                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0262n.06
                              Filed: April 9, 2007

                                            No. 05-6552


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
RAYMOND MOLINA,                                        EASTERN DISTRICT OF TENNESSEE

       Defendant-Appellant.

                                                /


BEFORE:        MARTIN and CLAY, Circuit Judges; and POLSTER, District Judge.*

       CLAY, Circuit Judge. Defendant Raymond Molina was convicted of being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). His sentence was enhanced pursuant

to U. S. Sentencing Guidelines §§ 2K2.1(b)(5) and 3A1.1(b)(1) and he received a 115-month

sentence. Defendant appeals the district court order denying his motion to suppress, his motion for

a directed verdict, and the imposition of the §§ 2K2.1(b)(5) and 3A1.1(b)(1) enhancements. For the

reasons set forth in this opinion, we AFFIRM the district court’s order.

                                         BACKGROUND

       On January 1, 2005, at or around 7:30pm, the Cleveland, Tennessee Police Department

received a call from a victim of a drive-by shooting at 14th Street and Lay Street. The caller reported

       *
        The Honorable Dan A. Polster, United States District Judge for the Northern District of
Ohio, sitting by designation.
                                           No. 05-6552

that the assailant was driving a “small, black Nissan” that was occupied by the shooter, an African

American man, and two passengers, an African American woman in the front passenger seat and an

African-American man in the backseat. The caller also reported that the shooter fired at both him

and his twelve-year-old stepson. Lieutenant Steve Tyson, a sixteen-year veteran of the Cleveland

Police Department, responded immediately to the call and arrived at the scene about one minute after

receiving the dispatch. Tyson spotted a small, black Nissan about four blocks from where the

shooting had allegedly occurred, which was about a minute in driving time away from the location

of the shooting. As the vehicle passed, Tyson could not see inside because the windows were tinted,

thus he was unable to confirm the number of occupants in the vehicle or whether they matched the

reported description. However, because the car matched the exact description given and the location

was consistent, Tyson stopped the car.

       As Tyson approached the car, Defendant exited the vehicle. The only other passenger, his

wife, Samantha Bergeron, remained inside. Tyson asked Defendant for his license, which he

subsequently discovered had been suspended. Tyson requested permission to search Defendant’s

vehicle, but Defendant refused. Tyson then placed Defendant under arrest for driving with a

suspended license and placed him in the patrol car. At this point, backup police arrived and Officer

Trewhitt began searching Defendant’s vehicle. Trewhitt observed a firearm in plain view in

Bergeron’s purse. The officers apprehended the gun, handcuffed Bergeron, and began questioning

her.

       Bergeron told the officers that Defendant shot at the two victims with the gun. She explained

that she had purchased the gun two weeks earlier for Defendant because Defendant told her they


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                                            No. 05-6552

needed it for protection. According to Bergeron, she, Defendant, and Defendant’s friend were in the

car when Defendant noticed the two victims walking down the street. Defendant was driving and

when he noticed the victims, he turned the car around to follow them and turned off his lights.

Defendant said to Bergeron and the other passenger, “I’m sick of these fucking white people here.”

(J.A. at 40). Defendant pulled up to the victims and said, “Motherfucker, do you have a problem?”

(J.A. at 38). Bergeron said she heard one of the victims reply, “No, no. Hey, I got no problem.”

(J.A. at 38). She then heard Defendant respond, “Well, I got something for you. You’re going to

dance for me, motherfucker. You’re going to dance for me.” (J.A. at 38). Bergeron told the officers

that she saw Defendant take the .22 caliber out of a hiding place in the gear shift of the car and fire

it at the younger victim’s chest. The gun misfired, and Bergeron told the officer that she attempted

to pull the gun away from him, but he shoved her away and shot at the legs of the older victim, but

he missed again. Defendant then drove away and let his friend who was seated in back of the

vehicle out. Bergeron told the officers that Defendant forced her to take the gun and hide it in her

purse when he noticed Tyson following the vehicle.

