[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 17, 2006
No. 05-15792 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-80091-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERVICK MCCLENDON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 17, 2006)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Bervick McClendon appeals his conviction following a jury trial for
possession with intent to distribute at least 50 grams of cocaine base, in violation
of 21 U.S.C. § 841(a), and his sentence enhancement based on two prior
convictions for crimes of violence, pursuant to 21 U.S.C. § 851 and U.S.
Sentencing Guidelines Manual (“U.S.S.G.”) § 4B1.1(a), resulting in a life
sentence. On appeal, McClendon argues that the district court erred in finding that
exigent circumstances justified the warrantless entry into his motel room when
there was no suspicious activity observed by the police or any indication that he
was aware of police activity. McClendon also argues that according to Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely
v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the
district court violated his Fifth and Sixth Amendment rights by relying on the fact
of two prior convictions to enhance his sentence when neither conviction was
alleged in the indictment or proven to a jury beyond a reasonable doubt.
At the suppression hearing, the Government adduced the following. Elitsa
Fernandez, a housekeeper at the motel in which McClendon was staying, entered
McClendon’s room and detected a “great deal of heat,” and saw that the smoke
detector was covered with a towel. She noticed that stove burners were turned on,
and she turned them off. On top of the counter she saw a big glass jar with some
liquid inside, and on the table she saw what she described as little white pieces or
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stones that looked something like cereal. As she left, McClendon accosted and
repeatedly asked her about what she had seen in the room. He grabbed her arm and
threatened her. In response, she quickly left. McClendon followed her to the
motel office.
McClendon told the front desk worker that he was going to stay another day
and that he did not want his room cleaned. He then looked threateningly at
Fernandez. With the help of another, Fernandez, who did not speak English, told
her manager what had occurred. The manager then called the police and told them
that she suspected drug activity. When the police arrived, they spoke with both the
manager and Fernandez and surmised that McClendon was cooking crack cocaine.
One of the officers recognized McClendon’s name as someone with a long history
of drug dealing. The officers then knocked on McClendon’s door and eventually
kicked it in after McClendon had partially opened and attempted to reclose the
door. They noticed a pungent odor, possibly cocaine, and found marijuana,
cocaine, and crack cocaine.
“We apply a mixed standard of review to the denial of a defendant’s motion
to suppress, reviewing the district court’s findings of fact for clear error and its
application of law to those facts de novo.” United States v. Lyons, 403 F.3d 1248,
1250 (11th Cir.), cert. denied, __ U.S. __, 126 S. Ct. 732, 163 L. Ed. 2d 576
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(2005). Moreover, “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).
The Fourth Amendment provides that: “[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 . . . .” U.S. Const. amend. IV. Warrantless searches
and seizures inside a person’s home are presumptively unreasonable. United States
v. Burgos, 720 F.2d 1520, 1525 (11th Cir. 1983). However, a warrantless search or
seizure may be justified where both probable cause and exigent circumstances
exist. Id. Exigent circumstances exist where the delay in obtaining a warrant must
yield to the urgent need for immediate action. Id. at 1526.
Narcotics cases present a compelling need for the exigent circumstances
doctrine because “contraband and records can be easily and quickly destroyed
while a search is progressing.” United States v. Young, 909 F.2d 442, 446 (11th
Cir. 1990). “In determining whether agents reasonably feared imminent
destruction of the evidence, the appropriate inquiry is whether the facts, as they
appeared at the moment of entry, would lead a reasonable, experienced agent to
believe that evidence might be destroyed before a warrant could be secured.” Id.
(quoting United States v. Rivera, 825 F.2d 152, 156 (7th Cir. 1987)).
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Circumstances are not normally considered exigent, however, where the
suspects are unaware of police surveillance or where the police officers create the
exigent circumstances. United States v. Tobin, 923 F.2d 1506, 1511 (11th Cir.
1991) (en banc).
Here, the record shows that McClendon feared that Fernandez would report
his drug activity to an authority. Although McClendon was not aware of the police
activity, he knew that Fernandez was frightened, had gone straight to the motel
front office after their encounter, and would probably notify an authority of what
she had seen. McClendon argues that his renewal of the room for another day
shows that he would not destroy or remove evidence of a crime. However, his
renewal of the room does not overcome the weight of the other evidence. The
officers had knowledge of McClendon’s past drug activity, and, reflecting on the
foregoing facts, reasonably believed that McClendon would destroy the drug
evidence in an attempt to avoid detection. See Tobin, 923 F.2d at 1511.
Furthermore, the exigent circumstances were not created by the officers’
knock on McClendon’s motel room door; the exigent circumstances were created
by McClendon’s actions toward Fernandez. McClendon knew that Fernandez had
entered his motel room where drug activity was in plain view. His threat to
Fernandez led to her belief that something illegal was afoot in the room.
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McClendon was well aware that Fernandez saw the evidence of illegal activity in
his room, was frightened of his response, and would probably report his activity
after she fled his presence. Thus, the record shows that exigent circumstances
justified the warrantless entry and that those circumstances were not created by the
officers. Accordingly, we affirm the district court in denying McClendon’s motion
to suppress.
McClendon timely objected that his sentence was unconstitutionally
enhanced based on prior convictions that were not alleged in the indictment and
not proven to a jury beyond a reasonable doubt, which violated his Fifth and Sixth
Amendment rights under Blakely and Apprendi. The fact and nature of
McClendon’s two prior convictions were made known in the PSI. In addition, at
sentencing, the Government introduced expert testimony and evidence that the two
convictions were, in fact, attributed to McClendon.
We have reiterated on numerous occasions that Almendarez-Torres v. United
States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), continues to
control cases concerning enhancements based on prior convictions. See, e.g.,
United States v. Gibson, 434 F.3d 1234, 1246 (11th Cir. 2006) (“[T]he government
need not allege in its indictment and need not prove beyond a reasonable doubt that
a defendant had prior convictions for a district court to use those convictions for
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purposes of enhancing a sentence.”); United States v. Cantellano, 430 F.3d 1142,
1147 (11th Cir. 2005) (per curiam) (“The fact of a prior conviction clearly may be
found by the district court.”), cert. denied, __ U.S. __, 126 S. Ct. 1604, __ L. Ed.
2d __ (2006); United States v. Orduno-Mireles, 405 F.3d 960, 962 (11th Cir.), cert.
denied, __ U.S. __, 126 S. Ct. 223, __ L. Ed. 2d __ (2005) (explaining that the
Sixth Amendment is not implicated when a defendant’s sentence is enhanced based
on a prior conviction). McClendon’s claim is without merit.
Accordingly, we affirm both McClendon’s conviction and sentence.
AFFIRMED
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