                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________  ELEVENTH CIRCUIT
                                                                JULY 14, 2005
                                No. 04-13268                  THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                      D.C. Docket No. 03-14065-CR-DMM

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

      versus

ANTOINE FRANCIS,
                                                         Defendant-Appellant.

                        __________________________

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

                                (July 14, 2005)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

      Appellant Antoine Francis, through counsel, appeals both the district court’s

order denying his motion to suppress and his 262-month sentence for cocaine base
distribution, in violation of 21 U.S.C. § 841(a)(1). On appeal, Francis argues that

the district court improperly denied his motion to suppress evidence seized during

a traffic stop because (1) the police officer’s questioning of Francis, as a passenger

in a lawfully stopped vehicle, regarding his possession of weapons and

contraband, broadened the scope of the initial detention and resulted in an

unlawful seizure in violation of the Fourth Amendment; and (2) he did not

voluntarily consent to a search of his person but rather acquiesced to a “show of

official authority.” Francis also claims that, in light of United States v. Booker,

543 U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), the district court plainly

erred by enhancing his sentence, pursuant to a mandatory application of the

Sentencing Guidelines and based on both his status as a career offender and

various drug quantities, neither of which were charged in the indictment.

                              I. Motion to Suppress

      We review a district court’s denial of a defendant’s motion to suppress

under a mixed standard of review, reviewing the district court’s findings of fact

under the clearly erroneous standard and the district court’s application of law to

those facts de novo.” United States v. Desir, 257 F.3d 1233, 1235-36 (11th Cir.

2001).




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A.    Unlawful Detention

      The Fourth Amendment protects individuals from unreasonable searches

and seizures. A traffic stop is a seizure within the meaning of the Fourth

Amendment. Deleware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L.

Ed. 2d 660 (1979). Nevertheless, because a routine traffic stop is a limited form

of seizure, it is analogous to an investigative detention, and we have therefore held

that a traffic stop will be governed by the standard set forth in Terry v. Ohio, 392

U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). United States. v. Pruitt, 174 F.3d

1215, 1219 (11th Cir. 1999). In Terry, the Supreme Court clarified that a person is

seized “whenever a police officer accosts an individual and restrains his freedom

to walk away.” 392 U.S. at 16, 88 S. Ct. at 1877. “[T]he police may stop and

briefly detain a person to investigate a reasonable suspicion that he is involved in

criminal activity, even though probable cause is lacking.” United States v.

Williams, 876 F.2d 1521, 1523 (11th Cir. 1989).

      “[T]he reasonableness of such seizures depends on a balance between the

public interest and the individual’s right to personal security free from arbitrary

interference by law officers.” United States v. Brignoni-Ponce, 422 U.S. 873, 878

, 95 S. Ct. 2574, 2579, 45 L. Ed. 2d 607 (1975). The Fourth Amendment

nevertheless requires that a police officer “be able to point to specific and

                                          3
articulable facts which, taken together with rational inferences from those facts,

reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. at 1880. When

determining whether reasonable suspicion exists, the court must review the

“totality of the circumstances” of each case to ascertain whether the detaining

officer had a “particularized and objective basis” for suspecting legal wrongdoing.

United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750, 151 L. Ed. 2d 740

(2002). We have held that reasonable suspicion is “considerably less than proof of

wrongdoing by a preponderance of the evidence, or even the implicit requirement

of probable cause that a fair probability that evidence of a crime will be found.”

Pruitt, 174 F.3d. at 1219 (citations omitted).

      The Supreme Court, recognizing that law enforcement officers face an

“inordinate risk” of assault during traffic stops, has held that once a motor vehicle

has been lawfully stopped for a traffic violation, a police officer may order the

driver to get out of the vehicle without violating the Fourth Amendment.

Pennsylvania v. Mimms, 434 U.S. 106, 110-11, 98 S. Ct. 330, 333, 54 L. Ed. 2d

331 (1977). Importantly, the Supreme Court has extended the rule announced in

Mimms and held that an officer making a traffic stop may order passengers to exit

the vehicle. Maryland v. Wilson, 519 U.S. 408, 413-15, 117 S. Ct. 882, 885-86,

137 L. Ed. 2d 41 (1997). Even so, we have observed that “an officer’s actions

                                          4
during a traffic stop must be reasonably related in scope to the circumstances

which justified the interference in the first place,” and that “the duration of the

traffic stop must be limited to the time necessary to effectuate the purpose.”

