                                                    [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________  ELEVENTH CIRCUIT
                                                           APRIL 22, 2009
                            No. 08-13207                 THOMAS K. KAHN
                        Non-Argument Calendar                 CLERK
                      ________________________

                   D. C. Docket No. 07-20785-CR-UU

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

PHILLIP WALTON,

                                                       Defendant-Appellant.


                      ________________________

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

                            (April 22, 2009)

Before TJOFLAT, DUBINA and ANDERSON, Circuit Judges.

PER CURIAM:
      Phillip Walton appeals his convictions for possession with intent to

distribute a detectable amount cocaine base, in violation of 21 U.S.C. § 841;

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1);

and possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d); and

his aggregate 300-month custodial sentence. On appeal, Walton challenges the

district court’s denial of his motion to suppress the evidence. Walton argues that

(1) the magistrate judge made improper credibility determinations during the

hearing on the motion to suppress; (2) the warrantless arrest inside his apartment

was not justified by exigent circumstances; (3) his subsequent consent to search

the apartment was not voluntary; and (4) his post-arrest statements were not

voluntary. Walton also contends that the admission of hearsay evidence at trial

violated the Confrontation Clause and, in the alternative, should have been

excluded under Federal Rule of Evidence 403. Lastly, Walton maintains that his

300-month, within-range sentence is unreasonable. For the reasons set forth

below, we affirm.

                            STANDARD OF REVIEW

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

of law and fact. United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000).

We review the district court’s application of the law to the facts de novo, but

                                          2
accept the district court’s factual findings unless they are clearly erroneous. Id.

Additionally, we construe the facts in the light most favorable to the prevailing

party. Id. In cases where a magistrate judge has made a credibility determination

based on an assessment of witnesses’ in-court testimony, we “defer to the

magistrate judge’s determinations unless his understanding of the facts appears to

be unbelievable.” United States v. Ramirez-Chilel, 289 F.3d 744,

749 (11th Cir. 2002) (internal quotation marks omitted).

      We review de novo the scope of the Confrontation Clause. United States

v. Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005). However, we review a

district court’s evidentiary ruling for an abuse of discretion. Conroy v. Abraham

Chevrolet-Tampa, Inc., 375 F.3d 1228, 1232 (11th Cir. 2004).

                                   DISCUSSION

      For the reasons set forth below, we conclude that the district court did not

err in denying Walton’s motion to suppress the evidence. Second, we conclude

that there was no violation of the Confrontation Clause and the district court did

not abuse its discretion in declining to exclude testimony under Federal Rule of

Evidence 403. Finally, we discern no error in the district court’s application of the

sentencing guidelines.

      A. The Motion to Suppress the Evidence

                                          3
       Having reviewed the record and the briefs of the parties, we conclude that

the district court properly denied Walton’s motion to suppress the physical

evidence seized from his apartment. We will address each argument in turn.

               1. The Magistrate’s Credibility Determination

       First, Walton argues that the magistrate judge rejected his testimony without

making a proper credibility determination. A court cannot reject a defendant’s

testimony due merely to the defendant’s status as the accused. See Gallego v.

United States, 174 F.3d 1196, 1198-99 (11th Cir. 1999). Here, the magistrate’s

report and recommendation reflects that the magistrate considered the conflicting

testimony offered by the police officers and the defense witnesses. The report

then clearly states that the testimony of the officers was credible. Accordingly, we

find that the magistrate judge did make a proper credibility determination.1

               2. The Warrantless Arrest

       Second, Walton argues that the initial entry, detention and protective sweep

in the apartment violated the Fourth Amendment. “[T]he Fourth Amendment has


       1
                On appeal, Walton argues that testimony presented for the first time at trial
conflicted with a factual finding upon which the magistrate judge relied in making credibility
determinations. Thus, Walton argues that the magistrate judge’s credibility determinations were
based on a clearly erroneous fact. We can find no indication in the record that Walton brought
this inconsistency to the attention of the district court. As a general rule, we will not consider
arguments not fairly presented to the district court. Jones v. Campbell, 436 F.3d 1285, 1304
(11th Cir. 2006).

                                                 4
drawn a firm line at the entrance to the house. Absent exigent circumstances, that

threshold may not reasonably be crossed without a warrant.” Payton v. New York,

445 U.S. 573, 590, 100 S. Ct. 1371, 1382 (1980). Walton argues that there were

no exigent circumstances because two hours had elapsed from the time of the

shooting. According to Walton, the police had secured the apartment complex and

could monitor the apartment in question while obtaining a warrant. We disagree.

      “The term ‘exigent circumstances’ refers to a situation where the inevitable

delay incident to obtaining a warrant must give way to an urgent need for

immediate action. Such is the case when resort to a warrant might endanger the

police or the public.” United States v. Burgos, 720 F.2d 1520, 1526 (11th Cir.

