United States v. Lopez-Garcia

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 21, 2009
No. 08-12662
THOMAS K. KAHN
________________________
CLERK

D. C. Docket No. 07-00271-CR-01-ODE-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE LOPEZ-GARCIA,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(April 21, 2009)

Before BLACK and MARCUS, Circuit Judges, and BUCKLEW,* District Judge.

*
Honorable Susan C. Bucklew, United States District Judge for the Middle
District of Florida, sitting by designation.
MARCUS, Circuit Judge:

Defendant Jorge Lopez-Garcia appeals from his conviction for having been

unlawfully found in the United States after having been previously removed and

deported, in violation of Title 8 U.S.C. §§ 1326(a) and (b)(2). The district court

denied Lopez-Garcia’s motion to suppress statements he made regarding his

immigration status to an Immigration and Customs Enforcement (“ICE”) agent

while in police custody after being arrested on unrelated drug charges. Lopez-

Garcia claims that his statements, and certain documentary evidence regarding his

immigration status, were inadmissible because they were tainted by the alleged

unconstitutionality of his initial arrest. He also argues that his statements should

have been suppressed because he was not first properly informed of his Miranda

rights. Finally, Lopez-Garcia says that the district court erred in enhancing his

sentence under the United States Sentencing Guidelines based on his prior

conviction for a firearms offense under Georgia law.

After thorough review, we affirm.

I. Factual and Procedural Background

The basic facts are these: on June 18, 2007, Police Officer Jesus Maldonado

was driving his patrol car near the intersection of Allgood Road and Birney Street

2
in Marietta, Georgia. The area is well-known for narcotics activity -- particularly

for street-level, hand-to-hand drug dealing. As Officer Maldonado turned onto

Birney Street, he observed a gold-colored four-door vehicle stopped in the right-

hand lane of the roadway. A man was seen standing outside the vehicle, leaning

into the passenger side window and speaking to the driver. As Officer

Maldonado’s cruiser approached, the man at the car’s window looked up, turned

around, and walked away; and the car drove away from the officer’s cruiser.

Officer Maldonado followed the vehicle and pulled it over a short time later,

explaining to the driver -- later determined to be Lopez-Garcia -- that he had

violated a traffic law by stopping in the roadway on Birney Street. Asked for his

driver’s license, Lopez-Garcia produced a Mexican license bearing the name

“Emanuel Sanchez-Lopez.” In response to Officer Maldonado’s questions, Lopez-

Garcia explained that he had resided in the United States for several years, and

that the person to whom he had been speaking on Birney Street was his

brother-in-law.

Officer Maldonado ran a check on the license and found that although the

driver had been issued identification in Georgia, he was unlicensed under the

name “Emanuel Sanchez-Lopez.” Maldonado returned to Lopez-Garcia’s vehicle

and asked whether he was in possession of any illegal narcotics or weapons.

3
Lopez-Garcia answered that he had no drugs or weapons, and he consented to a

search of his person and his vehicle. Under one of the vehicle’s seats, Maldonado

found a bulb-shaped glass tube containing a white residue that he believed to be

methamphetamine. At that point, Maldonado placed Lopez-Garcia under arrest for

possession of methamphetamine, and took him to the Cobb County Jail.

As part of the ordinary booking process, the Cobb County Jail ordered that

an Immigration Action Query (“IAQ”) be performed on Lopez-Garcia. The IAQ

reveals an individual’s name and aliases, his date and place of birth, as well as

other details concerning his immigration status, such as whether he had previously

been deported, removed, or excluded, and whether there was any record of his re-

entry into the country. The results of the IAQ were not received until the

following day, June 19, 2007.

On June 19 -- but before receiving the IAQ -- Sheriff’s Deputy Paul Diaz,

an officer assigned to the jail’s Immigration and Customs Enforcement unit, met

with Lopez-Garcia. As an ICE agent, Deputy Diaz’s role was to identify illegal

aliens and facilitate their removal from the country. He regularly received a list of

individuals booked at the jail who had been born outside the United States. Based

on the charges against them, and initial checks into their immigration status, Diaz

would decide which of the detainees to interview. The purpose of the interviews

4
was to determine whether the detainee had the documentation necessary to remain

in the United States. If not, Diaz would arrange for the individual to appear before

an immigration judge or, if the defendant waived his appearance, to facilitate his

removal. Notably, Diaz’s purpose was not to initiate criminal charges against

those present in the country illegally. Indeed, Diaz lacked the authority to decide

whether to bring criminal charges against any of the individuals whom he

interviewed.

Prior to meeting with the defendant, Diaz conducted a preliminary computer

search and learned that Lopez-Garcia had been born outside of the United States.

Diaz did not provide Lopez-Garcia with Miranda warnings at any point during the

interview. Rather, he explained to Lopez-Garcia that his purpose was to determine

whether he had immigration papers. Diaz informed Lopez-Garcia that if he did

not have papers, he had the option of seeing an immigration judge or being

removed. Diaz also told Lopez-Garcia that he could expedite his removal by

signing a waiver of appearance. In response to Diaz’s questions, Lopez-Garcia

stated that his name was “Emanuel Sanchez,” that he was from Mexico, and that

he was present in the United States illegally.