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

emphasis omitted). In other words, “the traffic stop may not last any longer than

necessary to process the traffic violation unless there is articulable suspicion of

other illegal activity.” Id. (quotation omitted). “[O]nly unrelated questions which

unreasonably prolong the detention are unlawful; detention, not questioning, is the

evil at which Terry’s prohibition is aimed. Questions which do not extend the

duration of the initial seizure do not exceed the scope of an otherwise

constitutional traffic stop.” Purcell, 236 at 1280 (citation, quotation, and

alteration omitted). In addition, “[i]t is well established that officers conducting a

traffic stop may take such steps as are reasonably necessary to protect their

personal safety.” Id. at 1277 (quotation omitted).

      After reviewing the record, we conclude that the district court properly

denied Francis’s motion to suppress because the officer’s questioning of Francis

did not unreasonably extend the duration of the traffic stop and the questions

posed were reasonably necessary to protect the officer’s safety. Francis complains

that the officer asked him not only about weapons but also about narcotics.

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Nevertheless, the record demonstrates that the entire traffic stop, from the time the

officer stopped the car to the time he discovered the drugs at issue in Francis’s

waistband, took approximately five minutes. In addition, the totality of the

circumstances surrounding the detention show that the officer’s questions were

necessary to protect his safety.

B.    Validity of Consent

      Francis also claims that he did not voluntarily consent to a search of his

person, but rather acquiesced to a “show of official authority.”

      In the absence of probable cause or reasonable suspicion, law enforcement

officers “may nonetheless search an individual without a warrant, so long as they

first obtain the voluntary consent of the individual in question.” United States v.

Blake, 888 F.2d 795, 798 (11th Cir. 1989).

      “Searches conducted by means of consent are valid, so long as the consent

is voluntary.” United States v. Kapperman, 764 F.2d 786, 793 (11th Cir. 1985).

“The determination as to whether a suspect’s consent is voluntary is not

susceptible to neat talismanic definitions; rather, the inquiry must be conducted on

a case-by-case analysis.” Blake, 888 F.2d at 798. Generally, “[i]n order for

consent to a search to be deemed voluntary, it must be the product of an essentially

free and unconstrained choice.” United States v. Garcia, 890 F.2d 355, 360 (11th

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Cir. 1989). In determining whether consent was freely given, we will “scrutinize

the facts and strike a balance between [a suspect’s] right to be free from coercive

conduct and the legitimate need of the government to conduct lawful searches. Id.

“Relevant factors in determining voluntariness, none of which is dispositive,

include” (1) “the voluntariness of the defendant’s custodial status,” (2) “the

presence of coercive police procedure,” (3) “the extent and level of the

defendant’s cooperation with police,” (4) “the defendant’s awareness of his right

to refuse to consent to the search,” (5) “the defendant’s education and

intelligence,” and (6) “the defendant’s belief that no incriminating evidence will

be found.” United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir. 1984).

      After reviewing the record, we conclude that Francis voluntarily consented

to answer the officer’s questions. The record established that the officer never

touched or restrained Francis in any way, and in fact, did not even frisk Francis or

unholster his weapon until after Francis had already been placed under arrest.

Most important, the record shows that Francis voluntarily removed his shoes and

loosened his waistband without being specifically directed to do so.

                                    II. Booker

      Francis argues, for the first time, that his sentence should be vacated in light

of Booker. Francis contends that the district court violated his rights under the

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Fifth and Sixth Amendments by increasing his offense level by relying on facts

that were neither set forth in the indictment nor admitted by his plea. He also

argues that the district court erred by applying the Guidelines in a mandatory

fashion.

      Because Francis failed to make any constitutional objection to the probation

officer’s or the court’s sentencing calculations, our review is limited to a review

for plain error. United States v. Rodriquez, 398 F.3d 1291, 1298 (11th Cir. 2005),

petition for cert. filed, (No. 04-1148) (U.S. Feb. 23, 2005). In order for us to

correct plain error: (1) there must be error; (2) the error must be plain; and (3) the

error must affect substantial rights. Id. “If all three conditions are met, an

appellate court may then exercise its discretion to notice a forfeited error, but only

if (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. (quotation omitted).

      In order to decide the Booker issues Francis presents, we must review the

applicable Supreme Court precedent pertaining to sentence enhancements based

on prior convictions and defendant admissions. In Almendarez-Torres v. United

States, the Supreme Court held that the government need not allege in its

indictment and need not prove beyond a reasonable doubt that a defendant had

prior convictions for a district court to use those convictions for purposes of

                                            8
enhancing a sentence. 523 U.S. 224, 243-44, 118 S. Ct. 1219, 1230-31, 140 L. Ed.

