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7th Circuit: conviction can't enhance sentence

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A defendant's conviction of possession of a firearm by a felon stands because police had reasonable suspicion to stop the car he was riding in, the 7th Circuit Court of Appeals concluded today. However, the District Court erred when it enhanced his sentence under the Armed Career Criminal Act because his past criminal recklessness conviction isn't considered a violent felony.

In United States of America v. Anthony Hampton, No. 07-3134, Anthony Hampton appealed his conviction and 387-month sentence for his role in a shooting around a Subway restaurant in Indianapolis.

Multiple people called 911 to report hearing gun shots and seeing two men near the restaurant. Anthony Smith told dispatchers that the person later identified as Hampton was holding a gun and he got into a white SUV with Ohio license plates. Smith later testified he recognized Hampton from the neighborhood, but he didn't tell dispatchers that. Police pulled over the white Jeep Commander and found two guns inside, and arrested Hampton and Justin Gray.

The District Court denied Hampton's motion to suppress the chrome revolver recovered in the car, which he was charged with possessing. The District Court also enhanced his sentenced under the ACCA.

The Circuit Court determined police had reasonable suspicion to stop the SUV. Hampton argued that the 911 operators established the reasonable suspicion and that they should have determined Smith had a conviction for falsely reporting a shooting. Police faced an ongoing emergency when responding to Smith's call, and he was presumably more reliable than an anonymous tipster, wrote Judge Ann Claire Williams. He provided enough information for officers to test his knowledge or credibility so as to justify the stop of the SUV.

The Circuit Court rejected his argument that the dispatchers established reasonable suspicion because they received multiple calls about the incident, which they relayed to police, who used that information to determine they had reasonable suspicion, she wrote. In addition, emergency dispatchers are in no position to conduct background checks while gathering information about a crime in progress.

There was also sufficient evidence to determine Hampton had active or constructive possession of the chrome gun. Callers reported to 911 dispatchers that they saw Hampton holding a gun, and one caller testified he saw Hampton put a gun in his waistband before getting into the SUV. It doesn't matter that the other gun recovered was a black gun and witnesses were inconsistent as to whether he had the black or chrome gun in his hand, she wrote.

Hampton challenged that his previous conviction of residential entry wasn't a violent felony for purposes of the ACCA. Using Begay v. United States, 128 S. Ct. 1581 (2008), the Circuit judges ruled residential entry can be considered a violent felony. But, one of Hampton's other prior convictions used to enhance his sentence wouldn't be considered a violent felony - criminal recklessness. The state argued Hampton waived this argument, but the cases determined after he was sentenced have held criminal recklessness wouldn't qualify for the enhancement.

"In light of Begay and its progeny, the district court committed plain error when it enhanced Hampton's sentence based on the determination that criminal recklessness in Indiana constituted a violent felony under the ACCA," she wrote.

Without the criminal reckless conviction, Hampton doesn't have the three required prior violent felony convictions to enhance his sentence. The Circuit judges remanded for re-sentencing.

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  1. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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