Argued April 2, 2014.
Appeals from the United States District Court for the Western District of Wisconsin. No. 12-cr-28-wmc -- William M. Conley, Chief Judge.
For United States of America, Plaintiff - Appellant (13-1353): Alice H. Green, Attorney, Office of The United States Attorney, Madison, WI.
For Juan M. Gonzalez-Ruiz, also known as: JUAN MANUEL GONZALEZ, also known as: TITO MANUEL ESTRELLA, Defendant - Appellee (13-1353): Christopher T. Van Wagner, Attorney, Van Wagner & Wood, Madison, WI.
For United States of America, Plaintiff - Appellee (13-1441): Alice H. Green, Attorney, Office of The United States Attorney, Madison, WI.
For Juan M. Gonzalez-Ruiz, also known as: JUAN MANUEL GONZALEZ, also known as: TITO MANUEL ESTRELLA, Defendant - Appellant (13-1441): Christopher T. Van Wagner, Attorney, Van Wagner & Wood, Madison, WI.
Before EASTERBROOK, MANION, and SYKES, Circuit Judges.
Sykes, Circuit Judge.
Juan M. Gonzalez-Ruiz was charged with possessing a firearm as a felon after police in Fitchburg, Wisconsin, found two handguns in his car during a routine traffic stop. He moved to suppress the guns, but the district court denied the motion, finding that he consented to the search. Gonzalez-Ruiz then entered a conditional guilty plea, reserving the right to appeal the denial of suppression.
At sentencing the government sought an enhanced penalty under the Armed Career Criminal Act (" ACCA" ), 18 U.S.C. § 924(e), based on Gonzalez-Ruiz's criminal history. His record includes convictions for aggravated assault, aggravated battery, possession of a sawed-off shotgun, and conspiracy to commit armed robbery. Gonzalez-Ruiz conceded that the first two crimes qualify as violent felonies under the ACCA, and we've held that the third does not. See United States v. Miller, 721 F.3d 435 (7th Cir. 2013). The government argued that conspiracy to commit armed robbery is a violent felony under the " residual clause" of the ACCA, see 18 U.S.C. § 924(e)(2)(B)(ii), so that conviction counts as the third predicate for purposes of the Act. The judge disagreed and imposed a guidelines term of 37 months.
Gonzalez-Ruiz appealed, challenging the denial of his suppression motion. The government cross-appealed seeking resentencing under the ACCA. We put the case on hold to await the Supreme Court's decision in Johnson v. United States, which affects the government's cross-appeal. That decision is now in; the Court held that the residual clause is unconstitutionally vague. See Johnson v. United States, 135 S.Ct. 2552, 2563, 192 L.Ed.2d 569 (2015). Accordingly, the government has moved to dismiss the cross-appeal. That motion is granted. On the remaining issue, we find no error in the district court's denial of suppression. From the perspective of a reasonable officer, Gonzalez-Ruiz's words and actions during the traffic stop manifested his consent to search.
At about 3 a.m. on October 19, 2011, Sergeant Matthew Laha ...