United States v. Anthony Jerome Bell

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 23, 2007
No. 05-14043 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 04-60275-CR-JIC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY JEROME BELL,
a.k.a. Ant,
a.k.a. Amp,
BRUCE HERMITT BELL,

Defendants-Appellants.

________________________

Appeals from the United States District Court
for the Southern District of Florida
_________________________

(February 23, 2007)

Before TJOFLAT, HULL and BOWMAN,* Circuit Judges.

*
Honorable Pasco M. Bowman II, United States Circuit Judge for the Eighth Circuit,
sitting by designation.
PER CURIAM:

Following a jury trial, defendant Bruce Bell appeals his convictions and

sentences, and defendant Anthony Bell appeals his sentences, for conspiracy to

possess with intent to distribute fifty grams or more of crack cocaine, in violation

of 21 U.S.C. §§ 846 and 841(a)(1) (Count 1), and possession with intent to

distribute fifty grams or more of crack cocaine, in violation of 21 U.S.C. §

841(a)(1) (Count 2). After review and oral argument, we affirm.

I. BACKGROUND

Because this appeal involves issues related to the searches in this case, we

review in detail the events leading up to the two searches.

A. Search of Buchanan Street Apartment

In June 2004, the Hollywood, Florida Police Department (“HPD”)

investigated suspicious activity at an apartment located at 6330 Buchanan Street.

The owner of the apartment, who had leased the apartment to Bruce Bell, called the

HPD’s “Tips Hot Line” to advise the police of suspicious activity at the apartment.

Based on their subsequent surveillance and information from confidential

informants, HPD officers suspected that crack cocaine was being distributed from

the Buchanan Street residence. Over the next three months, a confidential

informant made several controlled purchases of crack cocaine at the Buchanan

Street residence. Officers also learned that Bruce Bell and his cousin, Anthony

2
Bell, were occupants in the Buchanan Street apartment from a police visit to the

residence.

On September 14, 2004, HPD obtained a search warrant for the Buchanan

Street apartment. In preparation for the raid, officers studied pictures of defendants

Anthony and Bruce Bell. The raid did not take place because Anthony and Bruce

Bell had departed the Buchanan Street residence, and their car was found outside

an apartment at 6205 Tyler Street. On September 17, 2004, after officers observed

Anthony Bell entering the Buchanan Street apartment, HPD officers executed the

search warrant for the apartment. Officers saw defendants Anthony and Bruce Bell

standing near a counter top in the kitchen 1 and observed Bruce Bell grab a

substance that looked like crack cocaine. As defendants Anthony and Bruce Bell

ran from the kitchen into a bedroom, police saw Bruce Bell throw the substance

into a closet.

After arresting defendants Anthony and Bruce Bell, HPD officers

confiscated from the Buchanan Street residence: (1) several pieces of crack cocaine

from the kitchen counter; (2) additional pieces of crack cocaine from the bedroom

closet; (3) two surveillance cameras; (4) an open safe in the kitchen; (5) a small

scale located within a kitchen drawer; (6) $2,074 in cash; and (7) mail addressed to

Anthony Bell at the Buchanan Street address. Officers found an ecstasy pill and a

1
Codefendant Curtis Sheffield also was in the apartment with a juvenile, Gustavo Fields.

3
small piece of crack cocaine in Anthony Bell’s pockets. In Bruce Bell’s pockets,

officers found a Florida driver’s license in the name of “Brian Elliot King” and

several keys. The keys later were found to open the Buchanan Street apartment

door, the Tyler Street apartment door, and the safes in the Buchanan Street and

Tyler Street apartments.

B. Miranda warnings

Following defendant Bruce Bell’s arrest on September 17, 2004, HPD

Detective Kathy Wilde advised him of his Miranda rights at the police station

using a written form. Bruce Bell checked and initialed the form indicating that he

understood and waived his Miranda rights, but he initially checked “Yes” as his

response to the question, “[i]n regards to this investigation, have you previously

asked any Police Officer to allow you to speak to an attorney?” Because this

response was contrary to Bruce Bell’s earlier statement that he had not asked for an

attorney, Detective Wilde asked, “Do you understand what you’re checking? You

are saying you don’t want to talk to us so we are going to leave then.” Bruce Bell

then crossed out his “Yes” response on the Miranda waiver form, checked the

“No” response, and initialed the form next to the “No” answer.

After signing the Miranda waiver form, defendant Bruce Bell confessed that

he started selling crack cocaine in August 2003 and described the crack cocaine

production process. Bruce Bell admitted that he rented the Buchanan Street

4
apartment as a distribution site for his crack cocaine, and that he subsequently

rented the Tyler Street apartment “because there was too much police activity” at

Buchanan Street.

