                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0588n.06

                                          No. 14-2537

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                               )                     FILED
                                                        )               Aug 18, 2015
       Plaintiff-Appellee,                              )           DEBORAH S. HUNT, Clerk
                                                        )
v.                                                      )      ON APPEAL FROM THE
                                                        )      UNITED STATES DISTRICT
JOHN CHAMBERS,                                          )      COURT FOR THE EASTERN
                                                        )      DISTRICT OF MICHIGAN
       Defendant-Appellant.                             )
                                                        )
                                                        )

BEFORE:        BOGGS and DONALD, Circuit Judges; and QUIST, District Judge.*

       BOGGS, Circuit Judge.         Police officers encountered Defendant-Appellant John

Chambers along with a man who was wearing a bandana over his face near the scene of a

reported shooting moments after the shooting occurred. The officers stopped the two men at

gunpoint and, in response to the officers’ inquiries, Chambers stated that he was carrying a gun.

The officers then frisked Chambers and discovered a loaded handgun that Chambers had taken

from his girlfriend without her consent. Chambers was thereafter convicted of being a felon in

possession of a firearm.

       Chambers appeals from the district court’s denial of his motion to suppress the firearm

evidence. He also challenges the application of a sentencing enhancement for possessing a

stolen firearm. We hold that, in light of the fluid and potentially dangerous circumstances

presented, the officers had reasonable, articulable suspicion of criminal activity that justified
*
 The Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
No. 14-2537, United States v. Chambers


their stop and frisk of Chambers. We also hold that the district court properly applied the

sentencing enhancement because Chambers deprived the owner of the firearm in question of

possession without her consent.      We therefore affirm the denial of Chambers’s motion to

suppress and affirm the district court’s sentence.

                                                 I

       Around 6:50 p.m. on January 9, 2013, emergency personnel in Flint, Michigan received a

911 call stating that someone had been shot at the Evergreen Regency Apartments. United States

v. Chambers, No. 13-20254, 2014 WL 1365691, at *1 (E.D. Mich. Apr. 7, 2014). Within a few

minutes, Michigan State Police Trooper Derek Hoffman and Michigan State Police Sergeant

Brian Reece responded to the broadcast from dispatch and arrived at the Regency Apartments.1

They immediately observed two men walking away from the complex near its entrance. One of

the men, Sean Collins, was wearing a bandana over his face. 2 The other man was Defendant-

Appellant John Chambers.

       The officers drew their weapons and ordered the two men to stop. Sergeant Reece asked

the men if they were armed, and Chambers responded that he had a gun in his coat pocket.

Sergeant Reece then frisked Chambers and recovered a loaded .40-caliber handgun, an additional

magazine, and a holster. He then placed Chambers under arrest. The handgun belonged to

Chambers’s girlfriend; Chambers had taken it from her that evening without permission.




1
  The record suggests that the officers arrived at the scene between one and three minutes after
receiving the broadcast from dispatch.
2
 There is some dispute in the record over whether the facial covering at issue was a bandana—as
described by the officers—or a camouflage hunter’s mask—as claimed by Collins. Because we
perceive no relevant differences under the circumstances between the two articles of clothing,
which each would mask a substantial portion of a person’s face, we need not resolve the dispute.

                                                -2-
No. 14-2537, United States v. Chambers


       On April 3, 2013, Chambers, who previously had been convicted of two felony offenses,

was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

Chambers filed a motion to suppress the firearm evidence, arguing that the officers lacked

reasonable suspicion for the search and seizure that produced the firearm. After holding an

evidentiary hearing, the district court denied the motion on April 7, 2014. The parties then

proceeded to a jury trial where, at the close of the evidence, Chambers renewed his suppression

motion. The district court again denied the motion, and Chambers was convicted as charged.

