                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4377


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MARTIN SIMMONS, a/k/a Travis Green, a/k/a Marty Raashan
Simmons, a/k/a Marty, a/k/a Martin Raashan Simons, a/k/a
Martin Rahshan Simons,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00467-PMD-1)


Argued:   May 13, 2011                     Decided:   July 5, 2011


Before MOTZ, DAVIS, and KEENAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
opinion.   Judge Keenan wrote the opinion, in which Judge Motz
and Judge Davis joined.


ARGUED: John Robert Haley, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, South Carolina, for Appellant.       Sean
Kittrell, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.    ON BRIEF: William N. Nettles, United
States Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
KEENAN, Circuit Judge:

      Martin Simmons was convicted, upon his plea of guilty, of

one count of unlawful possession of a firearm by a convicted

felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and

924(e).     When entering his guilty plea, Simmons reserved his

right to appeal the district court’s denial of his motion to

suppress evidence of the firearm.            The district court sentenced

Simmons to a term of 110 months’ imprisonment.

      On appeal, Simmons argues that the district court erred: 1)

in denying his motion to suppress; and 2) in applying a four-

level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6).                      We

conclude that the district court did not err in denying Simmons’

motion to suppress and, therefore, affirm Simmons’ conviction.

However, because we conclude that the district court erred in

applying the sentencing enhancement, we vacate Simmons’ sentence

and remand the case for resentencing.



                                      I.

                                      A.

      Around 4:28 a.m. on February 14, 2009, a “dispatch” issued

by   the   police   department   of   the        City   of    Charleston,    South

Carolina,   alerted   officers   on       duty    about      reports   of   gunfire

occurring at the corner of Hanover and Amherst Streets.                     Officer

Flaherty, who first responded to the scene, walked around the

                                      2
area and reported by radio to Officer Michael Moody and Officer

Vachowski that Flaherty did not observe any individuals in the

area. 1

            Around the same time, Officer Moody and Officer Vachowski

were        driving     south     on    Nassau     Street,       headed      toward   the

intersection of Nassau and Amherst Streets.                      The police officers

observed Simmons and another man walking quickly, turning from

Amherst Street onto Nassau Street in a northbound direction.                           At

that    time,       Simmons     and    his    companion   were    located     about   one

block from the area where the gunfire reportedly had occurred.

Officer Moody considered this location as being a “high crime”

area.

       Officer Moody and Officer Vachowski approached Simmons and

his companion.          Officer Moody told the men about the reports of

gunfire       and     asked,    “Did    you    guys   happen     to   hear    anything?”

Simmons nodded his head, and stated that he was leaving the area

because he had heard the gunfire.

       Officer Moody asked Simmons whether he was carrying any

weapons, and Simmons replied that he was not.                             When Officer

Moody asked Simmons if he could conduct “a quick pat down for

weapons,” Simmons agreed.


        1
       The record does not reflect the first names of Officer
Flaherty and Officer Vachowski.



                                               3
     As    Officer    Moody    began    conducting        a    pat-down       search    of

Simmons’    pants,    Simmons    leaned       the    right      side     of   his    body

against     a    building,    thereby    preventing           Officer     Moody      from

feeling    Simmons’    right    side.        To     reposition         Simmons’     body,

Officer Moody placed his hands on Simmons’ hips.

     As    Officer    Moody’s    left    hand     moved       across    the     front   of

Simmons’ hips, Officer Moody felt an object in Simmons’ right

front pocket and sensed that the object was a firearm.                               When

Officer Moody asked, “Hey, what [is] this?” Simmons ran away.

     Officer Moody chased Simmons along Amherst Street.                             After

Officer Moody observed Simmons reach into his right pocket and

throw a metallic object onto the ground while continuing to run,

Officer Moody reported by radio to Officer Flaherty that Simmons

was running toward Officer Flaherty.                      Simmons eventually was

apprehended by Officer Flaherty and another police officer.

     The    police    officers    recovered         the    metallic       object     that

Simmons    discarded,    which    they       identified        as   a    .357    caliber

revolver.       The firearm contained two spent rounds of ammunition,

and four unspent rounds of ammunition.                The police officers also

found additional ammunition inside Simmons’ pockets.