1983). In Burgos, the Court affirmed the district court’s denial of a motion to

suppress evidence obtained during a warrantless search. The opinion concluded:

      The [ATF] agents had been informed that Mr. Kasha had purchased
      one hundred and ninety-two guns without the proper license in a
      seven month period. They had observed Mr. Kasha transfer two large
      boxes filled with arms to [the defendant]. They had observed [the
      defendant] enter his home and get help from an unknown man in
      unloading the boxes. The agents were faced with a house laden with
      arms and an unknown number of people inside. The officers could
      reasonably believe that the household was an arsenal. The threat of
      injury to the neighborhood and arresting officers justified the
      avoidance of delay involved in obtaining a warrant. Quick action
      increased the likelihood that no one would be injured.

Id.

                                         5
       We find the present circumstances analogous. The Miami-Dade police

department received an emergency call reporting multiple rounds of gunshots from

an assault rifle. The shots were fired in a twelve-building apartment complex

directly across the street from an elementary school. At the scene, investigators

discovered multiple impact holes from an AK-47 and empty casings on the

ground. Approximately two hours after officers arrived on the scene, an

individual involved in the shooting identified Walton as the perpetrator and

directed police to his apartment. The police were informed that Walton kept

weapons in his apartment. As the officers approached the apartment, they

positively identified Walton through an open door. The police were faced with an

apartment potentially full of an unknown number of armed individuals.

Accordingly, we conclude that exigent circumstances justified the officer’s

warrantless entry, detention and protective sweep.2

               3. The Consent to Search

       Third, Walton argues that his consent to a search beyond the initial

protective sweep was involuntary. Consent to search is effective only if

voluntarily given. Ramirez-Chilel, 289 F.3d at 752. Consent cannot be premised



       2
              The argument in Walton’s brief is insufficient to preserve the issue of probable
cause. Therefore, it has been waived.

                                                6
on “a mere submission to a claim of lawful authority.” Florida v. Royer, 460 U.S.

491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983). Voluntariness is

determined in reference to the “totality of the circumstances.” Ramirez-Chilel,

289 F.3d at 752 (internal quotations omitted).

      After the officers conducted a brief protective sweep of the apartment

incident to Walton’s lawful arrest, Walton signed a written consent form allowing

the officers to search his apartment. The magistrate judge made several findings:

only one officer approached Walton to obtain his consent, Walton was not

threatened, none of the officers had their guns drawn and the written form

specifically advised Walton that he could refuse consent to a search. Accordingly,

we discern no error in the district court’s conclusion that the defendant voluntarily

consented to the search of his apartment.

             4. The Post-Arrest Statements

      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. In

Miranda v. Arizona, the Supreme Court held that the government “may not use

statements, whether exculpatory or inculpatory, stemming from custodial

interrogation of the defendant unless it demonstrates the use of procedural

safeguards effective to secure the privilege against self-incrimination.”

                                            7
384 U.S. 436, 444 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). In order for a

defendant’s incriminatory statements to be admissible, the government must prove

by a preponderance of the evidence that the defendant made a knowing, voluntary

and intelligent waiver of his Miranda rights. United States v. Farris, 77 F.3d 391,

396 (11th Cir. 1996). We determine voluntariness based upon the totality of the

circumstances, construing the facts in the light most favorable to the prevailing

party. United States v. Barbour, 70 F.3d 580, 584 (11th Cir. 1995). We have

recognized that a statement is not given voluntarily if it is “extracted by any sort of

threats or violence, or obtained by any direct or implied promises, or by the

exertion of any improper influence.” United States v. Veal, 153 F.3d 1233,

1244 n.14 (11th Cir. 1998) (internal quotations omitted).

      Having reviewed the record and the briefs of the parties, we conclude that

the district court properly denied Walton’s motion to suppress his post-arrest

inculpatory statements. The magistrate judge made several findings: an officer

read Walton his Miranda rights before he was questioned, Walton appeared to

understand those rights, Walton signed a form waiving his Miranda rights before

he was questioned, Walton was not under the influence of narcotics, and Walton

was not coerced or threatened into giving any statement. Therefore, the district

court did not err in concluding that a preponderance of the evidence established

                                           8
that Walton made a knowing, voluntary, and intelligent waiver his Miranda rights

and that Walton’s statements were voluntary.

      B. The Confrontation Clause

      The Sixth Amendment’s Confrontation Clause provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him.” U.S. Const. amend. VI. Federal Rule of Evidence 801

defines hearsay as “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Fed.R.Evid. 801(c). Rule 802 excludes hearsay as evidence unless

otherwise authorized by rule or statute. Rule 803 excepts present sense

impressions from the exclusionary hearsay rule. Fed.R.Evid. 803(1).

      One of the government’s witnesses testified to an out-of-court statement

made by a third party. The district court admitted the statement as a present sense

impression. Both parties agree that the statement was non-testimonial.

“Admission of non-testimonial hearsay against criminal defendants . . . violates

the Confrontation Clause unless the statement falls within a firmly rooted hearsay

exception, or otherwise carries a particularized guarantee of trustworthiness.”