       At sentencing, the district court determined the applicable United States Sentencing

Guidelines range to be 18–24 months of imprisonment.            This range included a two-level

enhancement under USSG § 2K2.1(b)(4)(A) for possessing a stolen firearm. Ultimately, the

district court sentenced Chambers to 21 months of imprisonment. Chambers timely appealed the

denial of his suppression motion and the application of the sentencing enhancement.

                                                 II

       Chambers first argues that the district court improperly denied his motion to suppress the

firearm evidence.    Specifically, Chambers maintains that the arresting officers lacked the

reasonable, articulable suspicion necessary to justify their search and seizure of him.

                                                 A

       We review a district court’s decision on a motion to suppress under a mixed standard of

review. United States v. Winters, 782 F.3d 289, 294 (6th Cir. 2015). Under this approach, “we

review the district court’s findings of fact for clear error and its conclusions of law de novo.”

United States v. Johnson, 656 F.3d 375, 377 (6th Cir. 2011). Where, as here, the district court

has denied the motion, “we consider the evidence in the light most favorable to the government.”

United States v. Rose, 714 F.3d 362, 366 (6th Cir. 2013).



                                                -3-
No. 14-2537, United States v. Chambers


                                                 B

       The Fourth Amendment safeguards “[t]he right of the people to be secure in their

persons . . . .” U.S. Const. amend. IV. A law-enforcement officer’s stop and frisk of a suspect—

though potentially brief in duration—demonstrably infringes upon the suspect’s liberty and thus

constitutes a search and seizure for Fourth Amendment purposes. See Terry v. Ohio, 392 U.S. 1,

16 (1968) (“[W]henever a police officer accosts an individual and restrains his freedom to walk

away, he has ‘seized’ that person. And . . . a careful exploration of the outer surfaces of a

person’s clothing all over his or her body in an attempt to find weapons is . . . a ‘search.’”). An

officer may conduct a stop and frisk consistent with the Constitution “if two conditions are met.”

Arizona v. Johnson, 555 U.S. 323, 326 (2009). First, the investigatory stop must be lawful at its

inception—i.e., justified by the requisite level of suspicion. Ibid. Second, before conducting a

frisk, “the police officer must reasonably suspect that the person stopped is armed and

dangerous.” Ibid.

       Because the officers only frisked Chambers after he admitted to having a firearm, thus

providing reason to believe that he was armed and dangerous, our focus is on the first

requirement—i.e., whether the police had reasonable suspicion to stop Chambers.3

                                                 1

       The requirement that an investigatory stop be lawful at its inception is satisfied “in an on-

the-street encounter . . . when the police officer reasonably suspects that the person apprehended
3
  The district court addressed the constitutionality of the resulting frisk despite Chambers’s
failure to directly challenge that issue in his suppression motion. See Chambers, 2014 WL
1365691, at *9 (citing United States v. McMullin, 739 F.3d 943, 945 (6th Cir. 2014), for the
proposition that “counsel’s failure to clearly distinguish between the constitutionality of the stop
and constitutionality of the frisk will not prohibit this Court from analyzing the ‘frisk’ issue
presented”). Chambers raises no arguments on appeal that would call into question the district
court’s determination that, assuming the initial stop was justified, the resulting frisk comported
with the Fourth Amendment.

                                                -4-
No. 14-2537, United States v. Chambers


is committing or has committed a criminal offense.” Johnson, 555 U.S. at 326 (citing Terry, 392

U.S. 1). Whether an officer has reasonable suspicion of criminal activity is judged by the totality

of the circumstances. See, e.g., United States v. Galaviz, 645 F.3d 347, 353 (6th Cir. 2011).

Pertinent factors in the reasonable-suspicion analysis “include the officer’s own direct

observations, dispatch information, directions from other officers, and the nature of the area and

time of day during which the suspicious activity occurred.” United States v. Campbell, 549 F.3d

364, 371 (6th Cir. 2008).

