[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 01, 2005
No. 04-12821
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 03-00076-CR-FTM-29SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FLOYD WILLIAMS,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Middle District of Florida
_________________________
(July 1, 2005)
Before ANDERSON, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Floyd Williams appeals his convictions and 360-month sentences for
conspiracy to possess with intent to distribute 50 grams or more of crack cocaine,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), and 846; and possession
with intent to distribute 50 grams or more of crack cocaine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(B)(iii). On appeal, Williams contends that the district
court erred in (1) denying his motion to suppress the crack cocaine found in his
apartment because Rebecca Lamar did not have the authority to consent to a
search of the apartment, and (2) enhancing his sentences based on facts not
admitted by him nor found by a jury beyond a reasonable doubt, and sentencing
him based on a mandatory guidelines system in violation of Blakely v.
Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), and United States v. Booker,
543 U.S. __, 125 S. Ct. 738 (2005).
I. BACKGROUND
This case arises from the following facts. On June 13, 2002, the Fort Myers
Police Department received a call informing them that Williams had been involved
in an aggravated assault with a firearm. Law enforcement officers arrived at
Williams’s residence and found Williams at home. While attempting to get
Williams to surrender himself, Williams’s mother and another woman, who
identified herself as Eugenia Shackleford, the lessee or renter of the apartment,
arrived at the scene. The officers conducted a search after obtaining the written
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consent of the woman identifying herself as Shackleford, who was later identified
as Rebecca Lamar. During the search the officers discovered crack cocaine.
The government’s testimony revealed that the agents knew that Williams
was in the apartment, Williams’s mother showed up at the apartment with a
woman, the woman identified herself as the occupant of the apartment, the woman
signed the consent to search form in full view of Williams and his mother, and
Williams acquiesced to the woman’s signing the consent form and never objected
to the consent at the scene. The district court held that these facts led the officers
to reasonably believe that the woman who consented to the search had the
authority to consent and denied Williams’s motion to suppress.
A jury adjudged Williams guilty on both counts. At the sentencing hearing,
Williams and the government stipulated that Williams was a manager or
supervisor, as set forth in U.S.S.G. § 3B1.1(b). In exchange for this stipulation,
Williams waived all of his factual and as-applied objections. The court accepted
the stipulation, and noted that Williams’s new guideline range was 360 months to
life. Though Williams was convicted of conspiracy to possess with intent to
distribute 50 grams or more, and possession with intent to distribute 50 grams or
more, at sentencing the district court held him accountable for 1.5 kilograms or
more of cocaine base.
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Additionally, Williams’s attorney noted for the court that the waiver of
objections meant that Williams was precluded from appealing any issues related to
his sentencing. After questioning Williams on the voluntariness of his appeal
waiver, the court accepted it, sentencing Williams to two 360-month terms of
imprisonment, to run concurrently.
II. DISCUSSION
A. Motion to Suppress
On appeal, Williams asserts that the district court erred in denying his
motion to suppress because the officers did not ascertain the true identity or
proprietary interest of Lamar. He argues that the officers violated the Fourth
Amendment by acting on her unconfirmed claims that (1) she was Eugenia
Shackleford, (2) she resided at the apartment, and (3) she had the legal authority to
consent to a search of his apartment.
We review the district court’s factual findings for clear error, and review de
novo the application of those facts to the law. United States v. Brazel, 102 F.3d
1120, 1146 (11th Cir. 1997) (citations omitted).
The Supreme Court has stated that a warrantless entry and search by law
enforcement officers does not violate the Fourth Amendment if the officers
obtained the consent of a third party who possessed common authority over the
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premises. See United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993
(1974). Further, law enforcement officers do not violate the Constitution when
they enter a residence because they reasonably, but erroneously, believe that the
person who consented to their entry and the search was a resident of the premises
and had the authority to consent. Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S.
Ct. 2793, 2800 (1990).
