                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________          FILED
                                                 U.S. COURT OF APPEALS
                              No. 09-11071         ELEVENTH CIRCUIT
                                                      MARCH 4, 2010
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________
                                                         CLERK

                D. C. Docket No. 08-00088-CR-FTM-29-DNF

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

GURMERCINDO BELTRAN,

                                                          Defendant-Appellant.


                        ________________________

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

                               (March 4, 2010)

Before DUBINA, Chief Judge, EDMONDSON and BIRCH, Circuit Judges.

PER CURIAM:

     Appellant Gurmercindo Beltran appeals his convictions and sentences for
possession with intent to distribute a detectable amount of crack cocaine on March

12, 2008, and May 13, 2008, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C)

(“Counts One and Three”), and possession with intent to distribute a detectable

amount of powder cocaine on March 12, 2008, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(C) (“Count Two”). On appeal, Beltran argues that the district

court: (a) erred in denying, in part, his motion to suppress evidence and statements

obtained during his 66-minute detention in which he never received Miranda 1

warnings, (b) erred in denying his motion for judgment of acquittal on all counts,

and (c) abused its discretion by denying his motion to sever Count Three from

Counts One and Two at trial. Beltran also appeals the district court’s finding that

resisting an officer with violence, pursuant to Fla. Stat. § 843.01, was a crime of

violence for career offender purposes under U.S.S.G. § 4B1.2(a).

                                   I. Motion to Suppress

      “In reviewing a district court’s denial of a motion to suppress, we review its

findings of fact for clear error and its application of law to those facts de novo.”

United States v. Ramirez, 476 F.3d 1231, 1235 (11th Cir. 2007). All facts are

construed in the light most favorable to the prevailing party, in this case the

government. Id. at 1236. In reviewing a denial of a motion to suppress, we review



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          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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the entire record, including trial testimony. United States v. Newsome, 475 F.3d

1221, 1224 (11th Cir. 2007). We address Beltran’s arguments regarding his

detention, Miranda warnings, and probable cause to arrest separately.

                                    A. Detention

      Pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889

(1968), we make a two-part inquiry to determine the reasonableness of an

investigative stop. United States v. Acosta, 363 F.3d 1141, 1144 (11th Cir. 2004).

First, we examine whether an officer’s action was justified at its inception. Id.

This analysis “turns on whether the officers had a reasonable suspicion that the

defendant had engaged, or was about to engage, in a crime.” Id. at 1144-45

(internal quotation marks omitted). Second, we determine “whether the stop was

reasonably related in scope to the circumstances which justified the interference in

the first place.” Id. at 1145 (internal quotation marks and alterations omitted). The

purpose of the second part of the inquiry is to determine “whether the stop went

too far and matured into [an] arrest before there was probable cause.” Id. We have

noted the difference “between an investigative stop of limited duration for which

reasonable suspicion is enough, and a detention that amounts to an arrest for which

probable cause is required.” Id. at 1145-46.

      To distinguish between a Terry stop and an arrest, we apply four non-



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exclusive factors which include: (1) the law enforcement purposes served by the

detention; (2) the diligence with which the police pursue the investigation; (3) the

scope and intrusiveness of the detention, and (4) the duration of the detention. Id.

at 1146 (internal quotation marks omitted). As to the first factor, the most

important consideration is whether the police detained the defendant to pursue a

method of investigation that was likely to confirm or dispel their suspicions

quickly, and with a minimum of interference. Id. (internal quotation marks and

alterations omitted). As such, the police may “engage in brief and nonintrusive

investigation techniques, such as noncustodial questioning of the detained person.”

Id. (internal quotation marks omitted). As to the second factor, we consider

whether the “methods the police used were carried out without unnecessary delay,”

or in other words, whether each investigatory act logically led to the next act which

was done without delay. Id. As to the third factor,we examine “whether the scope

and intrusiveness of the detention exceeded the amount reasonably needed by

police to ensure their personal safety.” Id. An investigatory stop does not turn into

an arrest simply because an officer handcuffs a suspect or secures a suspect in the

back of a patrol car. Id. at 1147. As to the fourth factor, we have held that there is

“no rigid time limitation or bright line rule regarding the permissible duration of a

Terry stop.” Id. The test is one of “common sense and ordinary human



                                           4
experience.” Id. (internal quotation marks omitted). We must consider whether

the police diligently pursued a means of investigation that was likely to confirm or

dispel their suspicions during the time they detained the defendant. Id.

