United States v. Abdullah Mansur , 375 F. App'x 458 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0187n.06
No. 08-3872 FILED
Mar 25, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE
v. ) SOUTHERN DISTRICT OF
) OHIO
ABDULLAH MANSUR, )
) OPINION
Defendant-Appellant. )
*
BEFORE: CLAY, and McKEAGUE, Circuit Judges; and POLSTER, District Judge.
McKEAGUE, Circuit Judge. Appellant Abdullah Mansur argues that the district court: (1)
should have suppressed the evidence of his possession of a firearm because the firearm was seized
in violation of the Fourth Amendment; and (2) erred in giving him an enhanced sentence under the
Armed Career Criminal Act. Because the officer did not violate the Fourth Amendment when he
seized the firearm, and because attempted robbery is a violent felony for purposes of 18 U.S.C. §
924(e), we AFFIRM the district court’s decision denying Mansur’s motion to suppress and
AFFIRM Mansur’s sentence.
I. BACKGROUND
*
The Honorable Dan A. Polster, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 08-3872
United States v. Mansur
On July 8, 2007 around 10:40 p.m., Springfield Township Officers Jeremy Trentman and
Rami Khayo were on patrol in the area of Winton and North Bend Roads in Springfield Township,
Ohio in a neighborhood that they described as a high-crime area. That intersection had a number of
businesses operating twenty-four hours and was very busy, even at night. The officers pulled into
the parking lot of a United Dairy Farmers gas station. While there, the officers observed a full-sized,
dark-colored van with a license plate in the back window, instead of in the normal position.
Concerned because, in his experience, tags displayed in this way were often stolen or not supposed
to be on the vehicle displaying them, Officer Trentman processed the license number with the
Mobile Data Computer in his patrol car. The Mobile Data Computer showed that, while the license
tag had not been reported stolen, the license tag was registered to a Dodge Neon rather than a van,
and this led Officer Trentman to believe that the van might be operating with a fictitious tag, in
violation of Ohio law.
After checking the license tag, the officers continued to observe the van from their patrol car,
which was parked about twenty to twenty-five feet away from the van. They were waiting for it to
enter one of the roadways, where they intended to stop it. The officers watched Mansur – the only
person around the van – pumping gas, opening and closing doors, and cleaning all the windows of
the van. Mansur kept looking at the cruiser and eventually, “[i]t was very obvious that Mr. Mansur
was focusing his attention solely on [the officers] in the cruiser” and that he was not pumping gas.
(R. 41 TR 15.) When it seemed that the van was not going to leave the gas station, the officers
decided to execute a traffic stop while the van was still parked at the pump. The officers pulled up
behind the van in their patrol car and activated the patrol car’s overhead lights. Officer Trentman
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got out of the patrol car, and walked up to Mansur, who was at the rear driver’s side of the van.
Officer Trentman questioned Mansur regarding the license plate, and Mansur told Officer Trentman
that the license plate was stolen, and that he purchased the tag from a “crackhead” for $20.00. (R.
41 TR 17.) Officer Trentman stated in his deposition that, after Mansur’s voluntary admission, he
intended to arrest Mansur for felony possession of a stolen license plate.
Officer Trentman than took Mansur’s driver’s license and gave it to Officer Khayo to run
through the computer unit in the police car. Officer Khayo checked the license and found that
Mansur had a criminal history. He conveyed this information to Officer Trentman. At this point,
Officer Trentman searched Mansur. During the search, Officer Trentman found a firearm in the back
pocket of Mansur’s pants.
Mansur was indicted for one count of being a felon in possession of a firearm pursuant to 18
U.S.C. §§ 922(g) and 924(e), and one count of possessing a firearm with an obliterated serial number
pursuant to 18 U.S.C. § 922(k). Mansur filed a motion to suppress, which the district court granted-
in-part and denied-in-part (critically, the district court did not suppress the firearm). Mansur
subsequently entered into a conditional plea agreement with the government, in which he pled guilty
to being a felon in possession of a firearm but reserved his right to appeal the district court’s ruling
on his motion to suppress and his right to contest whether he qualified as an armed career criminal
under 18 U.S.C. § 924(e). After conducting two sentencing hearings, the district court determined
that, based on his prior felonies, Mansur qualified for an enhancement under the Armed Career
Criminal Act and sentenced Mansur to: (1) 180 months of imprisonment; (2) three years of
supervised release; and (3) a special assessment of $100.00.
