                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                                MAR 11, 2010
                              No. 09-13138                       JOHN LEY
                          Non-Argument Calendar                    CLERK
                        ________________________

                 D. C. Docket No. 07-00203-CR-T-27-MAP

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ADRIAN LORENZO THOMAS,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                              (March 11, 2010)

Before BIRCH, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

     Adrian Lorenzo Thomas appeals his convictions and sentence of 294 months
of imprisonment for possession with the intent to distribute 5 grams or more of

cocaine base, 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), and cocaine hydrochloride, id.

§§ 841(a)(1), (b)(1)(C). Thomas appeals the denial of his motion to suppress, the

admission of tape recorded conversations between him and a confidential

informant, the denial of his motion for a mistrial, and the reasonableness of his

sentence. We affirm.

                                I. BACKGROUND

      We divide our discussion of the background into three parts. First, we

discuss the events that led to Thomas’s indictment. Second, we discuss Thomas’s

challenges to the admission of evidence and his trial. Third, we discuss Thomas’s

sentencing proceedings.

                    A. Thomas’s Misconduct and His Indictment

      On March 7, 2005, Sean Bell and Nathan Sanders, officers of the Tampa

Police Department, arrested a woman named Darlene while executing a search

warrant. Darlene agreed to cooperate with the officers and provided information

that a man named AD would sell her one half of an ounce of cocaine base. Darlene

described AD as a dark-skinned male of medium build, and Darlene said that AD

drove a Lexus sport utility vehicle that was bronze. Darlene told the officers that

she had purchased cocaine from AD in the past, AD visited regularly the Sulphur



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Springs neighborhood of Tampa, and AD associated with a gang called the Drak

Boys.

        Darlene’s description of AD matched that of a man Officer Bell knew as

Adrian Thomas. Officer Bell knew that Thomas used the nickname AD, was a

member of the Drak Boys gang, and drove a Lexus sport utility vehicle that was

silver. When Officer Bell showed Darlene a picture of Thomas, Darlene identified

Thomas as AD.

        Officer Bell instructed Darlene to call Thomas, and the officer tape recorded

two telephone conversations in which Darlene agreed to pay Thomas $435 for one

half of an ounce of cocaine base at a gas station. Officer Bell also tape recorded

other calls between Darlene and Thomas in which Thomas changed the location of

the transaction to a convenience store. Officer Bell accompanied Darlene to the

store and arrested Thomas after Darlene identified him as AD.

        Officers searched Thomas and discovered cocaine base, cash, and keys to a

second Lexus sport utility vehicle. Officer Bell drove to the home of Thomas’s

girlfriend and saw a Lexus sport utility vehicle parked in the driveway. Officer

Bell contacted the owner of the Lexus, who consented to a search of the vehicle.

Inside the vehicle, officers discovered cocaine base, marijuana, and cash.

        Officers also discovered Thomas in possession of drugs on two other



                                           3
occasions. On December 8, 2006, officers stopped Thomas and discovered

marijuana, cocaine hydrochloride, cocaine base, and cash in his vehicle. When an

officer attempted to arrest Thomas, he assaulted the officer and escaped. On

August 29, 2007, officers discovered cocaine hydrochloride, cocaine base, a large

amount of cash, and documents that bore Thomas’s name inside a Range Rover

vehicle that an officer had seen Thomas drive on August 24, 2007.

      Thomas was charged in a superceding indictment for six offenses: two

counts of possession with the intent to distribute 5 grams or more of cocaine base

on March 7, 2005, and December 8, 2006, 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii);

three counts of possession with the intent to distribute cocaine hydrochloride on

March 7, 2005, December 8, 2006, and August 29, 2007, id. §§ 841(a)(1),

(b)(1)(C); and possession with intent to distribute 50 grams or more of cocaine

base on or about August 29, 2007, id. §§ 841(a)(1), (b)(1)(A)(iii). The government

moved to enhance Thomas’s sentence based on his three prior convictions in a

Florida court for possession of marijuana and cocaine.

