[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-14722
March 27, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00168-CR-001
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK THOMPSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(March 27, 2006)
Before TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:
The following corrected opinion without substantive change is substituted
for our March 27, 2006 opinion:
Patrick Thompson appeals his convictions and sentences for conspiracy to
possess with intent to distribute powder cocaine and crack cocaine, 21 U.S.C. §§
841(a)(1), 846; possession with intent to distribute powder cocaine and crack
cocaine, 21 U.S.C. § 841(a)(1); and obstruction of justice, 18 U.S.C. §§ 2,
1512(c)(1). After review, we affirm Thompson’s convictions, but vacate his
sentences.
I. BACKGROUND
A. Thompson’s Arrest
In June 2003, a confidential informant (“CI”) told Corporal Roy Cuthkelvin
with the Mobile County, Alabama Sheriff’s Department about a man known as “P”
who used a 2000 Mercedes and a 2003 Cadillac with Massachusetts registrations to
transport kilograms of cocaine from Atlanta to Mobile. On July 14, 2003,
Cuthkelvin and another officer observed a brand new Cadillac and a newer-model
Mercedes, both with Massachusetts license plates and identical fancy wheels, in the
parking lot of an Intown Suites motel. The officers noted the tag numbers and
learned that the cars were registered to a Appellant Patrick Thompson. Through
the motel, the officers also determined that there was no guest registered as Patrick
Thompson, but that one car was listed as belonging to Morris Parsons in room 241.
Later that evening, officers stopped the Mercedes, driven by Thompson,
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after it entered the motel parking lot. Thompson denied staying at the motel and
indicated that a friend had a room on the third floor. Thompson consented to a pat-
down search, during which officers found four or five hundred dollars and a key to
room 241. Thompson also consented to a search of the Mercedes and the
Cadillac. In the trunk of one car, officers found a plastic bag containing thirteen
thousand dollars in cash, a large quantity of jewelry, a plane ticket in the name of
Patrick Thompson and some documents bearing the name Morris Parsons.
Cuthkelvin obtained a search warrant for room 241. During the search,
officers discovered, among other things, 1.5 kilograms of cocaine, 217 grams of
crack cocaine, digital scales and a receipt in Thompson’s name for a storage unit in
Massachusetts. Thompson was arrested.
In a taped phone conversation from jail shortly after his arrest, Thompson
asked a woman named Tanya Janice Lee to empty the Massachusetts storage unit.
Lee did as Thompson asked and removed a suitcase containing money, a rusty gun
and some crack cocaine. Lee disposed of the gun, gave the crack to Thompson’s
brother, gave most of the money to Thompson’s father and eventually turned the
suitcase with the remaining cash over to the FBI.
B. Thompson’s First Trial
Thompson was charged in a six-count indictment with: (1) conspiracy to
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possess with intent to distribute powder cocaine and crack cocaine (Counts 1 and
2); (2) possession with intent to distribute powder cocaine and crack cocaine
(Counts 3 and 4); (3) obstruction of justice (Count 5); and (4) a forfeiture count
(Count 6). Thompson moved to suppress the evidence found in the motel room,
arguing that the search was conducted before officers secured a search warrant.
Thompson attached to his motion a copy of the search warrant signed by the judge
and issued at 10:40 p.m. and a copy of Cuthkelvin’s arrest narrative stating that the
search was executed at 2140 hours, or 9:40 p.m. The district court, Chief Judge
Granade, denied Thompson’s motion to suppress as untimely.
During the trial before Judge Butler, Cuthkelvin testified that the search of
the motel room was conducted only after he obtained the search warrant from the
judge and that the time noted in his arrest narrative was a typographical error.
Prior to jury deliberations, the government asked the district court to revisit the
prior ruling on the motion to suppress in light of Cuthkelvin’s testimony about the
timing of the search. Judge Butler concluded that Thompson had not been
prejudiced by the lack of a suppression hearing because the evidence presented at
trial indicated that the room had been searched after the officers had obtained a
search warrant, as follows:
And I’m not going to make a ruling on the motion to suppress as
much as I’m going to say that there appears to the Court to have been
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no prejudice suffered by the defendant by their [sic] not having a
suppression hearing to begin with. Because everything that came out
in the trial testimony, subject to cross-examination, did not indicate
any avenue of possible relief, if you will, from the conclusion that
everyone testified to, that the room was searched after the warrant was
obtained.
After jury deliberations began, the jury reported that it was hopelessly deadlocked,
and the district court declared a mistrial.
C. Thompson’s Second Trial
In a superseding seven-count indictment, Thompson was charged with the
six counts discussed above and an additional count of obstruction of justice.