       In holding that the officers here had reasonable, articulable suspicion to stop Chambers,

the district court relied on the following factors: the officers observed Chambers and Collins

walking together in close proximity to the reported scene of a shooting mere minutes after the

shooting occurred; Collins was wearing a mask at the time, which, in the officers’ experience,

may be associated with the commission of a crime; and Chambers and Collins were the only two

people in the area. Chambers, 2014 WL 1365691, at *8.4



4
  The parties dispute the extent to which we should rely on the observations and report of another
officer, Genesee County Sheriff’s Deputy Daniel Miller. Under the so-called “collective
knowledge” or “fellow officer” rule, police officers may develop the reasonable suspicion
necessary to effect a search or seizure based on information obtained and relayed by fellow
officers. United States v. Lyons, 687 F.3d 754, 766 (6th Cir. 2012). Relevant here, both
Sergeant Reece and Trooper Hoffman testified at the evidentiary hearing that, after receiving the
call from dispatch regarding the shooting and mere seconds before arriving at the Regency
Apartments, they heard a report over the radio from Deputy Miller that he had observed two
men—one of whom was masked—walking near the entrance to the complex. In his own
testimony, however, Deputy Miller did not recall specifically making that report—though he
noted that doing so “wouldn’t be something uncommon for [him] to do”—and no recordings
from the relevant time were available. Moreover, at trial, Chambers introduced 911 dispatch
chronologies indicating that Deputy Miller arrived at the scene two minutes after Sergeant Reece
and Trooper Hoffman encountered Chambers and Collins. In response, the government noted
that such chronologies are not necessarily accurate to the minute, especially in quickly unfolding
situations involving officers from multiple jurisdictions, and that the chronologies reflected the
time of Officer Miller’s report of his arrival at the actual scene of the shooting, rather than the
specific time that he observed Chambers and Collins.

                                                -5-
No. 14-2537, United States v. Chambers


                                                2

       Individually, none of the factors cited by the district court strongly suggests criminal

activity by Chambers or Collins.      However, we must be careful to consider “whether the

individual factors, taken as a whole, give rise to reasonable suspicion, even if each individual

factor is entirely consistent with innocent behavior when examined separately.” United States v.

Perez, 440 F.3d 363, 371 (6th Cir. 2006) (emphasis added); see also United States v. Marxen,

410 F.3d 326, 329 (6th Cir. 2005) (“In considering all the circumstances, the question is not

whether there is a possible innocent explanation for each of the factors, but whether all of them

taken together give rise to reasonable suspicion that criminal activity may be afoot.”). In this

respect, we must be mindful of the particular exigencies presented to the officers, who must

make decisions to safeguard their own and the public’s safety under the fog of rapidly

developing situations and without the luxury of complete information. Moreover, “in close cases

such as this, we have consistently stressed that we must ‘review the evidence in the light most



In any event, we need not wade too deeply into this dispute. The government never asserted that
Officer Miller provided a suspect description specifically identifying Chambers or connecting
him to criminal activity. Rather, the only information allegedly provided in Deputy Miller’s
report—“that he observed two individuals walking away near the scene of the shooting, one of
whom had a bandana covering his face,” Appellee Br. 14—was also obtained independently by
Sergeant Reece and Trooper Hoffman when they arrived at the complex seconds later and
observed Chambers and Collins themselves. Thus, even if we ignore the information allegedly
provided by Deputy Miller, the reasonable-suspicion calculus remains (essentially) the same:
Sergeant Reece and Trooper Hoffman independently responded to the dispatch regarding a
shooting in a high-crime area, observed Chambers and Collins—and only Chambers and
Collins—in close proximity to the scene mere moments after the call, and noticed that Collins
was wearing a mask at the time.

That Sergeant Reece’s and Trooper Hoffman’s testimony at the suppression hearing relied in part
on Deputy Miller’s alleged report does not alter our analysis. The reasonable-suspicion
determination is based upon an “objective standard that does not depend on the subjective beliefs
of the officer[s] on the scene,” but rather on the actual facts known to the officers. Winters, 782
F.3d at 303.

