NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  _____________

                      No. 12-1770
                     _____________

            UNITED STATES OF AMERICA


                           v.
                  CHARLES BURTON
                   a/k/a Charles Roby

                  CHARLES BURTON,
                             Appellant
                    _____________

      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
                  (No. 2-11-cr-00163-001)
      District Judge: Honorable Michael M. Baylson
                      _____________

       Submitted Under Third Circuit L.A.R. 34.1(a)
                     June 25, 2013

Before: FUENTES, FISHER, and CHAGARES, Circuit Judges

              (Opinion Filed: July 24, 2013)
                     _____________

               OPINION OF THE COURT
                   _____________
FUENTES, Circuit Judge

       Charles Burton was charged with possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1). Burton filed a motion to suppress evidence, arguing

that there was no reasonable suspicion for officers to stop the car in which the firearm

was discovered. The District Court denied his motion. After a jury trial, Burton was

convicted, and the District Court sentenced him to 120 months’ imprisonment. Burton

appeals the denial of his motion to suppress and the imposition of his sentence. For the

following reasons, we will affirm.

                                             I.

       Because we write primarily for the parties, we recite only the facts essential to our

disposition of this appeal.

       On September 9, 2010, at approximately 1:10 a.m., a woman called 911 to report

that there were five Hispanic men in a red car outside her house, three of whom had guns.

She told police that the license plate number of the car was “EYM-6230.” The complaint

was transmitted over the radio, and Officers Pinkerton and Gorman responded to the call

and met with the complainant. Pinkerton testified that at this point the complainant told

the officers that the individuals in the car were “black males,” App. 31, and she was

afraid that the men were going to “shoot up her house.” App. 26.

       After the officers left the complainant’s home, they observed an unoccupied red

car parked a half block from her home, which had a license plate with the same first three

letters as the plate the complainant reported. The officers proceeded to search the area



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for the owners or occupants of the car. After a brief search, the officers returned to where

the red car had been but it was gone.

       Meanwhile, twenty minutes after the broadcast of the complainant’s description of

the vehicle over the radio, Officers Rommel and Biles observed a red car with the license

plate “EYM-6380.” Pinkerton later identified the car as “the same car that [he] had seen”

parked near the complainant’s home. App. 29. Rommel stopped the car and its five

occupants, including Charles Burton, all of whom were African-American. The driver

informed Rommel that there was a gun in the car, which he had a permit to carry. At this

point, the officers ordered the driver and four passengers to exit the car and proceeded to

conduct pat-down searches of all five individuals. Rommel testified that they did this

“[b]ecause the call was for . . . three men armed with guns,” and he wanted “everyone out

of the vehicle for [the officers’] safety.” App. 65. Once the men had exited the vehicle,

Rommel observed a shotgun in the backseat where Burton had been sitting. Burton was

arrested and charged with possession of a firearm by a convicted felon.

       Before trial, Burton moved to suppress the shotgun, arguing that the stop was

illegal because there was no basis for reasonable suspicion. After hearing the testimony

of the officers, the District Court held that this was “a clear case of an appropriate car

stop . . . under the principles of Terry v. Ohio.” App. 85. The District Court found that

there was sufficient evidence to support the stop, that the officers were authorized to have

the occupants exit the car, and that the shotgun was discovered in plain view.

Accordingly, the District Court denied the motion to suppress. After a trial and

conviction, the District Court sentenced Burton to a term of 120 months’ imprisonment.

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                                             II.1

A. Motion to Suppress

       In reviewing a district court’s ruling on a motion to suppress, we review the

underlying finding of facts for clear error and exercise plenary review over legal

conclusions. United States v. Silveus, 

, 999 (3d Cir. 2008).

       Burton argues the car stop by police, which led to the discovery of the shotgun,

was illegal because the officers did not have reasonable suspicion to support the stop.

The Fourth Amendment protects individuals against unreasonable searches and seizures.

U.S. Const. amend. IV. However, “an officer may, consistent with the Fourth

Amendment, conduct a brief, investigatory stop when the officer has a reasonable,

articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 

,

123 (2000) (citing Terry v. Ohio, 

, 30 (1968)).

       When officers rely on a tip from an informant as the basis for reasonable suspicion

for a Terry stop, we consider “the honesty of the caller, the reliability of his information,

and the basis of his knowledge.” United States v. Torres, 

, 210-11 (3d Cir.

2008) (citing Illinois v. Gates, 

, 230 (1983)). We evaluate reliability based

on five aspects of the tip; whether:

       1. The tip information was relayed from the informant to the officer in a
          face-to-face interaction such that the officer had an opportunity to
          appraise the witness’s credibility through observation.
       2. The person providing the tip can be held responsible if her allegations
          turn out to be fabricated.


