United States v. Booker

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 15, 2007 Decided August 10, 2007

No. 06-3030

UNITED STATES OF AMERICA,
APPELLEE

v.

FREDERICK E. BOOKER, A/K/A CHARLES BOOKER,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 03cr00225-01)

A. J. Kramer, Federal Public Defender, argued the cause for
the appellant.
Mary B. McCord, Attorney, argued the cause for the
appellee. Jeffrey A. Taylor, United States Attorney, and Roy W.
McLeese III, Lisa H. Schertler and John P. Gidez, Assistant
United States Attorneys, were on brief.
Before: GINSBURG, Chief Judge, and HENDERSON and
ROGERS, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
Dissenting opinion filed by Circuit Judge ROGERS.
 2

KAREN LECRAFT HENDERSON, Circuit Judge: Appellant
Frederick E. Booker pleaded guilty to one count of possessing
with intent to distribute marijuana in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(D). Booker now appeals the district
court’s denial of his motion to suppress evidence seized from his
vehicle following his arrest for driving without a permit on the
grounds that both the traffic stop and the search of his vehicle
violated the Fourth Amendment to the United States
Constitution. He also appeals his guilty plea on the ground that
it lacked a sufficient factual basis. For the reasons set forth
below, we affirm the district court.
I.
On May 7, 2003, Booker, with an unknown passenger, was
driving a white Crown Victoria southbound on Seventh Street in
northeast Washington D.C. at approximately 4:00 p.m. Three
members of the Metropolitan Police Department
(MPD)—Officers Bryan Wymbs, Gary Glenn and Bruce
Garrett1—passed the Crown Victoria at the intersection of
Seventh Street and Buchanan Street as their unmarked police car
was traveling in the opposite direction. They noticed that the
vehicle’s front license tag “was not displayed in brackets on the
front of the car but, instead, was placed inside the windshield on
the front right side.” United States v. Booker, Crim. No. 03-225,
slip op. at 2 (D.D.C. Oct. 25, 2005). Believing the license plate
was improperly displayed, the officers decided to conduct a
traffic stop. They continued driving in the direction they had
been traveling until they could “make a series of turns,” Tr.
11/18/03, at 8, and reverse direction. In the meantime, Booker’s
vehicle had “made a series of turns” inside a “U shape[d]

1
The officers were members of the MPD Fifth District’s
automobile theft unit which “investigate[s] the theft of stolen autos
and also look[s] for fraudulent tags, things of that nature.” Tr.
11/18/03, at 5.
 3

development”2 and was “approximately three to four blocks
away.” Id. As a result, the officers did not catch up to Booker’s
vehicle until they “came around [a] corner,” id. at 18, and found
it parked at the curb in front of 4342 Varnum Place N.E.3 By the
time they “pulled up to the Crown Victoria, with the front of
their car just next to, but not overlapping, [its] rear bumper,”
Booker, slip op. at 2, Booker and the passenger had exited,
closed the door and begun walking away from it, id. Officer
Wymbs then “alighted from the unmarked police car, identified
himself as a police officer, and ordered [] Booker and his
passenger to stop.” Id. The passenger fled and Officer Glenn
attempted—without success—to apprehend him. Meanwhile,
Officer Wymbs grabbed Booker by the arm about “three steps
away from the car,” id. at 5, and handcuffed him. He testified
that at that moment Booker was not arrested but instead he “was
plac[ing] [Booker] in handcuffs for [the officers’] safety”
because “the passenger of the vehicle exited the vehicle running
[sic] holding his waistband area.” Tr. 11/18/03, at 24. Shortly
thereafter, Officer Glenn returned without the passenger and
inquired whether Booker had a license. When Booker
responded that he did not, he was arrested for driving without a
permit and “placed on the curb alongside the vehicle.” Id. at 12.
After his arrest, the officers searched the vehicle and discovered
a “book bag,” Booker, slip op. at 3, that contained an Intratec
9mm Luger semiautomatic pistol, a Ruger 9mm semiautomatic