After the June 19, 2007 meeting, Diaz received Lopez-Garcia’s IAQ. It

indicated that Lopez-Garcia had been deported, removed, or excluded on July 12,

5
2003, and that no record of a legal entry had been found. Diaz then ordered

Lopez-Garcia’s alien file (“A-File”).1 After receiving the A-File, he questioned

Lopez-Garcia for a second time, on June 29, 2007. The second interview took

place in an ICE office within the jail. In addition to Diaz and Lopez-Garcia, the

meeting was attended by another ICE Agent, Alberto Prieto. Neither of the agents

was armed, and Lopez-Garcia appeared calm at all times. This time, Diaz read

Lopez-Garcia Miranda warnings from a standardized form, which he translated

into Spanish, and then gave Lopez-Garcia an opportunity to ask questions. Lopez-

Garcia indicated that he understood the warning and signed a form waiving his

rights. In response to Diaz’s questions, Lopez-Garcia stated that his date of birth

was April 13, 1977; that he was born in Cardenas, Tabasco, Mexico; that he was a

Mexican citizen; that he had been removed on one prior occasion by the INS; and

1
An alien file contains information obtained on each occasion that an alien has
passed through the U.S. immigration and inspection process. United States v.
Farias-Gonzalez, 556 F.3d 1181, 1184 n.2 (11th Cir. 2009). Hence, A-Files typically
include evidence of an individual’s prior deportations from, or lawful entries into, the
country. Id. In addition, A-Files contain the alien’s fingerprints and his photograph.
Id.

6
that he was in the country illegally, having entered the United States in May 2007

via Brownsville, Texas.

The questioning was conducted in Spanish and lasted for roughly ten

minutes. Diaz then presented Lopez-Garcia with a sheet containing all of the

questions he had been asked and all of the answers he had given. Lopez-Garcia

was told that he was not required to sign the document, but he nevertheless chose

to do so.

Lopez-Garcia was later indicted on federal charges of having been

unlawfully found in the United States after having been previously removed and

deported, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). He moved to suppress

the statements he had made to Diaz on June 19, 2007 and June 29, 2007 regarding

his immigration status; he also moved to suppress the documentary evidence (i.e.,

the IAQ and his A-File) that had been obtained after his arrest. The matter was

referred to a magistrate judge, who held an evidentiary hearing on the motions and

issued a Report and Recommendation (“R&R”) on January 14, 2008. The R&R

concluded that Officer Maldonado’s decision to stop Lopez-Garcia’s vehicle

violated the Fourth Amendment because it was not based on either probable cause

or reasonable suspicion. As a result, the R&R recommended that evidence

obtained at the scene of the arrest be suppressed. However, the R&R concluded

7
that Lopez-Garcia’s subsequent statements, as well as the IAQ and A-File, should

not be suppressed. The district court reviewed the R&R, rejected Lopez-Garcia’s

objections, and adopted the magistrate judge’s conclusions.

On February 12, 2008, Lopez-Garcia entered a conditional plea of guilty to

the indictment, reserving the right to appeal the district court’s rulings on his

motion to suppress pursuant to Fed. R. Crim. P. 11(a)(2). On April 30, 2008, the

district court sentenced Lopez-Garcia to a term of fifty-two months of

imprisonment. The sentence was based in part on the district court’s

determination that Lopez-Garcia was subject to a sixteen offense-level

enhancement for the prior commission of a felony firearms offense.

II.

“A district court’s ruling on a motion to suppress presents a mixed question

of law and fact.” United States v. Santa, 236 F.3d 662, 668 (11th Cir. 2000)

(internal quotation marks omitted). We review the district court’s findings of fact

for clear error and its application of the law to the facts de novo. Farias-Gonzalez,

556 F.3d at 1185. Similarly, in assessing a district court’s imposition of an

offense-level enhancement, we review the court’s “findings of fact for clear error

and its application of the Sentencing Guidelines de novo.” United States v.

Rendon, 354 F.3d 1320, 1329 (11th Cir. 2003).

8
 Lopez-Garcia first argues that the district court erred in denying his motion

to suppress the statements he made to Diaz on June 19, 2007 and again on June 29,

2007 and the documentary evidence (the IAQ and alien file) that Diaz obtained

regarding his identity and immigration status. According to Lopez-Garcia, all of

this evidence was the fruit of the poisonous tree, tainted by the unconstitutionality

of his initial seizure. He also claims that his statements should have been

suppressed because he was not given Miranda warnings prior to making the June

19 statement.

A. The Seizure & Arrest

Lopez-Garcia says that his Fourth Amendment rights were violated when he

was stopped by Officer Maldonado. We disagree. The Fourth Amendment

provides that “[t]he right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall not be

violated.” U.S. Const. amend. IV. “Temporary detention of individuals during the

stop of an automobile by the police, even if only for a brief period and for a

limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of this

provision.” Whren v. United States, 517 U.S. 806, 809-10 (1996). It is by now

well established that a “law enforcement officer may conduct a brief investigative

stop of a vehicle, analogous to a Terry-stop, if the seizure is justified by specific

9
articulable facts sufficient to give rise to a reasonable suspicion of criminal

conduct.” United States v. Harris, 928 F.2d 1113, 1116 (11th Cir. 1991) (internal

quotation marks omitted).

An “inchoate and unparticularized suspicion or hunch of criminal activity”

is not sufficient to meet the reasonable suspicion standard. United States v.

Yuknavich, 419 F.3d 1302, 1311 (11th Cir. 2005) (internal quotation marks

omitted). Rather, an “officer must be able to point to specific and articulable facts

which, taken together with rational inferences from those facts, reasonably warrant

[the] intrusion.” Id. (internal quotation marks omitted). Furthermore, “[w]hen

making a determination of reasonable suspicion, we must look at the totality of the

circumstances of each case to see whether the detaining officer has a particularized

and objective basis for suspecting legal wrongdoing.” Id. (internal quotation

marks removed). Adopting this perspective is important, as the Supreme Court

has observed, because it “allows officers to draw on their own experience and

specialized training to make inferences from and deductions about the cumulative

information available to them that might well elude an untrained person.” United

States v. Arvizu, 534 U.S. 266, 273 (2002) (citations and quotation marks

omitted).

