                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 13-3518
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                ZACHARY CHAMBERS,
                                            Appellant
                                    ____________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                               (E.D. Pa. 2-10-cr-00770-002)
                     District Judge: Honorable Michael M. Baylson
                                      ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  September 8, 2014

             Before: FISHER, JORDAN and HARDIMAN, Circuit Judges.

                                 (Filed: October 8, 2014)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Appellant Zachary Chambers appeals his conviction and sentence for conspiracy

to distribute narcotics and attempted possession with the intent to distribute cocaine.

Chambers challenges the district court’s denial of his motion to suppress, the district
court’s failure to strike testimony of a codefendant’s guilty plea, and the reasonableness

of his sentence. We will affirm.1

                                              I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts that are necessary

to our analysis.

       In 2009, a multistate task force began investigating a suspected drug trafficking

organization in Philadelphia headed by Bellvin Smith. The task force suspected that

Smith and others traveled to Las Vegas and Los Angeles to purchase powder cocaine,

crack cocaine, and marijuana and transported the drugs to the Philadelphia area for sale.

       On December 1, 2010, a grand jury in the Eastern District of Pennsylvania

indicted Smith, Chambers, and three others for crimes related to the drug trafficking

scheme. A subsequent superseding indictment charged Chambers with one count of

conspiracy to distribute five kilograms or more of cocaine, 280 grams or more of crack

cocaine base, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and

(b)(1)(D) and 846, and one count of attempted possession with the intent to distribute 500

grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 846,




       1
        Chambers’s codefendant, Tyreek Styles, has also appealed his conviction and
sentence. See Docket No. 14-1661. We address his appeal with a separate opinion and
judgment.

                                              2
and 18 U.S.C. § 2. Chambers moved to suppress any evidence discovered as a result of a

February 2010 traffic stop in St. Louis, Missouri; the district court denied the motion.

       A jury found Chambers guilty of both the conspiracy and attempted possession

charges. The district court sentenced Chambers to 330 months of incarceration, five

years of supervised release, and a $5,000 fine. Chambers filed a timely notice of appeal.

                                             II.

       The district court had jurisdiction over this criminal action under 18 U.S.C.

§ 3231. We exercise jurisdiction to review the district court’s judgment of conviction

under 28 U.S.C. § 1291 and to review the sentence imposed under 18 U.S.C. § 3742(a).

                                             III.

                                             A.

       Chambers first contends that the district court should have suppressed evidence

discovered during a traffic stop that occurred on February 3, 2010, in St. Louis, Missouri.

Chambers was a passenger in the vehicle. “We review the [d]istrict [c]ourt’s decision

[regarding] a motion to suppress under a mixed standard of review. We review its

findings of fact for clear error, but exercise plenary review over its legal conclusions.”

United States v. Tracey, 597 F.3d 140, 146 (3d Cir. 2010) (citation omitted).

       An officer may briefly stop a person for investigation “when the officer has a

reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528

U.S. 119, 123 (2000). Reasonable suspicion only requires “some minimal level of


                                              3
objective justification,” that is, less than probable cause. INS v. Delgado, 466 U.S. 210,

217 (1984). Chambers concedes that the initial stop was valid, but he argues that the stop

became illegal when the officers continued to investigate without further evidence of

criminal activity. We disagree.

       When the officers stopped the minivan at 4:00 a.m. for failing to maintain a single

lane of traffic, the officers observed that the driver was nervous and shaking.2 They also

saw that energy drinks and multiple cellphones were on the driver’s console. The driver

admitted that he and the passengers were traveling from Philadelphia to Las Vegas to

gamble. The officers had reasonable suspicion at that time to marginally extend the

traffic stop to ask whether the driver or passengers were carrying cash. After the driver

admitted that they were carrying cash in a backpack, the driver consented to a search of

the minivan, and none of the passengers objected. Accordingly, the cash and other items

that the officers found were lawfully discovered. And because Chambers and the other

passengers claimed not to own the cash or the items, the officers lawfully kept them.

