[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-12600 APRIL 19, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00039-CR-1-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO BENITEZ-MACEDO,
Defendant-Appellant.
_______________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 19, 2005)
Before BIRCH, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Pedro Benitez-Macedo appeals his 33-month sentence, imposed pursuant to
his guilty plea, for being an illegal alien in possession of firearms, in violation of
18 U.S.C. § 922(g)(5). On appeal, Benitez-Macedo argues that the district court
erred by (1) denying his motion to suppress evidence seized during a warrantless
search of his car, and (2) enhancing his offense level by four, pursuant to U.S.S.G.
§ 2K2.1(b)(5), for possessing a firearm during the commission of another felony
offense.1
1
Benitez-Macedo also argues, for the first time on appeal, that the § 2K2.1(b)(5)
enhancement violated Blakely v. Washington, 542 U.S. --, 124 S. Ct. 2531, 159 L. Ed. 2d 403
(2004). After the filing of the briefs in this case, the Supreme Court extended Blakely to the Federal
Sentencing Guidelines. See United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005). Because
he did not raise this issue in the district court, he must show plain error to warrant reversal on this
basis. We will correct plain error only where (1) there is an error; (2) the error is plain or obvious;
(3) the error affects the defendant’s substantial rights in that it was prejudicial and not harmless; and
(4) the error seriously affects the fairness, integrity, or public reputation of a judicial proceeding.
See United States v. Rodriguez, __ F.3d __, 2005 WL 272952, at *6 (11th Cir. Feb. 4, 2005); see
also Booker, 125 S.Ct. at 769 (stating that the plain error rule applies and will prevent a new
sentencing hearing from being necessary in every case on direct appeal involving a pre-Booker
sentence).
We have made clear that a defendant who fails to show that there is a reasonable probability
of a different sentence if the Guidelines had been applied in an advisory fashion cannot satisfy the
third prong of plain-error review. See United States v. Rodriguez, __ F.3d __, 2005 WL 272952, at
*9 (11th Cir. Feb. 4, 2005); see also United States v. Duncan, 2005 WL 428414, at *1 (11th Cir.
Feb. 24, 2005) (applying Rodriguez and finding that defendant did not meet his burden of showing
Booker affected his substantial rights). To establish that the error affected his substantial rights,
Benitez-Macedo’s burden is to show that the error “‘must have affected the outcome of the district
court proceedings.’” Rodriguez, 2005 WL 272952, at *7 (quoting United States v. Cotton, 535 U.S.
625, 632, 122 S.Ct. 1781, 1786, 152 L.Ed.2d 860 (2002) (citation omitted)). “The standard for
showing that [an effect on the outcome] is the familiar reasonable probability of a different result
formulation, which means a probability “‘sufficient to undermine confidence in the outcome.’”
Rodriguez, 2005 WL 272952, at *7 (quoting United States v. Dominguez Benitez, --- U.S. ----, 124
S. Ct. 2333, 2340, 159 L. Ed. 2d 157 (2004)).
Like in Rodriguez, Benitez-Macedo’s Blakely (now Booker) claim consists solely of arguing
that based on the Blakely decision alone, he is entitled to a new sentencing hearing. Simply put, the
fact of the Blakely and intervening Booker decisions is insufficient to satisfy plain error, as even the
Supreme Court recognized in Booker when it observed that not every appeal will lead to a new
sentencing hearing. See 125 S.Ct. at 769 (“That fact [the retroactive application of the decision to
cases on direct review] does not mean that we believe that every sentence gives rise to a Sixth
Amendment violation. Nor do we believe that every appeal will lead to a new sentencing hearing.”).
We find no plain error based on Blakely or Booker in this case.
2
We review a district court’s denial of a motion to suppress under a mixed
standard of review, reviewing the court’s findings of fact for clear error and its
application of law to the facts de novo. See United States v. Gil, 204 F.3d 1347,
1350 (11th Cir. 2000). We review purely legal questions concerning use of the
Sentencing Guidelines de novo, United States v. Williams, 340 F.3d 1231, 1234 n.
8 (11th Cir. 2003), and a sentencing court’s factual findings for clear error, see
United States v. Jackson, 276 F.3d 1231, 1233 (11th Cir. 2001). After the
Supreme Court’s recent decision in United States v. Booker, __ U.S. __, 125 S.Ct.
738 (2005), we review a district court’s sentencing scheme for reasonableness.
Upon thorough review of the record, as well as careful consideration of the
parties’ briefs, we find no reversible error and affirm.