2d 350 (1998). In Apprendi v. New Jersey, the Supreme Court declined to revisit

Almendarez-Torres, but held that “[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000). In

Blakely v. Washington, the Supreme Court applied the rule announced in Apprendi

to the State of Washington’s Sentencing Reform Act and reversed an upward

departure based solely on judicial fact-finding. 542 U.S. ___, 124 S. Ct. 2531, 159

L. Ed. 2d 403 (2004). The Court noted that the relevant “‘statutory maximum’ for

Apprendi purposes is the maximum sentence a judge may impose solely on the

basis of the facts reflected in the jury verdict or admitted by the defendant.” 542

U.S. at ____, 124 S. Ct. at 2534-38 (emphasis omitted).

      In United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir.), cert. denied,

125 S. Ct. 637 (2004), we refused to interpret the Supreme Court’s rationale in

Apprendi as overruling the prior Supreme Court holding in Almendarez-Torres,

523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), that the government

“need not allege in its indictment and need not prove beyond a reasonable doubt

that a defendant had prior convictions for a district court to use those convictions

                                          9
for purposes of enhancing a sentence.” We further concluded that Blakely “does

not take such fact-finding out of the hands of the courts.” Id. at 1257-58 n.14; see

also United States v. Orduno-Mireles, 405 F.3d 960, 963 (11th Cir. 2005) (holding

that Almendarez-Torres remains the law after Blakely and Booker).

      Recently, in United States v. Booker, 543 U.S. ___, 125 S. Ct. 738, 749,

160 L. Ed. 2d 621(2005), the Supreme Court held that there was no distinction of

constitutional significance between the Federal Sentencing Guidelines and the

Washington procedures at issue in Blakely. In Booker, the Supreme Court

concluded that its holding in Blakely applied to the Federal Sentencing Guidelines,

and it explicitly reaffirmed its holding in Apprendi: “Any fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.” 543

U.S. at ___, 125 S. Ct. at 756. In addition, because the mandatory nature of the

Guidelines implicated the Sixth Amendment right to a jury trial, the Supreme

Court made the Guidelines effectively advisory. 543 U.S. at ___, Id. at 757.

      Francis first argues that the district court plainly erred, in light of Booker,

when it (1) found that he was responsible for an amount of drugs that exceeded the

5-gram drug quantity charged in the indictment, thus qualifying him for a base

                                          10
offense level of 30 pursuant to U.S.S.G. § 2D1.1(c)(5), and (2) found that he was a

career offender, thus qualifying him for a 7 level offense enhancement pursuant to

U.S.S.G. § 4B1.1(a). These contentions, however, are without merit. As to drug

quantity, because Francis did not challenge the accuracy of the relevant facts

contained in the PSI or the government’s recitation of facts at the plea colloquy, he

admitted the drug quantities used to enhance his sentence. See United States v.

Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005). As to Francis’s classification as a

career offender pursuant to U.S.S.G. § 4B1.1(a), we have held that the government

need not allege in the indictment or prove beyond a reasonable doubt that a

defendant has prior convictions in order for a district court to use those prior

convictions for purposes of enhancing a sentence. Orduno-Mireles, 405 F.3d at

962-63. Accordingly, there is no Sixth Amendment violation under Booker in this

case.

        In addition, Francis is incorrect when he argues that he is entitled to be re-

sentenced because the district court committed plain error by imposing his

sentence pursuant to a mandatory application of the Sentencing Guidelines. We

have held that the district court plainly errs by imposing a sentence under a

mandatory Guidelines scheme, even in the absence of a Sixth Amendment

enhancement. See Shelton, 400 F.3d at 1330-31. Nevertheless, Francis is unable

                                           11
to satisfy the third prong of the plain error test. Francis does not show, nor does

the record reveal, any statements from the district court indicating that Francis

would have received a lesser sentence under an advisory application of the

Guidelines. Although Francis suggests that the district court’s decision to

sentence him at the bottom of the Guidelines’ range satisfies his burden under the

third prong of plain-error review, this fact is insufficient to support his claim. See

United States v. Fields, No. 04-12486, manuscript op. at 8-10 (11th Cir. May 16,

2005) (holding that under plain-error review the fact that the defendant was

sentenced to the bottom of the mandatory guideline range, without more, is

insufficient to satisfy the third prong’s requirement that the defendant show a

reasonable probability of a lesser sentence under an advisory guideline system).

                                  III. Conclusion

      For the foregoing reasons, we affirm Francis’s convictions and sentences.

      AFFIRMED.




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