              B. Thomas’s Motions to Exclude Evidence and His Trial

      Thomas moved to suppress the evidence discovered on March 7, 2007, on

two grounds. First, Thomas argued that the information Darlene provided to

officers was not sufficiently reliable to create reasonable suspicion or probable



                                          4
cause to arrest Thomas without a warrant. Second, Thomas argued that any

evidence discovered after his warrantless arrest was inadmissible.

      At a hearing on the motion to suppress, the government presented testimony

from Officer Bell about the information provided by Darlene, the surveillance of

Thomas, and Thomas’s arrest. Officer Bell testified that Darlene arranged to meet

Thomas at a gas station. Officer Bell stated that he accompanied Darlene to the

gas station, where they observed a silver Lexus sport utility vehicle stop in the

parking lot, but neither Officer Bell nor Darlene were able to identify the driver

before the vehicle drove away. Officer Bell testified that he accompanied Darlene

to the Snax Food Store, he recognized Thomas as he walked into the store, and

when Darlene saw Thomas, she said, “That’s him, that’s him.” On cross-

examination, Officer Bell testified that he arrested Darlene because she had been in

possession of drugs, she agreed to cooperate to “work off [her] charges,” and she

had not provided information to authorities in the past. Officer Bell also testified

that he did not state that he recognized Thomas until after Darlene identified

Thomas at the convenience store.

      The district court denied Thomas’s motion to suppress. The district court

found Officer Bell credible. The court stated that, although Darlene “had never

worked as a confidential informant,” Officer Bell was “able to independently



                                           5
verify information [Darlene] supplied” with information that the officer knew

about Thomas and with the telephone calls between Darlene and Thomas. The

district court ruled that Thomas’s “arrest was supported by probable cause because

a reasonable officer would have believed that [Thomas] was in possession of crack

cocaine and was planning to sell it to [Darlene].”

      Before trial, Thomas moved to exclude from trial the telephone

conversations that Officer Bell had tape recorded. Thomas argued that the

statements of Darlene were inadmissible hearsay and barred by the Confrontation

Clause under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). The

government responded that the conversations were not testimonial, were not

hearsay because they were offered to place in context Thomas’s responses to

Darlene, and were admissible as adoptive admissions under Federal Rule of

Evidence 801(d)(2)(b).

      The district court denied Thomas’s motion to exclude and ruled that the tape

recorded conversations were not hearsay. The district court later explained that the

tape recorded statements were “not hearsay” because “the statements of [Thomas]

would be totally meaningless and unintelligible without [Darlene’s] statements

putting them in context.” At trial, the government played the tape recorded

conversations for the jury. The court later instructed the jury that “[w]hatever the



                                          6
[confidential informant] may have said is offered solely to provide the context of

the conversation between her and the person with whom she was speaking” and

those “statements should not be considered for the truth of the matter asserted.”

        During trial, the government moved to dismiss Thomas’s charges for

possession with the intent to distribute cocaine hydrochloride on March 7, 2005,

and August 29, 2007. The district court instructed the jury that the “charges [had]

been withdrawn and [would] not be subject to [their] consideration.” The next day,

a juror sent the district court a note that asked if he should “consider all testimony.”

At the conclusion of the note, the juror stated that “the extraneous testimony that

we have now been subjected to will be difficult to disregard and may impact our

decision-making process for the remaining cases.”

        Thomas moved for a mistrial based on the note sent by the juror. Thomas

argued that the juror had expressed “an unwillingness or inability to follow the

instructions” and the wording of the note suggested that the jury was “tainted”

because several jurors were confused about what evidence they could consider

during deliberations. After further discussion, Thomas agreed that the district

court should instruct the jury to disregard any testimony or evidence regarding

Thomas’s possession of cocaine hydrochloride on March 7, 2005, and August 29,

2007.



                                           7
      THE COURT: . . . And my suggestion, perhaps an over simplification,
      is that I bring them into the jury room and — or simply write this
      down in response to that inquiry: That because Counts Two and Six
      have been withdrawn, you must disregard any testimony or evidence
      relating to those counts.

      ...

      MS. MILLS: Judge, that’s satisfactory to the Defendant.

      ...

