[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 12, 2005
No. 04-14112 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 03-00242-CR-CB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PERRY LAMAR BOOKER,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(May 12, 2005)
Before BLACK, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Perry Lamar Booker directly appeals his conviction and 84-month sentence
for knowingly possessing a firearm as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). Booker argues on appeal that (1) the district court abused its
discretion in denying his pretrial motion for the government to reveal the identity
of the confidential informant (“CI”); (2) the court erred in denying his pretrial
motion to suppress evidence seized as the result of a search conducted of his
residence; (3) the evidence at trial was insufficient to support his § 922(g)(1)
conviction; and (4) the district court violated his Sixth Amendment right to a jury
trial in enhancing his sentence, pursuant to U.S.S.G. § 2K2.1(b)(5), based on facts
that neither were proven to a jury beyond a reasonable doubt, nor admitted by
Booker, in light of Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159
L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. ___, 125 S.Ct. 738,
160 L.Ed.2d 621 (2005). For the reasons set forth more fully below, we affirm
Booker’s conviction, but we vacate and remand for resentencing consistent with
the Supreme Court’s decision in Booker.
A federal grand jury returned an indictment, charging Booker with the
above-referenced offense and one count of possession with intent to distribute 1.5
grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Booker filed a
pretrial motion to compel the government to produce, among other things, (1) the
2
identity and criminal history of the CI on whom local law enforcement officers
had relied in obtaining a state search warrant for Booker’s residence, and (2) the
date and time of the controlled buy during which this CI allegedly bought drugs
from Booker at this residence. The government responded that the controlled buy
occurred on July 15, 2003, at approximately 1:30 p.m. The government, however,
refused to identity the CI, arguing that Booker had failed to make a showing
sufficient to overcome the government’s privilege in maintaining the CI’s secrecy.
The government also responded that it was concerned for the CI’s safety because
(1) Monroeville, Alabama—the location of the controlled buy—was a small
community; and (2) Booker had threatened to retaliate against the CI.
Booker also moved pretrial for the court to suppress evidence local law
enforcement agents seized as the result of their search of Booker’s residence,
including the firearms at issue in the offense of conviction. Booker contended
that, although the search was conducted pursuant to a warrant, the affidavit
supporting the warrant failed to establish that the CI was reliable or that law
enforcement officials had independently corroborated the CI’s information. He
generally argued, as well, that the affiant may not have revealed to the magistrate
all of the relevant facts necessary to assess the CI’s reliability.
3
In support of his motion to suppress this evidence, Booker attached a copy
of the affidavit of Alfred Carter, an officer with the Monroe County Sheriff’s
Office, submitted in seeking the search warrant for Booker’s residence, person,
and vehicle, which contained the following attestations:
A [CI] that has provided me, Alfred Carter, with accurate and reliable
information in the recent past has provided me with information that
the [CI] has completed numerous purchases of crack cocaine from
Perry Booker at Jones Trailer Park Lot 28. Agents met with the [CI]
and provided him with U.S. Currency to make a controlled buy from
Perry Booker at Lot 28, Jones Trailer Park. Agents searched the [CI]
and the [CI]’s vehicle for contraband, then sent the [CI] to Perry
Booker’s residence. Agents followed and observed the [CI] go to Lot
28, Jones Trailer Park. Agents then followed the [CI] back to the
predesignated location for debriefing. The [CI] handed over to Agent
Carter 3 pieces of solid rock substance which Agent Carter then field
tested. The substance was positive for the presence of cocaine. The
[CI] stated that Perry Booker met him in the doorway of the
residence. The [CI] purchased $50.00 worth of crack cocaine from
Perry Booker. The [CI] stated that Perry Booker retrieved the alleged
crack cocaine from his person, which was in a brown glass pill type
bottle with a white cap. The bottle was full of what appeared to be
crack cocaine. After completing the purchase, Booker went back
inside the residence. The [CI] described the residence as a beige
colored single wide mobile home in the line of the other residences
and that there were several pit bull type dogs tied outside the
residence. It was further described as being at the end of the lane and
was turned parallel [sic] to the lane, which was ninety degrees
opposite of the other residences.
Furthermore, Booker filed a renewed motion to compel, moving the court to
compel the government to reveal the identity of the CI because (1) the CI’s
4
reliability was “at the center” of Booker’s suppression motion, and (2) Booker was
challenging in his suppression motion whether the affiant revealed to the
magistrate all of the facts relating to the CI’s reliability. Booker contended that
this disclosure was necessary because (1) the CI’s statements on the controlled buy
were uncorroborated by law enforcement officials, (2) Booker was intending to
assert the “it wasn’t me” defense, (3) one of Booker’s relatives would testify that
Booker’s cousin was in Booker’s residence the same day of the search, (4) the CI
was not shown a photograph array in determining the identification of the person
involved in the controlled buy, and (5) the risk of retaliation against the CI was
minimal because Booker was being detained pretrial.
