                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         MAY 22 2002
                      UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                              Clerk
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 01-8077
 v.
                                                      (No. 01-CR-51-B)
                                                        (D. Wyoming)
 ATZMON GERBY,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before TACHA, Chief Judge, EBEL, and LUCERO, Circuit Judges.



      Atzmon Gerby appeals his conviction for possession with intent to

distribute 3,4-Methylenedioxymethamphetamine (“MDMA” or “Ecstacy”). We

have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.




      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The Court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
                                         I

      Gerby was stopped by Wyoming Highway Patrol State Trooper David

Chatfield as Gerby was driving westbound on Interstate 80. Chatfield observed

Gerby speeding approximately five miles per hour over the posted speed limit and

proceeded to pull him over. Chatfield requested Gerby’s driver’s license and

registration, and Gerby provided his California driver’s license and a rental

agreement for the car. Chatfield also inquired of Gerby’s travel plans, and Gerby

explained that he was traveling from New York to Las Vegas, where he was to

meet his wife.

      After running a check on the driver’s license and a criminal history check

for “Atzmon Gerby”—which turned up one prior arrest in Las Vegas—Chatfield

returned the license and rental agreement to Gerby, issued him a warning for

speeding, and told him he was free to leave and to have a safe trip. As Chatfield

moved away from the car, Gerby asked Chatfield how he could pay for the ticket.

After informing Gerby that he did not have to pay anything because he only

received a warning, Chatfield asked Gerby if he had any guns or illegal drugs in

the vehicle, to which Gerby responded that he did not. Chatfield then asked

Gerby if he “could look in his vehicle.” (Appellant’s App. at 44.) Gerby gave an

ambiguous answer, and Chatfield obtained a clarification from Gerby that he

consented to a search. (Id. at 44–45.) Specifically, Gerby consented to


                                        -2-
Chatfield’s request for Chatfield to “look in the trunk.” (Id. at 45.) Gerby

handed Chatfield the keys to the trunk, walked with Chatfield to the rear of the

car, and observed Chatfield as he opened the trunk and began searching the three

duffel bags located inside the trunk. As Chatfield opened and searched the duffel

bags he asked Gerby whether he had ever been arrested, specifically in Las Vegas.

When Chatfield opened up one of the larger duffel bags, he discovered “literally

thousands of white pills wrapped in . . . clear plastic bags.” (Id. at 48.) At no

point during Chatfield’s opening of the bags did Gerby object to Chatfield’s

search.

      Gerby was subsequently arrested and indicted for possession with intent to

distribute approximately 147 pounds of MDMA in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(C). He moved to suppress the MDMA seized from the

trunk of the rental car, but after an evidentiary hearing the district court denied

his motion. Following a jury trial, Gerby was convicted and sentenced to 151

months’ imprisonment. He timely appeals.

                                          II

      Gerby first challenges the district court’s denial of his motion to suppress

the MDMA discovered in the trunk of the automobile he was driving. He

specifically argues that Chatfield: (1) illegally extended the traffic stop in an

effort to obtain consent to search the automobile, (2) exceeded the scope of


                                         -3-
Gerby’s consent to “look into the trunk” when he searched the duffel bags, and

(3) distracted Gerby from objecting to the search of the duffel bags by asking him

a series of accusatory questions about his past arrest record.

      In an appeal of a denial of a motion to suppress, we review the district

court’s factual findings for clear error and in the light most favorable to those

findings. United States v. Bustillos-Munoz, 235 F.3d 505, 511 (10th Cir. 2000).

We review de novo the ultimate determination of the reasonableness of the search

under the Fourth Amendment. Id. The burden of proof in showing that a

defendant’s consent to a search was voluntary is on the government, and it must

show that “consent was given without duress or coercion, express, or implied.”

United States v. Dewitt, 946 F.2d 1497, 1500 (10th Cir. 1991) (quotation

omitted). The district court’s review of the voluntariness issue must take into

account “the totality of the circumstances, and should not presume a defendant’s

consent to a search is either involuntary . . . or voluntary.” Id. (quotation

omitted).

