                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0375n.06
                                                                                           FILED
                                           No. 10-3907
                                                                                       Apr 06, 2012
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                    ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
DEMETRIUS WILLIAMS,                                   SOUTHERN DISTRICT OF OHIO

       Defendant-Appellant.

                                               /



BEFORE:        BATCHELDER, Chief Judge; CLAY and GILMAN, Circuit Judges.

       CLAY, Circuit Judge. Defendant Demetrius Williams appeals from separate orders of the

district court denying his motion to suppress and convicting him of a nonexistent federal crime with

respect to Count One. Williams was indicted on two counts, possession of a firearm in furtherance

of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count One), and

possession with intent to distribute more than five grams of crack cocaine, in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(C) (Count Two). Williams moved to suppress evidence related to his arrest,

which the district court denied. He then entered a conditional guilty plea to both counts, but

preserved his right to appeal the denial of his motion to suppress. For the reasons that follow, we

AFFIRM the district court’s order denying the motion to suppress but VACATE Williams’

conviction with respect to Count One and REMAND for further proceedings.
                                            No. 10-3907

                                         BACKGROUND

        On September 5, 2007, the Cincinnati Police Department’s District Four Violent Crimes

Squad executed undercover “drug buy-busts” in the Walnut Hills area of Cincinnati, known for its

high level of crime. The undercover operation involved officers, dressed in plain clothes, who

bought narcotics from individuals and then arrested them.

        Cincinnati Police Officer Mark Longworth was a part of the undercover operation. Prior to

his participation in the buy-busts, he received several $20 bills for use in the operation, and he made

copies of the bills. A confidential informant picked up Officer Longworth in an unmarked car, and

they drove together down Concord Street. Williams flagged their car down, approached Officer

Longworth on the passenger side and solicited drug sales. Officer Longworth requested $20 worth

of crack cocaine. Williams handed him a small rock of cocaine, and Officer Longworth handed

Williams one of the $20 bills. Once the transaction was complete, the informant and Officer

Longworth drove away. They noted that Williams continued walking southbound on Concord Street.

(Id.)

        Officer Longworth immediately broadcast a description of Williams. He described Williams’

physique, gender, race, and clothing, including his white t-shirt, long blue jeans, and green tennis

shoes. Officer Longworth also stated that Williams was walking southbound on Concord.

        Cincinnati Police Officers Derrick Edwards and Ken Grubbs were on duty at the time and

received Longworth’s description of Williams. They drove along Concord in an unmarked car and

spotted Williams, who matched the description given by Longworth, walking southbound on

Concord. Approximately one and a half minutes elapsed between the description broadcast and the


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officers’ sighting. Officer Edwards exited his vehicle and identified himself to Williams as a police

officer. Williams then turned northbound on Concord and ran. He quickly turned eastbound on the

next street. Officer Edwards chased Williams on foot and continued to shout “stop running” and

“police.”

       Once Officer Edwards turned the corner and began to run eastbound, he “observed Mr.

Williams reaching in his waistband while he was facing” him. Officer Edwards altered his direction

so that Williams would not see him. Officer Edwards “saw him reach in his waistband and pull out

a dark object. It appeared to be some kind of handgun . . . .” Officer Edwards then pulled out his

own gun and continued to observe Williams from a ten to fifteen foot distance. Williams dropped

the item to the ground, and Officer Edwards “heard metal hit concrete.” Williams then ran

eastbound, and Officer Edwards re-holstered his weapon and continued to chase him. Officer

Edwards lost Williams when Williams ran through a residential yard, and Officer Edwards’ attempt

to taser him failed. Officer Edwards then stopped chasing Williams and broadcast the direction that

Williams was running. He returned to the place where Williams dropped the item about a minute

earlier and found a loaded Llama 9mm pistol.

       Another Officer, Officer Asbury, caught Williams. Officer Grubbs assisted in the arrest and

extracted a $20 bill from Williams’ pocket as well as a baggie of crack cocaine. It was later

discovered that the serial number on the $20 bill matched the serial number on one of the bills

photocopied by Officer Longworth prior to the buy-bust. The $20 bill was returned to the police

department and was not offered as evidence at the suppression hearing.




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       Officer Longworth also arrived at the arrest scene and confirmed that Williams was the

individual from whom he purchased the crack cocaine.

       In January 2008, a federal grand jury indicted Williams on four counts. On April 2, 2008,

Williams filed a pro se motion to suppress all evidence and police statements against him. Williams

was appointed counsel, and counsel filed a new motion to suppress on August 7, 2008. The district

court denied both motions on September 4, 2008.

       On September 26, 2008, Williams filed a plea agreement, and three days later, the

government filed a superseding information charging Williams with only two counts: possession of

a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A) (Count

1), and possession with intent to distribute more than five grams of crack cocaine, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(C) (Count 2).