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 Here, Officer Maldonado’s suspicion that the defendant was engaged in a

hand-to-hand drug transaction was supported by several specific, objective, and

articulable facts. First, Lopez-Garcia’s vehicle was stopped in the roadway;

second, the activity took place in a high-crime area known specifically for street-

level, hand-to-hand drug transactions; third, an unknown person was seen leaning

into the window and having a conversation with the defendant; and fourth, once

they saw Officer Maldonado, the individual abruptly withdrew from the car

window, and Lopez-Garcia began to drive away. Taking all of these facts in

concert, we are satisfied that Officer Maldonado had reasonable suspicion to stop

Lopez-Garcia’s vehicle. See also United States v. Briggman, 931 F.2d 705, 707,

709 (11th Cir. 1991) (officer had reasonable suspicion to stop driver sitting in

parked car with headlights on in the early morning hours in a lot near several

businesses that had recently been robbed).

The district court was surely correct in observing that a defendant’s

presence in a high-crime area, standing alone, is insufficient to establish

reasonable suspicion. But Maldonado’s suspicion was not just based on the area

in which the conduct was observed; it was also based on specific features of the

individuals’ conduct. Nor does the fact that Officer Maldonado never witnessed

any actual exchange between Lopez-Garcia and his brother-in-law preclude a

11
finding of reasonable suspicion. Indeed, no single factor is dispositive in

determining whether reasonable suspicion exists in any particular context. Rather,

the “determination whether reasonable suspicion exists must be made on a

case-by-case basis,” and each Fourth Amendment determination must “finally turn

on its own facts.” United States v. De Gutierrez, 667 F.2d 16, 19 (11th Cir. 1982)

(internal quotation marks omitted).

Maldonado’s arrest of Lopez-Garcia for possession of methamphetamine

also comported with the Fourth Amendment. The “reasonableness of a seizure or

arrest under the Fourth Amendment turns on the presence or absence of probable

cause.” Case v. Eslinger, 555 F.3d 1317, 1326 (11th Cir. 2009) (internal quotation

marks omitted). “Probable cause to arrest exists when law enforcement officials

have facts and circumstances within their knowledge sufficient to warrant a

reasonable belief that the suspect had committed or was committing a crime.”

Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1137 (11th Cir. 2007) (internal

quotation marks omitted). Based on the substance and the paraphernalia recovered

from the consensual search of Lopez-Garcia’s vehicle, Maldonado reasonably

believed that the defendant was in possession of methamphetamine.2

2
We note in passing that the government also claims that Officer Maldonado
had probable cause to stop Lopez-Garcia’s vehicle. “Under the Fourth Amendment,
a decision to stop an automobile is reasonable where the police have probable cause
12
B. The June 19, 2007 Statement

Lopez-Garcia argues that the statements he made to Officer Diaz on June

19, 2007 should have been suppressed for two reasons. First, he claims that the

statements were tainted under the fruit of the poisonous tree doctrine by the

violation of his Fourth Amendment rights that occurred when he was initially

stopped and arrested by Officer Maldonado. Second, he claims that Officer Diaz

violated his Fifth Amendment rights by failing to Mirandize him prior to the

interview.

Lopez-Garcia’s Fourth Amendment fruit of the poisonous tree argument

plainly collapses since, as we have just explained, his Fourth Amendment rights

to believe that a traffic violation occurred.” United States v. Simmons, 172 F.3d 775,
778 (11th Cir. 1999) (citing Whren v. United States, 517 U.S. 806, 810 (1996)). The
government argues that Officer Maldonado had probable cause to believe that Lopez-
Garcia had violated section 40-6-203 of the Georgia Code when he stopped in the
roadway on Birney Street. The district court correctly rejected this claim. Contrary
to the government’s characterization, section 40-6-203 does not prohibit stopping a
vehicle in a roadway without more; rather, it prohibits stopping in a roadway in
certain locations or under certain conditions: for example, on a bridge, Ga. Code.
Ann. § 40-6-203(a)(1)(G), or a crosswalk, id. § 40-6-203(a)(1)(D), or “[a]longside or
opposite any street excavation or obstruction when stopping, standing, or parking
would obstruct traffic,” id. § 40-6-203(a)(1)(F), or on “the roadway side of any
vehicle stopped or parked at the edge of a curb of a street,” id. § 40-6-203(a)(1)(A).
The government has not alleged that Lopez-Garcia stopped his vehicle under any of
these particular circumstances, and on this record we think the government has failed
to show any traffic basis on which Maldonado could have had probable cause to stop
Lopez-Garcia’s vehicle.

13
were never violated. Since his seizure and arrest were constitutional, neither of his

subsequent statements was tainted by those events. But, even if Lopez-Garcia’s

Fourth Amendment rights had been violated, his statements were too attenuated

from his arrest to be regarded as fruit of the poisonous tree. In determining

whether evidence is tainted by a prior violation of constitutional rights, we ask

“whether, granting establishment of the primary illegality, the evidence to which

instant objection is made has been come at by exploitation of that illegality or

instead by means sufficiently distinguishable to be purged of the primary taint.”

