                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 19a0398n.06

                                           No. 18-3958

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                 Aug 01, 2019
 UNITED STATES OF AMERICA,                               )
                                                                             DEBORAH S. HUNT, Clerk
                                                         )
        Plaintiff-Appellee,                              )
                                                         )
                                                               ON APPEAL FROM THE
                v.                                       )
                                                               UNITED STATES DISTRICT
                                                         )
                                                               COURT FOR THE NORTHERN
 ANTHONY H. LETT,                                        )
                                                               DISTRICT OF OHIO
                                                         )
        Defendant-Appellant.                             )
                                                         )



BEFORE: SUTTON, GRIFFIN, and READLER, Circuit Judges.

       GRIFFIN, Circuit Judge.

       If bringing a knife to a gun fight is a supremely bad idea, stealing a gun from a gun show

is not far behind it. When defendant Anthony Lett tested his luck by attempting the latter, it left

him with two federal charges and—after a jury trial—two federal convictions. He now appeals

the denial of two pre-trial suppression motions and his sentence. We affirm.

                                                I.

       In the spring of 2016, Berea, Ohio hosted a gun show. Anthony Lett and two of his

comrades attended it. Lett was a convicted felon and, as such, was prohibited from buying

firearms. So he stole one instead.

       It all started when one of Lett’s companions posed a series of unusual questions to a vendor.

After the conversation ended, the vendor noticed that a gun was missing from his table. He notified
No. 18-3958, United States v. Lett


police, who sent an officer to take a report. While the vendor spoke with the officer, Lett

approached and stole a different gun—picking it up off the table and walking away. Fortunately,

the vendor’s son, who was at a neighboring table, saw Lett, confronted him, and recovered the

gun.

         Later in the day, Lett and his other partner in crime stole a third gun from a different vendor.

Lett spoke with the vendor to distract him, and Lett’s accomplice took one of the vendor’s guns

and began walking away. The vendor noticed, confronted the man, and recovered the gun. And

he, like the other vendor who had been a crime victim that day, reported the theft. That report

made its way to an off-duty officer who was working security. As that officer learned of the crime,

he saw Lett leaving the show. He had also heard of the previous thefts and therefore knew to keep

his eye on Lett. Then a third vendor pointed at Lett and said he was involved in the most recent

theft.

         Armed with this knowledge, the officer tried to stop Lett. But Lett refused to stop; he said

he had not done anything wrong and kept on walking. So the officer physically restrained him.

Then three or four more vendors arrived and identified Lett as one of the thieves. Lett later

provided his identification, and as the officer verified its accuracy, he learned that Lett had several

active arrest warrants. At that point, federal agents who were also at the show stepped in and took

Lett to a private area for questioning.

         While the agents detained him, they learned that police had yet to apprehend one of his

accomplices, who was potentially armed and had entered a hospital. In response, the hospital

initiated lockdown procedures and the agents addressed the situation. One agent took Lett’s

picture with a cellphone, showed the picture to two vendors, and asked them if the picture depicted

one of the men they had witnessed stealing guns. The agent did the same with drivers-license


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photographs of whom he believed were the other suspects—including the one who had entered the

hospital. The vendors confirmed that Lett and the others were the ones who had stolen multiple

guns.

        The agents eventually arrested Lett, and the government later charged him with being a

felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and with possessing a stolen

firearm in violation of 18 U.S.C. § 922(j). He then filed two motions to suppress evidence. In the

first, he argued that the officer who initially stopped him lacked reasonable suspicion that he had

committed a crime. In the second, he claimed that the agent who showed photographs to the

vendors violated due process because doing so unduly suggested that Lett was the suspect. The

district court denied both motions.

        Lett went to trial, where both vendors testified that an agent had shown them a picture they

had identified as one of the suspects, and where the agent himself testified that the vendors had

identified Lett, specifically. The jury convicted him of both crimes. The district court then

sentenced him to 120 months’ imprisonment on the first charge and 30 months’ imprisonment on

the second. The court imposed those sentences consecutive to each other and consecutive to a

lengthy state sentence Lett had received for an unrelated crime. This appeal followed.

                                                II.

        Lett challenges the denial of both suppression motions and the district court’s decision to

run his federal sentences consecutive to his unrelated state one. Thus, we must answer three

questions: Did the officer have reasonable suspicion to stop Lett? Was the agent’s use of Lett’s

photograph improper? And did the district court err by imposing consecutive sentences?

        Reasonable Suspicion. The Fourth Amendment guarantees “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”


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U.S. Const. amend. IV. Officers may temporarily seize citizens if the officers have “reasonable”

suspicion of criminal activity stemming from “specific and articulable facts” the officers know at

the time of the stop. Terry v. Ohio, 392 U.S. 1, 21–22 (1968). It is not a high bar. Navarette v.

California, 572 U.S. 393, 396–97 (2014). All an officer needs is “a minimal level of objective

justification” for the stop. Illinois v. Wardlow, 528 U.S. 119, 123 (2000).