                                                -6-
No. 14-2537, United States v. Chambers


likely to support the district court’s decision.’” Winters, 782 F.3d at 301 (quoting United States

v. Braggs, 23 F.3d 1047, 1049 (6th Cir. 1994)).

                                                  a

       Chambers correctly observes that mere presence in an area associated with criminal

activity “may not, without more, give rise to reasonable suspicion.” United States v. Caruthers,

458 F.3d 459, 467 (6th Cir. 2006); see also Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“An

individual’s presence in an area of expected criminal activity, standing alone, is not enough to

support a reasonable, particularized suspicion that the person is committing a crime.”).

Nevertheless, presence in “an area of expected criminal activity” is “among the relevant

contextual considerations in a Terry analysis.”       Wardlow, 528 U.S. at 124.      In this case,

moreover, the officers’ suspicions were aroused not simply because they happened upon

Chambers and Collins in an area with a historical reputation for criminal activity, but rather

because they discovered the two men outside the very apartment complex in which a shooting

was reported only minutes earlier (and which also happened to be a high-crime area).

       We have observed repeatedly that a suspect’s presence near the location of a reported

crime can be a salient factor giving rise to reasonable suspicion. See, e.g., United States v.

Thornton, No. 14-4059, 2015 WL 4567780, at *4 (6th Cir. July 30, 2015) (collecting cases);

United States v. Atkins, 513 F. App’x 577, 580 (6th Cir.), cert. denied, 133 S. Ct. 2784 (2013)

(finding reasonable suspicion in part based on the defendant’s “temporal and physical proximity

to the reported crime”); Galaviz, 645 F.3d at 354 n.5 (initially finding reasonable suspicion based

in part on the location of the suspect’s car and the time of his encounter with the police relative

to the time of the reported crime). In this case, the fact that the officers encountered Chambers

and Collins “in close proximity in time and location to the . . . shots-fired allegations”



                                                -7-
No. 14-2537, United States v. Chambers


contributed to the officers’ suspicions that the men might have been involved in a shooting.

United States v. Johnson, 246 F. App’x 982, 987 (6th Cir. 2007).

       Moreover, the temporal proximity between the reported shooting and the officers’ arrival

at the scene—around one to three minutes—contributed to their perception of a potential risk to

their well-being and the need to approach Chambers and Collins with extreme caution. See

Transcript of Evidentiary Hearing (“Hearing”) at 13, United States v. Chambers, No. 13-20254

(E.D. Mich. Dec. 10, 2013) (officer testified that “[i]t was an officer’s safety situation meaning

that [there] was a high potential [for a] life-threatening or life-endangering situation [as] there

was a shooting just recently, we were in the area and we had two subjects in the area at that time

that potentially could be armed”); cf. Houston v. Clark Cnty. Sheriff Deputy John Does 1-5,

174 F.3d 809, 814–15 (6th Cir. 1999) (“[W]hen police officers reasonably fear that suspects are

armed and dangerous, they may . . . draw their weapons” and take “steps [that] are ‘reasonably

necessary for the protection of the officers.’”) (quoting United States v. Garza, 10 F.3d 1241,

1246 (6th Cir. 1993)). This remains true even if the belief that the two men may have been

involved in a shooting proved incorrect. Cf. Brinegar v. United States, 338 U.S. 160, 176 (1949)

(“[L]ong-prevailing standards” in the Fourth Amendment context “seek to give fair leeway for

enforcing the law in the community’s protection. Because many situations which confront

officers in the course of executing their duties are more or less ambiguous, room must be

allowed for some mistakes on their part.”).

       This case closely parallels the circumstances in United States v. McMullin, 739 F.3d 943

(6th Cir. 2014). In McMullin, officers arrived at the scene of a reported breaking-and-entering of

a home within ten minutes of receiving a radio communication from dispatch. The officers, who

did not have a specific description of any suspects, encountered McMullin close to the front of



                                                -8-
No. 14-2537, United States v. Chambers


the home. “Concerned for their safety and believing that McMullin might be a suspect in the

breaking and entering, the officers immediately frisked McMullin to ensure that he did not have

any weapons.”     Id. at 944.    The officers discovered a .38-caliber revolver in McMullin’s

waistband.