United States v. Delancy, 502 F.3d 1297, 1309 (11th Cir. 2007) (quoting Wong

Sun v. United States, 371 U.S. 471, 488 (1963)). This inquiry is fact-sensitive,

and no single fact is decisive. However, we have enumerated three non-exclusive

factors to guide the inquiry into whether a defendant’s consent was tainted by his

illegal arrest: “[1] the temporal proximity of the seizure and the consent, [2] the

presence of intervening circumstances, and, particularly, [3] the purpose and

flagrancy of the official misconduct.” Id. (internal quotation marks omitted).

Based on examination of these factors, we agree with the district court’s

conclusion that Lopez-Garcia’s statements to Diaz were too removed from the

arrest to have suffered any taint. To begin with, the temporal proximity between

the two events is limited: Lopez-Garcia’s statements to Diaz were not made until

14
the day after the arrest. To be sure, there is no hard-and-fast rule for determining

how much time must have passed before the link between an unlawful arrest and a

confession can be considered sufficiently attenuated. Id. at 1310. Nevertheless,

we have said that “[i]f only a short period of time has passed, a court is more likely

to consider the consent as a ‘poisonous fruit’ of the illegal act.” Id. Thus, we have

observed that the “amount of time found sufficient to meet the temporal proximity

factor ranges from immediate or ‘close in time,’ to three minutes, to two hours.”

Lawhorn v. Allen, 519 F.3d 1272, 1291 (11th Cir. 2008) (citations omitted);

United States v. Chanthasouxat, 342 F.3d 1271, 1280 (11th Cir. 2003) (period of

three minutes between constitutional violation and confession favored exclusion).

When compared with these other decisions, the temporal proximity in this case

militates against a finding that Lopez-Garcia’s statements were tainted. See also

United States v. Stark, 499 F.3d 72, 76 (1st Cir. 2007) (confession made two days

after the illegal search was “arguably a sufficient amount of time for [the

defendant] to reflect on his predicament and determine whether he wanted to

speak with an attorney before making any further statements,” even though the

defendant was in custody the entire time).

The second factor -- the presence of intervening circumstances -- also

supports the argument that the June 19 statements were untainted. Among other

15
things, Lopez-Garcia’s arrest on June 18 and his questioning on June 19 were

conducted by different individuals -- Maldonado effected the arrest and Diaz

performed the interview -- and Diaz’s questioning pertained to a specific and

circumscribed issue (Lopez-Garcia’s immigration status) completely distinct from

the subject of his arrest (suspected drug activity).

Finally, the purpose and flagrancy factors also militate against finding that

the June 19 statements were tainted by the arrest. Nothing in the record suggests

that the stop of Lopez-Garcia’s vehicle and then his arrest, were motivated by an

ulterior purpose to determine Lopez-Garcia’s immigration status or to prosecute

him for being in the country illegally. Nor does the record indicate any flagrant

behavior by Officer Maldonado or anyone else involved in Lopez-Garcia’s arrest

and interrogation. There is not the slightest hint in the record that Maldonado

attempted to coerce, intimidate, or trick Lopez-Garcia in any way. Maldonado

spoke in Spanish so that Lopez-Garcia would understand him, and he obtained

Lopez-Garcia’s consent before searching him and his car. Nor is there any

suggestion that Officer Diaz’s inquiry on June 19 was in any way designed to

coerce or trick the defendant. Thus, even if we were to assume that the underlying

arrest violated Lopez-Garcia’s Fourth Amendment rights, there is no basis for

16
concluding that the violation tainted the statements he made to Diaz regarding his

immigration status.

Nor are we persuaded by Lopez-Garcia’s argument that his statements on

June 19 should be suppressed because, by failing to Mirandize him beforehand,

Officer Diaz violated his Fifth Amendment rights. The Fifth Amendment provides

that “[n]o person . . . shall be compelled in any criminal case to be a witness

against himself . . . . ” U.S. Const. amend. V. It is well established that the

privilege against self-incrimination protects an individual not only from “being

involuntarily called as a witness against himself in a criminal prosecution but also

privileges him not to answer official questions put to him in any other proceeding,

civil or criminal, formal or informal, where the answers might incriminate him in

future criminal proceedings.” Harrison v. Wille, 132 F.3d 679, 682 (11th Cir.

1998) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)).

In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the Supreme Court held

that protecting a suspect’s Fifth Amendment privilege against self-incrimination

requires that he be warned prior to “custodial interrogation” that he has the right to

remain silent and to have an attorney present. “A defendant is in custody for the

purposes of Miranda when there has been a ‘formal arrest or restraint on freedom

of movement of the degree associated with a formal arrest.’” United States v.

17
Brown, 441 F.3d 1330, 1347 (11th Cir. 2006) (quoting California v. Beheler, 463

U.S. 1121, 1125 (1983)). “Interrogation,” under Miranda “means ‘any words or

actions on the part of the police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to elicit an

incriminating response from the suspect.’” United States v. Gomez, 927 F.2d

1530, 1538 (11th Cir. 1991) (quoting Rhode Island v. Innis, 446 U.S. 291, 301

(1980)). The Supreme Court has defined an “incriminating response” as “any

response -- whether inculpatory or exculpatory -- that the prosecution may seek to

introduce at trial.” Innis, 446 U.S. at 302 n.5 (emphasis omitted).

Here, the parties do not dispute whether Lopez-Garcia was in custody at the

time of the interview. Instead, they join issue over whether Diaz’s discussion with

Lopez-Garcia amounted to an “interrogation” within the meaning of Miranda.

