United States v. Samuel Davis, Jr.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12944 MARCH 29, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________

D. C. Docket No. 04-00546-CR-T-24-TGW

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SAMUEL DAVIS, JR.,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(March 29, 2006)

Before TJOFLAT, BIRCH and BLACK, Circuit Judges.

PER CURIAM:
 Samuel Davis, 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 924(e)(1).

Davis asserts the following arguments on appeal: (1) the district court erred by

denying his motion to suppress evidence because law enforcement officers

detained him without reasonable suspicion; (2) 18 U.S.C. § 922(g) is

unconstitutional on its face and as applied to him; and (3) the district court clearly

erred by denying him a reduction for acceptance of responsibility. We affirm

Davis’s conviction and sentence.

I. DISCUSSION

A. Motion to Suppress

We review a district court’s denial of a defendant’s motion to suppress under

a mixed standard of review, reviewing the district court’s findings of fact under the

clearly erroneous standard and the district court’s application of law to those facts

de novo. See United States v. Gil, 204 F.3d 1347, 1350 (11th Cir. 2000). The facts

must be construed in the light most favorable to the party prevailing in the district

court. United States v. Santa, 236 F.3d 662, 668 (11th Cir. 2000).

The Fourth Amendment provides “[t]he right of the people to be secure in

their persons, houses, papers and effects, against unreasonable searches and

seizures, shall not be violated . . . .” Generally, evidence seized in violation of the

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Fourth Amendment may not be introduced into evidence. See Terry v. Ohio, 88 S.

Ct. 1868, 1884 (1968). However, law enforcement officers may, consistent with

the Fourth Amendment, “stop and briefly detain a person to investigate a

reasonable suspicion that he is involved in criminal activity, even though probable

cause is lacking.” United States v. Williams, 876 F.2d 1521, 1523 (11th Cir. 1989)

(citing Terry, 88 S. Ct. at 1884). “[R]easonable suspicion, like probable cause, is

not ‘readily, or even usefully, reduced to a neat set of legal rules.’” United States

v. Sokolow, 109 S. Ct. 1581, 1585 (1989). Reasonable suspicion is “considerably

less than proof of wrongdoing by a preponderance of the evidence” and less than

probable cause. Id. The “reasonable suspicion” must be more than an “inchoate

and unparticularized suspicion or ‘hunch.’” Id. (citation omitted).

“Reasonable suspicion is determined from the totality of the circumstances,

and from the collective knowledge of the officers involved in the stop.” Williams,

876 F.2d at 1524 (internal citation omitted). The 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, 88 S. Ct. at 1880. “Such

facts may be derived from ‘various objective observations, information from police

reports, if such are available, and consideration of the modes or patterns of

operation of certain kinds of lawbreakers.’” Williams, 876 F.2d at 1524 (citation

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omitted). Also, “[a] reasonable suspicion of criminal activity may be formed by

observing exclusively legal activity.” United States v. Gordon, 231 F.3d 750, 754

(11th Cir. 2000).

In Florida v. J.L., the Supreme Court stated:

Unlike a tip from a known informant whose reputation can be
assessed and who can be held responsible if her allegations turn out to
be fabricated, an anonymous tip alone seldom demonstrates the
informant’s basis of knowledge or veracity. As we have recognized,
however, there are situations in which an anonymous tip, suitably
corroborated, exhibits sufficient indicia of reliability to provide
reasonable suspicion to make the investigatory stop.

120 S. Ct. 1375, 1378 (2000) (internal quotations and citations omitted). The

Supreme Court also held the presence of an individual matching the physical

description given by an anonymous tip in the area indicated by the tip is

insufficient, standing alone, to establish reasonable suspicion. Id. at 1379.

The district court did not err by denying Davis’s motion to suppress

evidence because reasonable suspicion supported Davis’s detention. As an initial

matter, although Davis notes the dispatcher informed Deputy McClusky the

burglary suspect was sitting in a burgundy, two-door Saturn with license plate

number 298JII, and a white female with red hair was sitting in the driver’s seat,

Deputy McClusky testified (1) he did not recall whether the dispatcher had given

him a description of the vehicle involved in the burglary, and (2) he was having a

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hard time hearing his radio because the area he was in was experiencing the effects

of Hurricane Francis. In any event, the record demonstrates Deputy McClusky and

Sergeant Noordzy had a reasonable suspicion that Davis was involved in the

burglary at the time Deputy McClusky questioned Davis, given the following:

(1) Deputy McClusky and Sergeant Noordzy testified they arrived at the scene of

the suspected burglary within minutes of the receipt of the 911 call; (2) Deputy

McClusky testified the dispatch report indicated a car suspected of being involved

in the burglary was still parked in front of the trailer, and Davis’s car was located

approximately 10 to 15 feet in front of the trailer; (3) after hearing a tape of the

transmission between the dispatcher and Deputy McClusky, Sergeant Noordzy

testified there was not a vehicle with occupants at the trailer matching the

description of the vehicle described by the dispatcher; and (4) Sergeant Noordzy

testified the driver of Davis’s car informed him that the driver had just picked up

Davis, who is a black male, and that his dispatch screen had reported a witness had

observed a black male crawling through the window of the trailer. Although Davis

asserts his detention could not be based on his matching “a vague racial

description,” the record shows Sergeant Noordzy did not order Deputy McClusky

to question Davis based solely on his matching the racial description of the

individual seen crawling through the window of the trailer, given that Davis’s

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vehicle was the only occupied vehicle parked in front of the trailer and that the

driver informed Sergeant Noordzy he had just picked up Davis. See J.L., 120 S.

