             Case: 16-10911    Date Filed: 09/30/2016   Page: 1 of 9


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 16-10911
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 4:13-cr-00102-RH-CAS-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

ISAAC DILLARD WILSON,

                                                            Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        ________________________

                              (September 30, 2016)

Before MARCUS, WILSON and ROSENBAUM, Circuit Judges.

PER CURIAM:

      After a conditional guilty plea, Isaac Dillard Wilson appeals his conviction

and sentence for possession of a firearm by a convicted felon, in violation of

18 U.S.C. §§ 922(g) and 924(a)(2) . On appeal, he argues that: (1) the district
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court erred in denying his motion to suppress on the grounds that the officer who

arrested him lacked probable cause to initiate his traffic stop, and the officer

unreasonably prolonged the traffic stop to conduct a dog sniff; and (2) Wilson’s

guideline sentence was calculated improperly. After thorough review, we affirm.

      First, we are unpersuaded by Wilson’s claims that the district court erred in

denying his motion to suppress. We review a district court’s denial of a motion to

suppress evidence 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

the district court’s findings of fact are reviewed for clear error, in the light most

favorable to the prevailing party below. Id. at 1302-03. We may affirm the denial

of a motion to suppress on any ground supported by the record. United States v.

Caraballo, 595 F.3d 1214, 1222 (11th Cir. 2010).

      A traffic stop is a seizure within the meaning of the Fourth Amendment,

which protects against “unreasonable searches and seizures.” Delaware v. Prouse,

440 U.S. 648, 653 (1979); U.S. Const. amend. IV.           To satisfy constitutional

concerns, a traffic stop requires either probable cause to believe a traffic violation

occurred or reasonable suspicion of criminal activity. United States v. Harris, 526

F.3d 1334, 1337 (11th Cir. 2008). We view the existence of probable cause or

reasonable suspicion from the standpoint of an objectively reasonable police

officer. United States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003).


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An unreasonable mistake of law cannot provide the basis for probable cause. See

Heien v. North Carolina, 574 U.S. ___, 135 S. Ct. 530, 539 (2014). However, a

seizure is lawful when facts known to the officer give probable cause, even if the

officer’s subjective intent does not give probable cause. See Devenpeck v. Alford,

543 U.S. 146, 154-155 (2004). In Devenpeck, an officer arrested an individual for

tape recording his conversation with the officer -- conduct the officer erroneously

believed to be unlawful. Id. at 150, 152. However, the arresting officer also

suspected that the arrested individual was impersonating a police officer; he simply

chose not to charge the individual with that offense as a matter of policy against

stacking charges.    Id. at 150.     The Supreme Court explained that when the

circumstances, viewed objectively, would justify a detention, the officer’s

subjective reason for the detention will not invalidate it. See id. at 153.

      When two views of the evidence are permissible, the fact finder’s choice

between them cannot be clearly erroneous. United States v. De Varon, 175 F.3d

930, 945 (11th Cir. 1999) (en banc). Whether a witness was credible is “typically

the province of the fact finder because the fact finder personally observes the

testimony and is thus in a better position than a reviewing court to assess the

credibility of witnesses.” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th

Cir. 2002). We must accept the version of events adopted by the district court




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“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. (quotation omitted).

      In this case, Tallahassee Police Officer Patrick Coney had probable cause to

initiate the traffic stop. While Coney’s belief that Wilson had made an illegal turn

constituted an unreasonable mistake of law and could not provide probable cause

to conduct the stop, Officer Coney also testified that he observed Wilson exceeding

the speed limit. Coney added that he would have pulled Wilson over for speeding

even if he had not believed that the turn was illegal, but that his typical practice is

to write only one ticket, even when there are multiple violations. Further, in a

supplemental report drafted by Coney, the officer made no mention of Wilson

exceeding the speed limit, but he did use the phrase “high rate of speed.” Coney

explained that he would not have used that phrase unless he believed that Wilson

was actually speeding. The district court credited all of Coney’s testimony, found

that Coney had witnessed Wilson speeding, and that Coney had probable cause to

believe that Wilson was speeding.

      Wilson claims that certain factors cast doubt on Officer Coney’s observation

that he was speeding -- including that Coney made the estimate at night, that he

decided not to cite Wilson for speeding, that he was moving while making the

estimate, and that his estimate of the time it took Wilson to cross the intersection

was too quick -- since there was no corroboration of Wilson’s speed. However,


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Officer Coney testified that he was radar certified, had practiced a number of

visual estimates of vehicle speed in 2010, and was generally accurate in his

estimates, and that using radar on traffic patrol every day involved an element of

guessing speeds, which was a sort of training. In addition, we have never held that

an officer’s visual observation of a motorist’s speed cannot provide probable

cause. In fact, other courts have held that visual estimation of speed can provide

the basis for probable cause. See United States v. Ludwig, 641 F.3d 1243, 1247

(10th Cir. 2011) (persuasive authority); United States v. Gaffney, 789 F.3d 866,

870 (8th Cir. 2015) (persuasive authority). Finally, we cannot say that Coney’s

testimony was “contrary to the laws of nature,” or so improbable that no

reasonable fact finder could accept it. See Ramirez-Chilel, 289 F.3d at 749.

