                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 14a0013p.06

                UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                 X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                      No. 12-4313
            v.
                                                  ,
                                                   >
                                                  -
                         Defendant-Appellant. -
 IRVING T. SEYMOUR,
                                                 N
                   Appeal from the United States District Court
                  for the Northern District of Ohio at Cleveland.
            No. 1:10-cr-00399-1—Lesley Brooks Wells, District Judge.
                           Decided and Filed: January 15, 2014
     Before: COLE and CLAY, Circuit Judges; BERTELSMAN, District Judge.*

                                      _________________

                                           COUNSEL
ON BRIEF: Jeffry F. Kelleher, JEFFRY F. KELLEHER & ASSOCIATES, CO.,
Cleveland, Ohio, for Appellant. Bernard A. Smith, UNITED STATES ATTORNEY’S
OFFICE, Akron, Ohio, for Appellee.
                                      _________________

                                            OPINION
                                      _________________

        CLAY, Circuit Judge. Defendant Irving Seymour was convicted by a jury of one
count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),
and sentenced to 100 months’ imprisonment. He appeals four decisions of the district
court: (1) the district court’s denial of his motions for discovery; (2) the court’s denial
of his motion to suppress; (3) the court’s application of the four-point firearm
enhancement of U.S.S.G. § 2K2.1(b)(6)(B); and (4) the court’s decision to have


        *
        The Honorable William O. Bertelsman, United States District Judge for the Eastern District of
Kentucky, sitting by designation.


                                                 1
No. 12-4313        United States v. Seymour                                         Page 2


Defendant’s sentence run consecutive to an already-imposed state sentence. For the
reasons set forth below, we AFFIRM the district court’s rulings on Defendant’s motions
for discovery and to suppress, REVERSE the district court’s application of the firearm
enhancement, VACATE Defendant’s sentence, and REMAND for resentencing.

                                   BACKGROUND

       A.      Arrest and Conviction

       On the afternoon of August 19, 2010, Detective James Welsh of the Elyria, Ohio
Police Department was meeting in his office with Jourdan Powell, a confidential
informant. Powell, who happens to be Defendant’s cousin, had made undercover drug
buys for Welsh on several occasions, but Powell’s sources were drying up. Welsh asked
Powell if he knew of any other illegal activity afoot in Elyria, including anyone illegally
trying to sell handguns. Welsh’s request paid immediate dividends. Just a few minutes
after Powell left Welsh’s office, he called Welsh to report that Defendant was trying to
sell a .25 caliber handgun. Powell told Welsh where he and Defendant were, and Welsh
set off to the location with two other officers—Detective Michael Fairbanks and
Detective Gerald Lantz.

       The detectives caught up with Defendant and Powell a few minutes later at a
nearby gas station and convenience store. The detectives observed Powell pumping gas
into a white Impala while Defendant sat in the front passenger seat. When Powell drove
the Impala out of the gas station, the detectives followed in a marked police car. Powell
immediately made two left turns without signaling—a violation of Ohio Rev. Code
§ 4511.39. The detectives flipped on their sirens and attempted to pull over the Impala.

       At first, Powell resisted stopping the car and hit the brakes erratically. The
detectives could see and hear Defendant telling Powell to keep driving. Powell
eventually pulled over the car, but before the Impala came to a complete stop, Defendant
jumped out of the car and tried to escape on foot. He stumbled as he leaped out of the
car, got up, and starting running with all three detectives giving chase. Welsh was right
behind Defendant and saw Defendant digging into his waist band. This motion indicated
No. 12-4313        United States v. Seymour                                        Page 3


to Welsh that Defendant was reaching for a weapon. A few seconds later, Welsh
watched Defendant reach to his waistband again and actually saw the handle of a
handgun in Defendant’s hand. At that moment, Detective Fairbanks appeared from
Welsh’s right and tackled Defendant, sending a handgun flying from his hand. The
weapon turned out to be a .25 caliber handgun, with three rounds loaded in the
magazine. The detectives searched Defendant and found 2.4 grams of crack cocaine and
five hydrocodone pills.

       Defendant was arrested for numerous violations of Ohio law. Later, he was
transferred to federal custody and indicted for one count of being a felon in possession
of a firearm. Defendant filed several motions before trial—seeking discovery of
Powell’s whereabouts and impeachment material about Powell, and seeking to suppress
the evidence seized incident to his arrest. After holding a suppression hearing, the
district court denied all of these motions. A jury convicted Defendant of the single count
against him following a two-day trial.