       At trial, Bergeron testified to the same story she gave the officers when she was questioned

by them on the night of the shooting. On cross-examination, however, Bergeron admitted that she

had written a letter to Defendant stating that the police coerced her into stating that he had been the

shooter. In that letter, she detailed a conversation between herself and the arresting officers in which

she was told that she could either “make a statement as a witness, choice number one, or go to jail

as a suspect, choice number two.” (J.A. at 48). The letter stated that the officers made it clear that

she could either implicate Defendant as the shooter or she would be charged for the crime, and that


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                                            No. 05-6552

she only did the former to avoid the latter. At trial she explained the discrepancy between that letter

and her testimony by stating that she had been coerced into writing the letter by Thelma Franco,

Defendant’s mother. She testified that the information she had given the officers the night of the

shooting, which comported with her trial testimony, was the truth and that the letter was untrue.

       Tyler Cross, the twelve-year-old victim, also testified at trial. He stated that he was walking

with his stepfather at around 7:30pm when a black car passed them, and then turned around and

approached them with the lights off. The driver asked him if he had a problem and Cross responded

that he did not. According to Cross, the driver then pulled out a gun and fired at his chest, but the

gun misfired and Cross jumped into a ditch to hide. Cross heard a woman yell “stop,” and the driver

yelled back to “shut up” and “sit down.” (J.A. at 66-67). Cross testified that he saw the driver shoot

at his stepfather’s legs and heard him say he was going to “make him dance or something.” (J.A.

at 70-71). Cross did not know if the driver was African-American; he only knew that he had “dark

skin.” (J.A. at 72). However, he positively identified Defendant in court as the driver and shooter

and confirmed that there was a woman and another man in the car as well. When asked if there was

a possibility that Defendant was not the driver, he responded that there was not.

       Defendant stipulated that he was a convicted felon and that the gun used had traveled in

interstate commerce. Thus, the only issue the court needed to establish was whether he possessed

the firearm. Defendant moved to suppress all evidence uncovered as a result of the stop and search

of his vehicle, which included the gun and Bergeron’s statements, on the grounds that there was no

reasonable suspicion to stop the car. The district court denied this motion and reasoned that because

Tyson knew that the shots had been fired from a small, black Nissan, he had reasonable suspicion


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                                            No. 05-6552

to justify stopping Defendant, who was driving a small, black, Nissan. Further, the court pointed out

that when he observed Defendant one minute after the shooting was reported, Defendant was only

four blocks from where the shooting occurred, which was consistent with Defendant being the

shooter. Given these facts, the district court held that Tyson “would have been derelict in his duty

had he not stopped” Defendant. (J.A. at 28).

       At the close of evidence, Defendant moved for judgment of acquittal on the grounds that the

government had insufficient evidence to prove possession, which was an essential element of the

felon in possession of a firearm charge. Defendant argued that the testimony of the witnesses the

government had called did “not support the element of possession.” (J.A. at 97). Defendant failed

to elaborate any further on this argument. The court observed that, when viewing evidence in the

government’s favor, which it was obligated to do, it was clear that the government did prove the

element of possession because both Cross and Bergeron testified that Defendant both possessed and

used the gun. The court concluded that it was possible, based on the facts presented, for a reasonable

jury to find that Defendant was in possession of the gun. Accordingly, the court denied Defendant’s

motion for judgment of acquittal.

