United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1878
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Lester Dale Perry, also known as *
Duane Thomas Stamps, *
*
Appellant. *
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Submitted: December 13, 2005
Filed: February 14, 2006
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Before LOKEN, Chief Judge, WOLLMAN and RILEY, Circuit Judges.
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RILEY, Circuit Judge.
Lester Dale Perry (Perry) appeals the district court’s1 denial of his motion to
suppress, and the court’s decision to sentence Perry based on Perry’s two prior felony
drug convictions. We affirm.
1
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
I. BACKGROUND
On July 26, 2003, Perry, a federal fugitive at the time, was arrested by the
Arkansas State Police and taken into custody. While Perry was in custody, the police
conducted an illegal search of a vehicle located in the curtilage of Perry’s residence.2
At the jail, the police presented Perry with a consent to search form which Perry
signed. The police returned to and searched Perry’s residence with Perry present, and
found six firearms. Perry cooperated with officers in the search, disclosing some of
the hidden firearms. Perry was indicted for being a felon in possession of a firearm
and being a fugitive in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
and § 922(g)(2), respectively.
After being indicted, Perry filed a motion to suppress, claiming his consent to
search his residence was not voluntary. During the suppression hearing, Perry
admitted to pleading guilty previously to two felony drug trafficking offenses. The
district court denied Perry’s motion, holding the totality of the circumstances
demonstrated Perry’s consent was voluntary, and sufficiently voluntary to purge the
primary taint of the earlier illegal search. Perry pled guilty, preserving his suppression
issues, and at sentencing he objected to the Presentence Investigation Report’s (PSR)
use of his two prior felonies for controlled substance offenses in calculating the
recommended base offense level under the Sentencing Guidelines. See U.S.S.G.
§ 2K2.1(a)(2). The district court, relying on the PSR, concluded Perry had committed
his instant offense after two prior felony convictions for controlled substance offenses,
and sentenced Perry to a term of ninety-two months’ imprisonment on the indictment
and an additional eight months under 18 U.S.C. § 3147.
2
Police opened the tailgate of one vehicle to access the vehicle identification
number. We assume, without deciding, the search was illegal.
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II. DISCUSSION
A. Motion to Suppress
We review for clear error the district court’s determination that Perry’s consent
to search his residence was voluntary. See United States v. Poulack, 236 F.3d 932,
936 (8th Cir. 2001). “[T]he question whether a consent to a search was in fact
‘voluntary’ or was the product of duress or coercion, express or implied, is a question
of fact to be determined from the totality of all the circumstances.” Schneckloth v.
Bustamonte, 412 U.S. 218, 227 (1973). Factors relevant to the voluntariness of a
defendant’s consent include: (1) the defendant’s age; (2) the defendant’s general
intelligence and education; (3) whether the defendant was intoxicated or under the
influence of drugs when he consented; (4) whether the defendant consented after
being informed of his right to withhold consent or of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966); (5) whether, because the defendant had been previously
arrested, he was aware of the protections afforded to suspected criminals by the legal
system; (6) whether the defendant was detained and questioned for a long or short
time; (7) whether the defendant was threatened, physically intimidated, or punished
by police; (8) whether the defendant relied upon promises or misrepresentations made
by the police; (9) whether the defendant was in custody or under arrest when the
consent was given; (10) whether the defendant was in a public or secluded place; and
(11) whether the defendant objected to the search or stood by silently while the search
occurred. United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990).
We conclude ample evidence supports the district court’s conclusion Perry
voluntarily consented to the search of his residence. Perry is an older adult with a
lengthy criminal record. He was free from chemical impairment at the time of
consent. While the police did not recite Perry’s Miranda rights before his consent,
Perry admitted he was familiar with the warnings from his extensive experience with
police investigations.3 Perry was detained for a short time before consenting, he was
3
Perry separately claims the fact he was not given Miranda warnings invalidates
his consent. “We have never held that a request to search must be preceded by
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not mistreated by the officers, and he attended the search without objection. The
totality of the circumstances demonstrates Perry’s consent was voluntary.
Perry alternatively claims his consent was involuntary, given the taint of the
prior illegal search of the vehicle in the curtilage of his residence. A defendant’s
consent to a search may be sufficiently voluntary “to purge the primary taint of the
illegal seizure.” See United States v. Yousif, 308 F.3d 820, 830 (8th Cir. 2002). In
making this determination, we consider: “(1) the temporal proximity between the
illegal search or seizure and the consent, (2) the presence of intervening
circumstances, and (3) the purpose and flagrancy of the official misconduct.” Id.
(citing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)).
