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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10405
Non-Argument Calendar
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D.C. Docket No. 1:18-cr-00150-WKW-SMD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT WILLIAMS, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(February 4, 2021)
Before JILL PRYOR, LUCK, and BRASHER, Circuit Judges.
PER CURIAM:
Robert Williams, Jr., appeals his conviction and sentence for being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and possessing
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controlled substances in violation of 21 U.S.C. § 844(a). Williams makes two
arguments on appeal. First, he argues that the district court erred in denying his
motion to suppress evidence seized by a police officer during a warrantless search.
Second, Williams argues that the court erred by denying his request for a sentencing
reduction for accepting responsibility. After careful consideration, Williams’s
conviction and sentence are AFFIRMED.
I.
At about 2:15 a.m. one morning, Officer Kaufmann and his trainee conducted
a traffic stop of a motorcycle that had been traveling at 57-miles-per-hour in a 40-
miles-per-hour zone. Williams, who was driving the motorcycle, was wearing an
“Outcast Motorcycle Club” leather jacket. A female passenger, Mack, riding on the
back of the motorcycle, was also wearing an OMC vest. Officer Kaufmann knew
that there was an OMC rally in town that night and was aware of a large fight at an
OMC rally the previous year, in which someone was “severely beaten.” Earlier that
night, Officer Kaufmann and his trainee had responded to a call for backup related
to an OMC traffic stop. There, another officer had stopped a man wearing an OMC
jacket who was also riding a motorcycle with a female passenger. A large group of
OMC motorcycle riders had gathered around the traffic stop, and the officer found
three pistols on the driver’s person.
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With this in mind, Officer Kaufmann approached Williams. As he
approached, he saw Williams furtively pass Mack a cigarette pack, which she hid
between her legs. He asked Williams why he had handed the cigarette pack to Mack,
and Williams asked why he needed to know. Officer Kaufmann then asked Mack
for the cigarette pack. She was “frozen” and did not respond until Williams told her
to give the cigarette pack to Officer Kaufmann. Mack then gave Officer Kaufmann
the pack. A “quick flip of the lid” allowed Officer Kaufmann to the see the contents
of the pack—cocaine and oxycodone pills.
Officer Kaufmann then patted down Williams and found a pistol on his right
hip. He testified that he patted down Williams for two reasons: first, because his
jacket identified him as a member of the motorcycle gang, and second, because he
had just passed a container to Mack that contained narcotics. After Officer
Kaufmann found the gun, he placed Williams under arrest and charged him on the
scene for possession of a controlled substance and carrying a firearm without a valid
permit. Officer Kaufmann searched the motorcycle in relation to the arrest and found
another weapon.
The government indicted Williams on one count of being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1) and two counts of possessing
controlled substances in violation of 21 U.S.C. § 844(a). Williams filed a motion to
suppress the evidence seized during Officer Kaufmann’s search, which he argued
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was unlawful. The magistrate judge held a hearing on Williams’s motion, after
which he recommended that Williams’s motion be denied. The recommendation was
based upon three findings that are relevant here: first, that the search of the cigarette
pack was consensual; second, if the search was not consensual, the officer still had
reasonable suspicion to conduct a Terry protective search of the cigarette pack; and
third, the officers would have inevitably discovered the drugs in the cigarette pack
by patting down Williams to protect their personal safety, at which point they would
have found the pistol, arrested him, and conducted a search of the cigarette pack
incident to his arrest.
Williams objected to the magistrate judge’s findings that he consented to the
search of the cigarette pack; that the officers had particularized reasonable suspicion
to search either the cigarette pack or Williams’s person for weapons; and,
consequently, that discovery of the drugs was inevitable. The district court overruled
the objections, adopted the magistrate judge’s recommendations, and denied
Williams’s motion to suppress.
After a trial, Williams was convicted by a jury of all counts. A probation
officer calculated Williams’s offense level without a reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1. His total offense level of 15 and criminal
history category of II resulted in a guideline imprisonment range of 21 to 27 months.
Williams objected in writing to the denial of a two-level reduction in offense level
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for acceptance of responsibility. At his sentencing hearing, Williams again objected
to the denial of a two-level reduction to the offense level for acceptance of
responsibility. The district court overruled his objections and adopted the guideline
calculations set forth in the PSR before sentencing Williams to a prison term of 27
months.
II.
On appeal, Williams makes two arguments. First, Williams argues that the
district court erred in denying his motion to suppress the evidence seized by Officer
Kaufmann during the traffic stop. Second, he argues that the court erred by denying
his request for a sentencing guidelines reduction for acceptance of responsibility.