      THE COURT: . . . I think it might be well to bring the panel in,
      because at this point, while we’re assuming that the author of this
      inquiry did not share that information with the other members of the
      panel, we don’t know that for sure. So I’m going to bring in the
      panel, tell them that we have this notation, that we have considered
      the matter and our response to it is as follows, and give that to them.
             Agreeable?

      MS. MILLS: That’s agreeable to us, Judge.

      When the trial resumed, the district court told the jury that it had received a

note from a juror. The district court asked if any jurors were aware of the note, and

the jurors responded negatively. The district court told the jury about the contents

of the note and instructed the jury to “disregard any testimony or evidence relating

to powder cocaine” on March 7, 2005, and August 25, 2007. When the court asked

the parties about the instruction, they responded that they were “satisf[ied]” except

for an error in one of the dates. The district court gave the jury a second

instruction to disregard evidence about Thomas’s possession of cocaine



                                           8
hydrochloride on March 7, 2005, and August 29, 2007. The district court later

instructed the jury to “consider[] separately . . . [e]ach charge and the evidence

pertaining to it.” The court also instructed the jury that its decision about guilt or

innocence “as to one of the offenses charged should not affect [its] verdict as to

any other offense charged.”

        The jury found that Thomas had possessed with the intent to distribute both

cocaine hydrochloride and five grams or more of cocaine base on March 7, 2005,

and Thomas had possessed with intent to distribute five grams or more of cocaine

base on March 7, 2005. The jury acquitted Thomas of the charge that he had

possessed with intent to distribute 50 grams or more of cocaine base on August 29,

2007.

                         C. Thomas’s Sentencing Proceeding

        The presentence investigation report attributed to Thomas 41.6 grams of

cocaine base and 400.4 grams of cocaine hydrochloride, and assigned a base

offense level of 30. United States Sentencing Guideline § 2D1.1 (Nov. 2008). The

report reduced the offense level by two points to adjust for the lesser offense level

of 24 that would have been assigned if Thomas had been charged only for the

cocaine hydrochloride. The report identified Thomas as a career offender, which

increased his total offense level to 37. Id. § 4B1.1. Based on a criminal history of



                                            9
VI, the report provided a guideline range between 360 months and life

imprisonment.

      Thomas did not object to the presentence report, but he requested that the

court sentence him below the guideline range to 15 months of imprisonment. The

district court adopted the report, but the court considered the sentencing factors, 28

U.S.C. § 3553(a), and attributed to Thomas 442 grams of cocaine using a one-to-

one ratio, rather than the 100-to-1 ratio in the Sentencing Guidelines, which

resulted in a sentencing range between 100 and 125 months of imprisonment. The

court did not apply that lower sentencing range because the court found that

Thomas was a career offender and was subject to a sentencing range between 262

and 327 months of imprisonment. The court sentenced Thomas to three concurrent

sentences of 294 months of imprisonment and concurrent terms of six and eight

years of supervised release. The district court explained that its “sentence at the

mid-range is the appropriate sentence given the circumstances of the offense and

the nature and characteristics of the Defendant.”

                          II. STANDARDS OF REVIEW

      We apply four standards of review in this appeal. On denial of a motion to

suppress, we review findings of fact for clear error and the application of law to

those facts de novo. United States v. Steed, 548 F.3d 961, 966 (11th Cir. 2008).



                                          10
Although we review evidentiary rulings for abuse of discretion, United States v.

U.S. Infrastructure, Inc., 576 F.3d 1195, 1208 (11th Cir. 2009), we review de novo

questions of constitutional law, United States v. Cantellano, 430 F.3d 1142, 1144

(11th Cir. 2005). We will not consider an argument waived by the complaining

party. See United States v. Puleo, 817 F.2d 702, 705 (11th Cir. 1987). We review

the sentence imposed by the district court for reasonableness, United States v.

Williams, 526 F.3d 1312, 1321 (11th Cir. 2008), which is a deferential standard of

review for an abuse of discretion, Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.

586, 597 (2007).

                                 III. DISCUSSION

      Thomas challenges his conviction and sentence on four grounds. Those four

arguments fail. We address each argument in turn.