                                           A

      Gerby argues that the officer illegally detained him after returning his

license and rental agreement and that therefore Gerby’s consent to the search of

his vehicle was coerced. Specifically, he claims that the officer never left the

immediate scene of the vehicle and asked “questions of a criminal nature” such


                                          -4-
that Gerby never felt free to drive off. (Appellant’s Br. at 17.)

      Gerby never raised this argument before the district court. In such a

circumstance, we generally examine the rulings of the district court for “plain

error.” United States v. Rascon, 922 F.2d 584, 588 (10th Cir. 1990). For plain

error to exist, the error must be “plain or obvious” and affect substantial rights.

United States v. Walser, 275 F.3d 981, 985 (10th Cir. 2001). We will not

exercise our discretion to correct plain error unless it results in the conviction of

one who is actually innocent, or seriously affects the “fairness, integrity or public

reputation of judicial proceedings.” Id. (quotation omitted). Moreover, “the

unlawful detention inquiry is fact-intensive,” and we may exercise our discretion

not to review for even plain error when the appellant’s failure to raise the

objection below prevented the district court from making necessary findings of

fact. Dewitt, 946 F.2d at 1502. However, we proceed to consider Gerby’s

argument under a plain error standard because the district court did make the

relevant findings of fact.

      The district court found that after Chatfield returned Gerby’s license and

rental agreement, “the stop ended and a reasonable person would have felt free to

leave.” (Appellant’s App. at 136.) Thus, Gerby “consented to Officer Chatfield’s

subsequent questioning about guns or drugs.” (Id. at 137.) As a result, the

district court found “[t]his was an ordinary consensual encounter and . . . [Gerby]


                                         -5-
consented to a search of the vehicle.” (Id.)

      After reviewing the record, we conclude that the district court did not

commit plain error in determining that a reasonable person in Gerby’s situation

would have felt free to leave the scene after his documents were returned. While

we have followed a bright-line rule that an encounter is not consensual unless the

driver’s documents have been returned to him, Bustillos-Munoz, 235 F.3d at 515,

an encounter after the return of documents may still fail to be consensual if there

is “evidence of a coercive show of authority, such as the presence of more than

one officer, the display of a weapon, physical touching by the officer, or his use

of a commanding tone of voice indicating that compliance might be compelled.”

Id. The district court found that “it is obvious that Officer Chatfield’s

questioning was unaccompanied by any show of authority or coercion; his weapon

was holstered and there was no threat to defendant.” (Appellant’s App. at 137.)

Our independent review of the record supports these findings by the district court.

Accordingly, Chatfield’s questions about weapons and drugs and his request for

consent to search the vehicle were part of a consensual encounter, and Gerby’s

consent to search was not coerced.

                                          B

      According to Gerby, Chatfield exceeded the scope of Gerby’s consent when

he began opening the duffel bags in the trunk, and therefore Chatfield’s search of


                                         -6-
the duffel bags was illegal.

      The standard for analyzing the scope of consent to search an automobile

was laid out in Florida v. Jimeno: “[W]hat would the typical reasonable person

have understood by the exchange between the officer and the suspect?” 500 U.S.

248, 251 (1991). In Jimeno, the Court concluded that a grant of permission by the

driver of a car to search the automobile extended to “include consent to examine a

paper bag lying on the floor of the car.” Id.

      Later cases in this circuit have expanded upon the holding of Jimeno. In

Bustillos-Munoz, we held that where a suspect had granted permission to search

the vehicle, the officer “did not exceed the scope of [defendant’s] consent by

searching a bag found in his car,” at least where the suspect “does not object

when the search exceeds what he later claims was a more limited consent.” 235

F.3d at 515 n.5. Indeed, we have generally held that a grant of permission to

search an automobile means, absent objection or an explicit limitation by the

suspect of his grant of permission, that the “officer is justified in searching the

entire vehicle.” Id.; see United States v. Santurio, 29 F.3d 550, 553 (10th Cir.

