                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          July 6, 2005
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,
             Plaintiff - Appellee,                      No. 04-5038
 v.                                               (D.C. No. CR-02-174-P)
 CASEY DUANTE JACKSON,                                  (N. D. Okla.)
             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

      Defendant was indicted for armed bank robbery, in violation of 18 U.S.C. §

2113(a) and (d) (Count One), and for using a firearm in furtherance of a crime of

violence, in violation of 18 U.S.C. § 924(c) (Count Two). Defendant filed a


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
motion with the district court seeking to quash his arrest and suppress evidence

allegedly obtained in violation of his Fourth Amendment rights. The district

court denied the motion. After a jury trial, Defendant was convicted on both

counts. The district court then sentenced Defendant to 87 months’ imprisonment

for Count One and 84 months’ imprisonment for Count Two, to be served

consecutively, followed by concurrent terms of supervised release for five years.

      On August 26, 2002, Sergeant Randy Brock of the Owasso Police

Department received dispatched information that the Exchange Bank of Owasso

had been robbed. According to the dispatch, the suspect was a black male

wearing black baggy windpants and a hooded sweatshirt, and he was last seen

leaving the bank on foot traveling westbound on 86th Street. Believing the

suspect could have hidden a vehicle just past the railroad tracks on 86th Street,

Sgt. Brock proceeded west on 86th Street in search of the suspect. While

pursuing this route, Sgt. Brock crossed railroad tracks, which were adjacent to the

bank, and left the city limits of Owasso.

      Approximately one minute after hearing the suspect’s description, Sgt.

Brock received another dispatch alerting him that the suspect was armed and that

a civilian in a red pickup truck was following the suspect. Sgt. Brock recalled




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seeing a red pickup truck 2 when he crossed the railroad tracks earlier, and he

continued west to find the truck. Sgt. Brock caught up with the red pickup truck,

and the driver informed him that the robbery suspect was driving a purple car

with a large “M” on its door and that the car was only a minute or so ahead of

them. At this point, Sgt. Brock activated his overhead lights and siren and began

searching for the dark colored car. Assuming the suspect would be traveling on

the highway, Sgt. Brock turned south onto Highway 11 where he observed a

purple Chevrolet Cavalier approximately one-fourth to one-half mile ahead of

him. Sgt. Brock pulled the Cavalier over and ordered the suspect out of the

vehicle. 3 After additional officers arrived, the officers removed the suspect from

the vehicle and arrested him. A total of nine minutes elapsed between Sgt.

Brock’s receiving the initial dispatch to his stopping the suspect’s vehicle.

        The first question presented to this court is whether Defendant’s

constitutional rights under the Fourth Amendment were violated when Sgt. Brock

arrested Defendant outside of his jurisdiction. This is a mixed question of law

and fact. “On appeal from the denial of a motion to suppress evidence, we review

the district court's factual findings for clear error, viewing the evidence in the


       The driver of the red pickup truck was inside the bank during the robbery.
        2

When the robber fled the bank, the civilian immediately followed him, ultimately
pursuing him in his red pickup truck.
        3
            When he approached the vehicle, Sgt. Brock noticed a large “M” on its
side.

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light most favorable to the government.” United States v. Cantu, 405 F.3d 1173,

1176 (10th Cir. 2005) (citation omitted). The ultimate determination of the

officer’s reasonableness, however, is a question of law and, as such, is reviewed

de novo. See United States v. Walker, 941 F.2d 1086, 1090 (10th Cir. 1991).

      Generally, a police officer’s authority does not extend beyond his

jurisdiction. Ross v. Neff, 905 F.2d 1349, 1354 (10th Cir. 1990). “A warrantless

arrest executed outside of the arresting officer’s jurisdiction is analogous to a

warrantless arrest without probable cause.” 4 Id. (citations omitted). For either to

be permitted, exigent circumstances must be present. Id. One predetermined

category of exigency is when an officer is found to be in hot pursuit of a suspect.

See Welsh v. Wisconsin, 466 U.S. 740, 750 (1984) (citing United States v.

Santana, 427 U.S. 38, 42-43 (1976)). “Hot pursuit means some sort of a chase,

but it need not be an extended hue and cry in and about (the) public streets.”

Santana, 427 U.S. at 42-43 (internal quotation marks omitted). Hot pursuit

occurs when an officer is in “immediate or continuous pursuit” of a suspect from

the scene of a crime. Welsh, 466 U.S. at 753; see also United States v. Schmidt,

403 F.3d 1009, 1013 (8th Cir. 2005) (explaining that the government must

demonstrate an “immediate or continuous pursuit” of the suspect from the scene

of the crime in order for the warrantless arrest to fall within the hot pursuit


      The Fourth Amendment to the United States Constitution provides that “no
      4

Warrants shall issue except upon probable cause.” U.S. Const. amend. IV.

