United States v. Christopher Martin ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-1511
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Christopher Ronald Martin
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: August 3, 2021
Filed: October 18, 2021
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Before LOKEN, GRASZ, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Christopher Martin challenges the district court’s1 denial of his motions to
suppress and his objection to application of the career criminal enhancement in
U.S.S.G. § 4B1.1(a). We previously affirmed. United States v. Martin, 999 F.3d 6361
The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
(8th Cir. 2021), reh’g granted and opinion vacated (Aug.3, 2021). After panel
rehearing, we again affirm.
I.
Martin robbed a Sprint Wireless Express store in Davenport, Iowa at gunpoint,
making off with cell phones and tablets. Little did he know, he also left with a GPS
tracker, courtesy of the store employee. The employee called police, describing the
robber as “5' 7" tall, heavyset, male, African American with a grey ski mask, a blue
hooded sweatshirt and grey sweatpants.” D. Ct. Dkt. 67 at 2. The employee
described the getaway car as a dark-green Pontiac Grand Am or Grand Prix driven by
someone he did not see, and said the vehicle went north on Elmore Avenue. He also
reported that the robber had a tiny, silver handgun.
Officers responded to the robbery within minutes. The first on the scene
received a slightly more detailed description that the robber was 300 pounds or more
and carrying a duffel bag. Dispatch also began receiving location reports from the
GPS tracker, which updated every six seconds. The data, collected by a third-party
provider, directed officers to the intersection of Kimberly and Spring streets, about
1.5 miles from the store.
At the intersection, officers saw two cars: a white one and a dark-blue, four-
door Ford Contour. There were two black male passengers in the dark-blue car, and
police noticed that the occupants were not looking around at the multiple squad cars.
When the dark-blue car pulled through the intersection and into a gas station, one
officer turned on his overhead lights.
After stopping the car, officers commanded the driver to exit the vehicle with
his hands in the air and to walk backwards toward them. After the driver was
secured, they did the same with Martin, who was in the passenger seat. The officers
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then searched the car and found the stolen cell phones and tablets. Police detained
Martin and the driver of the car in separate squad cars.
Police brought the store employee to the scene for a show-up identification.
Police removed a handcuffed Martin from the squad car and pointed a spotlight at
him. The employee said he was ninety percent sure that Martin was the robber based
on build and clothing.
Martin filed motions to suppress the evidence gathered during the stop and the
out-of-court identification. The district court entered an order denying the motion to
suppress the stop and denied the second motion as moot after the Government said
that it would not use the out-of-court identification at trial. Martin pleaded guilty to
the lesser included offense of using and carrying a firearm during and in relation to
a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(i) and a conditional
guilty plea to interference with commerce by robbery in violation of 18 U.S.C. § 1951
and possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), and 924(e)(1), preserving his right to appeal the district court’s denial of
his motions to suppress.
At sentencing, Martin’s final Presentence Investigation Report identified him
as a career offender because of his prior convictions for: (1) Illinois armed robbery;
(2) federal bank robbery; and (3) Iowa robbery in the second degree. Martin objected,
arguing that two of the offenses were overbroad. The district court overruled
Martin’s objection and determined that he was a career offender.2 The court adopted
the PSR’s Guidelines range of 262 to 327 months. The district court sentenced
Martin to 180 months on Count I, 60 months on Count II to run consecutive to Count
2
At the sentencing hearing, the Government agreed that Martin was not an
armed career criminal, and the PSR was amended to remove the reference to the
armed career criminal enhancement.
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I, and 120 months on Count III to run concurrent to Counts I and II, for a total of 240
months in prison.
II.
A.
Martin argues police did not have probable cause or reasonable suspicion to
stop the car. He suggests police should not have relied on the GPS device and that
the description of the vehicle by the store’s clerk was not a match. On a motion to
suppress, we review the district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Smith, 648 F.3d 654, 658 (8th Cir. 2011).
The Fourth Amendment secures the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” A
traffic stop is a seizure and “must be supported by reasonable suspicion or probable
cause.” United States v. Houston, 548 F.3d 1151, 1153 (8th Cir. 2008). Police are
permitted to make investigative stops of a vehicle if they have reasonable suspicion
that an individual in that vehicle recently committed a crime in a general area. See
United States v. Roberts, 787 F.3d 1204, 1209–10 (8th Cir. 2015) (applying
reasonable suspicion standard to stop of a vehicle several blocks from crime scene);
United States v. Juvenile TK, 134 F.3d 899, 900–04 (8th Cir. 1998) (applying
reasonable suspicion standard for traffic stop where officers received two dispatch
messages within forty-five minutes informing them that a vehicle had been involved
in criminal activity in the area).