C. Search of Tyler Street Apartment

During this same police interrogation, Detective Wilde and HPD Detective

Chris Christianson asked Bruce Bell for consent to search the Tyler Street

apartment. The front apartment at 6205 Tyler Street had three doors: one front

door, one door in the front of the carport, and one rear door at the back of the

building. Bruce Bell indicated that officers should enter the rear door of the front

Tyler Street apartment instead of the front door, and Detective Christianson wrote

“rear” on the search consent form. Bruce Bell said that officers at his arrest took

the key to the rear door of the front Tyler Street apartment from his pocket. Bruce

Bell signed the search consent form in the presence of Detective Wilde and

Detective Christianson.

Detective Wilde then informed HPD Officer Dennis Wynne, who was at the

scene, that he had consent to search the Tyler Street apartment. Officer Wynne

opened the rear door to the front apartment at 6205 Tyler Street using one of the

keys that had been found in Bruce Bell’s pockets, and HPD officers found a safe.

HPD officers used another key that had been found in Bruce Bell’s pockets to open

the safe. Inside the safe, HPD officers found crack cocaine and plastic baggies. A

5
shoe box next to the safe also contained plastic baggies and a digital scale.

D. Bruce Bell’s Second Arrest

Following defendant Bruce Bell’s arrest on September 17, 2004, he was

released on bond. The federal government reviewed the case and issued a federal

arrest warrant for Bruce Bell on October 13, 2004. On that day, Fort Lauderdale

Police Department officers pulled over Bruce Bell’s car in a traffic stop and

arrested him pursuant to the federal arrest warrant. Officers seized about 7.5

ounces of cocaine powder from the center console and $6,000 in cash from the

trunk.

Federal DEA officers, who were present at the arrest, advised Bruce Bell of

his Miranda rights, which he waived. Bruce Bell then told DEA Special Agent

Jason Gifford that the 7.5 ounces of cocaine powder was his and that the $6,000 in

cash was proceeds from drug sales. Bruce Bell admitted that he had delivered two

ounces of cocaine to the Tyler Street apartment two days prior to his arrest. Bruce

Bell also confessed that he had hired a cousin, Central Williams, to sell crack

cocaine from the Tyler Street apartment.

A federal grand jury returned a two-count indictment against Anthony Bell,

Bruce Bell, and Curtis Sheffield, charging them with conspiracy to possess with

intent to distribute fifty grams or more of crack cocaine, in violation of 21 U.S.C.

§§ 846 and 841(a)(1) (Count 1), and possession with intent to distribute fifty grams

6
or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 2).

E. Suppression Hearing

Bruce Bell filed a motion to suppress the drugs and drug paraphernalia

seized at the Tyler Street apartment. Bruce Bell’s main contention was that there

were two separate apartments at 6205 Tyler Street: a front apartment and a rear

apartment. Bruce Bell argued that he had provided written consent to search the

separate rear Tyler Street apartment, which had no connection to the drug

operation, but not consent to search the front Tyler Street apartment where the safe

and drugs were found using keys from his pockets.

At the suppression hearing, Bruce Bell testified that he only entered the front

Tyler Street apartment on the day of his initial arrest to help his cousin Sheffield

move furniture. He denied ever having keys to the front Tyler Street apartment

and insisted that he had no keys in his possession upon his arrest. According to

Bruce Bell, Detective Christianson asked to search the rear Tyler Street apartment,

and Bruce Bell responded, “I don’t care what you do. It’s not my apartment.”

HPD Detective Christianson testified about his interrogation of Bruce Bell at

the police station following the September 17, 2004 arrest. Bruce Bell advised

Detective Christianson that HPD officers had taken his keys to the Tyler Street

apartment. After speaking with officers who were outside the Tyler Street

apartment, Detective Christianson asked Bruce Bell if his key would open the front

7
door of the Tyler Street apartment, and Bruce Bell replied that the key opened the

rear door. Detective Christianson testified that he then wrote “rear” on the search

consent form to indicate that the key opened the rear door. Detective Christianson

did not know that there were two apartments at 6205 Tyler Street, and no “rear”

apartment was discussed with Bruce Bell.

The district court found that Bruce Bell lacked standing based on his own

testimony that he did not rent the front apartment. Alternatively, the district court

determined that even if standing existed, Bruce Bell “freely and voluntarily”

consented to a search of the Tyler Street apartment, no limit was placed on the

scope of the consent, and the “Hollywood Police could reasonably interpret the

consent to encompass both the rear and front area of 6205 Tyler Street.” The court

thus denied the motion to suppress.

F. Trial

During the jury trial, the government presented testimony from the managers

of the Buchanan Street and Tyler Street apartments. Dennis H. Brooks, the owner

of the Buchanan Street apartment, identified Bruce Bell as the Buchanan Street

apartment tenant. The government showed Brooks the driver’s license found on

Bruce Bell at his arrest, and Brooks stated that Bruce Bell showed him the same

license upon entering into the lease. Lydia Zambrana, the property manager for the

Tyler Street apartment, testified that the man depicted on this driver’s license

8
“looked like” the man who signed the rental application.

