United States v. LePage, Michael ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1881
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL LEPAGE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05 CR 147—John C. Shabaz, Judge.
____________
ARGUED OCTOBER 30, 2006—DECIDED FEBRUARY 15, 2007
____________
Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. The appellant entered a condi-
tional guilty plea to one count of being a felon in posses-
sion of a firearm in violation of 18 U.S.C. § 922(g)(1). He
was sentenced to 120 months’ imprisonment. On appeal
he challenges the district court’s denial of his motion to
suppress the firearm and he challenges his sentence. We
affirm.
I. HISTORY
On August 23, 2005, police in Superior, Wisconsin,
received a phone call from a girl who reported a group of
2 No. 06-1881
people acting suspiciously outside the building that she
was in, apparently prowling around a car and a nearby
building that she thought was supposed to be empty.
Relaying information from others in the house, she
continued to update the police about the activities of the
group of people, she named one of the suspicious people
as Michael LePage, and she whispered that he had a gun.
She identified herself by name to the dispatch operator.
When officers arrived, they found a group of three
people at the location. By this time the police officers at
the scene had been informed by dispatch that Michael
LePage was one of the group and was reported to be
armed. An officer, who knew LePage by sight and also
knew him to be a prior felon, saw him on the porch of a
house carrying a duffel bag. He ordered LePage to drop the
bag and move to the sidewalk, and then frisked him. When
LePage dropped the bag, the officer had heard a “thump”
as it hit the porch. Finding nothing on LePage’s person,
the officer walked to the porch and looked at the bag. The
officer’s report states that the bag was half-opened and
he could see part of a sawed-off shotgun. LePage was
then arrested.
LePage moved to suppress the admission of the shot-
gun as the fruit of an improper search and seizure. The
magistrate recommended that the district court deny
the motion to suppress, and the district court adopted
that recommendation. LePage then pled guilty, reserving
the right to appeal the admission of the shotgun.
At sentencing, the district court enhanced the sen-
tence for conduct that involved more than two firearms
and for possessing the firearm in connection with another
felony. LePage appeals the sentence on the grounds that
those enhancements were incorrectly applied. He also
challenges the sentence as unreasonable.
No. 06-1881 3
II. ANALYSIS
A. Suppression of the Sawed-Off Shotgun
LePage argues that the detention, search, and seizure
were made in violation of his Fourth Amendment rights
and that the district court should have suppressed the
shotgun. We disagree.
When reviewing a decision on a motion to suppress,
district court determinations of reasonableness are
reviewed de novo. United States v. Scheets, 188 F.3d 829,
836 (7th Cir. 1999). LePage first argues that the police
did not have reasonable suspicion to stop him when they
arrived on the scene on August 23. Police officers may
briefly stop and detain somebody for investigation if they
have a reasonable suspicion that the suspect has com-
mitted a crime or is about to do so. Terry v. Ohio, 392 U.S.
1 (1968). This reasonable suspicion need not rise to the
level of probable cause, but it must be more than a mere
hunch. United States v. Ganser, 315 F.3d 839, 843 (7th
Cir. 2003). A Terry stop must not only be valid at its
inception, but the officers must not exceed the scope or
nature of the stop. United States v. Askew, 403 F.3d 496,
508 (7th Cir. 2005). Although a single anonymous tip
seldom has the indicia of reliability to support a finding of
reasonable suspicion for a Terry stop, a tip from a named
informant that can be corroborated might support such a
stop. Florida v. J.L., 529 U.S. 266, 271 (2000). When a
single informant provides the tip that brought police to a
Terry stop, this court looks to the amount of information
given, the degree of reliability, and the extent that the
officers can corroborate some of the informant’s informa-
tion. Ganser, 315 F.3d at 843.
In this case, the informant gave her name and location
to the police. She also described a group of people repeat-
edly walking in circles around a building that she thought
was empty—behavior that was very similar to the behavior
4 No. 06-1881
that gave the police officer reasonable suspicion in
the original Terry case. Terry, 392 U.S. at 5-6. She de-
scribed what she thought was an attempt to break into
a car next to that building. Most significantly, she said
that although she had not seen a gun, she believed
that LePage was armed because he was carrying some-
thing in front of himself.
