United States v. Scott Allen Rhind

                                                               [PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT                 FILED
                                                 U.S. COURT OF APPEALS
                                                   ELEVENTH CIRCUIT
                                                       APRIL 23, 2002
                                                    THOMAS K. KAHN
                          No. 01-14168                   CLERK

                D. C. Docket No. 01-00002 CR-4-RH

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

                             versus

SCOTT ALLEN RHIND,

                                         Defendant-Appellant,



                       _________________

                          No. 01-14169
                       _________________
                D.C. Docket No. 01-00002 CR-4-RH

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

                             versus

WILLARD HARRIS BRADSHAW,

                                         Defendant-Appellant,
                                ______________________

                                    No. 01-14170
                              ______________________
                          D.C. Docket No. 01-00002 CR-4-RH

UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                            versus

BRET ERIC RHIND,

                                                             Defendant-Appellant.



                     Appeals from the United States District Court
                         for the Northern District of Florida


                                      (April 23, 2002)


Before BIRCH and DUBINA, Circuit Judges, and KATZ*, District Judge.

DUBINA, Circuit Judge:



___________________________________
        *Honorable Marvin Katz, U.S. District Judge for the Eastern District of Pennsylvania,
sitting by designation.




                                    I. BACKGROUND

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      In these consolidated criminal appeals, appellants Bret Eric Rhind (“Bret”),

Scott Allen Rhind (“Scott”), and Willard Harris Bradshaw (“Willard”) (jointly

referred to as “defendants”) appeal their convictions and sentences imposed by the

United States District Court for the Northern District of Florida. A grand jury

indicted the defendants for possessing and concealing counterfeit money, in

violation of 18 U.S.C. §§ 472 and 2. Additionally, the indictment charged each

defendant with one count of possessing firearms and ammunition in and affecting

interstate commerce as a convicted felon, in violation of 18 U.S.C. §§ 922(g) and

924(a)(2). The indictment further charged Willard with transporting a stolen

vehicle in interstate commerce, in violation of 18 U.S.C. § 2312.

      Each of the defendants filed motions to suppress. Following a hearing on

the motions, the district court denied Willard and Bret’s motions and granted in

part and denied in part Scott’s motion. Subsequently, all three defendants entered

guilty pleas. The district court sentenced Willard and Bret to two 48 month

concurrent terms of imprisonment and sentenced Scott to two 29 month concurrent

terms of imprisonment.

      The record demonstrates that on December 15, 2000, Willard test drove a

1994 Oldsmobile Cutlass Sierra in Lakeland, Florida. The following day, Willard

stole the vehicle. Shortly thereafter, the defendants left Polk County, Florida, in


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the stolen vehicle. Before leaving, Scott placed a Raven .25 caliber disassembled

handgun under the rear passenger seat of the stolen vehicle and .25 caliber

ammunition in the console between the front seats. Scott also placed an unloaded

twelve-gauge shotgun under the carpet and spare tire in the trunk. Willard later

admitted to the court that he knew that the weapons were in the car the day prior to

his arrest.

       The defendants traveled throughout Florida, Alabama, Louisiana, and Texas,

passing counterfeit United States currency in $20 and $50 denominations. While

in Greenwood, Louisiana, they stole a license tag off of a vehicle.

       On the morning of December 30, 2000, law enforcement officers received

information that Willard, Bret, and possibly a third man, were in possession of a

stolen vehicle and counterfeit currency and were staying in Room 227 of a Motel 6

in Tallahassee, Florida. Officers determined that Willard had 15 felony warrants.

They also verified that the tag on the defendants’ vehicle, along with the vehicle

itself, had been stolen.

       Officers telephoned the room, asking the occupants to leave. As the

defendants left the hotel room, officers observed Bret carrying a black bag. The

officers detained and handcuffed the defendants. One of the officers looked inside




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Bret’s bag and noticed money and syringes. Later, a Secret Service agent searched

the bag and discovered a counterfeit $50 bill.

      The officers recovered fifty rounds of .25 caliber ammunition from the

stolen vehicle’s console and found the Raven .25 caliber handgun under the right

rear passenger seat. From the trunk of the car, law enforcement officers seized a

Hewlitt-Packard color printer, counterfeit bills in $20, $50, and $100

denominations, and a Stevens twelve-gauge shotgun. The officers then searched

the motel room without a warrant or defendants’ consent. The officers recovered

additional counterfeit bills, including uncut sheets of counterfeit $20 and $50 bills.

      In their presentence investigation reports (“PSI”), a United States Probation

Officer recommended that Bret and Scott receive four-level enhancements based

on their possession of firearms in connection with the underlying felony offenses.

