     Case: 19-30449      Document: 00515489219         Page: 1    Date Filed: 07/14/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 19-30449                            July 14, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MACON CARROLL,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                      for the Middle District of Louisiana
                             USDC No. 3:18-CR-13-1


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Macon Carroll pleaded guilty to possession of a firearm by a felon in
violation 18 U.S.C. § 922(g)(1), reserving his right to appeal the district court’s
denial of his motion to suppress. He asserts that the district court clearly erred
in finding that his encounter with two law enforcement officers, as he and
another individual were walking on the side of a road, was not a seizure under
the Fourth Amendment. He relies on, inter alia, the officers’ actions of parking


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 19-30449

their patrol cars, activating their vehicles’ emergency lights, gesturing towards
Carroll, telling Carroll to stay, running a check for warrants, and donning
black gloves to argue that a seizure occurred.         Carroll contends that a
reasonable person under the circumstances would not have felt free to
disregard the officers and leave the scene of the encounter.
      When reviewing a district court’s ruling on a motion to suppress, this
court, viewing the evidence in the light most favorable to the prevailing party,
reviews factual findings for clear error and the legality of police conduct de
novo. United States v. Pack, 612 F.3d 341, 347 (5th Cir.), opinion modified on
denial of reh’g, 622 F.3d 383 (5th Cir. 2010). We are especially deferential to
factual findings that are based on “live testimony of witnesses because of [the
factfinder’s] opportunity to judge the credibility of those witnesses.” United
States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005) (internal quotation marks
and citation omitted). The conclusion that a seizure did not occur is a finding
of fact. United States v. Mask, 330 F.3d 330, 334-35 (5th Cir. 2003).
      In determining whether a seizure occurred, the applicable test is
whether a reasonable person would not feel free to leave or to terminate the
encounter. United States v. Drayton, 536 U.S. 194, 201 (2002). We consider
the totality of the circumstances, including the following non-exclusive factors,
to determine when a reasonable person would feel free to terminate an
encounter: “(1) the threatening presence of several officers; (2) the display of a
weapon by an officer; (3) physical touching of the person of the citizen; and (4)
the use of language or tone of voice indicating that compliance with an officer’s
request might be compelled.” Mask, 330 F.3d at 337.
      In this case, the factors identified in Mask support the district court’s
finding that the encounter at issue was consensual and not coercive. The
encounter was initiated by Carroll when he and another individual approached
and sought to speak with one of the officers while he was already stopped in

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                                  No. 19-30449

his patrol vehicle. After the encounter began, the officers merely spoke with
and asked questions of Carroll. Notably, during the relevant portion of the
encounter, the evidence at the suppression hearing established that the
officers never (i) used force, violence, or threats; (ii) displayed or brandished
their service weapons; (iii) physically touched Carroll; (iv) searched, took, or
held any of Carroll’s property; (v) issued orders, commands, or threats to
Carroll; (vi) raised their voices or spoke in an authoritative tone; or (vii) told
Carroll that he was under investigation or could not leave. See Drayton, 536
U.S. at 204.    Furthermore, the evidence showed that the officers never
subjected Carroll to “a restrictive environment,” and they “did not demand
answers to their questions, leaving [Carroll] free to decide whether to answer.”
United States v. Williams, 365 F.3d 399, 404-05 (5th Cir. 2004). Accordingly,
we conclude that the district court did not clearly err in finding that there was
no seizure.
      Carroll also challenges his conviction on the ground that the factual basis
for his conviction was lacking proof that he knew, at the time of his offense,
that he was a convicted felon. See Rehaif v. United States, 139 S. Ct. 2191,
2194 (2019). We review his argument for plain error. See Puckett v. United
States, 556 U.S. 129, 134 (2009).      Although the factual resume and plea
colloquy standing alone do not establish that Carroll knew, when he committed
his present offense, that he had been convicted of an offense punishable by
more than one year of imprisonment, the record as a whole establishes that he
had such knowledge. See United States v. Hicks, 958 F.3d 399, 401 (5th Cir.
2020); United States v. Ortiz, 927 F.3d 868, 872-73 (5th Cir. 2019). Because
the presentence report established, without any challenge by Carroll, that he
had been convicted of two offenses punishable by more than one year of
imprisonment, the question whether Carroll knew of his status as a convicted
felon is at least subject to reasonable dispute. See Ortiz, 927 F.3d at 872-73;

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                                   No. 19-30449

Puckett, 556 U.S. at 134-35. Accordingly, Carroll has failed to show plain error.
See Puckett, 556 U.S. at 134-35.
      AFFIRMED.




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