                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                              File Name: 06a0291p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                             X
                                        Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                              -
                                                              -
                                                              -
                                                                  No. 04-4393
               v.
                                                              ,
                                                               >
 SEAN COLEMAN,                                                -
                                     Defendant-Appellant. -
                                                             N
                              Appeal from the United States District Court
                             for the Southern District of Ohio at Cincinnati.
                            No. 03-00090—James L. Graham, District Judge.
                                             Argued: July 17, 2006
                                   Decided and Filed: August 10, 2006
        Before: BOGGS, Chief Judge; COLE, Circuit Judge; and ROSEN, District Judge.*
                                              _________________
                                                   COUNSEL
ARGUED: Thomas P. Kurt, Toledo, Ohio, for Appellant. Timothy D. Oakley, ASSISTANT
UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee. ON BRIEF: Thomas P. Kurt,
Toledo, Ohio, for Appellant. Timothy D. Oakley, ASSISTANT UNITED STATES ATTORNEY,
Cincinnati, Ohio, for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
         BOGGS, Chief Judge. Defendant-appellant Sean Coleman was convicted, under unusual
circumstances, of being a felon in possession of a firearm. Coleman’s sole predicate felony
conviction for his federal indictment had been the subject of a conditional writ of habeas corpus, to
issue if the state failed to retry him. However, the district court in the predicate case stayed the writ
pending the state’s appeal. While that appeal was pending, Coleman was arrested for possession
of a handgun and marijuana following a police anti-drug surveillance operation, and was
subsequently indicted for possessing a firearm while under a weapons disability, in violation of 18
U.S.C. § 922(g). He was convicted of that crime, and he was sentenced to ten years’ imprisonment.
Several months later, we affirmed the grant of the conditional writ with respect to Coleman’s
underlying predicate felony conviction, and the state chose not to retry him. Coleman now

         *
          The Honorable Gerald E. Rosen, United States District Judge for the Eastern District of Michigan, sitting by
designation.


                                                          1
No. 04-4393           United States v. Coleman                                                  Page 2


challenges (1) his conviction for being a felon in possession of a firearm for insufficiency of
evidence, arguing that the lone predicate conviction cited in his indictment in the instant case had
been nullified prior to his arrest, and (2) the search of his car after he was stopped that resulted in
the discovery of the gun. Finally, he alleges that his sentencing under the Guidelines violated the
Supreme Court’s ruling in United States v. Booker, 543 U.S. 220 (2005). For the reasons stated
below, we affirm his conviction and the handgun’s admissibility, but remand for resentencing.
                                                   I
       Coleman was convicted of aggravated drug trafficking in Ohio state court and his appeal was
denied. Coleman filed a petition for a writ of habeas corpus and the federal district judge granted
a conditional writ on November 6, 2002, ordering Coleman’s release
       unless [Ohio] retries petitioner within ninety (90) days of [November 6, 2002], or
       within such further time as the Court may allow for good cause shown, based on the
       claim raised in ground two concerning the trial court’s failure to provide a limiting
       instruction with respect to the prior conviction, the claim raised in ground three
       concerning prosecutorial misconduct, and the claim raised in ground four . . .
       regarding ineffective assistance of counsel for failure to object to the prosecutor’s
       closing argument.
On February 4, 2003, in response to the state’s motion, the judge stayed her order pending the state’s
appeal to the Sixth Circuit.
        On May 14, 2003, Coleman was arrested for, inter alia, possessing a firearm as a felon. On
that day, several Cincinnati police officers were stationed in a covert location in order to watch a
park for drug activity. Around 8:15 a.m., Officer Cain observed a gold Mitsubishi parked beside
the park, and he saw Coleman get out of that car. He then saw Coleman place a compact disc case
in the weeds at the rear of a vacant building next to the park, and a small plastic bag in a jungle gym.
About ten or fifteen minutes later, another man approached Coleman; they spoke for less than a
minute, and Coleman took the bag from the jungle gym. The officer could not see what the men did
with the bag. After a moment, the men walked together toward Coleman’s gold Mitsubishi, then
the second man left the area and Coleman returned to the jungle gym, where he hid the bag once
more. Officer Cain, a 27-year veteran of the police force, strongly suspected that he had witnessed
drug activity. About ten minutes after the second man had left the area, Coleman retrieved the
compact disc case, returned to his car, and drove away.
        One of the officers called for backup. Three police officers received the call for backup
around 8:45 a.m., alerting them to suspicious activities of the driver of a gold Mitsubishi. They were
given a description of Coleman and the car’s approximate location. They spotted the car soon
thereafter, and followed Coleman in an unmarked police car. Coleman pulled up to a curb as if to
park, and the officers got out of the unmarked police car and approached the Mitsubishi. After they
identified themselves as police officers, Coleman abruptly drove away at a high rate of speed. The
officers returned to their car, followed him, and called for help.
        When Coleman saw two marked police cruisers ahead of him at the intersection of Findlay
and Race streets, he stopped his car even though the cruisers had neither activated their lights nor
directed him to stop. After he stopped, officers approached the car, identified themselves, advised
Coleman that he had been stopped for suspected drug activity, and asked him to step out of the car.
Coleman cooperated. They asked if he had any weapons or drugs, and he retrieved marijuana from
his pocket. After he produced the marijuana, the officers asked to search the vehicle, and Coleman
consented.
No. 04-4393           United States v. Coleman                                                  Page 3


