                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 06a0833n.06
                           Filed: November 15, 2006

                                           No. 04-5117

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellee,                               )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE WESTERN
v.                                                       )         DISTRICT OF TENNESSEE
                                                         )
DEANDRE TOWNSEND,                                        )                  OPINION
                                                         )
       Defendant-Appellant.                              )




BEFORE:        BATCHELDER and McKEAGUE, Circuit Judges; and ACKERMAN, District
               Judge.*

       McKEAGUE, Circuit Judge. After a jury trial, defendant-appellant Deandre Townsend

was found guilty of being a felon in possession of a firearm. Because he had three prior qualifying

convictions, he was sentenced as a career criminal under the Sentencing Guidelines to 235 months’

imprisonment, the lowest sentence within the applicable Guideline range. On appeal, Townsend

contends the district court erred in allowing the prosecution to introduce certain evidence at trial.

He also objects to the district court’s determination that three of his prior convictions were for

“violent felonies,” subjecting him to the career offender sentencing enhancement.

_________________________

        * Honorable Harold A. Ackerman, Senior United States District Judge for the District of New
Jersey, sitting by designation.
No. 04-5117
United States v. Townsend

After careful consideration, we conclude that none of Townsend’s claims of error has merit. His

conviction will therefore be affirmed. However, the judgment of sentence must be vacated and the

case remanded for resentencing in accordance with United States v. Booker, 543 U.S. 220 (2005).

                    I. FACTUAL AND PROCEDURAL BACKGROUND

       Early in the morning of June 20, 2002, the Memphis Police Department received a

“suspicious person” complaint from an employee of an Amoco service station reporting that a

vehicle, a Ford Explorer, had been parked at a gas pump for some time and its driver seemed to be

asleep or passed out. At 5:30 a.m., Officers James Gaylor and Paul Bishop, in response to

instructions from dispatch, arrived at the Amoco station to find a Ford Explorer parked in front of

an open gas pump, engine off. Its only occupant, later determined to be Deandre Townsend, was

asleep or otherwise incapacitated, slumped in the driver’s seat. The officers parked their patrol car

ten to fifteen feet behind the Explorer before investigating further.

       Officer Gaylor approached the vehicle from the passenger side, while Officer Bishop went

to the driver’s side. After Gaylor determined the car was not running, he “maintained a watch” while

his partner took the lead. Bishop first addressed the occupant verbally, but got no response. With

the aid of a flashlight, he observed what he thought was a pistol lodged between the driver’s seat and

the center console.1 Believing that the occupant was either asleep or intoxicated, Bishop proceeded

to open the car door, reach across the motionless occupant, and remove the keys from the ignition.



       1
         Bishop thought Gaylor had acknowledged seeing the handgun also, but as it turned out,
Gaylor did not actually observe the handgun until moments later, when Townsend was ordered out
of the vehicle.

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No. 04-5117
United States v. Townsend

This was in accordance with what Gaylor characterized as “common practice” in encountering

people found sleeping behind the wheel. He explained that “when you wake somebody up, a lot of

times, they just want to leave right then.” Hence, the key removal practice is a safety precaution, to

ensure the driver does not “wake up with a startle and take off on us.” Suppression hearing tr. pp.

11-12, JA 37-38.

       In fact, Townsend did awake with a startle just as Bishop removed the keys. He immediately

reached for the ignition as though to start the vehicle and then tussled with the officers, until he

realized they were police officers. As Bishop began to remove Townsend from the vehicle – for

officer safety and to determine whether he needed medical attention – Gaylor, too, observed what

appeared to be the handle of a handgun protruding from between the driver’s seat and the console.

For officer safety, the officers handcuffed Townsend and placed him in the back of their patrol car

pending further investigation.

       Bishop retrieved the handgun from the Explorer. It was loaded. Bishop conducted a visual

search or “sweep” of the vehicle’s interior and then carried the handgun back to the patrol car. The

officers ran a check for outstanding warrants and driving history. They discovered that Townsend

had outstanding warrants for assault and for violation of a personal protection order that prohibited

him from possessing a firearm. Officer Gaylor subsequently informed Townsend that he was under

arrest for possession of a firearm.