                                        B.

    In April 2009, a grand jury indicted Simmons on the single

count of possession of a firearm by a convicted felon.                           Simmons

filed a motion to suppress evidence of the firearm, arguing that

                                         4
the police seized the weapon as a result of an unlawful seizure

of his person in violation of the Fourth Amendment.

       The     district       court   denied    Simmons’      suppression   motion,

holding that the police officers had reasonable suspicion to

stop and frisk Simmons pursuant to Terry v. Ohio, 392 U.S. 1

(1968).       The district court alternatively concluded that Simmons

consented to the stop and frisk.

       Following Simmons’ guilty plea and conviction, a probation

officer prepared a presentence report (PSR) recommending that

Simmons receive a two-level enhancement under U.S.S.G. § 3C1.2

for    reckless      endangerment      during    flight,       and   a   three-level

downward      reduction       under   U.S.S.G.    §   3E1.1    for    acceptance   of

responsibility.           The government objected to the PSR, arguing

that       instead   of   a    two-level   enhancement        for    obstruction   of

justice, Simmons should receive a four-level enhancement under

U.S.S.G. § 2K2.1(b)(6) for possessing a firearm in connection

with another felony. 2




       2
       According to the government, Simmons possessed the firearm
in connection with two felony offenses under South Carolina law:
discharging a firearm at or into a dwelling in violation of
South Carolina Code § 16-23-440, and pointing a firearm at any
person in violation of § 16-23-410.        However, because the
district court did not apply an enhancement based on either of
these two offenses, we do not address whether they would have
been applicable in the present case.



                                           5
       At    the   sentencing        hearing,          the    district         court    concluded

that     Simmons        qualified         for    a     four-level         enhancement         under

U.S.S.G. § 2K2.1(b)(6), finding that Simmons possessed a firearm

in connection with another felony, namely, resisting arrest with

a   deadly       weapon.       The    resulting          offense      level       of    25,    when

combined      with      a    criminal      history       category         of    VI,    yielded    a

guidelines range of 110 to 120 months’ imprisonment.                                     Based on

this guidelines range, the district court sentenced Simmons to a

term of 110 months’ imprisonment.



                                                 II.

                                                 A.

       We    first      consider      whether          the    district         court    erred    in

denying Simmons’ motion to suppress evidence of the firearm.                                     We

review      the    factual      findings         underlying         the     district      court’s

denial      of    the    motion      to    suppress          for    clear      error,    and    the

court’s legal conclusions de novo.                       United States v. Blake, 571

F.3d 331, 338 (4th Cir. 2009).                         A factual finding is clearly

erroneous if this Court “on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.”

United      States      v.   Harvey,       532    F.3d       326,    337    (4th       Cir.   2008)

(internal quotation marks omitted).                          When the district court has

denied a motion to suppress, we construe the evidence in the



                                                  6
light    most    favorable       to    the    government.           United    States      v.

Farrior, 535 F.3d 210, 217 (4th Cir. 2008).

        Simmons       contends       that     the     police   officers       unlawfully

seized    him    at     the   time     that       they   initially    approached         and

questioned him and his companion.                        According to Simmons, the

police officers lacked reasonable suspicion to conclude that he

was engaged in criminal activity.

     A person is seized for purposes of the Fourth Amendment

when a police officer, “by means of physical force or show of

authority,” restrains that person’s freedom of movement.                           United

States v. Mendenhall, 446 U.S. 544, 553 (1980); see Terry, 392

U.S. at 19 n.16.          Conversely, a voluntary encounter between the

police and a citizen does not constitute a seizure prohibited by

the Fourth Amendment.            See Florida v. Bostick, 501 U.S. 429, 434

(1991).         Thus,    even     when       police      officers    do    not    have     a

reasonable      suspicion       that     an    individual      may    be     engaged      in

criminal     activity,        they     may     approach      that    person      and     ask

questions without violating the Fourth Amendment.                            See id. at

435; United States v. Lewis, 606 F.3d 193, 197-98 (4th Cir.

2010).

     The Supreme Court has acknowledged that most individuals

will feel obligated to respond when asked questions by a police

officer, but has held that this fact alone will not convert a

consensual encounter into a seizure.                      INS v. Delgado, 466 U.S.