        During their search, they found the compact disc case on the passenger seat. Inside it, they
found a loaded handgun. They then advised Coleman that he was under arrest for possession of the
weapon and marijuana. They read him his Miranda rights, and then asked him about the gun and
drugs. He replied that he found the gun in the park earlier that morning, and that he needed it for
protection. They took him to the police station, and advised him that they had watched him in the
park that morning. He subsequently changed his story, saying that he must have found the gun
during the prior day.
         Coleman was indicted on July 23, 2003 on one count of possessing a firearm while under a
weapons disability, in violation of 28 U.S.C. § 922(g). The indictment noted only one predicate
felony conviction – the state conviction for aggravated drug trafficking, which had been subject to
a stayed conditional grant of habeas corpus. Coleman filed a motion to suppress the handgun and
his statements to the officers, but the district court denied this motion in October 2003. On appeal,
Coleman does not appear to argue that his statements should have been suppressed, and accordingly,
we deem that argument to have been abandoned. Coleman filed a Rule 29 motion for acquittal at
the conclusion of the government’s case, which was denied, and renewed his motion at the close of
evidence, which was also denied. The jury returned a guilty verdict, and the district court sentenced
Coleman to 120 months of imprisonment, to be followed by three years of supervised release. The
sentence was in the middle of the Guidelines range, but at the statutory maximum, and the range was
enhanced by a variety of Guidelines factors, such as by the fact that the gun had been stolen from
a police officer. Coleman filed a timely appeal.
        Separately, on December 30, 2004, we affirmed the district court’s conditional grant of the
writ of habeas corpus with respect to Coleman’s sole predicate felony conviction. Coleman v. Ohio
Adult Parole Auth., 118 F. App’x 949, 951 (6th Cir. 2004). The state did not retry Coleman, and
so the conditional grant became absolute, nullifying his conviction.
                                                  II
                                                   A
        Coleman’s first claim on appeal is that the district court erred in denying his Rule 29 motions
for acquittal, on the grounds that there was insufficient evidence to convict him for violating the
weapons disability. We review de novo the district court’s denial of a motion for judgment of
acquittal. United States v. Adamo, 742 F.2d 927, 932 (6th Cir. 1984). Claims of insufficient
evidence are determined by inquiring “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Damrah, 412 F.3d 618, 625 (6th Cir. 2005).
For the purposes of 18 U.S.C. § 922(g), we look to the status of the predicate conviction at the time
the crime was committed. United States v. Settle, 394 F.3d 422, 430-31 (6th Cir. 2005). The
Supreme Court has long since held that weapons disability statutes such as § 922(g) require felons
to clear their legal status prior to obtaining a firearm. United States v. Lewis, 445 U.S. 55, 65 (1980)
(denying, as a defense to prior firearms statute, collateral attack that predicate felony conviction had
been unconstitutionally obtained).
        So settled is the law in this regard that Coleman concedes that subsequent nullification of
a predicate felony conviction does not authorize a successful challenge to a prior § 922(g) conviction
that had depended on that since-nullified predicate conviction. See Settle, 394 F.3d 422 (defendant
obtained a state court ruling 14 months after the date of his firearm possession voiding his state
conviction ab initio); United States v. Olender, 338 F.3d 629 (6th Cir. 2003); United States v.
Morgan, 216 F.3d 557 (6th Cir. 2000). Coleman attempts to distinguish his situation by arguing that
his predicate conviction had been nullified prior to his arrest because the district court had
conditionally granted him a writ of habeas corpus, even if that order had been stayed pending appeal.
No. 04-4393               United States v. Coleman                                                               Page 4