That question boils down to whether Diaz should have known that his questions

were reasonably likely to elicit an incriminating response from Lopez-Garcia.

Under these circumstances, we do not believe that Diaz should have known that

Lopez-Garcia was reasonably likely to make self-incriminating statements during

the June 19 interview.

To begin with, Diaz had no reason to believe that Lopez-Garcia would

confess to having illegally reentered the country. Although Diaz was aware prior

18
to the interview that Lopez-Garcia had not been born in the U.S., he had no reason

to believe that Lopez-Garcia had been deported, and still less reason to believe

that he had reentered the country illegally. Indeed, Diaz specifically testified to

this effect at the suppression hearing. On cross-examination Diaz was asked: “So

when you talk with a person regarding their immigration status, you recognized

that it is possible you may be discussing criminal conduct with them, right?” Diaz

responded: “Yes, but I do check before that, of course; I have to make sure none of

that can happen. I did my checks and nothing came up.” Thus, Lopez-Garcia is

simply incorrect in suggesting that Diaz’s questions were likely on their face to

result in self-incrimination. Based on the information available to him, Diaz

should not have thought it especially likely that Lopez-Garcia would admit to

having committed a crime.

Nor did Diaz have any basis for believing that Lopez-Garcia would be

prosecuted for that offense. As we’ve noted, the underlying charge for which

Lopez-Garcia had been arrested and incarcerated was not immigration-related, and

Diaz’s questioning of Lopez-Garcia was not initiated for law enforcement

purposes. Diaz was simply tasked with facilitating the removal of individuals

illegally present in the country; deciding whether to bring criminal charges was, as

19
he put it, “not his call.” We conclude, therefore, that no Miranda warning was

necessary prior to the June 19 interview.

C. The June 29 Confession

Lopez-Garcia also argues that his June 29, 2007 statements must be

suppressed for two reasons. Both invoke some version of the fruit of the

poisonous tree doctrine, arguing that the June 29 statements were tainted by the

constitutional infirmity of his June 19 statements. But even if we were to assume

that Lopez-Garcia’s rights had been violated by Diaz’s questioning on June 19 --

and we are not persuaded on that point -- he still would fall short of showing that

his June 29 statements were suppressible.

Lopez-Garcia’s Fourth Amendment fruit of the poisonous tree argument is

completely implausible when applied to the June 29 statements. As we have noted

previously, we typically consider three factors in determining whether evidence

has been tainted by a prior violation of constitutional rights: (1) the temporal

proximity of the seizure and the consent; (2) the presence of intervening

circumstances; and (3) the purpose and flagrancy of the official misconduct.

Delancy, 502 F.3d at 1309. Each of these factors yields the conclusion that the

June 29 statements were far too attenuated from the June 19 statements to have

been tainted by them.

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 First, the temporal proximity between the events is exceedingly slight: a

period of ten full days separates the two confessions. Moreover, the intervening

circumstances here are even more pronounced than those obtaining between the

June 19 confession and the arrest: while the subject of the June 19 and June 29

interviews was the same, the first interview was conducted by Diaz alone, whereas

both Diaz and Agent Prieto were present for the June 29 interview. In addition,

whereas the booking on June 18 and the interview on June 19 took place in the

jail’s intake area, Lopez-Garcia was transported to an ICE office within the jail for

the June 29 questioning. Still further, Lopez-Garcia was fully Mirandized prior to

the June 29 interview. Finally, nothing in the record suggests anything flagrant

about the June 29 interview or anything nefarious about its purpose. On the

contrary, in every respect, the interrogation was conducted according to Hoyle:

Lopez-Garcia was given Miranda warnings prior to the interrogation; Diaz spoke

to Lopez-Garcia in Spanish and took special care to ensure that he was aware of

his rights and that he understood the questions he was asked. Indeed, the district

court found that Lopez-Garcia appeared calm and composed throughout the

interview.

Lopez-Garcia’s Fifth Amendment argument fares no better when applied to

the June 29 statement. Here, Lopez-Garcia claims that even though he was

21
Mirandized prior to the June 29 interview, his unwarned statements on June 19

invalidate his decision to waive his Miranda rights before making his June 29

confession. We are unpersuaded.

In Oregon v. Elstad, 470 U.S. 298 (1985), the Supreme Court addressed

whether a properly warned confession is admissible after a defendant has first

been given an unwarned or improperly warned confession. The defendant in

Elstad confessed to having committed a burglary after being subjected to

unwarned custodial questioning at his home. Id. at 300-01. The officers later took

the defendant to their headquarters, and after giving him Miranda warnings for the

first time about an hour later, he again made a full confession. Id. at 301. The

Supreme Court rejected the claim that the “simple failure to administer the

[Miranda] warnings, unaccompanied by any actual coercion or other

circumstances calculated to undermine the suspect’s ability to exercise his free

will, so taints the investigatory process that a subsequent voluntary and informed

waiver is ineffective for some indeterminate period.” Id. at 309. Rather, the

Court held that “the admissibility of any subsequent statement should turn in these

circumstances solely on whether it is knowingly and voluntarily made.” Id.; see

also United States v. Street, 472 F.3d 1298, 1313-14 (11th Cir. 2006).

22
 Here, like the district court, we have no doubt that Lopez-Garcia’s second

confession was knowingly and voluntarily made. Diaz read Lopez-Garcia his

rights in Spanish and gave him the opportunity to ask any questions he might have

had. Lopez-Garcia unequivocally acknowledged that he understood his rights

before signing the waiver form. Neither Diaz nor Prieto was armed during the

interrogation, and Lopez-Garcia appeared “calm” throughout the meeting. Nor

does Lopez-Garcia suggest that Diaz’s failure to Mirandize him before the June 19

interview was somehow deliberate or strategic. See Missouri v. Seibert, 542 U.S.