In a combined order, the court denied both Booker’s renewed motion to
compel and his motion to suppress. The court first explained that, because “the
record [was] sufficient to resolve the question presented,” it was denying Booker’s
request for a suppression hearing. The court next determined that the affidavit for
the search warrant established the CI’s reliability, and the issuing magistrate had a
substantial basis for concluding that probable cause for the search existed, because
the CI gave first-hand information that (1) he had purchased drugs from Booker on
numerous occasions; (2) these transactions occurred at Booker’s residence, which
5
the CI described in detail; and (3) Booker retrieved the cocaine base from “a
brown pill bottle with a white cap that was on his person.”
The court also explained that this information was corroborated by the
officers’ search of the CI and his vehicle before the controlled buy, their
observations of the CI walking to Booker’s residence, their immediate debriefing
of the CI after the controlled buy, and the positive field test of the substance the CI
had purchased from Booker. In addition, the court determined that a “presumption
of validity” existed with respect to the affidavit, and that Booker had to assert
more than conclusory allegations of omitted facts to warrant a hearing on the
issue. Finally, the court determined that Booker’s motion to compel was meritless
because the government did not intend to call the CI as a trial witness, and because
Booker had not shown that the CI’s testimony would significantly aid in
establishing an asserted defense.
During a two-day trial, Agent Carter testified that, on July 16, 2003, he and
other law enforcement officers executed a search warrant for Booker’s residence.1
After no-one answered his “knock and announce,” Agent Carter forced open the
1
Prior to the introduction of testimony, the parties stipulated that (1) the defendant was a
convicted felon at the time of the instant offense; (2) the expert testimony of Katrina Warren, a
forensic scientist, was accurate in concluding that substances tested were cocaine base and
marijuana; and (3) the three firearms that were listed in Booker’s indictment were (i) not
manufactured in the State of Alabama, (ii) within the definition of 18 U.S.C. § 921(a)(3), and
(iii) found to be in working order.
6
front door of Booker’s residence and entered it. Noting that the television set and
air conditioning were running, Agent Carter conducted an initial safety sweep of
the residence to determine whether anyone was inside it. Although he did not
locate anyone during this sweep, he observed two shotguns and one rifle in an
open closet in the master bedroom, which he identified at trial. During a further
search of this closet, Agent Carter recovered (1) bags containing cocaine base and
marijuana from a “trough”; (2) a man’s watch box containing $780 in cash from
the top shelf; and (3) a receipt in the name of Carlos Booker, Booker’s first cousin.
Agent Carter further testified that he observed in the master bedroom a
small bed and a large tub containing men’s clothes. In a second bedroom, which
did not contain a bed, Agent Carter recovered a box with papers and letters
addressed to or from Perry Booker. He recovered from the den and kitchen areas
Perry Booker’s high school equivalency (“GED”) diploma, a plastic bag
containing 13 smaller bags of a substance that appeared to be powder cocaine, and
a brown glass medicine bottle that appeared to contain cocaine-base residue, but
did not test positive for this substance. Other evidence Agent Carter recovered
containing Perry Booker’s name included (1) a utility bill from another area of the
residence, and (2) a lease agreement for the residence from Booker’s vehicle.
7
Finally, Agent Carter testified that, during this search, Carlos and Perry
Booker drove up to the residence in Carlos Booker’s vehicle. After Perry Booker
denied living at the trailer, Agent Carter recovered from Booker’s pocket keys that
opened the front door of the trailer, a receipt for rent for the month of July for the
trailer, and another utility-bill receipt. Although officers also recovered from
Carlos Booker’s vehicle a .9 mm pistol and finger scales, the officers only arrested
Perry Booker. Agent Carter stated that the cocaine base the officers recovered
from Booker’s residence had a total weight of 1.42 grams and a street value of
approximately $500.2
At the conclusion of the government’s case, Booker moved for a judgement
of acquittal, pursuant to Fed.R.Crim.P. 29. Booker argued that the government
had failed to prove either that he had the intent to distribute drugs, or that he had
knowingly and willfully possessed the firearms. The court summarily overruled
this motion.
2
Over Booker’s objection, the government also introduced the testimony of Mitch
Stuckey, the chief investigator with the Monroeville Police Department, for the limited purpose
of testifying to prior acts to establish Booker’s intent to distribute cocaine base in Count 2 of his
indictment. Officer Stuckey stated that, on May 8, 1998, he executed a search warrant at
Booker’s residence and recovered approximately one ounce of cocaine and cocaine base,
marijuana, drug paraphernalia, a pistol, a rifle, and $900 in cash. During this search, Officer
Stuckey also recovered from Booker’s person over $600 in cash.
8
Booker then called in defense his sister, Lois Booker, who testified that, at
the time of Booker’s arrest, she had been visiting family in Monroeville and
staying with Booker. Lois Booker testified that, on July 15, 2003, the day before
the search at issue, she had returned to Booker’s residence after running errands,
had not been able to come inside, but had seen Carlos Booker’s vehicle outside
and someone looking at her through the blinds. In addition, Lois Booker stated
that she never saw drugs or firearms in Booker’s residence.