We address both arguments in turn.
First, Williams argues that the district court’s three reasons for denying his
motion—that he voluntarily consented to the search of the cigarette pack, that
Officer Kaufmann could search the pack pursuant to a Terry protective search, or
that the evidence was admissible under the inevitable discovery doctrine—are
erroneous. The government argues that the totality of the circumstances shows that
Williams consented to the search. Alternatively, the government argues that Officer
Kaufmann was authorized to conduct a protective search of the pack or, at the very
least, of Williams’s person, which would have inevitably led to a justifiable search
of the pack. We agree with the government that, under these circumstances, Officer
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Kaufmann was authorized to conduct a protective search of the pack. Therefore, the
evidence retrieved from the pack was admissible and the district court properly
denied Williams’s motion to suppress.
In reviewing a denial of a motion to suppress, we review the district court’s
findings of fact for clear error and its application of the law de novo. United States
v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999). “[W]hen considering a ruling on a
motion to suppress, all facts are construed in the light most favorable to the
prevailing party below.” United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir.
2000). To be clearly erroneous, the finding of the district court must leave us “with
a definite and firm conviction” that a mistake has been made. United States v.
Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). The district court’s choice between
two permissible interpretations of the evidence will rarely constitute clear error, as
long as the basis of the court’s decision is supported by the record and the court did
not misapply a rule of law. United States v. Monzo, 852 F.3d 1343, 1345 (11th Cir.
2017) (quoting United States v. De Varon, 175 F.3d 930, 945 (11th Cir. 1999) (en
banc)).
The Fourth Amendment to the United States Constitution prohibits
unreasonable searches and seizures. The Supreme Court has held that it is not
unreasonable for police officers to conduct brief, warrantless, investigatory stops
when they have reasonable, articulable suspicion of criminal activity. United States
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v. Hunter, 291 F.3d 1302, 1306 (11th Cir. 2002) (citing Terry v. Ohio, 392 U.S. 1,
30 (1968)). Officers conducting such Terry stops may “take such steps as [are]
reasonably necessary to protect their personal safety.” United States v. Purcell, 236
F. 3d 1274, 1277 (11th Cir. 2001) (quoting United States v. Hensley, 469 U.S. 221,
235 (1985)). We have held that, under Terry, an officer during a traffic stop may
conduct a protective search of the driver, the passengers, or the vehicle as necessary
to ensure officer safety. Id.
Whether reasonable suspicion exists depends on the “totality of the
circumstances.” United States v. Hunter, 291 F.3d 1302, 1306 (11th Cir. 2002)
(quoting United States v. Arvizu, 534 U.S. 266 (2002)). The totality of the
circumstances must establish “specific and articulable facts which, taken together
with rational inferences from those facts,” reasonably warrant the search. Terry, 392
U.S. at 21. In gauging the totality of the circumstances, courts may not consider each
fact in isolation, but must consider their cumulative effect; reasonable suspicion may
exist even if each fact in isolation can be given an innocent explanation. Hunter, 291
F.3d at 1306.
The district court did not clearly err in finding that the circumstances facing
Officer Kaufmann justified a protective search of Williams generally and the pack
specifically. Officer Kaufmann stopped Williams for speeding at 2:15 in the
morning. Williams and his passenger were both wearing clothing identifying them
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as members of a motorcycle gang that had been linked to violent activity. Officer
Kaufmann knew about a violent fight that occurred at an OMC rally the year before
and had just participated in a similar traffic stop hours before in which an OMC
member on a motorcycle was carrying three firearms. When Officer Kaufmann
approached Williams, he became suspicious when he saw Williams furtively pass
the cigarette pack to Mack, who quickly concealed it between her legs. Then, when
he asked Williams about the pack, Williams gave an evasive answer that reasonably
heightened Officer Kaufmann’s suspicions.