The probation officer made this recommendation pursuant to the United States

Sentencing Guidelines (“USSG”) § 2K2.1(b)(5), which provides as follows:

      If the defendant used or possessed any firearm or ammunition in
      connection with another felony offense; or possessed or transferred
      any firearm or ammunition with knowledge, intent, or reason to
      believe that it would be used or possessed in connection with another
      felony offense, increase by 4 levels. . . .

USSG § 2K2.1(b)(5).




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      Bret and Scott objected to the enhancement, arguing that they did not use the

firearms during the trip and the firearms did not facilitate the commission of any

felony. They also argued that the presence of the firearms was merely incidental to

the counterfeiting offense. The district court overruled their objections and

imposed the four-level enhancement. The district court found (1) that Bret and

Scott's possession of the firearms was not an accident or coincidence; (2) that

while committing the counterfeiting offense, they used the car that transported the

firearms; (3) that they could have easily obtained ammunition for the shotgun; and

(4) the availability and appearance of either firearm could serve to promote their

prolonged criminal episode.

                                    II. ISSUES

      (1) Whether the district court properly denied Scott and Bret’s motions to

suppress evidence.

      (2) Whether the district court properly imposed a four-level enhancement for

each of the defendants’ possession of firearms in connection with the underlying

offenses.

                        III. STANDARDS OF REVIEW

      This court reviews a district court’s denial of a defendant’s motion to

suppress under a mixed standard of review, reviewing the district court’s findings


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of fact under the clearly erroneous standard, and the district court’s application of

the law to those facts de novo. United States v. Gil, 204 F.3d 1347, 1350 (11th Cir.

2000), cert. denied, 531 U.S. 951, 121 S.Ct. 357, 148 L.Ed.2d 287 (2000).

      This court reviews the district court’s application and interpretation of the

sentencing guidelines under the de novo standard of review, but reviews its

findings of fact for clear error. United States v. Harness, 180 F.3d 1232, 1234

(11th Cir. 1999).

                                 IV. DISCUSSION

A. Suppression Motions

      Bret and Scott argue that the district court erred when it denied their motions

to suppress evidence seized from the black bag carried by Bret and from their

motel room. They contend that under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20

L.Ed.2d 889 (1968), the officer did not have justifiable suspicion to search the

black bag. They posit that the officer could have squeezed the soft-sided bag to

determine if it contained a weapon. Thus, they contend that the officer’s search

was unlawful.

      After law enforcement officers called the motel room and told the

defendants to leave, Bret was the first to exit the motel room. As he left, he carried

a black, zippered, soft-sided bag or backpack. An officer handcuffed Bret and took


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the bag. For his own safety, the officer opened the bag and observed money and

syringes. Subsequently, a Secret Service Agent opened the bag and determined

that it contained a counterfeit $50 bill.

      In our view, the district court correctly found that the search of the black bag

was justified under Terry. When the Secret Service Agent looked into the bag and

saw syringes and money, he had probable cause to conduct a search. Moreover,

based on the totality of the circumstances, the officers had a reasonable and

objective suspicion that Bret was involved in criminal activity. The officers knew

that Willard had 15 outstanding felony warrants, but they did not know which man

was Willard. When Bret left the room carrying a bag, the officers did not know

whether he was Willard, Bret, or the third, unidentified man. The officers also

knew that the defendants had been riding in a stolen car with stolen license plates.

Thus, the officers had a reasonable articulable suspicion, based upon objective

facts, that the bag might contain a weapon or other contraband.

      Assuming, however, that the district court erred by denying the motions to

suppress based upon Terry, the contents of the bag would nevertheless have been

admissible because the officers inevitably would have discovered the evidence in a

routine inventory search following Bret’s arrest for counterfeiting. See United

States v. Khoury, 901 F.2d 948, 957-59 (11th Cir. 1990) (inventory searches must


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follow standardized procedure and not turn into a purposeful and general means of

discovering evidence of a crime). Thus, we conclude that the district court did not

err by denying the motion to suppress the bag and its contents.

      As to the warrantless search of the motel room, the district court held that

although the search was improper, the officers inevitably would have discovered

the evidence, and thus, the evidence was admissible. The defendants argue that

this ruling was error because the government failed to establish that the police

“were actively pursuing the lawful avenue of discovery when the illegality

occurred.” Id. at 960.

      Assuming, that the district court erred in concluding that the police would

inevitably have discovered the evidence, any Fourth Amendment violation would

still be subject to a harmless error analysis. Khoury, 901 F.2d at 960. The inquiry

would become “whether there is a reasonable possibility that the evidence

complained of might have contributed to the conviction.” Chapman v. California,

386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967). Here, any error was

harmless because the other evidence of guilt was so overwhelming that the

defendants suffered no prejudice from the admitted evidence. United States v.

