[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Aug. 11, 2009
No. 08-14937 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00361-CR-T-30MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEREMY MAJOR,
a.k.a. Jerome Major,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 11, 2009)
Before BIRCH, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Jeremy Major appeals his jury convictions and 169-month sentence for
conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.
§ 846, and distribution of cocaine, in violation of 21 U.S.C. § 841. On appeal,
Major asserts the district court erred (1) by denying his motion to suppress and (2)
at sentencing by imposing a sentence based on more than 5 kilograms of cocaine.
I.
Major argues the district court erred in denying his motion to suppress
evidence seized from the vehicle in which he was a passenger and his post-arrest
statements. He challenges the officers’ reasonable suspicion to stop his vehicle.
Major contends a police report alleged that the arresting officers had probable
cause to stop the vehicle based on a malfunctioning brake light. He asserts Florida
law requires only two functioning brake lights, and because two of the three
vehicle brake lights were functioning, the officers did not have probable cause to
stop the vehicle.
We review a district court’s denial of a motion to suppress evidence under a
mixed standard of review. United States v. Jiminez, 224 F.3d 1243, 1247 (11th
Cir. 2000). We review “the district court’s findings of fact under the clearly
erroneous standard and the district court’s application of law to those facts de
novo.” Id. We also give due weight to the inferences that the district court and
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local law enforcement officers draw from the facts. Id. at 1248. When considering
a ruling on a motion to suppress, we must construe all facts in the light most
favorable to the party prevailing in the district court. See United States v. Behety,
32 F.3d 503, 510 (11th Cir. 1994).
In the absence of probable cause, the police may stop a car and briefly detain
it and its occupants in order to investigate a reasonable suspicion that such persons
are involved in criminal activity. Terry v. Ohio, 88 S. Ct. 1868, 1879-80 (1968);
United States v. Tapia, 912 F.2d 1367, 1370 (11th Cir. 1990). In justifying such an
intrusion, the “reasonableness” standard requires that a police officer “be able to
point to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion.” Terry, 88 S. Ct. at 1880.
“Reasonable suspicion” is determined from the totality of the circumstances,
United States v. Sokolow, 109 S. Ct. 1581, 1585 (1989), and from the collective
knowledge of the officers involved in the stop, United States v. Williams, 876 F.2d
1521, 1524 (11th Cir. 1989). “Such a level of suspicion is considerably less than
proof of wrongdoing by a preponderance of the evidence, or even the implicit
requirement of probable cause that a fair probability that evidence of a crime will
be found.” Tapia, 912 F.2d at 1370 (citations omitted). Nevertheless, the police
are required to articulate some minimal, objective justification for the stop. Id.
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The arresting officers relied on information provided to them by a reliable
confidential informant. The confidential informant’s information created a
reasonable suspicion that the car in which Major was traveling contained cocaine,
regardless of whether or not the malfunctioning brake light created a reasonable
suspicion to stop the vehicle. See United States v. Lindsey, 482 F.3d 1285, 1291
(11th Cir. 2007). Moreover, the officers observed the vehicle act consistently with
information provided by the confidential informant. United States v. Chaves, 169
F.3d 687, 691 (11th Cir. 1999). In light of these facts, the district court did not err
in finding the officers had a reasonable suspicion to stop the car. See Terry, 88 S.
Ct. at 1880. Accordingly, to the extent Major sought the suppression of the drugs
found in the car, the district court did not err in denying the motion to suppress.
Major also challenges the officers’ probable cause to arrest him. Even if the
officers’ stop of the vehicle was lawful, Major argues no evidence has been
presented that ties him to the drugs in the duffle bag, rendering his arrest unlawful
and his self-incriminating statements to the Tampa Drug Enforcement
Administration inadmissible. Major further asserts that Maryland v. Pringle, 124
S. Ct. 795, 800-01 (2003), is distinguishable from his case because, in Pringle, the
arresting officers could not attribute the drugs in the vehicle to any one defendant.
Instead, Major argues that United States v. Di Re, 68 S. Ct. 222, 228 (1948), which
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held that “[a]ny inference that everyone on the scene of a crime is a party to it must
disappear if the Government informer singles out the guilty person,” is controlling.
