           Case: 17-10302   Date Filed: 11/16/2017   Page: 1 of 15


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-10302
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:15-cr-00159-SCJ-JFK-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

QUINTON JACKSON,

                                                         Defendant-Appellant.

                       ________________________

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

                            (November 16, 2017)

Before MARCUS, FAY, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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          Following a jury trial, Defendant Quinton Jackson appeals his conviction for

being a felon in possession of a firearm and 262-month sentence. On appeal,

Defendant argues that the district court erred by denying his motion to suppress

because officers did not have probable cause to conduct a traffic stop based on his

tag light violation. He also argues that the district court erred by admitting a post-

arrest statement, made in violation of Miranda 1, at the sentencing hearing. After

careful review, we affirm.

I.        BACKGROUND

          A.     Facts

          Atlanta Police Department Officers Kevin Romer, Caleb Munson, and

Darryl Moore were assigned to the crime-suppression unit—a unit that acts

proactively to stop crime before it is committed. On August 22, 2014, they were

patrolling “the Boulevard Area,” an area known for high crime, population density,

narcotics, and violence. During their patrol that night, the officers stopped a

vehicle driven by Defendant because the vehicle did not have tag lights, which are

lights that illuminate the license plate so that it can be seen at night.

          Officers Romer and Moore approached the vehicle from the passenger side,

and Officer Munson approached on the driver’s side. As the officers approached,

Officer Moore observed Defendant reaching under the driver’s seat.

1
     Miranda v. Arizona, 384 U.S. 436 (1966).

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      Defendant had opened the driver’s side window approximately three or four

inches and the officers repeatedly asked him to roll the window down more, but he

would not comply. Officer Romer could smell marijuana emanating from the

vehicle. In the meantime, Officer Munson could see Defendant moving around a

lot and observed that he was shaking and breathing heavily. Based on Defendant’s

movements, Officer Munson opened the door. As he did, Defendant reached down

to the driver’s side floorboard. Officer Munson stopped Defendant, pulled him out

of the vehicle, and placed him in handcuffs.

      Officer Moore asked Defendant if he had anything illegal in the vehicle and

Defendant stated that he had a firearm and that there was something inside of the

Gucci bag. Once inside a patrol car, Defendant also told Officer Moore that he

was reaching for the gun because he did not want to go back to jail. Officer Moore

then read Defendant his Miranda rights. After being advised of his rights,

Defendant told Officer Moore that he sold drugs to support his family.

      Officers subsequently learned that Defendant had an active warrant for his

arrest. Officer Munson recovered a firearm—later determined to be stolen—from

the vehicle in the location where Defendant was reaching. Officers also found a

Gucci bag containing heroin and crack cocaine.




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      B.     Procedural History

      A federal grand jury charged Defendant with being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Defendant moved to

suppress the statements and evidence recovered by officers during the traffic stop.

As to the statements, Defendant argued that it was not clear whether he knowingly

and voluntarily waived his rights under Miranda. He also argued that the evidence

found during the vehicle stop should be suppressed because officers lacked

probable cause to stop, arrest, and search Defendant’s vehicle.

      At the suppression hearing, Officers Romer, Munson, and Moore provided

testimony regarding the details of the traffic stop. Following the parties’

submissions of post-hearing briefs, the magistrate judge issued a report and

recommendation (“R&R”), recommending that the district court deny Defendant’s

motions to suppress. Concluding that the officers testified credibly, the magistrate

judge determined that the officers had probable cause to stop the vehicle based on

the tag light violation. Moreover, based on the officers’ training and experience, as

well as the circumstances surrounding the vehicle stop, the magistrate judge

concluded that the officers had probable cause to arrest Defendant and search the

vehicle. As to the Defendant’s post-arrest statements, the magistrate judge

determined that the statements Defendant made prior to receiving Miranda

warnings were made voluntarily and could contribute to the finding of probable


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cause to search the vehicle. Finally, the magistrate judge determined that

Defendant’s post-Miranda statements were admissible because he knowingly and

voluntarily waived his Miranda rights.

       Over Defendant’s objections, the district court adopted the R&R and denied

Defendant’s motions to suppress. Defendant proceeded to trial and the jury

returned a guilty verdict against him.

       At the sentencing hearing, the district court calculated a guideline range of

262 to 327 months’ imprisonment based on an offense level of 34 and a criminal

history category of VI. The Government then called Officer Moore to testify about

one of Defendant’s post-arrest statements. Defendant objected to this line of

questioning, arguing that his statement was obtained in violation of Miranda and

was excluded at trial. 2 The Government responded that the district court could

consider Defendant’s statement at sentencing if it found that the statement was

voluntary and reliable. The district court permitted Officer Moore to testify about

the circumstances surrounding Defendant’s statement, so that it could determine

whether the statement had sufficient indicia of reliability.

       Officer Moore then testified that Defendant was handcuffed and in the patrol

vehicle when he questioned him. He used a calm voice while speaking to

Defendant and none of the officers ever drew their weapons. Officer Moore

2
  The Government acknowledged during the suppression proceedings that it would not use the
pre-Miranda statements in its case-in-chief.
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acknowledged on cross-examination that all three officers were dressed in

uniforms and were carrying guns and badges. When asked by the court, Officer

Moore stated that the question that he had asked Defendant was “Hey, man, you

were really reaching for that gun?”