1994) (stating that “a general consent to search includes closed containers within

the vehicle” and that “this court has specifically ruled that a failure to object to

the continuation of a search indicates that the search was conducted within the

scope of the consent given”); see also United States v. Patten, 183 F.3d 1190,


                                          -7-
1192, 1194–95 (10th Cir. 1999) (holding that where a suspect granted the officer

permission to “take a look at your suitcase” in the trunk and where suspect did not

object when the officer opened the suitcase, the officer did not exceed the scope

of consent). The district court correctly held that the officer did not exceed the

scope of Gerby’s consent.

                                          C

      Gerby’s final objection based on the search relates to the conversation that

the officer had with him regarding his prior arrest record. Gerby argues that

Chatfield distracted and intimidated him by asking him questions about his prior

arrest record such that Gerby was not in a position to object to Chatfield’s search

of the duffel bags. Gerby did not raise this argument before the district court.

Because Gerby’s claim is a fact-intensive one, his failure to raise it below

prevented the district court from making the appropriate factual findings. The

argument is therefore waived, and we decline to consider it. Dewitt, 946 F.2d at

1502; see also United States v. Easter, 981 F.3d 1549, 1556 (10th Cir. 1992)

(“[P]lain error review is not appropriate when the alleged error involves the

resolution of factual disputes.”).

                                         III

      Gerby’s second issue on appeal is a challenge to the district court’s

sentencing. In particular, Gerby argues that the district court’s sentence was


                                         -8-
based on Gerby’s failure to cooperate with the government and that this reliance

by the district court violated the sentencing guidelines, due process, and his Fifth

Amendment right not to incriminate himself. Because Gerby did not raise this

argument below, we only review the district court’s actions for plain error. See

Walser, 275 F.3d at 985. Reversible plain error requires an error by the district

court that is “particularly egregious,” “obvious and substantial,” and results in

“circumstances in which a miscarriage of justice would otherwise result.” United

States v. Saucedo, 950 F.2d 1508, 1511 (10th Cir. 1991) (citations omitted),

overruled on other grounds by Stinson v. United States, 508 U.S. 36 (1993).

When the alleged error is a constitutional one, we apply the plain error rule less

rigidly. Walser, 275 F.3d at 985.

      Under the Sentencing Guidelines, Gerby’s sentencing range was 121 to 151

months. The district court sentenced Gerby to the high end of that range, 151

months. During sentencing, the district court made the following comments:

             Mr Gerby, on March 22nd, 2001, you were found within the
      state of Wyoming transporting approximately 210,000 ecstacy tablets
      in two bags which were in the trunk of your rental car. This
      amounted to a little over 139 pounds of a dreadful drug, a drug that
      would do great harm to the young citizens of this nation. In fact, it
      would do as much harm, I would guess as maybe even a terrorist
      bomb might do. You, sir, in the eyes of the Court are a virtual
      terrorist and you’re not a citizen of this country, even though your
      children are.
             I regard with great seriousness the fact that you have not
      cooperated with the United States in any way, and, therefore, I
      cannot sentence you at the low end of the guidelines.

                                         -9-
             I must find in this case that the guideline level is a 32 with a
      criminal history category of 1, but I would observe this: That if you
      had committed this crime after May 1st, 2001, at that time the
      guideline level was increased from a 32 to a level of 38 which carries
      with it a sentencing range of 235 to 293 months. And if there was
      any way that I could do it, I would give you 293 months right now,
      but to do so would be an ex post facto act on behalf of this Court and
      I cannot do it.
             I, therefore, must give you the high end, or 151 months, which
      is 12 years and 7 months of imprisonment. I will observe this to you:
      That under the sentencing guidelines of this country you have a
      period of one year from this date to talk and cooperate with the
      authorities. If you do, I will give you a serious reduction in your
      sentence.
             I will observe that you said at the time you were arrested or
      shortly thereafter something about “You might as well shoot me.” I
      don’t think that has to occur. I think that on the termination of your
      sentence you’re going to go back to Israel, but I think that under our
      system of laws, the witness protection program, you and your family
      could be given protection and that whoever it is that you were
      working for could not get you. And I think that you could be
      protected, and I’m sure the United States would for information that
      was serious and meaningful on your part.
             However, since you have chosen to remain silent, it is the
      sentence and judgment of this Court that you be and you [are] hereby
      committed to the custody of the Attorney General of the United
      States to be confined in an institution to be designated by him for a
      term of 151 months on Count One.

