[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
__________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-14389 August 31, 2005
Non-Argument Calendar THOMAS K. KAHN
__________________________ CLERK
D.C. Docket No. 03-00001-CR-WTM-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES EDWARD BROWN,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Georgia
__________________________
(August 31, 2005)
Before EDMONDSON, Chief Judge, TJOFLAT and DUBINA, Circuit Judges.
PER CURIAM:
James Edward Brown appeals his conviction, pursuant to his guilty plea,
and 108-month sentence for being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). We affirm his conviction. But we vacate his sentence
and remand for resentencing consistent with United States v. Booker, 125
S.Ct. 738 (2005).
BACKGROUND
Brown initially was charged with: possession with intent to distribute crack
cocaine, 21 U.S.C. § 841, carrying firearms during and in relation to a drug
trafficking crime, 18 U.S.C. § 924(c), and being a felon in possession of a firearm,
18 U.S.C. § 922(g)(1). By plea agreement, Brown pled guilty only to the felon-in-
possession charge, but reserved the right to appeal the denial of his motion to
suppress firearms and drugs found in the trunk of the car he was driving.
At the suppression hearing, conducted by a magistrate judge, Police Officer
Tommy Spikes testified that, very early on a morning in April 2002, he stopped
two cars. The second car, driven by Brown’s girlfriend, Dany Cotrell, had a
headlight out; and the first car, driven by Brown, was weaving between lanes and
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running off the side of the road. Brown exited his car and staggered toward
Officer Spikes, slurring his speech. Charlton County Sheriff’s Deputy Grover
Rhoden arrived at the scene: a videotape of part of the arrest was taken from
Deputy Rhoden’s patrol car. When approached by Officer Spikes, Brown on his
own accord placed his hands on the patrol car and spread his legs as if to be
searched. Brown tested positive for alcohol. Officer Spikes searched Brown,
handcuffed him, and placed him in the back of patrol car. Officer Spikes arrested
Brown for driving under the influence, for failure to maintain his lane, and for
driving with a suspended driver’s license.
Cotrell moved Brown’s car out of the way and handed Officer Spikes the
ignition key. Officer Spikes then asked Brown if he would consent to a search of
the vehicle. According to the officers, Brown answered, “Yeah, you’re not going
to find nothing but a little gin and juice anyways.” Brown said that he did not
know where the trunk key was. Deputy Rhoden discovered the key in the backseat
of the patrol car where Brown was being detained. Officer Spikes again asked
Brown for consent to search the car; and Brown responded affirmatively. The
officers found a cup of alcohol inside the car; they searched the trunk and found
six firearms and a tin can containing what appeared to be crack cocaine.1 But
1
The tin can later was determined to contain 22.57 grams of crack cocaine.
3
Brown testified that he was not asked for, and did not offer, consent to the search.
And Cotrell testified that she did not hear Brown give permission for the search.
The magistrate judge recommended that Brown’s motion to suppress be
denied. The district court adopted the magistrate’s report and recommendation.
The presentence investigation report (“PSI”) assigned a base offense level
of 20, U.S.S.G. § 2K2.1(a)(4)(A), along with a 2-level enhancement for possessing
between 3 and 7 firearms, § 2K2.1(b)(1)(A), and a 4-level enhancement for
possessing firearms in connection with another felony offense: “possession of a
large amount of crack cocaine”, § 2K2.1(b)(5). But based on a determination that
Brown possessed the firearms in connection with his possession with intent to
distribute more than 20 but less than 35 grams of crack cocaine, the PSI then
recommended applying the cross-reference provision, § 2X1.1, which provided for
a base offense level of 28, under § 2D1.1(c)(6). The PSI recommended a 2-level
enhancement for possessing a firearm, § 2D1.1(b)(1), and a 3-level reduction for
acceptance of responsibility, § 3E1.1, for a total offense level of 27. Combined
with criminal history category III, Brown’s guideline imprisonment range was 87
to 108 months.
Brown objected to the application of the four-level § 2K2.1(b)(5)
enhancement and the application of the § 2X1.1 cross-reference as a violation of
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his Sixth Amendment rights under Blakely v. Washington, 124 S.Ct. 2531 (2004):
he did not admit to the offenses of possession of cocaine or possession of cocaine
with intent to distribute.2 The district court denied Brown’s objection, adopted the
recommendations in the PSI, and sentenced Brown to 108 months’ imprisonment.
DISCUSSION
First, Brown challenges the district court’s denial of his motion to suppress
the guns and drugs found in the trunk of his car during the traffic stop. Brown
contends that the warrantless search of his trunk was not justified as the search
was not intended to prevent danger to the officers conducting the traffic stop. And
Brown maintains that he did not knowingly and voluntarily consent to the search
of the trunk: he tried to hide the key to the trunk, and the arresting officers’ claims
of consent were not corroborated or supported by the videotape of the scene taken
from Deputy Rhoden’s vehicle. We reject Brown’s arguments.
2
During his guilty plea hearing, Brown admitted that he “was driving the car that had the guns
and the crack in it.” But Brown admitted neither to drug quantity nor to possessing the drugs with
intent to distribute them. Also, Brown did not object to the § 2K2.1(b)(1)(A) enhancement for the
number of firearms involved.
