                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0748n.06

                                           No. 12-1637
                                                                                       FILED
                             UNITED STATES COURT OF APPEALS                        Aug 12, 2013
                                  FOR THE SIXTH CIRCUIT                      DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )
v.                                                   )
                                                     )      ON APPEAL FROM THE
JONATHAN HALE DAVIS, a.k.a. Jo-Nathan                )      UNITED STATES DISTRICT
Hale Davis,                                          )      COURT FOR THE WESTERN
                                                     )      DISTRICT OF MICHIGAN
       Defendant-Appellant.                          )




       BEFORE: MARTIN and SUTTON, Circuit Judges; ADAMS, District Judge.*


       ADAMS, J. Jonathan Hale Davis appeals the denial of his motion to suppress and his 324-

month sentence. Because there is no error in the denial of the suppression motion and any error in

imposing Davis’ sentence was harmless, we affirm the district court’s judgment.

       On August 18, 2011, Davis was indicted on the following charges: 1) being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1); 2) possession of cocaine base with

intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and 3) possession of a

firearm in furtherance of a drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A)(I). On October

24, 2011, Davis moved to suppress the firearm and crack cocaine that was found on his person

during his arrest. On December 14, 2011, the district court held a hearing on the motion, receiving

       *
        The Honorable John R. Adams, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 12-1637
United States v. Davis

testimony from Officer Michael Ferguson and Sergeant Michael Kelley. At the conclusion of the

hearing, the court orally denied the motion.

       Following the denial of his motion, Davis entered into a conditional plea agreement,

preserving his right to challenge the suppression issue on appeal. Thereafter, on May 11, 2012,

Davis appeared for his sentencing hearing. During that hearing, Davis objected to his classification

as an armed career criminal, arguing that his juvenile conviction for home invasion did not qualify

as a predicate offense for that enhancement. The district court rejected Davis’ argument and found

him to be an armed career criminal. In addition, Davis was found to be a career offender, ultimately

resulting in a sentencing range of 262 to 327 months. The district court also acknowledged that it

was required to impose the 60 month sentence on count three consecutive to the sentences on counts

one and two, effectively resulting in a range of 322 to 387 months. Ultimately, Davis was sentenced

to 324 months of incarceration. This appeal followed.

       Davis first asserts that the district court erred when it denied his motion to suppress. Davis

contends that the district erred when it analyzed his detention utilizing a reasonable suspicion

standard rather than a probable cause standard. Further, Davis asserts that the district court should

have limited its totality-of-the-circumstances review to activity directly observed by the officers in

question, Officer Ferguson and Sergeant Kelly. The Court finds no error in the denial of Davis’

motion.

       This Court applies a mixed standard of review in evaluating a district court’s ruling on a

motion to suppress. United States v. Howard, 621 F.3d 433, 450 (6th Cir. 2010). The district court’s

findings of fact are reviewed for clear error, while any related conclusions of law are reviewed de

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United States v. Davis

novo. Id. A factual finding is clearly erroneous when the reviewing court is left with the definite and

firm conviction that a mistake has been committed. Id. (citing United States v. Smith, 594 F.3d 530,

535 (6th Cir. 2010)). In that vein, due regard must be given to the trial court’s opportunity to judge

the credibility of the witnesses. United States v. Blair, 524 F.3d 740, 749 (6th Cir. 2008).

        While Davis has not precisely articulated the contours of his challenge on appeal, it first

appears that he asserts error in the legal standard utilized by the district court. In order to evaluate

this claim, a review of the facts leading to Davis’ ultimate arrest is necessary.

        On April 15, 2011, police in Van Buren County, Michigan, learned of a violent home

invasion that left the home residents robbed and beaten by armed assailants. The assailants made

off with numerous weapons and nearly $16,000 in cash. Through a confidential informant (“CI”),

officers received information that three individuals were involved in the home invasion. The CI

informed officers that an individual named Billy Crawford, an African American man named Milo,

and an African American man known as J.P. were involved in the invasion. The day after the home

invasion, Kalamazoo Public Safety Officer Michael Ferguson received a telephone call about the

whereabouts of Crawford. Officer Ferguson learned that Crawford was staying at numerous local

hotels, having others use their names to rent rooms on his behalf. Officer Ferguson then reached out

to Van Buren County Sheriff deputies and learned that they had been able to track Crawford to the

Red Roof Inn in Kalamazoo.

