USA v. Kadeem Moore

Filing

Opinion issued by court as to Appellant Kadeem C. Moore. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 13-15413

Date Filed: 06/26/2014

Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15413
Non-Argument Calendar
________________________
D.C. Docket No. 3:13-cr-00059-RV-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KADEEM C. MOORE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(June 26, 2014)
Before TJOFLAT, WILSON and FAY, Circuit Judges.

PER CURIAM:

Case: 13-15413

Date Filed: 06/26/2014

Page: 2 of 10

A Northern District of Florida grand jury indicted Kadeem Moore for
possession with intent to distribute cocaine, cocaine base, and hydrocodone, in
violation of 21 U.S.C. § 841(a)(1) (“Count One”), and (2) for being a felon in
possession of a firearm, a Ruger 9 millimeter pistol, in violation of 18 U.S.C. §
922(g)(1) (“Count Two”). Moore subsequently moved the District Court to
suppress evidence that was obtained and statements he made during a traffic stop
on October 6, 2012, in Pensacola, Florida. He argued that the stop violated the
Fourth Amendment prohibition against unreasonable searches and seizures because
(1) the traffic stop was not justified, and (2) even if it was, the stop was
unreasonably prolonged. 1
The District Court denied Moore’s motion, and pursuant to a plea
agreement, he entered conditional pleas of guilty to both counts of the indictment,
reserving his right to challenge the suppression ruling on appeal. The District
Court thereafter sentenced Moore to concurrent prison terms of 110 months.
Moore now appeals the District Court’s suppression ruling and his sentences—on
the ground that they are procedurally unreasonable because the court erred in
determining that Count Two involved four or more firearms. We affirm.

1

In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court ruled that the Fourth
Amendment applies to the States by way of the Due Process Clause of the Fourteenth
Amendment.
2

Case: 13-15413

Date Filed: 06/26/2014

Page: 3 of 10

I.
We review a district court’s denial of a motion to suppress as a mixed
question of law and fact. United States v. Lewis, 674 F.3d 1298, 1302 (11th Cir.
2012). Rulings of law are reviewed de novo, while findings of fact are reviewed
for clear error, in the light most favorable to the prevailing party, here, the
Government. Id. at 1302-03. We afford considerable deference to the district
court’s credibility determinations because the court is “in a better position than a
reviewing court to assess the credibility of witnesses.” United States v. RamirezChilel, 289 F.3d 744, 749 (11th Cir. 2002). We must accept the version of events
adopted by the district court “unless it is contrary to the laws of nature, or is so
inconsistent or improbable on its face that no reasonable factfinder could accept
it.” Id. (quotations omitted).
The Fourth Amendment protects individuals from unreasonable searches and
seizures. Lewis, 674 F.3d at 1303. A court must examine the totality of the
circumstances in order to determine whether a search or seizure is reasonable
under the Fourth Amendment. Id. “Rigid time limitations and bright-line rules”
are not appropriate in determining reasonableness. United States v. Purcell, 236
F.3d 1274, 1279 (11th Cir. 2001).

3

Case: 13-15413

Date Filed: 06/26/2014

Page: 4 of 10

When police stop a motor vehicle, even for a brief period, a Fourth
Amendment “seizure” occurs. Whren v. United States, 517 U.S. 806, 809-10, 116
S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). Under Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968), law enforcement officers may seize a suspect
for a brief, investigatory stop, but that stop “must be reasonably related in scope to
the circumstances which justified the interference in the first place.” United States
v. Ramirez, 476 F.3d 1231, 1236 (11th Cir. 2007) (quotations omitted). Also, “the
duration of the traffic stop must be limited to the time necessary to effectuate the
purpose of the stop.” Id. (quotations omitted). The officer’s subjective intentions
play no role in the legal analysis. Whren, 517 U.S. at 813, 116 S.Ct. at 1774.
An officer may prolong a traffic stop in two circumstances. United States v.
Boyce, 351 F.3d 1102, 1106 (11th Cir. 2003). First, officers may “prolong the
detention to investigate the driver’s license and the vehicle registration, and may
do so by requesting a computer check.” Id. (quotations omitted); see also Purcell,
236 F.3d at 1278-79 (officer’s request for criminal history as part of a routine
computer check does not violate Fourth Amendment so long as the check does not
unreasonably prolong the stop). Officers may also ask questions, even those
unrelated to the original purpose of the stop, so long as the questioning does not
“measurably extend the duration of the stop.” United States v. Griffin, 696 F.3d
1354, 1362 (11th Cir. 2012) (quotation omitted), cert. denied, 134 S.Ct. 956
4