“A reasonable suspicion is a ‘particularized and objective’ basis for suspecting
[criminal activity by] the person who is stopped.” United States v. Bustos-Torres,
396 F.3d 935, 942 (8th Cir. 2005) (citation omitted). Reasonable suspicion is
determined by “look[ing] at the totality of the circumstances of each case to see
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whether the detaining officer has a particularized and objective basis for suspecting
legal wrongdoing [based on his] own experience and specialized training to make
inferences from and deductions about the cumulative information available.” United
States v. Arvizu, 534 U.S. 266, 273 (2002). “Reasonable suspicion must be supported
by more than a mere hunch, but the likelihood of criminal activity need not rise to the
level required for probable cause, and it falls considerably short of satisfying the
preponderance of the evidence standard.” Roberts, 787 F.3d at 1209 (cleaned up).
The police had at least reasonable suspicion to stop the vehicle. The GPS
tracker indicated that it was at the intersection of Kimberly and Spring. Martin argues
the GPS was unreliable. In support, he points to cases in which courts heard
testimony about the reliability and accuracy of GPS devices. See United States v.
Brooks, 715 F.3d 1069, 1077–78 (8th Cir. 2013); United States v. Espinal-Almeida,
699 F.3d 588, 610–12 (1st Cir. 2012). But those cases are about the admission of the
data at trial and do not address whether officers in the field can rely on third-party
GPS data while pursuing suspects. Considering the tight window of opportunity
officers have to locate a fleeing suspect, we find it reasonable for police to rely on
third-party GPS data.
Other factors also supported the officers’ suspicion. The intersection of
Kimberly and Spring is in the general area of the crime scene. United States v.
Robinson, 670 F.3d 874, 876 (8th Cir. 2012) (factors like the location of the parties
may support an officer’s decision to stop). When the five police cars arrived at the
intersection, they saw two vehicles. Police could reasonably rule out one because it
did not even remotely match the description given by the store employee. The Ford
Contour roughly matched the description. While the employee said the vehicle was
a coupe (the Ford Contour is a four-door), a Ford Contour has the same general shape
as a Pontiac GrandAm and Grand Prix. Plus, the color (dark green) is close to the
color of the Ford Contour (dark blue). Keeping in mind that the employee only saw
the car briefly after dark, it was reasonable for officers to believe the employee made
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minor errors and that this was the car they were looking for. See United States v.
Quinn, 812 F.3d 694, 699 (8th Cir. 2016) (“We have held that generic suspect
descriptions and crime-scene proximity can warrant reasonable suspicion where there
are few or no other potential suspects in the area who match the description.”).
Police also noticed unusual behavior by the car’s occupants, who did not
acknowledge an overwhelming police presence. See Terry v. Ohio, 392 U.S. 1 (1968)
(irregular activities like repeatedly walking by the same store window can support
reasonable suspicion); United States v. Sokolow, 490 U.S. 1, 8–9 (1989) (irregularity
of purchasing $2,100 in plane tickets with a roll of $20 bills could support reasonable
suspicion). The totality of the circumstances gave police at least reasonable suspicion
that criminal activity was afoot, so stopping the vehicle to investigate that suspicion
comported with the Fourth Amendment.
B.
Martin also challenges the district court’s denial of his motion to suppress the
use of the show-up lineup, which he says was unduly suggestive. The district court
denied the motion as moot after the Government committed that it would not use the
evidence at trial. While it may have been better for the district court to grant the
motion as unopposed or defer ruling until the issue was raised at trial, see Fed. R.
Crim. P. 12(d) (permitting deferral on a finding of good cause), any mistake of form
was harmless. The district court strongly suggested that it believed the identification
was inadmissible. This, combined with the Government’s representation that it would
not be used at trial, dissipated any reasonable concern that the identification would
be introduced as evidence. Plus, nothing in the district court’s ruling prevented
Martin from reasserting his challenge at trial. Any error was harmless. See Fed. R.
Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.”).
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III.
Last, Martin argues that the district court erred in finding that he was a career
offender and subject to an enhancement under U.S.S.G. § 4B1.1. We review
application of the career offender enhancement de novo. United States v. Eason, 643
F.3d 622, 623 (8th Cir. 2011). A career offender enhancement is appropriate when
the offender is over 18, being sentenced for a crime of violence or a controlled
substance offense, and has “at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). Martin does not
challenge the district court’s finding that his current conviction and his previous
conviction for federal bank robbery are crimes of violence. See United States v.
Harper, 869 F.3d 624, 626–27 (8th Cir. 2017) (federal bank robbery is a crime of
violence). The question is whether one of his other prior two convictions should be
similarly categorized.
We previously held that Martin’s Illinois armed robbery conviction qualified
as a crime of violence under the “force” clause of the Sentencing Guidelines. United
States v. Martin, 999 F.3d 636 (8th Cir. 2021), reh’g granted and opinion vacated
(Aug. 3, 2021). The Supreme Court later decided Borden v. United States, holding
that a criminal offense that can be accomplished with a mens rea of recklessness
cannot be a “violent felony” under the elements clause of the Armed Career Criminal
Act. 141 S. Ct. 1817, 1821–22 (2021). The Sentencing Guidelines’s definition of
“crime of violence” is so similar to the ACCA’s definition of “violent felony” that
“we generally consider cases interpreting them interchangeably.” United States v.