600, 609-11 (2004) (plurality opinion) (discussing the tactic of purposefully

withholding Miranda warnings while interrogating a suspect in order to obtain a

full confession and later leading the defendant to re-confess after having provided

Miranda warnings). Instead, the record suggests that Diaz did not provide

Miranda warnings because, given the purpose of his interview, he did not think it

likely that Lopez-Garcia would make any self-incriminating statements.

Nor, finally, do we believe that Lopez-Garcia should, as he suggests, be

given some leeway because of his lack of familiarity with the American criminal

justice system. The current prosecution was not the first time that Lopez-Garcia

found himself a defendant in a criminal case in an American court. Several years

earlier, he was prosecuted by the State of Georgia on drug trafficking and gun

23
possession charges. And most importantly, he was given Miranda warnings prior

to making his confession, and he unequivocally stated that he understood his

rights before waiving them.

D. The Immigration File

Finally, Lopez-Garcia argues that, in addition to his statements, the

documentary evidence regarding his immigration status -- in particular, the IAQ

and his alien file -- should be suppressed as well. Here, once more, Lopez-Garcia

raises the specter of the fruit of the poisonous tree, arguing that this evidence

would not have been obtained if it had not been for the (assertedly)

unconstitutional seizure and arrest. Like his arguments for the suppression of his

confessions, this argument fails in view of our conclusion that Lopez-Garcia’s

seizure and arrest were not unconstitutional.

This argument is also foreclosed by our recent opinion in Farias-Gonzalez.

There, two plain-clothes ICE agents were patrolling areas of Atlanta for gang

activity when they spotted Farias-Gonzalez working on his car. 556 F.3d at 1182.

Based on his haircut and tattoos, the agents suspected that he might be a member

of a gang. Id. They began to question him, and in the process, one of the agents

lifted Farias-Gonzalez’s shirt sleeve to see whether he had any other tattoos. Id. at

1182-83. Based on his answers, the agents surmised that Farias-Gonzalez was

24
present in the country illegally. Id. at 1183. The defendant agreed to remove his

shirt so that the agents could take photographs of his tattoos. Id. Using a portable

electronic fingerprint device, the agents took Farias-Gonzalez’s fingerprints and

determined that he had previously been deported from the United States. Id. At

that point, the agents arrested him, took him to the police station, informed him of

his Miranda rights, and booked him. Id.

Farias-Gonzalez was charged with illegally reentering the country after

deportation in violation of 8 U.S.C. § 1326. Farias-Gonzalez, 556 F.3d at 1183.

He filed a motion to suppress, contending that his Fourth Amendment rights had

been violated when the agent lifted his shirt sleeve, and he sought to suppress all

evidence obtained as a result of the search. Id. The district court agreed that the

search was unconstitutional and, accordingly, ordered the suppression of all of the

evidence except for the fingerprint evidence, the photographs of Farias-Gonzalez,

and his alien file. Id. at 1184. The court based its holding on the principle that

identifying information obtained as a result of an unlawful arrest is not subject to

suppression. Id.

We held (without deciding whether there had been any constitutional

violation) that the fingerprint evidence, photos, and alien file could not be

suppressed. Id. at 1189-90. Specifically, we used the cost-benefit balancing test

25
outlined by the Supreme Court in Hudson v. Michigan, 547 U.S. 586 (2006), to

determine whether the exclusionary rule should be applied to identity-related

evidence obtained as a result of a constitutional violation. On the one hand, we

reasoned that the social costs associated with suppressing identity-related

information were very high. We noted, for example, that “a defendant who

successfully suppressed all evidence of his identity could preclude consideration

of his criminal history, which could give rise to relevant and admissible evidence

at trial.” Farias-Gonzalez, 556 F.3d at 1187. Suppression also “would prevent a

judge sentencing a defendant from applying any relevant recidivism statutes and

Sentencing Guidelines for those with criminal histories.” Id. Indeed, we said that

the cost of suppressing identity-related evidence was even greater in the § 1326

context, since under that statute, the defendant’s presence in the country

constitutes an ongoing violation. Id. at 1188 n.8.

On the other hand, we concluded that very little deterrence benefit would be

gained by applying the exclusionary rule. We observed, for example, that identity-

related information could be obtained in many ways that would not risk a Fourth

Amendment violation. Id. at 1188-89. And we squarely held that evidence such

as that in an A-File is never suppressible when it is offered only to prove a

defendant’s identity, regardless of whether the government had found the file as a

26
result of an unlawful search. Id. at 1189-90. The same holds true here: Lopez-

Garcia’s claim that his A-File should have been suppressed is untenable.

III.

Lopez-Garcia also contends that the district court erred in imposing a

sixteen offense-level enhancement on his sentence based on his prior conviction

for a felony firearms offense under Georgia law. We disagree.

In applying the enhancement, the district court relied on United States

Sentencing Guideline § 2L1.2, which provides for a sixteen offense-level increase

if “the defendant previously was deported, or unlawfully remained in the United

States, after . . . a firearms offense.” U.S.S.G. § 2L1.2(b)(1)(A)(iii). In 2002,

Lopez-Garcia pleaded guilty under Georgia state law to possessing a firearm

during the commission of a crime. Ga. Code Ann. § 16-11-106(b). The district

court concluded that Lopez-Garcia’s conviction under section 16-11-106(b)(4)

constituted a “firearms offense” within the meaning of U.S.S.G.

