[00:00:00] Speaker 03:
The first case we'll hear this morning is United States v. Sherwood, No.

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23-5122.

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Counsel, you may proceed.

[00:00:16] Speaker 02:
Good morning.

[00:00:17] Speaker 02:
May it please the Court?

[00:00:19] Speaker 02:
My name is William Blunn, and I represent Adam Sherwood, who's the appellant in this case.

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The Fourth Amendment protects Americans against unreasonable searches and seizures.

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This case involves a police officer who, over and over and over again during a traffic stop, conducted unreasonable searches and seizures against the appellant.

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The first involved the stop of what was a white Chevrolet Silverado pickup truck.

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Terry requires that you must have reasonable suspicion of criminal activity as a foot,

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indicates that the suspicion has to be particular to the person that stopped.

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This is a case where a white Chevrolet Silverado pickup truck is a very common truck, and it's one that, in fact, if you go drive around Tulsa or Oklahoma City or almost any town in the West, you'll find a white Chevrolet Silverado pickup truck during the course of your trip.

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because there are so many of them on the road.

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I included the figures for 2014, 16.5 million cars sold, and 404,000 of them were Chevrolet Silverados.

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At that time, there were 25% that were white, but probably that figure is even more now.

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So the officer in this case acknowledged that this was a not uncommon vehicle, and in particular.

[00:01:52] Speaker 03:
Well, but the 911 call identified

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The vehicle is a white Chevrolet Silverado, correct?

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It did.

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And you argue that one out of a hundred cars are white Chevrolet Silverados.

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Why doesn't that support reasonable suspicion?

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Because I think the time factor

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You've got so many cars that white Silverado pickups simply are not at all uncommon.

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You need to match the reasonable suspicion.

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I mean, if you get a 911 call, and it's not just one 911 call.

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We know that.

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There were multiple 911 calls.

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And it matches that car.

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Reasonable suspicion is not a high bar.

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Why wouldn't it be reasonable for a police officer to say, you know, we have a 911 call about shooting.

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from a white Chevrolet Silverado, I better check this out.

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I mean, wouldn't it be remiss for an officer not to check it out?

[00:02:53] Speaker 02:
No, because 34 minutes had passed, and that's a long period of time.

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34 minutes isn't very long.

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From a 911 call, and it identifies the car in the vicinity, I mean, how much more specificity do you need beyond information about the truck's color, make, model, and location in 34 minutes?

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That's not enough for reasonable suspicion?

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I don't think so.

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Certainly the government found it.

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Give me an example of where a court's thrown out a traffic stop on those facts.

[00:03:22] Speaker 02:
Well, the government cited six cases or so, and none of them involved where you had similar vehicles.

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I'm asking you for a case.

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I'm not asking for the government's.

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Do you have a case that supports you?

[00:03:31] Speaker 02:
No, there's not a case of 34 minutes more specific.

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What was it?

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8911 calls?

[00:03:39] Speaker 02:
Yes, and those, of course, go much earlier in time to a place that's some three miles away.

[00:03:45] Speaker 04:
Let me ask you how that cuts, though.

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So I definitely understand, Mr. Glenn, your argument about the 34 minutes.

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But doesn't at least it create a potential argument for reasonable suspicion that the first 911 call was from several miles away?

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That was a similar vehicle.

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And then it gets to this, I think, 6415 South Mingo in several miles.

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And so doesn't the litany, the sequence of 911 calls, and the knowledge, or at least the potential inference from the fact that the 34 minutes could be attributable to the fact that this vehicle is traveling this area, does the fact that the original call was several miles away, does that undermine your argument about the 34 minutes?

[00:04:39] Speaker 02:
Yes, and I've thought of that.

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But in this case, you have two officers who came out to the scene almost immediately and they were looking for the truck and it simply wasn't there.

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The truck had sped off in a high rate of speed to the south.

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And here you have this car that isn't driving in any suspicious manner.