Diane Rivers also testified for the defense, stating that she owned the trailer
that Booker was renting and using as his residence at the time of his arrest, and
that she did not believe that anyone else was living there. On July 16, 2003, the
day of the arrest, she saw Carlos Booker at the trailer. She later observed officers
knock down the door of this trailer, and she saw Perry Booker return to the trailer
as a passenger in Carlos’s red car. After Booker was arrested, Rivers observed the
officers talk to Carlos Booker for approximately one hour. In addition, Rivers
stated that she never had observed Booker with either firearms or drugs, and she
did not believe he had been dealing drugs from the trailer. At the conclusion of its
evidence, the defense renewed its Rule 29 motion, which the court again
summarily denied. The jury ultimately was dead-locked on the § 841(a)(1)
offense, but it found Booker guilty of the § 922(g)(1) offense.
9
The probation officer preparing Booker’s presentence investigation report
(“PSI”) calculated his base offense level as 20, pursuant to U.S.S.G. § 2K2.1(a)(4).
The probation officer also recommended a two-level upward adjustment, pursuant
to U.S.S.G. § 2K2.1(b)(1)(A), because the offense involved between three and
seven firearms, and a four-level upward adjustment, pursuant to U.S.S.G.
§ 2K2.1(b)(5), because Booker used or possessed the firearms in connection with
another felony offense. With an adjusted offense level of 26 and a criminal history
category of III, Booker had a guideline range of 78 to 97 months’ imprisonment.
In addition to objecting to the PSI’s summary of the offense conduct,
Booker contended that the PSI’s recommended four-level § 2K2.1(b)(5)
enhancement, which was based on the judicially determined fact that Booker
possessed drugs with the intent to distribute them, would result in a Blakely
violation. Booker also again argued that the court should compel the government
to identity the CI, or at least to conduct an in camera review of this fact, because
(1) the CI was the only person who claimed to have first-hand knowledge about
Booker’s alleged possession of drugs; and (2) if the CI was Carlos Booker, this
fact might be exculpatory and would constitute mitigating evidence at sentencing.
In response to Booker’s renewed motion to compel, the government
contended that (1) it did not intend to call the CI as a witness at sentencing, (2) the
10
CI had no information about the offense of conviction, and (3) Booker had failed
to explain how the CI’s identity could be relevant or helpful to him for sentencing
purposes. The government, concluded, as such, that the identity of the CI was
irrelevant, and that the court should deny Booker’s renewed motion to compel.
Moreover, the government responded that Booker’s Blakely argument was without
merit because Blakely did not apply to the federal guidelines.
At Booker’s first sentencing hearing, he renewed his motion to compel the
government to disclose the CI’s identity, arguing that he believed that (1) Carlos
Booker was the CI, and (2) the drugs belonged to Carlos. The government
responded that Carlos Booker was not the CI, and that the government (1) had
“terminated” its use of this CI after learning that he was in possession of cocaine,
(2) might have a warrant for his arrest, and (3) did not know his location. The
court then questioned “whether there [was] any need to keep [the CI’s] identity
confidential, since he [was] no longer being used and there [was] no need to
protect him . . . for law enforcement purposes.” Nevertheless, the court
determined, based on the trial evidence and testimony about Booker’s 1998 drug-
trafficking activity, that the § 2K2.1(b)(5) enhancement was appropriate. The
court then granted Booker a continuance to review the trial testimony.
11
On July 20, 2004, when the court reconvened Booker’s sentencing hearing,
Booker renewed his motion to compel, stating that he had learned that the CI
might have died of an overdose. Booker also raised a Blakely challenge to his
§ 2K2.1(b)(5) enhancement. The court denied both of these motions, explaining
that the identity of the CI did not impact Booker’s potential sentence, and that the
Supreme Court’s decision in Blakely was not applicable to the federal guidelines.
Booker objected to this ruling, arguing that the trial evidence did not establish
that Booker (1) knowingly possessed the drugs recovered from his residence, or
(2) knowingly possessed the firearms “in connection with” the drug offense. After
giving Booker the opportunity to allocute, the court sentenced him to 84 months’
imprisonment, 3 years’ supervised release, and a $100 special assessment fee.
Issue 1: Pretrial motion for the government to reveal the identity of the CI
Booker argues that the court abused its discretion in failing to grant his
motion to compel the government to disclose the identity of the CI because the
balance between the government’s interest in withholding this identity and
Booker’s interest in asserting his defense “tipped” in Booker’s favor. Booker
explains that, because the CI played an “active, prominent role” in the criminal
activity, his potential testimony bore a direct relationship on Booker’s defenses of
“I wasn’t there” and “it wasn’t me.” Booker also contends that, contrary to the
12
court’s determination, the fact that the government did not intend to call the CI at
trial was not relevant to the determination. Moreover, Booker argues that the
government failed to show that it had a compelling justification to keep the CI’s
identity confidential.