Case: 13-15413

Date Filed: 06/26/2014

Page: 5 of 10

(2014). Second, an officer may prolong a stop if he has “articulable suspicion of
other illegal activity.” Boyce, 351 F.3d at 1106 (quotation omitted); see also
United States v. Spoerke, 568 F.3d 1236, 1248-49 (11th Cir. 2009) (extension of
stop must be based on an “objectively reasonable and articulable suspicion” that
illegal activity had occurred or was occurring). “When 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.” United States v. Simms, 385 F.3d 1347, 1354 (11th
Cir. 2004) (quotation omitted). Reasonable suspicion thus requires more than “an
inchoate and unparticularized suspicion or hunch of criminal activity.” Id.
(quotation omitted). Generally, when all computer background checks have been
performed, the citation is written, and the police officer returns the driver’s license,
the traffic violation investigation is complete and the driver is free to go. See
Boyce, 351 F.3d at 1107.
A Fourth Amendment violation may occur when police conduct a dog sniff
and uncover contraband while an individual is unlawfully detained, e.g., “during an
unreasonably prolonged traffic stop.” Illinois v. Caballes, 543 U.S. 405, 407-08,
125 S.Ct. 834, 837, 160 L.Ed.2d 842 (2005). Moreover, “[t]he police cannot base
their decision to prolong a traffic stop on the detainee’s refusal to consent to a
search.” Boyce, 351 F.3d at 1110. However, a dog sniff that does not
5

Case: 13-15413

Date Filed: 06/26/2014

Page: 6 of 10

unreasonably prolong the traffic stop is not a search subject to the Fourth
Amendment, and based on this principle, the Supreme Court has rejected the
notion that the mere act of a dog sniff transforms a lawful traffic stop into a drug
investigation that was unlawful because it was not supported by reasonable
suspicion. Caballes, 543 U.S. at 408-09, 125 S.Ct. at 837-38 (holding that the
Fourth Amendment does not require reasonable suspicion to justify using a drugdetection dog to sniff a car during a legitimate traffic stop).
Here, the duration of the traffic stop was approximately 24 minutes, starting
when the police officer stopped the car and concluding when a drug-sniffing dog
alerted to the drugs. The District Court credited the testimony given by the police
officer at the suppression hearing and concluded that, under the circumstances, 24
minutes was a reasonable duration for the traffic stop. Specifically, the court
found, based on the officer’s testimony, that much of that time was spent gathering
and re-verifying information from the car’s occupants, running driver’s license and
warrant checks, and writing a citation using a computer system and statute the
officer was unfamiliar with. Accepting the version of facts adopted by the court,
we cannot say that the court erred in concluding that the duration of the stop here
was reasonable and constitutional. Accordingly, Moore’s convictions are affirmed.
II.

6

Case: 13-15413

Date Filed: 06/26/2014

Page: 7 of 10

Moore argues that the District Court erred in applying a two-level
enhancement to the offense level under U.S.S.G. § 2K2.1(b)(1)(A) because the
Government failed to prove his possession of four firearms by a preponderance of
the evidence. We review the court’s application of the sentencing guidelines de
novo and its findings of fact for clear error. United States v. Demarest, 570 F.3d
1232, 1239 (11th Cir. 2009). For sentencing purposes, possession of a firearm
involves a factual finding. United States v. Stallings, 463 F.3d 1218, 1220 (11th
Cir. 2006). “When a defendant challenges one of the factual bases of his sentence
as set forth in the [PSI], the Government has the burden of establishing the
disputed fact by a preponderance of the evidence.” United States v. Lawrence, 47
F.3d 1559, 1566 (11th Cir. 1995). Similarly, our precedent authorizes a district
court to consider relevant conduct in fashioning a defendant’s sentence so long as
that conduct has been proven by a preponderance of the evidence. United States v.
Saavedra, 148 F.3d 1311, 1314 (11th Cir. 1998); see also United States v.
Valarezo-Orobio, 635 F.3d 1261, 1264 (11th Cir. 2011) (unless otherwise
specified, a convicted defendant's guideline range is determined on the basis of all
relevant conduct). A preponderance of the evidence standard “requires the trier of
fact to believe that the existence of a fact is more probable than its nonexistence.”
United States v. Almedina, 686 F.3d 1312, 1315 (11th Cir.) (quotations omitted),
cert. denied, 133 S.Ct. 629 (2012). “[T]he district court’s factual findings for
7