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And he says that he's actually looking for a motel, which there were motels that were there.

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That's post-stop.

[00:05:06] Speaker 02:
Yes.

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But it's perfectly reasonable to think that this is somebody who is going about their ordinary daily activities.

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And in answer to the court's question about cases, Madrid is probably a good case, which is time is a factor.

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And it's best if the person is caught basically near the time of the act of the actual commission of the offense.

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Mr. Blood, I don't know what kind of drill you used, so forgive us.

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But let me ask you about sort of the ubiquity of this white Chevrolet Silverado.

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I think it's a very creative, and I mean that, very good argument that you're making.

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On the other hand, let's say it's a black SUV, a little bit more generic definition.

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even more common than a white Chevrolet Silverado.

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There's not a lot of vehicles that are traveling in most areas, particularly this area, at 12.7 in the morning.

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And so even if there are millions and millions and millions of white Chevrolet Silverados, it's a great seller.

[00:06:17] Speaker 04:
Well, there were not

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presumably a whole lot of vehicles that are traveling 6415 South Mingo in an area, in a parking lot, where everything's closed at 1227 in the morning.

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It doesn't make sense.

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Unless they're looking for a hotel.

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That's the only thing I can say.

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And I think that's what happened here.

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I see.

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We also have an officer who claims that the license plate lights were out in this car.

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Well, is that right?

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I thought that the Oklahoma law was not that the lights were out, but that the law said that the lights have to illuminate the tag at 50 feet.

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And so, is that right?

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Yes, that's correct.

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And so after reading it, I didn't know Oklahoma, too, and I didn't know about such a law.

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So I've been doing my own little experiment.

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And I haven't ever seen, maybe it's my bad eyesight,

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of being able to identify a license plate, daytime or at night time, from 50 feet.

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So even if the lights were on, wasn't there still reasonable suspicion to believe that the tag wasn't illuminated sufficiently to be legible at 50 feet?

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I think the officer's position was that they were.

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I thought that he was of the opinion that they weren't.

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they were not working.

[00:07:42] Speaker 04:
Well, I think that's right.

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But in an objective test on reasonable suspicion, regardless of what the officer's intent was or why he thought that Mr. Sherwood had violated the law, isn't it an objective test on the legibility?

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And I think in this case, you have an additional factor here that's rather important, which is that the jurors

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come back with the note that says, we think that it was obviously illuminated.

[00:08:13] Speaker 01:
Well, so I thought about that one and I looked at the video.

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I mean, the video at, at the furthest shows the license plate and the, and the little light from me to you.

[00:08:25] Speaker 01:
Um, it wouldn't show, it wouldn't be relevant for whether you could see it from 50 feet in accordance with the statute.

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I think to the extent that the license plate on a manufactured car, where they obviously are designed for the purpose of illuminating the license plate, the fact that they're working says a lot.

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And I think the jury's reliance on that.

[00:08:49] Speaker 01:
I don't disagree with you as we just sit here and kick it back and forth today, but there's nothing in the record that shows that.

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There's no testimony from anybody that you could read the license plate from 50 feet away or anything like that.

[00:09:05] Speaker 02:
Well, again, all we've got is what the jurors have said, and they were certainly convinced that this was maybe not a legal stop.

[00:09:11] Speaker 01:
Well, tell me this.

[00:09:12] Speaker 01:
Let's assume that they were working.

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Let's also assume that we determine that the stop was okay based on the report of the Silverado pickup in the vicinity in the shooting, that that was enough.

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Is there any need to even consider the license plate illumination further?

[00:09:33] Speaker 01:
I want you to assume that we were to determine that the stop was legitimate based on the 911 call alone.

[00:09:43] Speaker 01:
OK, all right.

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Do we care about the illumination?

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You don't care about the illumination at that point.

[00:09:49] Speaker 02:
I agree.

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I know you've got some other issues, but isn't it relevant that the 911 calls reported shooting?

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And isn't there a public safety issue related

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to stop.