2
The development consists of Varnum Place N.E., Varnum Street
N.E. and Seventh Street N.E. See Mapquest, Maps,
www.mapquest.com (search for “4342 Varnum Place N.E.,
Washington, D.C.”) (last visited July 5, 2007).
3
Contrary to Officer Wymbs’s testimony, see Tr. 11/18/03, at 9
(“The vehicle stopped . . . in front of 4342 Varnum Street.”), 4342
Varnum Street does not exist. See Mapquest, Maps,
www.mapquest.com (search for “4342 Varnum Street N.E.,
Washington, D.C.”) (last visited July 5, 2007).
 4

pistol, 9mm ammunition and a large ziplock bag holding 79
smaller ziplock bags of marijuana totaling 51 grams, Tr.
10/31/05, at 4, 8. The officers also recovered two cellular
telephones and almost $1700 in cash from Booker’s person. Id.
at 8.
On May 29, 2003, Booker was charged by indictment with
one count of possessing with intent to distribute marijuana in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) (Count 1) and
one count of using, carrying and possessing a firearm during a
drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)
(Count 2). On November 18, 2003, the district court held a
suppression hearing and granted Booker’s motion to suppress
the evidence seized from his vehicle, concluding that the search
was unlawful under the United States Supreme Court’s decisions
in New York v. Belton, 453 U.S. 454 (1981), and Chimel v.
California, 395 U.S. 752 (1969). The Government appealed but
before the parties filed briefs, they jointly moved to remand to
the district court for reconsideration in light of the Supreme
Court’s decision in Thornton v. United States, 541 U.S. 615
(2004). On October 19, 2004, we vacated the district court’s
order and remanded for further consideration. Just over one
year later, the district court, relying on Thornton, denied
Booker’s motion to suppress.
At an October 31, 2005 plea hearing, Booker entered a
conditional guilty plea to Count 1.4 In response to the district
court’s question, “In your own words, not worrying what the
statute says, what is it that you would plead guilty to?” Booker
responded, “The possession.” Tr. 10/31/05, at 4. The court then
asked, “Is it possession of marijuana?” to which Booker replied,
“Yes.” Id. The court also questioned Booker about the

4
The plea agreement expressly reserved Booker’s right to appeal
the district court’s denial of his motion to suppress pursuant to Federal
Rule of Criminal Procedure 11(a)(2).
 5

substance of the plea agreement, after which the court outlined
the “facts on which the plea of guilty would be entered”:
[O]n May 7th, 2003, at about four p.m. in the vicinity of
4342 Varnum Place Northeast, Washington D.C., the
defendant was seen by a Metropolitan Police
Department officer driving a white Ford Crown Victoria
with a D.C. temporary tag inside of the front windshield
of the dashboard.
The officers made a U turn and began to follow the
defendant. The defendant stopped and parked the car.
The defendant [sic] is the driver and his front seat
passenger both left the vehicle, closed the door, and the
defendant was subsequently stopped by the police.
The defendant told the police he did not have a license
and was placed under arrest for driving without a permit.
In the subsequent search incident to arrest, officers
searched the car and recovered $1,695.82 in cash, two
cell phones, an Intratec 9mm Luger gun, a Ruger 9mm
gun, 9mm ammunition and 79 zips containing 51 grams
of marijuana.
Id. at 7-8. Later in the plea colloquy, the following exchange
took place:
THE COURT: Okay. Mr. Booker, are you entering a
guilty plea because you’re guilty or because you just
want to get it over with?
[Booker]: I want to get it over with.
THE COURT: Right. But are you guilty?
[Booker]: No.
THE COURT: You’re not guilty because they shouldn’t
have searched the car?
[Booker]: Yes.
THE COURT: Okay. But if they could lawfully search
the car, was the bag yours?
 6

[Booker]: Yes.
THE COURT: All right. I think I can take that as enough
for my purposes.

Id. 9-10. Finally, the court asked, “Mr. Booker, how do you
plead today to the charge of unlawful possession with intent to
distribute cannabis?” Id. at 11. Booker responded, “Guilty.”
Id.
On February 3, 2006, the district court sentenced Booker to
time served (approximately six months), two years’ supervised
release and a $100 assessment. This appeal followed.
II.
We address separately Booker’s Fourth Amendment and
guilty plea claims.
A. Fourth Amendment Claims
The Fourth Amendment protects “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV.
“The touchstone of the Amendment is reasonableness . . . .”
United States v. Askew, 482 F.3d 532, 538 (D.C. Cir. 2007).
Booker argues that both the traffic stop and the search of his
vehicle were unreasonable. We review de novo whether the
police had reasonable suspicion to effect the traffic stop, United
States v. Hill, 131 F.3d 1056, 1059 & n.2 (D.C. Cir. 1997), and
probable cause to search the vehicle, United States v. Christian,
187 F.3d 663, 666 (D.C. Cir. 1999). “[W]e review the district
court’s findings of historical fact only for clear error, [giving]
due weight to inferences drawn from those facts and to the
court’s determinations of witness credibility.” United States v.
Brown, 334 F.3d 1161, 1164 (D.C. Cir. 2003) (internal
quotations omitted).
 7

