United States v. Phillip Cole
In United States v. Cole, No. 24-40158 (5th Cir. Jan. 8, 2025) (unpublished), the Fifth Circuit affirmed the district court’s denial of Cole’s motion to suppress evidence derived from a police stop of his car. The Fifth Circuit did vacate his sentence, however, because the district court had applied the wrong Sentencing Guidelines base offense level.
Background: In 2021, officers were patrolling a “high-crime area [in Corpus Christi, Texas] known for frequent drug activity and violent crime.” Around 8:00 a.m., they saw a car parked behind a motel, and they saw a man sitting alone in the car, which “raised the officers’ suspicions.” They described the “rear side of the motel [as] a particular hot spot for drug activity, especially heavy narcotic sales,” and they did not recognize the car despite regularly patrolling that area.
Officers approached and talked with the man through the open driver’s side window. The man, defendant Cole, told the officers that he was picking up his friend, but his “hands were restless.” Officers asked him to step out, and they frisked him for weapons. During the frisk, Cole “mentioned that he had just gotten out of prison for bank robbery.” The officers “informed Cole he was being detained” and handcuffed him.
The car door was still open, and one officer saw a handgun on the driver’s side floorboard. At that point, they told Cole he was under arrest, and they conducted an “inventory search” of the car, which led to discovery of another pistol, multiple magazines of ammunition, and marijuana and drug paraphernalia.
After charged with the crime of being a convicted felon in possession of a firearm, 18 U.S.C. § 922(g)(1), Cole moved to suppress the evidence. The district court denied the motion. Cole then proceeded to a stipulated bench trial, was found guilty, and was sentenced to months of imprisonment.
Issue 1: Did the officers violate Cole’s Fourth Amendment rights by seizing him without reasonable suspicion?
Held: No, the officers had reasonable suspicion even from the moment they first approached Cole. Cole was “in a high-crime area” where “trespass and drug crimes regularly occurred,” and one officer’s “suspicions were heightened because he did not recognize Cole’s car, despite patrolling the motel grounds almost every day.”
Issue 2: Did the district court err by applying USSG § 2K2.1(a)(1)?
Held: Yes. Under § 2K2.1(a)(1), a defendant receives a heightened Sentencing Guidelines base offense level “if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine; . . . and (B) the defend ant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” The Government presented enough evidence to prove the first requirement, but it failed the second test.
First, the PSR said that officers had found a “compatible magazine drum” in “close proximity” to Cole’s gun, and it noted that the magazine drum and gun “accepted the same caliber of ammunition and were found in the same vehicle.” That was sufficient to satisfy the first element of § 2K2.1(a)(1).
On the other hand, Cole did not have two prior qualifying convictions, so the district court erred by applying the heightened base offense level. Under USSG § 2K2.1, cmt. n.10, courts should “use only those felony convictions that are counted separately under § 4A1.1(a), (b), or (c).” In Cole’s prior case, however, there was no intervening arrest between his two crimes, so they should not have been “counted separately” under the Guidelines.
NB: Although the court vacated Cole’s sentence and remanded for resentencing, it “hasten[ed] to emphasize [that] the district court may impose the same sentence on remand.”