[00:10:04] Speaker 02:
I don't deny that there is, but it is.

[00:10:08] Speaker 03:
What's wrong with the police saying we're concerned about shooting coming from a white Chevrolet Silverado, and if we see one, we better stop it so nobody gets hurt?

[00:10:20] Speaker 02:
Well, the fact that it gives the officers excessive discretion to stop any car.

[00:10:25] Speaker 03:
You've got eight reports out there of gunfire coming from a white Chevy Silverado.

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And you're just going to let that go?

[00:10:35] Speaker 02:
Yes.

[00:10:35] Speaker 02:
In this instance, it's overly, to use Daniel's term, it's super generic.

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And it's nothing but an arbitrary hunch.

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And in this instance, that hunch was wrong.

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It's also an arbitrary hunch?

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Yes.

[00:10:50] Speaker 02:
Judge, I'm going to move to the frisk real quick.

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Because this is a case where we have an appellant who

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has no criminal record, he may be around other people that do.

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But there's nothing about him that suggests that he's armed and dangerous.

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Did he tell the officer he had a pocket knife in his pocket?

[00:11:10] Speaker 02:
He does have a pocket knife.

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Twice?

[00:11:12] Speaker 02:
Yes.

[00:11:13] Speaker 03:
So what's wrong with checking that out?

[00:11:15] Speaker 02:
Well, because under both Maloff and Albert, all you get to do is to feel the frisk of his outer garment and try and identify where there is a pocket knife.

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And if you don't find that,

[00:11:30] Speaker 04:
Yeah, isn't that the problem, though, that Mr. Sherwood said?

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I think it was, yeah, I've got a knife, a pocket knife, and it's in my left front pocket.

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And so you're absolutely right, I think, that the cases say that generally you're only supposed to frisk the outer layer of the pocket.

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But here, the anomaly is there's no reason to do that.

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He's already told the officer what the weapon is and exactly where it is.

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So it seems that a conventional frisk, I mean,

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be silly.

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And so he's got two choices.

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Okay, hand me your dangerous weapon.

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Doesn't seem like a prudent thing to do.

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Or he's told him where it is, reach in, get the knife.

[00:12:16] Speaker 04:
Well, he reaches in and he doesn't find the knife, he finds this, you know, the other stuff.

[00:12:23] Speaker 02:
The officer testifies, however, both at the trial and at the suppression hearing, that he did feel and he did not feel a weapon.

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And the cases are very clear that under that circumstance, you don't get to go rummage around.

[00:12:36] Speaker 01:
Well, that seems even more problematic to me, though, because you've been told there was a knife.

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You do a pat down, and you don't find it.

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And it seems like you definitely don't want to, for officer safety purposes, let go at that point and not check further.

[00:12:56] Speaker 02:
Well, the way you check further is that you feel around a little bit more until you can actually identify the outline of the pocket knife.

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You just don't go stick your hand into a pocket and pull out everything, because that's what makes it a general search.

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Those are the things.

[00:13:12] Speaker 03:
Could I just ask you, if the frisk wasn't reasonable, because you're arguing

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How does that affect the validity of the traffic stop, the car search, the warrant affidavit, or the sentencing issues that you've raised?

[00:13:28] Speaker 02:
If the search is not reasonable?

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If it is reasonable?

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If it's not reasonable.

[00:13:32] Speaker 02:
If it's not reasonable.

[00:13:33] Speaker 03:
If the risk wasn't reasonable, what does that have to do?

[00:13:35] Speaker 03:
It doesn't invalidate the traffic stop.

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It doesn't go to the probable cause for the car search.

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I don't know how it relates to the warrant affidavit or the sentencing issues.

[00:13:47] Speaker 03:
Even if you win on that issue, does it really matter?

[00:13:51] Speaker 02:
Because if you don't have the methamphetamine that gets found by the officer in the little small packet that's there, then he doesn't get to put that into his search warrant affidavit.