We conclude the earlier illegal search did not contaminate Perry’s voluntary
consent. Unlike the traffic stop in Yousif, where minimal time elapsed between the
initial illegal stop and the defendant’s consent to a search of the vehicle, see id. at 831,
here, considerable time passed between the illegal search and the consent (at least
enough time for the officer who discovered the stolen vehicle to drive to the jail,
inform officers of his discovery, and prompt a request to search the residence). The
officer who requested Perry’s consent advised Perry he had the right to refuse to
consent to the search. “Such an intervening circumstance supports the voluntariness
of appellant’s consent indicating that the [officer] was not attempting to exploit an
illegal situation.” United States v. Moreno, 280 F.3d 898, 901 (8th Cir. 2002) (citing
United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994)). Finally, there is simply
Miranda warnings, or that a lack of Miranda warnings invalidates a consent to search.”
United States v. Payne, 119 F.3d 637, 643 (8th Cir. 1997).
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no evidence of misconduct on the officers’ part. Therefore, we affirm the district
court’s order denying Perry’s motion to suppress.
B. Sentencing
Perry challenges his sentence on three grounds. Perry argues the district court
erred (1) in finding not only the fact of his prior convictions, but also the nature of
those convictions (specifically, that the convictions were for controlled substance
offenses); (2) in following Almendarez-Torres v. United States, 523 U.S. 224 (1998)
(justifying use of prior convictions to boost a defendant’s sentence), which has
implicitly been overruled; and (3) in relying on the PSR as evidence of his prior
convictions.
We review for clear error a district court’s factual determination whether a
defendant has a prior felony conviction for a controlled substance offense pursuant to
U.S.S.G. § 2K2.1(a)(2). See United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir.
2005); cf. United States v. Walterman 343 F.3d 938, 940 (8th Cir. 2003) (“Generally,
a district court’s determination of whether a defendant’s prior convictions qualify him
as a career offender is factual, and thus we review for clear error.”). “A finding is
‘clearly erroneous’ when although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a mistake has
been committed.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985)
(quotation omitted). The application of the facts to the Guidelines is reviewed de
novo. Mathijssen, 406 F.3d at 498.
Perry first claims the district court violated his Sixth Amendment rights when
the court found both the fact and nature of his prior convictions. Perry contends
Booker’s exception for prior convictions applies only to the fact a prior conviction
exists, but not to the nature of that conviction. See United States v. Booker, 543 U.S.
220, 125 S. Ct. 738, 756 (2005). Perry’s argument fails. We have held post-Booker
that the nature of a conviction is treated the same as the fact of a conviction for
purposes of Sixth Amendment analysis. See United States v. Griffin, 418 F.3d 881,
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882 n.2 (8th Cir. 2005) (per curiam) (noting Booker did not “ alter[] the rule that both
the fact and the nature of a prior conviction are issues for the sentencing court, not the
jury”); cf. United States v. Marcussen, 403 F.3d 982, 984 (8th Cir. 2005) (“Once the
sentencing court determines that a prior conviction exists, it is a legal question for the
court whether the crime meets the ‘crime of violence’ definition of [U.S.S.G.] §
4B1.2.”).
Perry also claims the district court erred by enhancing his sentence based on his
two prior felony drug trafficking offenses because, according to Perry, the Supreme
Court in Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005), implicitly
overruled Almendarez-Torres, thereby making it error to enhance a sentence based on
prior convictions. See Shepard, 125 S. Ct. at 1264 (Thomas, J. concurring) (“[A]
majority of the Court now recognizes that Almendarez-Torres was wrongly
decided.”). We disagree. Our court has held “we are bound by Almendarez-Torres
until the Supreme Court explicitly overrules it.” United States v. Torres-Alvarado,
416 F.3d 808, 810 (8th Cir. 2005).
Finally, Perry claims the district court erred by relying on the PSR to find Perry
twice had committed prior felonies for controlled substance offenses, thereby
justifying imposition of a higher base offense level under the Guidelines. The district
court incorrectly relied on the PSR, as Perry claims. See Shepard, 125 S. Ct. at 1257
(clarifying limitations on what evidence a district court may consider in determining
whether a conviction for burglary based on an earlier guilty plea qualifies as a violent
felony under the Armed Career Criminal Act). Given the record as a whole, however,
we do not find the district court’s ultimate finding clearly erroneous. Shepard
instructs that in determining the nature of a prior conviction to which a defendant pled
guilty, a court may look only “to the terms of the charging document, the terms of a
plea agreement or transcript of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or to some comparable
judicial record of this information.” Shepard, 125 S. Ct. at 1263. The existence in this
case of a “comparable judicial record” is unmistakable. During the hearing on his
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motion to suppress, Perry admitted, under oath, two prior felony convictions for drug
trafficking offenses, one in a Texas federal court and one in a Florida federal court.
Thus, however inappropriate the district court’s stated ground was for its finding,
based on the record as a whole before us, the substance of that finding was not clearly
erroneous.
III. CONCLUSION
For the reasons stated, we affirm Perry’s conviction and sentence.
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