HPD Detective John Kidd and Officer Wynne described the investigation

into the Buchanan Street drug trafficking operation. Officer Wynne described the

process for cooking cocaine powder into crack cocaine and noted that crack

cocaine is frequently sold as a “cookie,” which typically contains about twenty-

eight grams of crack cocaine. Both officers testified that based on their

observations of people regularly entering and leaving the Buchanan Street

apartment and information provided by informants, they suspected narcotics

dealing in the apartment. A confidential informant also made several controlled

purchases of narcotics at the Buchanan Street apartment in the weeks prior to

Bruce Bell’s initial arrest.

Detective Kidd and Officer Wynne also testified about their participation in

the raid and search conducted on September 17, 2004.2 Officer Wynne described

the items found in the Buchanan Street apartment, and Detective Kidd testified that

he found the “Brian Elliot King” driver’s license and a set of keys in Bruce Bell’s

pockets.

After obtaining consent to search the Tyler Street apartment, Officer Wynne

2
The government also presented testimony from officers who executed the search warrant
at the Buchanan Street apartments. HPD swat team members Jason Thomas and John Graham
testified that they saw Bruce Bell throw crack cocaine into the Buchanan Street bedroom closet
as he attempted to flee out the back door.

9
used one of the keys taken from Bruce Bell to open the rear door to the front Tyler

Street apartment. Detective Kidd and Officer Wynne described the drugs and drug

paraphernalia found in the Tyler Street apartment.

HPD Detective Wilde and DEA Agent Gifford also testified about Bruce

Bell’s incriminating statements after his two arrests. After the September 17, 2004

arrest, Detective Wilde testified that Bruce Bell confessed that he began selling

crack cocaine in August 2003 and started “purchasing larger and larger amounts of

powder cocaine to cook into crack” after his operation became successful.

According to Detective Wilde, Bruce Bell admitted to purchasing kilograms of

cocaine powder for $22,000 per kilogram to cook into crack cocaine. Following

Bruce Bell’s federal arrest on October 13, 2004, Agent Gifford testified that Bruce

Bell admitted that the 7.5 ounces of cocaine powder found in the car was his and

that the money found in his trunk was from drug proceeds.

Matthew Mulligan, a DEA forensic chemist, testified that in total, there were

91.22 grams of cocaine base and 201.9 grams of cocaine powder seized from the

two apartments and Bruce Bell’s vehicle.

The government also presented the testimony of codefendant Sheffield.3

Sheffield, the half-brother of Anthony Bell and cousin of Bruce Bell, testified that

3
Sheffield pled guilty and was ultimately sentenced to 30 months’ imprisonment after his
trial testimony.

10
Bruce Bell trained him to be his money collector for drug deliveries. Beginning in

January 2004, Sheffield rode with Bruce Bell while making deliveries of crack

cocaine. According to Sheffield, Bruce Bell cooked cocaine powder into crack

cocaine and delivered crack cocaine to his approximately fifty-two or fifty-three

customers. Following the delivery, Sheffield would collect an average of $350

from each of Bruce Bell’s customers for half a cookie of crack cocaine each day,

resulting in daily proceeds of $18,000 to $19,000 five days a week.

In June 2004, Bruce Bell told his co-conspirators that Anthony Bell would

be handling future crack cocaine deliveries. Bruce Bell also hired Gustavo Fields

to sell crack cocaine in the Buchanan Street apartment because he believed that

Gustavo’s young age would result in light punishment if police ever raided his

operation. Sheffield also helped sell crack cocaine at the Buchanan Street

apartment. Sheffield testified that Anthony and Bruce Bell managed the drug

operation there. According to Sheffield, Bruce Bell possessed an uzi-like gun, and

Sheffield saw Anthony Bell in possession of a gun on one occasion. Sheffield

described Bruce Bell’s efforts to avoid detection, including the use of surveillance

cameras at both apartments and a bucket of boric acid kept on the premises to

dissolve crack cocaine in case of a police raid. After Sheffield agreed to cooperate

with prosecutors following his arrest, he received a threatening phone call from

Bruce Bell warning him not to cooperate.

11
 On cross-examination, defense attorneys impeached Sheffield’s testimony

by noting, inter alia, his prior false statements, his drug use, and his juvenile

convictions.

After the government rested, Anthony and Bruce Bell presented no

witnesses on their behalf. At the conclusion of trial, the jury convicted Anthony

and Bruce Bell on both counts.

