United States v. Coles

97 F. App'x 665
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 3, 2004
DocketNo. 03-1451
StatusPublished
Cited by3 cases

This text of 97 F. App'x 665 (United States v. Coles) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Coles, 97 F. App'x 665 (7th Cir. 2004).

Opinion

ORDER

Dennis Coles was convicted after a jury trial of possession of a firearm by a felon, 18 U.S.C. § 922(g)(1), and sentenced as an Armed Career Criminal, id. § 924(e), to 293 months’ imprisonment and five years’ supervised release. His appointed appellate attorney filed a notice of appeal but now seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he is unable to find a nonfrivolous issue for appeal. Coles was notified of counsel’s motion, see Cir. R. 51(b), and has filed a response. We limit our review of the record to those potential issues identified in counsel’s facially adequate brief, see United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997), and in Coles’s response. Because we conclude that all of those potential issues are frivolous, we grant counsel’s motion to withdraw and dismiss Coles’s appeal.

Coles was arrested after his girlfriend, Sabrina Hall, made several suspicious gun purchases at K’s Merchandise in Decatur, Illinois. The assistant store manager suspected that Hall was a “straw purchaser” because she came in frequently, selected multiple handguns without inspecting them, and paid in cash. The manager contacted the ATF, and agents arranged [667]*667to be present when Hall came to the store to pick up four 9mm handguns that she had bought during an earlier visit but could not take home until after the required paperwork had been processed. Coles accompanied Hall when she arrived at the store on May 23, 2003, and conversed with her in the gun sales area while the serial numbers on her new guns were checked against the paperwork. The guns were then placed in unique silver shopping bags. Once outside the store, Coles took the bags from Hall. ATF agents approached the couple with guns drawn, told them to put the bags down, and cuffed their hands. Coles was arrested after he admitted being a felon.

Counsel first considers whether Coles could challenge the sufficiency of the evidence on appeal. At trial Coles stipulated that the four guns had traveled in interstate commerce and that he was already a felon when he handled them, and thus the only contested matter was whether he knowingly possessed the guns. Hall testified for the government that on this and every other occasion she bought the guns for Coles at his direction with his money or, in the case of the last buy, money that he had borrowed from her aunt. Hall added that after making the previous buys she had given the guns to Coles and never saw them again. Coles, in contrast, labeled Hall and the rest of the government’s witnesses as liars and denied knowing that the bags he took from Hall just before his arrest contained guns. This credibility dispute was for the jury to resolve. United States v. Hodges, 315 F.3d 794, 799 (7th Cir.2003). Moreover, counsel correctly recognizes that it mattered not that Coles held the four guns only briefly before he was arrested; Coles had constructive possession even before he took the bags, see, e.g., United States v. Chatmon, 324 F.3d 889, 894 (7th Cir.2003) (constructive possession of a firearm is established by evidence demonstrating control); United States v. Rawlings, 341 F.3d 657, 658-59 (7th Cir.2003) (“Had [the defendant] said to one of his co-conspirators— ‘You hold this gun that I’ve bought but never touched, because I’m a felon and I don’t want to be charged with being a felon in possession, if we are caught’ — this would not negate his possession of it.”), and in any event “fleeting” possession is still possession, United States v. Lane, 267 F.3d 715, 719 (7th Cir.2001). Thus it would be frivolous for Coles to argue that a “rational trier of fact could not have found the essential elements of the crimes charged beyond a reasonable doubt, viewed in a light most favorable to the government.” United States v. Galati, 230 F.3d 254, 258 (7th Cir.2000).

Counsel next considers whether Coles might argue that the district court erred in denying his motion to suppress the guns and his post-arrest statements. At a suppression hearing ATF Special Agent Rollins testified that he and his fellow agents initially detained Coles outside K’s Merchandise and then arrested him after Coles had been administered Miranda warnings and admitted that he was a felon. The district court — crediting Rollins’s account — held that Coles’s detention and arrest started as a classic stop- and-frisk that ripened into an arrest as probable cause was developed, and was entirely consistent with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We would review this determination de novo. United States v. Scheets, 188 F.3d 829, 836 (7th Cir.1999). The agents reasonably suspected that Coles was involved in criminal activity because he took possession of guns that Hall had just obtained under obviously suspicious circumstances, and certainly the agents had sufficient basis to detain Coles in or[668]*668der to confirm or dispel their suspicions. See United States v. Felix-Felix, 275 F.3d 627, 633 (7th Cir.2001). Coles was frisked, eufffed, identified, and asked whether he was a felon. When he admitted that he was, the federal agents surely had probable cause to arrest him for violating § 922(g)(1).

Counsel also questions whether Coles might argue on appeal that his 293-month sentence under the Armed Career Criminal Act was imposed in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because, had it not been for the enhancement, the statutory maximum would have been 10 years, see 18 U.S.C. 924(a)(2). Statutory recidivism enhancements do not implicate Apprendi see 530 U.S. at 490; United States v. Hendricks, 319 F.3d 993, 1008 (7th Cir.2003), so we agree with counsel that pursuit of this contention would be frivolous.

Next, counsel evaluates whether Coles could advance a nonfrivolous challenge to the use of two of his previous convictions as qualifying offenses under § 924(e). Under § 924(e), a felon who violates § 922(g) after incurring three prior convictions committed on separate occasions for “violent felonies” or “serious drug offenses” is subject to imprisonment for 15 years to life. Coles was previously convicted of delivery of cocaine in Michigan in 1992, armed robbery in Michigan in 1996, and delivery of cocaine in Illinois in 1996.

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97 F. App'x 665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-coles-ca7-2004.