       B.      Sentencing

       Defendant’s sentencing proceeding centered on two disputes: whether the four-
point firearm enhancement of U.S.S.G. § 2K2.1(b)(6)(B) should apply, and whether
Defendant’s sentence should be affected by a prior state sentence that had been ordered
to run consecutive to Defendant’s federal sentence. The probation office recommended
that the firearm enhancement apply on the basis that Defendant “possessed any firearm
or ammunition in connection with another felony.”           U.S.S.G. § 2K2.1(b)(6)(B).
Defendant objected and the parties argued this issue at the sentencing hearing. The
government asserted that Defendant had possessed the .25 caliber handgun to facilitate
the offense of felony drug possession under Ohio law.             See Ohio Rev. Code
§ 2925.11(C)(4). The government even suggested that Defendant might have intended
to sell his crack and hydrocodone pills. But the government walked back this statement
shortly after making it, conceding that nothing in the record supported the supposition
that Defendant was trying to sell drugs. Defendant countered that his possession of a
small amount of narcotics was not related to his possession of a handgun—in fact, the
No. 12-4313           United States v. Seymour                                         Page 4


government’s evidence showed that he was trying to sell the gun. The district court
imposed the firearm enhancement, but did not explain its reasoning.

          The consecutive sentence issue stemmed from an Ohio state conviction for drug
possession several months before Defendant’s arrest in this case. The state court
sentenced Defendant to 11 months’ imprisonment, and further ordered that its sentence
run consecutively to Defendant’s federal sentence in this case. However, at the time the
state court sentenced Defendant, his federal sentence had not yet been imposed.
Defendant asserted to the district court that the state court’s consecutive sentence
violated Ohio law and asked for a downward variance to account for this error. The
district court did not contest Defendant’s characterization of Ohio law, but told him that
state court was the proper forum for his argument.

          The four-point firearm enhancement increased Defendant’s total offense level to
24. Combined with Defendant’s Criminal History Category of VI, this resulted in a
Guidelines sentence range of 100–125 months. The district court carefully considered
Defendant’s extensive criminal history and sentenced him to 100 months’ imprisonment,
to run consecutive to his already-imposed state sentence.

                                       DISCUSSION

          Defendant contests four of the district court’s rulings: the district court’s denial
of Defendant’s motions for discovery; its denial of his motion to dismiss; the application
of the four-point firearm enhancement; and the court’s failure to consider the already-
imposed state sentence. We address each in turn.

          A.      Defendant’s Motions for Discovery

          Defendant first argues that the district court should have granted his two motions
for discovery, which sought information to impeach Powell, as well as information
concerning his whereabouts. We review the district court’s denial of these motions
abuse of discretion, see United States v. Jenkins, 4 F.3d 1338, 1341 (6th Cir. 1993), and
affirm.
No. 12-4313        United States v. Seymour                                       Page 5


       Defendant’s motions suffer from a fatal flaw—Powell did not testify at the
suppression hearing or at trial. Defendant cites no law to support the proposition that
he was entitled to impeachment material for a witness not called by either party.
Although Defendant relies on Roviaro v. United States, 353 U.S. 53 (1957), that case
does not help his argument. In Roviaro, the Supreme Court held that, under certain
circumstances, the government can be required to reveal the identity of a confidential
informant, even though the government generally has the authority to withhold this
information. See id. at 60–61. Defendant, however, knew Powell’s identity and his
status as a confidential informant prior to the suppression hearing. Nor has Defendant
carried his burden in establishing that the government withheld material information
favorable to his defense in violation of its Brady and Giglio obligations. See United
States v. Graham, 484 F.3d 413, 417 (6th Cir. 2007). Defendant speculates that Powell’s
two unsignaled turns were a ruse schemed up by Detective Welsh to manufacture
probable cause. But this speculation is just that—speculation. Defendant also cites
nothing to support his request for information concerning Powell’s whereabouts. In
sum, the district court did not abuse its discretion in denying Defendant’s motions for
discovery.