               A. Officer Bell Had Probable Cause to Arrest Thomas.

      Thomas argues that Officer Bell lacked probable cause to arrest him based

on the information provided by Darlene, but we disagree. Although Darlene was a

first time informant, her description and identification of Thomas was consistent

with information that Officer Bell knew about Thomas. See United States v.

Cotton, 721 F.2d 350, 352 (11th Cir. 1983). Darlene spoke to Thomas several

times using a cellular telephone, she provided Officer Bell real time information



                                          11
about changes in the time and location of the drug transaction, and Officer Bell

observed a Lexus vehicle similar to the one owned by Thomas at both locations

where Thomas and Darlene had agreed to transact. See United States v. Kent, 691

F.2d 1376, 1379–80 (11th Cir. 1982); United States v. Reyes, 792 F.2d 536,

539–40 (5th Cir. 1986). The circumstances corroborated Darlene’s statement that

Thomas intended to sell her cocaine and gave Officer Bell probable cause to arrest

Thomas without a warrant and seize all incriminating evidence found in his

possession. See United States v. Lindsay, 482 F.3d 1285, 1291 (11th Cir. 2007)

(“Probable cause to arrest exists when the totality of the facts and circumstances

support ‘a reasonable belief that the suspect had committed or was committing a

crime.’” (quoting United States v. Gordon, 231 F.3d 750, 758 (11th Cir. 2000)).

The district court did not err by denying Thomas’s motion to suppress.

    B. The Tape Recorded Conversations Between Thomas and the Confidential
                          Informant Were Admissible.

      Thomas argues that the admission of tape recorded conversations between

him and Darlene violated his right of confrontation under the Sixth Amendment,

but we disagree. The government offered the conversations to place in context

Thomas’s responses to Darlene, not to establish the truth of Darlene’s statements.

In one conversation, Thomas agreed to sell Darlene half of one ounce of cocaine

base for $435, but Thomas’s portion of the conversation consisted solely of

                                          12
uttering “yeah” to Darlene’s questions. Thomas’s responses are enigmatic without

Darlene’s questions to place them in context. See United States v. Price, 792 F.2d

994, 997 (11th Cir. 1986). Darlene’s statements in the remaining tape recordings

also provide context for Thomas’s cryptic remarks to Darlene about the time and

location of the drug transaction. The district court eradicated any potential

prejudice by instructing the jury that they could consider Darlene’s statements

“solely to provide the context of the conversation.” See United States v. Byrom,

910 F.2d 725, 737 (11th Cir. 1990). The district court did not err by admitting the

taped conversations at trial.

                    C. Thomas Waived His Request for a Mistrial.

      Thomas argues that he was denied a fair trial because a note submitted by an

unidentified juror suggesting that the jury was tainted and confused about what

evidence it could consider during deliberations, but Thomas waived this argument.

Although Thomas moved initially for a mistrial based on the note, he agreed that

any error could be cured by an instruction to the jury, and he later acknowledged

that he was satisfied with the instruction. We will not allow “counsel to preserve

an error for appellate review without giving the trial court a reasonable opportunity

to render a decision upon the same objection.” Puleo, 817 F.2d at 705 (holding

that defendant waived double jeopardy challenge to retrial by failing to object to a



                                          13
mistrial).

                         D. Thomas’s Sentence is Reasonable.

       Thomas’s sentence is procedurally and substantively reasonable. The

district court correctly calculated Thomas’s sentencing range between 262 and 327

months of imprisonment. The presentence investigation report identified Thomas

as a career offender, and Thomas did not object when the district court adopted the

report. United States v. Beckles, 565 F.3d 832, 844 (11th Cir. 2009) (“‘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’” and “‘precludes the argument that there was error

in them.’” (quoting United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006)).

The district court explained that it had considered the advisory sentencing factors,

28 U.S.C. § 3553(a), and concluded that a sentence in the middle of the sentencing

range was necessary to address the seriousness of Thomas’s crimes and his

recidivism. See Gall, 552 U.S. at 51, 128 S. Ct. at 597. The district court did not

abuse its discretion by sentencing Thomas to 294 months of imprisonment.

                                  IV. CONCLUSION

       Thomas’s convictions and sentences are AFFIRMED.




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