§ 2L1.2(b)(1)(A)(iii). Accordingly, the district court concluded that the

enhancement was warranted in light of Lopez-Garcia’s conviction for illegally

reentering the United States after deportation.

Lopez-Garcia says that his prior firearms offense under Georgia law does

not qualify as a “firearms offense” within the meaning of U.S.S.G. § 2L1.2. The

27
definition of “firearms offense” is provided in application note 1(B)(v) to

Guideline 2L1.2.1 In relevant part, the note explains that a “firearms offense”

means “[a]n offense under state or local law consisting of conduct that would have

been an offense under subdivision (III), (IV), or (V) if the offense had occurred

within the special maritime and territorial jurisdiction of the United States.” U.S.

Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(v)(2007). Of the offenses

1
Application Note 1 (B)(v) provides that “firearms offense” means any of the
following:

(I) An offense under federal, state, or local law that prohibits the
importation, distribution, transportation, or trafficking of a firearm
described in 18 U.S.C. 921, or of an explosive material as defined in 18
U.S.C. 841(c).

(II) An offense under Federal, state, or local law that prohibits the
possession of a firearm described in 26 U.S.C. 5845(a), or of an
explosive material as defined in 18 U.S.C. 841(c).

(III) A violation of 18 U.S.C. 844(h).

(IV) A violation of 18 U.S.C. 924(c).

(V) A violation of 18 U.S.C. 929(a).

(VI) An offense under state or local law consisting of conduct that
would have been an offense under subdivision (III), (IV), or (V) if the
offense had occurred within the special maritime and territorial
jurisdiction of the United States.

U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(v)(2007).
28
found in subsections (III), (IV), and (V), only the one listed in subsection (IV) --

18 U.S.C. § 924(c) -- is a plausible federal analogue for Lopez-Garcia’s state law

offense. Under § 924(c), it is illegal for a defendant, during and in relation to a

drug-trafficking offense, to use, carry, or possess a firearm in furtherance of that

crime. See, e.g., United States v. Woodard, 531 F.3d 1352, 1362 (11th Cir.

2008). Thus, the question whether the district court erred in enhancing Lopez-

Garcia’s offense level under U.S.S.G. § 2L1.2 depends on whether his prior state

firearms conviction (if it had occurred within federal jurisdiction) would have

constituted an offense under § 924(c). We believe it would have.

Lopez-Garcia says that his conduct in violating section 16-11-106(b) of the

Georgia Code would not have constituted an offense under § 924(c) because the

elements of the two offenses are different. In particular, he notes that section 16-

11-106(b)(4) punishes “[a]ny person who shall have on or within arm’s reach of

his or her person a firearm . . . during the commission of, or the attempt to commit

. . . [a]ny crime involving the possession, manufacture, delivery, distribution,

dispensing, administering, selling, or possession with intent to distribute any

controlled substance.” Ga. Code Ann. § 16-11-106(b)(4). On the other hand, he

points out, § 924(c)(1)(A) applies to “any person who, during and in relation to

any crime of violence or drug trafficking crime . . . uses or carries a firearm, or

29
who, in furtherance of any such crime, possesses a firearm.” 18 U.S.C.

§ 924(c)(1)(A). In other words, according to Lopez-Garcia, a defendant who is in

possession of a controlled substance with intent to distribute, may be convicted

under the Georgia statute merely for having a firearm within his reach, whereas

under § 924(c), this is not enough.

Unfortunately, Lopez-Garcia never clearly explains what more he believes

is required under § 924(c). He notes that under the Supreme Court’s decision in

Bailey v. United States, 516 U.S. 137 (1995), “use” of a firearm under § 924(c)

requires “active employment of the weapon as by brandishing or displaying it in

some fashion.” Lopez-Garcia Br. at 37. However, § 924(c) does not require the

government to show that Lopez-Garcia used the firearm; rather, the statute also

makes it illegal to “carry” or “possess” a firearm, and a conviction under 924(c)’s

“carrying” and “possessing” prongs does not require a showing of “active

employment.” Indeed, Congress amended § 924(c) to include the alternative

“carrying” and “possessing” requirements in response to what it considered the

Supreme Court’s overly stringent interpretation of “use” in Bailey.2 See Pattern

2
As the commentary to the Eleventh Circuit’s pattern jury instruction explains:

In 1998, in direct response to Bailey, Congress amended
the statute in several respects including the insertion of the
phrase “or who, in furtherance of any such crime, possesses
30
Crim. Jury Instr. 11th Cir. OI 35.2, cmt. at 243 (2003). Hence, Lopez-Garcia is

simply incorrect in suggesting that § 924(c) requires “active employment” of his

firearm whereas section 16-11-106(b)(4) does not.

Lopez-Garcia further argues that under § 924(c), the offense of “carrying” a

firearm cannot be established merely by a showing that the defendant had

possession of a firearm; rather, he claims, the government must show that the

firearm has been “transported.” Again, while this is true, see, e.g., United States v.

Leonard, 138 F.3d 906, 910 (11th Cir. 1998) (“As interpreted both by us and by

our sister circuits, the ‘carry’ prong of § 924(c)(1) requires more than proof of

mere possession; the government must prove that the defendant actually

transported the firearm as well.”), it is also irrelevant, since the transportation

requirement applies to the “carrying” prong of § 924(c), not to the statute’s

“possession” prong. Id.

a firearm . . . .” The stated purpose and effect of this
amendment was to overcome the Bailey court’s
constrictive interpretation of the scope of the statute and to
extend its reach to any drug trafficking or violent crime in
which the Defendant merely possesses a firearm “in
furtherance of any such crime.”