       The officers later determined that McMullin had not been involved with the reported

breaking-and-entering but, like Chambers, he was charged with being a felon in possession of a

firearm under § 922(g)(1). In affirming the denial of McMullin’s motion to suppress, we

determined that “the officers had a particularized and objective basis for suspecting McMullin of

the reported criminal activity” because they encountered him “standing in front of the same

window that had reportedly attempted to be broken into only a few minutes prior.” Id. at 947.

We also approved of the officers’ “almost immediat[e]” frisk of McMullin in light of the nature

of the suspected crime and “the officers’ reasonable fear for their own or others’ safety.” Ibid.;

see also id. at 946–47 (quoting United States v. Snow, 656 F.3d 498, 503 (7th Cir. 2011), for the

proposition that “[b]ecause burglary is the type of offense that likely involves a weapon, [the

officer’s] decision to [conduct] a protective frisk was reasonable despite the absence of

additional facts suggesting that [this suspect] in particular might be armed”). This analysis

applies with equal force here.

       Chambers warns us that his mere proximity to the area of the shooting “would apply to

anyone who was in the Regency Apartment complex that night” and therefore is “an all-

encompassing fact . . . insufficient to provide a specific, articulable basis of criminal activity.”

Appellee Br. 21. It is not simply the case, however, that the officers encountered Chambers and

Collins near a reported crime scene.      Rather, the officers encountered only Chambers and

Collins, who was wearing a mask at the time, walking in close proximity to the scene of a



                                                -9-
No. 14-2537, United States v. Chambers


reported shooting in a high-crime area a few minutes after the shooting occurred. See Thornton,

2015 WL 4567780, at *4–5 (finding reasonable suspicion after stressing that “the officers

encountered [the defendant] (and only [the defendant]) in close proximity to the location that

they suspected was the origin of the gunshots . . . [only] moments later”).

       When examining these circumstances, we must refrain from “engaging in a ‘divide-and-

conquer analysis’ that examines the factors supporting reasonable suspicion ‘in isolation from

each other.’” Winters, 782 F.3d at 301 (quoting United States v. Arvizu, 534 U.S. 266, 274

(2002)).   Thus, in light of the rapidly developing and potentially dangerous nature of the

situation, it was reasonable under the circumstances for the officers to detain Chambers and

Collins briefly and inquire as to whether they were armed. See, e.g., United States v. Vickers,

540 F.3d 356, 362 (5th Cir. 2008) (upholding stop and frisk of a suspect encountered near the

scene of a reported burglary in light of the officer’s perception that “burglary suspects are often

armed” and “safety required a pat-down”); cf. United States v. Sokolow, 490 U.S. 1, 11 (1989)

(In the Fourth Amendment context, courts should avoid making “rule[s that] would unduly

hamper the police’s ability to make swift, on-the-spot decisions.”).5


5
  This case is distinguishable from United States v. Johnson, 620 F.3d 685 (6th Cir. 2010), which
Chambers cites in arguing that “the fact that there was a 911 call reporting a crime and
[Chambers] was walking near the area of shooting [is] insufficient to provide a particularized and
objective basis to suspect [Chambers] of any wrongdoing.” Appellant Br. 24. In Johnson,
officers responded to a 911 call from an area associated with drug trafficking “asserting that
‘some people’ connected with a blue Cadillac were ‘walking around’ outside the caller’s
apartment.” 620 F.3d at 687. The Johnson court stressed that this vague 911 call “provided
insufficient reason to believe that [the defendant], even if he was one of the ‘people’ [the caller]
had called about, had committed, was committing, or was about to commit a crime.” Id. at 693.
The 911 call, which suggested—at best—“a limited, unspecified possibility of criminal activity,”
id. at 693–94, thus did not reasonably arouse suspicion of crime or fear for officer safety.

