United States v. Gibson , 60 F.3d 1514 ( 1995 )

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.