Case: 13-15413

Date Filed: 06/26/2014

Page: 8 of 10

purposes of sentencing may be based on, among other things, evidence heard
during trial, undisputed statements in the [presentence investigation report], or
evidence presented during the sentencing hearing.” United States v. Louis, 559
F.3d 1220, 1224 (11th Cir. 2009) (quotations omitted) (alterations in original)
(upholding enhancement of a defendant’s sentence pursuant to § 2K2.1(b)(1)(A)
on the basis of criminal conduct not charged in the indictment). We review the
application of the Guidelines’ relevant conduct provision to the facts for clear
error. United States v. Amedeo, 370 F.3d 1305, 1313 (11th Cir. 2004).
Under the Guidelines, if a pertinent firearm offense involved three to seven
firearms, a two-level increase applies. U.S.S.G. § 2K2.1(b)(1)(A). Only those
firearms that were “unlawfully sought to be obtained, unlawfully possessed, or
unlawfully distributed” are to be counted under § 2K2.1(b)(1). § 2K2.1, comment.
(n.5). Possession of a firearm may be either actual or constructive. United States
v. Perez, 661 F.3d 568, 576 (11th Cir. 2011). Under § 1B1.3(a), specific offense
characteristics are determined on the basis of all acts and omissions committed by
the defendant in relation to the subject offense. § 1B1.3(a)(1)(A). For firearmrelated offenses falling under § 2K2.1, relevant conduct includes all acts and
omissions that were part of “the same course of conduct or common scheme or
plan as the offense of conviction.” § 1B1.3(a)(2); see § 3D1.2(d).

8

Case: 13-15413

Date Filed: 06/26/2014

Page: 9 of 10

“Same course of conduct” and “common scheme or plan” are terms of art
defined in the commentary to § 1B1.3. For multiple events to form a common
scheme or plan, they must “be substantially connected to each other by at least one
common factor, such as . . . [a] common purpose, or similar modus operandi.”
§ 1B1.3, comment. (n.9(A)). Two or more events will form the same course of
conduct if “they are sufficiently connected or related to each other as to warrant the
conclusion that they are part of a single episode, spree, or ongoing series of
offenses.” § 1B1.3, comment. (n.9(B)). In evaluating whether two or more
offenses meet this test, the sentencing court should consider “the degree of
similarity of the offenses, the regularity (repetitions) of the offenses, and the time
interval between the offenses.” Id.; see also United States v. Maxwell, 34 F.3d
1006, 1011 (11th Cir. 1994) (concluding that the court should consider “similarity,
regularity, and temporal proximity” between the offense of conviction and the
uncharged conduct). The Guidelines commentary makes clear that § 1B1.3(a)(2) is
designed to take account of “a pattern of misconduct that cannot readily be broken
into discrete, identifiable units that are meaningful for purposes of sentencing.”
§ 1B1.3, comment. (backg’d.).
Although it is likely that the District Court here did not clearly err in
determining that Moore possessed four firearms as part of “relevant conduct”
under U.S.S.G. § 1B1.3, and so properly applied the § 2K2.1(b)(1)(A)
9

Case: 13-15413

Date Filed: 06/26/2014

Page: 10 of 10

enhancement, we need not decide the enhancement issue in this case because a
decision either way will not affect the outcome. Here, the court explicitly stated
that it would have imposed the same 110-month sentence even without the
enhancement. Given Moore’s extensive criminal history involving drugs and other
offenses, a 110-month sentence imposed without the enhancement would still be
both within the applicable guideline range and reasonable under the circumstances.
See United States v. Keene, 470 F.3d 1347, 1349-50 (11th Cir. 2006). Therefore,
any error was harmless, and Moore’s sentences are due to be affirmed.
AFFIRMED.

10