[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 30, 2008
No. 08-10247 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00115-CR-2-RDP-PWG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CALVIN FITZGERALD TANNEHILL,
a.k.a. Eric Fitzgerald Tannehill,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(December 30, 2008)
Before ANDERSON, CARNES, and MARCUS, Circuit Judges
PER CURIAM:
Calvin Fitzgerald Tannehill appeals his convictions and sentences for
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1),
possession with the intent to distribute five grams or more of a mixture and
substance containing a detectable amount of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B), and possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Tannehill was
sentenced to 295 months imprisonment. After review, we affirm.
I.
The Bureau of Alcohol, Tobacco, and Firearms suspected Calvin Fitzgerald
Tannehill of dealing drugs and illegally possessing a variety of guns. On March
15, 2007, ATF agents executed a search warrant on Tannehill’s residence at 601
Ozark Court in Birmingham, Alabama. In that search, the agents discovered
several guns, ammunition, digital scales with cocaine residue on them, and over
eleven grams of crack cocaine.
II.
Tannehill raises three issues on appeal. First, he contends that the district
court erred in denying his motion to suppress evidence seized from his residence at
601 Ozark Court. Second, he contends that district court erred in denying his
request for a polygraph examination. Third, he challenges the district court’s
application of a two-level sentencing enhancement for obstruction of justice under
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U.S.S.G. § 3C1.1.
A.
Tannehill’s contention that the district court erred in denying his motion to
suppress lacks merit. “Rulings on motions to suppress evidence involve mixed
questions of law and fact. We review the factual findings of the district court for
clear error and the application of the law to those facts de novo.” United States v.
Brundidge, 170 F.3d 1350, 1352 (11th Cir. 1999) (citation omitted). “[W]hen
considering a ruling on a motion to suppress, all facts are construed in the light
most favorable to the party prevailing in the district court.” United States v.
Ramirez, 476 F.3d 1231, 1235–36 (11th Cir. 2007), cert. denied, 127 S. Ct. 2924
(2007).
The evidence at issue was seized pursuant to a search warrant. Tannehill
argues that the district court erred in finding that probable cause existed to support
that search warrant. “Probable cause to support a search warrant exists when the
totality of the circumstances allow a conclusion that there is a fair probability of
finding contraband or evidence at a particular location.” Brundidge, 170 F.3d at
1352. We give deference to the magistrate court’s determination of probable
cause. See id.
Here the search warrant was supported by an affidavit from special agent
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Lamar English. Agent English’s affidavit was based on interviews with three
reliable confidential informants detailing several instances where Tannehill
possessed guns, both on his person and at his residence, and sold crack cocaine.
English corroborated that information to some extent by performing surveillance of
the Ozark Court residence and obtaining telephonic and faxed confirmation that
Tannehill was a convicted felon. Those circumstances justify the district court’s
finding that the warrant was supported by probable cause. See id. at 1354.
Because the search was pursuant to a valid search warrant, Tannehill’s motion to
suppress the evidence obtained during that search was properly denied.
B.
Tannehill’s contention that he was improperly denied a polygraph
examination also fails. His only request for a polygraph was made in a pro se
motion before trial. At a hearing on that motion, the magistrate judge informed
Tannehill that he was represented by counsel and refused to allow him to engage in
hybrid representation. During the hearing, Tannehill stated that he did not want to
proceed pro se and wanted to be represented by his current attorney. The
magistrate judge also informed Tannehill that a polygraph examination could not
be presented as substantive evidence of his innocence. The magistrate judge then
found Tannehill’s pro se motion for a polygraph moot and entered an order striking
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the motion, without objection from Tannehill or his counsel. Neither Tannehill nor
his counsel filed another motion requesting a polygraph examination.
We have repeatedly held that an individual does not have a right to hybrid
representation. See, e.g., United States v. Cross, 893 F.2d 1287, 1291–92 (11th
Cir. 1990). Whether “to permit a defendant to proceed in a hybrid fashion rests in
the sound discretion of the trial court.” United States v. LaChance, 817 F.2d 1491,
1498 (11th Cir. 1987). After reviewing the parties’ briefs and the record, we
conclude that the magistrate court did not abuse its discretion in refusing to allow
Tannehill to act as his own co-counsel. Because Tannehill elected to be
represented by counsel, the magistrate court properly struck his pro se motion for a
polygraph examination.
C.
Finally, Tannehill challenges the district court’s application of a two-level
sentencing enhancement for obstruction of justice. The Sentencing Guidelines
provide for a two-level enhancement of the defendant’s offense level “[i]f the
defendant willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice during the investigation, prosecution, or sentencing of the
instant offense.” U.S.S.G. § 3C1.1. A defendant may obstruct justice by
committing perjury. See id. cmt. n.4(b). The Supreme Court has defined perjury
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in the context of an obstruction of justice sentencing enhancement as “false
testimony concerning a material matter with the willful intent to provide false
testimony.” United States v. Dunnigan, 507 U.S. 87, 94, 113 S. Ct. 1111, 1116
(1993).
Here the district court found that Tannehill had committed perjury by
testifying that he did not commit the crimes for which he was convicted. The
district court’s “general finding that an enhancement is warranted suffices if it
encompasses all of the factual predicates necessary for a perjury finding.” United
States v. Lewis, 115 F.3d 1531, 1538 (11th Cir. 1997). “We review for clear error
the district court’s factual findings necessary for an obstruction of justice
enhancement based on perjury.” United States v. Gregg, 179 F.3d 1312, 1316
(11th Cir. 1999) (citation omitted).
After review of the record, we conclude that the district court made the
proper factual findings. It found, for example, based on a preponderance of the
evidence, that “the defendant took the stand [and] categorically denied any
participation in the drug transactions in question” and “denied his involvement,
categorically and repeatedly” in the relevant events. Because the district court
applied the guidelines in an advisory manner, it did not err in “imposing guidelines
enhancements based on facts found by the judge by a preponderance of the
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evidence.” United States v. Douglas, 489 F.3d 1117, 1129 (11th Cir. 2007)
(citations omitted).
AFFIRMED.
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