                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-2008

USA v. Hawkins
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5094




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                    Case No: 06-5094

                           UNITED STATES OF AMERICA

                                             v.

                                 HOWARD HAWKINS
                                      a/k/a
                                 MARK MCLENDON

                                                  Howard Hawkins,

                                                       Appellant




                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              District Court No. 05-cr-00006
                    District Judge: The Honorable Gary L. Lancaster


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    May 20, 2008

                   Before: SMITH and NYGAARD, Circuit Judges,
                           and STAFFORD, District Judge *

                                  (Filed: May 22, 2008)


                                        OPINION



   *
    The Honorable William H. Stafford, Jr., Senior District Judge of the Northern District
of Florida, sitting by designation.
SMITH, Circuit Judge.

       Howard Hawkins appeals from a criminal conviction and sentence entered by the

United States District Court for the Western District of Pennsylvania. For the reasons

below, we will affirm the conviction and sentence. The District Court for the Western

District of Pennsylvania had subject matter jurisdiction over the action pursuant to 18

U.S.C. § 3231, and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

                                             I.

       At approximately 3:30 a.m. on January 4, 2004, the Pittsburgh Police Department

received a report of gunshots being fired into a residence at 918 California Avenue.

Within a few minutes, Officer Richard Zett arrived at this location, where he observed

eight .40 caliber shell casings on the ground. While Zett was collecting the casings, a

witness named Thomas Gorgone approached him. Gorgone told Zett that minutes earlier

he had been retrieving mail from a nearby post office box when he heard gunshots.

Gorgone looked outside and observed a man running away from the area in front of 918

California Avenue. According to Gorgone, the man then entered the front passenger side

of a red SUV. Zett relayed a description of the man and the vehicle to other officers by

radio and told them that the man might be armed with a .40 caliber firearm.

       Two other officers were also responding to the report of gunshots when they heard

Zett’s radio dispatch. Shortly thereafter, they saw a red Dodge Durango driving in the




                                             2
area and pulled it over. Hawkins was in the front passenger seat. Jody Pallatto,1 who

lived with Hawkins at the time, was in the driver’s seat. Aaron Elazer,2 Pallatto’s brother,

was in the back seat. The officers ordered the three individuals to show their hands and

then to exit the vehicle. After the individuals complied, other officers arriving at the

scene handcuffed them and placed them in separate police cars.

         Officer Douglas, one of the two officers who stopped the Durango, testified at trial

that he returned to the Durango after the three individuals had been removed. With the

aid of his flashlight, he observed part of a .40 caliber Smith & Wesson handgun sticking

out from under the front seat. Douglas examined the gun and found that it was loaded

with one round in the chamber and six in the magazine, which can hold up to ten rounds.

Under the passenger seat, he found an empty magazine that was identical to the one in the

gun. A sheriff’s department unit that arrived at the scene illuminated the rear of the

vehicle and discovered another firearm. When Zett and Gorgone arrived at the scene,

Gorgone identified the Durango as the same vehicle that he had seen earlier. Although

Gorgone could not confirm that Hawkins was the same man that he saw earlier, Hawkins’

appearance and clothing were consistent with the description that Gorgone had provided.

         A grand jury charged Hawkins with being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). The District Court denied Hawkins’ motion to


   1
    “Pallatto” is the spelling that she provided when testifying. Her name also appears as
“Paletto” and “Pallato” in the record.
   2
       His name also appears as “Elazor” in the record.

                                               3
suppress evidence of the .40 caliber handgun. See United States v. Hawkins, No. 05-cr-

06, 2005 U.S. Dist. LEXIS 37508, 2005 WL 3560660 (W.D. Pa. Dec. 29, 2005). It also

denied Hawkins’ motion to suppress evidence that someone fired shots into the building

at 918 California Avenue. See United States v. Hawkins, No. 05-cr-06, 2006 U.S. Dist.

LEXIS 40569, 2006 WL 1699437 (W.D. Pa. Jun. 19, 2006). The parties agreed to

stipulate to several facts, including the fact that the eight casings found at 918 California

Avenue matched the .40 caliber firearm charged in the indictment.