Drosten, 819 F.2d 1067, 1072 (11th Cir. 1987).




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      The defendants drove for several days in a stolen vehicle with stolen license

plates. Officers recovered fifty rounds of .25 caliber ammunition from the stolen

vehicle’s console and found the Raven .25 caliber handgun beneath the right rear

passenger seat. From the trunk of the car, law enforcement officers seized a

Hewlitt-Packard color printer, counterfeit bills in $20, $50, and $100

denominations, and a Stevens twelve-gauge shotgun. Accordingly, we conclude

that even if the district court erred in admitting the evidence seized from the motel

room, the evidence the officers seized from the vehicle alone would have

supported the defendants’ convictions for the counterfeiting and firearms

violations. For these reasons, we affirm the district court’s denial of the

defendants’ motions to suppress.

      B. Four-Level Enhancement

      The defendants argue that the district court erred in imposing a four-level

enhancement under USSG § 2K2.1(b)(5) for their possession of firearms. They

contend that the government failed to prove, by a preponderance of the evidence,

that they possessed the firearms “in connection with” the underlying felony

offense. Rather than possessing the firearms “in connection with” the underlying

offense, the defendants argue that their possession of firearms was a mere

coincidence and unrelated to the underlying felony. We disagree.


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      The district court imposed the four-level enhancement, finding that the

defendants possessed the firearms in connection with the underlying offense and

that they did not possess the firearms by accident or coincidence. Rather, the

defendants committed the counterfeiting offense with the use of the car which

contained firearms. The defendants could have easily obtained ammunition for the

shotgun. In addition, the mere availability and appearance of the firearms could

have served to promote the defendants’ prolonged criminal episode.

      Sentencing Guideline § 2K2.1(b)(5) provides, in part, that the district court

shall impose a four-level enhancement if the defendants used or possessed any

firearm or ammunition “in connection with” another felony offense. While §

2K2.1(b)(5) does not define the phrase “in connection with,” we have held that

courts should give such phrases their ordinary meaning. United States v. McClain,

252 F.3d 1279, 1285 (11th Cir. 2001) “The Sentencing Guidelines hav[e] the force

and effect of law, [and] are to be construed as if they were a statute, giving the

words used their common meaning, absent a clearly expressed manifestation of

contrary intent.” Id. at 1285 (quoting United States v. Maria, 186 F.3d 65, 70 (2d

Cir. 1999), (alterations and emphasis in original) (quotation omitted).

      Our circuit has considered the definition of “in connection with” in other

sections of the guidelines. In United States v. Young, 115 F.3d 834 (11th Cir.


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1997), we rejected a more restrictive approach to the definition of “in connection

with” contained within USSG § 4B1.4(b)(3)(A) (1997).1 We determined that the

meaning of the phrase “in connection with,” contained within that section “merely

reflects the context of [the defendant’s] possession of the firearm.” Id. at 838.

Likewise, in United States v. Matos-Rodriguez, 188 F.3d 1300 (11th Cir. 1999), we

gave the phrase “in connection with,” contained within USSG § 2B5.1(b)(3),2 an

expansive interpretation. According to its ordinary and natural meaning, we held

that the firearm does not have to facilitate the underlying offense. Id. at 1308-09.

       Utilizing these analogous cases, we agree with the district court that enough

evidence existed to justify finding that the defendants possessed the firearms “in

connection with” the underlying felony. The fact that the guns were not loaded or

inoperable is not dispositive since criminals frequently use unloaded guns to

execute crimes. We know of no requirement that the firearms be loaded or



       1
          USSG § 4B1.4(b)(3)(A) provides that the offense level for an armed career criminal is the
greatest of:
        (3)(A) 34, if the defendant used or possessed the firearm or ammunition in
        connection with a crime of violence or controlled substance offense, as defined in §
        4B1.2(a), or if the firearm possessed by the defendant was of a type described in 26
        U.S.C. § 5845(a)[]; . . . .

       2
         USSG § 2B5.1(b)(3) provides that
       (3) If a dangerous weapon (including a firearm) was possessed in connection with
       the offense, increase by 2 levels. If the resulting offense level is less than level 13,
       increase to level 13.

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operable to meet the “in connection with” requirement. Regardless, the defendants

could have easily obtained ammunition for the shotgun to promote their

counterfeiting scheme. Further, it would be reasonable to conclude that the

presence of the firearms protected the counterfeit money from theft during the

execution of the felony. Additionally, the length of time over which the

defendants committed the crimes supports the district court’s conclusion that the

defendants possessed the guns “in connection with” the offense of counterfeiting.

      For the foregoing reasons, we affirm the defendants’ convictions and

sentences.

      AFFIRMED.




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