smith initially hesitated to meet with the police because he was fearful that the "shooter" saw him. Smith eventu-ally gave the 911 operator his name (albeit after the police initiated the traffic stop), a description of what he was wearing and his location so that officers could speak with him. After officers arrested Hampton, they learned that Smith did not actually witness the shooting.
Meanwhile, officers stopped a white Jeep Commander with Ohio plates after the driver turned without signaling. The officers asked the two men to get out of*fn1 the Jeep. One man was the driver, Justin Gray. The other man, later identified as Hampton, was seated in the rear passenger's side seat. Hampton wore a blue shirt with yellow stripes across the chest. One officer would later testify that Hampton was sweating profusely and looked disheveled. The officers searched the Jeep and found two firearms-a black Ruger handgun under the driver's seat and a chrome Smith & Wesson revolver near the rear seat on the driver's side. Police later brought Smith to the scene of the traffic stop, and Smith identified Hampton as the individual he had seen between the buildings.
At about 4:50 p.m., Keith Moore called 911 and reported that he had just witnessed almost the entire event unfold from the roof of his high-rise apartment building where he was relaxing by the pool with a beer. At Hampton's trial, Moore testified that after the initial shot, he stood on a chair at the edge of the pool deck, peered over a fence and witnessed an African-American man firing a large, silver handgun toward an apartment building behind a Subway. He also saw another black man wearing jeans and a blue jacket in the Subway parking lot. He saw the second man enter and leave in a maroon minivan. The gunman stopped and talked to two individuals in front of the Subway, and those two men headed westbound. The gunman then placed the gun in his waistband. Moore also reported the gunman wore blue jeans and a blue-collared shirt with a yellow band around the chest. Police took Moore to the scene of the traffic stop, and he identified Hampton as the individual with the large, silver handgun.
Later, officers discovered an orange Nissan Murano in the Subway parking lot with two bullet holes in the hood. Hampton's girlfriend testified at his trial that she had loaned the Murano to him and stated there had not been bullet holes in the vehicle before she gave him the car on the afternoon of July 13, 2006.
Before the trial, the district court denied Hampton's motion to suppress the Smith & Wesson chrome revolver, the gun he was charged with possessing. Following a two-day trial, a jury convicted Hampton. The court, applying the sentencing guidelines in combination with the ACCA, 18 U.S.C. § 924, determined Hampton's offense level was 34, his criminal history category a VI, and the resulting guidelines range a range of 262 to 327 months. It then chose to add four levels to Hampton's offense level in light of his extensive criminal history for a final offense level of 38. That resulted in a guidelines range of 360 months to life. Stating that the sentence would reflect an additional 60 months from the high end of the Guidelines range had it stayed at level 34, the court sentenced Hampton to 387 months' imprisonment.
A. Reasonable Suspicion ...