Thompson again moved to suppress the evidence found in the motel room,
asserting the untimeliness of the search warrant. The district court, Chief Judge
Granade, again denied the motion for lack of standing and based on the law-of-the-
case doctrine. After a second trial before Judge Butler presiding, the jury
convicted Thompson of all seven counts.
D. Sentencing
The Presentence Investigation Report (“PSI”) recommended a base offense
level of 34 because Thompson was accountable for a marijuana equivalency of
4,640 kilograms. See U.S.S.G. § 2D1.1(c)(3) (2002). The PSI recommended
increases of: (1) two levels under U.S.S.G. § 2D1.1(b)(1) because Thompson
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possessed a firearm;1 (2) four levels under U.S.S.G. § 3B1.1(a) because Thompson
was a leader or organizer of the conspiracy involving five or more participants; and
(3) two levels for obstruction of justice under U.S.S.G. § 3C1.1 because Thompson
had concealed and attempted to conceal the evidence in the storage unit. With a
total offense level of 42 and a criminal history category of V, Thompson’s
Guidelines range was 360 months to life imprisonment.
Thompson objected to the PSI’s recommendation of a two-level firearm
enhancement and a four-level role enhancement. Thompson also objected to the
mandatory application of the Guidelines and judicial fact-finding, pursuant to
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).
During the sentencing hearing before Judge Butler, the government
conceded that a four-level role enhancement was inappropriate, and the district
court limited the role enhancement to two levels pursuant to U.S.S.G. § 3B1.1(c).
The district court overruled Thompson’s objection to the firearm enhancement and
his Blakely objection. The district court adopted the PSI’s calculations (except for
the four-level role enhancement). This left Thompson’s total offense level at 40,
with a criminal history category of V, resulting in a Guidelines range of 360
1
Specifically, the PSI stated that co-conspirator Tanya Lee admitted to authorities that the
suitcase she retrieved from Thompson’s storage unit in Massachusetts contained a small bag of
crack, a gun and money.
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months to life imprisonment. The district court rejected Thompson’s request for a
sentence at the low end of the Guidelines range and sentenced Thompson to 480
months’ imprisonment each on Counts 1 through 4 and 240 months’ imprisonment
each on Counts 5 and 6, all to run concurrently. Thompson timely appealed.
II. DISCUSSION
A. Motion to Suppress
Thompson argues that the district court erred by not holding a hearing with
regard to his motion to suppress. Thompson contends that he had standing to
challenge the search warrant and that the law-of-the-case doctrine did not preclude
the district court from resolving the factual issue of whether the search of the motel
room was conducted before officers obtained a search warrant. We find no
reversible error with regard to the district court’s refusal to hold a hearing.
“[A] trial court may refuse a defendant’s request for a suppression hearing
and motion to suppress if the defendant fails to allege facts that, if proved, would
require the grant of relief.” United States v. Richardson, 764 F.2d 1514, 1526-27
(11 th Cir. 1985). We review a district court’s refusal to hold a hearing for abuse of
discretion. United States v. Cooper, 203 F.3d 1279, 1285 (11 th Cir. 2000). As a
threshold inquiry, courts must determine whether a defendant has established
standing to bring the motion to suppress by sufficiently alleging that he possessed a
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reasonable expectation of privacy in the area searched. Id. at 1284.
With regard to standing, Thompson admits that he repeatedly and
adamantly disclaimed any interest in the motel room on the night of the search.
Such a disclaimer of ownership or interest deprives a defendant of the “subjective
expectation of privacy to assert standing . . . .” United States v. Sweeting, 933
F.2d 962, 964 & n.2 (11 th Cir. 1991) (concluding that defendants who denied any
relationship with their mother’s residence except access did not have standing to
object to the search, despite fact that government established at trial that
defendants actually lived at the residence).
Additionally, Thompson’s standing allegations in his motion to suppress
were insufficient to justify holding a hearing. The only fact Thompson alleged in
his motion to suppress relating to standing was that the “government contends
[room 241] to be a room rented by or to the defendant.” We agree with the district
court that this allegation is not sufficient to establish standing. See Cooper, 203
F.3d at 1284 (holding that defendants’ offhand references to hotel room as “theirs”
in motion to suppress was too general and conclusory to demonstrate a reasonable
expectation of privacy conferring standing and thus district court did not abuse its
discretion in refusing to hold a hearing); United States v. Sneed, 732 F.2d 886, 888
(11 th Cir. 1984) (“The concepts of due process do not require that a defendant who
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fails to make the fundamental allegations [of standing] in his motion to suppress be
afforded a pretrial hearing on his motion.”).
