[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-12835 ELEVENTH CIRCUIT
APRIL 2, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-00095-CR-BAE-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN LAVOY ROBINSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(April 2, 2008)
Before ANDERSON, CARNES and HULL, Circuit Judges.
PER CURIAM:
This is Kevin Robinson’s appeal of his conviction and sentence for
possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1).
I.
On February 8, 2006, Robinson was driving on I-95 with Demond Mills in
the passenger seat. While traveling through Richmond Hill, Georgia, he passed by
Sheriff’s Deputy Mark Crowe, who was doing “criminal interdiction” on I-95.
Crowe pulled his police cruiser onto the highway and drove up behind Robinson.
At that point Robinson drove from the center lane to the right lane and back again.
Crowe then initiated a traffic stop.
After Robinson pulled the car over, he got out and went to the rear of the
vehicle. Deputy Crowe asked Robinson for his driver’s license, which Robinson
provided. Crowe then enquired who owned the car and where Robinson was
going. Robinson told Crowe that a friend of his, a stripper named “Fluff,” had lent
him the car to drive “Mouse” (Mills) to Delaware. When Crowe asked for the
car’s insurance and registration papers, Robinson told him that Mouse had them.
Crowe went to the car, asked for Mills’ real name, and requested the insurance and
registration papers. When Mills complied, Crowe saw that the insurance on the car
was valid but made out to “John Greggo.” Suspicious, Crowe called in Robinson’s
driver’s license information and asked for his criminal history. Crowe was
informed that Robinson had a criminal history for possession of cocaine. Looking
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through the car’s window, Crowe saw that the film used to tint car windows had
been peeled off and was inside the car.
Deputy Crowe informed Robinson that he was going to issue him a warning
citation for weaving between lanes. Crow then told Robinson that there were
problems with drug, gun, and money trafficking in the area and asked if he could
search Robinson’s car. Robinson refused. By this time another officer had arrived
as back-up, and Crowe asked him to call for a canine unit. This occurred about
seven or eight minutes after the initiation of the stop. A drug dog and its handler
happened to be nearby and arrived in less than a minute. The handler led the dog
around Robinson’s car, and it alerted on the rear passenger side door. The handler
searched the car and found a package with cocaine in it. There is a factual dispute
about whether Crow was still writing out the warning citation when the drug dog
arrived or had finished a few minutes before then.
After being indicted on one count of possession with intent to distribute 500
or more grams of cocaine, in violation of 21 U.S.C. § 841(a)(1), Robinson moved
to suppress the cocaine on the grounds that it was obtained as a result of an
unconstitutional search and seizure. A magistrate judge conducted an evidentiary
hearing on the suppression motion. Robinson argued that Deputy Crowe detained
him longer than necessary to issue the citation so that the drug dog could arrive and
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that this constituted an unreasonable seizure. The government called Crowe, who
testified that the drug dog arrived and had alerted to the cocaine before he had
finished issuing the warning citation. The government also called the dog handler,
who testified that Crowe and Robinson were “still interacting” when he arrived and
that the dog alerted within a minute of his arrival at the scene.
Robinson then testified on his own behalf. On direct examination, he stated
that his interaction with Deputy Crowe—receiving and signing a written warning,
talking about trafficking on I-95, and refusing consent to search the car—was over
about three minutes before the drug dog arrived. During cross-examination, the
government asked Robinson whether he had made a written statement to the police
in which he admitted knowing that the cocaine was in the car. Robinson denied
doing so, and his attorney objected on the grounds that the defense had not been
provided with the alleged statements. The court instructed the government to make
sure that the defense was provided with the statements.
The magistrate judge then issued a report and recommendation denying
Robinson’s motion to suppress, stating that “after considering the testimony and
assessing the credibility of the witnesses, [he] simply [did] not believe
[Robinson’s] version of the facts.” Robinson objected to the report and
recommendation on several grounds, including the reference to his written
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statements during cross-examination. The district court adopted the report and
recommendation in full. Robinson then conditionally pleaded guilty to possession
with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), reserving
his right to appeal the district court’s denial of his motion to suppress the evidence.