       The jury convicted Defendant and a presentence report (“PSR”) was prepared to aid in

sentencing. Two of Defendant’s objections to the PSR are before this Court for review. First,

Defendant objected to a four-level enhancement pursuant to the U.S. Sentencing Guidelines §

2K2.1(b)(5) for using a firearm “in connection with” another felony offense. Defendant argued that

because the predicate offense was being a felon in possession of a firearm and the “other offense”

was aggravated assault with a firearm, the two offenses were co-extensive. The government


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                                            No. 05-6552

responded that the two felonies were not co-extensive because Defendant committed the predicate

felony of being a felon in possession two weeks prior to the shooting when he instructed Bergeron

to purchase the gun for him. The court was persuaded by the government’s argument and imposed

the enhancement. Defendant additionally objected to a two-level enhancement imposed pursuant

to § 3A1.1(b)(1), which enhances the sentence because one of the victims was a minor. Defendant

objected to this enhancement and argued that he did not know or have any reason to know that the

victim was a minor. Because it was dark the night of the shooting and because Cross was “rather

a large child,” Defendant argued that he had no reason to suspect that Cross was a minor. (J.A. at

110). The court was unpersuaded by this argument as well. The court held that while he may have

been large for a twelve-year-old, there was no way he could be mistaken for an eighteen-year-old.

Especially because, as the judge pointed out, Defendant heard Cross speak. The judge reasoned that

because Cross’ voice had not yet changed, his voice “is nothing at all like the voice of a man.” (J.A.

at 111). Thus, the court concluded that this non-visual indicator of Cross’ youth should have made

Defendant aware that he was a child, and therefore the court imposed the enhancement. Defendant

was sentenced to 115 months imprisonment, which was the maximum sentence under the

Guidelines. Defendant filed timely a notice of appeal.

                                           DISCUSSION

I.     The district court properly denied Defendant’s motion to suppress.

       A.      Standard of Review

       “In an appeal of the 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. Hudson, 405 F.3d 425,


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                                              No. 05-6552

431 (6th Cir. 2005); see also United States v. Harris, 192 F.3d 580, 584 (6th Cir. 1999). Thus, while

we will review the determination of the ultimate question of whether there was reasonable suspicion

de novo, we must afford due weight to the factual inferences and credibility determinations made by

the district court. United States v. Caruthers, 458 F.3d 459, 464 (6th Cir. 2006)

        B.      Analysis

        According to this Court, Terry v. Ohio applies to the investigative stop of vehicles and allows

that “where a law enforcement officer lacks probable cause, but possesses a reasonable and

articulable suspicion that a person has been involved in criminal activity, he may detain the suspect

briefly to investigate the suspicious circumstances.” United States v. Bentley, 29 F.3d 1073, 1075

(6th Cir. 1994) (citing Terry 392 U.S. v. Ohio, 392 U.S. 1, 31 (1968)). We have previously

summarized the law concerning what constitutes reasonable suspicion to justify an investigative

stop:

        An investigative detention is permissible when it is based upon “specific and
        articulable facts which, taken together with rational inferences from those facts,” give
        rise to a reasonable suspicion that the individual is, was, or is about to be engaged in
        criminal activity. . . . In reviewing a challenged investigative stop, “the totality of the
        circumstances–the whole picture–must be taken into account”. . . . Furthermore, “in
        assessing the reasonableness of the stop, the facts are ‘judged against an objective
        standard: would the facts available to the officer at the moment of the seizure or the
        search “warrant a man of reasonable caution in the belief” that the action taken was
        appropriate?’”


United States v. Hurst, 228 F.3d 751, 757 (6th Cir. 2000) (quoting United States v. Barrett, 890 F.2d

855, 860 (6th Cir. 1989) (citations omitted). The determination is made “in light of the totality of

the circumstances.” Caruthers, 458 F.3d at 465, and requires the officers to “have a particularized



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                                           No. 05-6552

and objective basis for suspecting the particular person stopped of criminal activity.” United States

v. Cortez, 449 U.S. 411, 417-18 (1981).