1. Traffic Stop
“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 [the Fourth Amendment].” Whren v. United States,
517 U.S. 806, 809-10 (1996). Thus, a traffic stop is “subject to
the constitutional imperative that it not be ‘unreasonable’ under
the circumstances.” Id. at 810. While the Fourth Amendment
“does not bar the police from stopping and questioning motorists
when they witness or suspect a violation of traffic laws, even if
the offense is a minor one,” United States v. Mitchell, 951 F.2d
1291, 1295 (D.C. Cir. 1991), the facts surrounding the stop must
“‘be judged against an objective standard: would the facts
available to the officer at the moment of the seizure or the search
warrant a man of reasonable caution in the belief that the action
taken was appropriate?’” Hill, 131 F.3d at 1059 (quoting Terry
v. Ohio, 392 U.S. 1, 21-22 (1968)) (internal quotation omitted).
“In other words, reasonable suspicion to stop and search a
motorist depends on ‘the events which occurred leading up to
the stop or search, and then the decision whether these historical
facts, viewed from the standpoint of an objectively reasonable
police officer, amount to reasonable suspicion.’” Id. (quoting
Ornelas v. United States, 517 U.S. 690, 696 (1996)).
A finding of reasonable suspicion does not demand “a
meticulously accurate appraisal” of the facts. United States v.
Coplin, 463 F.3d 96, 101 (1st Cir. 2006). Indeed, “[s]tops
premised on mistakes of fact . . . generally have been held
constitutional so long as the mistake is objectively reasonable.”
Id. (although defendant’s driver’s license valid, traffic stop
objectively reasonable because police cruiser computer indicated
license suspended); see also United States v. Miguel, 368 F.3d
1150, 1153-54 (9th Cir. 2004) (although vehicle properly
registered, traffic stop objectively reasonable because police
cruiser computer indicated registration expired). In Hill, for
 8

example, the police stopped the vehicle in which the defendant
was a passenger because they believed its temporary D.C. tags
lacked a Vehicle Identification Number (VIN). 131 F.3d at
1058. Although the district court “concluded that it was
impossible to determine whether Hill’s temporary tags actually
had a VIN on them at the time Hill’s car was stopped,” id. at
1060, it denied the defendant’s motion to suppress “on the
ground that the police officer that stopped Hill’s car believed
that he had violated the traffic laws,” id. at 1059. Believing that
the district court had “applied a subjective reasonableness test to
the officer’s decision to stop Hill’s car, rather than the objective
reasonableness test that is required in such situations,” id. at
1060, we reversed the district court. We explained that
the record . . . contain[ed] no information regarding the
conditions under which the officer first observed Hill’s
car—e.g., how far away the police cruiser was from
Hill’s car at the time the officer first observed the tags,
the quality of the lighting, how quickly Hill’s car was
moving, etc.—and whether, given those conditions, it
was objectively reasonable for the officer to conclude
that the tags were missing a VIN.
Id. We also observed that
[i]t was not necessary for the court to determine whether
or not a VIN actually appeared on Hill’s temporary tags
at the time of the traffic stop. Even if the court assumed
that . . . the tags contained a VIN at the time of the stop,
the stop was still permissible as long as the officer’s
belief that the VIN was missing was objectively
reasonable.
Id. at 1060 n.3 (emphasis added).
Unlike stops premised on mistakes of fact, “[s]tops premised
on a mistake of law, even a reasonable, good-faith mistake, are
generally held to be unconstitutional.” Coplin, 463 F.3d at 101;
 9

see also United States v. McDonald, 453 F.3d 958, 961-62 (7th
Cir. 2006); United States v. Cole, 444 F.3d 688, 689 (5th Cir.
2006). But see United States v. Bueno, 443 F.3d 1017, 1024 (8th
Cir. 2006) (“We have held, however, that neither mistake of law
nor mistake of fact renders a traffic stop illegal so long as the
officer’s actions were objectively reasonable in the
circumstances.”). A stop is lawful despite a mistake of law,
however, if an objectively valid basis for the stop nonetheless
exists. United States v. Southerland, 486 F.3d 1355 (D.C. Cir.
2007); see also United States v. Delfin-Colina, 464 F.3d 392,
399 (3d Cir. 2006) (“In situations where an objective review of
the record evidence establishes reasonable grounds to conclude
that the stopped individual has in fact violated the traffic-code
provision cited by the officer, the stop is constitutional even if
the officer is mistaken about the scope of activities actually
proscribed by the cited traffic-code provision.”); cf. Devenpeck
v. Alford, 543 U.S. 146, 153 (2004) (officer’s “subjective reason
for making the arrest need not be the criminal offense as to
which the known facts provide probable cause”); United States
v. Bookhardt, 277 F.3d 558, 566 (D.C. Cir. 2002) (probable
cause to arrest exists even if arresting officer made “honest
mistake of law” so long as “objectively valid ground” for arrest
exists). In Southerland, two MPD officers conducted a traffic
stop because they observed a Maryland license plate on the
dashboard of the defendant’s vehicle. Id. at 1357. Both officers
“testified to their belief that Maryland law requires that the plate
be placed on the bumper.” Id. at 1359. The prosecution,
however, conceded that the officers were mistaken—Maryland
law in fact requires only that the plate be “on the front” of the
vehicle, “in a horizontal position,” “securely fastened” and
“clearly visible.” Id. (internal quotations and alterations
omitted). We nevertheless held that “[i]n light of [Maryland’s]
requirements” that the plate be “securely fastened” and “clearly
visible,” the officers reasonably conducted the stop “even
assuming they were mistaken that the law required display of the
 10