       On November 25, 2002, a federal grand jury in the Western District of Tennessee indicted

Townsend for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Defendant

Townsend filed a pretrial motion to suppress all evidence gathered during the arrest as fruits of an

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No. 04-5117
United States v. Townsend

illegal search. The magistrate judge conducted an evidentiary hearing and prepared a report and

recommendation that was adopted by the district court. In relevant part, Townsend’s motion to

suppress the pistol was denied.

       In the ensuing trial, Townsend objected to the introduction of a tape-recorded telephone

conversation between himself and his mother while he was detained in the local jail. The

conversation pertained to the handgun seized from the Explorer. The trial court overruled the

objection.

       The jury found Townsend guilty of being a felon in possession of a firearm under 18 U.S.C.

§ 922(g) . At sentencing, the district court determined that Townsend had three prior violent felony

convictions. He was classified as an armed career criminal under 18 U.S.C. § 924(e), resulting in

a significant sentence enhancement under the Sentencing Guidelines. No downward departures were

granted. The district court sentenced Townsend to a prison term of 235 months. On appeal,

Townsend challenges the denial of his motion to suppress, the admission of the tape recorded

conversation, and his classification by the district court as an armed career criminal.

                                          II. ANALYSIS

       A. Denial of Motion to Suppress

       In reviewing the denial of the motion to suppress, we review the district court’s factual

findings for clear error and its conclusions of law de novo. United States v. Montgomery, 377 F.3d

582, 585 (6th Cir. 2004); United States v. Harris, 192 F.3d 580, 584 (6th Cir. 1999). We must view

the evidence in the light most favorable to the government. Montgomery, 377 F.3d at 585. A

finding is not “clearly erroneous” unless the reviewing court, on considering the entire evidence, is

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No. 04-5117
United States v. Townsend

left with the definite and firm conviction that a mistake has been committed. United States v.

Vasquez, 352 F.3d 1067, 1070 (6th Cir. 2003).

       Defendant Townsend first challenges the finding that the officers saw the handgun prior to

entering the Explorer. Townsend maintains that because Officer Gaylor was undisputedly in the

better position to view the handgun, his admitted initial failure to see the gun, rather than Officer

Bishop’s reported observation of it, should have been deemed more credible. If Bishop did not

actually observe the handgun, then, Townsend argues, his actions of reaching into the vehicle and

removing the keys from the ignition, and then removing Townsend from the Explorer, were more

intrusive than warranted by the purposes of the investigative stop. That is, the officers are said to

have effectively seized Townsend without reasonable suspicion of criminal activity, in violation of

his Fourth Amendment rights. Consequently, Townsend argues, the fruit of these improper actions,

the handgun, should have been suppressed.

       While the record discloses that Gaylor had the better position from which to view the gun,

this does not foreclose the possibility that Bishop, with the aid of his flashlight, actually observed

the handgun first. Considering that Bishop was closest to Townsend, and his account of seeing the

handgun before entering the vehicle is not disputed, it was not unreasonable for the district court to

accept his testimony as truthful, even though it was not corroborated by Gaylor’s initial observations.

After all, Gaylor, too, observed the handgun within seconds after Bishop reached into the vehicle.

The handgun was actually there; it was not a fabricated pretext to justify overreaching by the police.

Hence, the district court’s finding that Bishop saw the handgun prior to reaching into the Explorer

is not clearly erroneous.

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No. 04-5117
United States v. Townsend

       Given the observed presence of the gun, together with the other suspicious circumstances that

prompted the officers’ investigation, the precautions taken by the officers to secure their safety, as

well as the safety of Townsend and others, were clearly reasonable and justified.          Townsend

nonetheless insists that Bishop’s acts of removing the keys from the ignition and ordering him out

of the vehicle constituted an unwarranted and impermissible seizure without reasonable suspicion.