(Appellant’s App. at 190–92.)

      According to Gerby, the district court’s comments violated U.S.S.G.

§ 5K1.2, which provides that “[a] defendant’s refusal to assist authorities in the

investigation of other persons may not be considered as an aggravating sentencing

factor.” Gerby claims that the district court’s reliance on his refusal to cooperate

as a rationale for giving him the maximum sentence within the guidelines range

                                        - 10 -
means that the district court improperly used his failure to cooperate as an

“aggravating sentencing factor.”

      The Tenth Circuit has yet to decide whether U.S.S.G. § 5K1.2 only applies

to upward departures from the sentencing guidelines range, or whether it also

applies to the selection of a sentence from within the guidelines range. We are

aware of only two court of appeals cases to interpret § 5K1.2 on this issue, and

both held that the provision only applies to upward departures. United States v.

Burgos, 276 F.3d 1284, 1291 n.8 (11th Cir. 2001); United States v. Klotz, 943

F.2d 707, 709–10 (7th Cir. 1991). Because this court has not decided the issue

and the case law from other circuits concludes that § 5K1.2 only applies to

upward departures, the district court could not have committed plain error in

sentencing Gerby to the high end of the guidelines range.

      Gerby next argues that the district court penalized him for his failure to

cooperate when that failure arose from his own stated fear of reprisal from others.

According to Gerby, in such a situation any penalty for failure to cooperate

violates due process. Gerby cannot cite a single case that has come to this

conclusion, and we therefore again cannot conclude that the district court

committed plain error.

      Gerby finally argues that the district court violated his Fifth Amendment

right against self-incrimination because it penalized him for his failure to


                                        - 11 -
cooperate with the government. According to Gerby, if he had cooperated with

the government he would have opened himself up to additional criminal liability.

This argument has led to some conflicting decisions in the appeals courts that

have considered it. Compare Klotz, 943 F.2d at 710–11 (rejecting the same claim

because there is no “penalty” when a defendant is sentenced within the guidelines

range), with United States v. Rivera, 201 F.3d 99, 100–02 (2d Cir. 1999)

(reaching the opposite conclusion because defendant was penalized where the

district court explicitly increased the sentence within the guidelines range because

of a failure to cooperate).

      However, we conclude that the district court did not commit plain error on

this point. In Roberts v. United States, 445 U.S. 552, 559–61 (1980), the

Supreme Court rejected a claim by a criminal defendant that increasing his

sentence because of a failure to cooperate violated his Fifth Amendment right

against self-incrimination. The Court found the defendant’s argument “singularly

unpersuasive” and explicitly noted that the defendant “did not assert his privilege

or in any manner suggest that he withheld his testimony because there was any

ground for fear of self-incrimination. His assertion of it here is evidently an

afterthought.” Id. at 560 (quotation omitted). “If [the defendant] believed that

his failure to cooperate was privileged, he should have said so at a time when the

sentencing court could have determined whether his claim was legitimate.” Id.


                                        - 12 -
      We have found no evidence in the record that Gerby ever asserted before

the district court that his failure to cooperate was based on a fear of self-

incrimination. Given the Supreme Court precedent that is on point, and the Tenth

Circuit case law that has followed that precedent, see United States v. Ruminer,

786 F.2d 381, 385 (10th Cir. 1986) (following Roberts as “controlling” precedent

that holds that “a trial judge may properly consider a defendant’s refusal to

cooperate with the Government by refusing to name others involved in the

criminal activities”), the district court did not commit plain error.

                                          IV

      The judgment of the district court is AFFIRMED.

      The mandate shall issue forthwith.


                                                  ENTERED FOR THE COURT



                                                  Carlos F. Lucero
                                                  Circuit Judge




                                         - 13 -