1
  The District Court had jurisdiction pursuant to 18 U.S.C. §§ 3231, 3583(e), and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
                                              4
       3. The content of the tip is not information that would be available to any
          observer . . . .
       4. The person providing the information has recently witnessed the alleged
          criminal activity.
       5. The tip predicts what will follow, as this provides police the means to
          test the informant’s knowledge or credibility . . . .

this case, there was sufficient reasonable suspicion to support the Terry stop. In

response to the 911 call, police met with the complainant where she provided a

description to Pinkerton of a red car, a license plate number, the car’s occupants, and of

the presence of guns. This satisfies the first, second, and fourth Torres factors. Her

description of the guns and license plate number also was not available to any observer,

satisfying the third factor. While Burton argues that the vehicle and occupants did not

sufficiently match the complainant’s description to constitute reasonable suspicion for a

valid Terry stop, we do not agree. A search is supported by reasonable suspicion if an

officer can “articulate more than an inchoate and unparticularized suspicion or hunch of

criminal activity.” 

(internal quotation marks omitted).

Furthermore, “due weight must be given . . . to the specific reasonable inferences which

[an officer] is entitled to draw from the facts in light of his experience.” 

. The complainant described five African-American men in a red car with the

license plate number EYM-6230, parked near her home. Soon after, police saw five men

in a red car with a very similar license plate number. Furthermore, Officer Pinkerton

testified that in his experience, witnesses often mistake portions of license plates. Thus,




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we hold that there was a sufficient basis to support the District Court’s finding of

reasonable suspicion to stop the red car.

       There was also a sufficient basis for officers to ask the occupants to exit the car in

order to conduct a protective frisk. See Pennsylvania v. Mimms, 

, 111-12

n.6 (1977) (holding that an officer’s ordering the driver to exit the car during a lawful

Terry stop is a de minimis intrusion and is thus permissible); see also Maryland v.

Wilson, 

, 414-15 (1997) (holding that an officer may order passengers to exit

the car because there is likely more danger to an officer when passengers are present).

Given the complainant’s tip that three of the men were armed and the driver’s admission

that he had a gun, there was reasonable suspicion to conduct a protective frisk of all

occupants. See 

(“The officer need not be absolutely certain that the

individual is armed; the issue is whether a reasonably prudent man in the circumstances

would be warranted in the belief that his safety or that of others was in danger.”).

       The District Court properly found that once the occupants were out of the car, the

shotgun in the back seat was in plain view of the police and subject to seizure. See

United States v. Hensley, 

, 235 (1985) (holding that police may lawfully

seize an object if, during the course of a lawful stop, the object is in plain view of the

officer). Therefore, because the stop leading to the discovery of the shotgun was valid,

we will affirm the District Court’s denial of Burton’s motion to suppress.




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B. Sentencing

       In reviewing the District Court’s imposition of a sentence, we exercise plenary

review over rulings on questions of law and its interpretation of the Sentencing

Guidelines. United States v. Doe, 

, 307 n.2 (3d Cir. 2009).

       Burton contends that the District Court committed procedural error by failing to

consider the factors set forth in 18 U.S.C. § 3553(a). Specifically, he claims that the

District Court ignored the history and characteristics of the defendant. A district court

need only “set forth enough to satisfy the appellate court that he has considered the

parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking

authority.” Rita v. United States, 

, 356 (2007). It is clear from our review

that Burton addressed his history and characteristics before the District Court, focusing

on his “unenviable” upbringing and the length of time between this conviction and his

earlier convictions for robbery. App. 102-2.2 The District Court specifically responded

to Burton’s history and characteristics, pointing out other convictions, between those for

robbery and the one at issue, including convictions for assault, possession of a controlled

substance, and driving under the influence. The District Court further responded to

Burton’s arguments and described him as “dangerous to the public” and a “terrible

recidivist [who] doesn’t seem to be able to conform his behavior to what society

expects.” App. 110. Thus, we are satisfied that the District Court set forth enough in its




2
 Due to a pagination error, this quotation falls on an unpaginated page between App. 102
and App. 103.
                                             7
analysis of Burton’s history and characteristics to establish a reasoned basis for its

sentence.

       In terms of whether the sentence was substantively reasonable, we will affirm a

procedurally reasonable sentence “unless no reasonable sentencing court would have

imposed the same sentence on that particular defendant for the reasons the district court

provided.” United States v. Tomko, 

, 568 (3d Cir. 2009) (en banc). Based

on Burton’s criminal history, including his numerous convictions for dangerous offenses,

we cannot conclude that no sentencing court would have imposed this same sentence.

                                             III.

       For the reasons discussed above, we will affirm the denial of Burton’s motion to

suppress and the sentence imposed by the District Court.




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