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United States v. Mansur
II. ANALYSIS
In his appeal, Mansur argues that (1) the seizure of the firearm violated the Fourth
Amendment and (2) the district court incorrectly determined that his prior felonies required that he
receive an enhanced sentence under 18 U.S.C. § 924(e).
A. The Seizure of the Firearm
On appeal from the denial of a motion to suppress, this court reviews the district court’s
findings of fact for clear error and its conclusions of law de novo. United States v. Caruthers, 458
F.3d 459, 464 (6th Cir. 2006). “A factual finding will only be clearly erroneous when, although
there may be evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” United States v. Nichols, 512 F.3d
789, 793 (6th Cir. 2008) (citation omitted). This court accords “deference to the district court’s
assessment of credibility inasmuch as the court was in the best position to make such a
determination.” United States v. Garrido, 467 F.3d 971, 977 (6th Cir. 2006) (citation omitted).
“The evidence must be considered in the light most favorable to the party that prevailed in the court
below – in this case, the government.” Id.This court has held that, “so long as the officer has probable cause to believe that a traffic
violation has occurred or was occurring, the resultant stop is not unlawful and does not violate the
Fourth Amendment.” United States v. Davis, 430 F.3d 345, 352 (6th Cir. 2005) (citing United States
v. Bradshaw, 102 F.3d 204, 210 (6th Cir. 1996)). In determining whether probable cause existed,
the courts “employ a totality of the circumstances test.” United States v. Torres-Ramos, 536 F.3d
542, 555 (6th Cir. 2008). The officers must have “a reasonable ground for belief of guilt” and that
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United States v. Mansur
“belief of guilt must be particularized with respect to the person to be searched or seized.” United
States v. Romero, 452 F.3d 610, 615-16 (6th Cir. 2006) (citations omitted). In making this
determination, this court takes into account, “the ‘factual and practical considerations of everyday
life’ that would lead a reasonable person to determine that there is a reasonable probability that
illegality has occurred or is about to occur.” Id. at 616 (citation omitted). Probable cause requires
that the officers have more than a “mere suspicion” but does not require that they “establish a prima
facie case at trial, much less evidence to establish guilt beyond a reasonable doubt.” Torres-Ramos,
536 U.S. at 555 (citation omitted). If the stop was proper, then this court next asks “whether it was
reasonably related in scope to the circumstances which justified the interference in the first place.”
United States v. Gross, 550 F.3d 578, 582-83 (6th Cir. 2008) (citations omitted).
Looking at the totality of the circumstances, the officers had probable cause to initiate the
traffic stop.2 When the officers ran the license plate number displayed in the van’s rear window
through the computer in their patrol car, they discovered that the license plate was registered to a
different car.3 This gave the officers particularized, reasonable grounds for believing that the van
was displaying an unauthorized plate in violation of OHIO REV . CODE ANN . § 4549.08.5
2
When Officers Trentman and Khayo pulled up behind the van and turned on their lights,
Mansur, who submitted to their show of authority, was seized. See Brendlin v. California, 551 U.S.
249, 254 (2007).
3
The officers use of the information on Mansur’s license plate did not violate the Fourth
Amendment. United States v. Ellison, 462 F.3d 557, 564 (6th Cir. 2006).
5
The officers had probable cause even though there was a possible legal explanation for the
license plate not matching with the vehicle description. See OHIO REV . CODE ANN . § 4549.08(A)(3).