We review the denial of a motion to disclose the identity of a CI for abuse
of discretion. United States v. Gutierrez, 931 F.2d 1482, 1490 (11th Cir. 1991).
Although the government has the privilege to withhold from disclosure the
identity of its informants, this privilege is limited. Id. In Roviaro v. United States,
353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the Supreme Court set forth a
balancing test, whereby a court must consider the particular circumstances of each
case, the crime charged, the possible defenses, and the potential significance of the
CI’s testimony. Id., 353 U.S. at 62, 77 S.Ct. at 628. If disclosure is “relevant and
helpful to the defense of the accused, or is essential to a fair determination of a
cause, the privilege must give way.” Id. at 60-61, 77 S.Ct. at 627-28.
In Gutierrez, we further discussed that, in applying the Roviaro balancing
test, courts focus on three factors: “the extent of the [CI’s] participation in the
criminal activity, the directness of the relationship between the defendant’s
asserted defense and the probable testimony of the [CI], and the government’s
interest in nondisclousre.” Gutierrez, 931 F.2d at 1490 (quotation omitted). After
13
the government in Gutierrez acknowledged that the CI’s participation was
substantial, instead of consisting of his being “a mere tipster,” we examined the
correlation of the asserted defense with the CI’s probable testimony. Id. at 1490-
91. Moreover, explaining that the defendant had the burden of showing “that the
[CI’s] testimony would significantly aid in establishing an asserted defense,” and
that “[m]ere conjecture about the possible relevance of [the CI’s] testimony is
insufficient to compel disclosure,” we concluded that, although the CI was the
only witness who could refute the officers’ testimony, the defendant failed to show
that the CI’s testimony would contradict overwhelming evidence of the
defendant’s guilt. Id. at 1491. After we also determined that some of the
appellants may have threatened the CI, we concluded that the defendants failed to
show that the district court abused its discretion in denying their motions to
compel the identity of the CI. Id.
In United States v. Rutherford, 175 F.3d 899 (11th Cir. 1999), we examined
an appeal of drug-trafficking convictions, in which the defendant claimed that “it
wasn’t me,” that is, that he had been misidentified during a controlled buy
because, contrary to other evidence, the officers involved in the buy did not
indicate that the defendant walked with a limp. See id. at 902. We determined
that the defendant established a direct relationship between his defense and the
14
informants’ proffered testimonies because there may have been a
misidentification, and because the informants were in a better position to identity
the man they took to the drug deal than the government agents who first met the
defendant at the buy and only identified the defendant from a photograph. Id.
Thus, we remanded the case for the court to conduct an in camera hearing to
determine, in the first instance, what the informants’ testimonies would entail. Id.
Unlike the facts in Rutherford, the CI’s testimony here only would have
been relevant for establishing whether the government had probable cause to
search Booker’s residence. Thus, even taking as true Booker’s defense that “it
wasn’t me,” and that the CI was mistaken as to the identity of the person who sold
him cocaine base during the controlled buy, this fact would not have affected
whether the government established probable cause to believe that drugs would be
found at that residence.3 Moreover, as the district court concluded, the CI’s
identity and possible testimony as to the controlled drug buy did not relate to
whether Booker knowingly possessed firearms. Applying the applicable balancing
test, therefore, Booker failed to show “that the [CI’s] testimony would
3
To the extent Booker argued in the district court that the disclosure of the CI’s
testimony was necessary because the affiant may have omitted facts pertaining to the CI’s
reliability, Booker has not discussed this argument on appeal. We, therefore, conclude that he
has abandoned it. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (“a
party seeking to raise a claim or issue on appeal must plainly and prominently so indicate.
Otherwise, the issue—even if properly preserved at trial—will be considered abandoned”).
15
significantly aid in establishing an asserted defense.” See Gutierrez, 931 F.2d at
1490-91. In addition, Booker had threatened to retaliate against the CI. Thus, the
district court did not abuse its discretion in denying Booker’s motion to disclose
the identity of the CI. See Gutierrez, 931 F.3d at 1490.
Issue 2: Pretrial motion to suppress evidence
Booker also argues that the court erred in denying his motion to suppress
evidence seized from his residence because the affidavit supporting the warrant for
this search failed to state sufficient facts to establish that the CI’s information was
reliable. Booker contends that the limited information Agent Carter included in
the affidavit on Agent Carter’s past relationship with the CI did not show that the
CI was reliable. Booker also argues that, although reliability and veracity can be
established, alternatively, through police corroboration or evidence that the CI’s
knowledge was specific, these factors were absent in this case as well. In addition,
Booker contends that the court erred by not conducting an evidentiary hearing on
his motion before denying it because (1) Booker’s sister could have testified that
he left his residence prior to the controlled buy; (2) the record was unclear on
whether law enforcement officers actually witnessed the controlled buy; and
16
(3) only the CI could state that he bought drugs from Booker, instead of from
someone else with access to the Booker’s trailer.
