[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 14, 2005
No. 04-13268 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 03-14065-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTOINE FRANCIS,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 14, 2005)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Antoine Francis, through counsel, appeals both the district court’s
order denying his motion to suppress and his 262-month sentence for cocaine base
distribution, in violation of 21 U.S.C. § 841(a)(1). On appeal, Francis argues that
the district court improperly denied his motion to suppress evidence seized during
a traffic stop because (1) the police officer’s questioning of Francis, as a passenger
in a lawfully stopped vehicle, regarding his possession of weapons and
contraband, broadened the scope of the initial detention and resulted in an
unlawful seizure in violation of the Fourth Amendment; and (2) he did not
voluntarily consent to a search of his person but rather acquiesced to a “show of
official authority.” Francis also claims that, in light of United States v. Booker,
543 U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), the district court plainly
erred by enhancing his sentence, pursuant to a mandatory application of the
Sentencing Guidelines and based on both his status as a career offender and
various drug quantities, neither of which were charged in the indictment.
I. Motion to Suppress
We review a district court’s denial of a defendant’s motion to suppress
under a mixed standard of review, reviewing the district court’s findings of fact
under the clearly erroneous standard and the district court’s application of law to
those facts de novo.” United States v. Desir, 257 F.3d 1233, 1235-36 (11th Cir.
2001).
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A. Unlawful Detention
The Fourth Amendment protects individuals from unreasonable searches
and seizures. A traffic stop is a seizure within the meaning of the Fourth
Amendment. Deleware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L.
Ed. 2d 660 (1979). Nevertheless, because a routine traffic stop is a limited form
of seizure, it is analogous to an investigative detention, and we have therefore held
that a traffic stop will be governed by the standard set forth in Terry v. Ohio, 392
U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). United States. v. Pruitt, 174 F.3d
1215, 1219 (11th Cir. 1999). In Terry, the Supreme Court clarified that a person is
seized “whenever a police officer accosts an individual and restrains his freedom
to walk away.” 392 U.S. at 16, 88 S. Ct. at 1877. “[T]he police may stop and
briefly detain a person to investigate a reasonable suspicion that he is involved in
criminal activity, even though probable cause is lacking.” United States v.
Williams, 876 F.2d 1521, 1523 (11th Cir. 1989).
“[T]he reasonableness of such seizures depends on a balance between the
public interest and the individual’s right to personal security free from arbitrary
interference by law officers.” United States v. Brignoni-Ponce, 422 U.S. 873, 878
, 95 S. Ct. 2574, 2579, 45 L. Ed. 2d 607 (1975). The Fourth Amendment
nevertheless requires that a police officer “be able to point to specific and
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articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. at 1880. When
determining whether reasonable suspicion exists, the court must review the
“totality of the circumstances” of each case to ascertain whether the detaining
officer had a “particularized and objective basis” for suspecting legal wrongdoing.
United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750, 151 L. Ed. 2d 740
(2002). We have held that reasonable suspicion is “considerably less than proof of
wrongdoing by a preponderance of the evidence, or even the implicit requirement
of probable cause that a fair probability that evidence of a crime will be found.”
Pruitt, 174 F.3d. at 1219 (citations omitted).
The Supreme Court, recognizing that law enforcement officers face an
“inordinate risk” of assault during traffic stops, has held that once a motor vehicle
has been lawfully stopped for a traffic violation, a police officer may order the
driver to get out of the vehicle without violating the Fourth Amendment.
Pennsylvania v. Mimms, 434 U.S. 106, 110-11, 98 S. Ct. 330, 333, 54 L. Ed. 2d
331 (1977). Importantly, the Supreme Court has extended the rule announced in
Mimms and held that an officer making a traffic stop may order passengers to exit
the vehicle. Maryland v. Wilson, 519 U.S. 408, 413-15, 117 S. Ct. 882, 885-86,
137 L. Ed. 2d 41 (1997). Even so, we have observed that “an officer’s actions
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during a traffic stop must be reasonably related in scope to the circumstances
which justified the interference in the first place,” and that “the duration of the
traffic stop must be limited to the time necessary to effectuate the purpose.”
