                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                    No. 13-3421
                                   ____________

                          UNITED STATES OF AMERICA

                                          v.

                               SADIQ CALLOWAY,
                                 a/k/a Omar Mullins;
                               a/k/a Marcus Arrington

                               SADIQ CALLOWAY,
                                            Appellant
                                  ____________

                     On Appeal from United States District Court
                           for the District of New Jersey
                          (D. NJ. No. 2-08-cr-00775-001)
                         District Judge: Faith S. Hochberg
                                   ____________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 13, 2014

          Before: FISHER, VAN ANTWERPEN and TASHIMA,* Circuit Judges.

                                (Filed: July 2, 2014)
                                   ____________

                             OPINION OF THE COURT
                                  ____________



      *
       The Honorable A. Wallace Tashima, Senior Circuit Judge for the Ninth Circuit
Court of Appeals, sitting by designation.
TASHIMA, Circuit Judge.

       Appellant Sadiq Calloway (ACalloway@) was convicted of possession of a

detectable amount of heroin with intent to distribute, pursuant to 21 U.S.C. '' 841(a)(1)

& (b)(1)(C) (Count 1); using and carrying a firearm during and in relation to a drug

trafficking crime, and possessing that gun in furtherance of the crime, pursuant to 18

U.S.C. ' 924(c)(1)(A) (Count 2); and possessing a firearm and ammunition after having

been convicted of a felony, pursuant to 18 U.S.C. ' 922(g)(1) (Count 3). The conviction

was based on a firearm and drugs found on Calloway=s person during a May 22, 2008

traffic stop (the AMay 22 stop@).

       Calloway filed a pre-trial motion to suppress the evidence obtained during the

May 22 traffic stop, which the District Court denied. After trial, Calloway moved for a

new trial pursuant to Federal Rule of Criminal Procedure 33, contending that he was

incompetent to stand trial and that he received ineffective assistance of counsel. He did

not file a renewed suppression motion or otherwise raise the suppression issue after trial.

The District Court denied the Rule 33 motion.

       Calloway now appeals, asserting three arguments: (1) that this Court should order

a new trial because he received ineffective assistance of counsel; (2) that his conviction

on Count 2 must be vacated because the jury instructions on that count were flawed; and

(3) that the District Court erred in denying his suppression motion. For the reasons set

forth below, we will affirm the conviction and the orders of the District Court.



                                             2
                                              I.

       Because we write principally for the parties, who are familiar with the factual

context and legal history of this case, we will set forth only those facts that are necessary

to our analysis.

       On May 22, 2008, four Newark, New Jersey, police officers patrolling in a high

crime area of Newark heard a loud noise emanating from an approaching Cadillac and

observed the Cadillac moving at a high rate of speed in an oncoming traffic lane while

passing another vehicle. Based on the traffic infraction and the noise emanating from the

vehicle, the officers followed the Cadillac in two unmarked cars. After several blocks,

before the officers activated the siren and lights on the lead car, the Cadillac pulled over

and the driver exited. The officers, who were dressed in plainclothes and wore their

badges around their necks, approached the vehicle. Officer Horacio Lorenzo (ALorenzo@)

approached the driver, who was by then approximately ten steps away from the car, while

the other three officers approached the vehicle, in which Calloway and two other

passengers were seated. Lieutenant Eric Ingold (AIngold@) ordered the passengers to

show their hands. According to Ingold, two passengers obeyed, but Calloway did not.

Ingold then ordered the passengers to place their hands on the ceiling of the car.

According to Ingold, again, the two passengers complied, but Calloway did not. At that

time, Ingold could not see Calloway=s hands, which appeared to be around his waist area.

       Ingold testified that Calloway=s behavior indicated a safety issue. He therefore

alerted the other officers to Calloway=s behavior, saying Ahe=s moving B he=s moving, he=s

moving, he=s not showing his hands. He=s not showing his hands.@ Ingold and the other
                                              3
officers then drew their weapons and Lorenzo approached the vehicle where he, too,

observed that Calloway had not placed his hand on the ceiling of the car. At that time,

Calloway had his hands partially up, Alike half up and half down,@ and Lorenzo noticed

that he was Alooking all around, as if B as if you were looking for a way out.@ Lorenzo

reached into the car and touched Calloway=s waistband, where he felt the handle of a gun.