                                              7
210,    216   (1984).          The    Court   has      explained        that    a    contrary

conclusion       would    create      constitutional           barriers        to    everyday

encounters between the police and individual citizens, imposing

unrealistic       burdens       on    “a   wide     variety        of    legitimate        law

enforcement practices.”              Mendenhall, 446 U.S. at 554.                   Thus, the

Supreme Court has concluded that an encounter between the police

and a citizen does not constitute a seizure unless, taking into

account all the circumstances of the encounter, “a reasonable

person would . . . believe[] that he was not free to leave.”

Id.

        If the person being questioned by the police objectively

“remains free to disregard the questions and walk away,” there

is no demonstrable restriction on the person’s liberty and the

encounter does not result in a seizure.                      Id.    Some factors that

might     indicate       the     occurrence       of     a     seizure         include     the

threatening presence of several police officers, their display

of    weapons,    a   physical        touching      of   the    person     to       whom   the

questions are directed, and the use of language indicating that

compliance with the police request is required.                                Id.; United

States v. Perry, 560 F.3d 246, 253 (4th Cir. 2008).

        Upon review of the present record, we conclude that the

evidence      supports     the       district     court’s       conclusion          that   the

police officers’ initial encounter with Simmons was consensual.

At the beginning of the encounter, Officer Moody and Officer

                                              8
Vachowski         merely   approached     Simmons         and    his    companion       on   a

public street and asked whether they had heard gunfire.                                  When

Simmons replied that he had heard gunfire and was walking away

from the area for that reason, Officer Moody asked Simmons if he

was carrying a weapon.             Simmons voluntarily responded that he

was not.       The police officers did not tell Simmons that he was

required to stay and answer their questions, and Simmons did not

make any attempt to leave.

       The    evidence       refutes    Simmons’         contention        that   the    only

reason he was stopped was “because he was a black man walking in

a predominantly black neighborhood,” about 4:30 a.m.                                 Based on

the    officers’      testimony,       which       the    district      court     accepted,

Officer Moody and Officer Vachowski approached Simmons and his

companion in furtherance of their investigation of the reported

gunfire      in    that    area.       Simmons      responded        freely     to    Officer

Moody’s questions and did not express any reluctance to speak

with    him.         Thus,    considering          all   these       circumstances,       the

initial      encounter        between        the     officers        and      Simmons     was

consensual and did not constitute a seizure of Simmons’ person,

because      the    record    failed    to    show       that   “a    reasonable       person

would . . . believe[] that he was not free to leave.”                                     See

Mendenhall, 466 U.S. at 554.

       Simmons argues, nonetheless, that his motion to suppress

should have been granted because the evidence failed to support

                                              9
the district court’s finding that Simmons initially consented to

the pat down of his person.              Simmons’ argument, however, fails

to acknowledge that Officer Moody testified that Simmons agreed

to a “brief pat down” for weapons.                It was only when Simmons

leaned the right side of his body against a building and Officer

Moody   attempted   to    reposition      him,    that    Simmons   exhibited     a

reluctance    to    act    in        accord   with      his    initial    consent.

Simultaneously with this attempted repositioning, Officer Moody

felt the object in Simmons’ pocket that Moody thought was a

firearm.

     Although Officer Moody acknowledged that a suspect’s act of

leaning in one direction before a pat-down search “usually” is

inconsistent with consent, the district court nevertheless found

that Simmons “was hoping to get beyond the moment.                         He was

talking on the phone.       He postured himself in a way that perhaps

the pistol wouldn’t be found.            But when it was, he was prepared

to run.”     Thus, the district court found “it credible that the

officer said that [Simmons] gave consent, but upon finding the

pistol, [Simmons] fled.”         Accordingly, based on this record, the

district court’s factual finding that Simmons consented to the

pat-down   search   prior       to    fleeing    from    the   officers    is   not

clearly erroneous.