       There are three types of permissible encounters between the police and citizens: “(1) the

consensual encounter, which may be initiated without any objective level of suspicion; (2) the

investigative detention, which, if non-consensual, must be supported by a reasonable, articulable

suspicion of criminal activity; and (3) the arrest, valid only if supported by probable cause.” United

States v. Waldon, 206 F.3d 597, 602 (6th Cir. 2000) (quoting United States v. Avery, 137 F.3d 343,

352 (6th Cir. 1997).    In a consensual encounter, “law enforcement officers may approach an

individual and ask general questions without having any reasonable suspicion of criminal activity,

so long as the officers refrain from the type of intimidating behavior that would lead a reasonable

person to believe that the person was not free to leave.” Id., 206 F.3d at 603.

       Here, in response to a suspicious person complaint, the officers approached the parked

Explorer to make inquiry. Consistent with the complaint, the officers observed that the occupant

appeared to have fallen asleep or passed out in the driver’s seat. Bishop saw what he thought was

the handle of a pistol next to the driver’s seat. He addressed the occupant verbally, but received no

response. When he opened the door of the Explorer to remove the keys from the ignition for safety

reasons, the occupant, Townsend, awoke with a startle, grabbed for the keys, and tussled with the

officers before he realized who they were. Until Bishop reached for the keys, this can only be

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No. 04-5117
United States v. Townsend

characterized as having been a permissible consensual encounter. Although Townsend, being asleep,

could hardly have consented to the encounter, the officers’ plain view observations in a public place

did not entail any impermissible intrusion into Townsend’s privacy.

       Thereafter, even if Bishop’s mere seizure of Townsend’s keys from the ignition were

construed as signaling restraint of Townsend’s freedom to leave and commencement of a temporary

investigative detention, his observations had by then established the requisite reasonable suspicion

to justify the intrusion. “Reasonable suspicion” is more than an ill-defined hunch; it has been

defined as requiring “articulable reasons” and “a particularized and objective basis” for suspecting

a particular person of involvement in criminal activity. United States v. Richardson, 385 F.3d 625,

630 (6th Cir. 2005). In determining whether Officers Bishop and Gaylor had reasonable suspicion,

we consider the totality of the circumstances and view the evidence using a common sense approach,

as understood by those in the field of law enforcement. Id.

       Townsend had been asleep at the wheel of a parked vehicle in front of an open-for-business

gas pump for an extended period of time. He did not respond to verbal inquiry. Under these

circumstances, it was not unreasonable for Bishop to suspect that Townsend had not simply dozed

off, but was intoxicated, and may have driven the vehicle, or may have been about to drive the

vehicle, while intoxicated – conduct potentially constituting a criminal offense. Moreover, the

observed presence of a handgun within Townsend’s reach clearly enhanced the suspiciousness of the

circumstances and called for swift and sure action. See Maryland v. Wilson, 519 U.S. 408, 414

(1997) (recognizing that risk of harm to both police and occupants is minimized if officers routinely

exercise unquestioned command of the situation). Considering the totality of the circumstances

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No. 04-5117
United States v. Townsend

using a common sense approach, we conclude the officers had reasonable suspicion to justify an

investigative detention.

         Once the encounter became an investigative detention, the officers were obliged to employ

“the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short

period of time.” United State v. Lopez-Arias, 344 F.3d 623, 627 (6th Cir. 2003) (quoting Florida

v. Royer, 460 U.S. 491, 500 (1983)).      The scope of the permissible intrusion is limited by the

circumstances that initially justified the stop. Id. Otherwise, the seizure could become an arrest

which must be supported not just by reasonable suspicion, but by probable cause. There is, however,

no bright line standard for determining when an investigative detention becomes an arrest. Id.

         Here, seizure of the car keys from the ignition was a minimal intrusion, a reasonable and

prudent safety precaution. Because Townsend had not responded to verbal inquiry, the nature of his

condition was unknown to the officers and they could not know how he would react when he awoke.

Further, because Bishop had observed the handgun in plain view readily accessible to Townsend,

his efforts to immediately restrain Townsend and remove him from the vehicle were also reasonable

and no more intrusive than necessary under the circumstances. See Bennett v. City of Eastpointe,

410 F.3d 810, 822 (6th Cir. 2005) (observing that concern for officer safety permits a variety of

police responses in differing circumstances, including ordering a driver out of a car during a traffic

stop).