       Our holding in Hurst is instructive here. In that case, a victim of an armed burglary reported

that his assailants were driving a “dark-colored Thunderbird” with a damaged grill and that there

were two people in the vehicle. Hurst, 228 F.3d at 755. The police stopped the defendant twenty-

five minutes in driving time from the victim’s residence, which was consistent with the reported time

of the robbery. Id. The defendant was in a dark blue Mercury Cougar, which was “similar in

appearance to a Thunderbird.” Id. The grill of the car was missing, but the defendant’s car was

occupied by himself and only one other passenger, which means there were two people in the vehicle

instead of the reported three. Id. Despite these differences between the report and the facts the

police observed when the defendant was stopped, we held that there was reasonable suspicion. Id.

at 757. Importantly, we reasoned that because the description “roughly” matched the description of

defendant’s car and because the car was observed at a “location consistent with the time needed to

travel from [the victim’s] residence,” the officer “had knowledge of specific and articulable facts,

which, taken together with reasonable inferences, certainly gave rise to reasonable suspicion of

criminal activity.” Id. We were not swayed by the fact that the car had two occupants instead of

three because, as we reasoned, there are a number of explanations that could account for such a

minor discrepancy. Id. We thus concluded that reasonable suspicion existed with those facts.

       The present case is quite similar to Hurst. Tyson observed Defendant’s vehicle, which

matched the color and make of the car for which Tyson was looking. Further, precious little time

had elapsed between the shooting and Tyson spotting Defendant, and he was spotted in a location


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                                             No. 05-6552

consistent with him being the shooter. Observing a vehicle that matched the exact description and

location of the car in question “certainly gave rise to reasonable suspicion of criminal activity.”

Hurst, 228 F.3d at 757. While Tyson was unable to see into the car, Defendant does not focus on this

fact. Defendant’s sole argument is that Tyson lacked a “particularized and objective basis” for

stopping Defendant, which was required by Cortez, 449 U.S. at 417-18.

        Defendant argues that because the two characteristics that were used to describe his vehicle,

“black” and “Nissan” are very common characteristics, and therefore are not particularized.

However, in Cortez, the Court did not use the word “particularized” to mean characteristics that are

necessarily uncommon, but instead to refer to characteristics that are specific and that will, viewed

in their entirety, “raise a suspicion that the particular individual being stopped is engaged in

wrongdoing.” Cortez, 449 U.S. at 418-19. Black cars are certainly common, as are small ones and

as are Nissans. However, all of these descriptors taken together and viewed in the totality of the

circumstances with the location of the car being consistent with the location of the shooting create

a particularized basis giving rise to reasonable suspicion. Thus, we conclude that there was

reasonable suspicion that justified the initial stop.

II.     The district court properly denied Defendant’s motion for judgment of acquittal

        A.      Standard of Review

        We review de novo a district court’s denial of a motion for judgment of acquittal. United

States v. Lee, 359 F.3d 412, 418 (6th Cir. 2004). In the instant case, Defendant claimed he was

entitled to judgment as a matter of law because there was insufficient evidence to support his

conviction. In order for a conviction to be supported by sufficient evidence, “when viewing the


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                                            No. 05-6552

evidence in the light most favorable to the prosecution,” it must be possible for some rational trier

of fact to “have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979). In deciding this, this Court must refrain from “weigh[ing] the

evidence, mak[ing] credibility determinations, or substitut[ing] [its] judgment for the jury’s verdict.”

United States v. Crossley, 224 F.3d 847, 855 (6th Cir. 2000).

       B.      Analysis

       The sufficiency of the evidence claim standard should be applied “with explicit reference to

the substantive elements of the criminal offense.” Jackson, 443 U.S. at 324 n.16. Thus, this Court

must consider the essential elements of the offense of being a felon in possession of a firearm, §

922(g)(1). Because Defendant stipulated that he is a convicted felon and that the firearm in question

traveled in interstate commerce, the only question remaining before this Court is whether there was

sufficient evidence that Defendant was in possession of a firearm.

               1.      Possession Element

       In determining whether a person is in possession of a firearm in violation of § 922(g)(1), the

government may present evidence of either actual or constructive possession. United States v.