      In this case, Beltran does not contest the validity of the initial stop and, thus,

we only examine the second part of the Terry inquiry. The record supports the

district court’s finding that the stop was legal. First, the officers detained Beltran

because he was the first suspect in a possible burglary in progress. During the first

45 minutes of Beltran’s detention, the officers continued to determine whether

there was a burglary in progress by making contact with and detaining the other

four suspects in the trailer and trying to contact the owner of the trailer, who was

in the hospital. During that 45 minute detention, officers found Nora Brooks in the

trailer with narcotics and narcotics paraphernalia. She informed officers that

Beltran had given her cocaine and that more cocaine was in the vehicle parked in

the driveway. During the remaining 21 minutes of Beltran’s detention, he was the

subject of a narcotics investigation in which the officers requested a K-9 unit to

confirm or dispel their suspicions about narcotics in the vehicle. Second, there is

nothing in the record to suggest that the officers were less than prompt in carrying

out their investigation as to whether there was a burglary in progress and whether

there were narcotics violations. Third, under the circumstances, it was reasonable



                                            5
for the officers to handcuff Beltran during his detention. Fourth, based on the

totality of the circumstances, Beltran’s 66 minute detention was legal. Therefore,

we conclude that the district court did not err by denying Beltran’s motion to

suppress.

                               B. Miranda Warnings

      The right to Miranda warnings attaches when custodial interrogation begins.

United States v. Brown, 441 F.3d 1330, 1347 (11th Cir. 2006). “A defendant is in

custody for the purposes of Miranda when there has been a ‘formal arrest or

restraint on freedom of movement of the degree associated with a formal arrest.’”

Id. (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed.

2d 1275 (1983)). Generally, whether a defendant is “in custody” prior to his

formal arrest “depends on whether under the totality of the circumstances, a

reasonable man in his position would feel a restraint on his freedom of movement

to such extent that he would not feel free to leave.” Id. (internal quotation marks

omitted). Because the test is objective, the subjective beliefs of the defendant and

the interviewing officer on whether the defendant was free to leave is irrelevant.

Id. Although officers may restrain an individual’s freedom by placing him in the

back of a patrol car, in handcuffs, or by pointing guns at him, that restraint does not

automatically turn a stop into an arrest. United States v. Blackman, 66 F.3d 1572,



                                           6
1576 (11th Cir. 1995); United States v. Kapperman, 764 F.2d 786, 790 & n.4 (11th

Cir. 1985). The restraint must be considered under all of the circumstances. See

Blackman, 66 F.3d at 1576.

      In Acosta, we gave guidance as to when an officer should issue Miranda

warnings to a detainee in a Terry stop. See Acosta, 363 F.3d 1148-49. In

determining whether a reasonable person was free to leave a Terry stop, we

consider whether the Terry stop “exerts upon a detained person pressures that

sufficiently impair his free exercise of his privilege against self-incrimination to

require that he be warned of his constitutional rights.” Id. at 1149 (internal

quotation marks omitted).

      In this case, Beltran was not in custody when: (a) Corporal Marotta asked

what was in Beltran’s front pocket and Beltran responded that it was car keys; (b)

Marotta asked whose car was in the driveway and Beltran responded that it was his

sister’s; and (c) Corporal Partin asked whether the vehicle was Beltran’s and

whether he had the keys and Beltran responded that it was his sister’s car and that

he had the keys. During these questions, Beltran was handcuffed due to the

burglary investigation. However, there were no significant pressures during these

questions that would have sufficiently impaired his ability to exercise his privilege

against self-incrimination. Therefore, we conclude that the district court did not err



                                           7
when it denied Beltran’s motion to suppress.

                           C. Probable Cause to Arrest

      Law enforcement officers have probable cause to arrest when the facts and

circumstances within their collective knowledge, “or of which they have

reasonably trustworthy information, would cause a prudent person to believe that

the suspect has committed or is committing an offense.” Craig v. Singletary, 127

F.3d 1030, 1042 (11th Cir. 1997).