Ct. at 1379. Additionally, with respect to Davis’s contention the 911 call was not

sufficiently reliable to support his detention, the record shows Sergeant Noordzy

did not order Deputy McClusky to question Davis based solely on the information

provided by the 911 caller, because Sergeant Noordzy testified he ordered Deputy

McClusky to question Davis after he spoke to the driver of Davis’s car as part of

his investigation of the burglary. Because law enforcement officials had

reasonable suspicion Davis was involved in the suspected burglary, the district

court did not err by denying Davis’s motion to suppress the firearm the deputies

recovered from Davis.

B. Unconstitutionality of § 922(g)

Although Davis recognizes we previously have rejected constitutional

challenges to § 922(g), he states he raises this argument primarily for purposes of

en banc or certiorari review. Davis contends § 922(g) is facially invalid, as it fails

to limit its application only to conduct substantially affecting interstate or foreign

commerce, as opposed to purely intrastate commerce, and does not require a

showing the possession in question “substantially” affects interstate commerce.

Davis further argues because his purely intrastate possession of the firearm did not

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affect interstate commerce in any way, his conviction falls outside of Congress’s

Commerce Clause power.

We have rejected the argument that § 922(g)(1) exceeds Congress’s

Commerce Clause power, reasoning the felon-in-possession statute has an express

jurisdictional element, which would “ensure” the firearm possession in question

affects interstate commerce. United States v. McAllister, 77 F.3d 387, 389-90

(11th Cir. 1996). Because we have rejected the argument that § 922(g)(1) exceeds

Congress’s Commerce Clause power, Davis’s facial and as-applied constitutional

challenges fail.

C. Acceptance of Responsibility

We review for clear error a district court’s determination of acceptance of

responsibility. United States v. Singh, 291 F.3d 756, 764 (11th Cir. 2002). The

Guidelines provide for a two-level decrease in a defendant’s base offense level if

he “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G.

§ 3E1.1(a). The commentary to § 3E1.1 explains:

This adjustment is not intended to apply to a defendant who puts the
government to its burden of proof at trial by denying the essential
factual elements of guilt, is convicted, and only then admits guilt and
expresses remorse. Conviction by trial, however, does not
automatically preclude a defendant from consideration for such a
reduction. In rare situations a defendant may clearly demonstrate an
acceptance of responsibility for his criminal conduct even though he
exercises his constitutional right to trial. This may occur, for

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 example, where a defendant goes to trial to assert and preserve issues
that do not relate to factual guilt (e.g., to make a constitutional
challenge to a statute or a challenge to the applicability of a statute to
his conduct). In each such instance, however, a determination that a
defendant has accepted responsibility will be based primarily upon
pre-trial statements and conduct.

U.S.S.G. § 3E1.1, comment (n.2).

The district court did not clearly err by denying Davis a two-level reduction

for acceptance of responsibility. Although the commentary to § 3E1.1 provides a

defendant may be entitled to a reduction to his base offense level for acceptance of

responsibility if he goes to trial to assert and preserve issues that do not relate to

his factual guilt, the commentary also notes that, in such an instance, the

determination of whether a defendant has accepted responsibility will be based

primarily upon his pre-trial statements and conduct. In the instant case, Davis’s

pre-trial statements and conduct demonstrate he failed to accept responsibility for

his commission of the instant offense. Deputy McClusky testified that, during his

encounter with Davis, Davis (1) gave him a false name, (2) failed to acknowledge

he had a gun in his pocket, and (3) violently resisted arrest. Although Davis did

not contest, during either the suppression hearing or his trial, that he was a

convicted felon, he was in possession of the firearm in question, or he knew it was

unlawful for him to be in possession of the firearm, Davis’s attorney

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acknowledged, during the sentencing hearing, that Davis did not answer all of the

probation officer’s questions during his pre-sentence interview and Davis did not

cooperate with the Government. Although Davis admitted his guilt and expressed

remorse at the sentencing hearing, Application Note 2 to § 3E1.1 notes the primary

area of focus in a case where a defendant proceeds to trial in order to preserve

issues that do not relate to his factual guilt is a defendant’s pre-trial statements and

conduct. As noted above, Davis’s pre-trial statements and conduct failed to

demonstrate he accepted responsibility for the instant offense.

Finally, Davis’s assertion the district court violated his due process rights by

failing to grant him a reduction for acceptance of responsibility as a result of his

exercise of his Fourth, Fifth, and Sixth rights Amendment is without merit.

Although the district court stated Davis would have received the reduction if he

had pled guilty, the court later stated Davis may have been entitled to the reduction

if he had pled guilty after it denied his motion to suppress. Thus, a review of the

record demonstrates the district court denied Davis the reduction based on its

finding that Davis’s pre-trial statements and conduct did not demonstrate he

accepted responsibility for the instant offense and not based on Davis’s exercise of

his constitutional rights.

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 II. CONCLUSION

The district court did not err in denying Davis’s motion to suppress or a

sentencing reduction for acceptance of responsibility. Additionally, 18 U.S.C.

§ 922(g) is constitutional. Thus, we affirm Davis’s conviction and sentence.

AFFIRMED.

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