“A district court’s ruling on a motion to suppress presents a mixed question
of law and fact.” United States v. Heard, 367 F.3d 1275, 1278 (11th Cir.)
(quotation omitted), cert. denied, 125 S.Ct. 235 (2004). “We review the district
court’s factual findings for clear error and its application of law to the facts de
novo, viewing all facts in the light most favorable to the party that prevailed in the
district court.” Id. Moreover, although the challenged search here was conducted
by local law enforcement officials and pursuant to a state warrant, “[i]t is
established law of this Circuit that the admissibility in federal court of the
products of state searches and seizures is controlled by federal law.” See United
States v. Clay, 355 F.3d 1281, 1283 (11th Cir.) (citation omitted), cert. denied, 125
S.Ct. 626 (2004).
“Probable cause to support a search warrant exists when the totality of the
circumstances allow a conclusion that there is a fair probability of finding
contraband or evidence at a particular location.” United States v. Brundidge, 170
F.3d 1350, 1352 (11th Cir. 1999). We give “[g]reat deference” to a district court
judge’s determination of probable cause. Id. (quotation omitted). Citing to
17
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), we have
explained that:
Probable cause is a fluid concept—turning on the assessment of
probabilities in particular factual contexts. To avoid rigid legal rules,
Gates changed the two-pronged test of Aguilar v. Texas, 378 108,
114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964), into a totality of the
circumstances test. Under the Gates totality of the circumstances test,
the veracity and basis[-]of[-]knowledge prongs of Aguilar, for
assessing the usefulness of an informant’s tips, are not independent.
They are better understood as relevant considerations in the totality of
the circumstances analysis that traditionally has guided probable
cause determinations: a deficiency in one may be compensated for by
a strong showing as to the other.
Brundidge, 170 F.3d at 1352-53 (internal quotations and marks omitted).
In Brundidge, the defendant argued that the search warrant at issue was not
supported by probable cause because the affidavit for the warrant failed to reflect
independent police corroboration of the CI’s story. Id. at 1353. In rejecting this
argument, we discussed that independent police corroboration is not required in
every case; the government had established the CI’s veracity; and the CI’s basis of
knowledge was good, as evidenced by his detailed description of the sale of drugs.
Id. We also explained that (1) the CI’s basis of knowledge made up for any
weaknesses in his veracity; and (2) the level of detail in the CI’s story meant that
the CI was unlikely to lie because, “if the warrant issued, lies would likely be
18
discovered in short order.” Id. at 1353-54 (quoting United States v. Foree, 43 F.3d
1572, 1576 (11th Cir. 1995)).
Here, Agent Carter merely provided in the affidavit supporting the search
warrant at issue that the CI had provided Agent Carter “with accurate and reliable
information in the recent past.” Because Agent Carter failed to provide more
details about the CI’s prior cooperation, Agent Carter’s allegation that the CI was
reliable was “entitled to only slight weight.” See Foree, 43 F.3d at 1575-76
(reasoning that, although an averment that the CI had provided reliable
information in the past was preferable to a “bald assertion” that the CI was a
“reliable information,” it still “le[ft] the nature of that [past] performance
undisclosed, so that the judicial officer making the probable cause determination
ha[d] no basis for judging whether the [affiant’s] characterization of [the CI’s past]
performances [was] justified”). Moreover, other than searching the CI before and
after the controlled buy, watching him enter and exit the residence in question, and
field testing the substance the CI received during the buy, the affiant did not
independently verify the CI’s testimony before seeking the warrant.
Nevertheless, the CI told the affiant that he had completed numerous
purchases of crack cocaine from the defendant at the particular address listed in
the warrant. Moreover, following the controlled buy, the CI told the affiant that
19
(1) Booker met him at the doorway of the residence, (2) the CI purchase $50 worth
of cocaine base from Booker, (3) Booker retrieved the alleged cocaine based from
his person, (4) this substance was in a “brown glass pill type bottle with a white
cap,” and (5) this bottle was full of what appeared to be cocaine base. The CI also
described the residence as being a beige-colored single-wide mobile home in the
line of other residences, that there were several pit-bull type dogs tied outside the
residence, and that it was in a parallel position at the end of the lane. Thus, similar
to the facts in Brundidge, the veracity of the CI’s testimony was established by his
detailed account of the undercover buy, and this level of veracity compensated for
the CI’s lack of “basis of knowledge.” See Brundidge, 170 F.3d at 1353-54. The
district court, therefore, did not err, after examining the totality of the
circumstances, in concluding that the warrant was supported by probable cause
and in denying Booker’s suppression motion. See Heard, 367 F.3d at 1278; see
also Brundidge, 170 F.3d at 1352-53.4
4
To the extent Booker also has preserved his argument that the court erred in not
conducting an evidentiary hearing before denying his suppression motion, we review a district
court’s denial of a request for an evidentiary hearing for abuse of discretion. See United States v.