Thompson points to Cuthkelvin’s affidavit in support of the search warrant,
which was attached to the motion to suppress. In the affidavit, Cuthkelvin averred,
among other things, that Thompson was one of two occupants of the motel room
and that a key to room 241 had been found on Thompson, but also averred that
Thompson had denied staying at the motel. Given that Thompson admits that he
repeatedly and adamantly disclaimed any interest in the motel room on the night of
the search, we conclude Cuthkelvin’s affidavit also did not establish standing for
Thompson.
Even assuming Thompson sufficiently alleged standing, Chief Judge
Granade’s refusal to hold a hearing before ruling on the second motion to suppress
was not reversible error. As noted above, during the first trial, Judge Butler made a
finding that the search was conducted only after the government obtained a search
warrant. Thompson emphasizes that Judge Butler stated at the beginning of his
comments that he was not ruling on the motion to suppress. When this phrase is
read in context, however, it is clear that Judge Butler meant that he was not
changing the earlier ruling on the first motion to suppress, and that he was making
a factual finding as additional support for that earlier ruling.
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Perhaps more importantly, as Chief Judge Granade noted, Thompson’s
second motion to suppress was “factually identical” to his first motion to suppress.
In other words, Thompson presented no new evidence suggesting that Judge
Butler’s finding was erroneous. Under these circumstances, we cannot say that
Chief Judge Granade abused her discretion when she adhered to Judge Butler’s
earlier factual finding and denied Thompson a hearing to reconsider the issue.
B. Multiplicity
Thompson also argues that his indictment was multiplicitous because it
charged him with separate counts of conspiracy and possession for the crack
cocaine (Counts 1 and 3) and cocaine powder (Counts 2 and 4) found in the motel
room. “‘An indictment is multiplicitous if it charges a single offense in more than
one count.’” United States v. Sirang, 70 F.3d 588, 595 (11 th Cir. 1995) (quoting
United States v. Howard, 918 F.2d 1529, 1532 (11 th Cir. 1990)).
Ordinarily, we review de novo whether counts in an indictment are
multiplicitous. United States v. Smith, 231 F.3d 800, 807 (11 th Cir. 2000).
Thompson, however, did not raise a multiplicity challenge prior to trial. Rather,
Thompson raised his multiplicity challenge only after the government had rested
its case and Thompson moved for a directed verdict. When a defendant fails to
object to multiplicitous counts in an indictment prior to trial, he is barred from
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challenging his convictions and may challenge only his separate sentences. United
States v. Grinkiewicz, 873 F.2d 253, 255 (11 th Cir. 1989); Fed. R. Crim. P.
12(b)(3)(B). More importantly, Thompson received concurrent sentences on the
counts he claims were multiplicitous. Therefore, even assuming arguendo that
Thompson’s multiplicity claim was correct, any error would be harmless. See
United States v. Langford, 946 F.2d 798, 804-05 (11 th Cir. 1991) (finding that
multiplicitous securities fraud counts were harmless error because sentences were
concurrent). Accordingly, we find no reversible error with regard to Thompson’s
concurrent sentences on Counts 1 and 3 (crack cocaine) and Counts 2 and 4
(powder cocaine).2
C. Constitutional Booker Error
2
In any event, there does not appear to be a multiplicity error with regard to Thompson’s
sentences. In this circuit, the simultaneous possession of different controlled substances
constitutes separate offenses under 21 U.S.C. § 841(a) for which multiple sentences may be
imposed. See United States v. Davis, 656 F.2d 153, 156-60 (5th Cir. Unit B Sept. 1981)
(involving defendant convicted of two counts of possession of a controlled substance under §
841(a), one count for marijuana and one count for qualudes, which resulted in consecutive
sentences). The law has long drawn distinctions between crack cocaine and powder cocaine.
See, e.g., 21 U.S.C. § 841(b)(1)(A)(ii)(II) & (b)(1)(A)(iii); U.S.S.G. § 2D1.1(c); United States v.
Sloan, 97 F.3d 1378, 1381-84 (11th Cir. 1996) (explaining the chemical distinctions between
crack cocaine and powder cocaine and concluding that the provisions of § 841(b) and U.S.S.G. §
2D1.1 imposing more severe penalties for crack cocaine do not violate the equal protection
prong of the Due Process Clause); United States v. Terry, 60 F.3d 1541, 1544-45 (11th Cir. 1995)
(explaining that Congress distinguished between crack cocaine and powder cocaine because
“crack cocaine is more dangerous, more highly addictive, more easily available, and less
expensive than powder cocaine” and finding that the harsher penalties in § 841(b) for crack
cocaine do not violate the Equal Protection Clause). Because Thompson was convicted of
possessing and conspiring to possess two different controlled substances – crack cocaine and
powder cocaine, he did not receive multiple sentences for the same offense.
