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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12075
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-00337-WBH-CCH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEITH WADE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(January 8, 2014)
Before HULL, MARCUS, and HILL, Circuit Judges.
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PER CURIAM:
Keith Wade appeals his conviction and 195-month sentence for possession
of ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e)(1). On appeal, he first argues that the district court erred in concluding that
reasonable suspicion was not required to conduct a warrantless search of Wade’s
residence because he was a parolee who had signed a search waiver as a condition
of his parole. Second, he contends that the district court erred in concluding that
officers did have reasonable suspicion to search his residence after receiving an
anonymous tip and a photograph in which Wade was holding a firearm. Finally,
Wade argues that the district court erred in concluding that his prior conviction
pursuant to an Alford 1 plea qualified as a predicate offense under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e).
Upon a thorough review of the record, and after consideration of the parties’
briefs, we affirm.
I.
Wade’s first argument fails because the district court actually never held
that, as a parolee, his residence could be searched in the absence of reasonable
suspicion. Although the magistrate judge did make such a conclusion in the report
1
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
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and recommendation, the district court expressly stated that it was making no
conclusion as to that issue. Instead, the district court based its denial of Wade’s
motion to suppress on its conclusion that officers did have reasonable suspicion to
justify the warrantless search. Because the district court did not rule on the
absence-of-reasonable-suspicion argument, we decline to address it as well.
II.
We review “a district court’s denial of a motion to suppress evidence as a
mixed question of law and fact, with rulings of law reviewed de novo and findings
of fact reviewed for clear error, in the light most favorable to the prevailing party
in district court.” United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir. 2007).
A finding is clearly erroneous only if we are left with the “definite and firm
conviction that a mistake has been committed.” United States v. Maxwell, 579
F.3d 1282, 1305 (11th Cir. 2009) (quotation omitted).
Reasonable suspicion consists of “a sufficiently high probability that
criminal conduct is occurring to make the intrusion on the individual’s privacy
interest reasonable.” United States v. Knights, 534 U.S. 112, 121, 122 S.Ct. 587,
592, 151 L.Ed.2d 497 (2001). Reasonable suspicion requires “a particularized and
objective basis for suspecting legal wrongdoing,” which must be more than an
“inchoate and unparticularized suspicion or hunch of criminal activity.” United
States v. Yuknavich, 419 F.3d 1302, 1311 (11th Cir. 2005) (quotations omitted).
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An officer must point to specific and articulable facts, known to the officer prior to
the search, that reasonably warrant the intrusion when they are considered along
with the rational inferences that accompany those facts. Id. We examine the
totality of the circumstances in determining whether reasonable suspicion exists.
Lindsey, 482 F.3d at 1290.
Reasonable suspicion may be based on information supplied by another
person, such as an informant, so long as the information bears sufficient “indicia of
reliability.” Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32
L.Ed.2d 612 (1972). An anonymous tip, sufficiently corroborated, may provide
reasonable suspicion that an individual is engaged in criminal activity. Alabama v.
White, 496 U.S. 325, 331, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990). An
anonymous tip “must be reliable in its assertion of illegality, not just in its
tendency to identify a determinate person.” Lindsey, 482 F.3d at 1291 (quotation
omitted). The Supreme Court has held that, without more, an anonymous tip that a
person is carrying a gun is not sufficient to justify a stop and frisk. Florida v. J.L.,
529 U.S. 266, 268, 120 S.Ct. 1375, 1377, 146 L.Ed.2d 254 (2000).
We have developed a staleness doctrine to assess whether evidence that
would constitute reasonable suspicion has become stale before officers have acted
on it. United States v. Bervaldi, 226 F.3d 1256, 1264-65 (11th Cir. 2000).
Whether information is stale depends on the particular facts of the case. Id.
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Relevant factors include the length of time before officers act on their reasonable
suspicion, “the nature of the suspected crime (discrete crimes or ongoing
conspiracy), habits of the accused, character of the items sought, and nature and
function of the premises to be searched.” Id. at 1265 (quotations omitted). In
determining the sufficiency of evidence, “we make no distinction between
circumstantial and direct evidence.” United States v. Tate, 586 F.3d 936, 945 (11th
Cir. 2009).
A third party may consent to a search when she possesses “common
authority over or other sufficient relationship to the premises or effects sought to
be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39
L.Ed.2d 242 (1974).
The search of Wade’s residence was supported by reasonable suspicion.
Although an anonymous caller provided the information leading to the search, the
caller provided corroboration for his tip by identifying Wade by name, forwarding
a threatening picture of Wade holding an assault rifle, and providing a motive for
Wade’s alleged possession of that rifle, namely to harm the caller and his fiancée,
who was thought to be Wade’s ex-girlfriend. Moreover, Wade’s staleness
argument fails because officers acted promptly on information from which they
could infer that the anonymous caller was being threatened contemporaneously
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with his calling Wade’s parole officer. In the alternative, the warrantless search
was justified because Wade’s mother consented to it.
III.
We review de novo whether a particular offense constitutes a violent felony
under 18 U.S.C. § 924(e). United States v. Rainey, 362 F.3d 733, 734 (11th Cir.
2004).
Under the ACCA, a defendant who is convicted of being a felon in
possession of ammunition shall be subject to a minimum term of 15 years’
imprisonment if he has 3 previous convictions for a violent felony. See 18 U.S.C.
§ 924(e)(1). The ACCA defines a “violent felony” as any offense punishable by
more than one year of imprisonment, which (1) has as an element the use,
attempted use, or threatened use of physical force against the person of another; or
(2) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B).
Section 4B1.4 of the Guidelines provides that “[a] defendant who is subject
to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed
career criminal.” U.S.S.G. § 4B1.4(a). If a defendant is an armed career criminal,
he is subject to a minimum offense level of 33. See id. § 4B1.4(b)(3)(B).
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Under Georgia law, “[a] person commits the offense of armed robbery when,
with intent to commit theft, he or she takes property of another from the person or
the immediate presence of another by use of an offensive weapon . . . .” O.C.G.A.
§ 16-8-41(a). “A person commits the offense of criminal attempt when, with intent
to commit a specific crime, he performs any act which constitutes a substantial step
toward the commission of that crime.” O.C.G.A. § 16-4-1.
In Alford, the Supreme Court concluded that “[a]n individual accused of a
crime may voluntarily, knowingly, and understandingly consent to the imposition
of a prison sentence even if he is unwilling or unable to admit his participation in
the acts constituting the crime.” 400 U.S. at 37, 91 S.Ct. at 167. “[T]he collateral
consequences flowing from an Alford plea are the same as those flowing from an
ordinary plea of guilt” so long as “the guilty plea represents a voluntary and
intelligent choice among alternative courses of action open to the defendant and a
sufficient factual basis exists to support the plea of guilt.” Blohm v. C.I.R., 994
F.2d 1542, 1554 (11th Cir. 1993) (citations omitted). Under Georgia law, an
Alford plea is “a guilty plea and places the defendant in the same position as if
there had been a trial and conviction by a jury.” Morrell v. State, 677 S.E.2d 771,
772 n.3 (Ga. Ct. App. 2009) (quotations omitted).
The use of Wade’s prior conviction for attempted armed robbery to enhance
his present sentence was not error. The record shows that his plea to that offense
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was knowing and voluntary, and supported by a factual basis. This is all that is
required for his plea under Alford to produce the same collateral consequences as
an ordinary guilty plea.
AFFIRMED.
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