United States v. Cliff Leonard Meryl

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-10973 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 9, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 06-00039-CR-4-SPM-WCS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CLIFF LEONARD MERYL,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Florida
_________________________

(April 9, 2009)

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

Cliff Leonard Meryl appeals from his convictions and 37-month total

sentence for distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)

(Count 1); possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (Count 4); and possession of a stolen firearm, in

violation of 18 U.S.C. §§ 922(j) and 924(a)(2) (Count 5). On appeal, Meryl argues

that the district court erred in: (1) denying his motion to suppress the firearm found

by police at his residence upon execution of a search warrant because the search

warrant affidavit did not give the police probable cause for the search; and (2)

applying the four-level enhancement for possession of a firearm in connection with

another felony, under U.S.S.G. § 2K2.1(b)(6), because it relied on judge-found

facts to impose the enhancement, in violation of the Sixth Amendment. After

careful review, we affirm.

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

findings of fact for clear error and the application of the law to those facts de

novo.” United States v. Martinelli, 454 F.3d 1300, 1306 (11th Cir. 2006). In

reviewing whether an affidavit established probable cause, we give due weight to

inferences drawn from findings of fact by resident judges and local law

enforcement officers. United States v. Jiminez, 224 F.3d 1243, 1248 (11th Cir.

2000). In considering sentencing issues, we review the district court’s findings of

fact for clear error, and its conclusions of law, including application of the

sentencing guidelines, de novo. United States v. Hunter, 172 F.3d 1307, 1308

(11th Cir. 1999). “A sentencing issue not raised in the district court is reviewed for

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plain error.” United States v. Richardson, 166 F.3d 1360, 1361 (11th Cir. 1999).

Under the plain error standard, we will correct an error only if there is: (1) error;

(2) that is plain or obvious; (3) that affects the defendant’s substantial rights; and

(4) that seriously affects the fairness, integrity, or public reputation of a judicial

proceeding. United States v. Williams, 469 F.3d 963, 966 (11th Cir. 2006).

We reject Meryl’s claim that the district court erred in denying his motion to

suppress the firearm. Searches and seizures inside a residence without a warrant

are presumptively unreasonable, absent probable cause and exigent circumstances.

United States v. Santa, 236 F.3d 662, 668 (11th Cir. 2000). “Before a valid

warrant may issue, an affidavit must be submitted to the court setting forth the

necessary facts and circumstances whereby the judge may determine probable

cause.” United States v. Hawes, 529 F.2d 472, 480 (5th Cir. 1976).1

The exclusionary rule bars the use of evidence seized as the result of an

illegal search by the government in a subsequent criminal prosecution. United

States v. Martin, 297 F.3d 1308, 1312 (11th Cir. 2002). Under the good faith

exception, however, “courts generally should not render inadmissible evidence

obtained by police officers acting in reasonable reliance upon a search warrant that

is ultimately found to be unsupported by probable cause.” Id. at 1312-13 (citing

1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted
as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

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United States v. Leon, 468 U.S. 897 (1984)). The good faith exception applies in

all but the following four circumstances:

(1) where ‘the magistrate or judge issuing a warrant was misled by
information in an affidavit that the affiant knew was false or would
have known was false except for his reckless disregard of the truth’;
(2) ‘where the issuing magistrate wholly abandoned his judicial
role . . .’; (3) where the affidavit supporting the warrant is ‘so lacking
in indicia of probable case as to render official belief in its existence
entirely unreasonable’; and (4) where, depending upon the
circumstances of the particular case, a warrant is ‘so facially deficient
-- i.e., in failing to particularize the place to be searched or the things
to be seized -- that the executing officers cannot reasonable presume it
to be valid.’

Id. at 1313 (citing Leon, 468 U.S. at 923).

To establish probable cause, the search warrant affidavit must state facts

“sufficient to justify a conclusion that evidence or contraband will probably be

found at the premises to be searched.” Id. at 1314 (quotation omitted). In other

words, the affidavit “must contain sufficient information to conclude that a fair

probability existed that seizable evidence would be found in the place sought to be

searched.” Id. (quotation omitted). In reviewing whether the affidavit establishes

probable cause, the magistrate must make a practical, common-sense decision

whether, under all the circumstances set forth, there is a fair probability that

contraband or evidence will be found. United States v. Butler, 102 F.3d 1191,

1198 (11th Cir. 1997).

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 Information in the affidavit should “establish a connection between the

defendant and the residence to be searched and a link between the residence and

any criminal activity.” Martin, 297 F.3d at 1314. Information that the defendant

possesses contraband that is of the type that normally would be hidden at his

residence may support a probable cause finding. See United States v. Jenkins, 901

F.2d 1075, 1080-81 (11th Cir. 1990).

Under the staleness doctrine, “information supporting the government’s

application for a warrant must show that probable cause exists at the time the

warrant issues.” United States v. Bervaldi, 226 F.3d 1256, 1264 (11th Cir. 2000).

However, there is no particular time limit for when information becomes stale and

staleness must be judged on the particular facts of each case. Id. at 1265. In cases

involving ongoing criminal activity, the passage of time is less important regarding

a finding of probable cause. Id.