Logically, the strong possibility that the license plate was unauthorized existed and gave the officers
probable cause to initiate a traffic stop. Regarding unauthorized plates, OHIO REV . CODE ANN . §
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No. 08-3872
United States v. Mansur
Furthermore, the van was parked in the gas station at a United Dairy Farmers. This gave the officers
particularized, reasonable grounds to believe that the van had recently been driven on the nearby
roads while displaying an unauthorized license plate. The officers observed Mansur pumping gas,
opening and closing the doors to the van, staring at the police cruiser, and cleaning the windows of
the van. Mansur was the only person that the officers observed near the van. This gave them
particularized, reasonable grounds to believe that Mansur was the person that had recently driven
the van.6 To have probable cause, the officers did not need to be absolutely certain that illegality had
occurred, they only needed to have reasonable ground for a belief of guilt, after considering the
factual and practical considerations of everyday life. Since these facts would have led a reasonable
4549.08 states that:
No person shall operate or drive a motor vehicle upon the public roads and highways
in this state if it displays a license plate or a distinctive number or identification mark
that meets any of the following criteria:
(1) Is fictitious . . .
(3) Belongs to another motor vehicle, provided that this section does not apply to a
motor vehicle that is operated on the public roads and highways in this state when the
motor vehicle displays license plates that originally were issued for a motor vehicle
that previously was owned by the same person who owns the motor vehicle that is
operated on the public roads and highways in this state, during the thirty-day period
described in division (A)(4) of section 4503.12 of the Revised Code. . . .
(C) Whoever violates division (A)(1), (2), or (3) of this section is guilty of operating
a motor vehicle bearing an invalid license plate or identification mark, a
misdemeanor of the fourth degree on a first offense and a misdemeanor of the third
degree on each subsequent offense.
6
This conduct, which the officers observed, was sufficient to give them probable cause even
if they only observed it over a few minutes.
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United States v. Mansur
person to determine that there was a reasonable probability that illegality had occurred, the officers
had probable cause to initiate the traffic stop.
Turning to the second inquiry, the traffic stop here was reasonably related in scope to the
circumstances which justified it. The officers were not required to wait for Mansur to pull onto a
public roadway before initiating their traffic stop. Instead, they quickly pulled up behind Mansur,
activated the lights on their patrol car, and Officer Trentman approached Mansur and questioned him
regarding the license plate. Mansur told Officer Trentman that the license plate was stolen.7 Officer
Trentman took Mansur’s driver’s license and gave it to Officer Khayo to run through the computer
unit in the police car. It showed that Mansur had a criminal history. Officer Trentman then decided
to pat Mansur down, discovered a gun, and placed Mansur under custodial arrest. Throughout this
encounter, the degree of the officers’ intrusion was reasonable. Therefore, there was no violation
of the Fourth Amendment.
The officers were justified in making the traffic stop because they had probable cause to
suspect that Mansur had committed the traffic offense of driving with unauthorized plates. The
7
Officer Trentman’s search of Mansur was justified as a search incident to an arrest. See
United States v. Montgomery, 377 F.3d 582, 586 (6th Cir. 2004) (noting that under Rawlings v.
Kentucky, 448 U.S. 98, 110-11 (1980), “the search-incident-to-a-lawful-arrest rule . . . permits an
officer to conduct a full search of an arrestee’s person before he is placed under lawful custodial
arrest as long as ‘the formal arrest follow[s] quickly on the heels of the challenged search . . . and
the fruits of that search are not necessary to sustain probable cause to arrest him” (internal citation
and quotation marks omitted; emphasis in original)). In Ohio, an officer can arrest an individual
without a warrant if he has probable cause to believe he has committed a felony. State v. Elmore,
111 Ohio St. 3d 515, 558 (Ohio 2006). In Ohio, receipt of a stolen license plate is a felony. See
OHIO REV . CODE ANN . §§ 2913.51(A)-(C), 2913.71(C). Therefore, once Mansur told Officer
Trentman that he had received a stolen license plate (shortly after the traffic stop began), Officer
Trentman had probable cause to arrest him.
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United States v. Mansur
search of Mansur’s person that disclosed the firearm was justified because, after Mansur told Officer
Trentman that the plates were stolen, Officer Trentman had probable cause to arrest Mansur.