United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001) (quotation and
emphasis omitted). In other words, “the traffic stop may not last any longer than
necessary to process the traffic violation unless there is articulable suspicion of
other illegal activity.” Id. (quotation omitted). “[O]nly unrelated questions which
unreasonably prolong the detention are unlawful; detention, not questioning, is the
evil at which Terry’s prohibition is aimed. Questions which do not extend the
duration of the initial seizure do not exceed the scope of an otherwise
constitutional traffic stop.” Purcell, 236 at 1280 (citation, quotation, and
alteration omitted). In addition, “[i]t is well established that officers conducting a
traffic stop may take such steps as are reasonably necessary to protect their
personal safety.” Id. at 1277 (quotation omitted).
After reviewing the record, we conclude that the district court properly
denied Francis’s motion to suppress because the officer’s questioning of Francis
did not unreasonably extend the duration of the traffic stop and the questions
posed were reasonably necessary to protect the officer’s safety. Francis complains
that the officer asked him not only about weapons but also about narcotics.
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Nevertheless, the record demonstrates that the entire traffic stop, from the time the
officer stopped the car to the time he discovered the drugs at issue in Francis’s
waistband, took approximately five minutes. In addition, the totality of the
circumstances surrounding the detention show that the officer’s questions were
necessary to protect his safety.
B. Validity of Consent
Francis also claims that he did not voluntarily consent to a search of his
person, but rather acquiesced to a “show of official authority.”
In the absence of probable cause or reasonable suspicion, law enforcement
officers “may nonetheless search an individual without a warrant, so long as they
first obtain the voluntary consent of the individual in question.” United States v.
Blake, 888 F.2d 795, 798 (11th Cir. 1989).
“Searches conducted by means of consent are valid, so long as the consent
is voluntary.” United States v. Kapperman, 764 F.2d 786, 793 (11th Cir. 1985).
“The determination as to whether a suspect’s consent is voluntary is not
susceptible to neat talismanic definitions; rather, the inquiry must be conducted on
a case-by-case analysis.” Blake, 888 F.2d at 798. Generally, “[i]n order for
consent to a search to be deemed voluntary, it must be the product of an essentially
free and unconstrained choice.” United States v. Garcia, 890 F.2d 355, 360 (11th
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Cir. 1989). In determining whether consent was freely given, we will “scrutinize
the facts and strike a balance between [a suspect’s] right to be free from coercive
conduct and the legitimate need of the government to conduct lawful searches. Id.
“Relevant factors in determining voluntariness, none of which is dispositive,
include” (1) “the voluntariness of the defendant’s custodial status,” (2) “the
presence of coercive police procedure,” (3) “the extent and level of the
defendant’s cooperation with police,” (4) “the defendant’s awareness of his right
to refuse to consent to the search,” (5) “the defendant’s education and
intelligence,” and (6) “the defendant’s belief that no incriminating evidence will
be found.” United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir. 1984).
After reviewing the record, we conclude that Francis voluntarily consented
to answer the officer’s questions. The record established that the officer never
touched or restrained Francis in any way, and in fact, did not even frisk Francis or
unholster his weapon until after Francis had already been placed under arrest.
Most important, the record shows that Francis voluntarily removed his shoes and
loosened his waistband without being specifically directed to do so.
II. Booker
Francis argues, for the first time, that his sentence should be vacated in light
of Booker. Francis contends that the district court violated his rights under the
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Fifth and Sixth Amendments by increasing his offense level by relying on facts
that were neither set forth in the indictment nor admitted by his plea. He also
argues that the district court erred by applying the Guidelines in a mandatory
fashion.
Because Francis failed to make any constitutional objection to the probation
officer’s or the court’s sentencing calculations, our review is limited to a review
for plain error. United States v. Rodriquez, 398 F.3d 1291, 1298 (11th Cir. 2005),
petition for cert. filed, (No. 04-1148) (U.S. Feb. 23, 2005). In order for us to
correct plain error: (1) there must be error; (2) the error must be plain; and (3) the
error must affect substantial rights. Id. “If all three conditions are met, an
appellate court may then exercise its discretion to notice a forfeited error, but only
if (4) the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (quotation omitted).
In order to decide the Booker issues Francis presents, we must review the
applicable Supreme Court precedent pertaining to sentence enhancements based
on prior convictions and defendant admissions. In Almendarez-Torres v. United
States, the Supreme Court held that the government need not allege in its
indictment and need not prove beyond a reasonable doubt that a defendant had
prior convictions for a district court to use those convictions for purposes of
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enhancing a sentence. 523 U.S. 224, 243-44, 118 S. Ct. 1219, 1230-31, 140 L. Ed.