       Jody Pallatto, who was the licensed owner of the .40 caliber gun and had pled

guilty to aiding and abetting Hawkins’ possession of it, testified at trial about the night of

the incident. She said that Hawkins asked her to stop the Durango at a location near 918

California Avenue on a parallel street. Hawkins and Elazer left the stopped vehicle,

while Pallatto fell asleep in the driver’s seat. According to Pallatto, Elazer returned to the

vehicle alone, climbed into the back, woke her up, and instructed her to drive up the street

to pick up Hawkins. Shortly after Pallatto and Elazer picked up Hawkins, the police

pulled over the Durango. Pallatto testified that she had not heard gunfire or seen either

Hawkins or Elazer in actual possession of the gun at any time that night.

       The jury returned a verdict of guilty on the § 922(g)(1) charge on July 12, 2006.

The District Court denied Hawkins’ motion for a judgment of acquittal notwithstanding

the verdict pursuant to F ED. R. C RIM. P. 29(c)(1). Over Hawkins’ objection, the District

Court classified him as an Armed Career Criminal and sentenced him to a term of



                                              4
imprisonment of 180 months pursuant to 18 U.S.C. § 924(e)(1). Hawkins filed a timely

notice of appeal. On appeal, he argues that: (1) the evidence was insufficient to prove

that he possessed the .40 caliber firearm; (2) the search of the vehicle and detention of its

occupants violated the Fourth Amendment; (3) 18 U.S.C. § 922(g) violates the Commerce

Clause either on its face or as applied; and (4) the use of one of his prior convictions to

enhance his sentence violated the Fifth and Sixth Amendments.

                                              II.

       One of the elements of a § 922(g) violation is the knowing possession of a firearm.

Because the Government did not contend that Hawkins actually possessed the .40 caliber

firearm, the only question for the jury was whether he constructively possessed it.

Constructive possession exists when “[a] person who, although not in actual possession,

knowingly has both the power and the intention at a given time to exercise dominion or

control over a thing . . . .” United States v. Blackston, 940 F.2d 877, 883 (3d Cir. 1991).

Hawkins says that the evidence was insufficient not only to establish that he knew where

the gun was, but also to prove that he could exercise “dominion and control” over it.

       When reviewing a denial of a post-conviction Rule 29 motion, we can overrule the

jury’s verdict “only if no reasonable juror could accept the evidence as sufficient to

support the conclusion of the defendant's guilt beyond a reasonable doubt.” United States

v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987). Applying this deferential standard, we

conclude that the evidence was sufficient to support the jury’s finding of constructive



                                              5
possession. Gorgone’s testimony indicated that a man fitting Hawkins’ (but not Elazer’s)

physical description was connected with the time and location of the shots and with the

Durango. The parties’ stipulation linked the shells found at 918 California Avenue with

the gun found under the front seat of the Durango. Pallatto testified that Elazer was in the

back seat when he woke her up, and Detective Joseph Bielevicz testified that he had

examined the vehicle and concluded that it was not possible to pass an item from the back

under either of the front seats. Hawkins points that Pallatto did not testify about who

placed the gun under the front seat. Therefore, he argues, the evidence allows for the

possibility that Elazer possessed and shot the gun without Hawkins’ knowledge, entered

the front of the Durango while Pallatto was asleep, placed the gun under the front seat,

and then entered the back seat before waking Pallatto. Even assuming arguendo that this

interpretation of the evidence was possible, the evidence was nonetheless sufficient to

allow a reasonable juror to find beyond a reasonable doubt that Hawkins knew that the

gun was present and had dominion and control over it.

                                             III.

       Although Hawkins concedes that the police had reasonable suspicion to stop the

Durango under Terry v. Ohio, 392 U.S. 1 (1968), he argues that they violated the Fourth

Amendment by searching the vehicle and detaining its occupants. He claims that the

District Court therefore erred in denying his motion to suppress the firearm. We review

for clear error the District Court’s factual findings and review de novo its application of



                                              6
the law to the facts. United States v. Williams, 413 F.3d 347, 351 (3d Cir. 2005).