[00:14:02] Speaker 03:
OK.

[00:14:03] Speaker 02:
And that is an issue that actually came up in the suppression hearing.

[00:14:05] Speaker 03:
But it doesn't affect the car search, correct?

[00:14:08] Speaker 02:
It wouldn't affect the car search.

[00:14:09] Speaker 02:
That's right.

[00:14:10] Speaker 03:
Or the stock.

[00:14:11] Speaker 03:
No.

[00:14:12] Speaker 03:
OK.

[00:14:12] Speaker 02:
I'd like to actually deal quickly with acquitted conduct.

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And I'm going to suggest that the Claiborne case, which deals with 28 UIC 2106, is an appropriate avenue because of the dramatic change in the legal landscape that's happened since I argued acquitted conduct in February of this year.

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And the Sentencing Commission stated that it was looking at the McClinton case and then makes its recommendation that acquitted conduct not be considered.

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And then now that has been enacted.

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It is not retroactive.

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And so you can't do a motion under 3582.

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But you certainly can consider that factor for purposes of the remand of the case.

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And the judge should consider that.

[00:14:58] Speaker 02:
I'd like to reserve the remainder of my time.

[00:15:00] Speaker 02:
Thank you.

[00:15:00] Speaker 02:
Thank you.

[00:15:12] Speaker 00:
Good morning, and may it please the Court.

[00:15:13] Speaker 00:
John Alex Romano on behalf of the United States is appellee.

[00:15:17] Speaker 00:
The District Court correctly denied Mr. Sherwood's motion to suppress and correctly apply the sentencing enhancement for possession of the firearm.

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And accordingly, we ask that the Court affirm the convictions in the sentence.

[00:15:28] Speaker 00:
To begin with the first suppression issue, the stop of Mr. Sherwood's vehicle was lawful for two independent reasons.

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But first and foremost, because the officer had reasonable suspicion that the vehicle was the same vehicle

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that was involved in the recent reports of shots fired.

[00:15:44] Speaker 00:
Over the span of approximately 46 minutes, as the court knows, Tulsa Dispatch received eight 911 calls of shots fired.

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The second call identifies a white pickup truck.

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The second call occurs about four miles north of where at the stop of Mr. Sherwood's vehicle occurs.

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And as the court also knows, the seventh call identifies five to six shots fired from a white Chevrolet Silverado.

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The location of that call is 6515 South Bingo Road

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That is the exact location where Officer DeGeorge sees Mr. Sherwood's vehicle about 34 minutes later.

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And that vehicle is a white Chevrolet Silverado.

[00:16:23] Speaker 00:
So the fact that you have a vehicle observed by the officer that matches the make, model, color, and location of a vehicle identified in a shots fired call, we believe, provides the particular and objective basis to establish reasonable suspicion that that vehicle was the one involved in recent shooting activity.

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And I know a lot of my opponent's arguments focuses on the time lapse, but there are additional factors that support reasonable position here.

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This was an ongoing emergency.

[00:16:57] Speaker 00:
I don't believe there's a dispute that when Officer George seized his vehicle, the police, while they might have responded earlier to the scenes, they hadn't found the culprit of these shootings, of these shots fired.

[00:17:08] Speaker 00:
And there was a threat to public safety.

[00:17:11] Speaker 00:
Second, the court can consider the lateness of the hour.

[00:17:14] Speaker 00:
The stop occurs at 1 a.m.

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There are very few cars on the road.

[00:17:17] Speaker 00:
If the court looks at video exhibit two, which is taken from the patrol car off Officer DeGeorge, as he accelerates up South Mingo Road to catch up to Mr. Sherwood's vehicle, I think it shows only one or two other cars on the road.

[00:17:31] Speaker 00:
So that reduces the chance that this is some strange coincidence that Mr. Sherwood's vehicle happens to match the one in the shots fired call.

[00:17:38] Speaker 00:
The court can also consider the fact

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that the establishment at 6515 South Mingo Road is closed at the time.

