In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2287

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EVAN WOODS,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 93 CR 632--John A. Nordberg, Judge.


Argued September 27, 2000--Decided November
27, 2000




  Before POSNER, COFFEY, and KANNE, Circuit
Judges.

  COFFEY, Circuit Judge. On September 28,
1993, Evan Woods was charged in a two-
count indictment in the Northern District
of Illinois with: 1) being a felon in
possession of a firearm in violation of
18 U.S.C. sec. 922(g)(1) (count one); and
2) possession of a firearm with the
serial numbers removed, obliterated, or
altered, in violation of 18 U.S.C. sec.
922(k) (count two). After the trial judge
denied Woods’ motion to suppress the
firearm found in his possession at the
time of his arrest, Woods pled guilty to
count one of the indictment and reserved
his right to appeal the denial of his
motion to suppress./1 Upon Woods’ plea
of guilty to count one of the indictment,
the judge imposed a sentence of 180
months’ imprisonment, three years’
supervised release, and a $50 special
assessment./2 We affirm.

  On July 23, 1993, at approximately 7:25
p.m., three Chicago police officers were
in an unmarked car patrolling in one of
the city’s highest crime rated areas. As
the officers drove around a corner, they
observed three men standing in front of
an apartment building and that one of the
three men was holding a firearm. As the
officers approached, the person holding
the weapon turned and ran into the build
ing. The officers exited the car, ran
into the building in pursuit of the
defendant, and found Woods pounding on an
apartment door. As one of the officers
approached the man, he placed his hand on
the defendant’s shoulder and recognized
him as Evan Woods./3 As Woods turned
around, the officer observed the butt of
the gun protruding from the inner pocket
of the defendant’s jacket. After Woods
was placed under arrest, the officer
seized a loaded 9-millimeter handgun.

  After Woods was indicted on gun
possession charges, he filed a motion to
suppress the gun recovered from him on
the grounds that the officers were
without reasonable suspicion to detain
him and, therefore, his arrest was unsup
ported by probable cause. At his
suppression hearing, Woods testified that
while he did have possession of the gun,
he, in contradiction to the officer’s
testimony, was not showing the weapon to
his friends, and thus there was no
possible way the officers could have seen
the gun. Woods further stated that he did
not run into the building to elude the
officers, but rather he merely walked
into the building to visit a friend.

  After the suppression motion hearing
dealing with the legality of Woods’
arrest, the trial judge stated:

Now, with respect to defendant Evan
Woods’ testimony, I have to say, Mr.
Woods, that I made notes several times
that I didn’t believe his testimony.

* * *

Mr. Woods’ story as to the fact that he
just parked the car, got out of the car,
had a brief conversation in which he lent
money to two individuals, and walked
directly into the apartment not seeing
the police it seems to me really
incredible when you see the short
distance between the street and the
building. The idea that a police car,
because it would be clear that somebody
with the experience that Mr. Woods has
had would recognize the car if it is
surveillance on the street.

* * *

So it seems to me that the evidence
supports the Government version that
there are difficulties with defendant’s
version of the case. I didn’t believe
him. I noticed how his eyes, I looked at
his eyes, his demeanor, the pauses,
thinking out what he should say, and in
the end, it is a judgment. I have done
this for many years. I hope that I am
reasonably accurate in assessing the
credibility of witnesses, and I just did
not believe the testimony that Evan Woods
gave in this motion to suppress hearing.

Based on these findings the judge
proceeded to deny Woods’ motion to
suppress.

  On appeal, Woods argues that the district
court committed clear error when it
denied his motion to suppress. Woods also
challenges the trial judge’s
determination that he qualified as an
armed career criminal as well as the
judge’s determination that his sentence
should be enhanced for obstruction of
justice. Finally, Woods argues that
hereceived ineffective assistance of
trial counsel at the suppression hearing
and at sentencing.