Therefore, we find that Mansur’s Fourth Amendment rights were not violated.
B. The Armed Career Criminal Act Determination
Mansur received an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. §
924(e). The Armed Career Criminal Act requires an enhanced prison term for a defendant who is
(1) convicted of being a felon in possession of a firearm, and (2) has “three previous convictions by
any court . . . for a violent felony or a serious drug offense, or both, committed on occasions different
from one another.” 18 U.S.C. § 924(e)(1). Mansur argues that his prior convictions for attempted
robbery and escape are not violent felonies and, therefore, that his enhanced sentence under 18
U.S.C. § 924(e) was not required.
We review de novo the legal question of whether a prior conviction constitutes a crime of
violence under the Armed Career Criminal Act. United States v. LaCasse, 567 F.3d 763, 765 (6th
Cir. 2009). A crime of violence includes “any crime punishable by imprisonment for a term
exceeding one year” that (1) “has as an element the use, attempted use, or threatened use of physical
force against the person of another”; (2) “is burglary, arson, or extortion, [or] involves use of
explosives”; or (3) “otherwise involves conduct that presents a serious potential risk of physical
injury to another.” 18 U.S.C. § 924(e)(2)(B). We have described the third prong as the “residual
clause.” United States v. Young, 580 F.3d 373, 377 (6th Cir. 2009).
In making this determination, this court initially takes a “categorical approach” and examines
the offense “in terms of how the law defines the offense and not in terms of how an individual
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United States v. Mansur
offender might have committed it on a particular occasion.” Begay v. United States, 128 S.Ct. 1581,
1584 (2008); see also Young, 580 F.3d at 377 (noting that the “categorical approach,” means that
this court examines only “whether the elements of the offense are of the type that would justify its
inclusion within the residual provision” (citation omitted)). However, if the statutory language is
not determinative, then we may look to the charging instrument, written plea agreements, plea
colloquies, explicit factual findings by the trial judge, or some comparable judicial records in
determining whether the underlying felony is a violent felony. See Shepard v. United States, 544
U.S. 13, 20-21 (2005); see also United States v. Goodman, 519 F.3d 310, 316-17 (6th Cir. 2008).
Mansur argues that his prior conviction for attempted robbery does not qualify as a crime of
violence and, consequently, that his enhanced sentence under 18 U.S.C. § 924(e) was improper.
However, because Mansur’s armed robbery conviction qualifies as a violent felony under the first
and third (residual clause) prongs of 18 U.S.C. § 924(e)(2)(B), it is a violent felony and the district
court’s determination was proper.8
8
Mansur argues in a pro se letter that the Supreme Court’s recent decision in Chambers v.
United States, 129 S.Ct. 687 (2009), undermines the finding that his escape conviction was a violent
felony. Initially, this claim was not addressed in Mansur’s brief before this court and, consequently,
it has not been properly presented to this court. However, we note that, even after Chambers, a
traditional escape from custody, as opposed to a walkaway or a failure to report situation, is still a
violent felony for purposes of the Armed Career Criminal Act. See Chambers, 129 S.Ct. at 691;
United States v. Ford, 560 F.3d 420 (6th Cir. 2009). At the time of Mansur’s conviction, Ohio law
allowed for a conviction either for an escape from custody or for a walk away. See OHIO REV . CODE
ANN . § 2921.34(A). Mansur conceded that he was in physical custody at the time of his escape
conviction; indeed, his letter and his testimony before the district court as to what happened confirm
that his escape conviction involved a traditional escape from physical custody and, therefore, that
he did not simply walk away. (See R. 43 TR 22-23; R. 40 TR 21.) As a result, under the categorical
approach, Mansur’s escape conviction is a violent felony.
