[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).
10
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.
20
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
United States v. Lopez-Garcia
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2009-04-21
Citations: 565 F.3d 1306
Copy CitationsCombined Opinion