A.   Woods’ Motion To Suppress

  On appeal, Woods argues that, even
though he possessed the weapon, the
officers who claimed to have observed him
with the firearm in plain view gave false
testimony. Further, Woods argues that
because he never displayed the firearm in
plain view, the officers lacked the
necessary probable cause to arrest him.
Thus, according to Woods, the court
should have suppressed the firearm
recovered from his jacket pocket.

  With regard to Woods’ first claim, that
the trial judge erred in denying his
motion to suppress, this court reviews
findings of historical fact and
credibility determinations for clear
error. United States v. Johnson, 170 F.3d
708, 712-13 (7th Cir. 1999). Furthermore,
"[w]e have frequently held that the trial
judge is in the best position to judge
the credibility of witnesses who offer
conflicting testimony . . . ." United
States v. Pitz, 2 F.3d 723, 727-28 (7th
Cir. 1993).

As a matter of sound jurisprudence, we do
not second-guess the sentencing judge’s
credibility determinations because he or
she has had the best "opportunity to
observe the verbal and non-verbal
behavior of the witnesses focusing on the
subject’s reactions and responses to the
interrogatories, their facial
expressions, attitudes, tone of voice,
eye contact, posture and body movements,"
as well as confused or nervous speech
patterns in contrast with merely looking
at the cold pages of an appellate record.
United States v. Tolson, 988 F.2d 1494,
1497 (7th Cir. 1993) (quotation omitted).

United States v. Hughes, 213 F.3d 323,
334-35 (7th Cir. 2000).

  As stated before, the police officers
testified that while they were on routine
patrol they saw Woods displaying a weapon
to a group of people, and that Woods fled
into a nearby building once he saw the
officers approaching. However, Woods
ignores the fact that the officers
clearly had reasonable suspicion to
believe that a crime had or was about to
take place when they observed him holding
a weapon in plain view (there is no
reason to overturn the judge’s
credibility finding in favor of the
police officers). See United States v.
Sawyer, 224 F.3d 675, 680-81 (7th Cir.
2000). Furthermore, Woods fled into a
nearby building when he observed the
officers. Finally, when the officers
approached Woods in the building, they
could see a firearm, in plain view,
sticking out of his inner jacket pocket.
Consequently, Woods’ arguments that the
police did not have probable cause to
arrest him are without merit.

B.   The Armed Career Criminal Act

  18 U.S.C. sec. 924(e)(1) states:

[I]n the case of a person who violates
section 922(g) of this title and has
three previous convictions by any court
referred to in section 922(g)(1) of this
title for a violent felony or serious
drug offense, or both, committed on
occasions different from one another,
such person shall be fined not more than
$25,000 and imprisoned not less than
fifteen years . . . .

Furthermore a "violent felony" is defined
as

any crime punishable by imprisonment for
a term exceeding one year, or any act of
juvenile delinquency involving the use or
carrying of a firearm, knife, or
destructive device that would be
punishable by imprisonment for such term
if committed by an adult, that

(i) has as an element the use, attempted
use, or threatened use of physical force
against the person of another; or

(ii) is burglary, arson, extortion,
involves the use of explosives, or
otherwise involves conduct that presents
a serious potential risk of physical
injury to another . . . .

18 U.S.C. sec. 924(e)(1)(B).
Woods argues that his 1991 Illinois
burglary conviction does not qualify as a
violent felony because it was the
burglary "of a commercial building, after
closing, while unoccupied."/4

  However, when determining whether a
particular crime is a violent felony, a
sentencing court’s inquiry is limited to
the elements of the previous criminal
convictions; the court is not free to
look at the underlying facts of a
particular case to see if the conduct
was, in fact, violent. Taylor v. United
States, 495 U.S. 575 (1990). With respect
to burglary, the Supreme Court has held
"that an offense constitutes ’burglary’
for purposes of a sec. 924(e) sentence
enhancement if either its statutory
definition substantially corresponds to
’generic’ burglary, or the charging paper
and jury instructions actually required
the jury to find all the elements of
generic burglary in order to convict the
defendant." Id. at 602. Furthermore, this
court has previously held that an
Illinois burglary conviction meets the
definition set forth in Taylor. United
States v. Simpson, 974 F.2d 845, 849 (7th
Cir. 1992); United States v. Gallman, 907
F.2d 639, 644-45 (7th Cir. 1990). We are
convinced that it was proper for Woods to
have been sentenced as an armed career
criminal because he had three previous
violent felonies./5
C. Woods’ Ineffective Assistance of
Counsel Claim