Cooper, 203 F.3d 1279, 1285 (11th Cir. 2000). A search warrant may be voided if the affidavit
supporting the warrant contains deliberate falsity or reckless disregard for the truth, including
material omissions. See Dahl v. Holley, 312 F.3d 1228, 1235 (11th Cir. 2002) (citing Franks v.
Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978)). Nevertheless,
“[w]here a defendant in a motion to suppress fails to allege facts that if proved would require the
grant of relief, the law does not require that the district court hold a hearing independent of the
trial to receive evidence on any issue necessary to the determination of the motion.” See Cooper,
20
Issue 3: Sufficiency of the evidence
Booker argues that the trial evidence was insufficient to support his
§ 922(g)(1) conviction because the jury could not have inferred reasonably that he
knowingly possessed the firearms at issue. Booker specifically contends that the
government failed to present direct evidence linking him with the firearms. He
also contends that evidence supporting his argument that the firearms, instead,
were possessed by Carlos Booker included that (1) Lois Booker, who was staying
at his residence, did not see the firearms; and (2) his neighbor saw Carlos alone at
the residence the day before and on the same day that the firearms were recovered.
“Whether there was sufficient evidence to support a conviction is a question
of law subject to de novo review.” United States v. Alaboud, 347 F.3d 1293, 1296
(11th Cir. 2003). “In assessing the sufficiency of the evidence, we view the
evidence in the light most favorable to the government with all reasonable
inferences and credibility choices made in the prosecution’s favor.” Id. “A jury’s
verdict must be sustained against such a challenge if ‘any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
203 F.3d at 1285 (upholding court’s denial of suppression hearing because defendant only
“promise[d]” to prove at the hearing something he did not allege in his suppression motion).
Because Booker, like the defendant in Cooper, failed to allege facts supporting his conclusory
argument that the affiant omitted facts relevant to the determination of probable cause, or that, if
taken as true, would have required grant of relief, the district court also did not abuse its
discretion in denying Booker a suppression hearing.
21
Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61
L.Ed.2d 560 (1979)). Furthermore, we have concluded that [c]redibility
determinations are typically the province of the fact finder because the fact finder
personally observes the testimony and is thus in a better position than a reviewing
court to assess the credibility of witnesses.” United States v. Ramirez-Chilel, 289
F.3d 744, 749 (11th Cir. 2002). Where testimonies are in direct conflict, a fact
finder’s choice of whom to believe “is conclusive on the appellate court unless the
[fact finder] credits exceedingly improbable testimony.” Id. (emphasis in original)
(citation and other internal markings omitted).
Under § 922(g)(1), it is unlawful for a felon to possess a firearm. See 18
U.S.C. § 922(g)(1). To prove a § 922(g)(1) violation, the government must show
beyond a reasonable doubt “(1) that [the defendant] was a convicted felon; (2) that
[the defendant] knew he was in possession of a firearm; and (3) that the firearm
affected or was in interstate commerce.” United States v. Wright, 392 F.3d 1269,
1273 (11th Cir. 2004), cert. denied, No. 04-9034 (U.S. April 4, 2005). Under this
second element—the only one contested by Booker—the government need not
prove actual possession. See id. Instead, the government may show knowledge
through constructive possession. Id.; see also United States v. Winchester, 916
F.2d 601, 603-04 (11th Cir. 1990) (holding firearm found behind couch when
22
defendant not home sufficient for § 922(g)(1) conviction). To establish
constructive possession, “the government must produce evidence showing
ownership, dominion, or control over the contraband itself . . . or the [location] in
which contraband is concealed.” Wright, 392 F.3d at 1273 (quotation omitted).
In United States v. Pedro, 999 F.2d 497 (11th Cir. 1993)—the case Booker
cites in support of his insufficiency argument—we examined a § 922(g)(1)
conviction following evidence at trial that a police officer responding to a crime-
in-progress call of a burglary of an apartment observed the defendant exit that
apartment behind another man who was carrying a hard-covered suitcase. Id. at
498. When the officer opened this suitcase, he recovered several items that had
been stolen from the apartment, along with two knives and a firearm. Id. at 499.
Explaining that a defendant’s “mere presence in the area of an object or awareness
of its location is not sufficient to establish possession,” and that the government
had offered no evidence linking the defendant to the firearm, we concluded that
the government had failed to prove beyond a reasonable doubt that the defendant
had both the intent and power to exercise control over the firearm. Id. at 500-02.
On the other hand, in the instant case, by presenting testimony from Agent
Carter that he recovered from the residence in question a box containing papers
and letters addressed to or from Booker, Booker’s GED diploma, and a utility bill
23
with the address of the residence in Booker’s name, the government showed that
Booker was renting and living in the residence in which they seized the firearms in
question. Evidence at trial included testimony from Agent Carter that he
recovered from Booker’s vehicle a lease agreement for the residence, and
testimony from Rivers that Booker was renting this residence at the time of his
arrest and was the only person living there. Agent Carter also testified that he saw
the firearms in the closet in the master bedroom during his initial safety sweep of
the trailer. In addition, the jury heard testimony that Booker initially denied living
at the residence, despite that he had keys and a rent receipt in his pocket.