      Here, we conclude from the record that the officers had probable cause to

arrest Beltran because the officers found Brooks with cocaine, Brooks had stated

that Beltran gave her the cocaine, and that more cocaine was located in the car in

the driveway. Additionally, Beltran stated that he possessed the car keys to the car

in the driveway and that the car was his sister’s.

                       II. Motion for Judgment of Acquittal

      We review the denial of a motion for judgment of acquittal de novo. United

States v. Evans, 473 F.3d 1115, 1118 (11th Cir. 2006). “When the motion raises a

challenge to the sufficiency of the evidence, we review the sufficiency of the

evidence de novo, drawing all reasonable inferences in the government’s favor.”

Id. (internal quotation marks omitted). In reviewing the denial of a motion for

acquittal, we determine “whether, after viewing the evidence in the light most



                                           8
favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” United States v.

Eckhardt, 466 F.3d 938, 944 (11th Cir. 2006) (internal quotation marks omitted).

“The evidence need not be inconsistent with every reasonable hypothesis except

guilt, and the jury is free to choose between or among the reasonable conclusions

to be drawn from the evidence presented at trial.” United States v. Poole, 878 F.2d

1389, 1391 (11th Cir. 1989).

      To support a conviction for possession with intent to distribute, pursuant to

21 U.S.C. § 841(a)(1), the government must prove: (1) knowing; (2) possession of

a controlled substance; (3) with intent to distribute it. United States v. Farris, 77

F.3d 391, 393, 395 (11th Cir. 1996). The government can prove all three elements

by either direct or circumstantial evidence. Poole, 878 F.2d at 1391-92.

“Evidence of surrounding circumstances can prove knowledge.” Id. at 1392.

“Constructive possession is sufficient for the possession element, and can be

established by showing ownership or dominion and control over the drugs or over

the premises on which the drugs are concealed.” Id. “Intent to distribute can be

proven circumstantially from, among other things, the quantity of cocaine and the

existence of implements such as scales commonly used in connection with the

distribution of cocaine.” Id.



                                           9
      Here, the evidence supports convictions for all three counts. As to Counts

One and Two, the evidence sufficiently demonstrates that Beltran constructively

possessed the crack and powder cocaine located in the locked glove box of a car to

which he had the keys. Moreover, he had knowledge of the drugs located within

the glove box. Additionally, the evidence sufficiently demonstrates that Beltran

was a crack dealer who had distributed crack to the trailer occupants. Based on the

fact that Beltran was a crack dealer, a rational trier of fact could have found that

Beltran also intended to distribute powder cocaine. As to Count Three, the

evidence sufficiently demonstrates that Beltran intended to distribute the amount of

crack cocaine in his possession based on the quantity of the drugs, the packaging of

the drugs, and the large amount of cash in his possession. Therefore, we conclude

that the district court did not err by denying Beltran’s motion for judgment of

acquittal on all three counts.

                                 III. Motion to Sever

      We apply a two-step analysis to determine whether the district court

properly tried separate charges at the same time. United States v. Hersh, 297 F.3d

1233, 1241 (11th Cir. 2002). “ First, we review de novo whether the initial joinder

of charges was proper under [Federal Rule of Criminal Procedure] 8(a)”. Id.

“Second, we determine whether the district court abused its discretion under



                                           10
[Federal Rule of Criminal Procedure] 14 by denying a motion to sever.” Id.

      Pursuant to Rule 8(a), the indictment “may charge a defendant in separate

counts with 2 or more offenses if the offenses charged . . . are of the same or

similar character, or are based on the same act or transaction, or are connected with

or constitute parts of a common scheme or plan.” Fed.R.Crim.P. 8(a). We

construe Rule 8(a) broadly in favor of initial joinder and permit “joinder of

offenses that ‘are of the same or similar character,’ even if such offenses do not

arise at the same time or out of the same series of acts or transactions.” Hersh, 297

F.3d at 1241(quoting Fed.R.Crim.P 8(a)). The district court must determine the

propriety of initial joinder before trial by examining the allegations on the face of

the indictment. United States v. Weaver, 905 F.2d 1466, 1476 (11th Cir. 1990)

(Fed.R.Crim.P. 8(b)); see United States v. Dominguez, 226 F.3d 1235, 1239 n.4

(11th Cir. 2000) (finding, for present purposes, that the governing principles for

Fed.R.Crim.P. 8(a) and (b) are the same). Crimes of “similar character” mean

“[n]early corresponding; resembling in many respects; somewhat alike; having a

general likeness.” Hersh, 297 F.3d at 1241 (internal quotation marks omitted).

