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United States v. Bishop

United States Court of Appeals, Eleventh Circuit

October 11, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
MICHAEL RAY BISHOP, Defendant-Appellant.

          Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 3:17-cr-00085-RV-1

          Before WILSON and NEWSOM, Circuit Judges, and COOGLER, [*] District Judge.

          WILSON, CIRCUIT JUDGE

         Michael Bishop appeals his conviction and sentence following his conditional guilty plea to knowingly possessing a firearm as a convicted felon under 18 U.S.C. §§ 922(g)(1), 924(a)(2). Bishop argues the district court erred in (1) denying his motion to suppress evidence seized during a pat-down search following a lawful traffic stop; (2) applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B); and (3) applying an enhanced base offense level under U.S.S.G. § 2K2.1(a)(3). After careful review, we reverse the district court's application of the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) and remand for further proceedings consistent with this opinion. We affirm, however, both the denial of Bishop's motion to suppress and the application of an enhanced base offense level under U.S.S.G. § 2K2.1(a)(3).

         I. Factual and Procedural Background

         A. Suppression Hearing

         Following a lawful traffic stop, police conducted a pat-down search of Bishop's outer clothing and seized a high-capacity gun magazine, the matching firearm, one hydromorphone pill, and three syringes. Bishop moved to suppress all evidence seized during the search. He argued that police (1) unlawfully extended the length of the traffic stop, and (2) lacked reasonable suspicion that he was armed and dangerous to justify the pat-down.

         At the suppression hearing, Santa Rosa County Deputy Sheriff Chad Floyd testified about the events leading up to the search. Floyd was in a marked patrol car and observed a pickup truck drive through a stop sign while exiting an apartment complex. Floyd began following the truck and saw it drive through another stop sign. Floyd pulled the truck over and approached the vehicle. He observed Antonio Davis in the driver's seat and Bishop in the passenger's seat.

         Earlier that day, Floyd pulled over a woman that he subsequently arrested for possessing heroin and drug paraphernalia. The woman told Floyd that "she was headed to Michael Bishop's house." Floyd testified that because of the woman's statement, and because Davis "was a known narcotics violator in [Floyd's] agency," he called for a K-9 officer to come to the scene.

         Deputy Danny Miller-a K-9 handler-and Deputy Richard Dunsford arrived at the scene to assist Floyd. Dunsford had worked as a corrections officer at the county jail and recognized both Davis and Bishop as former inmates.

         Dunsford approached the driver's side of the truck and asked Davis to exit the vehicle. Davis complied without issue. As Dunsford was performing a pat-down search of Davis, Bishop-still seated in the truck-told Dunsford, "you have no right to stop us, you have no right to ask us to get out of the vehicle." Dunsford testified that Bishop was agitated, "fidgeting around," "moving around in the seat," and "very defensive." Dunsford then asked Bishop to exit the truck, and Bishop adamantly refused, saying "[n]o, . . . I'm not getting out of the vehicle, you have no right to ask me to get out of the vehicle." Based on Bishop's general behavior and reluctance to exit the truck, Dunsford became concerned that Bishop "might be hiding a firearm or a weapon or . . . something on his person." After multiple requests to exit the truck, Bishop complied.

         Dunsford testified that, for his safety and the safety of his fellow officers, he performed a pat-down search of Bishop's outer clothing. Dunsford felt a firearm magazine in Bishop's left pocket, which he removed. The matching firearm was in Bishop's left pant leg, which Dunsford also removed. The firearm was a stolen semi-automatic handgun with a high-capacity magazine. Deputy Miller then deployed his K-9 to search the truck. After the K-9 gave a positive alert, the deputies searched the truck and recovered a marijuana cigarette, a zip-sealed bag containing empty baggies, and a digital scale.

         At the suppression hearing, Bishop argued that Dunsford lacked any reasonable, articulable suspicion that he was armed and dangerous to justify the pat-down search. The district court denied Bishop's motion to suppress because there was "overwhelming" evidence that the pat-down search was supported by reasonable suspicion. The court concluded that the deputies' knowledge of Bishop's prior criminal record, coupled with his nervousness and efforts to obstruct the officers' investigation, provided "ample . . . articulable suspicion" to justify the pat-down. Bishop pleaded guilty to knowingly possessing a firearm and ammunition as a convicted felon under 18 U.S.C. §§ 924(g)(1), 924(a)(2).[1]

         B. Sentencing

         The United States Probation Office prepared a presentence investigation report (PSI). In addition to the facts offered at the suppression hearing, the PSI stated that after the deputies recovered the firearm from Bishop's pants, Bishop informed the deputies that he had syringes in his right pocket. The deputies removed three syringes and a clear plastic bag containing one pill, which was later identified as hydromorphone.[2]

         The PSI assigned Bishop an enhanced base offense level of 22 under U.S.S.G. § 2K2.1(a)(3) because (1) the instant offense involved a semi-automatic firearm capable of accepting large capacity magazines and (2) Bishop had previously been convicted in 2013 of a Florida controlled substance offense.[3]

         A two-level enhancement applied under U.S.S.G. § 2K2.1(b)(4)(A) because the firearm was stolen. An additional four-level enhancement applied under U.S.S.G. § 2K2.1(b)(6)(B) because Bishop possessed the firearm in connection with another felony offense-namely, possession of one hydromorphone pill and three syringes. Bishop's offense level was reduced by two levels under U.S.S.G. § 3E1.1(a) for acceptance of responsibility. An additional one-level decrease applied under U.S.S.G. § 3E1.1(b) for assisting authorities in the investigation and prosecution of Bishop's own misconduct by timely notifying authorities of his intention to plead guilty. Bishop's resulting offense level was 25, and he was assigned a criminal history category of III. His guideline range was 70 to 87 months' imprisonment.

         Bishop objected to his enhanced base offense level under U.S.S.G. § 2K2.1(a)(3), arguing that his prior 2013 Florida conviction for drug conspiracy cannot be a "controlled substance offense" under the Guidelines because Florida does not require knowledge that a substance was a controlled substance. Bishop also objected to the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in connection with another felony offense. He argued that he merely possessed the hydromorphone pill and syringes for personal use while also possessing the firearm. The enhancement was thus not warranted because the other felony offense was not a drug trafficking crime, but a simple possession offense.

         The district court overruled Bishop's objections, adopted the facts and guideline calculations in the PSI, and sentenced Bishop to 80 months. Bishop timely appealed.

         II. ...


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