US v. Gary Starkie

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:13-cr-00128-FL-1 Copies to all parties and the district court/agency. [999577535]. [14-4782]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4782

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY STARKIE,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:13-cr-00128-FL-1)

Submitted:

April 30, 2015

Before MOTZ and
Circuit Judge.

KING,

Circuit

Decided:

Judges,

and

May 5, 2015

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

Joshua W. Willey, Jr., MILLS & WILLEY, New Bern, North Carolina,
for Appellant.
Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Shailika S. Kotiya, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Gary Starkie appeals his conviction and 300-month sentence
for possession of a firearm by a convicted felon, in violation
of 18 U.S.C. §§ 922(g)(1), 924 (2012).
district

court

erred

by

denying

Starkie argues that the

his

motion

to

suppress,

by

finding that a first-degree kidnapping conviction qualified as a
predicate felony under the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e), and by finding that he possessed the firearm
in connection with a crime of violence.

We affirm.

Starkie’s motion to suppress challenged the investigative
stop

that

led

to

his

arrest.

We

review

factual

findings

underlying a district court’s denial of a motion to suppress for
clear error and legal conclusions de novo.
Foster, 634 F.3d 243, 246 (4th Cir. 2011).

United States v.

A police officer may

stop a person for investigative purposes when he has reasonable
suspicion

based

on

‘may be afoot.’”
(2002)

(quoting

“[R]easonable

articulable

facts

“that

criminal

activity

United States v. Arvizu, 534 U.S. 266, 273
Terry

suspicion

v.
is

Ohio,
a

392

less

U.S.

1,

demanding

30

(1968)).

standard

than

probable cause and requires a showing considerably less than
preponderance of the evidence.”
119,

123

(2000).

Whether

Illinois v. Wardlow, 528 U.S.

there

is

reasonable

suspicion

to

justify a stop depends on “the totality of the circumstances,”
including

the

information

known
2

to

the

officer

and

any

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reasonable

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inferences

to

Foster, 634 F.3d at 246.

be

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drawn

at

the

time

of

the

stop.

A stop begins when the officer applies

physical force or the defendant submits to a show of authority.
California v. Hodari D., 499 U.S. 621, 626 (1991).
The district court found, and Starkie does not contest on
appeal, that the arresting officer was in a high-crime area at
11:00 p.m. on a hot, humid midsummer night when he saw Starkie,
who was wearing a fully zipped winter coat and a winter hat.
Starkie unsuccessfully attempt to open the door to a business
and then talked to his brother, who was standing outside an
idling car.

When the officer hailed Starkie, Starkie moved to

the other side of the car, hunched over, and appeared to fiddle
with something in his waistband.

The officer told Starkie to

show his hands, but Starkie did not comply.

The officer heard

the sound of metal hitting the ground and scraping along it.
The officer then told Starkie to put his hands on the car, and
Starkie complied.

Contrary to Starkie’s contentions that the

stop began the first time the officer told him to show his
hands,

we

conclude

that

the

stop

began

only

when

Starkie

complied with the officer’s request to put his hands on the car.
See id.

Because the officer’s observations at this point were

more than sufficient for the officer to reasonably suspect that
criminal activity might be afoot, the district court properly
denied the motion to suppress.
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Starkie also challenges the calculation of his Sentencing
Guidelines

range.

In

assessing

Guidelines

calculations,

we

review the district court’s factual findings for clear error and
its legal conclusions de novo.

United States v. White, 751 F.3d

225, 235 (4th Cir. 2014), cert. denied, 135 S. Ct. 1593 (2015).
Starkie

first

argues

that

his

conviction

for

first-degree

kidnapping under N.C. Gen. Stat. § 14-39 does not qualify as a
predicate offense under the ACCA because the statute under which
he was convicted encompasses nonviolent kidnapping and there was
no evidence that the particular kidnapping at issue involved
violence.
We have noted that the North Carolina kidnapping statute
can be violated in multiple ways.

See United States v. Flores-

Granados, __ F.3d __, __, 2015 WL 1652524, at *3 (4th Cir. Apr.
15, 2015) (No. 14-4249).

Although courts typically apply the

modified categorical approach when a statute is divisible, in
Flores-Granados, we used the categorical approach to determine
whether

second-degree

kidnapping

under

North

Carolina

satisfied the generic definition of kidnapping.
categorical
documents

approach
available

because
in

the

there
record

1

were
under

no

law

We used the

Shepard-approved 1

review

in

Flores-

Shepard v. United States, 544 U.S. 13, 16 (2005) (setting
forth documents courts may consider when applying modified
categorical approach).

4

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Granados.

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Id. at *3-4; see id. at *8 (defining generic offense

of kidnapping).
Applying the categorical approach, we held that, “because
the North Carolina statute requires a specific nefarious purpose
for conviction, even for second-degree kidnapping, it is well
within [the generic] definition and as such, it is categorically
a crime of violence [under the Guidelines].” 2
Following
degree

Flores-Granados,

kidnapping

we

conclude

conviction

qualifies

violent felony under the ACCA.

that

Id. at *5, *9.
Starkie’s

first-

categorically

as

a

Thus, the district court did not

err in classifying Starkie as an armed career criminal.
Starkie

also

argues

that

the

district

court

erred

in

finding that he possessed the firearm in connection with a crime
of violence—specifically, attempted armed robbery.
parties

dispute

whether

the

Government

Although the

established

the

commission of the offense by a preponderance of the evidence, we
need not resolve the issue.
that

Starkie

possessed

the

The evidence presented amply proved
firearm

in

connection

offense of conspiracy to commit armed robbery.

with

the

See Republican

Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)
(explaining that we may affirm for any reason apparent on face
2

This Court applies the analysis under the Sentencing
Guidelines interchangeably with the ACCA. Flores-Granados, 2015
WL 1652524, at *2.

5

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of record); see State v. Oliphant, 747 S.E.2d 117, 125 (N.C. Ct.
App.

2013)

(stating

elements

of

conspiracy

denied, 753 S.E.2d 677 (N.C. 2014).

offense),

review

In addition to Starkie’s

suspicious behavior, a search incident to arrest revealed that
Starkie had eyeholes cut into his hat and was carrying cotton
gloves.

We conclude that these facts are sufficient to prove by

a preponderance of the evidence that Starkie conspired with his
brother and his brother’s girlfriend, who was driving the car,
to commit armed robbery, and that he possessed the firearm in
connection with this offense.

Conspiracy to commit robbery is a

crime of violence because it has the object of committing a
violent crime.
Cir. 1999).

United States v. Ward, 171 F.3d 188, 193 (4th
Accordingly, the district court did not err in

applying the enhancement.

See White, 771 F.3d at 235 (stating

standard of review).
We affirm the judgment of the district court.

We dispense

with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

this

court

and

argument would not aid the decisional process.

AFFIRMED

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