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United States v. Green

United States Court of Appeals, Eighth Circuit

December 27, 2019

United States of America Plaintiff- Appellee
v.
Tereall Deshawn Green Defendant-Appellant United States of America Plaintiff- Appellee
v.
Javonta Juan Herbert Defendant-Appellant

          Submitted: September 23, 2019

          Appeal from United States District Court for the Northern District of Iowa - Waterloo

          Before GRUENDER, ARNOLD, and GRASZ, Circuit Judges.

          GRUENDER, CIRCUIT JUDGE.

         In this consolidated appeal, Tereall Green challenges the district court's[1]denial of his motion to suppress evidence, and both Green and Javonta Herbert appeal their respective sentences for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). We affirm.

         I.

         At approximately 1:00 a.m. on January 13, 2018, Jordan Ehlers, a police officer in Waterloo, Iowa, observed a black Nissan Rogue SUV that, based on his visual estimation, was speeding. Ehlers ran a search of the license plate number on the SUV, which returned a record for a different vehicle. While following the vehicle, he also noticed that a license plate frame on the SUV covered a portion of the license plate and registration. Based on these three facts, Officer Ehlers initiated a traffic stop.

         Once the SUV stopped, Ehlers shined his spotlight on the back of the vehicle, and he observed passengers making what he perceived as suspicious movements. Ehlers exited his patrol car and approached the front passenger side of the vehicle. As the front passenger opened his window, Ehlers immediately smelled alcohol. He also observed open liquor bottles in the car and noticed that the floorboard appeared wet. Ehlers requested identification from the driver and from each of the three passengers. The front seat passenger did not have identification but identified himself as Tereall Green. Officer Ehlers recognized Green's name from a prior intelligence report indicating that Green was seen in a Facebook video possessing a weapon. Ehlers then turned to the back-seat passengers, requesting identification from each of them. When one of them rolled down his window, Ehlers smelled marijuana. This passenger identified himself as Deshawn Marks. The other backseat passenger said his name was "Spencer Green." Ehlers noticed that "Spencer Green" appeared nervous, and he recognized "Green" as Javonta Herbert from prior contact with him.

         After Officers Randy Girsch and Kenneth Schaaf arrived on the scene, Officer Ehlers asked Tereall Green to exit the SUV. He conducted a brief frisk of Green- quicker than normal due to the cold temperature. He did not find anything. Ehlers then frisked Marks, finding clear plastic baggies of marijuana. Because both Green and Marks were shivering, Officer Girsch offered to let them sit in his patrol car, an offer both men eventually accepted.

         Back at the SUV, Ehlers asked "Spencer Green" to step out of the car. Ehlers asked if he was Javonta Herbert, and Herbert conceded that was his real name. Ehlers then conducted a patdown of Herbert. As Ehlers frisked Herbert, Officer Schaaf used his flashlight to look into the backseat floorboard of the SUV. He saw a handgun where Herbert had been sitting and immediately yelled "ten thirty-two"- a police code that indicated he had discovered a firearm in the vehicle. Ehlers placed Herbert under arrest.

         Officer Girsch, who was standing beside the patrol car in which Tereall Green and Marks were sitting, heard Officer Schaaf call out the "ten thirty-two." Girsch decided to handcuff Green while another officer handcuffed Marks. Although he had observed Ehlers frisk Green earlier in the stop, Officer Girsch frisked him again, this time conducting a more thorough patdown. Girsch discovered a loaded firearm hidden in Green's pants. Green subsequently fled on foot. Officers pursued and captured him within minutes.

         Both Green and Herbert were indicted on charges of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In pre-trial matters, the district court denied Green's motion to suppress evidence gathered during the traffic stop, finding that Ehlers had probable cause to stop the SUV and that neither patdown of Green constituted an unreasonable search in violation of the Fourth Amendment. Green and Herbert both entered conditional guilty pleas.

         At sentencing, the district court applied to both Green's and Herbert's guideline calculations a four-level enhancement for possession of a firearm in connection with another felony offense. See U.S.S.G. § 2K2.1(b)(6)(B). Herbert objected to the application of the enhancement, and the district court overruled the objection. For Green, the court calculated a total offense level of 23, a criminal history category of III, and an advisory guidelines range of 57 to 71 months. After rejecting Green's motion for a downward variance, the court imposed a sentence of 71 months' imprisonment. For Herbert, the court initially calculated a total offense level of 15, a criminal history category of VI, and an advisory guidelines range of 41 to 51 months. The Government moved for a three-level upward departure pursuant to U.S.S.G. § 4A1.3 based on Herbert's underrepresented criminal history. The ...


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