        Officer Ferguson then made his way to the Red Roof Inn and conferred with the sheriff

deputies. Following that meeting, Officer Ferguson departed for a nearby hotel to confirm that

Crawford had stayed there on the prior night using a different name. After being unable to locate

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United States v. Davis

Crawford at several other locations, Officer Ferguson was informed that he had been spotted at the

Red Roof Inn. In route to the hotel, Officer Ferguson learned that Crawford had been dropped off

at the hotel by another individual, later identified as Davis. Officer Ferguson also learned that Davis

did not immediately leave the parking lot and appeared to be waiting for Crawford. Shortly

thereafter, Davis left the Red Roof Inn parking lot, moving his vehicle to an adjacent Burger King

parking lot, still with a full view of the Red Roof Inn. By this time, officers had obtained a search

warrant for the hotel room that was being used by Crawford. As officers believed Crawford to be

armed and dangerous, they intended to wait for him to depart to detain him and search the room.

       Not long after Davis moved the vehicle, Crawford left the hotel room. Davis flashed his

lights twice in an apparent effort to signal his location to Crawford. Officers then approached

Crawford who began running toward the parked car. Crawford apparently resisted arrest and caused

quite a scene in the parking lot. While this arrest was being effectuated, Officer Ferguson

approached the parked car on the passenger side with his gun drawn. At the same time, Sergeant

Kelly arrived at the driver’s side door with his gun drawn. Sergeant Kelly ordered Davis to keep his

hands visible and reached in to physically remove him from the vehicle. According to Sergeant

Kelly, despite repeated warnings, Davis continued to reach for his waistband once he was removed

from the vehicle. As a result, Davis was handcuffed.

       Once Davis was handcuffed, Sergeant Kelly asked whether he possessed a weapon and Davis

indicated that he had a firearm in his waistband. A pat down confirmed the presence of the firearm

and also revealed ten individually-wrapped packages of crack cocaine and a razor blade on Davis’



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United States v. Davis

person. Davis then consented to a search of his vehicle in which officers found a digital scale, pistol

holster, and rubber gloves.

       Davis first contends that the district court improperly analyzed his initial detention under a

reasonable suspicion standard. Davis contends that because officers approached with guns drawn

and handcuffed him, he was immediately arrested and therefore a probable cause standard should

have been applied. However, this Court’s prior precedent makes clear that officers may take such

precautions without exceeding the bounds of a Terry stop so long as those precautions are warranted

by the facts. United States v. Marxen, 410 F.3d 326, 332 (6th Cir. 2005) (citing United States v.

Foster, 376 F.3d 577, 587 (6th Cir. 2004); Houston v. Clark County Sheriff Deputy John Does 1–5,

174 F.3d 809, 815 (6th Cir.1999)). “Such reasonable precautions include drawing and displaying

weapons, the immediate removal of the occupants from the subject vehicle, and placing the

occupants in handcuffs.” Marxen, 410 F.3d at 332.

       The facts herein fully support the precautions utilized by the officers. At the time officers

encountered Davis, it was known that he had transported Crawford to the hotel. It was also apparent

that Davis was waiting in the area to again transport Crawford. At that time, officers had strong

suspicions that Crawford had been involved in a home invasion with two African American males

and that all 3 assailants had used firearms in the invasion. Further, when officers went to apprehend

Crawford, he ran towards Davis’ vehicle. Under those circumstances, officers were fully justified

in approaching the vehicle with their guns drawn. Moreover, as Davis repeatedly reached toward

his waistband despite orders to stop, the officers were also justified in handcuffing him to preserve



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United States v. Davis

their own safety. None of these activities served to turn a lawful investigatory stop into an unlawful

arrest.

          To the extent that Davis has asserted that officers lacked reasonable suspicion to initiate the

Terry stop, the Court finds no merit in such an argument.

          This Court’s oft-repeated standard for reviewing a Terry stop is as follows:

          An investigatory stop of a vehicle is permissible under the Fourth Amendment if
          supported by reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 22 (1968). Since an
          investigatory stop is less intrusive to one’s personal security than an arrest, the level
          of suspicion necessary for such a stop is “considerably less than proof of wrongdoing
          by a preponderance of the evidence.” United States v. Sokolow, 490 U.S. 1, 7 (1989).
          For purposes of determining whether reasonable suspicion exists, the Supreme Court
          has instructed that a reviewing court must consider the totality of circumstances to
          determine whether the detaining officer has a “particularized and objective basis for
          suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002)
          (citations omitted). In considering all the circumstances, the question is not whether
          there is a possible innocent explanation for each of the factors, but whether all of
          them taken together give rise to reasonable suspicion that criminal activity may be
          afoot. Id. at 274–75.

