                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0872n.06
                           Filed: October 25, 2005

                                        No(s) 04-5975/5976

                             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
                                                          )
CHADWICK DANIEL DYCUS;                                    )                           OPINION
SAMUEL CLAY SIKES,                                        )
                                                          )
                                                          )
       Defendants-Appellants.                             )




BEFORE:        COLE, ROGERS, and McKEAGUE, Circuit Judges.

       R. GUY COLE, JR., Circuit Judge. Appellants Chadwick Daniel Dycus and Samuel Clay

Sikes each pleaded guilty to being a felon in possession of a firearm arising out of their arrest

following law enforcement’s stop of a vehicle in which they were passengers. Sikes appeals the

district court’s denial of his motion to suppress evidence. Sikes also appeals the district court’s

enhancement of his sentence as an improper application of U.S.S.G. § 2K2.1(b)(5). Dycus appeals

only his sentence as being unconstitutional under United States v. Booker, --- U.S. --- 124 S.Ct. 738,

769 (2005). For the following reasons, we AFFIRM the conviction and sentence of Sikes, and

VACATE Dycus’s sentence and REMAND for resentencing in accordance with this opinion.
Nos. 04-5975/5976
United States v. Dycus/Sikes

                                                   I.

       On February 6, 2003, at approximately 1:00 a.m., Officers Jason Williams and Tim Dolack

of the Milan, Tennessee Police Department were on patrol in their squad car when they observed

a vehicle driving in the opposite direction. Officer Dolack was unable to determine if the oncoming

vehicle had a license plate because there was no illumination in the place where the plate is to be

displayed. Officer Williams made a u-turn and, likewise, was unable to determine if the vehicle had

a license plate. Williams then accelerated to catch up to the vehicle and activated his emergency

blue lights to signal the vehicle to stop. Williams testified that, after his lights were activated, and

from a distance of approximately fifteen to twenty yards, he could read the vehicle’s license plate,

at which time he verified ownership of the vehicle with the dispatcher as the vehicle came to a stop.

       The driver of the vehicle was Susan McElroy, with Dycus in the front passenger seat and

Sikes in the rear seat. As Officers Williams and Dolack approached the vehicle, they observed that

Sikes was in possession of a rifle. The officers also observed a semi-automatic pistol on the right

rear passenger floorboard. The officers asked Sikes and Dycus to exit the vehicle. The officers

frisked Sikes and Dycus, at which point Dycus voluntarily admitted to possessing a rifle cartridge

that matched the caliber of the rifle observed in the backseat of the vehicle. The officers then told

McElroy to exit the vehicle, and she admitted to possessing a small bag of marijuana. Both Sikes

and Dycus admitted to the officers that they were convicted felons. The officers thereupon advised

Sikes and Dycus of their Miranda rights and placed them under arrest. The officers searched the

vehicle and found over 12 grams of methamphetamine, 42.7 grams of marijuana, and several other

drug tablets.

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       On December 15, 2003, a federal grand jury indicted Dycus with being a felon in possession

of a firearm and ammunition, and indicted Sikes with being a felon in possession of a firearm. Sikes

filed a motion to suppress the evidence obtained during the traffic stop. The district court, in

denying Sikes’s motion, found that the officers had a good faith belief that probable cause existed

to stop the vehicle because of its missing license plate light, and also found that Sikes did not have

standing to contest the seizure of the evidence inside the car, despite the fact that he may have had

standing to contest the actual vehicle stop.

       Sikes pleaded guilty to possession of a firearm, reserving the right to appeal the district

court’s denial of his motion to suppress. Dycus pleaded guilty as well.

       The district court enhanced the base offense level for Dycus and Sikes, finding that, in

addition to the underlying felon-in-possession charges, they had used or possessed a firearm in

connection with the possession of drugs and drug paraphernalia in the car. Sikes was sentenced to

84 months of imprisonment and Dycus was sentenced to 120 months of imprisonment.

                                                 II.

       We review de novo whether a defendant has standing under the Fourth Amendment to assert

the exclusionary rule. United States v. Smith, 263 F.3d 581, 582 (6th Cir. 2001). We review the

district court’s conclusions of law de novo. Id. at 581.

       We review de novo a district court’s interpretation of the United States Sentencing

Guidelines. United States v. Hazelwood, 398 F.3d 792, 795 (6th Cir. 2005).




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                                                  III.

        The right to be free from unreasonable searches and seizures is a personal right which may

not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133–34 (1978). Accordingly, a

defendant may only seek to suppress evidence under the exclusionary rule where that defendant’s

legitimate privacy interest under the Fourth Amendment has been violated, or, as the parties have

described it, the defendant has standing. Id. at 134.