front plate on the bumper.” Id. (citing Bookhardt, 277 F.3d
558).
Here, the police officers conducted a traffic stop because,
when they passed Booker’s vehicle traveling in the opposite
direction, they observed a “temporary tag,” Tr. 11/18/03, at 26,
displayed “[i]n the windshield on the front right side” rather than
in a “bracket” on the front bumper, id. at 6. The district court,
however, found that a “dealers’ plate” was affixed to the rear of
Booker’s vehicle,5 id. at 72, and subsection 422.2 of title 18 of
the D.C. Code of Municipal Regulations provides: “Motorized
. . . vehicles identified by a dealer’s tag . . . shall display only
one (1) valid identification tag on the rear of the vehicle.” D.C.
Mun. Reg. § 18-422.2 (emphases added). Nevertheless, the
district court held that the officers’ decision to stop Booker’s
vehicle was objectively reasonable. The court explained that it
was “undisputed” that the front tag was improperly displayed
regardless whether it was a “regular tag[]” or a “dealer tag[]”
and, thus, “the officers’ initial sighting of the Crown Victoria
gave them reason to believe that it was operating in violation of
the D.C. Code requirements for tags.” Booker, slip op. at 9. The
court also concluded that there was “no basis to fault the officers
for having failed to study the rear tag and realize that it might
have been a dealer tag” because “after making a U-turn and
pulling up next to the Crown Victoria, the officers’ attention was
distracted by the immediate departures of the driver and

5
The record contains no evidence that a dealer’s tag was in fact on
the rear of Booker’s vehicle. Indeed, the Dealer Temporary Tag
Status Report (DTTSR) that Booker introduced during the suppression
hearing simply manifested that a dealer’s tag was issued. See DTTSR
at 1 (Nov. 13, 2003) (JA 102) (“Dealer Temporary Tag” issued for
Crown Victoria on May 6, 2003 and expired on June 5, 2003). The
Government, however, did not challenge the district court’s finding at
the suppression hearing nor in its brief to us.
 11

passenger; indeed, when the passenger took flight, their attention
was understandably diverted.” Id. 9-10.
Booker argues that “there was no probable cause to stop him
for any [traffic] violation because the tags on the car did not
actually violate any regulation, and . . . a stop based on such a
mistake of law is invalid.” Reply Br. at 1. Specifically, he
contends that D.C. Mun. Reg. § 18-422.4—which requires
“[o]wner’s identification tags” to be “securely fastened”6—does
not apply to the dealer’s tag located “[i]n the windshield on the
front right side” of his vehicle, Tr. 11/18/03, at 6. He also
maintains that whether the front tag was properly displayed is
irrelevant because the dealer’s tag displayed on the rear of the
vehicle complied with subsection 422.2. Finally, he claims the
record does not support the court’s conclusion that the officers
were too “distracted” to notice the properly displayed dealer’s
tag. The Government makes two arguments: (1) subsection 18-
422.2 provides that there need be only one dealer’s tag on the
rear of the vehicle so that a temporary tag on the front violates
subsection 18-422.2, and (2) because the police had already seen
“an illegally displayed front tag,” they “still would have had a
basis to investigate that criminal violation, whether or not they
had realized that there was a valid dealer tag on the rear of the
car.” Appellee’s Br. 16, 19 & n.13.

6
Subsection 422.4 provides:

Owner’s identification tags shall at all times be securely
fastened in a horizontal position to the vehicle for which they
are issued so as to prevent the tags from swinging and at a
height of not less than twelve inches (12 in.) from the ground,
measuring from the bottom of the tags, in a place and position
to be clearly visible.