In contrast, the officers here were responding to a report of a specific (and violent) crime that
occurred in the very recent past. The Johnson court itself distinguished cases like this one that
“involved a report that a specific crime had taken place.” Id. at 693 n.6.

                                               -10-
No. 14-2537, United States v. Chambers


                                                 b

       For similar reasons, our analysis is not undermined by Chambers’s observation that

covering one’s face is normally an innocent behavior—especially during a Flint, Michigan

winter.6 When viewed in conjunction with the time and location factors discussed above, the

fact that the officers encountered a masked individual mere moments after arriving at an active

crime scene reasonably contributed to their suspicions in this case.         Persuasive precedent

supports this understanding.

       In United States v. Roberson, for example, the Fifth Circuit found reasonable suspicion to

justify a stop and frisk of a suspect in part because the suspect was wearing a bandana over his

face. 496 F. App’x 390, 393 (5th Cir. 2012). The defendant in Roberson argued that his attire

“was not a legitimate basis for reasonable suspicion” because there were “reasons other than

robbery that he might have been wearing a bandana, namely that it was cold.” Ibid.7 After

observing that there was no precedent “holding that attire is an inherently inappropriate factor for

a reasonable suspicion calculus,” the Fifth Circuit deferred to the district court’s determination

that the defendant “was wearing the bandana for reasons unrelated to the weather.” Id. at 393–

94; see also United States v. Spoerke, 568 F.3d 1236, 1249 (11th Cir. 2009) (finding reasonable

suspicion of illicit activity based on the officer’s “observation of gloves, goggles, a face mask,


6
  The temperature in Flint at 6:50 p.m. on January 9, 2013, was around 39°F with a wind-chill of
29.6°F. See Weather History for KFNT on Wednesday, January 9, 2013, Weather Underground,
http://www.wunderground.com/history/airport/KFNT/2013/1/9/DailyHistory.html?req_city=Flin
t&req_state=MI&req_statename=Michigan&reqdb.zip=48507&reqdb.magic=1&reqdb.wmo=99
999 (last visited August 17, 2015). This is well above the average historical mean temperature of
23°F for that date. Ibid. However, 39° (with a 29.6° wind-chill) certainly may be brisk enough
to justify covering one’s face—especially in light of an average wind speed that evening of 18.4
mph with gusts to 28.8 mph. Ibid.
7
 The defendant in Roberson presented evidence that a cold front had moved into Dallas on the
date in question, reducing the wind-chill temperature to around 40°F. 496 F. App’x at 393.

                                               -11-
No. 14-2537, United States v. Chambers


and a flashlight in plain view”); United States v. Chapman, 954 F.2d 1352, 1357 (7th Cir. 1992)

(“[T]he observation of a holster and a ski mask—in July—would certainly justify experienced

officers in concluding that” the suspects “were involved in [a] reported bank robbery.”). We

similarly defer to the district court’s decision here to credit the officers’ testimony that wearing a

mask “may be associated with the commission of a crime.” Chambers, 2014 WL 1365691, at

*8; see also Hearing at 10–11, 41 (officers testified that, in their experience, wearing a bandana

or mask over the face in the relevant neighborhood is “more associated with concealing [one’s]

identity in relation to . . . committing a crime” than with staying warm).

       In sum, we conclude that Chambers’s temporal and physical proximity to the scene of a

reported shooting and his presence with an individual wearing a mask over his face provided

reasonable suspicion for his brief detention by the police. We reach this conclusion in view of

the specific exigencies presented to the officers, including their perception of a potential threat to

public safety and their own well-being, and our obligation to “review the evidence in the light

most likely to support the district court’s decision.” Winters, 782 F.3d at 301 (internal quotation

marks omitted).

                                                 III

       Chambers next argues that the district court improperly applied a two-level sentencing

enhancement under USSG § 2K2.1(b)(4)(A) for possessing a stolen firearm.                Specifically,

Chambers asserts that there was no evidence that the gun he possessed was “stolen.”