Therefore, unlike the facts in Pedro, the government established evidence linking
Booker to the firearms and more than “mere presence” in the vicinity of them. Cf.
Pedro, 999 F.2d at 500-052.
In addition, although Booker introduced testimony from Lois Booker that
she was a guest in the residence at the time of his arrest and did not see the
firearms, and testimony from Rivers that she saw Carlos Booker at the trailer prior
to the arrest, and that she had never seen Perry Booker with firearms, we do not
reweigh the jury’s credibility determinations. See Ramirez-Chilel, 289 F.3d at
749. Moreover, although Booker argues that the evidence shows that Carlos
Booker placed the firearms in closet of the master bedroom, “it is not necessary
24
that the evidence exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt.” See United States v.
Vazquez, 53 F.3d 1216, 1224 (11th Cir. 1995) (quotation omitted). Because,
viewing the evidence in the light most favorable to the government, a rational trier
of fact “could have found the essential elements of [Booker’s § 922(g)(1) offense]
beyond a reasonable doubt,” his conviction was supported by sufficient evidence.
See Alaboud, 347 F.3d at 1296. We affirm Booker’s § 922(g)(1) conviction.
Issue 4: Sentencing
Finally, Booker argues that the court committed a Blakely violation when it
enhanced his sentence under § 2K2.1(b)(5), based on judicial findings of fact
made at sentencing. In a brief he prepared prior to the Supreme Court’s decision
in Booker, he contends that the Supreme Court’s holding in Blakely also should
preclude federal courts from applying the federal guidelines.
Because Booker timely raised a Blakely objection in the district court, we
review his Blakely/Booker claim on appeal de novo, but reverses only for harmful
error. See United States v. Paz, No. 04-14829, manuscript op. at 4 (11th Cir. April
5, 2005) (citation omitted). “To find harmless error, we must determine that the
error did not affect the substantial rights of the parties.” Paz, No. 04-14829,
manuscript op. at 5 (quotation omitted). We further explained in Paz as follows:
25
A constitutional error, such as a Booker error, must be disregarded as
not affecting substantial rights, if the error is harmless beyond a
reasonable doubt. This standard is only met where it is clear beyond
a reasonable doubt that the error complained of did not contribute to
the sentence obtained. The burden is on the government to show that
the error did not affect the defendant’s substantial rights.
Id. (internal quotations and marks omitted).
In Apprendi, the Supreme Court 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.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. After the continuation
of Booker’s sentencing hearing, the Supreme Court revisited that rule in Blakely,
in the context of Washington state’s sentencing guideline scheme, and clarified
that “the ‘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. . . . In other words, the relevant ‘statutory maximum’ is
not the maximum sentence a judge may impose after finding additional facts, but
the maximum he may impose without any additional findings.” Blakely, 542 U.S.
at ___, 124 S.Ct.at 2537 (emphasis in original). Applying these principles, the
Court held that Blakely’s sentence—which was enhanced under the state
guidelines based on the sentencing court’s additional finding by a preponderance
26
of the evidence that Blakely committed his kidnaping offense with deliberate
cruelty—violated the Sixth Amendment. Id. at ___, 124 S.Ct. at 2534-38.
While the instant case was pending on appeal, the Supreme Court issued its
decision in Booker, finding “no distinction of constitutional significance between
the Federal Sentencing Guidelines and the Washington procedures at issue” in
Blakely. Booker, 543 U.S. at ___, 125 S.Ct. at 749. Resolving the constitutional
question left open in Blakely, the Supreme Court held that the mandatory nature of
the federal guidelines rendered them incompatible with the Sixth Amendment’s
guarantee to the right to a jury trial. Id. at ___,125 S.Ct. at 749-51. In extending
its holding in Blakely to the Guidelines, the Court explicitly reaffirmed its
rationale in Apprendi that “[a]ny 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.” Id. at ___, 125 S.Ct. at 756.
In a second and separate majority opinion, the Court in Booker concluded
that, to best preserve Congress’s intent in enacting the Sentencing Reform Act of
1984, the appropriate remedy was to “excise” two specific sections—18 U.S.C.
§ 3553(b)(1) (requiring a sentence within the guideline range, absent a departure)
and 18 U.S.C. § 3742(e) (establishing standards of review on appeal, including de
27
novo review of departures from the applicable guideline range)—thereby
effectively rendering the Sentencing Guidelines advisory only. Id. at ___, 125
S.Ct. at 764. Thus, the guidelines range is now advisory; it no longer dictates the
final sentencing result but instead is an important sentencing factor that the
sentencing court is to consider, along with the factors contained in 18 U.S.C.