       Chambers argues that he did not consent to the search of the whole minivan and

that he could not give voluntary consent in any event. However, the officers asked to

search the entire vehicle, and no one objected. Moreover, the circumstances do not

indicate that Chambers could not give voluntary consent: he was not handcuffed at the

time; his background, age, and intelligence suggest he had the capacity to consent; and


       2
           The district court credited the testimony of the officers with respect to the stop.

                                                4
the officers did not coerce him into acquiescing in the search. Accordingly, the district

court properly denied the motion to suppress.

                                             B.

       Chambers next argues that the district court improperly allowed a federal agent to

testify about a codefendant’s plea agreement. We review the district court’s evidentiary

rulings for abuse of discretion. Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412

(3d Cir. 2002). But even an incorrect evidentiary ruling does not require reversal as long

as “‘it is highly probable that the error did not contribute to the judgment.’” United

States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995) (en banc) (emphasis removed)

(quoting Gov’t of V.I. v. Toto, 529 F.2d 278, 284 (3d Cir. 1976)).

       At trial, the Government offered the testimony of an ATF agent concerning a

variety of records discovered through the course of the investigation. After defense

counsel asked about an individual on cross-examination, the agent on re-direct testified

that the individual was a codefendant in this case who pleaded guilty to conspiracy to

distribute five kilograms of cocaine and described the role in the conspiracy to which she

admitted. After the court expressed surprise that defense counsel had not objected,

counsel attempted to object to the testimony. However, because the agent had already

completed his response, the district court found the objection untimely.3


       3
        The Government urges the Court to find that Chambers forfeited this claim and
to review the claim for plain error. Because we find any error, if one occurred, harmless,
we do not determine whether Chambers forfeited this claim.

                                             5
       Assuming, without deciding, that the district court erred in allowing this testimony

and in failing to strike it from the record with a curative instruction, we are convinced

that the error did not prejudice Chambers, and any such error was, therefore, harmless.

The codefendant’s admission of guilt did not implicate Chambers, and the jury was

instructed that they should not evaluate codefendants’ guilty pleas in determining

Chambers’s guilt. Accordingly, we find no reversible error here.

                                             C.

       Finally, Chambers argues that his sentence is substantively unreasonable.

Chambers contends that in calculating the advisory Sentencing Guidelines range the

district court should have granted a downward departure under U.S.S.G. § 4A1.3 because

Chambers’s criminal history score over-represented the seriousness of his criminal

history.4

       Chambers asks this Court to review this issue for abuse of discretion, but the

Government argues that because the district court recognized its ability to depart from the

advisory Guidelines sentencing range under § 4A1.3 and chose not to, we lack

jurisdiction to consider the issue. We agree with the Government.




       4
         Section 4A1.3(b)(1) of the Sentencing Guidelines allows a district court, in
determining the advisory sentencing range, to depart from the calculated range “[i]f
reliable information indicates that the defendant’s criminal history category substantially
over-represents the seriousness of the defendant’s criminal history or the likelihood that
the defendant will commit other crimes.”

                                              6
       “We do not have jurisdiction to review discretionary decisions by district courts to

not depart downward.” United States v. Jones, 566 F.3d 353, 366 (3d Cir. 2009) (internal

quotation marks omitted). Therefore, if the district court ruled that a departure was

legally impermissible, we can review that decision; but if the district court understood its

ability to grant the departure and chose not to grant it in light of the circumstances of the

case, we cannot review the decision. See United States v. Mummert, 34 F.3d 201, 205

(3d Cir. 1994).

       At the sentencing hearing, Chambers argued for a departure under § 4A1.3, and

the district court denied it. The court noted, “I have discretion to - - to consider it. I have

discretion to grant it. In my view, Mr. Chambers has had a - - basically a lifetime of

crime . . . and I can’t see any reason to reduce the criminal history category. So I’ll deny

that.” J.A. 501. The court understood its ability to grant the departure but in its

discretion determined Chambers’s criminal history score did not over-represent the

seriousness of his criminal history. Accordingly, we lack jurisdiction to review this issue.

                                             IV.

       For the reasons above, we will affirm Chambers’s conviction and sentence.




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