D.C. Mun. Reg. § 18-422.4.
 12

We agree with the district court that the traffic stop was
objectively reasonable. The officers here, like the officers in
Southerland, conducted a traffic stop because they mistakenly
believed that license plates must be displayed on the front and
rear bumpers of a vehicle. Tr. 11/18/03, at 6. Notwithstanding
Booker had in fact committed no traffic violation—a dealer’s
tag was properly displayed on the rear of the vehicle—the
officers’ mistaken belief to the contrary when they first saw the
license plate displayed in Booker’s windshield was objectively
reasonable and the traffic stop was therefore lawful. See United
States v. Glover, 851 A.2d 473, 476 (D.C. 2004) (police had
“objective reason” to believe driver violated D.C. Code by
“propp[ing] up” tag against front windshield rather than
“securely fasten[ing]” it to front of car). The district court also
concluded that the police officers reasonably failed to notice the
rear tag because they were “distracted” when they approached
Booker’s vehicle. See Hill, 131 F.3d at 1060 n.3 (“Even if the
court assumed that . . . the tags contained a VIN at the time of
the stop, the stop was still permissible as long as the officer’s
belief that the VIN was missing was objectively reasonable.”).
While the officers did not testify regarding the rear tag, we
believe the record supports the inference the district court drew
that their failure to notice the rear tag was reasonable. See
Brown, 334 F.3d at 1164 (“[W]e . . . give due weight to
inferences drawn from th[e] facts.” (internal quotation omitted)).
By the time the officers reversed direction and began pursuit,
Booker’s vehicle had “made a series of turns” inside a “U
shape[d] development” and was “approximately three to four
blocks away.” Tr. 11/18/03, at 8. Consequently, the officers
were not close enough to observe the vehicle’s rear bumper until
they “came around [a] corner” and saw Booker and his
passenger exiting the parked vehicle.7 See id. at 17-18. At that

7
The dissent suggests that Booker’s vehicle stopped because the
officers “‘pulled directly behind it.’” Dis. at 3 (quoting Tr. 11/18/03,
 13

point, the officers parked their vehicle “alongside” Booker’s, id.
at 16, and reasonably focused their attention on the exiting
occupants. Accordingly, their failure to notice the rear tag was
an objectively reasonable mistake of fact.8
To sum up, although Booker had not violated any law
regarding the display of tags, the officers reasonably thought
initially that he had and then, again, reasonably, failed to
recognize that he had not.

at 8 (alteration and emphasis omitted)). It ignores, however, Officer
Wymbs’s testimony that when the officers “c[aught] up” to Booker’s
vehicle, it had already parked. Tr. 11/18/03, at 9 (“Q. Did [Booker’s
vehicle] stop pursuant to any efforts you made to stop it or did it stop
by itself? A. It stopped by itself.”); see also id. at 7-8 (“Q. When you
said that you got behind the vehicle, does that mean you made a U
turn? A. We made a U turn, that’s correct. Q. Were you directly
behind the vehicle once you made the U turn? A. No.”). Moreover,
because Booker did not stop in response to the police, the officers
reasonably assumed that Booker and his passenger would not remain
at the vehicle and reasonably focused on stopping them. Whether
Booker’s passenger fled as the officers parked their vehicle and got
out is, contrary to the dissent’s assertion, immaterial. See Dis. at 5.
8
In a letter submitted pursuant to Federal Rule of Appellate
Procedure 28(j), the Government argued that both the front and rear
tags were “special use identification tags.” Letter from Jeffrey A.
Taylor, United States Attorney, to Mark J. Langer, Clerk 2-3 (May 17,
2007). We disagree. “Special use tags may be issued under
circumstances in which it would be unreasonable or impractical to
obtain a registration for a motor vehicle.” D.C. Mun. Reg. § 426.2.
Section 426.5 of the D.C. Municipal Regulations states that “[s]pecial
use tags shall be issued for a period not to exceed twenty (20) days.”
Id. § 426.5 (emphasis added). According to the DTTSR Booker
introduced during the suppression hearing, the dealer’s tag on
Booker’s vehicle expired in thirty days. DTTSR at 1 (JA 102).
 14