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Under Ohio law, as it existed in 1988 when Mansur pled guilty to attempted robbery, OHIO
REV . CODE ANN . § 2911.02 defined the crime of “Robbery”: “No person in attempting or committing
a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after
such attempt or offense, shall use or threaten the immediate use of force against another.” Similarly,
OHIO REV . CODE ANN . § 2923.02 defined the crime of “Attempt”: “(A) No person, purposely or
knowingly, and when purpose or knowledge is sufficient culpability for the commission of an
offense, shall engage in conduct which, if successful, would constitute or result in the offense.” A
“criminal attempt” occurs when “one purposely does or omits to do anything which is an act or
omission constituting a substantial step in a course of conduct planned to culminate in his
commission of the crime.” State v. Woods, 48 Ohio St. 2d 127, 127 (1976).
Looking at the language of the statute, attempted robbery has as an element the use,
attempted use, or threatened use of physical force against the person of another and, therefore, it is
a violent felony as defined under the first prong of 18 U.S.C. § 924(e)(2)(B)(i). See generally United
States v. Sanders, 470 F.3d 616, 622 n.1 (6th Cir. 2006); United States v. Thomas, 13 F. App’x 233,
at *8 (6th Cir. April 3, 2001). The crime of robbery requires as an element that the person shall use
or threaten the immediate use of force against another. The applicable 1988 provision of the Ohio
Revised Code defined “force” to mean, “any violence, compulsion, or constraint physically exerted
by any means upon or against a person or thing.” OHIO REV . CODE ANN . § 2901.01.9 Therefore, the
9
Mansur cites to the Supreme Court’s recent decision in Johnson v. United States, 130 S.Ct.
1265 (2010), which defined physical force for purposes of the first prong of 18 U.S.C. §
924(e)(2)(B): “the phrase ‘physical force’ means violent force – that is, force capable of causing
physical pain or injury to another person.” Id. at __ (noting that the battery offense that it was
examining, which had as an element, “‘[a]ctually and intentionally touch[ing]’ another person,” did
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United States v. Mansur
crime of robbery clearly has as an element the use, attempted use, or threatened use of physical force
against another person. Similarly, the crime of attempted robbery also has as an element of the
offense the use, attempted use, or threatened use of physical force against another person.10
not have physical force as an element for purposes of the first prong of 18 U.S.C. § 924(e)(2)(B))
(emphasis in original). We believe that Johnson supports our finding that attempted robbery is a
crime of violence. Initially, Johnson did not address the residual prong of 18 U.S.C. §
924(e)(2)(B)(ii), which we find that Mansur’s attempted robbery conviction also qualifies as a crime
of violence under. Furthermore, there is a significant difference between the activity necessary to
commit a battery and the activity necessary to commit a robbery (or even to attempt a robbery).
Finally, at the time of Mansur’s conviction, Ohio courts had already noted that the “type of force”
envisioned by the force prong of the Ohio robbery statute was “‘that which poses actual or potential
harm to a person.’ State v. Carter, 504 N.E.2d 469, 470 (Ohio App. 9th Dist. 1985). State v.
Ballard, 469 N.E.2d 1334, 1335 (Ohio App. 8th Dist. 1984).” State v. Furlow, 608 N.E.2d 1112,
1113 (Ohio App. 2d Dist. 1994) (noting that “[i]n our judgment, these courts, guided by the
Committee Comment to R.C. 2911.02, have properly determined that the difference between theft
and robbery is an element of actual or potential harm to persons”); see also State v. Cohen, 396
N.E.2d 235, 236 (Ohio App. 1st Dist. 1978) (noting that the “force” defined in the robbery statute
meant the “threat of actual or potential harm”); BALDWIN ’S OHIO PRAC. CRIM . LAW § 102:3 (2009).
Force which involves actual or potential harm to a person is force capable of causing physical pain
or injury to another person; therefore, the type of force that was an element of the Ohio attempted
robbery statute that Mansur was convicted under is physical force as that term is defined for purposes
of the first prong of 18 U.S.C. § 924(e)(2)(B).