G. Sentencing of Bruce Bell

Because the jury found Bruce Bell guilty of drug offenses involving fifty

grams or more of crack cocaine, Bruce Bell’s convictions (as charged in the

indictment and found by the jury) subjected him to a mandatory minimum sentence

of ten years’ imprisonment and a statutory maximum sentence of life imprisonment

under 21 U.S.C. § 841(b)(1)(A). The presentence investigation report (“PSI”) for

Bruce Bell set his base offense level at 38, pursuant to U.S.S.G. § 2D1.1(c)(1),

because his conspiracy offense involved the distribution of more than 1.5

kilograms of crack cocaine.4 The PSI recommended that Bruce Bell’s offense level

be increased by: (1) 2 levels, pursuant to § 2D1.1(b)(1), based on his possession of

a dangerous weapon; (2) 4 levels, pursuant to § 3B1.1(a), based on his leadership

4
The PSI reached this calculation based on Sheffield’s testimony that Bruce Bell
delivered half a cookie of crack cocaine to about fifty-two customers each day, five days a week,
for several months. According to Officer Wynne, a whole cookie contains roughly twenty-eight
grams of crack cocaine.

12
role in a criminal activity involving five or more participants; (3) 2 levels, pursuant

to § 3B1.4, based on his use of a minor, Fields, to commit the offense; and (4) 2

levels, pursuant to § 3C1.1, based on obstruction of justice. Although these

adjustments increased the offense level to 48, the PSI assigned Bruce Bell a total

offense level of 43, the maximum allowable under the guidelines. See U.S.S.G. ch.

5, pt. A, cmt. n.2. With a total offense level of 43 and a criminal history category

of VI, the advisory guidelines range was life imprisonment.

The PSI also listed Bruce Bell’s six prior felony drug offenses.5 Pursuant to

21 U.S.C. § 841(b)(1)(A), a person convicted of a § 841(a) drug offense after “two

or more prior convictions for a felony drug offense . . . shall be sentenced to a

mandatory term of life imprisonment . . . .” 21 U.S.C. § 841(b)(1)(A). Therefore,

Bruce Bell’s § 841(a) conviction along with the prior felony drug offenses

triggered a mandatory sentence of life imprisonment.

At sentencing, the district court denied Bruce Bell’s objections to (1) the 2-

level enhancement for his possession of a dangerous weapon because Sheffield’s

testimony established that Bruce Bell had a firearm; (2) the 4-level enhancement

5
The PSI noted that, pursuant to U.S.S.G. § 4B1.1, Bruce Bell was a career offender
because at least two of his prior felony convictions were for a crime of violence or drug
trafficking crime. However, because the career offender offense level of 37 was less than the
otherwise applicable offense level of 48, the PSI recommended that the greater offense level of
48 be applied.
In the district court, Bruce Bell did not contest that he had the six prior felony drug
offenses listed in the PSI.

13
for his leadership role because Sheffield’s testimony and Bruce Bell’s own

statements indicated that his drug trafficking operation included Anthony Bell,

Sheffield, Fields, Central Williams, and Dawn Ariquette; and (3) the 2-level

enhancement for his use of a minor because Sheffield testified that Bruce Bell had

hired Fields. The district court found that Bruce Bell had an offense level of 43

and a criminal history category of VI, resulting in an advisory guidelines’ sentence

of life imprisonment. After noting its consideration of the sentencing factors in 18

U.S.C. § 3553(a), the district court sentenced Bruce Bell to life imprisonment and

ten years’ supervised release.

H. Sentencing of Anthony Bell

Because the jury found Anthony Bell guilty of drug offenses involving fifty

grams or more of crack cocaine, Anthony Bell’s convictions (as charged in the

indictment and found by the jury) also subjected him to a mandatory minimum

sentence of ten years’ imprisonment and a statutory maximum sentence of life

imprisonment under 21 U.S.C. § 841(b)(1)(A). The PSI for Anthony Bell set his

base offense level at 38 based on the distribution of more than 1.5 kilograms of

crack cocaine. See U.S.S.G. § 2D1.1(c)(1). The PSI also recommended a 2-level

increase, pursuant to § 2D1.1(b)(1), based on possession of a dangerous weapon,

and a 2-level increase, pursuant to § 3C1.1, based on obstruction of justice, for a

total offense level of 42.

14
 Pursuant to U.S.S.G. § 4B1.1, Anthony Bell was considered a career

offender because he had two prior felony convictions for a crime of violence.

Although his career offender status did not affect his offense level because he had a

higher, otherwise applicable offense level of 42, his career offender status raised

his criminal history category from V to VI, pursuant to § 4B1.1(b). With a total

offense level of 42 and a criminal history category of VI, Anthony Bell’s advisory

guidelines range was 360 months’ to life imprisonment.

At sentencing, the government presented the testimony of several witnesses.

Richard O’Connor testified that he assisted an undercover purchase of crack

cocaine from Anthony and Bruce Bell. Later that day, O’Connor returned to the

Buchanan Street apartment, and Anthony and Bruce Bell accused him of being a

snitch and brandished guns. O’Connor testified that Anthony and Bruce Bell drove

him to a remote area, and Anthony Bell shot him in the chest. O’Connor survived

the shooting and escaped into the woods. According to O’Connor, he later saw

Anthony Bell in the Broward County Jail in September 2004, and Anthony Bell

offered to pay him money not to testify.