The district court did not err in denying Williams’s motion to suppress
because the officers’ reliance on Lamar’s consent to search was reasonable based
on the circumstances. First, Lamar stated that her name was Shackleford and she
lived at the residence. Williams’s mother confirmed to the officers that Lamar
lived at the residence. Furthermore, neither Williams, who was in hearing distance
of Lamar, nor Williams’s mother objected when Lamar claimed to be Shackleford
and said that she lived in the apartment. In addition, Lamar signed the consent to
search sheet as Shackleford. Finally, Williams instructed Lamar to let the officers
search the apartment. These findings are not in error, nor is the conclusion that the
officers reasonably relied on Lamar’s representation and consent, and had no
reason to believe she was lying or that they needed to verify her identity. See
Illinois, 497 U.S. at 179, 186, 110 S. Ct. at 2796, 2800. Accordingly, the district
court did not err when in denying Williams’s motion to suppress.
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B. Blakely/Booker
Williams next contends that the district court erred, under Blakely, and by
extension, Booker, because the exact amount of crack cocaine for which Williams
was responsible was not admitted by him nor found by a jury beyond a reasonable
doubt. Williams also argues that his enhancement for being an organizer or
manager under § 3B1.1(b) was based on facts neither found by a jury nor admitted
by him. Finally, Williams claims that the federal Sentencing Guidelines are
unconstitutional.
Williams raises these issues for the first time on appeal. When a defendant
does not raise objections in the district court, we review the district court’s
decision for plain error. United States v. Shelton, 400 F.3d 1325, 1328 (11th Cir.
2005), see also Fed. R. Crim. P. 52(b). We may not correct an error under this
standard unless (1) there is an error; (2) that is plain, and (3) that affects
substantial rights. See Shelton, 400 F.3d at 1328-29. Once the appellant proves
these three elements, we may notice the forfeited error only if it “seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id. at 1329.
Based on the Supreme Court’s holding, we have explained that there are
two types of Booker error: (1) a Sixth Amendment error – the error of imposing a
sentencing enhancement based on judicial findings that go beyond the facts
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admitted by the defendant or found by the jury, and (2) a statutory error – the error
of being sentenced under a mandatory guidelines system. United States v.
Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005). If we find that there is error,
either constitutional or statutory, that error is plain when it is contrary to the law at
the time of the appeal. United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir.
2005), petition for cert. filed, 73 U.S.L.W. 3531 (Feb. 23, 2005) (No. 04-1148);
Shelton, 400 F.3d at 1331. With respect to a Sixth Amendment claim, the
defendant bears the burden of demonstrating that the error “affected the outcome
of the district court proceedings.” Rodriguez, 398 F.3d at 1299. To prevail on a
claim of statutory Booker error, the defendant must demonstrate that there was a
“reasonable probability of a different result if the guidelines had been applied in
an advisory instead of binding fashion by the sentencing judge in this case.”
Shelton, 400 F.3d at 1332 (quotation and citation omitted).
1. Sixth Amendment Error
In the case before us, we find no constitutional Booker error because, at
sentencing, Williams waived all of his objections to the Pre-Sentence Investigation
Report (“PSI”). Therefore, he admitted the amount of drugs that were attributed to
him. Id. at 1330 (holding that the defendant failed to meet the first prong of the
plain error standard because he waived his objections to the factual statements in
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the PSI thereby admitting the facts in that report). Furthermore, at sentencing the
government and Williams stipulated that he was a manager within the meaning of
the Guidelines. Because Williams admitted his role, the district court did not err
by imposing the enhancement based on that role. Id. Thus, the district court did
not commit Sixth Amendment Booker error.
2. Statutory Error
Under our recent caselaw, Williams can establish statutory Booker error
because Williams was sentenced using a mandatory guidelines system. Id. at
1330-31. Furthermore, Booker made this error plain. Id. Despite this plain error,
Williams cannot prevail because he cannot demonstrate that his substantial rights
were affected by the error. In contrast with Shelton, in which the district court
expressed on the record its view that the sentence was too severe, Williams has not
met his burden by showing that the district court would have sentenced Williams
differently under an advisory system. Indeed, the court noted Williams’s
extensive criminal history in stating: “I do think, Mr. Williams, that you have
probably set the record in terms of what I’ve seen in terms of criminal history
points.” Because Williams cannot show a reasonable probability of a different
result, we find no statutory Booker error.
III. CONCLUSION
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Upon review of the record and the parties’ briefs, we discern no reversible
error. Accordingly, we affirm.
AFFIRMED.
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