     We further observe that once Officer Moody felt on Simmons’

person an object Officer Moody thought was a firearm and Simmons

                                         10
immediately ran away from the officers, the officers had, at

minimum,      reasonable          suspicion    to    detain    Simmons   for   further

investigation.          See Terry, 392 U.S. at 30.                 When Simmons was

observed to discard the firearm during the officers’ ultimately

successful effort to apprehend him, he abandoned any residual

expectation of privacy he may have harbored in respect to his

possession of the firearm.                    Thus, we hold that the district

court    did    not     err       in   denying      Simmons’   motion    to    suppress

evidence of the weapon discarded by Simmons at the scene of the

crime.

                                              B.

     The next issue we consider is whether the district court

erred    in    applying       a    four-level       sentencing   enhancement     under

U.S.S.G. § 2K2.1(b)(6).                A district court’s determination that

such an enhancement is applicable is a factual finding, which we

review for clear error.                United States v. Carter, 601 F.3d 252,

254 (4th Cir. 2010).

     Section 2K2.1(b)(6) provides for a four-level enhancement

if a defendant “used or possessed any firearm or ammunition in

connection       with     another         felony       offense.”         U.S.S.G.    §

2K2.1(b)(6).       Before applying the enhancement, a district court

must conclude that the defendant committed a separate felony

offense.       See United States v. Blount, 337 F.3d 404, 406-07 (4th

Cir. 2003).        In this case, the district court applied the §

                                              11
2K21.1(b)(6) enhancement based on the court’s conclusion that

Simmons    had   “resist[ed]        arrest    with    [a]   deadly       weapon,”    an

offense that is a felony under South Carolina Code § 16-3-625.

     To    determine      whether    Simmons       committed   a    felony   offense

under South Carolina Code § 16-3-625, we examine the express

language    of   that     statute.          The    statutory    language     defines

“resisting arrest with [a] deadly weapon” as “resist[ing] the

lawful    efforts    of   a   law    enforcement      officer       to   arrest    [the

defendant] or another person with the use or threat of use of a

deadly weapon against the officer, and the [defendant] is in

possession or claims to be in possession of a deadly weapon.”

S.C. Code § 16-3-625.

     According to Simmons, the act of discarding a weapon while

fleeing from police officers is not sufficient to establish that

he “use[d]” or “threat[ened] to use” a dangerous weapon within

the meaning of § 16-3-625.              The government contends, however,

that Simmons “used” a dangerous weapon by retrieving the loaded

firearm from inside his pants pocket and discarding it.                              We

disagree with the government’s position.

     Although       the   terms     “use”    and    “threat    of    use”    are    not

defined in South Carolina Code § 16-3-625, we interpret those

terms based on their plain meaning and the context in which they

are employed.        See United States v. Groce, 398 F.3d 679, 681

(4th Cir. 2005).          The language of the statute requires that a

                                        12
person “use,” or make a “threat of use,” of a deadly weapon

“against” a law enforcement officer.                   S.C. Code § 16-3-625.

      The    evidence      in    this       case    showed    that       Simmons     was   not

holding the weapon in his hand when he was confronted by the

officers.          Instead,       after       the    police       officers      approached

Simmons, Officer Moody conducted a pat-down search of Simmons’

person,     feeling    what      Moody      thought    was    a   weapon       in    Simmons’

front right pocket.              When Simmons fled from the police, the

weapon remained in his pocket.                 As he was running away, Simmons

reached into his pocket and discarded the weapon.

      This evidence does not show that Simmons, by discarding the

weapon, “used” the weapon, or made a “threat of use” of the

weapon, to impede Officer Moody’s pursuit or to defend “against”

the officers’ attempt to capture him.                        Thus, we conclude that

Simmons’s “use” or “threat of use” of the weapon, if any, did

not   constitute       a   “use”       or   “threat    of     use”       “against”     a   law

enforcement officer, as required by the plain language of the

statute.      Accordingly, we hold that Simmons did not “resist[]

arrest with [a] deadly weapon,” as prohibited by South Carolina

Code § 16-3-625, and that the district court clearly erred in

applying     the   §   2K2.1(b)(6)          enhancement       based       on   the   court’s

contrary     conclusion         that    Simmons      committed       a    felony     offense

under that statute.



                                              13
                              III.

     For these reasons, we affirm Simmons’s conviction, but we

vacate his sentence.   We remand the case to the district court

for resentencing.

                                              AFFIRMED IN PART,
                                               VACATED IN PART,
                                                   AND REMANDED




                               14