10
Mansur cites to an Ohio case finding that robbery cannot serve as the predicate crime to
a charge of attempt. See e.g., State v. Still, No. 93-L-195, 1994 WL 721792 (Ohio Ct. App. Dec. 9,
1994). However, this case was decided after Mansur’s conviction and other Ohio courts have held
to the contrary. State v. Chaney, No. H-95-20, 1996 WL 143621, at *1 (Ohio Ct. App. Mar. 8,
1996); State v. Mramor, No. 50976, 1986 WL 11516, at *2 (Ohio Ct. App. Oct. 2, 1986). Mansur
does not dispute before this court the validity of his prior attempted robbery conviction. See
generally United States v. Goodman, 519 F.3d at 318-19 (citing Custis v. United States, 511 U.S.
485 (1994)). However, building off Still, Mansur does argue that attempted robbery, under Ohio
law, is really an attempt at an attempt since the Ohio robbery statute incorporates an attempt. See
OHIO REV . CODE ANN . § 2911.02 (“No person in attempting or committing a theft offense . . . .”).
He then argues that this attempt at an attempt is too attenuated to be the “use, attempted use, or
threatened use of force.” This is incorrect. The Ohio robbery statute clearly prohibits the use or
threat of force while attempting, committing, or fleeing immediately after a theft offense. Thus,
attempt in the robbery statute modifies theft, not the use or threat of force. Furthermore, even under
Mansur’s reading, a person must at some point attempt to use or threaten force in order to be
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Furthermore, Mansur’s conviction for attempted robbery also involved conduct that falls
under the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) and, therefore, is a violent felony. To be
a violent felony under the residual clause, the offense must be one that: “(1) poses a serious potential
risk of physical injury to others; and (2) involves the same kind of purposeful, violent, and
aggressive conduct as the enumerated offenses of burglary, arson, extortion, or offenses involving
the use of explosives.” Young, 580 F.3d at 377 (quoting Begay, 128 S.Ct. at1586). Plainly robbery,
which has as an element the use or threatened immediate use of force against another, is like the
enumerated offenses, in both the risk of physical injury to others that it creates and in that it involves
purposeful, violent, and aggressive conduct. Similarly, attempted robbery, which required Mansur
to take a substantial step in conduct which, if successful, would constitute or result in a robbery, is
a crime that creates a serious potential risk of physical injury to another. Furthermore, since the use
or threat of force against another person is an element of attempted robbery, attempted robbery
involves the same (or greater) kind of purposeful, violent, and aggressive behavior as the enumerated
offenses. See Taylor v. United States, 495 U.S. 575, 588 (1990) (generically defining the enumerated
offense of burglary to have “the basic elements of unlawful or unprivileged entry into, or remaining
convicted of attempted robbery because the use or threatened immediate use of force is still an
element of an attempted robbery. Thus, attempted robbery falls exactly within the first prong of the
test for a violent felony.
Moreover, contrary to Mansur’s attenuation argument, an attempted robbery is also similar
in kind and degree of risk posed to the enumerated offenses and, therefore, a violent felony under
the residual clause of 18 U.S.C. 924(e)(2)(B)(ii). At some point, even under Mansur’s reading, a
person must attempt to use or threaten force in order to be convicted of attempted robbery. Even if,
under the Ohio statutes, the use or threatened use of force in an attempted robbery may be more
attenuated than in a robbery, an attempted robbery still creates a serious risk of potential injury to
another and involves the same kind of purposeful, violent, and aggressive conduct as the enumerated
offenses.
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in, a building or structure, with intent to commit a crime”); see also James v. United States, 550 U.S.
192, 208-09 (2007) (noting that attempted burglary is a violent felony). Indeed, attempted robbery
involves “conduct” that “makes [it] more likely that an offender, later possessing a gun, will use that
gun deliberately to harm a victim.” Begay, 128 S.Ct. at 1586.
In short, because the attempted robbery conviction qualifies as a violent felony under 18
U.S.C. § 924(e)(2)(B), we find that the district court did not err in giving Mansur an enhanced
sentence.
III. CONCLUSION
Because the district court did not err in finding that the seizure which led to the discovery of
the firearm did not violate the Fourth Amendment or in giving Mansur an enhanced sentence under
18 U.S.C. § 924(e), we AFFIRM the district court’s decision denying Mansur’s motion to suppress
and AFFIRM Mansur’s sentence.
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