See Pattern Crim. Jury Instr. 11th Cir. OI 35.2, cmt. at 243 (2003) (citations omitted).

31
 To be sure, § 924(c)’s “possession” prong requires a showing that the

defendant’s possession of the firearm “helped, furthered, promoted, or advanced

the drug trafficking.” United States v. Timmons, 283 F.3d 1246, 1252 (11th Cir.

2002). But the conduct underlying Lopez-Garcia’s state law firearms conviction

easily meets this requirement. In Timmons, we explained that in order to meet the

“in furtherance of” requirement, there “must be a showing of some nexus between

the firearm and the drug selling operation,” which

can be established by the type of drug activity that is being
conducted, accessibility of the firearm, the type of the weapon,
whether the weapon is stolen, the status of the possession (legitimate
or illegal), whether the gun is loaded, proximity to the drugs or drug
profits, and the time and circumstances under which the gun is found.

Id. at 1253 (internal citations and quotation marks omitted).

As explained in Lopez-Garcia’s PSI, his conviction under section

16-11-106(b)(4) was based on the fact that when he was apprehended for the drug

offense, he was found under the covers of a bed, along with the gun, a quantity of

methamphetamine, and several hundred dollars in cash. The nexus between the

gun and the drug trafficking here is plainly established by, for example, the

accessibility of the firearm to Lopez-Garcia, and the proximity of the gun to the

drugs and the drug profits.

32
 Lopez-Garcia also says that, under the Supreme Court’s recent decision in

United States v. Shepard, 544 U.S. 13 (2005), the district court is limited with

respect to the sources it is permitted to consult in determining the conduct on

which his state law firearms conviction was based. Specifically, he claims that the

court is permitted to consider only “the terms of the charging document, the terms

of a plea agreement or transcript of colloquy between judge and defendant in

which the defendant confirmed the factual basis for the plea, or to some

comparable judicial record of this information,” and that the court may not

consider “extrajudicial records such as police reports or complaint applications.”

Lopez-Garcia Br. at 38. The reasoning here is elusive, however, because the

district court’s account of the facts surrounding Lopez-Garcia’s state law firearms

conviction was derived from Lopez-Garcia’s PSI, not from any of the sources

forbidden under Shepard.

We have yet to specifically address whether reliance on a PSI is permissible

under Shepard, but it is not necessary that we do so today because Lopez-Garcia

does not contend that the district court’s reliance on the PSI was erroneous; nor

does he dispute in any significant way the facts set forth in the PSI.3 As we have

3
It is true that in the district court, Lopez-Garcia objected to paragraph 22 of
the PSI, which is the part of the report describing the facts surrounding Lopez-
Garcia’s section 16-11-106(b)(4) conviction. But Lopez-Garcia’s objection was a
33
previously held, “[a] sentencing court’s findings of fact may be based on

undisputed statements in the PSI.” United States v. Bennett, 472 F.3d 825, 832

(11th Cir. 2006) (citing United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.

1989)). “It is the law of this circuit that a failure to object to allegations of fact in

a PSI admits those facts for sentencing purposes. It is also established law that the

failure to object to a district court’s factual findings precludes the argument that

there was error in them.” United States v. Wade, 458 F.3d 1273, 1277 (11th Cir.

2006) (internal citations omitted). Where statements in a PSI are undisputed, “the

court [is] permitted to rely on them despite the absence of supporting evidence.”

United States v. Hedges, 175 F.3d 1312, 1315 (11th Cir. 1999).

We review the district court’s findings of fact for clear error and its

application of the Sentencing Guidelines de novo. United States v. Rendon, 354

F.3d 1320, 1329 (11th Cir. 2003). None of the district court’s findings of fact was

erroneous, much less clearly erroneous; and based on the facts set forth in the PSI,

narrow one, asserting only that the document he possessed did not reveal the exact
number of guns or the exact amount of currency that he was found to have been in
possession of. These details are unimportant for the purposes of determining whether
the conduct underlying Lopez-Garcia’s state law conviction would have satisfied §
924(c). All that is necessary to meet § 924(c)’s nexus requirement are the more
general facts that Lopez-Garcia was found with a gun, drugs, and money, and that
these were in close proximity with one another. Lopez-Garcia does not dispute those
facts.
34
the district court correctly concluded that the conduct on which Lopez-Garcia’s

state law firearms conviction was based would have constituted a violation of

§ 924(c). Lopez-Garcia’s prior conviction meets the definition of “firearms

offense” under Guideline § 2L1.2, and the district court did not err in imposing the

Guideline’s sixteen offense-level enhancement.

IV.

In sum, the district court was correct in denying Lopez-Garcia’s motion to

suppress Lopez-Garcia’s statements to Agent Diaz. While we believe that the

initial stop of Lopez-Garcia’s car and the ensuing arrest did not violate his Fourth

Amendment rights, the district court was nonetheless correct in holding that none

of Lopez-Garcia’s subsequent statements to Agent Diaz were tainted under the

fruit of the poisonous tree doctrine. Similarly, the documentary evidence

regarding Lopez-Garcia’s immigration status -- the IAQ and his A-File -- were not

suppressible. Finally, the district court did not err in enhancing Lopez-Garcia’s

sentence based on his prior state court conviction for a firearms offense.

AFFIRMED.

35