                                                  A

       We review the district court’s legal conclusions regarding the Sentencing Guidelines de

novo. United States v. Moon, 513 F.3d 527, 540 (6th Cir. 2008). We “‘accept the findings of

fact of the district court unless they are clearly erroneous and . . . give due deference to the



                                                -12-
No. 14-2537, United States v. Chambers


district court’s application of the Guidelines to the facts.’” Id. at 539–40 (quoting United States

v. Williams, 355 F.3d 893, 897–98 (6th Cir. 2003)). It is the government’s burden to prove that

an enhancement applies by a preponderance of the evidence. United States v. Dunham, 295 F.3d

605, 609 (6th Cir. 2002).

                                                B

       USSG § 2K2.1(b)(4)(A) provides that a two-level sentencing enhancement should be

applied to an offense involving the possession of a firearm if the firearm “was stolen.” In United

States v. Jackson, this court established that the meaning of “stolen” in that section comports

with “the Oxford English Dictionary’s definition of ‘steal,’ as ‘To take dishonestly or secretly.’”

401 F.3d 747, 750 (6th Cir. 2005). The defendant in Jackson had taken a gun that belonged to

his father “without permission” and with the intent to use it to commit suicide. Id. at 748.

Because the defendant “assumed the gun would eventually be returned to his father,” he argued

that “it was not ‘stolen’” for the purposes of the Guidelines. Ibid. Relying on persuasive

precedent from other circuits, however, we determined that the applicable definition of “stolen,”

in contrast to the common-law definition of larceny, does not require “the intent to permanently

deprive the owner” of the firearm “of his property.” Ibid.; see also United States v. Herrman,

No. 96-3076, 1996 WL 621028, at *1 (10th Cir. Oct. 28, 1996) (“We are persuaded the gun was

stolen within the meaning of section 2K2.1(b)(4)” when the owner “was deprived of possession

of the gun without his consent.”).

       In this case, the presentence report prepared by the United States Probation Office stated

that Chambers’s girlfriend, who was the lawful owner of the firearm at issue, kept the gun

“locked up” and that Chambers “took the gun without her permission.” Chambers did not object

to this statement. See Fed. R. Crim. P. 32(i)(3)(A) (“At sentencing, the court . . . may accept any



                                               -13-
No. 14-2537, United States v. Chambers


undisputed portion of the presentence report as a finding of fact.”). At trial, moreover, both of

the arresting officers testified that Chambers apologized to his girlfriend, who approached

Chambers after he was placed into custody, for taking her gun on the night of the arrest. Indeed,

Chambers’s own sentencing memorandum states that, although Chambers’s girlfriend “did not

feel that Chambers had ‘stolen’ [the gun] and she did not report it stolen,” she “did not know he

would take the gun” on the night in question.

       There is no indication in the record that Chambers received his girlfriend’s consent—

whether explicit or implicit—to take the gun, and thus the only evidence before us suggests that

Chambers “did not have access to [the] gun, absent engaging in conduct tantamount to taking it

dishonestly or secretly.” Thornton, 2015 WL 4567780, at *7. Because the record suggests that

Chambers’s girlfriend “was deprived of possession of the gun without [her] consent,” Herrman,

1996 WL 621028, at *1, and in light of the binding authority of Jackson, we defer to the district

court’s application of the enhancement in this case. Cf. United States v. Bates, 584 F.3d 1105,

1109 (8th Cir. 2009) (recognizing that a “broad definition of ‘stolen’ is consistent with the

guideline’s purpose[s]” and finding that the enhancement was properly applied where a

defendant found a gun that was “lost or mislaid” by its owner who “never authorized anyone to

take the gun, never sold it, and never gave it away as a gift”).

                                                 IV

       For the foregoing reasons, we AFFIRM the denial of Chambers’s motion to suppress and

AFFIRM the district court’s sentence.




                                                -14-