       Williams was appointed new counsel and filed a motion to reconsider the district court’s

order denying the motion to suppress. On December 16, 2008, the district court denied the motion

to reconsider.

       On February 12, 2009, Williams filed a conditional plea agreement, pleading guilty to the

two counts in the superseding information but preserving his right to appeal the denial of his motion

to suppress.1 On July 27, 2010, the district court entered judgment against Williams and sentenced




       1
         The superseding information charged Williams with “possession of a firearm in furtherance
of a drug trafficking crime.” The plea agreement and judgment stated the crime as “possession of
a firearm during and in relation to a drug trafficking offense.” None of the parties or the court
noticed the change in language until the government raised the issue on appeal.

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him to 120 months of imprisonment (60 months on each count, running consecutively) and five years

of supervised release (five years on each count, running concurrently). Williams timely appealed.

                                           DISCUSSION

        A.      Motion to Suppress

        In considering a denial of a motion to suppress, we review the district court’s factual findings

for clear error and its legal conclusions de novo. United States v. Gross, 550 F.3d 578, 582 (6th Cir.

2008). “[T]he district court’s application of the law to the facts, such as a finding of probable cause,

is reviewed de novo.” United States v. Pasquarille, 20 F.3d 682, 685 (6th Cir. 1994) (citing United

States v. Thomas, 11 F.3d 620, 627 (6th Cir. 1993)). “Where a district court denies a motion to

suppress, this court considers the evidence in the light most favorable to the government.” United

States v. Hinojosa, 606 F.3d 875, 880 (6th Cir. 2010) (citing United States v. Carter, 378 F.3d 584,

587 (6th Cir. 2004) (en banc)) (internal alterations and quotation marks omitted).

                1.      Legal Framework

        The Fourth Amendment guarantees individuals the right to be free from “unreasonable

searches and seizures” of “their persons, houses, papers and effects.” U.S. Const. amend. IV.

Searches and seizures must be based on “probable cause, supported by Oath or affirmation.” Id. The

Supreme Court has interpreted the Fourth Amendment to require police officers to obtain search and

arrest warrants, supported by affidavits that offer probable cause. See United States v. United States

Dist. Ct., 407 U.S. 297, 315–16 (1972); Ker v. California, 374 U.S. 23, 34 (1963). Of course, the

warrant requirement is subject to “a few specifically established and well-delineated exceptions.”

Katz v. United States, 389 U.S. 347, 357 (1967).


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                                           No. 10-3907

       “The Supreme Court has identified three types of reasonable, and thus permissible,

warrantless encounters between the police and citizens: (1) consensual encounters in which contact

is initiated by a police officer without any articulable reason whatsoever and the citizen is briefly

asked questions; (2) a temporary involuntary detention or Terry stop which must be predicated upon

‘reasonable suspicion’; and (3) arrests which must be based upon ‘probable cause.’” United States

v. Pearce, 531 F.3d 374, 380 (6th Cir. 2008) (citing United States v. Alston, 375 F.3d 408, 411 (6th

Cir. 2004)). This third circumstance requires that an arresting officer has probable cause to believe

that the arrestee has committed or is committing a crime. Pearce, 531 F.3d at 380 (citing Devenpeck

v. Alford, 543 U.S. 146, 152 (2004)). “Probable cause exists if the facts and circumstances known

to the officer warrant a prudent man in believing that the offense has been committed.” Henry v.

United States, 361 U.S. 98, 102 (1959). “Whether probable cause exists depends upon the

reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the

arrest.” Devenpeck, 543 U.S. at 152. If an officer arrests an individual without probable cause, the

evidence obtained in the course of the unconstitutional arrest is inadmissible. Mapp v. Ohio, 367

U.S. 643, 654 (1961); Pearce, 531 F.3d at 381.

       We have held that if officers have reasonable suspicion that an individual has committed or

is committing a crime, and when approached by officers the individual flees or attempts to flee, the

reasonable suspicion “ripens” into probable cause. United States v. Dotson, 49 F.3d 227, 230–31

(6th Cir. 1995) (providing cases); see United States v. Moore, 390 F. App’x 503, 508–10 (6th Cir.

2010); United States v. McCoy, 155 F. App’x 199, 201–02 (6th Cir. 2005) (holding that a matching

description plus flight created probable cause to support the arrest); Weaver v. Shadoan, 340 F.3d


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398, 409–10 (6th Cir. 2003) (noting that “headlong flight from police presence is the consummate

act of evasion and suggestive of wrongdoing”); United States v. Bowden, No. 96-5403, 1997 U.S.