Because the confidential informant in Major’s case had identified Glinton, the
driver of the vehicle, as the drug dealer, Major argues, the confidential informant
had “singled out” Glinton as the guilty party, and no probable cause existed to
arrest Major.
The constitutional validity of a warrantless arrest depends upon whether, at
the moment when the arrest was made, the officer had probable cause to make the
arrest. We have held that:
For probable cause to exist, an arrest must be objectively
reasonable based on the totality of the circumstances. This
standard is met when the facts and circumstances within the
officer’s knowledge, of which he or she has reasonably trustworthy
information, would cause a prudent person to believe, under the
circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense. Although probable
cause requires more than suspicion, it does not require convincing
proof, and need not reach the same standard of conclusiveness and
probability as the facts necessary to support a conviction.
United States v. Dunn, 345 F.3d 1285, 1290 (11th Cir. 2003) (internal punctuation
marks and internal citations omitted). The Supreme Court has held that, if drugs
are found in the backseat area of a car, those drugs can be used as a basis to arrest
all of the car’s occupants because a reasonable officer could conclude that there
was probable cause to believe that any of those occupants “had knowledge of, and
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exercised dominion and control over, the [drugs].” Pringle, 124 S. Ct. at 800-01.
Here, the present case clearly falls within the scope of Pringle, as Major had
access to the contents of the duffle bag, and it could reasonably be assumed that he
had knowledge of the drugs. See Pringle, 124 S. Ct. at 800-01. Moreover, it is
probable that Major was involved with the drug transaction because he was in
Glinton’s vehicle at the precise time and place Glinton was scheduled to make a
significant cocaine sale, an unlikely situation for an unknowing passenger merely
along for the ride. Accordingly, probable cause existed for Major’s arrest, and,
thus, his statements to the police were not the product of an unlawful arrest.
Therefore, to the extent that Major sought the exclusion of his self-incriminating
statements, the district court did not err in denying the motion to suppress.
II.
Major next argues the district court erred in sentencing him based on a
finding he was responsible for 54 kilograms of cocaine. The indictment only
charged Major with possession of 500 grams of cocaine, but he was held
responsible for 54 kilograms during sentencing. He contends the district court
violated the principles of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).
We review a preserved Apprendi claim on appeal de novo, but reverse only
for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). In
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Apprendi, the Supreme Court restated the prior conviction rule, holding that
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” 120 S. Ct. at 2362-63. The “‘statutory
maximum’ for Apprendi purposes is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.” Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004) (emphasis
added). In a § 841 case in which a defendant’s ultimate sentence falls at or below
the statutory maximum penalty provided in § 841(b)(1)(C), there is no
constitutional error stemming from Apprendi, and drug quantity need not have
been submitted to a jury and proven beyond a reasonable doubt. See United States
v. Underwood, 446 F.3d 1340, 1344-45 (11th Cir.), cert. denied, 594 U.S. 903
(2006). A sentence enhancement based on a drug quantity described in a PSI does
not violate the constitution when the defendant concedes to the factual accuracy of
the presentence investigation report (PSI). United States v. Shelton, 400 F.3d
1325, 1330 (11th Cir. 2005). Failure to object to factual findings in the PSI is
deemed to be an admission of those facts. See United States v. Williams, 438 F.3d
1272, 1274 (11th Cir. 2006).
Major’s 169-month sentence did not exceed his statutory maximum, thus his
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claim that his sentence violated Apprendi lacks merit. See Underwood, 446 F.3d at
1344. Moreover, Major is deemed to have admitted to responsibility for 54
kilograms of cocaine because he failed to object to the factual findings in the PSI.
See Williams, 438 F.3d at 1274. Because Major has admitted to the drug quantity,
the district court did not violate his constitutional rights by using the admitted drug
quantity to determine his sentence. See Blakely, 124 S. Ct. at 2537; Shelton, 400
F.3d at 1330.
Based on our review of the record and the parties’ briefs, we affirm Major’s
convictions and sentence.
AFFIRMED.
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