        The district court concluded that Sikes, as a passenger of the vehicle, did not have standing

to challenge the search of the vehicle. On appeal, Sikes explains that he is not challenging the

search of the vehicle directly; rather, he claims standing to challenge the constitutionality of the

initial stop of the vehicle. He argues, and the government concedes, that if the initial stop was

unconstitutional then any resulting evidence that flows from that stop should be suppressed. See

Delaware v. Proust, 440 U.S. 648 (1978) (noting that each occupant in a vehicle has an interest in

freedom from random, unauthorized, investigatory seizures); United States v. Richardson, 385 F.3d

625, 629 (6th Cir. 2004) (“The primary interests that the Fourth Amendment protects include an

interest in freedom of movement and insulation from the fear and anxiety produced by unlawful

seizure. In the traffic stop scenario, these interests are personal to all occupants of the vehicle that

is detained.”).

        In determining whether probable cause exists to effectuate a traffic stop, we only examine

“whether this particular officer in fact had probable cause to believe that a traffic offense had

occurred” and not whether a reasonable police officer would have actually stopped the vehicle.

United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993). To establish probable cause, the

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Government needs to show “reasonable grounds for belief, supported by less than prima facie proof

but more than mere suspicion” that there is a “probability or substantial chance of criminal activity.”

Id. When analyzing whether a traffic stop is reasonable, we must undertake “an objective

assessment of [the] officer’s actions in light of the facts and circumstances then known to him,” id.

at 388 (quoting Scott v. United States, 436 U.S. 128, 137 (1978)), rather than the good faith standard

the district court applied.

        Sikes argues that probable cause did not exist to stop the vehicle because Tennessee law does

not require single-motor vehicles to have illuminated license plates. However, Tennessee law in

effect at the time of the stop provided that “[e]very registration plate shall at all times be securely

fastened. . . in a place and position to be clearly visible.” Tenn. Code Ann. § 55-4-110(b) (2003)

(emphasis added).       At least one Tennessee court has analyzed this provision in a relevant case.

See State v. Matthews, No. M2001-00754-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 765 (Tenn.

Crim. App. Sept. 10, 2002). In Matthews, at approximately 7:00 p.m. in mid-September, a police

officer observed a motor vehicle without a light illuminating the license plate. Id. at *2. The police

officer could not determine if the vehicle had a license plate. Id. The officer proceeded to follow

the vehicle. Id. He then saw there was a license plate, and radioed in the plate number immediately

prior to stopping the car. Id. Upon stopping the vehicle, the officer smelled alcohol on Matthews’s

breath, observed a half-full open can of beer in the car, and determined that Matthews was driving

on a revoked license. Id. at *3.

        At a suppression hearing, the trial court determined the stop was reasonable because

Matthews had an obligation to make his license plate clearly visible at all times under T.C.A. § 55-4-

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110(b) despite the fact that Matthews was not legally required to have his headlights on and his

headlight switch controlled the license plate light. Id. at *3–4.

        The Tennessee Court of Criminal Appeals, in examining Matthews’s challenge to the denial

of his suppression motion, determined that, while the legislature did not require headlights to be on

at the time of day that his vehicle was stopped, the legislature did intend that “license plates be

clearly visible at all times.” Id. at *8. In affirming the trial court’s denial of Matthews’s motion,

the appellate court concluded that, even though the headlight switch controlled the license plate light

and Matthews was not legally required to have his headlights on, this “unfortunate design feature”

did not excuse Matthews’s failure to keep his plate clearly visible at all times. Id. at *8–9.

        The facts in Matthews are similar to those before us. The police officer in each case pursued

a vehicle because the officer could not see if the suspect vehicle had a license plate. In each case,

when the police officer got closer to the suspect vehicle, the police officer was able to determine that

the vehicle had a license plate and was able to read it. Similarly, in each case, the officer was able

to radio in the license plate number before completing the traffic stop. In each case the stop was

commenced because, initially, the existence of a license plate was not immediately verifiable.

        In Matthews, it was irrelevant to the court that the officer could see the license plate when

he got closer to the vehicle. The fact that the license plate was not clearly displayed as required

under § 55-4-110(b) provided probable cause for the police officer to stop the vehicle.

        In the instant case, the uncontroverted evidence is that Officers Williams and Dolack pursued

defendants’ vehicle because they could not determine if the vehicle had a license plate. There is no

dispute that the license plate was not illuminated and, as a result, the police officers could not clearly

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United States v. Dycus/Sikes

see if the vehicle in fact had a license plate until they got within fifteen to twenty yards of the

vehicle. Section 55-4-110(b) requires that a motorist clearly display his registration plates, and the

failure to do so by McElroy provided an objective basis for the officers to effectuate the stop of the

vehicle in which defendants were riding. Accordingly, we affirm the district court’s finding that

probable cause existed for the stop of McElroy’s vehicle.