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In considering the denial of a defendant’s motion to suppress, we apply a
mixed standard of review: we review “the district court’s findings of fact for clear
error and its application of law to those facts de novo.” United States v. Lyons,
403 F.3d 1248, 1250 (11th Cir. 2005). We construe all facts in the light most
favorable to the prevailing party: the government. United States v. Boyce, 351
F.3d 1102, 1105 (11th Cir. 2003).
“[T]he general rule in the criminal context is that warrantless searches are
per se unreasonable under the Fourth Amendment--subject only to a few
specifically established and well-delineated exceptions.” United States v.
Gonzalez, 71 F.3d 819, 825 (11th Cir. 1996) (internal citation and quotation
omitted). One of these exceptions “is a search conducted pursuant to consent to
search.” Id. at 827. A district court’s determination that consent was voluntary is
a finding of fact: we will not disturb this finding absent clear error. United States
v. Simms, 385 F.3d 1347, 1355 (11th Cir. 2004), cert. denied, 125 S.Ct. 1872
(2005). In analyzing voluntariness, courts make a factual determination based on
the totality of the circumstances. Id. (citation omitted) (listing factors courts
examine).
The district court committed no error in denying Brown’s motion to
suppress based on his consent to the search of the trunk of the car he was driving.
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Brown does not argue that his consent was coerced; instead, more accurately he
argues that he was not asked for, and did not grant, his consent to the search at all.
But the magistrate judge rejected Brown’s and Cotrell’s testimony as less credible
than that of the officers. This credibility determination “is within the province of
the factfinder”, and Brown has presented no reason to disturb this determination.
United States v. Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004).
Brown points to the videotape as evidence that he did not consent to the
search. But the videotape is inconclusive and does not contradict Officer Spikes’s
testimony. Brown is not in the videotape: it is a video from Deputy Rhoden’s
patrol car, it focuses on Brown’s car, and Brown was detained in the back of
Officer Spikes’s patrol car. And, Officer Spikes testified that Brown consented to
a search after the trunk key was found: this indicates Brown’s consent to a search
of the trunk.3 Brown has shown no clear error in the district court’s fact
determination that Brown consented to a search of the vehicle, including the
trunk.4
3
Brown’s attempt to hide the trunk key could cast doubt on whether he consented to a search of
the trunk. But the possibility that he both hid the trunk key and consented to the search could have
been based on a belief that the key would not be found. At least, no clear error exists: this possibility
is not “contrary to the laws of nature, or is so inconsistent or improbable on its face that no
reasonable factfinder could accept it.” Pineiro, 389 F.3d at 1366.
4
We need not address Brown’s claim that the search was not one that would have been made
legal because the evidence inevitably would have been discovered.
7
Next, citing Blakely, Brown argues that the district court improperly
enhanced his sentence based on relevant conduct he did not admit, in violation of
his Sixth Amendment right to have a jury make this determination.
Brown timely raised his constitutional objection. We review this issue de
novo; but we will not reverse the district court if the government shows that any
error was harmless beyond a reasonable doubt. See United States v. Paz, 405
F.3d 946, 948 (11th Cir. 2005).
We have stated that under Booker “the Sixth Amendment right to trial by
jury is violated where under a mandatory guidelines system a sentence is increased
because of an enhancement based on facts found by the judge that were neither
admitted by the defendant nor found by the jury.” United States v. Rodriguez, 398
F.3d 1291, 1297 (11th Cir.) (emphasis in original), cert. denied, 125 S.Ct 2935
(2005). Brown’s sentence was enhanced, under a mandatory guidelines system,
based on facts found by the judge and not admitted by him: Booker indicates that
Brown’s Sixth Amendment right to trial by jury was violated. See United States v.
Davis, 407 F.3d 1269, 1270 (11th Cir. 2005).
And the government has failed to show “that the mandatory, as opposed to
the advisory, application of the guidelines did not contribute to [Brown]’s
sentence.” Id. at 1271. The district court rejected Brown’s Blakely objection; but
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the district court elaborated no further on this matter. The district court did note at
sentencing (1) that it had accepted the plea agreement because it was “satisfied
that the agreement adequately reflects the seriousness of the actual offense
behavior” and (2) that Brown had received a “great benefit” from the plea
agreement. But these statements do not speak to whether the district court would
have given the same sentence regardless of whether the guidelines were advisory
or mandatory. See id. at 1271-72 (no harmless error beyond a reasonable doubt
where “[w]e simply do not know what the sentencing court would have done had
it understood the guidelines to be advisory rather than mandatory”).
Brown’s sentence was erroneous under Booker. And the government has
not met its burden of showing that this error was harmless beyond a reasonable
doubt. Brown must be resentenced under the advisory guidelines system: on
remand, the district court, “while not bound to apply the Guidelines, must consult
those guidelines and take them into account when sentencing.” Paz, 405 F.3d
at 949 (quoting Booker, 125 S.Ct. at 767).
We AFFIRM Brown’s conviction; but we VACATE Brown’s sentence and
REMAND for resentencing consistent with Booker.
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