DEA Agent Joanne Molina testified that following Anthony and Bruce

Bell’s guilty verdicts, Anthony Bell made a threatening phone call to Sheffield’s

house in which he stated that he was going to hurt Sheffield and his girlfriend

because of Sheffield’s cooperation.

15
 Following this testimony, the district court denied all of Anthony Bell’s

objections. First, the district court concluded that the retroactive application of

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), did not violate ex

post facto principles in the Due Process Clause. Second, the district court

determined that Anthony Bell qualified as a career offender, pursuant to U.S.S.G. §

4B1.1, because his two prior convictions for carrying a concealed weapon

constituted crimes of violence.

Third, although the district court found insufficient evidence of Anthony

Bell’s alleged threatening phone call to Sheffield’s house following the guilty

verdict, the district court determined that sufficient testimony supported

enhancements for possession of a dangerous weapon and obstruction of justice.

The district court considered Anthony Bell’s request for a variance from the

advisory guidelines range based on (1) a racial disparity in the crack-to-powder

cocaine sentencing ratio; (2) a sentencing disparity between Anthony Bell and

codefendant Sheffield; and (3) an over-representation of his criminal history. The

district court denied this variance request in light of the sentencing factors in 18

U.S.C. § 3553(a). The district court found that Anthony Bell had an offense level

of 42 and a criminal history category of VI, and it sentenced him to 360 months’

imprisonment, the low end of the advisory guidelines range, and five years’

supervised release.

16
 Bruce Bell filed a timely appeal of his convictions and sentences, and

Anthony Bell appeals his sentences.

II. DISCUSSION

A. Bruce Bell’s Challenge to His Convictions

On appeal, defendant Bruce Bell challenges his convictions and sentences.

In his challenge to his convictions, Bruce Bell raises these assignments of error: (1)

evidence seized from the front Tyler Street apartment should have been suppressed

because the search exceeded the scope of his consent;6 (2) Bruce Bell’s post-arrest

statements to Agent Gifford should not have been admitted because the

government failed to furnish these statements before trial, pursuant to Fed. R.

Crim. P. 16;7 (3) Bruce Bell’s post-arrest statements to Detective Wilde, after he

allegedly invoked his right to counsel, should not have been admitted;8 (4) in-court

identifications by Brooks, Sheffield, and Zambrana should not have been admitted

6
The district court’s denial of a motion to suppress presents a mixed question of law and
fact: we review the district court’s factual findings for clear error, and the application of the law
to those facts de novo. United States v. Perez, 443 F.3d 772, 774 (11th Cir. 2006).
7
Where a defendant fails to object to alleged evidentiary errors in the district court, we
review the district court’s evidentiary rulings for plain error. United States v. Turner, __ F.3d
__, No. 05-14388, 2007 WL 64430, at *9 (11th Cir. Jan. 11, 2007). “Plain error occurs where
(1) there is an error; (2) that is plain or obvious; (3) affecting the defendant’s substantial rights in
that it was prejudicial and not harmless; and (4) that seriously affects the fairness, integrity, or
public reputation of the judicial proceedings.” United States v. Raad, 406 F.3d 1322, 1323 (11th
Cir.), cert. denied, 126 S. Ct. 196 (2005) (quotation marks omitted).
8
When a defendant fails to object to an alleged Miranda violation in the district court, we
review the alleged violation for plain error. See United States v. Schier, 438 F.3d 1104, 1106 n.1
(11th Cir. 2006).

17
because of an unduly suggestive identification procedure;9 and (5) the government

presented insufficient evidence that Bruce Bell participated in a conspiracy to

possess with intent to distribute crack cocaine because, inter alia, Sheffield’s

testimony was incredible as a matter of law.10

After careful review of the record, as well as the arguments of both parties

presented in their briefs and at oral argument, we conclude that all of Bruce Bell’s

challenges to his convictions lack merit. Only his first claim challenging the

search of the front Tyler Street apartment warrants further discussion.

On appeal, Bruce Bell contends that he has standing to challenge the search

of the front Tyler Street apartment because the government presented testimony

from Zambrana that Bruce Bell was the leaseholder, despite Bruce Bell’s

suppression hearing testimony that he did not lease the apartment. Alternatively,

Bruce Bell asserts that he has Fourth Amendment standing as an overnight guest in

the front Tyler Street apartment.

In order to establish standing to challenge a search under the Fourth

Amendment, a defendant bears the burden of demonstrating a legitimate

9
In this case, defendant Bruce Bell failed to challenge these in-court identifications in the
district court, and we thus review the admission of these identifications for plain error. See
Turner, 2007 WL 64430, at *9.
10
We review a challenge to the sufficiency of the evidence de novo, and view all evidence
and make all reasonable inferences in the light most favorable to the government. See United
States v. Greer, 440 F.3d 1267, 1271 (11th Cir. 2006).