2. Search of Vehicle
“Warrantless searches are presumptively unreasonable[.]”
United States v. Karo, 468 U.S. 705, 717 (1984). “A warrantless
search is permitted, however, if it occurs incident to a lawful
arrest.” United States v. Mapp, 476 F.3d 1012, 1016 (D.C. Cir.
2007) (internal quotation omitted). Police officers may search
a defendant’s vehicle incident to an arrest “[s]o long as [the]
arrestee is [a] ‘recent occupant’ of [the] vehicle.” Thornton v.
United States, 541 U.S. 615, 623-24 (2004). Doing so
“‘allow[s] officers to ensure their safety and to preserve
evidence by searching the entire passenger compartment.’”
Mapp, 476 F.3d at 1019 (quoting Thornton, 541 U.S. at 623).
“‘[A]n arrestee’s status as a “recent occupant” may turn on
his temporal or spatial relationship to the car at the time of the
arrest and search.’” Id. at 1019 (quoting Thornton, 541 U.S. at
622). In Mapp, we held that the defendant qualified as a “recent
occupant” because he was arrested “at the hood of” a police
cruiser, id. at 1019, parked “directly behind” his vehicle, id. at
1014, and he was searched “around ten minutes after he was
arrested,” id. at 1019. We explained that “Mapp was close
enough to his car to justify the search” and that the search “was
not so separated in time or by intervening events that [it] cannot
fairly be said to have been incident to the [arrest].” Id. (internal
quotation omitted) (2d alteration in original).
We believe that Booker, like Mapp, qualifies as a “recent
occupant,” and accordingly, the search of his vehicle was
proper. Although the record does not reveal Booker’s precise
location at the time of his arrest—which occurred after Officer
Glenn returned from pursuing the fleeing passenger—he was
only “three steps away” from the vehicle when Officer Wymbs
handcuffed him. Booker, slip op. at 5. Thus, he “was close
enough to his car to justify the search.” Mapp, 476 F.3d at
1019; see also United States v. Poggemiller, 375 F.3d 686, 687-
88 (8th Cir. 2004) (defendant was recent occupant when arrested
 15

ten to fifteen feet from his car). Moreover, the record suggests
that the search occurred immediately after the arrest. See Tr.
11/18/03, at 12 (“Q. What happened after he was placed under
[arrest]? A. A search of the vehicle incident to his arrest
revealed a black book bag.”); see also United States v. Weaver,
433 F.3d 1104, 1106 (9th Cir. 2006) (ten to fifteen minute delay
contemporaneous).
Because both the stop and the search of Booker’s vehicle
were lawful under the Fourth Amendment, we affirm the district
court’s denial of his motion to suppress.
B. Guilty Plea Claim
Booker argues that the “factual basis for [his] plea was
woefully inadequate.” Appellant’s Br. at 33. Specifically, he
contends that the district court failed to expressly inquire into
the “intent to distribute” element of his offense. Because
Booker did not raise this objection below, we review his claim
for plain error only. See Fed. R. Crim. P. 52(b) (“A plain error
that affects substantial rights may be considered even though it
was not brought to the court’s attention.”); see also United
States v. Washington, 115 F.3d 1008, 1010 (D.C. Cir. 1997).
Under that standard, we will remedy a trial court error only if
there is “(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s]
substantial rights’ . . . [and] (4) the error ‘seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.’”
Johnson v. United States, 520 U.S. 461, 466-67 (1997) (quoting
United States v. Olano, 507 U.S. 725, 732 (1993)). An error
“affect[s] substantial rights” if it is “prejudicial.” Olano, 507
U.S. at 734. To demonstrate prejudice in the context of a guilty
plea, an appellant must “show a reasonable probability that, but
for the error, he would not have entered the plea.” United States
v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
In his brief, see Appellant’s Br. at 33, Booker expressly
disavows that he is raising his claim under Federal Rule of
 16

Criminal Procedure 11. See Fed. R. Crim. P. 11(b)(3) (“Before
entering judgment on a guilty plea, the court must determine that
there is a factual basis for the plea.”). At oral argument, Booker
explained that he did not rely on Rule 11 because he could not
demonstrate, as required by Dominguez Benitez, that “but for the
error, he would not have entered the plea.” 542 U.S. at 83.
Because, as he forthrightly concedes, Booker cannot make that
showing, he perforce cannot demonstrate prejudice, see Olano,
507 U.S. at 734 (error “prejudicial” if it “affected the outcome
of the district court proceedings”), and accordingly cannot
demonstrate plain error.

For the foregoing reasons, the judgment of the district court
is affirmed.
So ordered.
 ROGERS, Circuit Judge, dissenting: The question in this
appeal is whether, despite a mistake of law, the police had an
objectively reasonable valid basis for stopping Booker for
violating District of Columbia regulations on vehicle tags.
Although I agree that the officers had reasonable suspicion to
investigate, upon seeing a temporary tag in the front windshield,
whether Booker’s car had a tag properly displayed on the rear,
there is no evidence to support the conclusion that the officers’
subsequent failure to notice the rear tag was objectively
reasonable, much less to support speculation that the officers
“were not close enough” to see the rear tag, Op. at 12.