2d 350 (1998). In Apprendi v. New Jersey, the Supreme Court declined to revisit
Almendarez-Torres, but held that “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000). In
Blakely v. Washington, the Supreme Court applied the rule announced in Apprendi
to the State of Washington’s Sentencing Reform Act and reversed an upward
departure based solely on judicial fact-finding. 542 U.S. ___, 124 S. Ct. 2531, 159
L. Ed. 2d 403 (2004). The Court noted that the relevant “‘statutory maximum’ for
Apprendi purposes is the maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted by the defendant.” 542
U.S. at ____, 124 S. Ct. at 2534-38 (emphasis omitted).
In United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir.), cert. denied,
125 S. Ct. 637 (2004), we refused to interpret the Supreme Court’s rationale in
Apprendi as overruling the prior Supreme Court holding in Almendarez-Torres,
523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), that the government
“need not allege in its indictment and need not prove beyond a reasonable doubt
that a defendant had prior convictions for a district court to use those convictions
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for purposes of enhancing a sentence.” We further concluded that Blakely “does
not take such fact-finding out of the hands of the courts.” Id. at 1257-58 n.14; see
also United States v. Orduno-Mireles, 405 F.3d 960, 963 (11th Cir. 2005) (holding
that Almendarez-Torres remains the law after Blakely and Booker).
Recently, in United States v. Booker, 543 U.S. ___, 125 S. Ct. 738, 749,
160 L. Ed. 2d 621(2005), the Supreme Court held that there was no distinction of
constitutional significance between the Federal Sentencing Guidelines and the
Washington procedures at issue in Blakely. In Booker, the Supreme Court
concluded that its holding in Blakely applied to the Federal Sentencing Guidelines,
and it explicitly reaffirmed its holding in Apprendi: “Any fact (other than a prior
conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable doubt.” 543
U.S. at ___, 125 S. Ct. at 756. In addition, because the mandatory nature of the
Guidelines implicated the Sixth Amendment right to a jury trial, the Supreme
Court made the Guidelines effectively advisory. 543 U.S. at ___, Id. at 757.
Francis first argues that the district court plainly erred, in light of Booker,
when it (1) found that he was responsible for an amount of drugs that exceeded the
5-gram drug quantity charged in the indictment, thus qualifying him for a base
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offense level of 30 pursuant to U.S.S.G. § 2D1.1(c)(5), and (2) found that he was a
career offender, thus qualifying him for a 7 level offense enhancement pursuant to
U.S.S.G. § 4B1.1(a). These contentions, however, are without merit. As to drug
quantity, because Francis did not challenge the accuracy of the relevant facts
contained in the PSI or the government’s recitation of facts at the plea colloquy, he
admitted the drug quantities used to enhance his sentence. See United States v.
Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005). As to Francis’s classification as a
career offender pursuant to U.S.S.G. § 4B1.1(a), we have held that the government
need not allege in the indictment or prove beyond a reasonable doubt that a
defendant has prior convictions in order for a district court to use those prior
convictions for purposes of enhancing a sentence. Orduno-Mireles, 405 F.3d at
962-63. Accordingly, there is no Sixth Amendment violation under Booker in this
case.
In addition, Francis is incorrect when he argues that he is entitled to be re-
sentenced because the district court committed plain error by imposing his
sentence pursuant to a mandatory application of the Sentencing Guidelines. We
have held that the district court plainly errs by imposing a sentence under a
mandatory Guidelines scheme, even in the absence of a Sixth Amendment
enhancement. See Shelton, 400 F.3d at 1330-31. Nevertheless, Francis is unable
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to satisfy the third prong of the plain error test. Francis does not show, nor does
the record reveal, any statements from the district court indicating that Francis
would have received a lesser sentence under an advisory application of the
Guidelines. Although Francis suggests that the district court’s decision to
sentence him at the bottom of the Guidelines’ range satisfies his burden under the
third prong of plain-error review, this fact is insufficient to support his claim. See
United States v. Fields, No. 04-12486, manuscript op. at 8-10 (11th Cir. May 16,
2005) (holding that under plain-error review the fact that the defendant was
sentenced to the bottom of the mandatory guideline range, without more, is
insufficient to satisfy the third prong’s requirement that the defendant show a
reasonable probability of a lesser sentence under an advisory guideline system).
III. Conclusion
For the foregoing reasons, we affirm Francis’s convictions and sentences.
AFFIRMED.
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