[00:17:46] Speaker 00:
I think that's clear from some of the videos, whether it's a shop or a restaurant, it's closed.

[00:17:51] Speaker 00:
So there's no reason for the Silverado to be turning into that parking lot at that time.

[00:17:58] Speaker 00:
So all of that, we believe, supports a reasonable suspicion that Mr. Sherwood's vehicle was, in fact, the one involved in the shots fired call.

[00:18:06] Speaker 00:
And if the court agrees, then it need not go to the second ground.

[00:18:09] Speaker 00:
which is the distance of reasonable suspicion to believe that the lights on the rear license plate were not visible up to 50 feet.

[00:18:22] Speaker 00:
And I'm prepared to address any questions the court may have on that issue.

[00:18:25] Speaker 00:
We certainly briefed it.

[00:18:26] Speaker 00:
I think the question is whether or not the district court's finding, the court made a finding that to the extent Officer DeGeorge was mistaken about that, that he made a reasonable mistake.

[00:18:37] Speaker 00:
And the government submits that that finding was not clearly erroneous by the district court.

[00:18:41] Speaker 04:
Isn't it a crazy law, though?

[00:18:43] Speaker 04:
I mean, have you ever seen a license plate that you could identify at 50 feet?

[00:18:49] Speaker 04:
You're younger than I am.

[00:18:50] Speaker 00:
I don't know what I had about it.

[00:18:51] Speaker 00:
In fact, in looking at the same video that I know that Your Honor did, I couldn't detect.

[00:18:57] Speaker 00:
As Officer DeGeorge's vehicle is speeding up to catch up to the Silverado, I did not see it illuminated to 50 feet.

[00:19:05] Speaker 00:
I confess that this is the first time I've seen one of these laws.

[00:19:08] Speaker 00:
And I'm sure they're probably enforced in other jurisdictions as well.

[00:19:12] Speaker 00:
This is my first time dealing with it.

[00:19:14] Speaker 04:
It may be a second.

[00:19:15] Speaker 04:
But I just wonder if there's a law that says, a state law that says your tag has to be identifiable, has to be legible at 1,000 feet.

[00:19:26] Speaker 04:
And you come up and say, yeah, I have reasonable suspicion to believe that I can't identify it at 1,000 feet.

[00:19:33] Speaker 04:
So I can stop pretty much any car.

[00:19:36] Speaker 04:
At some point.

[00:19:38] Speaker 00:
I agree that that would be an extreme case, and certainly we're not there in this case.

[00:19:43] Speaker 04:
We may or may not be.

[00:19:45] Speaker 00:
OK.

[00:19:46] Speaker 00:
And I would just say just one comment about the jury note.

[00:19:48] Speaker 00:
The jury was not asked to find what the district court found here, which is that to the extent there was a mistake, it was a reasonable one.

[00:19:53] Speaker 00:
And of course, the jury could see the video and replay it as many times as it wanted to.

[00:19:58] Speaker 00:
And to Judge Carson, to your question to my opponent, yes, I think really the video only shows that to the extent

[00:20:05] Speaker 00:
the rear tag light is illuminated, it's really just up close.

[00:20:09] Speaker 00:
So it doesn't answer the question as to whether it's illuminated to a distance of 50 feet.

[00:20:16] Speaker 00:
So we submit, for all those reasons, that the stop of the vehicle was lawful.

[00:20:20] Speaker 00:
I'll turn to the protective frisk.

[00:20:23] Speaker 00:
Here, the district court appropriately found that there was a legitimate threat to officer safety, given the number of vehicle occupants, the likelihood that firearms were present, the time and the location of the stop,

[00:20:36] Speaker 00:
And Officer DeGeorge, we submit, acted perfectly reasonable by reaching into the left-hand pocket to look for the knife that Mr. Sherwood himself said twice was present.