“Stops premised on a mistake of law, even a reasonable,
good-faith mistake, are generally held to be unconstitutional.”
United States v. Coplin, 463 F.3d 96, 101 (1st Cir. 2006) (citing
United States v. McDonald, 453 F.3d 958, 961-62 (7th Cir.
2006); United States v. Chanthasouxat, 342 F.3d 1271, 1277-80
(11th Cir. 2003)); see United States v. Cole, 444 F.3d 688, 689
(5th Cir. 2006). But see United States v. Bueno, 443 F.3d 1017,
1024 (8th Cir. 2006). A stop is lawful despite a mistake of law,
however, if an objectively reasonable valid basis for the stop
nonetheless exists. See United States v. Southerland, 486 F.3d
1355, 1358-59 (D.C. Cir. 2007); see also United States v. Delfin-
Colina, 464 F.3d 392, 399 (3d Cir. 2006); cf. United States v.
Bookhardt, 277 F.3d 558, 56 (D.C. Cir. 2002). “Whether a stop
is reasonable turns on whether the facts, ‘viewed from the
standpoint of an objectively reasonable police officer, amount to
reasonable suspicion’ that a traffic violation has occurred.”
Southerland, 486 F.3d at 1359 (quoting Ornelas v. United
States, 517 U.S. 690, 696 (1996)); see also United States v. Hill,
131 F.3d 1056, 1059 (D.C. Cir. 1997). “[S]tops premised on
mistakes of fact . . . generally have been held constitutional so
long as the mistake is objectively reasonable.” Coplin, 463 F.3d
at 101 (citing United States v. Miguel, 368 F.3d 1150, 1153 (9th
Cir. 2004); United States v. Cashman, 216 F.3d 582, 587 (7th
Cir. 2000)).
 2

District of Columbia law provides that “[i]t shall be
unlawful . . . [f]or any person to operate any motor vehicle . . .
upon any public highway of the District of Columbia . . . [i]f
such motor vehicle . . . does not have attached thereto and
displayed thereon the identification tags required therefor.”
D.C. CODE § 50-1501.04(a)(1)(B). District of Columbia
regulations provide that “vehicles identified by a dealer’s tag .
. . shall display only one (1) valid identification tag on the rear
of the vehicle.” MUN. REG. tit. 18, § 422.2. The evidence shows
that upon seeing Booker’s approaching car, one of three officers
in an unmarked car driving in the opposite direction noticed the
temporary tag in the front windshield. See Op. at 10. They
decided to stop Booker’s car because they thought that District
of Columbia law required the tag to be displayed in brackets on
the front of the car. See id. at 2 (citing Mem. Op. of Oct. 29,
2005 at 2). Despite their mistake of law, the officers
nonetheless had an objectively reasonable basis to suspect that
Booker did not have a properly displayed tag on the rear of his
car and to investigate further. However, the record does not
support the further conclusion that the officers’ failure to notice
the rear tag on Booker’s car was objectively reasonable. The
three officers were members of the auto theft unit of the
Metropolitan Police Department, which investigates stolen cars,
fraudulent tags, and other “things of that nature,” Tr. Nov. 18,
2003 at 5, and they had ample opportunity, prior to stopping
Booker, to determine whether there was a tag on the rear of
Booker’s car and failed to do so, instead relying on a mistake of
fact that was no longer reasonable.

After noticing the temporary tag in the windshield of
Booker’s approaching vehicle, the officers “made a U-turn” in
their car and “a series of turns” to catch up with Booker. Id. at
8. “From the point where [the officers] made the U turn until
the point where [they] stopped [Booker after seeing his parked
car],” there were no vehicles between the officers’ car and
 3

Booker’s car. Id. “[T]o indicate to [Booker’s] vehicle that it
should stop,” the officers “[p]ulled directly behind it.” Id.
(emphasis added); see id. at 7. When the officers finally caught
up to Booker’s car, after coming around a corner, Booker was in
the process of exiting the car in that his feet were on the ground.
Id. at 18-19.

The district court found that the initial stop of Booker was
lawful. By the time one of the three officers reached Booker
and handcuffed him, however, the district court found that
“[Booker] had, at best, the chance to take three steps away from
the car.” Id. at 5. Further, the passenger did not start running
until after the officer had exited his car, identified himself as a
police officer, and ordered the men to stop. Id. at 2.
Nonetheless, the district court found that the officers’ failure to
notice the rear tag was reasonable because when they pulled up
to Booker’s parked car, they were “distracted by the immediate
departures of the driver and the passenger; indeed when the
passenger took flight, their attention was understandably
diverted.” Id. at 9. This court adopts that finding, stating that
prior to that time “the officers were not close enough” to see the
rear tag. Op. at 12. Neither the district court’s finding nor this
court’s speculation that the officers “were not close enough,” id.,
to see the rear tag can absolve the government of its failure to
meet its burden to show that the stop was lawful. See, e.g.,
United States v. Davis, 235 F.3d 584, 587 (D.C. Cir. 2000); Am.
Fed’n of Gov’t Employees v. Skinner, 885 F.2d 884, 894 (D.C.
Cir. 1989).