He took the gun, handcuffed Calloway, and removed him from the vehicle. In the search

that followed, officers found $1,350 and twenty decks of heroin in Calloway=s pockets.

       Before trial, Calloway moved to suppress the gun and the heroin recovered during

the search on the ground that the search of his person during the May 22 stop was illegal

under the Fourth Amendment. The District Court denied the motion. Calloway was then

convicted by a jury on all counts. After trial, he moved for a new trial under Rule 33.

The District Court denied the motion. Calloway timely appealed.

                                             II.

       The District Court had jurisdiction pursuant to 18 U.S.C. ' 3231. This Court has

jurisdiction pursuant to 28 U.S.C. ' 1291.

                                             III.

                                             A.

       We first consider Calloway=s ineffective assistance of counsel contention. In order

to establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S.

668 (1984), a defendant must show that Acounsel=s performance was so deficient that it

fell below an objective standard of reasonableness under prevailing professional norms@

and that the deficient performance prejudiced the defense. Buehl v. Vaughn, 166 F.3d
                                              4
163, 169 (3d Cir. 1999). On the reasonableness prong, the defendant must show that

counsel=s conduct fell outside Athe wide range of reasonable professional assistance; that

is, the defendant must overcome the presumption that, under the circumstances, the

challenged action >might be considered sound trial strategy.=@ Strickland, 466 U.S. at 689

(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). On the prejudice prong, A[t]he

defendant must show that there is a reasonable probability that, but for counsel=s

unprofessional errors, the result of the proceeding would have been different.@ Id. at 694.

       We do not address the merits of Calloway=s claim, however, because we conclude

that the claim should be brought in a collateral attack on the conviction pursuant to 28

U.S.C. ' 2255. AIneffective assistance of counsel claims are not generally entertained on

direct appeal.@ United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991).     Rather,

A[t]his court has held repeatedly, the proper avenue for pursuing such claims is through a

collateral proceeding in which the factual basis for the claim may be developed.@ Id.

(internal quotation marks omitted).

       A narrow exception to this rule exists A[w]here the record is sufficient to allow

determination of ineffective assistance of counsel, [and] an evidentiary hearing to

develop the facts is not needed.@ Id. We do not, however, find the narrow exception

applicable in this case. Calloway asserts several ways in which his trial counsel was

purportedly inadequate, all challenging counsel=s strategic decisions at trial.

       Based on the record before us, we Ahave no way of knowing whether [these] . . .

action[s] by counsel had a sound strategic motive or [were] taken because the counsel=s

alternatives were even worse.@ Massaro v. United States, 538 U.S. 500, 505 (2003).
                                              5
Because there has been no hearing at which Calloway=s trial counsel could have

Aexplained the reasons for his actions,@ United States v. Cocivera, 104 F.3d 566, 571 (3d

Cir. 1996), the record only Areflect[s] the action taken by counsel but not the reasons for

it,@ Massaro, 538 U.S. at 505. We therefore conclude that the record is not sufficiently

developed to allow us to evaluate Calloway=s ineffective assistance of counsel claim on

direct appeal. See id.; Gov=t of V.I. v. George, 741 F.2d 643, 646 (3d Cir. 1984)

(declining to address an ineffective assistance of counsel claim when the defendant made

various allegations about facts outside the record); cf. Cocivera, 104 F.3d at 571

(considering an ineffective assistance of counsel claim on direct appeal when the district

court had held a hearing on the issue part-way through trial, at which the attorney

Aexplained the reasons for his actions and confirmed his preparedness and willingness to

proceed@).

       We will, therefore, affirm the District Court=s denial of Calloway=s motion for a

new trial based on ineffective assistance of trial counsel, without prejudice to his right to

initiate a collateral proceeding for the resolution of this claim on the merits.

