United States District Court, S.D. Georgia, Statesboro Division
REPORT AND RECOMMENDATION
convicted as a felon-in-possession of a firearm in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), Latwon
Mosby seeks 28 U.S.C. § 2255 relief. Doc. 68 &
see also docs. 1 (indictment); 46 (plea agreement);
47 (judgment ordering 95 months' imprisonment). The
Government opposes. Doc. 71.
forth by the Eleventh Circuit, on appeal from his conviction:
On March 28, 2014, [Officers] Tucker and Samatis, both
members of the Savannah-Chatham Metro Police Department, were
patrolling Westlake Apartments. Westlake is located in a
high-crime area of Savannah and has a history of problems
with loitering and drug-related activity. In the course of
their patrol, Tucker and Samatis spotted Mosby walking along
a second floor hallway. As Mosby descended to the first
floor, Tucker and Samatis approached him. Tucker asked Mosby
if he lived at Westlake. When Mosby answered yes, Tucker
asked which apartment Mosby lived in. Mosby hesitated and
looked around, which the officers took as a sign that he was
trying to fabricate a credible answer. Tucker then asked
Mosby for identification proving he lived at Westlake, at
which point Mosby attempted to flee. Samatis grabbed Mosby to
prevent him from fleeing. While Samatis grappled with Mosby,
Tucker noticed Mosby reaching for a gun in his pants. After a
struggle, the officers subdued and arrested Mosby.
United States v. Mosby, 630 F.App'x 961, 962-63
(11th Cir. 2015). Mosby was indicted for possessing a firearm
as a felon. Doc. 1. Upon the advice of counsel, movant
conditionally pled guilty, securing a maximum sentence of ten
years. Docs. 42 & 46 (reserving the right to seek
appellate review of the denial of his motion to suppress the
gun as the fruit of an unconstitutional seizure); see
also Presentence Investigative Report (PSR) at ¶ 57
(advising, based on his total offense level of 23 and
criminal history category of V, a guideline imprisonment
range of 84 to 105 months).
appealed and lost:
Mosby makes three arguments, all unavailing, that Tucker and
Samatis violated his Fourth Amendment rights. First, he
argues that the officers lacked reasonable suspicion to stop
and question him at the bottom of the stairs. Mosby has
forfeited this argument, however, because he acknowledged in
his motion to suppress that the officers' initial
approach and questioning was the type of consensual
police-citizen encounter that does not implicate the Fourth
Amendment. . . .
Mosby's second argument is that the district court
incorrectly found that: (1) his answers to the officers'
questions had been evasive; (2) he had attempted to flee; and
(3) Westlake was a high crime area. . . . None of the
findings Mosby challenges warrants reversal because each was
supported by the officers' testimony at the hearing. . .
. There was thus substantial evidence in the record to
support the district court's factual findings on all
three of the facts Mosby challenges, especially since we give
"particular deference to credibility determinations of a
fact-finder who had the opportunity to see live
testimony." United States v. Lebowitz, 676 F.3d
1000, 1009 (11th Cir. 2012) (alteration omitted).
Based on a few minor inconsistencies in the officers'
testimony and police reports, Mosby argues that the district
court should not have credited the officers' testimony.
The inconsistencies to which Mosby adverts, however, are all
so trivial as to be inconsequential. . . . Accordingly, the
district court did not clearly err in crediting Tucker's
and Samatis' accounts of the encounter.
Mosby's final argument is that the officers lacked
reasonable suspicion to seize him as he was attempting to get
away from them, but the events preceding Samatis'
grabbing Mosby belie that contention. First, as both officers
testified, Westlake is a high-crime area. That a stop
occurred in a high-crime area is a "relevant contextual
consideration[ J" for purposes of establishing
reasonable suspicion. Illinois v. Wardlow, 528 U.S.
119, 124 (2000). The record also contained evidence that
Mosby responded to the officers' questions in a way that
indicated he was lying or at least being evasive.
"[E]vasive, nervous or apprehensive conduct in response
to [officers'] attention[ ] has many times been noted as
a significant factor in the creation of reasonable
suspicion." United States v. Willis, 759 F.2d
1486, 1497 (11th Cir. 1985). Third, and most obviously, Mosby
attempted to flee from the officers. Flight from officers,
particularly in a high-crime area, supports reasonable
suspicion. United States v. Gordon, 231 F.3d 750,
757 (11th Cir.2000). The officers thus had ample bases for
reasonably suspecting that Mosby was engaged in criminal
activity and, therefore, for detaining him.
Mosby, 630 F.App'x at 963-64.
presents two grounds for relief: (1) counsel deficiently
prepared and argued his suppression motion, and (2) after
Johnson, his prior conviction for Georgia aggravated
assault no longer qualifies as a "crime of
violence" to increase his base offense level under the
Sentencing Guidelines. Doc. 347. Both claims are meritless.