First, there is no evidence that would demonstrate that the
officers were unable to see the rear of Booker’s car, and
specifically the rear tag, at any point during the entire pursuit.
To the contrary, the police followed the car for blocks, turned
where the car turned, and, according to the officer’s testimony,
“pulled directly behind it .” Tr. Nov. 18, 2003 at 8 (emphasis
 4

added). This court’s reliance on a MapQuest image that it
retrieved from the internet, see Op. at 2-3 & nn.2, 3, does not fill
the evidentiary gap; the image shows roads running north and
south and the curved road Booker’s car traveled before it was
parked, but it does not show that during the pursuit the officers
were unable to see the rear tag on Booker’s car. The district
court made no findings that would support the court’s inference
that the officers “were not close enough” to see the rear tag on
Booker’s vehicle, id. at 12. At best, the district court
hypothesized, on the basis of less “complicated [facts],” that the
officers “might not have known [there was a dealer’s tag] by
following the car at some distance for a couple of blocks.” Tr.
Nov. 18, 2003 at 72.

Second, even assuming that the officer’s testimony about
the distance that Booker’s car traveled could be interpreted to
mean that Booker had already traveled three to four blocks by
the time the officers made a U-turn to follow the car — as
opposed to when the officers caught up to it after it was parked
— this evidence does not support an inference that the officers
were three to four blocks behind Booker’s vehicle during the
entire pursuit. See Op. at 12 (citing Tr. Nov. 18, 2003 at 8).
Rather, the district court’s finding understood the officer’s
testimony to be that Booker’s vehicle was parked three to four
blocks away from the place where the officers initially sighted
it — not that the cars were separated by three to four blocks
during the pursuit. See Mem. Op. at 2. Indeed, one of the
officers testified that the police car and Booker’s car were closer
during the pursuit: “[We] [p]ulled directly behind [Booker’s
vehicle]” to indicate . . . that it should stop. Tr. Nov. 18, 2003
at 8 (emphasis added). When asked whether he “s[aw] [Booker]
make any movements in the car” “[d]uring the three or four
blocks that [Booker] traveled,” the officer did not testify that he
was not close enough to see any movements, much less to see
the rear tag on the car, but instead answered, “No, I did not.” Id.
 5

at 16. If the officers were close enough at any point during the
pursuit to see Booker’s movements inside the car, then they
were close enough to see whether there was a tag on the rear of
his car.

Third, the fact that the officers had an objectively
reasonable basis for investigating upon initially seeing the
temporary tag in the front windshield is insufficient to show
their suspicion continued to be reasonable forever. See Op. at
12-13. The court relies on the district court’s finding that “after
making a U-turn and pulling up next to [Booker’s car], the
officers’ attention was distracted by the immediate departures of
[Booker] and [the] passenger,” so “there [wa]s no basis to fault
the officers for having failed to study the rear tag and realize that
it might have been a dealer tag.” Mem. Op. at 9-10. But there
was no testimony that the officers were distracted; as the officer
explained, when they caught up with the car, Booker had exited
the car only in the sense that his feet were on the ground and the
passenger did not begin to run until after the officer had stepped
out of the car, identified himself, and ordered the men to stop.
Additionally, upon approaching Booker’s parked car from the
rear, the officers had to notice only that there was a rear tag —
they did not need to ascertain what type of tag it was, which
would have required closer examination — because having seen
a temporary tag in the front windshield, seeing a tag on the rear
of the car would dispel the officers’ initially reasonable
suspicion that Booker was violating District of Columbia law.
From the evidence that the officers followed the car for several
blocks and then approached the parked car from behind and
stopped, it is inconceivable that the officers from the auto theft
unit would not have noticed the rear tag.

As Booker argued to the district court, and that court
ignored, and as he argues on appeal, “there is no evidence in the
record that supports the district court’s speculation about the
 6

officers’ actions,” as neither of the two officers who testified
claimed that they or the third officer were “‘distracted’ as they
pulled up behind car.” Appellant’s Br. at 20; see Tr. Nov. 18,
2003 at 64. “Neither [did the officers] testif[y] that they were
unable to determine that the rear tag was also a dealer’s tag,” id.,
much less that they were unable to see a rear tag at all. Because
the evidence does not support the conclusion that a reasonable
officer, particularly one trained to look for stolen cars and
fraudulent tags, would not have glanced at the rear of Booker’s
car or not had an opportunity to do so at any point during the
pursuit to determine whether there was a rear tag, the district
court erred in denying Booker’s motion to suppress the evidence
found in the car. Accordingly, I respectfully dissent.