       Although the officers ordered the three individuals to exit the Durango, handcuffed

them, and placed them in separate police cars during the vehicle search, these actions did

not convert the Terry stop into an arrest. When police officers conduct a Terry stop,

“they may take such steps as are ‘reasonably necessary to protect their personal safety and

to maintain the status quo.’” United States v. Edwards, 53 F.3d 616, 619 (3d Cir. 1995)

(quoting United States v. Hensley, 469 U.S. 221, 235 (1985)). When considering whether

a Terry stop has escalated into an arrest, “the reasonableness of the intrusion is the

touchstone, balancing the need of law enforcement officials against the burden on the

affected citizens and considering the relation of the policeman's actions to his reason for

stopping the suspect.” Baker v. Monroe Twp., 50 F.3d 1186, 1192 (3d Cir. 1995).

Moreover, “[t]here is no per se rule that pointing guns at people, or handcuffing them,

constitutes an arrest.” Id. at 1193. In this case, the police had reason to believe not only

that the people in the Durango were armed, but also that at least one of them had fired a

weapon into a residence only minutes earlier. Under these circumstances, the police did

not exceed Terry’s limitations by handcuffing the individuals and placing them in

separate police cars while they searched the vehicle.

       Also, the search of the vehicle did not violate the Fourth Amendment. We have

held that an officer conducting a Terry stop “may pat down the occupants of the vehicle

and conduct a search of the passenger compartment, if he has a reasonable suspicion that



                                              7
the occupants might be armed and dangerous.” United States v. Bonner, 363 F.3d 213,

216 (3d Cir. 2004) (citing Michigan v. Long, 463 U.S. 1032, 1049–50 (1983)). The fact

that the three individuals were handcuffed as part of the Terry stop did not eliminate the

justification for a search of the passenger compartment. As the Supreme Court has

recognized, after the completion of a Terry stop, the detained individual “will be

permitted to reenter his automobile, and he will then have access to any weapons inside.”

Michigan v. Long, 463 U.S. 1032, 1052 (1983). Given the circumstances, it was

reasonable for the officers to look under the front seats as part of the Terry stop.

                                             IV.

       Hawkins argues that § 922(g)(1) violates the Commerce Clause either on its face

or as applied. We rejected arguments identical to those that Hawkins raises here in

United States v. Singletary, 268 F.3d 196 (3d Cir. 2001), and United States v. Shambry,

392 F.3d 631 (3d Cir. 2004). Hawkins acknowledges that we are bound by these

decisions, but raises the issue on appeal in order to preserve his constitutional challenge

for possible en banc or Supreme Court review. Accordingly, we need not address it here.

                                              V.

       Finally, Hawkins objects to the District Court’s imposition of a 15-year mandatory

minimum sentence pursuant to 18 U.S.C. § 924(e). He argues that this sentence, which

exceeds the statutory maximum that would otherwise apply, violated the Fifth and Sixth

Amendments because it depended on his prior conviction for criminal conspiracy to



                                              8
possess with intent to deliver cocaine base.

       In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Supreme Court

held that prior convictions that increase the statutory maximum for an offense need not be

proven beyond a reasonable doubt. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the

Court held that a fact which enhances a sentence above the statutory maximum must be

pled in the indictment, submitted to a jury, and proven beyond a reasonable doubt.

Apprendi left Almendarez-Torres intact by recognizing that prior convictions are an

exception to the Apprendi rule. Apprendi, 530 U.S. at 489–90. We held that Almendarez-

Torres is still good law in United States v. Coleman, 451 F.3d 154, 160 (3d Cir. 2006).

       Hawkins argues that his conviction for criminal conspiracy to possess with intent

to deliver cocaine base does not fall within Apprendi’s exception for prior convictions. A

“serious drug offense” is relevant for purposes of § 924(e) if it is “an offense under State

law, involving manufacturing, distributing, or possessing with intent to manufacture or

distribute, a controlled substance.” 18 U.S.C. § 924(e)(2)(A)(ii). Hawkins argues that

possession with intent to deliver differs from possession with intent to distribute, and that

a jury determination was therefore necessary. Hawkins provides no reasoning and cites

no case law in support of this distinction between delivery and distribution, and we see no

reason to require that this question be submitted to a jury.

                                            ****

       For the reasons above, we will affirm the judgment of the District Court.



                                               9