[00:20:46] Speaker 00:
And the first time that Mr. Sherwood says that he has the knife there, Officer DeGeorge doesn't just sort of immediately start rummaging through his pockets.

[00:20:53] Speaker 00:
He's still trying to pat him down.

[00:20:54] Speaker 03:
Did he say that he had a knife after the pat down?

[00:21:01] Speaker 00:
No.

[00:21:02] Speaker 00:
My recollection of the video that

[00:21:04] Speaker 00:
He says he has, as the pat down is beginning, my recollection is that Sherwood says he has a knife there.

[00:21:10] Speaker 00:
And then the pat down continues.

[00:21:12] Speaker 00:
And then before Officer DeGeorge reaches into the left pocket, he asks again, something to the effect of, you said you had a knife in here.

[00:21:21] Speaker 00:
We can't quite hear what Sherwood's response is.

[00:21:26] Speaker 00:
But DeGeorge then says, no, I don't want you to get it.

[00:21:28] Speaker 00:
So I think the fair inference is

[00:21:30] Speaker 00:
Sure, but offers to get it for him.

[00:21:32] Speaker 00:
So he's confirming there's a knife in there, and he's willing to get it.

[00:21:35] Speaker 00:
So it's at that point that Officer George reaches into the pant pocket.

[00:21:40] Speaker 00:
And we submit that that was perfectly reasonable to do.

[00:21:44] Speaker 04:
I don't know that the question's... I think it's a little bit of a unique question, I think, because as I understand it, the question is not really whether or not the trooper was entitled to reach in.

[00:21:57] Speaker 04:
I think the question, I think,

[00:22:00] Speaker 04:
as a practical matter is, was he entitled, once he confirmed that there's not a pocket knife, he's got a baggie, you know, some cash and a little baggie, that doesn't feel like a pocket knife, whether he can still go ahead, retrieve that, it's the pulling out, so to speak, that really is the question.

[00:22:24] Speaker 04:
And why can he, if the idea behind reaching in,

[00:22:30] Speaker 04:
is for officer safety, because he is told that he's got a pocket knife in his left front pocket, why can't he continue and reach in, grab the baggie, grab the cash, and pull it out?

[00:22:45] Speaker 04:
That has nothing to do with officer safety.

[00:22:48] Speaker 00:
No, but at that point, and I think we have to remember, he's wearing gloves for his own protection, right?

[00:22:52] Speaker 00:
So there's a very possibility that he's feeling on the outside, and he just might be making a mistake and not be able to detect

[00:23:00] Speaker 00:
the knife that he's told is in there.

[00:23:02] Speaker 04:
Even when he's got his hand in the pocket?

[00:23:04] Speaker 00:
And then he reaches in, and the first thing I think he gets is really the only thing in the pocket are the baggie and some cash.

[00:23:10] Speaker 04:
So why is he getting tired of pulling that out?

[00:23:11] Speaker 00:
Well, again, he's wearing a thick glove.

[00:23:13] Speaker 00:
This is, from what I could tell, Mr. Sherwood is wearing jeans, so it's not a big pocket where he can maneuver around.

[00:23:19] Speaker 00:
He needs to lift it, presumably, to make sure that there's nothing underneath it.

[00:23:24] Speaker 00:
I think under the circumstances, that would be reasonable for an officer to do under this situation.

[00:23:30] Speaker 04:
So he might think that there was a pocket knife behind the baggie?

[00:23:33] Speaker 00:
I think, yeah.

[00:23:34] Speaker 00:
Under the objective framework that we look at, we would ask, would a reasonable officer sort of continue at that point just to make sure there's not something behind there?

[00:23:44] Speaker 00:
I think that would be the question.

[00:23:45] Speaker 04:
Yeah, then once he's determined, he obviously confirms that there's not a pocket knife behind the baggie and the cash, right?

[00:23:53] Speaker 00:
That's right, but he's already removed it.

[00:23:55] Speaker 00:
And I think the law is, I think it's Michigan versus Long that we cite in our case.