          In Terry, the Supreme Court focused its discussion on brief investigatory stops made
          by police officers on the basis of reasonable suspicion not amounting to probable
          cause for arrest. There, the reasonable suspicion arose from conduct observed by the
          officer who made the stop. In subsequent cases, however, the Court has clarified that
          a Terry stop is also permissible where the stop relates to a crime already completed
          and where the information supplying the reasonable suspicion comes from another
          person rather than the officer’s personal observations. See United States v. Hensley,
          469 U.S. 221, 227 (1985) (holding that an officer has the authority to make a Terry
          stop “when [he] has reasonable, articulable suspicion that the person has been, is, or
          is about to be engaged in criminal activity”) (quoting United States v. Place, 462 U.S.
          696, 702 (1983)); United States v. Cortez, 449 U.S. 411, 417, n. 2 (1981).

Marxen, 410 F.3d at 328-29. Furthermore, officers are permitted to make inferences from and

deductions about the total information known to them based upon their specialized training and

experience. Arvizu, 534 U.S. at 273.

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United States v. Davis

        Davis appears to argue that because officers had no substantial evidence that he had been

involved in the home invasion, they therefore lacked reasonable suspicion to approach his car. In

that light, the Court finds the facts of Marxen to be instructive. In Marxen, officers initiated a Terry

stop of Marxen’s car following reports of an armed robbery. The stop was initiated because the

vehicle matched the make, model, and color of the getaway car used in the robbery. Furthermore,

the license plate number matched or nearly matched the number seen by witnesses on the getaway

car. However, there was little to no evidence that tied Marxen himself to the robbery. In finding that

the stop was appropriate, this Court noted:

        Furthermore, although it is not clear that there was reasonable suspicion to believe
        that Marxen himself was involved in the robberies, the police had reasonable
        suspicion to believe that the stop of Marxen’s vehicle may produce evidence of a past
        crime. Under these circumstances, a Terry stop is permissible. See Hensley, 469 U.S.
        at 227–29. In summary, we conclude that police are permitted to conduct a Terry
        stop to investigate completed felonies if they have reasonable suspicion to believe
        that the vehicle stopped was involved in criminal activity and the stop may produce
        evidence of a crime even if officers do not have reasonable suspicion to believe that
        the owner and/or driver of the vehicle was directly involved in the criminal activity.

Marxen, 410 F.3d at 332.

        Similar to the facts detailed in Marxen, police did not have substantial information that linked

Davis to the home invasion. However, they did have such information about Crawford. A reliable

confidential informant had provided information about Crawford’s involvement in the violent home

invasion. Moreover, officers had corroborated information that indicated that Crawford was using

assumed names at local hotels to avoid detection. Perhaps the most full explanation of the officers’

reasonable suspicion was provided by Officer Ferguson himself during the suppression hearing:



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United States v. Davis

       I can list what I have. I had received information that there was a violent home
       invasion that had taken place in Van Buren County involving multiple weapons. I
       had also received information that multiple weapons were stolen in the incident,
       which would lead me to believe that potentially Billy Crawford or his associates
       could have one of those weapons on their person.

       The fact that he had rented a room at two different locations, one at the Knights Inn
       and then the following night at the Red Roof, which would lead me to believe that
       he's potentially trying to avoid police detection. I had the information that Mr. -- that
       the red Pontiac Bonneville was located at the Red Roof Inn earlier that day, but then
       it's found on North Princeton Street without Mr. Crawford in it, which would lead me
       to believe that they're attempting to avoid police detection by not driving the same
       vehicles. The fact that Mr. Crawford was dropped off by Mr. Davis at the motel and
       that Mr. Davis is waiting for him and then pulls out after potentially being spooked.

       And then at that point Mr. Davis pulls into a parking lot which has no other vehicles
       to the left or to the right of it which has a clear sight or clear path of sight for Mr.
       Crawford to walk through. We see Mr. Crawford walking through. The fact that
       officers attempt to stop him and he runs, which would lead a reasonable person to
       believe that he's trying to get away from something that he’s done. And then the fact
       that he was running towards Mr. Davis’s vehicle and also the fact that Mr. Davis
       flashed his lights as he was coming -- as Mr. Crawford was coming out, and that Mr.
       Davis maintained on sight and was staring intently at Mr. Crawford as he was being
       detained in the parking lot, which would lead me to believe potentially he’s got
       evidence of a crime inside of his vehicle, he’s involved in the incident or he’s
       involved in some sort of Mr. Crawford’s escape or he could be part of the incident
       that Mr. Crawford was identified as being part of as a suspect in the home invasion.

Officer Ferguson’s recitation makes it clear that reasonable suspicion existed to detain Davis. If

nothing else, an individual strongly suspected of an armed home invasion sprinted toward Davis’

vehicle while being chased by police. That vehicle had not only remained after it had dropped

Crawford off at the hotel, but for a wholly unexplained reason had moved to a nearby parking lot

while waiting for Crawford. As such, officers had ample reasonable suspicion to believe that the

stop of the vehicle “may produce evidence of a past crime” – the home invasion. Accordingly, the

district court committed no error in denying the motion to suppress.