Brown, 916 F.3d 706, 707–08 (8th Cir. 2019) (citation omitted). We granted Martin’s
petition for rehearing to reconsider the enhancement after Borden. We think Martin’s
conviction for Illinois armed robbery still qualifies as a crime of violence under the
“enumerated offenses” clause of the Sentencing Guidelines. U.S.S.G. § 4B1.2(a)(2).
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The career offender provision of the Sentencing Guidelines defines “crime of
violence” as one that has an element of physical force against the person of another,
or is one of a list of enumerated offenses. U.S.S.G. § 4B1.2(a). The enumerated
offenses include robbery. Id. at § 4B1.2(a)(2). But the analysis doesn’t end there.
We must decide whether “the state statute defining the crime of conviction
categorically fits within the generic federal definition of a corresponding crime of
violence.” United States v. Stovall, 921 F.3d 758, 759 (8th Cir. 2019) (citation
omitted). The “generic federal definition of a crime of violence means the sense in
which the term is now used in the criminal codes of most States.” Id. (citation
omitted) (cleaned up).
To decide whether Illinois armed robbery falls within the generic federal
definition, we start by “identifying the elements of the generic enumerated offense.”
Id. (citation omitted). We define generic robbery as “aggravated larceny, or the
misappropriation of property under circumstances involving immediate danger to a
person.” Id. at 760 (citation omitted). At the time of Martin’s conviction, Illinois
defined robbery as “knowingly tak[ing] property . . . from the person or presence of
another by the use of force or by threatening the imminent use of force.” 720 Ill.
Comp. Stat. 5/18-1(a). Illinois defined armed robbery as a violation of Section 18-1
coupled with one of the following: (1) carrying a dangerous weapon other than a
firearm; (2) carrying a firearm; (3) discharging a firearm during the commission of
the offense; or (4) discharging a firearm that proximately causes great bodily harm,
permanent disability, permanent disfigurement, or death to another person. 720 Ill.
Comp. Stat. 5/18-2(a).
The statute shows that Illinois armed robbery has the same elements as our
generic definition of robbery—misappropriation of property under circumstances
involving immediate danger to a person. Stovall, 921 F.3d at 760. Martin argues,
though, that it is possible to accomplish Illinois armed robbery without circumstances
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involving immediate danger to a person because one could commit the crime by only
using force3 against property.
The plain language of the statute forecloses Martin’s argument. Illinois armed
robbery requires either carrying a dangerous weapon, carrying a firearm, or
discharging a firearm. 720 Ill. Comp. Stat. 5/18-2(a). So armed robbery necessarily
involves immediate danger to a person because there must be a dangerous weapon
present. See Stovall, 921 F.3d at 760–61 (“While Stovall cites Arkansas cases that
potentially involve actions insufficient to constitute ‘violent force’ . . . —jerking a
victim’s hand, blocking a victim’s exit, cornering a victim, and grabbing a victim’s
dress—the actions are sufficient to constitute ‘immediate danger.’”).
Illinois case law further refutes Martin’s argument. The Illinois Supreme Court
held that armed robbery requires force “such that the power of the owner to retain his
property is overcome, either by actual violence physically applied, or by putting him
in such fear as to overpower his will.” People v. Bowel, 488 N.E.2d 995, 997 (Ill.
1986) (citation omitted). Illinois courts have repeatedly distinguished theft from
robbery by emphasizing that theft only requires “the mere physical effort of taking
the [property] from the victim’s person and transferring it to the defendant,” but
robbery requires force “to overcome the physical resistance created by the attachment
of an item to the person or clothing of the owner.” People v. Taylor, 541 N.E.2d 677,
679 (Ill. 1989) (citation omitted) (cleaned up); see also People v. Patton, 389 N.E.2d
1174, 1176 (Ill. 1979) (“where it appeared that the article was taken without any
sensible or material violence to the person . . . rather by sleight of hand and adroitness
than by open violence, and without any struggle on his part, it is merely larceny from
the person”) (emphasis added) (citation omitted); People v. Campbell, 84 N.E. 1035,
3
The discussion of “force” here relates to the elements of an enumerated
offense; it is independent of the analysis for the “force clause” of the Sentencing
Guidelines.
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1036 (Ill. 1908) (“The difference between stealing from the person of another and
robbery lies in the force or intimidation used.”). If Martin was right and robbery
could be accomplished by only using force against the property itself, there would be
no distinction between robbery and theft.
Illinois armed robbery qualifies as “generic” robbery under the enumerated
offense clause. Because Martin has two prior felony convictions for crimes of
violence, we do not consider his Iowa robbery conviction. We affirm the district
court’s career offender enhancement.
IV.
The judgment of the district court is affirmed.
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