When the police arrived, they were able to corroborate
some of this information. There was a group of people
in the area, although it was a smaller group than the
caller had reported. Michael LePage was in fact a mem-
ber of the group and the small group was walking from a
car toward the house that the caller had said they
had been circling. This is not a case where a single anony-
mous caller told the police that some unnamed person at
the location had a gun and then hung up. The officers who
arrived at the scene had received corroborated informa-
tion from a caller who was willing to give her name to the
police and they had reasonable suspicion to believe that
one of two crimes was in progress. They could have
reasonably suspected that the group was involved in cas-
ing or prowling the cars and buildings, or, given that the
officers knew LePage’s criminal history, they could also
have reasonably suspected that he was a felon in posses-
sion of a firearm. At its inception the decisions to stop
LePage, to ask him to step from the porch to the side-
walk, and to briefly detain him were supported by a
reasonable, particularized suspicion that one or more
crimes were being committed and that LePage was armed.
LePage then argues that, even if the initial stop was
valid, the subsequent actions of the police by looking
into the duffel bag on the porch were unreasonable in
scope. We disagree. The officers had arrived to find LePage
exactly where the caller had said he would be. When
ordered to drop the bag, the officers heard a sound,
described as a thump, that was consistent with a weapon
No. 06-1881 5
being in the bag. See United States v. Quinn, 83 F.3d 917,
921-22 (7th Cir. 1993) (finding reasonable suspicion to
pat down a jacket when it made a thudding sound, con-
sistent with a weapon, upon bumping into a car). Officers
may walk up to that part of private property that is open
to visitors or delivery people. United States v. French, 291
F.3d 945, 953 (7th Cir. 2002). The officers did that, and
saw a sawed-off shotgun in LePage’s partially-opened
duffel bag. At that point they had probable cause to arrest
LePage and did so. The decision by the district court not
to suppress the shotgun as evidence was correct.
B. The Sentence
LePage also challenges his sentence. The district court
started with a base offense level of 20 under Sentencing
Guidelines § 2K2.1(a)(4)(B). The court added two levels
under Guidelines § 2K2.1(b)(1)(a) because the offense
involved three or more firearms and two levels under
§ 2K2.1(b)(4) because the firearms were stolen. The
court added an additional four levels for possessing the
firearms in connection with another felony under Guide-
lines § 2K2.1(b)(6).1 The court subtracted three levels for
acceptance of responsibility, arriving at an offense level of
25. With a criminal history category of VI, the advisory
range was 110-137 months. The court then considered
the necessary factors under 18 U.S.C. § 3553(a) and sen-
tenced LePage to the statutory maximum of 120 months’
imprisonment.
LePage argues that two of the sentencing enhancements
were incorrect and that the sentence as a whole is unrea-
1
At the time of sentencing, the enhancement for possession “in
connection with another felony offense” was contained in
§ 2K2.1(b)(5) of the 2005 Sentencing Guidelines. It has since
been relocated to § 2K2.1(b)(6).
6 No. 06-1881
sonable. Although he does not dispute that the firearms
were stolen, he argues that there was not enough evidence
to support finding that the gun was used in connection
with another felony. He also argues that the district
court should not have enhanced the sentence for a quantity
of firearms greater than two because only two were
found that night. Finally, LePage argues that by sen-
tencing him to the statutory maximum, the district court
unreasonably deprived him of the benefit of having
cooperated with the prosecution.
When the police arrested LePage they searched his duffel
bag and his girlfriend’s car. In the car they found metham-
phetamine packaged for sale. In his bag they found a large
amount of a chemical used to cut methamphetamine.
Earlier in the summer, LePage had sold methamphet-
amine to a confidential informant. The district court
concluded that these facts were sufficient to support the
conclusion that the sawed-off shotgun was being possessed
in connection with the felony of drug trafficking.