       Measured by these considerations, Lett’s challenge comes up short. He argues that the

officer was unable “to articulate any facts that would establish the legal conclusion that [he] was

engaged in any form of criminal activity” and that the officer detained him “simply because other

unknown parties [said] to do so but did not give [the officer] a reason.” Yet the eyewitnesses did

give the officer a reason to stop Lett: they identified him as one of the men who had stolen guns.

       So did the officer have reasonable suspicion to stop Lett?             Yes.   The eyewitness

identifications, alone, created that suspicion. See, e.g., United States v. Powell, 210 F.3d 373 (6th

Cir. 2000) (table) (“[A]n officer certainly has ‘reasonable suspicion’ to rely on a victim’s statement

that a particular individual is a suspect.”); see also United States v. Marxen, 410 F.3d 326, 329

(6th Cir. 2005) (holding that an officer had reasonable suspicion to stop a car when an eyewitness

to a robbery had identified it as the getaway car); Gardenhire v. Schubert, 205 F.3d 303, 317 (6th

Cir. 2000) (noting that an eyewitness identification of a suspect, alone, might not create probable

cause but would create reasonable suspicion). The district court therefore correctly denied Lett’s

suppression motion.

       Photograph Identification. When an eyewitness relies on photographs to identify a

suspect, the government may in turn rely on that identification if the process surrounding it was

not so suggestive that it produced a high likelihood of misidentification. Simmons v. United States,

390 U.S. 377, 384 (1968). Consistent with this standard, a defendant seeking to exclude such an


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No. 18-3958, United States v. Lett


identification must show that the procedure leading to it was unduly suggestive. United States v.

Sullivan, 431 F.3d 976, 985 (6th Cir. 2005). If he makes that showing, a court must then consider

the totality of the circumstances surrounding the identification to evaluate its reliability. Id.

       Lett argues that the district court erred by admitting the government’s identification

evidence, but he has not shown that the process that produced it was unduly suggestive. He claims

it was “highly suggestive,” but he never explains why that was so. Instead of describing what

occurred and why it created a likelihood of misidentification, he focuses on what did not happen.

Lett emphasizes that the agent never used a blind administrator (someone who does not know the

suspect’s identity) and never circled back with a lineup of multiple photographs or actual people.

That might be correct, but it doesn’t benefit Lett because no court has held that due process

requires those procedures. Indeed, in past cases we have approved the use of identifications that

occurred in their absence. See, e.g., United States v. Watson, 540 F. App’x 512, 515 (6th Cir.

2013) (noting that whether officers used a blind administrator was “irrelevant” to whether a

photographic identification violated due process); Bruner v. Perini, 875 F.2d 531, 534–35 (6th Cir.

1989) (approving the admission of identification testimony when the police had not used a lineup

and had instead brought the defendant, alone, in front of the eyewitness).

       So was the agent’s use of Lett’s photograph improper? No. Lett has not given us any

reason to conclude that it was. And everything about the identifications suggests that the vendors

were correct. As the government points out, both venders interacted with Lett that day, speaking

with him as he stood just a few feet away. He stole a gun in front of one of them, and he was

speaking with the other as his accomplice stole a different gun—events that were sure to stick out

from the run-of-the-mill interactions the vendors had that day. And they identified his photograph




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No. 18-3958, United States v. Lett


the day of the crimes, not weeks or months later. Accordingly, the district court did not err in

denying Lett’s suppression motion.

       Consecutive Sentences. When a district court sentences a defendant who is already serving

time for another offense, the court must decide whether to run the new sentence consecutively or

concurrently to the current one. 18 U.S.C. § 3584(a). To make that decision, the court must

consider several factors listed in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3584(b). The Sentencing

Guidelines also list several factors the court must keep in mind. See USSG § 5G1.3, app. n. 4(A).

If the district court considers these factors, it enjoys discretion to impose either type of sentence—

consecutive or concurrent. United States v. Watford, 468 F.3d 891, 916 (6th Cir. 2006).

       Lett takes issue with the consecutive sentences he received. He claims that nothing in the

record shows that the district court considered the relevant factors. But his argument encounters

a few insurmountable obstacles. First, despite the district court asking if anyone had objections to

the sentence, Lett never raised one. Thus, plain-error review applies, see United States v. Vonner,

516 F.3d 382, 386 (6th Cir. 2008) (en banc), which requires Lett to establish that the district court

committed (1) an error (2) that was clear or obvious, (3) that affected Lett’s substantial rights and

(4) that affected the judicial proceedings’ fairness, integrity, or public reputation, id. But Lett has

not attempted to make that showing; he neither mentions the plain-error elements nor makes any

argument we could interpret as addressing them.

       Second, the district court explained in detail why it imposed the sentence. The government

also argued at length that Lett should receive consecutive sentences, even calling it the “main

issue” the court needed to decide. And the court then said that the government had “correctly

analyzed” the interplay between the various sentencing factors.




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No. 18-3958, United States v. Lett


       So did the district court err by imposing consecutive sentences? No. The record reveals

that the district court thoroughly analyzed who Lett was, what he did, and why consecutive

sentences were warranted to punish him, protect the public from him, and deter others from

committing similar crimes. Lett can show no error—much less an error that was obvious,

prejudicial, and unfair.

                                              III.

       For these reasons, we affirm Lett’s convictions and sentence.




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