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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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