United States v. Baker, 432 F.3d 1189, 1204 (11th Cir. 2005) (citing Ohio v.

Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L.Ed.2d 597 (1980)). Here, we

                                           9
conclude there was no violation.3 See United States v. Rouse, 452 F.2d 311, 314

n.3 (5th Cir. 1971) (noting that res gestae is a historic concept that embodies

declarations of present sense impressions, declarations of present bodily condition,

declarations of present mental state and emotions, and excited utterances).

       In the alternative, Walton argues that the statement should have been

excluded under Fed.R.Evid. 403. A district court’s discretion to exclude evidence

under Rule 403 is limited. United States v. Terzado-Madruga, 897 F.2d 1099,

1117 (11th Cir. 1990). “Evidence may be excluded only when ‘its probative value

is substantially outweighed by the danger of unfair prejudice.’” Id. (quoting

Fed.R.Evid. 403). We have stated that “Rule 403 is an extraordinary remedy

which should be used only sparingly since it permits the trial court to exclude

concededly probative evidence.” Id. (internal quotations and citations omitted).

       The disputed statement was introduced for the purpose of establishing, at

least in part, the circumstances surrounding the charged offenses. Furthermore,

Walton had the opportunity to cross-examine the witness. Having reviewed the




       3
               Defendant’s allegations that the witness fabricated his testimony are irrelevant to
the application of the Confrontation Clause. The Confrontation Clause protects the right of the
accused “to be confronted with the witnesses against him.” U.S. Const. amend. VI. Here, the
witness was available at trial for cross-examination. Walton chose not to conduct a cross-
examination.

                                                10
record and the briefs of the parties, we conclude that the district court did not err

by failing to exclude the statement under Rule 403.

      C. Walton’s Sentence

      We review a final sentence for reasonableness. United States v. Talley,

431 F.3d 784, 785 (11th Cir. 2005). In conducting this review, we apply a

deferential abuse of discretion standard. Gall v. United States, 552 U.S. ___, ___,

128 S. Ct. 586, 591, 597, 169 L.Ed.2d 445 (2007). We first review whether the

district court committed a procedural error, such as incorrectly calculating the

Guidelines, treating the Guidelines as mandatory, failing to consider the § 3553(a)

factors, imposing a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence. Id. at ___, 128 S. Ct. at 597. The district

court’s application of the Guidelines “may be based on undisputed statements in

the PSI.” United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006).

      If there are no procedural errors, we “then consider the substantive

reasonableness of the sentence imposed under an abuse-of-discretion standard.”

Gall, 552 U.S. at ___, 128 S. Ct. at 597. This review involves inquiring whether

the § 3553(a) factors supported the sentence and justified any deviation from the

defendant’s sentencing range. Id. at ___, 128 S. Ct. at 600.

      The factors presented in § 3553(a) include:

                                          11
      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant; (2) the need to reflect the seriousness
      of the offense, to promote respect for the law, and to provide just
      punishment for the offense; (3) the need for deterrence; (4) the need to
      protect the public; (5) the need to provide the defendant with needed
      educational or vocational training or medical care; (6) the kinds of
      sentences available; (7) the Sentencing Guidelines range; (8) pertinent
      policy statements of the Sentencing Commission; (9) the need to avoid
      unwanted sentencing disparities; and (10) the need to provide restitution
      to victims.

Talley, 431 F.3d at 786; 18 U.S.C. § 3553(a). However, the district court is not

required to discuss each individual factor when determining a sentence. United

States v. Scott, 426 F.3d 1324, 1329-30 (11th Cir. 2005). Even if we disagree

with the weight a district court accords to any given 3553(a) factor, we will not

reverse a procedurally proper sentence unless we are left with the firm conviction

that the court committed “a clear error of judgment” in weighing the factors.

United States v. McBride, 511 F.3d 1293, 1297 (11th Cir. 2007) (internal

quotations and citation omitted). A defendant challenging his sentence bears the

burden of establishing that it is unreasonable. Talley, 431 F.3d at 788.

      Walton raises three arguments: the district court did not adequately take into

account the § 3553(a) factors, Walton’s prior criminal history did not warrant a

career offender enhancement, and the court failed to consider any mitigating

circumstances. Having reviewed the record and the briefs of the parties, we



                                         12
discern no error with respect to Walton’s sentence. The district court expressly

stated that it considered the statutory factors and provided a detailed explanation

of the basis of its sentence. Similarly, the court took into account the nature of

Walton’s prior criminal acts and found that it was appropriate to categorize

Walton as a career criminal. Finally, the district court stated that it considered the

presentence report, which discusses all of the mitigating circumstances that

Walton sets forth on appeal. Based on the foregoing, the district court did not err

in sentencing Walton to 300 months of incarceration. Gall, 552 U.S. at __, 128 S.

Ct. at 597.

      Accordingly, we affirm Walton’s convictions and aggregate sentence.

      AFFIRMED.4




      4
              Appellant’s request for oral argument is denied.

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