§ 3553(a).5 Id. at ___, 125 S.Ct. at 764-65).
Following the Supreme Court’s decision in Booker, on remand, we re-
examined in United States v. Reese, 397 F.3d 1337 (11th Cir. 2005), a defendant’s
sentence that had been enhanced, over objection, because the defendant possessed
a firearm in connection with another felony. Id. at 1337. Concluding that the
defendant’s sentence was in violation of the Sixth Amendment, we vacated and
remanded his case and ordered resentencing consistent with the Supreme Court’s
opinions in Booker. Id. at 1338.
5
These other relevant factors in § 3553(a) include: “(1) the nature and circumstances of
the offense and the history and characteristics of the defendant; (2) the need for the sentence
imposed–(A) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and (D) to provide the defendant
with needed educational or vocational training, medical care, or other correctional treatment in
the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the
sentencing range established for . . . (A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines . . .; (5) any pertinent policy
statement []; (6) the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct; and (7) the need to provide
restitution to any victims of the offense.” See 18 U.S.C. § 3553(a)(1)-(7).
28
In Paz, we similarly examined a Blakely/Booker challenge to a six-level
enhancement based on the district court’s factual finding, which was not admitted
by the defendant, that the amount of loss from the defendant’s offense of
conviction was between $30,000 and $70,000, pursuant to U.S.S.G.
§ 2B1.1(b)(1)(D). Paz, No. 04-14829, manuscript op. at 2. We determined that,
because the defendant’s sentence was enhanced, under a mandatory guidelines
system, based on facts found by the judge and not admitted by the defendant, the
defendant’s Sixth Amendment right to a jury trial was violated. Id. at 5.
Moreover, we concluded that the government could not show that this error was
harmless beyond a reasonable doubt because it was evident from the sentencing
transcript that, had the court used the guidelines in an advisory fashion, Paz’s
sentence would have been shorter. Id. at 6.6 We concluded, as such, that the
constitutional error affected the defendant’s substantial rights, and it remanded for
resentencing consistent with Booker. Id.
Booker’s PSI recommended a four-level increase, pursuant to
§ 2K2.1(b)(5), because Booker used or possessed firearms in connection with
another felony offense, that is, possession with intent to distribute cocaine. See
6
During the defendant’s sentencing hearing in Paz, the district court explicitly stated
that, if the guidelines were found unconstitutional, if would have sentenced the defendant to a
shorter term of imprisonment. See Paz, No. 04-14829, manuscript op. at 4.
29
U.S.S.G. § 2K2.1(b)(5) (providing for a four-level increase in offense level if the
defendant used or possessed any firearm or ammunition “in connection with”
another felony offense). Booker never conceded, and the jury did not find beyond
a reasonable doubt, that he committed this drug offense. Thus, in calculating
Booker’s sentence under a mandatory guideline system, the court relied on facts
not admitted by him or found by a jury beyond a reasonable doubt and, thus,
violated the Sixth Amendment. See Booker, 543 U.S. at ___, 125 S.Ct. at 756; see
also Paz, No. 04-14829, manuscript op. at 5.7
Furthermore, as the government concedes, it cannot show that this
Blakely/Booker error did not affect Booker’s substantial rights and, thus, was
harmless. Unlike the facts in Paz, the district court did not state that it would have
imposed a lighter sentence but for the mandatory nature of the federal guidelines.
However, as discussed above, the government only can show that error was
harmless if “it is clear beyond a reasonable doubt that the error complained of did
not contribute to the sentence obtained.” See Paz, No. 04-14829, manuscript op.
at 5. In this case, the government has not made such a showing. Thus, similar to
7
The district court also enhanced Booker’s offense level by two levels, pursuant to
§ 2K2.1(b)(1)(A), because the offense involved between three and seven firearms. No
Blakely/Booker error resulted from this enhancement, however, because Booker’s indictment
specifically charged him with possessing three firearms.
30
the facts in Reese and Paz, we conclude that Blakely/Booker error occurred here,
and that it was not harmless. See Reese, 397 F.3d at 1338; see also Paz, No. 04-
14829, manuscript op. at 6.
Accordingly, we conclude that the district court did not commit reversible
error in denying Booker’s motions for the government to reveal the identity of the
CI and to suppress evidence seized as the result of a search of Booker’s residence.
Furthermore, we conclude that the evidence at trial was sufficient to support
Booker’s § 922(g)(1) conviction for possessing a firearm as a convicted felon.
We, therefore, affirm Booker’s conviction. However, because the district court
treated the federal guidelines as mandatory in sentencing Booker, and because the
government has not shown that this error was harmless, we vacate and remand
Booker’s sentence for resentencing consistent with Booker.
AFFIRMED IN PART; VACATED AND REMANDED FOR
RESENTENCING.
31
United States v. Perry Lamar Booker
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2005-05-12
Citations: 131 F. App'x 234
Copy CitationsCombined Opinion