18
expectation of privacy in the area searched. See United States v. Cooper, 133 F.3d

1394, 1398 (11th Cir. 1998). A person has a legitimate expectation of privacy if

(1) he or she has a subjective expectation of privacy, and (2) society is prepared to

recognize that expectation as objectively reasonable. See United States v.

Miravalles, 280 F.3d 1328, 1331 (11th Cir. 2002).

In this case, Bruce Bell testified at the suppression hearing, and maintains on

appeal, that he was not the leaseholder of the front Tyler Street apartment and that

his only connection to the apartment was a visit to help Sheffield move furniture.

As a result of Bruce Bell’s repeated denials of any ownership of the front Tyler

Street apartment, he has expressly disclaimed a subjective expectation of privacy in

the premises. See Rakas v. Illinois, 439 U.S. 128, 134, 99 S. Ct. 421, 425 (1978)

(“A person who is aggrieved by an illegal search and seizure only through the

introduction of damaging evidence secured by a search of a third person’s premises

or property has not had any of his Fourth Amendment rights infringed.”). Bruce

Bell cannot adopt the government’s evidence that he leased the front Tyler Street

apartment for the limited purpose of establishing standing while challenging the

validity of this same evidence. Notwithstanding the government’s evidence to the

contrary, Bruce Bell has consistently denied any leasehold or interest in the front

Tyler Street apartment, and we thus conclude that the district court’s finding that

he lacked a subjective expectation of privacy was not clearly erroneous.

19
 Bruce Bell’s contention that he has Fourth Amendment standing because he

was an overnight guest in the front Tyler Street apartment also is unavailing. The

Supreme Court has recognized that overnight guests in the homes of third persons

can have a reasonable expectation of privacy in those premises. See Minnesota v.

Olson, 495 U.S. 91, 96-97, 110 S. Ct. 1684, 1688 (1990). In order to establish a

reasonable expectation of privacy, however, Bruce Bell would have to prove that

he was a guest for personal reasons, not for a commercial purpose. See Minnesota

v. Carter, 525 U.S. 83, 90-91, 119 S. Ct. 469, 474 (1998).

Here, the government provided ample testimony establishing that Bruce Bell

used the front Tyler Street apartment in his drug operation. According to HPD

Detective Wilde and DEA Agent Gifford, Bruce Bell twice confessed that he used

the front Tyler Street apartment as a distribution site for crack cocaine after the

Buchanan Street apartment attracted too much police attention. Accordingly,

Bruce Bell had no reasonable expectation of privacy as an overnight guest because

he was using the apartment primarily for commercial purposes. See United States

v. Cooper, 203 F.3d 1279, 1285 n.3 (11th Cir. 2000) (noting that defendants likely

would lack standing as overnight guests because evidence suggested that they were

using the premises predominately to engage in narcotics trafficking).

Even if Bruce Bell had established Fourth Amendment standing, the district

court determined that the search was within the scope of his consent. Bruce Bell

20
argues that the government exceeded the scope of his consent to search because he

only consented to a search of the rear Tyler Street apartment. He contends that the

“6205 Tyler St. (rear)” notation on the search consent form indicates that he only

provided consent to search the rear Tyler Street apartment, which was not leased

by or connected to him. However, HPD Detective Christianson, who prepared the

search consent form, explained that he asked Bruce Bell how officers on the scene

should enter the Tyler Street apartment, and Bruce Bell replied that a key found in

Bruce Bell’s pockets upon arrest opened the rear door. Detective Christianson then

wrote “rear” on the search consent form to indicate that Bruce Bell’s key opened

the rear door. Based on Detective Christianson’s explanation of his own notation,

we conclude that the district court did not clearly err in finding that HPD officers

could reasonably interpret the scope of Bruce Bell’s consent to cover the entire

front Tyler Street apartment.

B. Bruce Bell’s Sentencing Claims

In addition to his challenge to his convictions, Bruce Bell also claims that

the district court erred in sentencing. We first address Bruce Bell’s two claims of

Booker error, which were raised for the first time on appeal.11

11
When a defendant fails to raise a Booker challenge in the district court, we review for
plain error. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 545
U.S. 1127, 125 S. Ct. 2935 (2005).

21
 By way of adoption, Bruce Bell argues that the application of the remedial

holding in Booker constituted an ex post facto violation because Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004) was the controlling law when

he committed his offenses. Because Bruce Bell committed his offenses after

Blakely but before Booker was decided, he argues that he had no fair warning that

he would be sentenced under Booker’s advisory guidelines regime with judicial

factfinding.

We have repeatedly rejected similar ex post facto challenges to the

retroactive application of Booker’s remedial holding. See, e.g., United States v.