At sentencing, the government introduced two judgments of conviction
against Robinson from Florida state court. Each judgment indicated that he
pleaded nolo contendere on December 2, 1999, and each sentenced Robinson to
thirty-six months imprisonment. The first judgment adjudicated Robinson guilty
of unlawful possession with intent to sell or deliver a controlled substance, in
violation of Fla. Stat. § 893.13(1)(a)(1), and of three other crimes. The
information attached to this judgment stated that all of these crimes occurred on
July 23, 1999. The second judgment adjudicated Robinson guilty of two counts of
unlawful sale or delivery of a controlled substance, also in violation of Fla. Stat. §
893.13(1)(a)(1). The information attached to it stated that these crimes occurred on
August 2, 1999.
Based on these two documents, the district court found that Robinson had
two prior felony convictions for controlled substance offenses. On that basis it
treated him as a career offender with a base offense level of thirty-two under
United States Sentencing Guidelines § 4B1.1(b)(C) (Nov. 2006). The court then
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gave Robinson a three-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1. With an adjusted offense level of twenty-nine and a criminal
history category of VI, Robinson’s advisory guideline range was 151 to 188
months imprisonment. Taking the guideline range and the 18 U.S.C. § 3553(a)
factors into account, the district court sentenced Robinson to 156 months
imprisonment, four years of supervised release, and a special assessment of one
hundred dollars.
Robinson now appeals, contending that the district court erred by: (1)
denying his motion to suppress the cocaine; and (2) sentencing him as a career
offender.
II.
Robinson makes three arguments for why the district court erred by denying
his motion to suppress the cocaine: (1) the government’s failure to turn over
Robinson’s statements in discovery tainted the magistrate judge’s credibility
determination at the suppression hearing; (2) Deputy Crowe lacked reasonable
suspicion to initiate the traffic stop; and (3) Crowe illegally detained Robinson
after issuing the warning citation to allow time for the drug dog to arrive.
Federal Rule of Criminal Procedure 12(b)(4) governs discovery for pretrial
hearings, including suppression hearings. Fed. R. Crim. P. 12(b)(3)(C). Rule
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12(b)(4)(B) provides that, upon the defendant’s request, the government must turn
over any evidence that it would have to give to the defense under Federal Rule of
Criminal Procedure 16. Rule 16(b) in turn requires the government, upon request,
to turn over any written statements by the defendant that are in the government’s
possession.
Robinson argues that by failing to turn over his statement, the government
was able to surprise him with it and impeach his credibility during the suppression
hearing. Had the magistrate judge believed Robinson’s testimony, he would have
found a Fourth Amendment violation and suppressed the cocaine.
We review the alleged discovery violation for abuse of discretion. Cf.
United States v. Hastamorir, 881 F.2d 1551, 1559 (11th Cir. 1989) (addressing a
discovery violation under Fed. R. Crim. P. 16). A district court abuses its
discretion in deciding what remedy, if any, to provide for a Rule 12 discovery
violation only when the defendant shows that the violation “prejudiced his
substantial rights.” United States v. Rodriguez, 765 F.2d 1546, 1557 (11th Cir.
1985). Although it is unclear whether there was a Rule 12 discovery violation, we
need not decide this issue because, even if there was a violation, it did not
prejudice Robinson’s substantial rights. As we conclude below, Robinson’s
version of events, even if believed, does not establish a Fourth Amendment
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violation. Therefore, the magistrate’s credibility determination did not affect the
outcome of the suppression hearing. Given that any error was irrelevant to the
outcome, it could not have prejudiced Robinson’s substantial rights and so could
not have been reversible error.
Robinson next argues that Deputy Crowe violated his Fourth Amendment
rights by pulling him over without probable cause to believe that Robinson had
committed a crime. The Fourth Amendment protects individuals from
“unreasonable searches and seizures” by government officials, including “brief
investigatory stops of persons or vehicles.” United States v. Arvizu, 534 U.S. 266,
273, 122 S. Ct. 744, 750 (2002). We review de novo the district court’s legal
conclusions and its factual findings only for clear error. United States v. Zapata,
180 F.3d 1237, 1240 (11th Cir. 1999).
When an officer has probable cause to believe that a traffic violation has
occurred the decision to stop a vehicle will not violate the Fourth Amendment,
regardless of the officer’s subjective intent or motivation. See United States v.