[00:24:00] Speaker 00:
Once you discover sort of contraband in the course of conducting what is a reasonable protective frisk, you're not, the officer doesn't have to ignore it at that point.

[00:24:10] Speaker 00:
And I would just say one last point on protective frisk.

[00:24:14] Speaker 00:
I don't think it affects, even if the court were to find that Officer DeGeorge acted unreasonably

[00:24:22] Speaker 00:
It wouldn't affect the conviction.

[00:24:23] Speaker 00:
It doesn't affect the validity, the probable cause of search of the vehicle.

[00:24:27] Speaker 00:
And if you remove that 0.35 grams of methamphetamine, that information that it was discovered in the pocket, if you just take that out of the search warrant affidavit, you still have probable cause to search the cell phones, given all the evidence of drug trafficking activity that is found inside Mr. Sherwood's vehicle.

[00:24:49] Speaker 00:
Let me ask you about the search.

[00:24:51] Speaker 01:
So the officer pulls up, knocks on the window, the guy puts it down, and he basically immediately starts accusing the guy of acting squirrely.

[00:25:04] Speaker 01:
And at what point does he have something to get in there and search the vehicle?

[00:25:13] Speaker 00:
I think it's clear, certainly once he sees.

[00:25:16] Speaker 01:
I mean, because the guy wasn't really acting squirrely, in my opinion, just watching it.

[00:25:21] Speaker 00:
I think once he sees the empty gun holster in the center console area, and he remarks about that at a minute, I think, 2 and 25 seconds, he says, you have a gun holster there, and it's empty.

[00:25:37] Speaker 00:
I think at that point, that takes us over, in the government's view, takes us over the probable cause line.

[00:25:42] Speaker 01:
And that's after he'd already confirmed that two of them were felons with prior charges.

[00:25:47] Speaker 00:
That's correct.

[00:25:48] Speaker 00:
And while I wouldn't use the word squirrely, and I take your honor's point, he walks up and he has to knock on the window to get Kenny Rosenberg, the driver, to roll it down.

[00:26:01] Speaker 00:
Rosenberg doesn't have identification on him, even though he's driving.

[00:26:06] Speaker 00:
All that occurs before he sees the gun holster.

[00:26:09] Speaker 00:
And I think shortly after he sees the gun holster, of course, then Rosenberg reaches toward the center of consult where the gun holster is.

[00:26:16] Speaker 00:
And that is certainly furtive conduct in the government's view.

[00:26:19] Speaker 00:
And then later on, maybe around the four to five minute mark, he has to instruct the female occupant to stop digging in her bag.

[00:26:27] Speaker 00:
So I think the first five minutes show examples of furtive conduct.

[00:26:33] Speaker 00:
It may not have been obvious at the get-go.

[00:26:36] Speaker 01:
Do you think it was okay to search based on the open container alone?

[00:26:41] Speaker 00:
We have not advanced that argument, Your Honor, in part because it is a misdemeanor under Oklahoma law.

[00:26:49] Speaker 00:
So it might get into a question of whether, at the point he observes it, is it on a public roadway?

[00:26:55] Speaker 00:
And then, although we certainly think

[00:26:59] Speaker 00:
there's a fair probability that that can of beer was open before it turned off.

[00:27:03] Speaker 00:
South Mingo Road would be very unusual for somebody to be pulled over by a police officer at that point to open a can of beer.

[00:27:09] Speaker 00:
But we're certainly not relying on the open container law.

[00:27:11] Speaker 00:
So you have about three minutes left, and I'll turn to sentencing and maybe just go straight to the acquitted conduct issue, because we think there's certainly a sound basis for the court to apply the two-level enhancement under 2D1.1B1.

[00:27:29] Speaker 00:
on the facts of this case.

[00:27:31] Speaker 00:
And the district court did not act inappropriately in relying on acquitted conduct.