Additionally, the offense only need to be similar in “category, not in evidence.” Id.

      Pursuant to Rule 14(a), if the joinder of the offenses in an indictment for trial

“appears to prejudice a defendant . . . , the court may order separate trials of



                                           11
counts, . . . or provide any other relief that justice requires.” Fed.R.Crim.P. 14(a).

The defendant must show “more than some prejudice,” he must demonstrate that

“he received an unfair trial and suffered compelling prejudice.” United States v.

Walser, 3 F.3d 380, 386 (11th Cir. 1993) (internal quotation marks omitted). “This

is a heavy burden, and one which mere conclusory allegations cannot carry.” Id.

(internal quotation marks omitted). “The test for assessing compelling prejudice is

whether under all the circumstances of a particular case it is within the capacity of

jurors to follow a court’s limiting instructions and appraise the independent

evidence against a defendant solely on that defendant’s own acts, statements, and

conduct in relation to the allegations contained in the indictment and render a fair

and impartial verdict.” Id. at 386-87. Severance is not required when the possible

prejudice may be cured through a cautionary instruction. Id. at 387. Absent

evidence to the contrary, we presume that a jury was able to follow the district

court’s “instructions and evaluate the evidence” on each count independently. See

id.

      Here, we conclude that the district court did not err in the initial joinder of

the three counts because a review of the indictment demonstrates that Counts One

and Three both involved possession with intent to distribute crack cocaine.

Moreover, we conclude that the district court did not abuse its discretion by



                                           12
denying Beltran’s motion to sever because Beltran did not argue or demonstrate

that the jury was unable to follow the district court’s limiting instruction that the

jury must evaluate the evidence for each count separately.

                                IV. Career Offender

       We review the district court’s legal interpretation of the statutes and

sentencing guidelines de novo. United States v. Burge, 407 F.3d 1183, 1186 (11th

Cir. 2005).

       Under U.S.S.G. § 4B1.1, a defendant qualifies as a career offender if he has

“at least two prior felony convictions of either a crime of violence or a controlled

substance offense.” U.S.S.G. § 4B1.1(a)(3). A “crime of violence” is any offense

under federal or state law, punishable by a term of imprisonment exceeding one

year, that:

       (1) has as an element the use, attempted use, or threatened use of
       physical force against the person of another, or

       (2) is burglary of a dwelling, arson, or extortion, involves use of
       explosives, or otherwise involves conduct that presents a serious
       potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a)(1)-(2).

       To determine whether a crime is a “crime of violence,” we use the

categorical approach and, thus, only consider “the offense as defined by the law,

rather than considering the facts of the specific violation.” United States v. Archer,

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531 F.3d 1347, 1350 (11th Cir. 2008).

      Under Florida Statute § 843.01, it is a felony to “knowingly and willfully”

resist, obstruct, or oppose “any officer . . . in the lawful execution of any legal

duty, by offering or doing violence to the person of such officer.” Fla. Stat. §

843.01 (2002). In In re Standard Jury Instructions in Criminal Cases, 996 So.2d

851 (Fla. 2008), the Florida Supreme Court authorized lower courts to define

“offering to do violence” as “threatening to do violence” in Florida’s standard

criminal jury instructions for this statutory provision. Id. at 852.

      In this case, Florida Statute § 843.01 is a “crime of violence” within the

meaning of U.S.S.G. § 4B1.2(a)(1) because it has the elements of using or

threatening to use physical force against the person of another. Therefore, we

conclude that the district court did not err by classifying Beltran as a career

offender because a conviction under Florida Statute § 843.01 is a qualifying

offense.

      For the above-stated reasons, we affirm Beltran’s convictions and sentences.

      AFFIRMED.




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