         09-1675-cr
         United States v. Hightower


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 2 nd day of August, two thousand and ten.
 5
 6       PRESENT: BARRINGTON D. PARKER,
 7                RICHARD C. WESLEY,
 8                         Circuit Judges,
 9                RICHARD W. GOLDBERG,
10                         Judge. *
11
12
13       UNITED STATES OF AMERICA,
14
15                                       Appellee,
16
17                       -v.-                                                   09-1675-cr
18
19       RANDY HIGHTOWER,
20
21                                       Appellant.
22
23
24       FOR APPELLANT:                  RANDY HIGHTOWER, pro se, Allenwood, PA;
25                                       Robert J. Boyle, standby counsel, New
26                                       York, NY.
27
28       FOR APPELLEE:                   EDWARD Y. KIM and VIRGINIA CHAVEZ ROMANO,
29                                       Assistant United States Attorneys, for
30                                       Preet Bharara, United States Attorney for


                 *
                 The Honorable Richard W. Goldberg, of the United States Court of
         International Trade, sitting by designation.
1                      the Southern District of New York, New
2                      York, NY.
3
4         Appeal from the United States District Court for the
5    Southern District of New York (Rakoff, J.).
6
7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

8    AND DECREED that the judgment of the United States District

9    Court for the Southern District of New York be AFFIRMED.

10       Appellant, Randy Hightower, appeals from a judgment of

11   conviction entered on April 15, 2009, in the United States

12   District Court for the Southern District of New York,

13   following a three-day bench trial.   Appellant was convicted

14   of being a felon in possession of a firearm in violation of

15   18 U.S.C. § 922(g)(1).   On appeal, Hightower argues that the

16   district court erred in denying his motion to suppress all

17   evidence seized from him on the night of his arrest, namely

18   the gun that forms the basis for his conviction, and an

19   incriminating statement he made to the responding officers.

20   Appellant further contends that the evidence was

21   insufficient to support his conviction.   We assume the

22   parties’ familiarity with the underlying facts, the

23   procedural history, and the issues presented for review. 1



         1
           Standby counsel’s motion for leave to file a
     supplemental reply brief is granted.

                                   2
1        In evaluating the district court’s ruling on the

2    suppression motion, we review factual findings for clear

3    error.    United States v. Rodriguez, 356 F.3d 254, 257 (2d

4    Cir. 2004).    We review the district court’s determination as

5    to when the appellant was seized de novo, as this is a

6    question of law.    United States v. Baldwin, 496 F.3d 215,

7    218 (2d Cir. 2007).    We conclude that this Court’s decision

8    in United States v. Baldwin governs this case.

9        “[T]o comply with an order to stop — and thus to become

10   seized — a suspect must do more than halt temporarily; he

11   must submit to police authority, for there is no seizure

12   without actual submission.”    Id. at 218 (internal quotation

13   marks omitted).    Although appellant did momentarily stop

14   when approached by the responding officers, “[a] reasonable

15   person standing in [Hightower’s] place would have felt bound

16   to stop, and having stopped and stayed, would be able to

17   argue suppression on the ground of a baseless seizure.”       Id.

18   at 219.    However, Hightower fled and is, therefore, not

19   entitled to have the evidence at issue suppressed.    See

20   United States v. Valentine, 232 F.3d 350, 359 (3d Cir.

21   2000).

22       Appellant’s sufficiency challenge is without merit.



                                    3
1    Reviewing the evidence in the light most favorable to the

2    government, we conclude that it was clearly sufficient to

3    sustain appellant’s conviction.   See United States v.

4    Gaskin, 364 F.3d 438, 459-60 (2d Cir. 2004).

5        We have considered all of appellant’s arguments on

6    appeal, 2 and find them to be without merit.   Accordingly,

7    the judgment of the district court is hereby AFFIRMED.

 8
 9                               FOR THE COURT:
10                               Catherine O’Hagan Wolfe, Clerk
11
12




         2
           We have also considered the arguments of standby
     counsel.

                                   4