[00:27:38] Speaker 00:
And that assumes that by virtue of applying this enhancement, it actually sort of relied on acquitted conduct.

[00:27:43] Speaker 00:
I think there's a fair question as to that.

[00:27:47] Speaker 00:
The amendment to the guidelines only recently took effect, so it only applies prospectively.

[00:27:54] Speaker 00:
So the district court applied an earlier version of the guidelines.

[00:27:57] Speaker 00:
And the Supreme Court in this court has said that a sentencing court may rely on acquitted conduct that's proven by a preponderance of the evidence.

[00:28:05] Speaker 00:
The Claiborne case that my opponent has cited in his recent 28-J letter doesn't apply here.

[00:28:10] Speaker 00:
In that case, the Seventh Circuit remanded under 28 USC 2106 to the district court to consider a recent amendment to the sentencing guidelines.

[00:28:22] Speaker 00:
That amendment, which was Amendment 821, was made retroactive by the Sentencing Commission.

[00:28:28] Speaker 00:
And that retroactive amendment had taken effect by the time the Seventh Circuit issued its decision.

[00:28:33] Speaker 00:
And you just don't have that here.

[00:28:35] Speaker 00:
The Sentencing Commission, at a recent August hearing, and we cited the transcript in our 28-J letter response, decided not to vote on retroactivity.

[00:28:44] Speaker 00:
It decided instead to sort of undertake and consider more generally how retroactive

[00:28:51] Speaker 03:
Activity decisions should be made so there's no curly I understand your argument Is the implication of your argument that we really don't have even discretion to do What's being urged on us which is to remand under 2106 that is correct absent a decision on retroactivity by the Sentencing Commission?

[00:29:16] Speaker 00:
There's no potential basis for Mr. Sherwood to seek relief.

[00:29:25] Speaker 00:
And for that reason, this court wouldn't have the discretion that the Seventh Circuit believed it had and concluded that it had under 28 U.S.C.

[00:29:33] Speaker 00:
2106.

[00:29:34] Speaker 04:
It is such an unusual circumstance in light of the fact that the Sentencing Commission is continuing to investigate how we address retroactivity.

[00:29:44] Speaker 04:
And I'm not, you know, trying to settle this dispute.

[00:29:48] Speaker 04:
But I just kind of wonder, just as a practical matter, is the most sensible thing to abate the appeal remand

[00:29:54] Speaker 04:
for if the government consents.

[00:29:57] Speaker 04:
And I'm not asking you whether you do or not.

[00:30:00] Speaker 04:
And to remain, give the district judge an opportunity to say whether or not the district judge would still have imposed the same enhancement in light of the new guideline.

[00:30:11] Speaker 00:
I don't think so.

[00:30:11] Speaker 00:
And I don't mean to reiterate my point, but it just sort of puts the cart before the horse.

[00:30:15] Speaker 00:
And certainly as a question of judicial economy, if the Sentencing Commission decides at some point in the future to make this amendment retroactive,

[00:30:22] Speaker 00:
All Mr. Sherwin needs to do is file a motion under 3582C2 in district court, and it's right before the issues, right before the district court.

[00:30:29] Speaker 00:
That's all that needs to be done to get consideration of the amendment, if it isn't voted to be retroactive.

[00:30:38] Speaker 00:
Thank you very much.

[00:30:51] Speaker 02:
Mr. Sherwood asked the officer why he was wanting to do this search, and the reason he said was, because you have a beer can.

[00:30:58] Speaker 02:
He didn't say anything about the gun holster.

[00:31:01] Speaker 02:
Sebron and Minnesota v. Dickerson both have language in it that condemns the rummaging that took place where you're not dealing with a weapon.

[00:31:12] Speaker 02:
You don't find a weapon.

[00:31:18] Speaker 03:
Thank you.

[00:31:18] Speaker 03:
Thank you.

[00:31:19] Speaker 03:
Thank you, counsel.

[00:31:20] Speaker 03:
The case will be submitted.