                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3464
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

           Marquez Lanell Lawhorn, also known as Marzuis L. Wright

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
               for the Western District of Missouri - Jefferson City
                                 ____________

                          Submitted: September 27, 2013
                            Filed: November 13, 2013
                                 ____________

Before WOLLMAN, SMITH, and KELLY, Circuit Judges.
                          ____________

WOLLMAN, Circuit Judge.

       Marquez Lanell Lawhorn pleaded guilty to being a felon in possession of a
firearm, in violation 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Lawhorn appeals from
the district court’s1 denial of his motion to withdraw his guilty plea. We affirm.


      1
        The Honorable Fernando J. Gaitan, Chief Judge, United States District Court
for the Western District of Missouri, adopting the Report and Recommendation of the
                                   I. Background

       At approximately 11:32 p.m. on June 6, 2011, Columbia, Missouri, police
responded to a 911 call about a black male sitting in a red Ford Bronco in a hotel
parking lot. The 911 caller stated that the person in the car looked like he wanted to
commit a robbery. Two officers arrived at the hotel a short time later and noticed a
red Bronco parked nearby. A lone occupant, later identified as Lawhorn, was sitting
in the driver’s seat. According to the police report, when one of the officers shined
his spotlight at the car, Lawhorn looked back at the officers “with his eyes extremely
wide” and immediately reached behind the passenger’s seat with his right hand. The
officers immediately drew their weapons and ordered Lawhorn to put his hands in the
air. Lawhorn then exited the car, and as one of the officers handcuffed him, the other
officer looked through the car’s window and saw a Smith and Wesson FMP-40
handgun lying on the floorboard behind the passenger seat. The officers then placed
Lawhorn under arrest.

      Attorney Troy Stabenow was appointed to represent Lawhorn. Stabenow told
Lawhorn that there was no problem with the search and the way in which Lawhorn
had been seized and, according to Lawhorn’s testimony at the change of plea hearing,
“[we] [n]ever even discussed” the issue of a suppression hearing. Lawhorn
eventually pleaded guilty to the weapons charge, stating at his plea hearing that he
was “very satisfied” with Stabenow’s performance as counsel.

      Stabenow withdrew as Lawhorn’s counsel prior to sentencing because of a
conflict of interest between Lawhorn and another client. Lawhorn’s new counsel
suggested to Lawhorn that Stabenow should have moved to suppress the handgun.
Lawhorn then requested that the district court allow him to withdraw his guilty plea


Honorable Matt J. Whitworth, United States Magistrate Judge for the Western District
of Missouri.

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on the ground that Stabenow had provided ineffective assistance in failing to make
such a motion. The district court adopted the magistrate judge’s recommendation that
Lawhorn’s request be denied.

                                    II. Discussion

       We review the district court’s denial of Lawhorn’s request to withdraw his
guilty plea for abuse of discretion. United States v. Heid, 651 F.3d 850, 854 (8th Cir.
2011). A defendant may withdraw his guilty plea before sentencing if he
demonstrates a “fair and just” reason for doing so. Fed. R. Crim P. 11(d)(2)(B).
“While the ‘fair and just’ standard is a liberal one, we are mindful that ‘[t]he plea of
guilty is a solemn act not to be disregarded because of belated misgivings about the
wisdom of the same.’” United States v. Murphy, 572 F.3d 563, 568 (8th Cir. 2009)
(alteration in original) (quoting United States v. Thompson, 906 F.2d 1292, 1298 (8th
Cir. 1990)). Ineffective assistance of counsel can serve as a fair and just reason for
withdrawal if the defendant can demonstrate that his counsel’s performance was
deficient and that this deficiency prejudiced the defendant. United States v.
McMullen, 86 F.3d 135, 137 (8th Cir. 1996) (citing Hill v. Lockhart, 474 U.S. 52, 58-
59 (1985)). To show deficient performance, a defendant must establish that his
counsel’s performance fell below objective standards of reasonableness. United
States v. Cruz, 643 F.3d 639, 642 (8th Cir. 2011) (citing Strickland v. Washington,
466 U.S. 668, 687-88 (1984)). To show prejudice, a defendant must prove “that there
is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” McMullen, 86 F.3d at 137 (quoting
Lockhart, 474 U.S. at 59).

       The magistrate judge found that Lawhorn effectively waived any right to
complain about his counsel’s performance because counsel had discussed with him
the circumstances surrounding Lawhorn’s arrest and seizure of the firearm and
Lawhorn had professed satisfaction with his counsel’s performance at his plea

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hearing. The magistrate judge also found that, even assuming that counsel’s
performance was deficient, this deficiency did not prejudice Lawhorn because any
motion to suppress would have failed. Assuming that Lawhorn did not waive his
right to complain of counsel’s performance, we hold that Lawhorn has failed to show
prejudice because a motion to suppress evidence discovered during the search would
have failed.

       A police officer may conduct a brief, investigatory stop of an individual if the
officer reasonably suspects that the individual is involved in criminal activity. Terry
v. Ohio, 392 U.S. 1, 30 (1968). The officer may also conduct a patdown search of the
individual if the officer believes the individual is armed and dangerous. Id.
Reasonable suspicion must be based on specific, articulable facts. Id. at 21. In
determining whether an officer had reasonable suspicion based on specific,
articulable facts, we “look at the totality of the circumstances, allowing officers to
draw on their experience and training.” United States v. Hughes, 517 F.3d 1013,
1016 (8th Cir. 2008) (citing United States v. Arvizu, 534 U.S. 266, 273 (2002)).
Lawhorn argues that the officers did not reasonably suspect that he was involved in
criminal activity or that he was armed and dangerous when they shined a spotlight at
his car and ordered him to put his hands in the air.

