UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-5297



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MARQUETTE HOEY,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Robert J. Conrad, Jr.,
Chief District Judge. (3:06-cr-00086))


Submitted:   September 17, 2007           Decided:   October 12, 2007


Before WILKINSON and MOTZ, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Peter Adolf, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Jonathan A. Vogel, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             On the evening of February 2, 2006, Officers Robert

Childs and Jerome Whitlow of the Charlotte-Mecklenburg Police

Department     were   on    patrol   driving      through    the    Sailboat     Bay

Apartments area.      Officer Childs knew the apartment complex was a

high robbery and drug crime area.           In December of 2005, Childs had

arrested two people at the apartment complex for possession of

cocaine.     Also, Childs was aware that on January 6, 2006, an armed

robbery had occurred at the complex and that another armed robbery

had occurred in November or December of 2005.               The robbery suspect

had   been    described     as    approximately     5'8"     tall   and   wore    a

camouflaged jacket with a hood.

             As Childs and Whitlow patrolled they noticed Marquette

Hoey.   Hoey stands approximately 5'5" and was wearing a black,

“flight type jacket” with a hood.           Hoey was walking approximately

100 feet from the building where the January armed robbery had

occurred.      As the officers’ patrol car approached Hoey, Hoey

noticed the officers and immediately cut to his right away from the

officers into a dark alley.

             Based on Hoey’s evasive conduct, the officers drove

around to where Hoey exited the dark alleyway.               Whitlow exited the

patrol car and asked to speak to Hoey.                     In response to the

officers’ request to speak to him, Hoey became visibly agitated,

began   waiving   his      arms   around,   and    accused    the    officers    of


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harassing him on several occasions.     Hoey also assumed a stance

that partially concealed the right side of his body, and repeatedly

touched his right pocket, indicating that he might be hiding

something.

           Childs asked Hoey whether he lived in the apartment

complex and for some identification.   Although Hoey stated that he

lived in the complex, the address listed on the identification he

provided to Childs was not within the apartment complex.

           Childs then asked his dispatcher to check whether there

were outstanding warrants for Hoey. The dispatcher informed Childs

that Hoey was entered in the NCIC database as a “dangerous gang

member” affiliated with the Bloods.

           Childs then re-approached Hoey and informed him that the

officers were going to pat him down for their safety.    As Whitlow

patted Hoey down, Childs asked Hoey whether he was a member of a

gang.   Hoey stated that he was a member of the Bloods gang.   During

the search, Whitlow found a .357 caliber handgun in Hoey’s right

front pocket.    Hoey was arrested and, ultimately, indicted for

possession of a firearm after having been convicted of a felony, in

violation of 18 U.S.C. § 922(g)(1) (2000).

           In the court below, Hoey filed a motion to suppress,

arguing that the officers lacked reasonable articulable suspicion

of criminal activity prior to seizing him.      The district court

denied Hoey’s motion, and Hoey entered a conditional guilty plea,


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reserving his right to appeal the district court’s decision.              Hoey

timely noted his appeal.      On appeal, Hoey argues that the district

court   erred    in   concluding   that       the   officers   had   reasonable

suspicion of criminal activity at the time they seized him and in

enhancing his sentence based on facts not found beyond a reasonable

doubt by a jury.      We affirm the judgment of the district court.

           The Supreme Court has held that, consistent with the

Fourth Amendment, police officers may conduct brief investigatory

stops of individuals if officers have reasonable suspicion that

criminal activity may be afoot.         Terry v. Ohio, 

 (1968);

see Illinois v. Wardlow, 

, 123 (2000).                     Such an

investigatory stop must be based on "at least a minimal level of

objective justification" but the standard for reasonable suspicion

is less demanding than for probable cause.               Wardlow, 528 U.S. at

123.

           In assessing whether officers had a reasonable suspicion

of criminal activity, this court must consider the totality of the

circumstances surrounding the seizure.              United States v. Sprinkle,

, 618 (4th Cir. 1997) (quoting United States v.

Sokolow,   

   (1989)    (internal       quotations    omitted)).

"Reasonable suspicion is a commonsensical proposition.               Courts are

not remiss in crediting the practical experience of officers who

observe on a daily basis what transpires on the streets."               United

States v. Lender, 

, 154 (4th Cir. 1993).


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               To establish reasonable articulable suspicion, an officer

must be able to articulate something more than an inchoate and

unparticularized suspicion or hunch.                 Sokolow, 490 U.S. at 7

(quoting Terry, 392 U.S. at 27) (internal quotations omitted)).

However, reasonable articulable suspicion may be established by a

series    of    acts,     each   of   them    perhaps    innocent    when   viewed

separately, but when viewed in the aggregate by a trained police

officer warrant further investigation.               See id. at 9-10 (quoting

Terry, 392 U.S. at 22).

               Assuming Hoey was seized within the meaning of the Fourth

Amendment when first accosted by the officers, the officers had, at

that moment, reasonable articulable suspicion sufficient to seize

Hoey.    Officer Childs knew that the Sailboat Bay Apartments was a

high crime area.         Moreover, Childs and Whitlow first observed Hoey

walking within 100 feet of the site of a recent armed robbery at

the   Sailboat     Bay    Apartments.        Also,   when     Hoey   observed   the

officers, he immediately “cut to his right” to head down a dark

alley. Hoey’s evasive response to seeing the officers added to the

officers’ reasonable articulable suspicion that Hoey might be

involved in criminal activity.           See Wardlow, 528 U.S. at 124.          All

of these facts, viewed in the totality of the circumstances,

created   reasonable       articulable       suspicion   of   criminal   activity

sufficient to seize Hoey.




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            Hoey also avers the district court erred in enhancing his

sentence based on facts not found beyond a reasonable doubt by a

jury.   Hoey failed to raise his alleged error in the court below.

Accordingly, his claim is subject to plain error review.                Fed. R.

Crim. P. 52(b); United States v. Olano, 

, 732 (1993).

To establish plain error, Hoey must show that:                (1) there was

error; (2) the error was plain; and (3) the error affected his

substantial rights.       Id.   Even if Hoey makes this showing, “Rule

52(b) leaves the decision to correct the forfeited error within the

sound discretion of the court of appeals, and the court should not

exercise that discretion unless the error seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.”

Id.   (quoting   United   States   v.   Young,   

,   15    (1985)

(internal quotations omitted)).         Hoey fails to establish error

under Olano.

            This court has stated that after United States v. Booker,

 (2005), a sentencing court continues to make factual

findings concerning sentencing factors by a preponderance of the

evidence.    United States v. Morris, 

, 72 (4th Cir.

2005), cert. denied, 

 (2006).               Moreover, long-

standing authority has permitted a sentencing court to consider any

evidence    at   sentencing      that   “has     sufficient     indicia     of

reliability,” see USSG § 6A1.3(a), including “conduct underlying

[an] acquitted charge, so long as that conduct has been proved by


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a preponderance of the evidence.” United States v. Watts, 

, 156-57 (1997) (per curiam); United States v. Montgomery, 

, 249 (4th Cir. 2001). Accordingly, the district court did

not   err   in   enhancing   Hoey’s     sentence   pursuant   to   USSG

§§ 2K2.1(b)(4); 4A1.1(d); 4A1.1(e) based on facts found by the

court by a preponderance of the evidence, and we therefore affirm

the judgment of the district court. We dispense with oral argument

as the facts and legal contentions are adequately presented in the

materials before the court, and oral argument would not aid the

decisional process.



                                                              AFFIRMED




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