By this argument, Coleman claims that his federal weapons disability had been lifted prior to his
arrest for possessing a firearm, and so the prosecution had introduced no evidence of a predicate
felony conviction as required by § 922(g). He further argues that the district court’s subsequent stay
of its order should not reimpose the federal weapons disability on him.
        Coleman is simply mistaken. Only an absolute grant of the writ of habeas corpus is actually
issued and effective at the moment of the district court’s judgment, albeit subject to the possible
grant of orders staying the writ. Here, the district court did not give Coleman an absolute grant of
habeas corpus in November 2002. Instead, the court, in its discretion, chose to issue a conditional
grant of the writ. From a petitioner’s perspective, conditional grants create nothing more than a
springing interest. That is to say, conditional grants of the writ of habeas corpus remain merely
latent until the court’s established conditions are met, at which time the writ springs into effect,
generally as a self-executing result of the district court’s initial order but sometimes through the
issuance of a new order. See Gentry v. Deuth, No. 05-6273, ___ F.3d ___, 2006 WL 2106637 (6th
Cir. 2006); Satterlee v. Wolfenbarger, ___ F.3d ___ , 2006 U.S. App. LEXIS 16447 (6th Cir. 2006).
         According to the terms of the established condition relevant to this case, the writ would be
granted “unless [Ohio] retries petitioner within ninety (90) days . . . .” (emphasis added). Within
that period of time, the state of Ohio requested a stay pending appeal, which the district court
granted. By the very terms of the district court’s November 2002 judgment and its subsequent stay,
it is clear that the conditions required for the writ to spring into operation had not been met prior to
Coleman’s May 2003 arrest for violating his weapons disability. In fact, as a result of the court’s
February 2003 order staying its judgment, the November 2002 conditional grant of habeas corpus
did not result in the writ’s actual issuance until sometime after we affirmed the judgment in1
December 2004. Coleman’s federal weapons disability thus remained in full effect until that time,
and so he violated federal law by possessing a firearm in May 2003. Lewis, 445 U.S. at 65.
Therefore, sufficient evidence exists to sustain Coleman’s conviction for violating 18 U.S.C.
§ 922(g).
                                                           B
         Coleman next complains that the police search of his car violated the Fourth Amendment,
rendering the gun found on his car seat inadmissible. Katz v. United States, 389 U.S. 347, 356
(1967). In this case, Coleman does not present a challenge to the legality of his initial stop; rather,
he complains only about the subsequent search of his car. As such, we must confine our analysis
to that search.
        Coleman stopped his automobile at a police roadblock after he had fled from several
Cincinnati police officers, although there were no police lights activated and he was not actually
directed to stop. The officers approached his car, identified themselves, and advised him that he had
been stopped for suspected drug activity. Coleman cooperated, and exited his vehicle. The officers
asked if he had any drugs or weapons in his possession, and in response he surrendered some
marijuana from his pocket. After he had produced the marijuana, the officers asked to search his
vehicle, and Coleman responded affirmatively. In searching the vehicle, the officers found the
compact disc case on the car’s passenger seat, and inside it they found the loaded handgun that, they
later discovered, had been stolen from another police officer several months before. The officers


