                               NOT FOR PUBLICATION

                       UNITED STATES COURT OF APPEALS                                  FILED
                               FOR THE NINTH CIRCUIT                                    MAY 20 2011

                                                                                   MOLLY C. DWYER, CLERK
                                                                                     U.S. COURT OF APPEALS

 UNITED STATES OF AMERICA,                             No. 10-10240

                Plaintiff - Appellee,                  D.C. 4:09-cr-00527-DLJ-1

   v.
                                                       MEMORANDUM*
 VINCENT HUNTER,

                Defendant - Appellant.


                      Appeal from the United States District Court
                        for the Northern District of California
                      D. Lowell Jensen, District Judge, Presiding

                           Argued and Submitted May 9, 2011
                               San Francisco, California

Before: THOMAS, MCKEOWN, and MURGUIA, Circuit Judges.

        Defendant-Appellant Vincent Hunter appeals the decision of the district

court denying his pretrial motion to suppress evidence and the sentences imposed

for the two charges of which he was convicted, being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1) and possession of cocaine base in

violation of 21 U.S.C. §844(a). For the reasons discussed below, we affirm in part


         *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
and reverse in part and remand for further proceedings.

      The district court did not err in denying Hunter's motion to suppress.

Reviewing the issue de novo, we agree with the district court that the officer's

investigatory stop did not ripen into an arrest. The totality of the circumstances

justified the methods the police officer employed to restrain Hunter, who was

suspected to have fled from a stolen car, had suspiciously run on mere sight of the

police, had made furtive movements by a bush, and had refused to comply with the

officer's first request that he put his hands up. Given the threat of physical danger

or flight Hunter posed, the officer was justified in drawing his gun and ultimately

handcuffing him to conduct his investigation. Washington v. Lambert, 98 F.3d

1181, 1189 (9th Cir. 1996); United States v. Greene, 783 F.2d 1364, 1367-68 (9th

Cir. 1986). Moreover, the circumstances provided reasonable suspicion supporting

the investigatory stop of Hunter. Hunter argues for the first time on appeal that the

search of the bush where the gun was found was a warrantless search. Hunter

waived this argument by failing to raise it before the district court and providing no

justification for failing to raise it until now. United States v. Murillo, 288 F.3d

1126, 1135 (9th Cir. 2002); United States v. Wright, 215 F.3d 1020, 1026 (9th Cir.

2000).

      The district court erred, however, in imposing a 36-month sentence for


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Hunter's drug possession charge. Because Hunter only possessed .23 grams of

cocaine base, the maximum sentence he could have received under federal law was

twelve months. 21 U.S.C. § 844(a). Although the sentence can be enhanced based

on prior convictions, in order for the court to do so, the prosecution must file an

information stating in writing the previous conviction or convictions upon which it

intends to rely. 21 U.S.C. §851(a)(1). Compliance with this requirement is

mandatory. United States v. Hamilton, 208 F.3d 1165, 1168 (9th Cir. 2000). In

this case, the Government failed to comply with the requirements of §851(a), and

the case should be remanded so that the district court can impose a sentence in

compliance with §844(a).

      The district court did not consider the Sentencing Guidelines mandatory in

violation of United States v. Booker, 543 U.S. 220 (2005). Nor was the district

court required to submit the issue of the gun possession's connection to the drug

possession to a jury to be proved beyond a reasonable doubt pursuant to Apprendi

v. New Jersey, 530 U.S. 466 (2000), in order to apply a 4-level enhancement

pursuant to the United States Sentencing Guidelines ("U.S.S.G.") §2k2.1(b)(6).

See, e.g., United States v. Gonzales, 506 F.3d 940, 947 (9th Cir. 2007); United

States v. Polanco, 93 F.3d 555, 567 (9th Cir. 1996). Cocaine possession in any

amount is a felony under the laws of California, see Cal. Health & Safety Code §


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11350(a), so this offense could under some circumstances support an enhancement

pursuant to U.S.S.G. §2k2.1(b)(6) even if Hunter was only convicted of a

misdemeanor under federal law. "Another felony offense," for purposes of

subsection (b)(6), means any "Federal, state, or local offense . . . punishable by

imprisonment for a term exceeding one year, regardless of whether a criminal

charge was brought, or a conviction obtained." U.S.S.G. §2K2.1(b)(6) cmt. n.14

(emphasis added). On remand, however, the district court should more explicitly

articulate its reasoning for applying the 4-level sentencing enhancement pursuant

to U.S.S.G. §2k2.1(b)(6) and specifically explain the connection between the gun

possession charge and the drug possession.

      The district court’s order denying Hunter's motion to suppress is

AFFIRMED and the case is REMANDED for further proceedings consistent with

this memorandum disposition.




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