Simmons, 172 F.3d 775, 778 (11th Cir. 1999). Robinson does not dispute that
Deputy Crowe saw him move from the center lane of I-95 to the right lane and
back again. Georgia law states: “A vehicle shall be driven as nearly as practicable
entirely within a single lane and shall not be moved from such lane until the driver
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has first ascertained that such movement can be made with safety.” Ga. Code Ann.
§ 40-6-48(1). Robinson’s weaving between lanes gave Crowe probable cause to
believe that this section of the Georgia traffic laws was being violated, and
therefore the traffic stop was not unreasonable.
Finally, Robinson argues that Deputy Crowe violated his Fourth
Amendment rights by detaining him longer than necessary to issue the traffic
citation. Although we normally “construe all facts in the light most favorable to
the prevailing party in the district court,” United States v. Boyce, 351 F.3d 1102,
1105 (11th Cir. 2003), we will accept the version of events that Robinson
recounted at the suppression hearing—that Crowe detained him for three minutes
while waiting for the drug dog to arrive—because it does not establish a violation
of the Fourth Amendment.
There are limited circumstances in which a law enforcement official may
prolong a traffic stop. One of these is when he has “articulable suspicion of other
illegal activity.” United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001).
We consider whether there is sufficient evidence to give rise to an “articulable
suspicion” under a totality of the circumstances test. See Boyce, 351 F.3d at 1107.
Here, given the totality of the circumstances, Deputy Crowe had grounds for an
articulable suspicion of other illegal activity. First, Robinson appeared to be
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attempting to avoid police scrutiny by changing lanes away from Crowe before the
stop. Second, Robinson’s story that he borrowed the car from a female stripper
named “Fluff” was contradicted by the car’s registration, which was made out to a
man named “John Greggo.” Third, Robinson claimed that he was giving Mills a
ride all the way from Florida to Delaware, but he did not know Mills’ real name.
Fourth, Robinson had a criminal conviction for possession of cocaine, and I-95 is a
known drug corridor. Fifth, tinted car windows may draw the attention of law
enforcement, so evidence that someone has recently removed window
tinting—such as the peeled-off tinting film that Crowe saw in the car Robinson
was driving—suggests that the car’s occupants were trying to avoid that attention.
All of this together goes beyond “an inchoate hunch,” and amounts to reasonable
suspicion. Id. (internal quotation marks omitted). Further, prolonging the
detention for three minutes under these circumstances is de minimis and does not
violate the Fourth Amendment. See Purcell, 236 F.3d at 1279 (holding that a three
minute detention during a traffic stop was de minimis under circumstances similar
to those here).
III.
Robinson’s second contention is that the district court erred by sentencing
him as a career offender under U.S.S.G. § 4B1.1(b)(C). To sentence a defendant as
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a career offender, the district court must find by a preponderance of the evidence
that:
(1) the defendant was at least eighteen years old at the time the
defendant committed 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 of either a crime of violence or a controlled
substance offense.
U.S.S.G. § 4B1.1(a).
Robinson challenges the third element, arguing that the uncertified
judgments upon which the district court relied in making its finding were
inaccurate. He maintains that he entered a plea of guilty to the reduced
charge of possession of cocaine on each count, but he does not dispute the
thirty-six month sentence. For purposes of determining criminal history
under the Sentencing Guidelines, a “felony offense” is defined as “any
federal, state, or local offense punishable by death or a term of imprisonment
exceeding one year, regardless of the actual sentence imposed.” U.S.S.G. §
4A1.2(o). Because Robinson’s sentence was more than one year for each of
his drug convictions, the offenses must have been punishable by more than
one year. Therefore, they were felonies under the guidelines, and, even if
Robinson did plead to possession of cocaine instead of the crimes listed in
the uncertified judgments of conviction, he still would qualify as a career
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offender. The district court did not err in calculating Robinson’s advisory
guideline range.
In the alternative, Robinson moves to supplement the record on appeal
with the certified copies of the judgments of conviction even though he does
not yet have those documents. We do not usually consider evidence that
was not before the district court. See Schwartz v. Millon Air, Inc., 341 F.3d
1220, 1225 n.4 (11th Cir. 2003). In any event, Robinson’s advisory
guideline range would be unaffected by what he contends that the certified
copies of the judgments show.
AFFIRMED.
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