                                                 IV.

       Sikes appeals the district court’s enhancement of his sentence under § 2K2.1(b)(5) of the

sentencing guidelines.1 U.S.S.G § 2K2.1(b)(5) provides that, “if the defendant used or possessed

any firearm or ammunition in connection with another felony offense” the offense level shall be

increased by four levels.

       The district court imposed an enhancement under § 2K2.1(b)(5) because it found that Sikes

had used or possessed a firearm in connection with another felony offense; specifically that, in

addition to the underlying felon-in-possession charge, Sikes had used or possessed a firearm in

connection with the possession of drugs and drug paraphernalia in the car — felonies for which the

state had charged Sikes in another proceeding. Sikes objected to this enhancement arguing that the

district court should not use this drug charge as “another felony offense” because it was not a

separate incident from the underlying crime.

       We have had the opportunity to visit enhancements under § 2K2.1(b)(5). See United States

v. Sanders, 162 F.3d 396 (6th Cir. 1998). In Sanders, we held:

       1
           Unlike Dycus, Sikes does not appeal his sentence under Booker. Had Sikes so appealed,
it is likely that we would reach the same conclusion as we do for Dycus, i.e. remanding in light of
Booker.
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          [a] logical reading of the § 2K2.1(b)(5) Guideline term “another felony offense” would at
          least require, as a condition precedent to the application of a major four level guideline
          enhancement, 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.

Id. at 400 (emphasis added); see also United States v. Hurst, 228 F.3d 751, 763 (6th Cir. 2000)

(same).

          The district court, in enhancing Sikes’s sentence, correctly held that the conduct of being a

felon in possession of a gun and the conduct of possessing drugs are distinct, because Sikes could

have possessed the drugs without possessing a gun. Section 2K2.1(b)(5)’s language regarding

“another felony offense” does not mean that the felony offense used as a basis for the enhancement

must arise from an incident separate from the underlying crime. So long as the conduct was

different, one incident will suffice. Compare Sanders, 162 F.3d at 399 (reversing enhancement

where the defendant burglarized a pawn shop where he stole firearms and instantly became a felon

in possession, because there was only one offense which resulted in the defendant’s possession of

the firearms), with United States v. Hardin, 248 F.3d 489, 499–501 (6th Cir. 2001) (affirming

enhancement where the defendant was found with possession of cocaine and possession of a

firearm).

          Accordingly, we affirm the district court’s enhancement of Sikes’s sentence under §

2K2.1(b)(5).



                                                   V.




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United States v. Dycus/Sikes

       The district court found that Dycus had a base offense level of twenty-four for possessing

a firearm after sustaining two prior convictions. The district court also enhanced Dycus’s sentence

under § 2K2.1(b)(5).

       During his sentencing hearing, Dycus objected to the sentencing enhancements in general,

arguing that, under Blakely v. Washington, 542 U.S. 296 (2004), the Sentencing Guidelines are

unconstitutional. He also objected to the enhancement under § 2K2.1(b)(5).

       Dycus first argues that the district court violated his Sixth Amendment rights by finding that

he had two prior convictions because the fact of his prior convictions was not proven to a jury

beyond a reasonable doubt. However, a district court may judicially find the fact of a prior

conviction. Booker, 125 S.Ct. at 756 (“Any fact (other than a prior conviction) which is necessary

to support a sentence exceeding the minimum authorized by the facts established by a plea of guilty

or a jury verdict must be admitted by the defendant or proved to the jury beyond a reasonable

doubt.”); see also Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998) (recognizing that

a prior conviction as a sentencing factor could increase the defendant’s punishment while not being

an element of the offense). Despite the Supreme Court’s indication in Shepard v. United States, 125

S.Ct. 1254, 1263 (2005), that a judge may not find a prior conviction based on certain types of non-

“judicial record” or comparable evidence, Almendarez-Torres controls here. See United States v.

Bradley, 400 F.3d 459, 462 (6th Cir. 2005). There is no indication here that the district court found

Dycus’s prior convictions based on evidence unacceptable under Shepard. Therefore, Dycus’s

argument fails.




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       Dycus also argues that the district court violated his Sixth Amendment rights by increasing

his sentence on the basis of facts not found by the jury, namely the drug possession as another felony

offense. Under Booker, the United States Sentencing Guidelines are no longer mandatory, but

advisory. The district court therefore erred in sentencing under a mandatory scheme. Booker, 125

S.Ct. at 766–69. Consequently, we vacate Dycus’s sentence and remand for resentencing consistent

with this opinion.

                                                 VI.

       For the foregoing reasons, we hereby AFFIRM Sikes’s conviction and sentencing, and

VACATE Dycus’s sentence and REMAND his case for resentencing.




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