       B.      Defendant’s Motion to Suppress

       Defendant next contends that the district court should have suppressed the
evidence seized after his arrest—namely, the handgun, crack cocaine, and hydrocodone
pills. “When reviewing a district court’s decision on a motion to suppress, we review
its findings of fact for clear error and its legal conclusions de novo.” United States v.
Lyons, 687 F.3d 754, 762 (6th Cir. 2012). “A factual finding is clearly erroneous when
a court, on reviewing the evidence, is left with the definite and firm conviction that a
mistake has been committed.” United States v. Gunter, 551 F.3d 472, 479 (6th Cir.
2009) (quotation marks omitted). And when “a district court denies a motion to
suppress, we consider the evidence in the light most favorable to the government.”
United States v. Moon, 513 F.3d 527, 536–37 (6th Cir. 2008) (quotation marks omitted).
No. 12-4313           United States v. Seymour                                                 Page 6


        Although the search of Defendant was conducted without a warrant, Defendant’s
Fourth Amendment rights were not violated provided that the arrest was supported by
probable cause. See, e.g., United States v. Smith, 549 F.3d 355, 359 (6th Cir. 2008). To
determine whether this exception applies here, we must determine when Defendant was
constitutionally seized, and then ask if probable cause supported that seizure. Defendant
asks us to conclude that he was seized when the Impala was pulled over. A traffic stop
effects a seizure of the passengers in the car, see United States v. Stepp, 680 F.3d 651,
661 (6th Cir. 2012), but Defendant did not stop when the car did. The district court
found, based on the credibility of the detectives who testified at the suppression hearing,
that Defendant leaped out of the Impala and started running before the car had come to
a complete stop.1 This finding was not clear error. See United States v. Dillard,
438 F.3d 675, 681 (6th Cir. 2006). Because Defendant ran before the Impala came to
a complete stop, he did not submit to the show of police authority at that time. See
California v. Hodari D., 499 U.S. 621, 624–26 (1991). He therefore was not seized until
he was tackled by Detective Fairbanks. See id. at 629.

        At the moment Defendant was tackled, the detectives had probable cause to arrest
him for at least the Ohio crime of carrying a concealed handgun. See Ohio Rev. Code
§ 2923.12(A)(2). “Probable cause exists if the facts and circumstances known to the
officer warrant a prudent man in believing that an offense has been committed.” United
States v. Pearce, 531 F.3d 374, 380 (6th Cir. 2008) (quotation marks omitted). The facts
available to the detectives comfortably satisfy this standard. As Defendant tried to evade
police, two detectives saw him reaching for his waistband. Welsh even saw Defendant
holding a gun handle. These facts allowed the detectives to reach the reasonable
conclusion that Defendant possessed a gun and that the gun was concealed. See United
States v. Thomas, 11 F.3d 620, 628 (6th Cir. 1993); McFinley v. Bethesda Oak Hosp.,
607 N.E.2d 936, 939–40 (Ohio Ct. App. 1992) (per curiam).




        1
         Defendant’s alternate version of events, in which he calmly stepped out of the stopped car and
was senselessly tackled, finds no support in the record.
No. 12-4313        United States v. Seymour                                       Page 7


       Defendant’s argument for suppression hypothesized that Powell made the
unsignaled turns that triggered the traffic stop as part of a scheme plotted by Detective
Welsh. Even if this were so—and there is nothing in the record to support Defendant’s
assertion—it would not affect the legality of the seizure. In United States v. Martin,
399 F.3d 750 (6th Cir. 2005), we considered a case where police officers had unlawfully
attempted to stop the defendant, but the defendant ran rather than submit to the show of
authority. See id. at 752. During his flight, the defendant abandoned a handgun. See
id. We held that since the defendant had not submitted to the show of authority, he did
not abandon his gun during a seizure—our analysis was not affected by the unlawfulness
of the original attempt to seize the defendant. See id. at 752–53. Following Martin,
even if the detectives’ attempt to pull over the Impala had been unlawful, it would not
change the Fourth Amendment analysis. Defendant was not seized until he was tackled,
and he was not tackled until the detectives had probable cause to arrest him. Because
the handgun and narcotics were seized incident to a lawful arrest, the district court did
not err in denying Defendant’s motion to suppress.