Moreno, 933 F.2d 362, 373 (6th Cir. 1991). “Actual possession exists when a tangible object is in

the immediate possession or control of the party.” United States v. Beverly, 750 F.2d 34, 37 (6th Cir.

1984) (quoting United States v. Craven, 478 F.2d 1329, 1333 (1973)). Because the gun was found

in Bergeron’s possession, the government cannot proceed under a theory of actual possession.

“Constructive possession exists when a person does not have actual possession but instead

knowingly has the power and the intention at a given time to exercise dominion and control over an


                                                  10
                                            No. 05-6552

object, either directly or through others.” Craven, 478 F.2d at 1333. This Court has consistently

held that the testimony of other occupants in the vehicle where the defendant used a firearm is

sufficient to support a finding that the defendant was in constructive possession of that firearm. See,

e.g., United States v. Carter, 355 F.3d 920, 925 (6th Cir. 2004); United States v. Schreane, 331 F.3d

548, 560 (6th Cir. 2003); United States v. Daniel, 134 F.3d 1259, 1264 (6th Cir. 1998). Accordingly,

Bergeron’s testimony that Defendant possessed and used the gun was sufficient such that a rational

trier of fact could have found, as the jury did, that Defendant had constructive possession of the gun

that was found in Bergeron’s purse.

       With respect to this issue, Defendant relies entirely upon our holding in United States v.

Arnold, 434 F.3d 396 (6th Cir. 2006), vacated, United States v. Arnold, 2006 U.S. App. LEXIS 4995

(6th Cir. 2006). That case has been vacated and reheard en banc, thus, reliance on that case is

inappropriate.

       As Defendant pointed out in oral argument, there are some questions of credibility with

respect to Bergeron’s credibility. First, at trial she admitted that she had contradicted her testimony

in a letter that she had written to Defendant stating that she only implicated him as the shooter

because the officers threatened to arrest her if she did not. Additionally, as Defendant argues,

because Bergeron had actual possession of the gun when the officers found it, she undeniably

benefitted from testimony attributing possession to Defendant. However, these arguments are

essentially arguments that Bergeron was not a credible witness, which is not within the province of

this Court to decide on a sufficiency of the evidence claim. As we have explicitly held, we “must

not weigh the evidence, evaluate witness credibility, or displace the jury’s judgment with our own.”


                                                  11
                                            No. 05-6552

United States v. Wagner, 382 F.3d 598, 610-11 (6th Cir. 2004). Sufficient evidence exists where

“any rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” United States v. Blood, 435 F.3d 612, 618 (6th Cir. 2006) (internal quotation marks and

citation omitted). Thus, we cannot entertain an argument that amounts to the contention that the jury

should not have believed a witness. Accordingly, the district court properly denied Defendant’s

motion for judgment of acquittal.

III.   The district court properly applied §§ 2K2.1(b)(5) and 3A1.1(b)(1) enhancements to
       Defendant’s sentence

       A.      Standard of Review

       We have held that the question of whether an enhancement was properly applied is a mixed

question of law and fact. While we “[w]e review for clear error the district court’s factual findings,

and accord ‘due deference’ to the district court’s determination that the . . . enhancement applies,”

United States v. Burke, 345 F.3d 416, 426-27 (6th Cir. 2003), we review the legal conclusions of the

district court de novo. U.S. v. Layne, 324 F.3d 464, 468 (6th Cir. 2003).

       B.      Analysis

               1.      § 2K2.1(b)(5)

       Section 2K2.1(b)(5) states: “If the defendant used or possessed any firearm or ammunition

in connection with another felony offense . . . increase by 4 levels.” We have adopted the general

rule of the Eighth Circuit that the “in connection with” requirement of § 2K2.1(b)(5) “should be

construed as equivalent to the “in relation to” language of 18 U.S.C. § 924(c).” United States v.