In order to enhance the sentence for possessing the gun
in connection with another felony, the court must find
that the gun had some purpose or effect in relation to
that second crime. United States v. Haynes, 179 F.3d 1045,
1047 (7th Cir. 1999). Mere contemporaneous possession
while another felony is being committed is not necessarily
sufficient, and possessing a gun while engaged in the
casual use of drugs might not give rise to the inference
that the gun was possessed in connection with the drugs.
United States v. Wyatt, 102 F.3d 241, 247 (7th Cir. 1996).
But when the guns are possessed along with the mate-
rials of a drug trafficker, it is a reasonable inference that
the guns protect or embolden the criminal enterprise. Id.
at 247-48. LePage argues that the other evidence be-
fore the district court did not support a finding that the
sawed-off shotgun had some purpose or effect in relation to
the drug possession.
No. 06-1881 7
That argument might be sound if the evidence did not
support the inference that LePage is a dealer or trafficker
in methamphetamine. He was carrying several pounds of
an agent used to dilute methamphetamine. This is con-
sistent with being a dealer and not simply a casual user
of the drug. He sold methamphetamine to a confidential
informant earlier in the summer of 2005, which is also
consistent with an inference that he is a trafficker. The
drugs in the car were apparently packaged for resale. The
district court also noted that (unlike the marijuana in his
possession) there was no accompanying paraphernalia
associated with the use of methamphetamine. And,
perhaps most damning, the sawed-off shotgun was in
the duffle bag that contained the cutting agent.
LePage argues that the dollar value of the drug traf-
ficking materials found in his bag is so small that it is
illogical to believe that his sawed-off shotgun was pos-
sessed for protection. But this argument is a non-starter
because in Wyatt we upheld the “in connection with”
enhancement when the guns were found near plastic
baggies and drug transaction ledgers—items with even less
material value than the amphetamines and cutting agent
that LePage was carrying. Wyatt, 102 F.3d at 243. Given
the totality of the information before the district court, the
facts and the inferences to be drawn from them support
the district court’s conclusion that the shotgun was being
used in connection with another felony, the trafficking and
dealing of methamphetamine. The application of the
enhancement was correct.
We turn to the question of how many guns should have
been included in the relevant conduct. In addition to the
drugs, when the police searched the car they also found
another weapon. Both of the weapons were stolen in a
home invasion several days prior to LePage’s arrest.
LePage took part in that home invasion by driving the
getaway car. During that home invasion, five firearms
8 No. 06-1881
were stolen and LePage was eventually given his choice
of which of the firearms he would keep as his share of
the proceeds. LePage admits all of this. The district
court enhanced the offense level because the conduct
involved five, rather than two, firearms.
When determining relevant conduct under the Sen-
tencing Guidelines, specific offense characteristics:
shall be determined on the basis of . . . all acts and
omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused
by the defendant, and . . . in the case of a jointly
undertaken criminal activity . . . all reasonably fore-
seeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity.
Sentencing Guidelines § 1B1.3(a).
The district court found by a preponderance of the
evidence that all five guns were relevant for sentencing. At
the sentencing hearing, the government argued that “[h]e
had access to the firearms. By his own admissions . . . all
the guns were in this basement. He could have exercised
dominion and control over them.” Sent. Tr. at 7. On its
face, this argument seems to hurt the government’s case,
not help it. Access is not synonymous with possession, nor
with either dominion or control. And arguing that LePage
“could have” exercised dominion and control does not
establish that he did exercise dominion and control. In
fact, the admissions that LePage made (that he was only
allowed to pick two firearms out of the five) indicate that
he did not have dominion and control over the other three
weapons. By this logic, a felon who stole one gun from a
display case in a pawn shop could be sentenced for having
possessed every gun in the store: he “could have” exercised
dominion and control over any one of them, therefore he
possessed all of them. This is, of course, illogical.