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       Davis next contends that the district court erred in finding that one of his prior state court

adjudications was a violent felony under the Armed Career Criminal Act. This issue is subject to

a de novo review on appeal. United States v. Bartee, 529 F.3d 357, 358–59 (6th Cir. 2008).

       Under the ACCA, a defendant who violates 18 U.S.C. § 922(g) and has three prior

convictions of serious drug offenses or violent felonies must receive a fifteen-year mandatory

minimum sentence. United States v. Johnson, 675 F.3d 1013, 1016 (6th Cir. 2012) (citing 18 U.S.C.

§ 924(e)(1)). The ACCA defines “violent felony” as:

       any crime punishable by imprisonment for a term exceeding one year, or any act of
       juvenile delinquency involving the use or carrying of a firearm, knife, or destructive
       device that would be punishable by imprisonment for such term if committed by an
       adult, that--

       (I) has as an element the use, attempted use, or threatened use of physical force
       against the person of another; or

       (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves
       conduct that presents a serious potential risk of physical injury to another; and

       (C) the term “conviction” includes a finding that a person has committed an act of
       juvenile delinquency involving a violent felony.

18 U.S.C. § 924(e)(2)(B)-(C). This Court refers to 18 U.S.C. § 924(e)(2)(B)(I) as the “force” prong

and the portion of 18 U.S.C. § 924(e)(2)(B)(ii) involving the non-enumerated offenses as the

“residual clause.”

       In United States v. Wynn, we explained:

       To determine whether a prior conviction constitutes a “crime of violence,” we must
       apply the categorical approach.... Under this categorical approach, the court must
       look only to the fact of conviction and the statutory definition—not the facts
       underlying the offense—to determine whether that definition supports a conclusion
       that the conviction was for a crime of violence.... There is, however, an exception to

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United States v. Davis

        the categorical approach: When the statutory definition of the prior crime to which
        the defendant pleaded guilty is ambiguous ... the court may examine ... the terms of
        the charging document, the terms of a plea agreement or transcript of colloquy
        between judge and defendant in which the factual basis for the plea was confirmed
        by the defendant, or to some comparable judicial record of this information.

579 F.3d 567, 571 (6th Cir. 2009) (quotations and citations omitted).

        Offenses that typically qualify under the residual clause are “roughly similar, in kind as well

as in degree of risk posed” to the enumerated felonies. Begay v. United States, 553 U.S. 137, 143

(2008). The statute’s specifically identified offenses involve “purposeful, violent, and aggressive

conduct.” Id. at 144–45. Thus, crimes with “a stringent mens rea requirement” typically qualify if,

“as a categorical matter, [they present] a serious potential risk of physical injury to another” in a way

“comparable to that posed by its closest analog among the [ACCA’s] enumerated offenses.” Sykes

v. United States,131 S.Ct. 2267, 2273, 2275 (2011) (quoting James v. United States, 550 U.S. 192,

203 (2007)). A crime committed by a juvenile (an act of juvenile delinquency) can also constitute

a violent felony, but only if, in addition to meeting the qualifications for an adult predicate offense,

it also “involv[es] the use or carrying of a firearm, knife, or destructive device.” 18 U.S.C. §

924(e)(2)(B).

        On appeal, the parties dispute whether Davis’ juvenile adjudication for breaking and entering

a home is a predicate offense under the ACCA. Davis asserts that the district court improperly

combined two juvenile adjudications — one for breaking and entering, the other for stealing a

firearm — in order to produce a single offense “involving the use or carrying of a firearm.” We need

not decide whether Davis’s interpretation of the statute is right. Even if it is, we would have to

affirm because any error the district court committed was harmless. See Fed.R. Crim.P. 52(a). The

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No. 12-1637
United States v. Davis

district court sentenced Davis to imprisonment for 324 months, or 27 years—well more than the

15-year mandatory minimum established by the ACCA. This 324-month sentence fits within the

range recommended by the Sentencing Guidelines. The district court’s insistence on following the

guidelines is apparent from its explicit denial of the defense’s request for a downward departure.

See R. 39 at 413 (THE COURT: “I find I cannot grant [a downward variance] due to the nature of

the sentencing structure, due to the nature of the extensive criminal record in this matter.”). “Based

on the court’s express decision to focus on the Guidelines and not the mandatory minimum, it is

highly unlikely that a different finding with regard to the mandatory minimum would have affected

[Davis’s] sentence.” United States v. Mauck, 469 Fed.Appx. 424, 429 (6th Cir. 2012). Thus, even

if the district court was wrong to apply the ACCA’s mandatory minimum, its mistake was harmless

error. For the foregoing reasons, the district court’s judgment is affirmed.




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