       C.      The Firearm Enhancement

       The chief issue in Defendant’s appeal concerns the district court’s application of
the four-point enhancement for possessing a firearm “in connection with another felony
offense.” U.S.S.G. § 2K2.1(b)(6)(B). We review a district court’s sentence for
procedural and substantive reasonableness, applying the abuse of discretion standard.
See Gall v. United States, 552 U.S. 38, 51 (2007).          Our review of procedural
reasonableness includes determining whether the district court properly calculated a
defendant’s Guidelines range. See id. In the specific context of the § 2K2.1(b)(6)(B)
firearm enhancement, “we review the district court’s factual findings for clear error and
accord ‘due deference’ to the district court’s determination that the firearm was used or
possessed ‘in connection with’ the other felony, thus warranting the application of the
. . . enhancement.” United States v. Taylor, 648 F.3d 417, 432 (6th Cir. 2011). Applying
this deferential standard of review, we agree with Defendant that the record does not
support applying the enhancement.
No. 12-4313             United States v. Seymour                                                 Page 8


         The § 2K2.1(b)(6)(B) enhancement applies to defendants who “[u]sed or
possessed any firearm or ammunition in connection with another felony offense.”
U.S.S.G. § 2K2.1(b)(6)(B). The application notes to § 2K2.1 specify that the four-point
firearm enhancement should apply “if the firearm . . . facilitated, or had the potential of
facilitating, another felony offense.” U.S.S.G. § 2K2.1 application note 14(A). The
enhancement is not warranted if possession of the firearm “is merely coincidental to the
underlying felony offense.” United States v. Angel, 576 F.3d 318, 321 (6th Cir. 2009)
(quotation marks omitted). The government bears the burden of establishing the factors
supporting this enhancement by a preponderance of the evidence. See United States v.
Shields, 664 F.3d 1040, 1043 (6th Cir. 2011).

         The other felony offense in this case was possession of narcotics—2.4 grams of
crack and five hydrocodone pills. As a general matter, “[t]here is no presumption in
§ 2K2.1(b)(5) [now § 2K2.1(b)(6)(B)] that the defendant’s possession was ‘in
connection with’ the other felony offense.”2 United States v. Hardin, 248 F.3d 489, 497
(6th Cir. 2001). However, the government argues that Defendant’s handgun facilitated
his narcotics possession principally on the basis of the “fortress theory,” which does
presume that, under certain circumstances, guns in close proximity to drugs warrant the
§ 2K2.1(b)(6)(B) enhancement. The fortress theory originally developed in the context
of prosecutions for using or carrying a firearm in relation to a drug trafficking crime.
See 18 U.S.C. § 924(c)(1)(A). In United States v. Henry, 878 F.2d 937 (6th Cir. 1989),
we concluded that “if it reasonably appears that the firearms found on [a] premises
controlled or owned by a defendant and in his actual or constructive possession are to
be used to protect [] drugs or otherwise facilitate a drug transaction, then such firearms
are used ‘during and in relation to’ a drug trafficking crime.”3 Id. at 944. From there,
we applied the fortress theory to the § 2K2.1(b)(6)(B) firearm enhancement, which


         2
             Section 2K2.1(b)(5) was renumbered as § 2K2.1(b)(6) in 2006.
         3
           The Supreme Court effectively overruled Henry in Bailey v. United States, 516 U.S. 137 (1995),
where it held that “using” a gun meant more than simply possessing the gun in proximity to drugs. See
id. at 143–44. Congress responded by amending § 924(c)(1) to also proscribe possessing a firearm “in
furtherance of” a drug trafficking crime. Pub. L. No. 105-386, § 1(a), 112 Stat. 3469, 3469 (1998)
(codified at 18 U.S.C. § 924(c)(1)(A)).
No. 12-4313         United States v. Seymour                                        Page 9


contains similar language to § 924(c)(1)(A). See United States v. Covert, 117 F.3d 940,
947–49 (6th Cir. 1997). A narrow version of the fortress theory can now be found in the
application notes to § 2K2.1. Following that note, the firearm enhancement applies “in
the case of a drug trafficking offense in which a firearm is found in close proximity to
drugs, drug-manufacturing materials, or drug paraphernalia. In these cases, application
of subsection[] (b)(6)(B) . . . is warranted because the presence of the firearm has the
potential of facilitating another felony offense . . . .” U.S.S.G. § 2K2.1 application note
14(B).

         We have repeatedly relied on the fortress theory to uphold applications of the
firearm enhancement where the defendant was engaged in drug trafficking or simply in
a house associated with drug trafficking. See Taylor, 648 F.3d at 432–33; United States
v. Huffman, 461 F.3d 777, 788 (6th Cir. 2006); Hardin, 248 F.3d at 500. We have also
applied the fortress theory in cases where defendants may not have been trafficking
narcotics, but were protecting “a large and valuable stash of drugs.” United States v.
Ennenga, 263 F.3d 499, 504 (6th Cir. 2001); see also Angel, 576 F.3d at 322–23. Even
possessing a large amount of cash in close proximity to narcotics can support the firearm
enhancement. See United States v. Clay, 346 F.3d 173, 179 (6th Cir. 2003).