No. 06-1881 9
Nevertheless, the government also argued that the
other three firearms were relevant because they were
part of the same course of conduct and a common scheme
or plan under United States v. Santoro, 159 F.3d 318 (7th
Cir 1998). Santoro is not directly on point with this case:
the defendant in Santoro did not dispute that he had
possessed the second firearm, but rather was challenging
whether that possession was too remote in time to be
considered relevant conduct for a later conviction. But
the parties and the district court are correct that Santoro
does stand for the proposition that the court must look
to § 1B1.3 and therefore that events in the same course
of conduct or a common scheme or plan can be included
in determining the number of firearms.
Here the defendant took an active role in a conspiracy
to steal five firearms by driving the getaway car. In fact,
he thought that he was helping to steal fifteen firearms
until the police and the victim of his home invasion
informed him that he and his accomplices had only
managed to abscond with five. LePage therefore aided and
abetted acts involving five firearms. By analogy, the
application notes clarify that in cases involving contra-
band a defendant is responsible not only for that in which
he is “directly involved” but also “all reasonably foresee-
able quantities of contraband that were within the scope
of the criminal activity that he jointly undertook.” Guide-
lines § 1B1.3 app. n.2. The subsequent commentary
makes it even more clear: when defendant A is one of ten
people hired to offload one ton of contraband from a ship,
all ten defendants are jointly responsible for the entire
quantity—even that fraction that they never personally
touched. Id. Even if LePage never exercised exclusive
possession of all five firearms, his participation in the
joint criminal endeavor makes that total quantity rele-
vant for sentencing. Accord United States v. Wallace, 461
F.3d 15 (1st Cir. 2006) (counting all six firearms stolen
10 No. 06-1881
from a firearms store in addition to the two firearms
brandished by the defendants).
Finally, LePage argues that by sentencing him to the
statutory maximum the district court imposed an unrea-
sonable sentence because he was deprived the benefit of
having cooperated. After correctly determining the offense
level and the defendant’s criminal history, the district
court entertained argument from both parties about the
other factors necessary under 18 U.S.C. § 3553(a). The
advisory range was 110 to 137 months, capped by a
statutory maximum of 120 months. LePage argued that
a sentence of 120 months would give no effect to the
fact that he had cooperated with the prosecution and
accepted responsibility. That is, even if he had put the
government to its burden of proof, he could not have
been any worse off than a sentence of 120 months. The
district court was not persuaded, and sentenced LePage
to 120 months. LePage repeats the argument here on
appeal.
A sentence within the correctly computed advisory
guidelines is now accorded a rebutable presumption of
reasonableness on appeal. United States v. Mykytiuk, 415
F.3d 606, 608 (7th Cir. 2005). LePage argues that the
district court did not acknowledge his acceptance of
responsibility and should have granted him “tangible
credit” for it. This is incorrect. The court did address his
argument, but dismissed it: “He’s already received the
benefit of the reduction which he perhaps seeks from this
Court based on the manner in which he was charged.”
Sent. Tr. at 15. In fact, the district court thoroughly
discussed many other § 3553(a) factors that weighed in
favor of a higher sentence, and indicated that the statutory
maximum significantly limited his ability to impose
the sentence that he believed was necessary. Sent Tr. at
15 (indicating that “130 to 162” months would be more
appropriate).
No. 06-1881 11
LePage was not denied the benefits of cooperating
with the authorities: he simply received a far greater
benefit by nature of the operation of the statutory limit.
This was offset, in the judgment of the district court, by
numerous factors that counseled a higher sentence. LePage
dedicated a mere sentence fragment to the undeveloped
argument that his “history of drug abuse and psychological
difficulties” also made the sentence unreasonable. Without
any more substance than this, it appears that his only
serious argument is that his cooperation is going un-
rewarded. We are not prepared to establish a new rule that
a sentence is per se unreasonable whenever a defendant is
sentenced at the statutory maximum after cooperating and
accepting responsibility. This would be the practical effect
of accepting LePage’s argument, and we therefore reject it.
III. CONCLUSION
For the foregoing reasons, the judgment and sentence
of the district court are AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-15-07