The record here shows that the search warrant affidavit established a fair

probability that evidence of drug activity or drugs would be found at Meryl’s

residence. Several references were made in the affidavit to the fact that before and

after Meryl conducted a couple of drug transactions with a confidential informant,

he was at his residence, even though he moved residences between the two

transactions. In addition, at the last meeting, a drug dog alerted to the presence of

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drugs in Meryl’s vehicle, and shortly after Meryl left, police found two ounces of

cocaine under a vehicle that was parked next to his vehicle, in a location where he

could have thrown it. This information -- including information regarding the first

drug transaction -- was relevant and not stale because it supported the district

court’s findings that Meryl was involved in ongoing drug activity, see Bervaldi,

226 F.3d at 1265, and that Meryl did not have “some other base of operations”

other than his residence. Combined with the district court’s common-sense finding

that “drug dealers are likely to keep evidence of their drug business at home,” the

district court’s findings showed a fair probability that evidence of drug activity

would be found at Meryl’s residence. See Butler, 102 F.3d at 1198; Jenkins, 901

F.2d at 1080-81. Thus, probable cause supported the search warrant and the

district court properly denied Meryl’s suppression motion. And in any event,

because there was no indication that the police acted recklessly or lacked a

reasonable belief in the existence of probable cause, the district court properly

denied the suppression motion according to the good faith exception. See Martin,

297 F.3d at 1313.

We also find no merit in Meryl’s claim that the district court plainly erred

applying the four-level enhancement for possession of a firearm in connection with

another felony. The Sentencing Guidelines mandate a four-point offense level

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enhancement if “the defendant used or possessed any firearm or ammunition in

connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6). The

commentary from the Sentencing Commission explains that this enhancement

applies “in the case of a drug trafficking offense in which a firearm is found in

close proximity to drugs, drug-manufacturing material, or drug paraphernalia”

because “the presence of the firearm has the potential of facilitating another . . .

offense.” U.S.S.G. § 2K2.1 cmt. n.14(B).

The Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466 (2000),

that any fact used to sentence a defendant beyond the statutory maximum, other

than the fact of a prior conviction, must be proven beyond a reasonable doubt to a

jury. See United States v. Thomas, 446 F.3d 1348, 1354 (11th Cir. 2006).

Nonetheless, facts supporting a sentence enhancement need only be proven to a

sentencing judge by a preponderance of the evidence if the defendant’s sentence

remains within the statutory sentencing range. See United States v. Duncan, 400

F.3d 1297, 1304-05 (11th Cir. 2005). As the Supreme Court explained in United

States v. Booker, 543 U.S. 220 (2005), “when a trial judge exercises his discretion

to select a specific sentence within a defined range, the defendant has no right to a

jury determination of the facts that the judge deems relevant.” Id. at 233.

Furthermore, the district court may consider a defendant’s relevant conduct,

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including conduct for which he was acquitted, in finding by a preponderance of the

evidence that such an enhancement is appropriate. Duncan, 400 F.3d at 1304-05.

Indeed, “[t]he burden of establishing evidence of the facts necessary to support a

sentencing enhancement falls on the government, and it must do so by a

preponderance of the evidence.” United States v. Perez-Oliveros, 479 F.3d 779,

783 (11th Cir. 2007).

The district court did not plainly err in enhancing Meryl’s offense level four

points under § 2K2.1(b)(6).2 As the record shows, the district court properly found

by a preponderance of the evidence that Meryl possessed a firearm in connection

with another felony offense because of the proximity between the firearm and the

drugs found in the same cabinet in his kitchen. See U.S.S.G. § 2K2.1(b)(6) & cmt.

n.14(B). Taking into account this enhancement, neither Meryl’s sentencing range

nor his 37-month total sentence exceeded the statutory maximum sentences for

Counts 1, 4 and 5, which were 20 years, 10 years, and 10 years, respectively. 21

U.S.C. § 841(b)(1)(C); 18 U.S.C. § 924(a)(2). The district court thus had the

power to make the factual findings underlying the enhancement and it is irrelevant

2
Meryl only challenged this enhancement in the district court on a factual basis, arguing that
the facts did not support the enhancement. He has abandoned that argument on appeal in favor of
the legal argument that the district court improperly applied the enhancement based on judge-found
facts related to conduct for which he was not convicted. United States v. Ardley, 242 F.3d 989, 990
(11th Cir. 2001). Because he did not raise this legal argument below, we review for plain error only.
See Richardson, 166 F.3d at 1361.

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whether some of those facts also related to one of the counts of which he was not

convicted. See Duncan, 400 F.3d at 1304-05.

Moreover, because the district court did not err in applying the four-level

firearm possession enhancement or calculating his guideline range, Meryl’s

suggestion that his sentence was unreasonable on these grounds must fail. And to

the extent that Meryl suggests that a sentence outside of the guidelines range is

presumptively unreasonable, this argument has been rejected explicitly by the

Supreme Court. Rita v. United States, 127 S. Ct. 2456, 2467 (2007) (“[A]ppellate

courts may not presume that every variance from the advisory Guidelines is

unreasonable.”).

AFFIRMED.

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