         Once Townsend was removed from the Explorer, moreover, the officers were justified in at

least temporarily seizing the handgun, even though it was not obviously contraband. Bishop was

lawfully positioned when he first observed the handgun in plain view; the handgun is among those

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No. 04-5117
United States v. Townsend

“objects dangerous in themselves” which may be seized without a warrant; and the seizure was

justified by legitimate concern for police safety. See United States v. Bishop, 338 F.3d 623, 626 (6th

Cir. 2003). Hence, at the time the handgun was seized, no infringement of Townsend’s Fourth

Amendment rights had occurred. The district court properly denied the motion to suppress the

handgun.2

       B. Objection to Admission of Tape-Recorded Conversation

       Townsend contends that the district court erred by admitting into trial evidence his mother’s

side of a tape-recorded conversation with him during his pretrial detention in the local jail. He

argues that his mother’s words are hearsay, that the conversation is too ambiguous to evidence any

adoptive admissions on his part, and that any probative value was outweighed by its prejudicial

effect. We review evidentiary decisions for abuse of discretion, while the trial court’s legal

conclusion concerning whether a statement is hearsay is reviewed de novo. United States v. Jacob,

377 F.3d 573, 580 (6th Cir. 2004).

       The government sought to introduce the recorded conversation as bearing on defendant

Townsend’s knowing possession of the handgun. The import of the conversation is not crystal

clear.3 Reviewed as a whole, however, the brief exchange between Townsend and his mother is


       2
        Even if the officers’ conduct during the investigative detention were deemed to have been
more intrusive than reasonably necessary, it is clear that denial of the motion to suppress would have
nonetheless been warranted under the inevitable discovery rule. See United States v. Keszthelyi, 308
F.3d 557, 573-74 (6th Cir. 2002).
       3
           The conversation included, most relevantly, the following:

       Mother:           I bet you keep that gun out your car now, won’t you?

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No. 04-5117
United States v. Townsend

probative, as the district court concluded, of (1) Townsend’s possible motive for possessing the

handgun (i.e., personal protection while carrying approximately $380); and (2) Townsend’s knowing

possession of the handgun. The district court concluded that Townsend’s side of the conversation

was admissible as non-hearsay statements offered against a party pursuant to Fed. R. Evid.

801(d)(2)(A). The court held the mother’s side of the conversation was not hearsay because her



       Townsend:      Um, hum – They took it.

       ****

       Mother:        You got you another one?

       Townsend:      I got to – I just.... [unintelligible]

       ****

       Mother:        They took two hundred off you?

       ****

       Townsend:      I think about 380, something like that.

       ****

       Mother:        Huh, well you know better than to have that kind of money on you
                      anyway, Deandre.

       Townsend:      I had just took a couple thousand to the house and kept that in my
                      pocket.

       Mother:        Somebody can get killed taking that kind of money around with you.

       Townsend:      Yeah, but I was fixing to go do something though.



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No. 04-5117
United States v. Townsend

statements (substantially in the form of questions) were not offered for the truth of any matter

asserted, see Fed. R. Evid. 801(c), but to provide context, making Townsend’s side of the

conversation intelligible.

       Townsend’s challenge to the district court’s ruling is based on a mischaracterization of it.

He argues that the court held his answers to his mother’s questions were admissible as adoptive

admissions pursuant to Rule 801(d)(2)(B), rather than Rule 801(d)(2)(A).4 He maintains that, even

if his answers are considered in the context of his mother’s questions, they do not manifest his

acquiescence or belief in the premises of his mother’s questions and should not therefore have been

admitted as admissions.

       The district court clearly did not rule that Townsend’s statements were admissible as adoptive

admissions under Rule 801(d)(2)(B). The court never reached the question. It correctly recognized

that Townsend’s statements were admissible, whether or not they were “admissions” or statements

“against interest,” under Rule 801(d)(2)(A). See United States v. Stine, 313 F.3d 912 (unpub. app’x)

(6th Cir. 2002). Notwithstanding the appearance of the word “admission” in the heading of Rule

801(d)(2), there is no requirement that a party’s out-of-court statement be a confession or statement




       4
           Rule 801(d)(2) provides in relevant part as follows:

                 (d) Statements which are not hearsay. A statement is not hearsay if –
                 ....
                 (2) Admission by party-opponent. The statement is offered against a party
       and is (A) the party’s own statement, in either an individual or representative capacity
       or (B) a statement of which the party has manifested an adoption or belief in its
       truth....