The relevant facts are straightforward. On August 19, 2003, Benitez-
Macedo and co-defendant Silvano Garcia-Rebollar were indicted with one count of
being illegal aliens in the United States, aided and abetted by one another, who
knowingly possessed two firearms, Smith & Wesson (models 639 and 3904) nine-
millimeter semi-automatic handguns, in violation of 18 U.S.C. § 922(g)(5). After
pleading not guilty, Benitez-Macedo filed a motion to suppress evidence seized
during a traffic stop of his car, arguing that officers did not have reasonable
3
suspicion to perform a Terry2 stop because the officers relied solely on an
anonymous tip.
The government responded that: (1) the stop of Benitez-Macedo’s vehicle
was permissible under Terry because the officers had reasonable suspicion, based
on a radio dispatch about a shooting at a nearby apartment building, which
included a description of Benitez-Macedo’s truck, including its license plate
number, and because the driver was alcohol-impaired; and, alternatively, (2) the
stop was permissible based on probable cause because Benitez-Macedo had
violated a Georgia traffic law.
The magistrate judge conducted an evidentiary hearing on the motion to
suppress. Sergeant John Robertson of the Gainesville Police Department (“GPD”)
testified that at around 2:00 a.m. on April 4, 2003, while on routine patrol and
accompanied by a police trainee, he heard, over the police radio, a report that shots
had been fired into a nearby occupied apartment. The report contained a general
description of one of the persons inside the vehicle and a description of the vehicle
-- a 1995 Chevrolet Silverado pickup with an extended cab that was burgundy or
dark in color and had a Georgia license plate number 4592AHK.
On the police radio, Officer Brad Baker called in and indicated that he could
2
See Terry v, Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
4
see a vehicle that met the description in a location less than a mile away from the
apartment where the shooting occurred. At that point, Sergeant Robertson told
Baker to “stand by” because he (Robertson) was about one minute away. Sergeant
Robertson then proceeded to pull up behind Benitez-Macedo’s vehicle, which was
“halfway across the stop bar sitting at a red light,” and confirmed the license plate
number with dispatch. Officer Baker indicated over the radio that the vehicle had
been sitting at the traffic light while the lights had cycled from green to red twice.
Sergeant Robertson testified that just after he had confirmed a match of the
vehicle, the vehicle began to pull away and he decided to conduct a “felony traffic
stop based on the call that had been given out.” Sergeant Robertson explained that
he performed this type of stop -- which consists of safety measures where the
officer does not just pull the vehicle over and walk up to the window of the
stopped car -- based on officer safety concerns prompted by the radio-call
information that the occupants of the car were armed. Sergeant Robertson turned
on his police blue light and Benitez-Macedo pulled over within approximately an
eighth of a mile. Thereafter, Sergeant Robertson and Officer Baker pulled up to
the stopped vehicle, at which point flood lights and take-down lights were
activated to illuminate the inside of the truck. The three officers (Robertson,
Baker, and the trainee officer) exited their vehicles, drew their guns, and called out
5
toward the truck: “driver, stop the car, place it in park, drop the keys out the
window, keep your hands up where we can see them.”
The occupants did not respond to the police command for approximately a
minute and a half, during which time the brake lights remained illuminated,
indicating to Sergeant Robertson that the driver’s foot was resting on the brake
pedal. The officers repeated the command in Spanish, and Sergeant Robertson
noticed that both the driver’s and passenger’s attention was drawn to the center
console of the vehicle, and their hands were not visible to the officers. As
Robertson described it at the suppression hearing, “[t]here was a lot of movement
as well as non-compliance with keeping their hands where we could see them.” At
that point, Robertson had “safety concerns as to what they may be doing in the
vehicle.”
After about a minute and a half, the defendants complied with the command
and both were removed from the vehicle, patted down, handcuffed, and placed in
separate police cars. After removing the defendants, Sergeant Robertson returned
to the stopped vehicle to “make sure there was no other occupants hidden inside
the vehicle,” and approached from the passenger side to “clear the vehicle.” Upon
approaching the vehicle, Robertson noticed a spent shell casing for a nine-
millimeter firearm lying on the ground outside the passenger-side door, which had
6
remained open after Garcia-Rebollar got out. Through the open door, Sergeant
Robertson observed several other casings on the passenger-side floor of the
vehicle.
After observing the shells, the officers “began a quick frisk search of the
vehicle” and Sergeant Robertson looked into the center console where the
occupants had earlier been focused and found two nine-millimeter firearms. One
firearm was slide-locked to the rear, indicating that it had been fired until empty,
and the other firearm was loaded to capacity with the hammer cocked. There also
was a half-empty box of shells inside the console along with one white glove.
The magistrate judge issued a Report and Recommendation (“R&R”) in
which she recommended denying the motion to suppress because either the officers
had a reasonable and articulable basis to make an investigatory Terry stop of the
pick-up truck based on the call reporting shots fired at the nearby apartment
building, or, irrespective of the existence of Terry reasonable suspicion, the
officers had probable cause to stop the vehicle for violations of two Georgia
statutes: O.C.G.A. §§ 40-6-20 (requiring drivers to obey the instructions of a traffic
control device) and 40-6-21 (requiring drivers to stop at a stop line when facing a
circular red signal). Additionally, the magistrate judge found that the search of the
vehicle was reasonable for the protection of the officers’ personal safety and under
7
the well-settled automobile exception to the warrant requirement.