                                              B.

       We next consider Calloway=s argument that his conviction on Count 2 should be

vacated because the District Court=s jury instructions were flawed. We will not, however,

address the merits of Calloway=s argument because we conclude that his challenge to the

jury instructions is barred. ABecause [Calloway] made a joint request in favor of the very

instructions he now challenges, he waived his right to raise these instructional issues on

appeal under the invited error doctrine.@ United States v. Ozcelik, 527 F.3d 88, 97 n.6 (3d
                                              6
Cir. 2008). We are unpersuaded by Calloway=s contention that he should not be barred

from challenging the instructions because he merely agreed to the Government=s

proposed instructions. Contrary to Calloway=s assertion, he did not merely agree to the

Government=s instructions, but submitted a joint request with the Government proposing

the exact instructions that the District Court used at trial. He thus cannot escape the

invited error doctrine by arguing that he merely acquiesced to instructions proposed by

the Government or the court. We will, therefore, deny Calloway=s challenge to Count 2

based on purported errors in the jury instructions.

                                              C.

       Finally, we turn to Calloway=s appeal of the District Court=s denial of his motion to

suppress the firearm and drugs that were found during the May 22 stop. AWe review the

district court=s denial of the motion to suppress for clear error as to the underlying facts,

but exercise plenary review as to its legality in light of the court=s properly found facts.@

United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003) (internal quotation marks and

alterations omitted).

                                              1.

       As a preliminary matter, the Government contends that the arguments raised in

this appeal are waived because Calloway relies on different evidence than the evidence

the District Court considered in ruling on the suppression motion. A[T]o preserve an

argument and avoid waiver, the argument presented in the Court of Appeals must depend

on both the same legal rule and the same facts as the argument presented in the District

Court.@ United States v. Joseph, 730 F.3d 336, 342 (3d Cir. 2013).
                                               7
       The District Court held a hearing on Calloway=s suppression motion and, based on

the evidence adduced at that hearing, denied the motion. Calloway did not renew his

suppression motion before the District Court after trial, but now relies on evidence

adduced at trial in support of his argument that the gun and heroin should have been

suppressed. For this reason, the Government contends that Calloway=s argument on

appeal does not rely on the Asame facts as the argument presented in the District Court,@

id., and is thus waived.

       In this context, some circuits have held that the appellate court may consider the

arguments on appeal but its review is limited to the record that was before the lower court

when it ruled on the suppression motion and it may not consider evidence adduced at

trial. See, e.g., United States v. Bass, 661 F.3d 1299, 1303-04 (10th Cir. 2011); United

States v. Hicks, 978 F.2d 722, 724-25 (D.C. Cir. 1992). We do not decide, however,

whether Calloway may appeal a suppression motion based on new evidence adduced at

trial because, as discussed below, Calloway=s argument that the evidence derived from

the May 22 stop should be suppressed fails even if we consider the new evidence.

                                               2.

       Under Terry v. Ohio, 392 U.S. 1 (1968), an officer may Astop and frisk@ an

individual if two circumstances are satisfied: First, the investigatory stop must be lawful;

and second, the officer must have a reasonable suspicion that the person apprehended is

armed and dangerous. See Arizona v. Johnson, 555 U.S. 323, 326-27 (2009).

       The first requirement is not at issue in this case. In the traffic-stop setting, the first

requirement is satisfied Awhenever it is lawful for police to detain an automobile and its
                                               8
occupants pending inquiry into a vehicular violation.@ Id. at 327. Because the officers

here approached the Cadillac in which Calloway was a passenger after observing it drive

at a high rate of speed in the oncoming traffic lane, the stop was lawful. See United

States v. Moorefield, 111 F.3d 10, 12 (3rd Cir. 1997) (AIt is well-established that a traffic

stop is lawful under the Fourth Amendment where a police officer observes a violation of

the state traffic regulations.@ (citing Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)).