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No. 04-5117
United States v. Townsend

against interest to be admissible against the party in trial. United States v. McDaniel, 398 F.3d 540,

545 n.2 (6th Cir. 2005).

       Similarly, the district court’s admission of the mother’s side of the conversation was not an

abuse of discretion. Having correctly determined that Townsend’s side of the conversation was

admissible, the mother’s side was demonstrably necessary to provide context and make Townsend’s

side intelligible to the jury. See Stine, 313 F.3d 912 (unpub. app’x.). Since the mother’s statements

and questions were not offered for the truth of any matter she asserted, they were not hearsay. Id.

       Neither can we conclude, as urged by Townsend, that the recorded conversation should have

been excluded under Fed. R. Evid. 403 because its “probative value was substantially outweighed

by the danger of unfair prejudice.” As used in Rule 403, “‘unfair prejudice’ does not mean the

damage to the defendant’s case that results from the legitimate probative force of the evidence;

rather, it refers to evidence which tends to suggest decision on an improper basis.” Barnes v. City

of Cincinnati, 401 F.3d 729, 744 (6th Cir. 2005) (quoting United States v. Mendez-Ortiz, 810 F.2d

76, 79 (6th Cir. 1986)). The conversation between Townsend and his mother, though not conclusive,

is legitimately probative of Townsend’s knowing possession of the handgun. It is relevant and

probative in that it has a tendency to make the existence of Townsend’s knowing possession of the

handgun more or less probable. See Fed. R. Evid. 401. Townsend has failed to identify how this

probative value is substantially outweighed by the danger of unfair prejudice. We therefore find no

error in the district court’s admission of the evidence.




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No. 04-5117
United States v. Townsend

       C. Sentencing Issues

       Although he did not object at the time of sentencing, Townsend now claims the district court

exceeded its authority when, for purposes of enhancing his sentence under U.S.S.G. § 4B1.4 and the

Armed Career Criminal Act, 18 U.S.C. § 924(e), it made the factual determination that three of his

prior convictions were for violent felonies. Townsend does not challenge the correctness of the

district court’s determination, but contends the determination ought to have been made by the jury

upon proof beyond a reasonable doubt, citing Apprendi v. New Jersey, 530 U.S. 466 (2000).

       Whether the district court’s application of the Armed Career Criminal Act (“ACCA”)

violated Townsend’s Sixth Amendment right to trial by jury is a matter of law which we would

review de novo. United States v. Copeland, 321 F.3d 582, 601 (6th Cir. 2003). Because Townsend

did not preserve the issue by raising it below, however, it is reviewable only for plain error. Id. Yet,

in any event, it is now settled that Apprendi does not require the nature of prior convictions to be

determined by a jury United States v. Jones, 453 F.3d 777, 779 (6th Cir. 2006); United States v.

Brown, 444 F.3d 519, 522 (6th Cir. 2006); United States v. Barnett, 398 F.3d 516, 525 (6th Cir.

2005). Accordingly, we conclude the district court did not err by determining the nature of

Townsend’s prior convictions. This claim of error is overruled.

       The government concedes, however, that remand for resentencing is appropriate. The district

court applied the Sentencing Guidelines as though mandatory, rather than advisory, as now required

by the Supreme Court’s ruling in United States v. Booker, 543 U.S. 220 (2005). This error is

presumed to have affected Townsend’s substantial rights and warrants resentencing. Barnett, 398



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No. 04-5117
United States v. Townsend

F.3d at 527-29. Accordingly, the judgment of sentence must be vacated and the matter remanded

to the district court for resentencing.

                                          III. CONCLUSION

        For the foregoing reasons, defendant Townsend’s conviction is AFFIRMED. The judgment

of sentence, however, is VACATED, and the case is REMANDED to the district court for

resentencing in accordance with United States v. Booker.




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