Benitez filed objections to the R&R, arguing, inter alia, that (1) O.C.G.A.
§ 40-6-21(a)(3)(A) could not form the basis for probable cause because the officer
admitted he did not rely on a violation of that statute to make the stop;
(2) O.C.G.A. § 40-6-21(a)(3)(A) did not apply to a conventional traffic light that
has the capability to display either a red, yellow, or green signal; (3) the
government did not prove that O.C.G.A. § 40-6-20(a) applied because it did not
prove that there was “an official traffic-control device” at the intersection of the
stop; and (4) the amount of information the officers had before them at the time of
the traffic stop was an insufficient basis upon which to perform a Terry stop.
The district overruled Benitez-Macedo’s objections. The district court found
that the officers has probable cause to stop the vehicle based on Benitez-Macedo’s
violation of O.C.G.A. § 40-6-21(a)(3)(A), which required Benitez-Macedo to stop
“at a clearly marked stop line.” The district court observed that Benitez-Macedo
violated this law by stopping “over the line,” and thus the officer had probable
cause to initiate the traffic stop. Based on this conclusion, the court found it
“unnecessary to decide if th[e] seizure was also valid based on reasonable
suspicion developed from the 911 information.” Benitez-Macedo then entered a
conditional guilty plea, reserving the right to appeal the district court’s denial of
8
his motion to suppress.
At sentencing, the Presentence Investigation Report (“PSI”) assigned a base
offense level of 14, pursuant to U.S.S.G. § 2K2.1, and recommended the following
adjustments: a 2-level enhancement based on the fact that one of the firearms had
the serial number removed, U.S.S.G. § 2K2.1(b)(4); a 4-level enhancement for
Benitez-Macedo’s possession of a firearm in connection with another felony
offense (the aggravated assault resulting from the shots being fired into the
apartment), U.S.S.G. § 2K2.1(b)(5); and a 3-level reduction for acceptance of
responsibility, U.S.S.G. §§ 3E1.1(a) and (b). Based on an adjusted offense level of
17 and a criminal history category of II, the sentencing guideline range was 27 to
33 months. Benitez-Macedo objected to the PSI, arguing, in relevant part, that he
should not have received the § 2K2.1(b)(5) enhancement because it was not he but
his co-defendant who shot the firearm and because shooting into an apartment is
not a felony under Georgia law.
In response to Benitez-Macedo’s objections, at the sentencing hearing, the
government argued that the shooting into the apartment was both a joint action on
Benitez-Macedo’s and his co-defendant’s parts and a felony offense in Georgia,
namely criminal damage to property in the first degree (in a manner so as to
endanger human life). In support of its contention that the shooting was a joint
9
action for sentencing purposes, the government presented the testimony of FBI
Special Agent John Houston who had interviewed Garcia-Rebollar after the
shooting. Garcia-Rebollar stated that he and Benitez-Macedo “drank some beers
that night and wanted to look for an individual that owed them money, and they
intended on scaring the individual.” Both men were armed with guns when they
proceeded, at 2:00 a.m., traveling in Benitez-Macedo’s truck, to look for the person
who owed them both money.
A second government witness, GPD Detective Jay Parrish, had responded to
the scene of the shooting and found eight shell casings on the ground outside of the
sliding glass door of the apartment, which had been shattered. He testified that all
eight bullets had gone through the sliding glass door into the targeted apartment.
Three of the bullets had continued through the targeted apartment and into the
apartment immediately behind it. The apartment behind the targeted apartment
was inhabited by two women. One bullet had gone through both apartments and
come out on the other side of the building. Three rounds had gone into the ceiling
of the targeted apartment while another had come into the apartment at waist or
chest level. When Detective Parrish arrived, he found several people present in the
targeted apartment, including a mother and her children who had been asleep in the
apartment.
10
The district court found that the two defendants were on a “joint mission”
and several of the bullet holes appeared to be approximately waist-high and fired at
2:00 a.m., a time when most people are home. The district court overruled the
objection to the § 2K2.1(b)(5) enhancement and sentenced Benitez to a 33-month
term of imprisonment, followed by a 3-year term of supervised release. This
appeal followed.
First, Benitez-Macedo argues the district court erred by finding that there
was probable cause to arrest him when he was stopped in a vehicle on top of a line
when O.C.G.A. § 40-6-21(a)(3)(A) requires only that vehicles stop “at” the line.
Because we conclude that the officers were justified in stopping Benitez-Macedo’s
car based on the lesser standard of reasonable suspicion.3 Cf. United States v.
Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989) (noting that
reasonable suspicion is “considerably less than proof of wrongdoing by a
preponderance of the evidence” and less than probable cause, which is “‘a fair
probability that contraband or evidence of a crime will be found.’”(citation
omitted)).
The 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
3
It is well-settled that we can affirm the district court’s decision on “any ground that finds
support in the record.” United States v. Mejia, 82 F.3d 1032, 1035 (11th Cir. 1996).
11
lacking. United States v. Williams, 876 F.2d 1521, 1523 (11th Cir. 1989). To
justify pulling a vehicle over for a Terry stop, the police officer must “be able to
point to specific and 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. “The ‘reasonable suspicion’ must be more than an ‘inchoate and
unparticularized suspicion or hunch.’” Id. Rather, the Fourth Amendment requires
that the police officer articulate facts that provide some minimal, objective
justification for the stop. Williams, 876 F.2d at 1524. In reviewing the totality of
the circumstances facing an officer at the time of the stop, we give due weight to
the officer’s experience. United States v. Briggman, 931 F.2d 705, 709 (11th Cir.
1991).
After an evidentiary hearing, the magistrate judge found the officers had a
sufficiently reasonable and articulable suspicion to conduct a Terry stop. We too
are satisfied that the information known to the police -- the fact that the vehicle
matched the description given in the call, including the make, model, and license
number; the vehicle was spotted at 2:00 a.m. less than a mile from the scene where
the shots were fired and within minutes of the “shots fired” report; and the vehicle
remained stopped at the intersection, across the stop bar, while the traffic lights
cycled twice from green to red -- was sufficiently “specific and articulable” to
12
justify the stop. See Terry, 392 U.S. at 21, 88 S.Ct. at 1880. The underlying
information contained more than a “bare-boned tip[] about guns,” as Benitez-
Macedo suggests. Cf. Florida v. J.L., 529 U.S. 266, 273, 120 S. Ct. 1375, 1380,
146 L. Ed. 2d 254 (2000) (holding anonymous tip that described only subject’s
“readily observable location and appearance . . . does not show that the tipster has
knowledge of concealed criminal activity.”). Simply put, the information the
officers had was more than an “inchoate and unparticularized suspicion or hunch.”
Cf. United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1
(1989). Based on the experience of the officers and the “totality of the
circumstances,” the officers had the requisite “particularized and objective basis”
for suspecting legal wrongdoing and making a Terry stop. Accordingly, we affirm
the denial of the motion to suppress.4
We likewise are unpersuaded by Benitez-Macedo’s sentencing challenge.
Section 2K2.1(b)(5) states that a defendant’s offense level should be increased by
four levels if, inter alia, “the defendant used or possessed any firearm . . . in
connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5). “[A]nother
felony offense” includes any state offense that is “punishable by imprisonment for
4
Benitez does not contest the magistrate judge’s findings regarding the subsequent search
other than to argue that it was invalid because the stop was not supported by probable cause or
reasonable suspicion.
13
a term exceeding one year, whether or not a criminal charge was brought.”
U.S.S.G. § 2K2.1, comment. (n.7). Although § 2K2.1(b)(5) does not define the
phrase “in connection with,” we read this phrase expansively. United States v.
Rhind, 289 F.3d 690, 695 (11th Cir. 2002).
Under Georgia law, a person commits the offense of criminal damage to
property in the first degree when he “knowingly and without authority interferes
with any property in a manner so as to endanger human life.” O.G.C.A.
§ 16-7-22(a). This is a felony offense because a “person convicted of the offense
of criminal damage to property in the first degree shall be punished by
imprisonment for not less than one nor more than ten years.” Id. § 16-7-22(b).5
On this record, it is clear that under Georgia law, shooting into an occupied
apartment at 2:00 a.m., including firing some shots at waist-level, is a felony
within the meaning of § 16-7-22(a). 6 Accordingly, the district court did not err by
5
The Georgia Supreme Court has interpreted the phrase “so as to endanger human life,” and
upheld a conviction under this section where the evidence established that a defendant:
. . . fired a gun at night into an inhabited dwelling where residents were likely to
be present, thus recklessly endangering the life of another. The fact that the
occupants of the house were not physically present does not lessen the risk of
danger to others or the recklessness of his behavior.
Carthern v. State, 529 S.E.2d 617, 620 (Ga. 2000).
6
To the extent Benitez-Macedo suggests the district court’s factual finding that he was
involved in a “joint enterprise” with Garcia-Rebollar was clear error, in light of the government’s
unrebutted evidence at sentencing, we are unpersuaded.
14
enhancing the base offense level four additional levels for possession of weapons
in connection with another felony offense, pursuant to U.S.S.G. § 2K2.1.
AFFIRMED.
15