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On appeal, Thompson argues that the district court committed error under
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), by enhancing his
sentences based on facts that he did not admit and that were not proven to a jury
beyond a reasonable doubt and by sentencing him under a mandatory Guidelines
scheme.3
In Booker, the Supreme Court held that Blakely applied to the federal
Sentencing Guidelines. United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th
Cir.), cert. denied, 125 S. Ct. 2935 (2005). “Under Booker, there are two kinds of
sentencing errors: one is constitutional and the other is statutory.” United States v.
Dacus, 408 F.3d 686, 688 (11th Cir. 2005). “[T]he Sixth Amendment right to trial
by jury is violated where under a mandatory guidelines system a sentence is
increased because of an enhancement based on facts found by the judge that were
neither admitted by the defendant nor found by the jury.” Rodriguez, 398 F.3d at
1298 (emphasis omitted). The statutory error occurs when the district court
sentences a defendant “under a mandatory Guidelines scheme, even in the absence
of a Sixth Amendment enhancement violation.” United States v. Shelton, 400 F.3d
1325, 1330-31 (11th Cir. 2005).
With regard to the constitutional Booker error, Thompson argues that his
3
Because Thompson timely raised a Blakely objection in the district court, we review his
Blakely, now Booker, claim de novo. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
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Sixth Amendment rights were violated when the district court calculated his base
offense level using drug quantities not based on a jury determination and when it
imposed a two-level firearm enhancement.4 There was no Sixth Amendment
violation as to the drug quantity findings. Thompson’s PSI held Thompson
responsible for 1.5 kilograms of cocaine powder and 217 grams of crack cocaine,
for a marijuana equivalency of 4,340 kilograms. Thompson did not object to the
factual findings of the PSI, including the drug quantities. Nor did he object to the
calculation of his base offense level using those drug quantities. Thus, Thompson
admitted to being responsible for a marijuana equivalency of 4,340 kilograms.
Accordingly, there was no Sixth Amendment violation with regard to the drug
quantity finding. See United States v. Williams, 438 F.3d 1272, 1274 (11 th Cir.
2006) (concluding that, even though defendant’s conviction was based on only
“five grams or more,” the district court’s drug quantity finding was not reversible
Booker error because defendant’s “failure to contest the 37 grams imputed in the
PSI constituted an admission of that quantity”); see also United States v. Burge,
407 F.3d 1183, 1191-92 (11 th Cir.), cert. denied, 126 S. Ct. 551 (2005); Shelton,
4
Thompson concedes in his supplemental brief that there was no Sixth Amendment
violation as to the obstruction-of-justice enhancement because the facts supporting that
enhancement were found by the jury beyond a reasonable doubt at Thompson’s trial.
Specifically, the jury found that Thompson concealed and attempted to conceal currency and
documents with the intent to impair their integrity and availability for use at trial. In addition,
Thompson does not challenge the role enhancement, pursuant to U.S.S.G. § 3B1.1(c). Indeed, at
sentencing Thompson agreed that a two-level role enhancement was appropriate.
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400 F.3d at 1330.
There was, however, a Sixth Amendment violation as to the firearm
enhancement. We reverse and remand for resentencing only if the district court’s
Booker error was not harmless. United States v. Cain, 433 F.3d 1345, 1347 (11 th
Cir. 2005). For a constitutional Booker error to be harmless, the government
“must prove beyond a reasonable doubt ‘the mandatory, as opposed to the
advisory, application of the guidelines did not contribute to the defendant’s
sentence.’” Id. at 1348 (quoting United States v. Davis, 407 F.3d 1269, 1271 (11 th
Cir. 2005)). Here, the government has not met its burden to show that the
constitutional Booker error was harmless. “We simply do not know what the
sentencing court would have done had it understood the guidelines to be advisory
rather than mandatory, and had properly considered the factors in 18 U.S.C. §
3553(a).” Davis, 407 F.3d at 1271.
Accordingly, we affirm Thompson’s convictions, but we vacate Thompson’s
sentences and remand for resentencing consistent with this opinion.5
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
5
We do not suggest that on remand the district court must impose any particular sentence
or that the district court is not free to impose the same sentence. Furthermore, as this is a limited
remand to permit the district court to determine what sentence is reasonable and appropriate after
considering the now-advisory Guidelines range and the factors set forth in 18 U.S.C. § 3553(a),
Thompson may not re-argue issues already or necessarily decided during the first sentencing
which either have been affirmed in this appeal or could have been but were not raised by him
during this appeal. See United States v. Davis, 329 F.3d 1250, 1252 (11th Cir. 2003) (explaining
that when the appellate court issues a limited mandate, “the trial court is restricted in the range of
issues it may consider on remand”).
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