Hunt, 459 F.3d 1180, 1181 n.1 (11th Cir. 2006) (rejecting an identical ex post facto

claim when the unlawful conduct occurred after Blakely but before Booker);

United States v. Thomas, 446 F.3d 1348, 1354-55 (11th Cir. 2006) (finding that

defendant had sufficient warning of his potential sentence because of the statutory

maximum), United States v. Martinez, 434 F.3d 1318, 1323-24 (11th Cir.) (same),

cert. denied, __ U.S. __, 126 S. Ct. 2946 (2006). In this case, Bruce Bell had

ample warning that life imprisonment was a possible consequence of his unlawful

conduct. Because Bruce Bell had more than two prior felony drug convictions and

the instant offenses involved more than 50 grams of crack cocaine, he faced a

mandatory sentence of life imprisonment. See 21 U.S.C. § 841(a)(1), (b)(1)(A).

Moreover, because Blakely never applied to the federal sentencing guidelines, the

22
guidelines in effect when Bruce Bell committed the offenses informed him that the

district court could engage in factfinding. See Martinez, 434 F.3d at 1324; see also

Blakely, 542 U.S. at 305 n.9, 124 S. Ct. at 2538 n.9 (“The Federal Guidelines are

not before us, and we express no opinion on them.”). Accordingly, Bruce Bell was

on notice that he could receive a life sentence when he committed his offenses, and

we find no ex post facto violation.

Bruce Bell also contends that the district court plainly erred under Booker in

applying sentencing enhancements that were neither charged in the indictment nor

found by the jury. In sentencing Bruce Bell, the district court clearly indicated that

it applied the guidelines in an advisory fashion. When the district court applies the

guidelines in an advisory manner, nothing in Booker prohibits the district court

from imposing sentencing enhancements based on judicial factfinding by a

preponderance of the evidence. United States v. Chau, 426 F.3d 1318, 1323-24

(11th Cir. 2005); United States v. Rodriguez, 398 F.3d 1291, 1301-02 (11th Cir.),

cert. denied, 545 U.S. 1127, 125 S. Ct. 2935 (2005).

Bruce Bell also argues that the district court erred in applying a 2-level

enhancement for possession of a firearm, pursuant to U.S.S.G. § 2D1.1(b)(1).12

Specifically, Bruce Bell argues that the government failed to establish that Bruce

12
We review a district court’s application and interpretation of the sentencing guidelines
de novo, but its factual findings must be accepted unless clearly erroneous. See United States v.
Ellis, 419 F.3d 1189, 1192 (11th Cir. 2005).

23
Bell possessed a firearm in connection with his offenses.

If evidence establishes that a defendant possessed a firearm, the district court

may apply a 2-level enhancement under § 2D1.1(b)(1) “unless it is clearly

improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1

cmt. n.3. Once the government shows that a firearm was present, the burden shifts

to the defendant to show that a connection between the firearm and the offense is

“clearly improbable.” See United States v. Pham, 463 F.3d 1239, 1245 (11th Cir.

2006) (quotation marks omitted). In this case, the government provided

uncontested testimony from co-conspirator Sheffield that Bruce Bell possessed an

uzi-like gun. Bruce Bell provided no evidence or argument that a connection

between this gun and his drug conspiracy offense is “clearly improbable.”

Moreover, we have recognized that “‘guns are a tool of the drug trade. There is a

frequent and overpowering connection between the use of firearms and narcotics

traffic.’” Id. at 1246 (quoting United States v. Cruz, 805 F.2d 1464, 1474 (11th

Cir.1986)). In light of the clear connection between the use of firearms and drug

conspiracies, the district court did not abuse its discretion in applying the 2-level

enhancement for possession of a firearm.

Even if the district court had erred in applying the enhancement, any such

error is harmless. Even excluding the 2-level enhancement, Bruce Bell still would

have a total offense level of 43, the maximum allowable under the guidelines. See

24
U.S.S.G. ch. 5, pt. A, cmt. n.2. Above all, any error in applying the guidelines is

harmless because Bruce Bell was subject to a statutory mandatory life sentence

based on the drug quantity charged in the indictment and found by the jury and his

multiple prior felony drug convictions. See 21 U.S.C. § 841(a)(1), (b)(1)(A).

Finally, by way of adoption, Bruce Bell challenges the reasonableness of his

life sentence in light of the 18 U.S.C. § 3553(a) factors.13 After Booker, in

determining a reasonable sentence, a district court must consider the correctly

calculated advisory guidelines range and the factors in § 3553(a). See Booker, 543

U.S. at 258-64, 125 S. Ct. at 764-67; United States v. Talley, 431 F.3d 784, 786

(11th Cir. 2005). The party who challenges the sentence bears the burden of

showing that it is unreasonable. United States v. Bonilla, 463 F.3d 1176, 1180

(11th Cir. 2006). Although a sentence within the advisory guidelines range is not

per se reasonable, “ordinarily we would expect a sentence within the Guidelines

range to be reasonable.” Talley, 431 F.3d at 788.