Hardin, 248 F.3d 489, 497 (6th Cir. 2001) (quoting United States v. Regans, 125 F.3d 685, 686 (8th

Cir. 1997)). According to Defendant’s PSR, this enhancement was imposed because Defendant

                                                 12
                                            No. 05-6552

“used the firearm in connection with an aggravated assault on Mr. Matthews [Cross’ step-father] and

[Cross]” and because he “assaulted his wife and forced her to conceal the gun.”1 Defendant argues

that the requirement that he use or possess a firearm with “another felony offense” must be satisfied

by an offense that is entirely distinct and separate from the possession of the gun.

       As Defendant correctly observes, we have consistently held that the imposition of this

enhancement requires a “finding of a separation of time between the offense of conviction and the

other felony offense, or a distinction of conduct between that occurring in the offense of conviction

and the other felony offense.” United States v. Sanders, 162 F.3d 396, 400 (6th Cir. 1998).

However, as the district court correctly held, Bergeron testified that she purchased the gun because

Defendant instructed her to do so two weeks prior to the shooting . We have held that possession

may occur when a person has the power to exercise dominion or control over an object either

“directly or through” another person. United States v. Newsom, 452 F.3d 593, 608 (6th Cir. 2006).

Further, Bergeron testified that they both knew where the gun was located and that the last time she

saw the gun, it was in the house in a cabinet, which indicates that Defendant exercised dominion and

control over the gun and placed it in the car. Thus, the factual finding of the district court was that

Defendant was in possession of the gun two weeks prior to the shooting, which is not a clearly

erroneous finding given Bergeron’s testimony. Interestingly, Defendant does not respond to this



       1
         Defendant makes an extremely cursory alternative argument that “shoving a gun” at his wife
does not rise to the level of assault where “there is no evidence that he either touched her with the
gun or caused her to be afraid.” (Def.’s Brief at 17). This argument is flawed because according to
Bergeron’s testimony, Defendant “shoved her off with the gun.” Thus, there is evidence that he
touched her and that he did so with a gun in his hand, which absolutely rises to the level of assault.
(J.A. at 38).

                                                  13
                                            No. 05-6552

argument at all, and instead, devotes significant time to the general argument that the two offenses

cannot be co-extensive. While Defendant’s argument is correct as a matter of law, it does not deal

with the specific fact that in this case there is evidence that Defendant possessed the gun prior to the

shooting. We conclude that the district court properly applied the § 2K2.1(b)(5) enhancement to

Defendant’s sentence.

               2.       § 3A1.1(b)(1)

       Section 3A1.1(b)(1) provides that “if the defendant knew or should have known that a victim

of the offense was a vulnerable victim, increase by 2 levels.” The Guidelines define a vulnerable

victim as “a person (A) who is a victim of the offense of conviction and any conduct for which the

defendant is accountable under § 1B1.3 (Relevant Conduct); and (B) who is unusually vulnerable

due to age, physical or mental condition, or who is otherwise particularly susceptible to criminal

conduct.” U.S. Sentencing Guidelines § 3A1.1, cmt. n.2 (2003).

       Defendant’s argument is extremely cursory and consists only of two sentences stating that

because it was dark and Cross was large for his age, there was no way for him to have known that

he was a minor. However, as the district court held, a child being large for a twelve-year-old does

not mean he can reasonably be mistaken for an eighteen-year-old. The court further reasoned that

Defendant addressed Cross and Cross spoke back to Defendant. The judge pointed out that he had

heard Cross speak and his voice, “is nothing at all like the voice of a man” and, thus, Defendant was

well on notice that Cross was a child. (J.A. at 111). This is a factual determination that the district

court is substantially better equipped to make than we are, and, accordingly, we will accord its




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                                           No. 05-6552

finding due deference. Because this is not a clearly erroneous finding, we conclude that the district

court properly applied the § 3A1.1(b)(1) enhancement to Defendant’s sentence.


                                         CONCLUSION

       For the forgoing reasons, we AFFIRM Defendant’s conviction and sentence.




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