App. LEXIS 19153, at *9 (6th Cir. July 18, 1997) (holding that “reasonable suspicion blossomed

into probable cause to arrest” when the defendant who matched a radioed description fled officers

after being confronted).

               2.      Application

       Williams argues that the officers did not have probable cause to arrest him. Williams also

asserts two bases for why the officers lacked probable cause: (1) none of the testifying officers saw

Williams with a gun, and (2) the government failed to produce the twenty dollar bill used as “buy-

money” in the drug transaction that connected Williams to the crime.

       Testimony from the officers at the suppression hearing showed that Williams matched the

description of the drug seller given by Officer Longworth immediately after Officer Longworth

bought cocaine from him; the description included Williams’ build, race, gender, and clothing,

including his white tee-shirt, long blue jeans, and tennis shoes with green coloring. Williams was

also walking southbound on Concord, the street and direction that Officer Longworth stated that he

would be walking. At this point a prudent officer would have reasonable suspicion that Williams

was the drug seller described by Officer Longworth.

       Once Officer Edwards approached Williams and informed him that he was a police officer,

Williams fled. Williams continued to run even after being chased and being told to stop multiple

times. The officers’ reasonable suspicion ripened into probable cause once Williams fled. See




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Dotson, 49 F.3d at 230–31; McCoy, 155 F. App’x at 201–02; Bowden, 1997 U.S. App. LEXIS

19153, at *9.

          Williams’ arguments against probable cause are not well taken. First, although none of the

officers could confirm that Williams had a gun, Officer Edwards saw him discard an object that he

believed to be a gun. In any event, seeing Williams with a gun was not a prerequisite for probable

cause, and there was sufficient evidence supporting probable cause to arrest Williams even without

his possession of a weapon. Second, Williams’ argument regarding the government’s inability to

produce the twenty-dollar bill to connect him to the crime is irrelevant to whether or not the officers

had probable cause to arrest Williams in the first instance, because the bill was found only after

Williams was arrested and was not relied upon by the officers as a basis for probable cause for the

arrest.

          We therefore find that the district court did not err in denying the motion to suppress, because

Williams’ arrest was supported by probable cause.

          B.      Count One Firearm Offense

          We generally review de novo a claim that an indictment is insufficient or was impermissibly

amended or varied. United States v. Slayton, 366 F. App’x 650, 656 (6th Cir. 2010); United States

v. Combs, 369 F.3d 925, 934 (6th Cir. 2004). This includes situations where an indictment was

sufficient and correctly charged the defendant with a crime, but later instructions or the judgment

itself reflects an offense different from that in the indictment. Combs, 369 F.3d at 935–36.

However, because this argument was not raised before the district court, we review it for plain error.

United States v. Hunter, 558 F.3d 495, 501 (6th Cir. 2009).


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                                          No. 10-3907

       On appeal, the parties agree that while the superseding information sufficiently charged

Williams with a federal crime under Count One, the plea agreement and the district court judgment

incorrectly recorded the language of Count One and, in doing so, failed to convict Williams of a

federal crime with respect to Count One. The parties further agree that the conviction under Count

One should be vacated and remanded for further proceedings.

       We concur that the plea agreement and the district court judgment inadvertently modified the

language used in Count One of the superseding information. The superseding information charged

Williams with violating 18 U.S.C. § 924(c)(1)(A). Section 924(c)(1)(A) makes it a crime to (1) use

or carry a firearm during and in relation to a drug trafficking crime or (2) possess a firearm in

furtherance of a drug trafficking crime. These offenses are separate and distinct. See Combs, 369

F.3d at 933–34. The superseding information charged Williams with “possession of a firearm in

furtherance of a drug trafficking crime,” in violation of the second clause of § 924(c)(1)(A). The

plea agreement and judgment, however, convicted Williams of “possession of a firearm during and

in relation to a drug trafficking offense.” That wording results from an impermissible combination

of the language of the first and second clauses of § 924(c)(1)(A). See Combs, 369 F.3d at 933–34

(noting that “possession of a firearm during and in relation to a drug trafficking crime” is not a

chargeable offense).

       We find that the district court improperly amended the superseding information when it

“literally altered” the superseding information and sentenced Williams for a nonexistent crime. See

Hunter, 558 F.3d at 502; United States v. Castano, 543 F.3d 826, 837 (6th Cir. 2008); Combs, 369

F.3d at 935–36. This amendment is per se prejudicial to Williams and constitutes plain error by the


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district court. See Hunter, 558 F.3d at 502; Combs, 369 F.3d at 936. The conviction under Count

One must be vacated and remanded to the district court for further proceedings.

                                        CONCLUSION

       For the reasons discussed above, this Court AFFIRMS the district court’s order denying the

motion to suppress but VACATES Count One of the district court judgment and REMANDS for

further proceedings.




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