      Since Officer Coney provided plausible testimony, the court’s acceptance of

it could not be clearly erroneous. See De Varon, 175 F.3d at 945. Accordingly,

we affirm the district court’s determination that the traffic stop was lawful because

Officer Coney had probable cause to believe that Wilson was speeding. Further,

because Coney had probable cause to believe Wilson had committed a traffic

violation, the officer’s mistake of law regarding Wilson’s turn did not render the

stop unlawful. See Devenpeck, 543 U.S. at 154-155 (2004); see also Harris, 526

F.3d at 1337.




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      Nor do we agree with Wilson’s claim that the officer unreasonably

prolonged the traffic stop to conduct a dog sniff. An officer’s actions during a

traffic stop must be reasonably related in scope to the circumstances that justified

the stop.    United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001).

However, investigations falling outside that scope do not render the stop unlawful,

as long as the investigation does not measurably extend the duration of the stop.

United States v. Griffin, 696 F.3d 1354, 1361 (11th Cir. 2012). Conversely, a

traffic stop becomes unlawful if it is prolonged beyond the time reasonably

required to complete the mission. Rodriguez v. United States, 575 U.S. ___, 135

S. Ct. 1609, 1612 (2015). A dog sniff that does not unreasonably prolong the

traffic stop is not a search subject to the Fourth Amendment, and the Supreme

Court has therefore rejected the notion that a traffic stop becomes unlawful based

on the mere act of a dog sniff that was not supported by reasonable suspicion.

Illinois v. Caballes, 543 U.S. 405, 408-09 (2005).

      We’ve said that 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 United States v.

Boyce, 351 F.3d 1102, 1106-07 (11th Cir. 2003). However, we’ve also cautioned

that “[r]igid time limitations and bright-line rules” are inappropriate to determine

reasonableness. Purcell, 236 F.3d at 1279. Rather, we look to the totality of the


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circumstances when determining whether a traffic stop was a reasonable seizure.

Id.; see also United States v. Hernandez, 418 F.3d 1206, 1212 n.7 (11th Cir. 2005).

      When an officer issues a warning citation during a traffic stop, the stop is not

unreasonably prolonged if the officer takes time to explain the citation to the

motorist. Cf. United States v. Harris, 928 F.2d 1113, 1117 (11th Cir. 1991)

(holding that an officer’s momentary detention after issuing a warning citation did

not violate the Fourth Amendment). During a lawful traffic stop, an officer may

order the occupants to exit the vehicle. United States v. Spoerke, 568 F.3d 1236,

1248 (11th Cir. 2009).

      Here, the dog sniff did not violate the Fourth Amendment because it

occurred during the course of a lawful traffic stop. As the record reveals, the

canine unit arrived just after Officer Coney initiated the stop, while Coney was

engaged in the procedures reasonably necessary for the completion of its purpose -

- issuing a warning citation to Wilson. The dog sniff occurred while he was

explaining the citation, a task that was reasonably related to the purpose of the

stop. Cf. Harris, 928 F.2d at 1117. Officer Coney testified that he prefers that

people exit the car for officer safety while he explains their ticket, which is not

unlawful. Spoerke, 568 F.3d at 1248. Thus, although the dog sniff was unrelated

to the initial traffic stop, it did not render the stop unlawful, because it did not

measurably extend the duration of the stop.        See Griffin, 696 F.3d at 1361.


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Likewise, the dog sniff itself was lawful, because a dog sniff that does not

unreasonably prolong a traffic stop is not a search subject to the Fourth

Amendment. See Caballes, 543 U.S. at 408-09. We, therefore, affirm the district

court’s finding that the dog sniff occurred during the reasonable course of a lawful

traffic stop.

       Finally, we reject Wilson’s claim that his Guideline sentence was calculated

improperly. For starters, when the district court says that it would have imposed

the same sentence regardless of its decision on a particular Sentencing Guidelines

issue, any error in deciding that Guidelines issue is harmless because it “had no

effect on” the reasonable sentence imposed. United States v. Overstreet, 713 F.3d

627, 639 n.15 (11th Cir. 2013). Moreover, in this circuit, the vagueness doctrine

applied by the Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015),

is inapplicable to the advisory Guidelines. United States v. Matchett, 802 F.3d

1185, 1195-96 (11th Cir. 2015). In Matchett, we held that the holding in Johnson

is limited to criminal statutes that define elements of a crime or fix punishments.

Id. at 1194.

       Because Wilson’s sentence was enhanced pursuant to the Sentencing

Guidelines -- which are not subject to Fifth Amendment vagueness challenges, see

id. at 1195-1196 -- Wilson’s claim fails. Furthermore, even if Johnson did apply to

the Sentencing Guidelines, the use of the residual clause would constitute harmless


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error. As the record shows, the district court said that it would have imposed the

same sentence regardless of the calculation at issue, observing that “[e]ven if I had

taken the guideline range down to 77 to 96 . . . I would impose a 10-year sentence.

I think the sentence needs to be 10 years. That’s the statutory maximum, and it

needs to be that long.” Thus, any error in the guidelines calculation “had no effect

on” the reasonable sentence the district court imposed. See Overstreet, 713 F.3d at

639 n.15.    And, Wilson does not argue that his sentence was substantively

unreasonable. Accordingly, we affirm Wilson’s sentence as well.

      AFFIRMED.




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