After review, we conclude that Bruce Bell fails to show that his life sentence

is unreasonable. The district court correctly calculated his advisory guidelines

range and stated that it had considered the statements of all parties, as well as the §

3553(a) factors. Most importantly, the district court was required by statute to

13
We review sentences imposed under an advisory guidelines system for reasonableness.
See United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005).

25
sentence Bruce Bell to a mandatory term of life imprisonment. See 21 U.S.C. §

841(a)(1), (b)(1)(A); see also United States v. Shelton, 400 F.3d 1325, 1333 n.10

(11th Cir. 2005) (concluding that post-Booker, district courts are still bound by the

statutory minimum sentence).

For all these reasons, we affirm Bruce Bell’s life sentence.

C. Anthony Bell’s Sentencing Claims

Anthony Bell raises several challenges to his 360-month sentence. We first

address his claim that the district court erroneously determined that he was a career

offender, pursuant to U.S.S.G. § 4B1.1.

Anthony Bell argues that the district court erred in concluding that he was a

career offender under § 4B1.1 because his two prior convictions for carrying a

concealed firearm do not constitute “crimes of violence.” A district court generally

may enhance a defendant’s sentence as a career offender if (1) the defendant was at

least eighteen years old at the time of the instant offense of conviction; (2) the

instant offense of conviction is a felony that is either a “crime of violence” or a

controlled substance offense; and (3) the defendant has at least two prior felony

convictions for either a “crime of violence” or a controlled substance offense.

U.S.S.G. § 4B1.1(a). A felony conviction punishable for a term exceeding one

year constitutes a crime of violence if it “has as an element the use, attempted use,

26
or threatened use of physical force against the person of another” or “is burglary of

a dwelling, arson, or extortion, involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of physical injury to another.”

U.S.S.G. § 4B1.2(a).

Anthony Bell does not dispute that he has two prior felony convictions for

carrying a concealed weapon. Moreover, he acknowledges that we have previously

concluded that carrying a concealed weapon is a crime of violence for purposes of

the career-offender guideline. See United States v. Adams, 316 F.3d 1196, 1197

(11th Cir. 2003); United States v. Gilbert, 138 F.3d 1371, 1372 (11th Cir. 1998).

Although Anthony Bell asks this Court to reconsider this binding precedent, a prior

panel opinion may only be overruled by the Supreme Court or by this Court sitting

en banc. See Adams, 316 F.3d at 1197 n.1. Following our precedent, Anthony

Bell’s two prior felony convictions for carrying a concealed weapon constitute

“crimes of violence.” Accordingly, the district court did not err in applying the

U.S.S.G. § 4B1.1 career-offender enhancement.14

Anthony Bell also contends that his 360-month sentence is unreasonable in

light of the § 3553(a) factors. Specifically, he asserts that a lesser sentence is

14
Additionally, we note that even if the district court had erred in applying the § 4B1.1
enhancement, any error would be harmless. Even without the § 4B1.1 enhancement, Anthony
Bell would have a criminal history category of V and a total offense level of 42, resulting in the
same advisory guidelines range of 360 months’ to life imprisonment.

27
warranted because (1) the offense was merely a neighborhood drug distribution,

not a large-scale operation; (2) he had a troubled upbringing with a single mother

addicted to drugs; and (3) he would benefit from rehabilitation.

After review, we conclude that Anthony Bell has not proven that his 360-

month sentence is unreasonable. The district court correctly calculated his

advisory guidelines range and indicated that it had considered several § 3553(a)

factors, including (1) the nature and circumstances of the offense, 18 U.S.C. §

3553(a)(1); (2) the history and characteristics of the defendant, id.; and (3) the need

to avoid unwarranted sentencing disparities among codefendants, id. § 3553(a)(6).

Although the district court did not explicitly discuss each § 3553(a) factor, it was

not required to engage in a detailed, step-by-step analysis of every factor. See

United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). Moreover, we

ordinarily expect a sentence within the advisory guidelines range to be reasonable,

and Anthony Bell was sentenced at the low end of the guidelines range. See

Talley, 431 F.3d at 788.15

15
Anthony Bell also raised the identical ex post facto and extra-verdict enhancements
challenges in district court and on appeal that Bruce Bell adopted on appeal. We review de novo
a claim that a defendant’s sentence violated ex post facto principles. See Thomas, 446 F.3d at
1351. As discussed above, we have previously rejected an ex post facto challenge to the
retroactive application of Booker’s remedial holding when the offense conduct occurred after
Blakely but before Booker. See Hunt, 459 F.3d at 1181 n.1. Additionally, we have recognized
that a district court may impose sentencing enhancements based on judicial factfinding after
Booker when the district court applies the guidelines in an advisory fashion. See Chau, 426 F.3d
at 1323-24.

28
 For all these reasons, we affirm Anthony Bell’s sentences.

III. CONCLUSION

Accordingly, we affirm Bruce Bell’s convictions and sentences, and we

affirm Anthony Bell’s sentences.

AFFIRMED.

29