                                          -4-
exception to the warrant requirement).

      Against this legal background, we consider whether Sgt. Brock was in hot

pursuit justifying the arrest of Defendant outside of his jurisdiction. According to

the factual findings in the district court’s order, which are not disputed by

Defendant, Sgt. Brock immediately responded to the dispatch regarding the

fleeing felon. Based on his experience, Sgt. Brock surmised that a suspect would

not flee on foot, and he decided to continue in the direction the suspect was

heading to search for a getaway car. We need not decide whether this type of an

unparticularized hunch would justify an arrest made outside of one’s jurisdiction

because in this case Sgt. Brock joined in another’s pursuit. While Sgt. Brock was

crossing the railroad tracks searching for a getaway car, the civilian in the red

pickup truck was in hot pursuit of the suspect. This civilian was present during

the bank robbery and immediately followed the suspect from the bank and

continued to follow him. The civilian’s pursuit of the suspect clearly began

within Sgt. Brock’s jurisdiction. Sgt. Brock joined in this hot pursuit when he

contacted the civilian and obtained additional information from him.

      After meeting with the civilian in the red pickup truck, Sgt. Brock took

reasonable steps to apprehend the suspect based on the information given to him.

Sgt. Brock’s continuous actions after joining the civilian’s pursuit were an

extended effort to apprehend the suspect. Thus, Sgt. Brock’s pursuit was



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immediate and continuous. We are reluctant to second-guess the investigative

decisions made by Sgt. Brock in this situation. See United States v. Robertson,

305 F.3d 164, 167 (3d Cir. 2002).

      Additionally, in deciding whether circumstances rise to the level of

exigency, it is important to consider “the gravity of the underlying offense for

which the underlying arrest is being made.” Welsh, 466 U.S. at 753. The

underlying offense here, armed bank robbery, is certainly a serious offense.

      We agree with the district court that “the exigencies of the situation[,]

including the fact that the suspect was armed, made the course taken by Sgt.

Brock imperative.” Aplt. Br., Exh. B, at 9 (Dist. Ct. Order). Accordingly, we

find that Sgt. Brock’s arrest of Defendant did not violate the Fourth Amendment.

      In his second issue on appeal, Defendant challenges his sentence as being

imposed in violation of his constitutional rights, as articulated in United States v.

Booker, 125 S. Ct. 738 (2005). Because he did not raise this issue to the district

court, we review for plain error. United States v. Gonzalez-Huerta, 403 F.3d 727,

732 (10th Cir. 2005) (en banc). Under that standard, we will only reverse

Defendant’s sentence if Defendant can prove that the sentence imposed was (1)

error, (2) which is plain, (3) which affects his substantial rights, (4) sufficient to

warrant an exercise of our discretion to correct the error so long as it does not

seriously affect the fairness, integrity, or public reputation of the judicial

proceedings. Id.
                                           -6-
      We have recognized two types of Booker errors–constitutional and non-

constitutional. See United States v. Lawrence, 405 F.3d 888, 906 (10th Cir.

2005). In this appeal, Defendant’s only claim is that the district court committed

constitutional error in sentencing him. Because Defendant claims constitutional

Booker error, we apply the plain-error review less rigorously. See United States

v. Brown, 316 F.3d 1151, 1155 (10th Cir. 2003). We agree with the parties that

the district court committed both clear and plain error by finding quantity facts.

However, in order to obtain the desired relief, Defendant must also establish the

third prong of the plain error test by demonstrating that his sentence was

“prejudicial. It must have affected the outcome of the district court proceedings.”

United States v. Olano, 507 U.S. 725, 734 (1993).

      Defendant’s sole argument regarding prejudice is that the constitutional

error is structural in nature and therefore prejudice should be presumed. We

recently rejected that argument. In United States v. Dowlin, we held “that

constitutional Booker error is not structural error because any prejudice stemming

from such error can be evaluated on the record developed in the prior

proceedings.” 408 F.3d 647, 668-69 (10th Cir. 2005). Defendant has failed to

meet his burden as to the prejudice prong and, therefore, cannot demonstrate

“plain error.” See id. at 671 (explaining that a party’s failure to meet one prong

of the test is a sufficient reason not to notice plain error).



                                           -7-
AFFIRMED.



                  Entered for the Court


                  Monroe G. McKay
                  Circuit Judge




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