         1
          We note in passing that criminal convictions remain valid and in force pending appeal, unless the district court
rules otherwise. This is somewhat analogously reinforced by the fact that witnesses may be impeached at trial with
criminal convictions that are pending on appeal. Fed. R. Evid. 609(e). See McDonald v. Vanderpool, No. 81-5427, 705
F.2d 455, 1982 U.S. App. LEXIS 11662 (6th Cir. Oct. 14, 1982) (affirming admissibility of prisoner-plaintiff’s criminal
convictions in civil rights trial even though he had filed habeas petitions regarding those convictions).
No. 04-4393           United States v. Coleman                                                Page 5


then placed Coleman under arrest. Coleman now complains that the search of his car was unlawful
because he had not been placed under arrest beforehand.
        We disagree, for numerous exceptions to the general search warrant requirement applied
under these circumstances. Although the police are generally required to obtain a warrant prior to
conducting a search, there are several well-known exceptions to the warrant requirement, including
searches incident to lawful arrests, Chimel v. California, 395 U.S. 752, 763 (1969), see United States
v. Robinson, 414 U.S. 218 (1973), and the “automobile exception” wherein “a search is not
unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant
had not been actually obtained.” United States v. Ross, 456 U.S. 798, 809 (1982). See also
Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (“[i]f a car is readily mobile and probable cause
exists to believe it contains contraband, the Fourth Amendment . . . permits police to search the
vehicle without more.”).
        Both exceptions applied under these circumstance. The police had probable cause to arrest
Coleman based on their prior observations, his rapid flight from police, and his subsequent
production of marijuana from his pocket. These facts rendered the search one incident to a lawful
arrest. Although Coleman now complains that this exception can apply only after the police have
formally arrested a suspect, the exception actually applies once the police are in possession of
probable cause to make a lawful arrest. It is immaterial that Coleman was not formally taken into
custody until after his car was searched because of “the traditional common-law rule that probable
cause justifies a search and seizure.” Whren v. United States, 517 U.S. 806, 819 (1996). It is
equally immaterial that Coleman was ultimately charged with an offense different than that which
provided the legitimate probable cause justifying the search. Id. at 812-13. Moreover, Coleman’s
production of the marijuana provided the police with probable cause to believe that the vehicle
contained further contraband, and so the search was simultaneously authorized by the automobile
exception.
        Furthermore, Coleman consented to the search. “It is well-settled that a person may waive
his Fourth Amendment rights by consenting to a search. Consent to a search may be in the form of
words, gesture, or conduct. In whatever form, consent has effect only if it is given freely and
voluntarily.” United States v. Carter, 378 F.3d at 587 (citations and internal quotation marks
omitted). See Aquino v. Honda of Am., Inc., 158 F. App’x 667, 672 (6th Cir. 2005). Valid consent
must “be determined from the totality of all the circumstances.” United States v. Carter, 378 F.3d
584, 587 (6th Cir. 2004) (en banc) (citations and internal quotation marks omitted), cert. denied, 543
U.S. 1155 (2005) (affirming denial of motion to suppress). At the time when the police asked to
search the automobile, Coleman had not yet been placed formally under arrest, he had not been
directed to stop his car by the police, no guns had been drawn, the emergency lights had not been
activated, the police had not given any indication that he would be placed formally under arrest, and
they did not threaten him in any way to induce his consent to their search. Under these
circumstances, therefore, Coleman “freely and voluntarily” consented when he authorized the police
to search his car.
                                                  C
         Coleman was sentenced according to the Sentencing Guidelines prior to the Supreme Court’s
decision in the Booker case, and the district court did not issue an alternative sentence or suggest
that it would have issued the same sentence under an advisory scheme. The government does not
challenge Coleman’s right to resentencing. As it is unclear whether the district court treated the
Guidelines as advisory rather than mandatory, United States v. Barnett, 398 F.3d 516, 527-28 (6th
Cir. 2005), we must remand this case to the district court for resentencing in a manner consistent
with United States v. Booker, 543 U.S. 220. Of course, on remand the district court may not include
in Coleman’s criminal history any points resulting from the 1998 conviction, which has now been
No. 04-4393          United States v. Coleman                                            Page 6


definitively erased. Coleman v. Ohio Adult Parole Auth., 118 F. App’x at 952. See generally
Gentry v. Deuth, No. 05-6273, __ F.3d __, 2006 WL 2106637. On the other hand, the district court
could still, under appropriate circumstances, consider the underlying conduct leading to that
conviction pursuant to, e.g., USSG § 4A1.3(a)(2)(E), or 18 U.S.C. § 3553(a)(2)(C).
                                                III
       For the reasons stated above, we AFFIRM Coleman’s conviction for violating 18 U.S.C.
§ 922(g), AFFIRM the district court’s ruling with respect to the police search of Coleman’s
automobile, and REMAND for resentencing.
