In United States v. Bishop, No. 17-15473 (Oct. 11,
2019) (Wilson, Newsom, Coogler), the Court affirmed the denial of a
motion to suppress but vacated the defendant's sentence due to a guideline
error.
First, the Court upheld a pat down
because it found that the officers had reasonable suspicion to believe that the
defendant was armed and dangerous. The
Court rejected the defendant's argument that his nervous, fidgety behavior,
coupled with the officers' knowledge that he had previously been an inmate at
the county jail, was insufficient. In
addition to those facts, a woman arrested earlier that day had informed one of
the officers that she was going to the defendant's house, and the defendant was
non-compliant with the officer's orders to exit his vehicle. The Court noted that knowledge of an
individual's criminal history alone was not sufficient and was of little
weight.
Second, the Court found that the district court erroneously
applied the four-level enhancement in USSG 2K2.1(b)(6)(B) for possessing a
firearm in connection with another felony offense--namely, possession of a
hydromorphone pill. Because possession
of that one pill was a drug possession offense, rather than a drug trafficking
offense, the court was required under the Guidelines to find that the firearm
facilitated or had the potential to facilitate that drug possession offense. Mere proximity between the firearm and pill
was insufficient without such a finding.
The Court remanded to give the parties and the court an opportunity to
address that issue.
Finally, and relying on circuit precedent, the Court upheld
the enhancement under USSG 2K2.1(a)(3) on the ground that the defendant's prior
Florida conviction for drug conspiracy under 893.13 was a predicate
"controlled substance offense" under the Guidelines.
