September 6, 2018
Appeal from the United States District Court for the District
of New Jersey (D.C. No. 2-15-cr-00551-001) District Judge:
Honorable Esther Salas
Leticia Olivera Louise Arkel Office of Federal Public
Defender Attorneys for Appellant
E. Coyne Richard J. Ramsay Office of United States Attorneys
G. Sweitzer Federal Community Defender Office Attorney for
Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges.
HARDIMAN, CIRCUIT JUDGE.
McCants appeals his judgment of conviction and sentence.
McCants argues he was wrongly convicted based on evidence
that was found during an unconstitutional search. He also
claims his sentence cannot stand because he was wrongly
designated a career offender under the United States
Sentencing Guidelines. For the reasons that follow, we will
afternoon of June 28, 2015, a New Jersey woman dialed 911 to
report an ongoing domestic dispute. Here's how the call
CALLER: Can I have the number to East Orange Police
DISPATCHER: You need where?
CALLER: East Orange Police Department. It's
DISPATCHER: What's the problem?
CALLER: This guy is out here beating up his girlfriend.
He's about to kill her.
DISPATCHER: Where's this at?
CALLER: It's on Grove Street in East Orange.
DISPATCHER: Grove and-where on Grove?
CALLER: Grove and, and, and like Williams Street.
DISPATCHER: What is he wearing?
CALLER: He's wearing a red hat, with braids and he's
beating her up really bad right now I wanna break-I wanna
break it up but, I don't wanna do nothing.
DISPATCHER: No-you don't want to do that. Stay-hold on a
United States v. McCants, No. 15-551, 2016 WL
4705452, at *1 (D.N.J. Sept. 7, 2016). As the operator was
preparing to dispatch police to the scene of the altercation,
the caller repeated "he is beating her up really
badly" and stated, "I think he has a gun."
Id. The caller then hung up and the operator
dispatched the call in this way:
Grove and William, Grove and William, right now from a
caller, it's a male beating a female really badly, male
has braids with a red hat . . . . Again, it's going to be
Grove and William. Male, female. Male beating a female. Male
has braids red hat-at this time, I am advising the caller not
to intervene . . . . Now she is saying she believes he has a
gun . . . . Red hat and braids. Alright, the caller
Orange police were in the area at the time the call was
dispatched and they found a man matching the description near
146 Grove Street within one minute. Officer Moses Sangster
was the first to arrive on the scene. He "noticed a male
with dreads and a red hat" walking north on Grove Street
with a woman. App. 76. The couple was later identified as
Appellant Ibrahim McCants and Chelsea Fulton. Two other
officers- Stephen Rochester and Cory Patterson-also arrived
on the scene within minutes after hearing the call. Before
they approached the couple, Officer Rochester confirmed with
the dispatcher that "the male actor involved had
dreadlocks." App. 78. Officers Rochester and Patterson
then "immediately engaged" McCants and frisked him
due to the "nature of the call for service."
Id. During the pat down, Officer Rochester found a
loaded handgun inside a fanny pack McCants was wearing. The
officers placed McCants under arrest and recovered
distributable quantities of heroin.
written police reports described the interactions between
McCants and Fulton when the officers arrived at the scene.
Officer Rochester reported that he observed McCants
"speaking with a black female."
Id. Both McCants and Fulton confirmed in
separate interviews they had been arguing, though Fulton
said, "at no point did the argument get physical."
App. 82. Officer Crystal Singleton and Detective Jaleesa Wreh
reported that Fulton showed no signs of injury.
jury charged McCants with unlawful possession of a firearm by
a convicted felon in violation of 18 U.S.C. § 922(g)(1)
and possession with intent to distribute heroin in violation
of 21 U.S.C. §§ 841(a) and (b)(1)(C). McCants filed
a pretrial motion to suppress the firearm and drugs and
requested an evidentiary hearing on the motion, arguing the
officers did not have reasonable suspicion that he was
engaged in criminal activity before they frisked him. The
Government opposed the motion, and the District Court denied
it without oral argument. The Court found that the stop ...