         However, we have resorted to the fortress theory more sparingly in cases that
involve simple possession of smaller amounts of drugs. For example, in United States
v. Shields, 664 F.3d 1040 (6th Cir. 2011), we reversed an application of the firearm
enhancement where the defendant possessed only a small amount of marijuana and a
baggy with cocaine residue. See id. at 1044. The government in Shields had not
produced “relevant evidence, other than mere proximity, that the gun was actually used
or intended to be used to protect the drugs.” Id. at 1046. Our reluctance to apply the
fortress theory in cases of simple possession stems in part from the Guidelines
themselves. The application note that enshrined the fortress theory in the Guidelines
singles out drug trafficking crimes for special treatment. “This implies that ‘while close
proximity between a firearm and drugs will suffice to justify the enhancement when an
offender is engaged in drug trafficking, in other cases the enhancement applies only if
No. 12-4313           United States v. Seymour                                                Page 10


the government can establish that the firearm actually or potentially facilitated that
offense.’” Id. at 1045 (quoting United States v. McKenzie, 410 F. App’x 943, 945
(6th Cir. 2011)).

         Examining the record before us, and giving due deference to the conclusion of
the district court, we hold that the government cannot sustain its burden and prove that
the firearm enhancement applies to Defendant. We rest our conclusion on two facts.
First, Defendant had only a small amount of drugs in his possession, and the government
admits that nothing in the record shows that Defendant was engaged in any sort of
narcotics trafficking.4 As we explained, this Court has been less willing to rely on the
fortress theory when the quantity of drugs is this small. Second, the testimony of
Detective Welsh established that Defendant was attempting to sell his handgun.
Defendant can hardly have been emboldened in his drug possession, or have hoped to
protect his modest stash, while simultaneously attempting to rid himself of the weapon
that could accomplish these goals. Under these circumstances, we cannot defer to the
district court’s determination that Defendant possessed a firearm in connection with
another felony offense.          We therefore reverse the application of the four-point
enhancement of § 2K2.1(b)(6)(B), and hold that Defendant’s sentence was procedurally
unreasonable.

         D.       Consecutive Sentence

         Finally, Defendant argues that the district court acted unreasonably when it
ordered his federal sentence to run consecutively to an already-imposed state sentence.
We review the court’s decision to impose a consecutive sentence for abuse of discretion.
See United States v. McFalls, 675 F.3d 599, 606 (6th Cir. 2012).

         When he was sentenced in this case, Defendant was already serving a sentence
imposed by an Ohio court that the state judge had ordered to run consecutively to his
federal sentence. Defendant asserts that the state judge’s order violated Ohio law. See


         4
          At the time Defendant was arrested, possessing between one and five grams of crack cocaine
was a fourth-degree felony. Today, possessing less than five grams of crack cocaine is a fifth-degree
felony. See 2011 Ohio Laws File 29 (codified in relevant part at Ohio Rev. Code § 2925.11(C)(4)(a)–(b)).
No. 12-4313         United States v. Seymour                                     Page 11


State v. Feller, 985 N.E.2d 210, 217–18 (Ohio Ct. App. 2012) (citing State v. White,
481 N.E.2d 596, 598 (Ohio 1985)). However, Defendant cites no authority suggesting
that a federal court must consider such an error made by a state court in an unrelated
proceeding. Nor does he support his argument that the district court abused its discretion
when it required Defendant’s federal sentence to run consecutively to the state sentence.
In any event, we need not rule on this issue prior to resentencing. Because we vacate
Defendant’s sentence, whether or not his federal sentence should run consecutively to
his state sentence remains a decision to be made in the sound discretion of the district
court.

                                    CONCLUSION

         The district court committed no error when it rejected Defendant’s motions for
discovery and his motion to suppress. But the record does not support applying the four-
point firearm enhancement to Defendant’s advisory Guidelines sentencing range. We
therefore AFFIRM the district court’s rulings on Defendant’s motions for discovery and
to suppress, REVERSE the district court’s application of the firearm enhancement,
VACATE Defendant’s sentence, and REMAND for resentencing consistent with this
opinion.