Williams argues that a cigarette pack is small and, therefore, not the usual
kind of item subject to a protective Terry search. But, given the totality of the
circumstances here, a reasonably prudent officer in Kaufman’s position would be
justified in securing and inspecting the pack. Terry, 392 U.S. at 27. Officer
Kaufmann testified at the evidentiary hearing that he was concerned the pack might
have held a small, lightweight weapon like a razor blade or pocket knife. That
concern was reasonable in light of Williams’s furtive movement to pass the pack to
Mack as Officer Kaufmann approached, Mack’s concealment of the pack, and
Williams’s evasive response to Officer Kaufmann’s question. Mack had the pack on
her person and, because Williams was stopped on a motorcycle rather than an
automobile, the pack remained within his arm’s reach as well. See Michigan v. Long,
463 U.S. 1032, 1049 (1983) (upholding protective search of a leather pouch in
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passenger compartment of an automobile, where officers reasonably believed the
driver was dangerous and the area was near enough to the driver that he could have
gained immediate control of weapons if allowed to reenter the car). In these unique
circumstances, Officer Kaufmann reasonably responded by requesting the pack and
flipping open the lid to see what it contained.
The record here does not compel a different conclusion than the one the
district court reached—that Officer Kaufmann’s reasonable concern for his safety
justified a protective search of the cigarette pack. Because the search is justified on
that ground, there is no need to address the alternative grounds considered by the
district court—namely, whether Williams consented to the search or whether the
firearm or drugs were admissible under the inevitable discovery doctrine.
Accordingly, this Court will affirm the district court’s denial of the motion to
suppress.
Second, Williams argues that the district court erred by denying him a
downward adjustment for acceptance of responsibility. The government argues that
the district court correctly denied the request because Williams forced the
government to carry its burden at trial, he had two positive drug screens while on
pretrial release, and his criminal history showed that he was continuing a pattern. In
reply, Williams argues that he never contested the factual allegations associated with
this matter and that the district court failed to consider several factors in support of
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applying the reduction, such as his truthful admission of certain conduct and the
timeliness of his conduct in manifesting acceptance of responsibility.
We review the district court’s denial of a reduction for acceptance of
responsibility for clear error. United States v. Moriarty, 429 F.3d 1012, 1022 (11th
Cir. 2005). We will not set aside the district court’s determination that an adjustment
is unwarranted unless the facts in the record clearly establish that the defendant has
accepted responsibility. Id. at 1022–23. Because of the sentencing court’s unique
position to evaluate acceptance of responsibility, the determination of the district
court is afforded great deference. Id. at 1022.
The sentencing guidelines allow a two-step reduction in a defendant’s offense
level if he “clearly demonstrates acceptance of responsibility for his offense.”
U.S.S.G. § 3E1.1(a). Appropriate considerations for an adjustment include whether
the defendant: truthfully admitted the conduct comprising the offenses of conviction
and either truthfully admitted or did not falsely deny any additional relevant conduct;
voluntarily paid restitution prior to adjudication of guilt; voluntarily surrendered to
authorities promptly after the commission of the offense; voluntarily terminated or
withdrew from criminal conduct or criminal associations; voluntarily provided
assistance to the authorities in recovering the fruits and instrumentalities of the
offense; voluntarily resigned from any office or position held during the offense;
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underwent any post-offense rehabilitative efforts; and timely manifested the
acceptance of responsibility. Id., cmt. n.1.
However, “[t]he adjustment is not intended to apply to a defendant who puts
the government to its burden of proof at trial by denying essential factual elements
needed to show guilt, is subsequently convicted, and only then admits guilt and
expresses remorse.” Id., cmt. n.2. In rare situations, a defendant convicted at trial
can receive the adjustment, but he must clearly demonstrate acceptance of
responsibility. For example, a defendant who goes to trial to assert and preserve
issues that do not relate to factual guilt, such as challenging a statute’s
constitutionality or the applicability of a statute to his conduct, may receive an
adjustment. Id. The district court may consider the nature of the defendant’s legal
challenges to his conviction and sentence, along with the other circumstances of the
case, when determining whether to award credit for acceptance of responsibility.
United States v. Smith, 127 F.3d 987, 989 (11th Cir. 1997) (en banc).
Here, the district court did not clearly err by declining to apply a guidelines
reduction for acceptance of responsibility. This is so for several reasons. First and
foremost, Williams forced the government to carry its burden at trial. Although he
stipulated to several key facts—that he was in fact a convicted felon, that the firearm
at issue had traveled in interstate commerce, and that the drugs seized by Officer
Kaufmann were cocaine and oxycodone—he denied that he knowingly possessed
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the gun and drugs. Second, at trial, he suggested the possibility that he was not
responsible at all, but that the drugs were put in the cigarette pack by his companion,
Mack. Third, he violated the terms of his pretrial release by using marijuana. The
district court did not clearly err by declining to apply a guidelines reduction for
acceptance of responsibility.
III.
For the foregoing reasons, the district court is AFFIRMED.
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