  Finally, Woods argues that he received
ineffective assistance of counsel both at
sentencing and at the suppression
hearing. To succeed on his ineffective
assistance of counsel claim, Woods must:
1) demonstrate that his counsel was
ineffective; and 2) show that he was
prejudiced by that ineffective assistance
of counsel. Strickland v. Washington, 466
U.S. 668, 687 (1984).

  Initially, Woods argues that he received
ineffective assistance at sentencing.
However, as previously discussed, Woods
received the absolute minimum sentence of
fifteen years (180 months) under the
Armed Career Criminal Act. As a result,
Woods cannot establish that he was
prejudiced in this case because no matter
how well counsel performed there was no
lesser sentence available to Woods under
the mandatory sentence provisions of 18
U.S.C. sec. 924(e)(1).

  Additionally, Woods argues that his
counsel was ineffective at the
suppression hearing in that counsel
failed to call two witnesses that Woods
alleges would have supported his version
of the events. Woods further argues that
counsel was ineffective for failing to
point out that one of the government’s
witnesses had, according to him, lied
under oath and that counsel should have
informed the district court that defense
counsel was under a grand jury
investigation for alleged controlled
substance abuse.

  Even assuming Woods’ recitation of
events is accurate, he has still failed
to establish the prejudice prong under
Strickland. Three Chicago police officers
observed Woods standing on a street
corner displaying a firearm to a group of
individuals. Furthermore, when Woods saw
the officers approaching, he immediately
fled into a nearby building. Immediately
thereafter, Woods was apprehended and a
loaded 9-millimeter handgun was found on
his person.

  Other than by challenging the
credibility of the police officers, Woods
fails to offer any evidence in
contradiction of the arresting officers’
version of events. Additionally, we have
previously determined that Woods was
properly sentenced as an armed career
criminal. We are convinced that Woods has
failed to establish the necessary
prejudice under Strickland because none
of his allegations of attorney misconduct
affect his actual guilt of the underlying
offense (he admits to possession of the
loaded firearm) and the trial judge
gratuitously sentenced Woods to the
lowest possible term of imprisonment.

  Woods’ conviction and sentence are

AFFIRMED.


/1 Count two of the indictment was dismissed on a
motion from the government.

/2 Although Woods received an enhancement for ob-
struction of justice and a reduction for accep-
tance of responsibility, the trial judge’s deter-
mination that Woods was an armed career criminal
subjected him to a mandatory minimum sentence of
15 years (180 months). Therefore, his sentence
was unaffected by the other sentencing factors
listed above.

/3 The officer recognized Woods from a prior arrest
and previous narcotics investigations.

/4 Woods does not dispute that he has two qualifying
violent felonies: his Illinois convictions in
1981 (attempted armed robbery) and 1988 (rob-
bery).

/5 Woods also argues that the trial judge erroneous-
ly enhanced his sentence for obstruction of
justice. However, given our holding that the
trial judge correctly determined that Woods was
an armed career criminal and the fact that Woods
received the mandatary minimum sentence of fif-
teen years, we are of the opinion that any error
the district judge committed would have been
harmless. See generally Durrive v. United States,
4 F.3d 548 (7th Cir. 1993); see also United
States v. Frazier, 213 F.3d 409, 417 (7th Cir.
2000). Any error would be harmless because with
or without the obstruction of justice enhance-
ment, Woods still would have received the 15-year
mandatory minimum sentence. Therefore, we do not
consider this issue any further.