       Lawhorn argues that the officers acted without reasonable suspicion that he
was involved in criminal activity, first by shining a spotlight on his car, and then by
ordering him to put his hands in the air. The act of shining a spotlight on a person’s
car typically does not constitute a seizure for purposes of the Fourth Amendment.
See United States v. Mabery, 686 F.3d 591, 597 (8th Cir. 2012). Nothing in the
record suggests that the officer’s act of shining a spotlight on Lawhorn’s car was
abnormally intrusive or coercive, especially given the late hour. Because this act did
not constitute a seizure, we need not inquire whether the police had reasonable
suspicion to believe Lawhorn was involved in criminal activity when they shined a
spotlight on his car. Rather, Lawhorn was seized when the officers drew their

                                         -4-
weapons and ordered him to put his hands in the air, and so we must determine
whether the officers had reasonable suspicion to detain Lawhorn based on the
information they possessed at that moment.

       Reasonable suspicion does not require “absolute[] certain[ty];” rather, an
officer must observe “unusual conduct which leads him reasonably to conclude in
light of his experience that criminal activity may be afoot.” Terry, 392 U.S. at 27, 30.
We have previously found reasonable suspicion where a cab driver reported to police
that his passenger was “agitated, nervous, and possibly armed with a knife” and
officers subsequently observed a person matching the driver’s description “briskly
walk[ing] away” from police. United States v. Horton, 611 F.3d 936, 939 (8th Cir.
2010). Similarly, we have found reasonable suspicion where officers, patrolling an
area where robberies had been reported, observed individuals “ducked down” in a
parked car and noticed one of the passengers reach under the seat as the officers
approached. United States v. Morgan, No. 12-4043, 2013 WL 4798896, at *1, *3
(8th Cir. Sept. 10, 2013).

       The officers in this case acted on more substantial information. They were
dispatched to the hotel parking lot in response to a call about a potential robbery.
Lawhorn complains that the caller gave no specific facts to support the conclusion
that Lawhorn intended to commit a robbery, but the caller’s paucity of detail did not
relieve officers of their duty to investigate. As recounted above, upon arriving at the
lot the officers found a car matching the caller’s description, shined a spotlight at the
car, and observed the car’s occupant look back at them wide-eyed and reach quickly
into the back seat. Cumulatively, this information led the officers reasonably to
suspect that Lawhorn may have been involved in criminal activity.

       It was only after the officers approached the vehicle and ordered Lawhorn to
put his hands in the air that one of them looked through the window of Lawhorn’s car
and saw a handgun lying in plain view on the floorboard of the car. Because that

                                          -5-
officer had a legal right to be where he was, he did not need reasonable suspicion to
look through the window of Lawhorn’s car, United States v. Bynum, 508 F.3d 1134,
1137 (8th Cir. 2007), or to seize a weapon that was in plain view from his vantage
point. United States v. Muhammad, 604 F.3d 1022, 1027 (8th Cir. 2010) (citing
Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)).

       Lawhorn attempts to marshal support for his position by citing three cases from
outside our circuit, but he cannot cite a single instance of a court finding no
reasonable suspicion where, as here, officers responded to an informant’s tip and
observed someone matching the informant’s description acting suspiciously. In
United States v. Blair, 524 F.3d 740, 750-51 (6th Cir. 2008), the Sixth Circuit held
that an officer did not have reasonable suspicion to stop a car based solely on the
car’s presence in a high-crime area. In United States v. Roberson, 90 F.3d 75, 80 (3d
Cir. 1996), the Third Circuit held that an officer did not have reasonable suspicion to
stop a suspect matching a tipster’s description when the officer had only observed the
suspect speaking to someone in a car and had not “noticed unusual or suspicious
conduct on [the defendant’s] part.” Finally, in United States v. Neff, 681 F.3d 1134,
1135-36, 1142 (10th Cir. 2012), the Tenth Circuit held that the officers did not have
reasonable suspicion to stop a car that exited the highway shortly after passing a
“Drug Check Ahead” sign because the driver’s conduct “conformed to the patterns
of everyday travel.” In all three of these cases, the officers either (1) had not received
an informant’s tip, or (2) had not personally observed suspicious activity. By
contrast, officers in this case received a tip from a 911 caller about a potential robbery
and personally observed someone matching the caller’s description reach quickly into
the back seat of his car after he noticed the officers. That the caller’s identity was
unknown does not negate the call’s reliability, United States v. McBride, 801 F.2d
1045, 1047 (8th Cir. 1986), and Lawhorn’s actions at the scene corroborated the
informant’s warning.




                                           -6-
       Because these events provided the officers reasonable suspicion sufficient to
make a Terry stop, a motion to suppress would have been fruitless, and thus Lawhorn
has no basis to claim that his counsel was ineffective in failing to make such a
motion. Lawhorn therefore can supply no fair and just reason for withdrawing his
guilty plea. Additionally, we note that Lawhorn does not now profess his innocence,
which is a factor the district court may consider in deciding whether to allow the
withdrawal of a guilty plea. United States v. Jones, 479 F.3d 975, 977 (8th Cir.
2007).

      The judgment is affirmed.
                     ______________________________




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