       Calloway contends that, even if the stop was lawful, Lorenzo did not have a

reasonable suspicion that Calloway was armed and dangerous; therefore, the second

Terry requirement is not satisfied. We disagree. A[A] pat-down for weapons can occur

only where the officer is >able to point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant that intrusion.=@ Id.

at 13 (quoting Terry, 392 U.S. at 21). AThe officer need not be absolutely certain that the

individual is armed; the issue is whether a reasonably prudent man in the circumstances

would be warranted in the belief that his safety or that of others was in danger.@ Terry,

392 U.S. at 27. We conclude that the officers here have pointed to specific and

articulable facts showing a reasonable suspicion that Calloway was armed and dangerous.

       The traffic stop occurred in a high crime area where an officer had been shot the

previous year. While not enough to create suspicion in itself, that a stop occurred in an

unsafe or high crime area can, along with other factors, support the reasonable inference

that an individual is armed and dangerous. See Illinois v. Wardlow, 528 U.S. 119, 124

(2000) (noting that the fact that a stop occurred in a high crime area is Aamong the

relevant contextual circumstances in a Terry analysis@).
                                              9
       Under this Court=s precedent, the circumstances here are sufficient to justify a

Terry frisk. We confronted a similar set of circumstances in Moorefield and concluded

that the frisk of a passenger during a traffic stop was permissible under Terry. See 111

F.3d at 14. There, the defendant made Afurtive hand movements and refus[ed] to obey

the officers= orders.@ Id. In response to instructions to the defendant to remain in the car

with his hands in view, he Aattempted to exit the vehicle and then raised and lowered his

hands several times . . . and appeared to shove something down toward his waist.@ Id.

The frisking officer testified that this Abehavior was consistent with the behavior of a

person trying to conceal something.@ Id.

       Although Calloway did not attempt to exit the vehicle, his other actions, like those

of the defendant in Moorefield, Aembodied the kind of specific, articulable facts that

Terry contemplates and, therefore, warranted a pat-down search for weapons.@ Id. As in

Moorefield, Calloway repeatedly disobeyed an order to show his hands and officers

observed him with his hands near his waist and then his hands partially in the air. Also as

in Moorefield, Ingold testified that this behavior creates a threat to officers effectuating a

traffic stop. Id.; see also Johnson, 555 U.S. at 330 (noting that Atraffic stops are

especially fraught with danger to police officers [and] [t]he risk of harm to both the

police and the occupants of the stopped vehicle is minimized . . . if the officers routinely

exercise unquestioned command of the situation@ (internal quotation marks, citations, and

alterations omitted)). In addition to these circumstances, the officers observed that

Calloway was looking around in a way that indicated he might attempt to escape and the

stop occurred in a high-crime area. See Moorefield, 111 F.3d at 14.
                                              10
       While Lorenzo, who conducted the frisk, did not observe all of the suspicious

behavior personally, the other officers communicated Calloway=s general behavior to

him; Lorenzo could therefore rely on the observations of his fellow officers, as well as on

his own observations, in assessing the risk that Calloway was armed and dangerous. See

United States v. Whitfield, 634 F.3d 741, 745-46 (3d Cir. 2010) (holding that the

reasonableness of a Terry stop and frisk may be measured by the collective knowledge of

the officers at the scene, who Awork[] together as a unified and tight-knit team@).

Accordingly, we conclude that the totality of the circumstances justified Lorenzo=s frisk

of Calloway. See Moorefield, 111 F.3d at 14; Whitfield, 634 F.3d at 744-46 (concluding

that a reasonable suspicion of criminal activity existed when officers making a stop in a

high crime area observed that the defendant refused to comply with orders and made a

Afurtive gesture@ in an Aapparent effort to protect something@). We will, therefore, affirm

the District Court=s denial of Calloway=s motion to suppress the evidence found as a

result of the May 22 stop.

                                            IV.

       For the foregoing reasons, we will affirm Calloway=s conviction under Count 2

and affirm the District Court=s orders denying Calloway=s motion for a new trial and his

motion to suppress.




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