      Based on Officer Moore’s testimony, the district court determined that

Defendant’s statement was reliable, relevant, not coerced, and was therefore

admissible. Officer Moore then explained that in response to his question,

Defendant said, “I didn’t want to go back to jail, officer.” Officer Moore

interpreted Defendant’s statement to mean that he would have harmed the officers

in order to avoid going to jail.

      Defendant requested a sentence of 180 months. 3 The district court sentenced

him to 262 months’ imprisonment and this appeal followed.

II.   DISCUSSION

      A.     Motion to Suppress

      Defendant argues that the district court erred by denying his motion to

suppress because Officers Moore, Munson, and Romer lacked probable cause to

believe that he had committed a traffic violation. Specifically, he argues that

driving with inoperable tag lights is insufficient to establish a violation under



3
  Defendant was subject to a 15-year mandatory minimum sentence under the Armed Career
Criminal Act.
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O.C.G.A. § 40-8-23(d), as the evidence must also show that his license plate was

not clearly legible from 50 feet away.

      “Because rulings on motions to suppress involve mixed questions of fact and

law, we review the district court’s factual findings for clear error, and its

application of the law to the facts de novo.” United States v. Lewis, 674 F.3d 1298,

1302–03 (11th Cir. 2012) (quotations omitted). We defer to the district court’s

credibility determinations unless the court’s understanding of the facts appears to

be unbelievable. United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir.

2002).

      The Fourth Amendment protects an individual against unreasonable searches

and seizures. U.S. CONST. amend. IV. A traffic stop is a seizure under the Fourth

Amendment. Delaware v. Prouse, 440 U.S. 648, 653 (1979). However, a traffic

stop is constitutional if a police officer has probable cause to believe a traffic

violation has occurred. Whren v. United States, 517 U.S. 806, 810 (1996); United

States v. Harris, 526 F.3d 1334, 1337 (11th Cir. 2008) (“A traffic stop, however, is

constitutional if it is either based upon probable cause to believe a traffic violation

has occurred or justified by reasonable suspicion” that that the subject is involved

in or is about to be involved in criminal activity). This standard is met when an

officer observes a traffic violation. Harris, 526 F.3d at 1338 (concluding that an




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officer had probable cause to stop a vehicle after observing that it failed to use a

turn signal when changing lanes).

      The Government asserts that Defendant waived his right to challenge the

initial stop because he never raised the issue before the district court and failed to

object to the magistrate judge’s finding that the officers had probable cause to stop

Defendant based on a tag light violation. We agree.

      Federal Rule of Criminal Procedure 59(b)(2) provides that a party must file

specific written objections to the magistrate judge’s proposed findings and

recommendations within 14 days after being served with a copy of the

recommendations. Fed. R. Crim. P. 59(b)(2). “Failure to object in accordance

with this rule waives a party’s right to review.” Id.; 11th Cir. R. 3-1 (stating that a

party who is informed of the time period for filing objections to the magistrate

judge’s report and recommendations and fails to do so waives the right to

challenge the district court’s order based on unobjected-to factual and legal

conclusions). We have held that a defendant who fails to object to a specific

portion of the magistrate judge’s report and recommendation waives the right to

challenge the district court’s order as to that portion. United States v. Perkins, 787

F.3d 1329, 1343 (11th Cir. 2015). Nevertheless, “if necessary in the interests of

justice,” we may exercise our discretion and review an otherwise waived argument

for plain error. See 11th Cir. R. 3-1.


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        Although Defendant did not challenge the constitutionality of the initial stop

in his post-suppression hearing brief,4 the magistrate judge concluded that the

officers had probable cause to stop Defendant’s vehicle based on their observation

that he violated O.C.G.A. § 40-8-23(d) because he had inoperable tag lights. The

magistrate judge warned Defendant that he had 14 days to file any written

objections to the R&R and that he would waive his right to review if he failed to

file objections. Despite this warning, Defendant did not object to this specific

finding. To be clear, Defendant objected to several of the magistrate judge’s

findings—including the finding that the officers testified credibly and that there

was probable cause to arrest Defendant and search his car—but he never argued

that the officers lacked probable cause for the initial stop, much less that there was

insufficient evidence to establish a violation of § 40-8-23(d) because the officers’

testimony failed to show that his license plate was not clearly legible from 50 feet

away.

        Contrary to Defendant’s contention, his objection challenging the magistrate

judge’s finding regarding the probable cause supporting the arrest did not put the

district court on notice of any objection to the magistrate judge’s finding that the

officers had probable cause for the initial stop. As reflected in the R&R, the initial
4
  It is also worth noting that Defendant never argued at any point before the district court that
probable cause was lacking for the initial stop because there was insufficient evidence showing
that he violated O.C.G.A. § 40-8-23(d). In fact, in his objections to the R&R, Defendant stated
that, at the time of his arrest, he “had only violated a traffic ordinance for not having a tag light
which is not an arrestable offense.”
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traffic stop and Defendant’s subsequent arrest were each supported by their own

probable cause. Because Defendant failed to object to the magistrate judge’s

finding that the officers had probable cause for the vehicle stop, he waived his right

to challenge this finding on appeal. See Fed. R. Crim. P. 59(b)(2); 11th Cir. R. 3-1;

Perkins, 787 F.3d at 1343. We therefore decline to address his argument. 5

       B.      Admission of Defendant’s Statement

       Defendant also asserts that the district court erred at sentencing by

considering a statement he made to Officer Moore, which was obtained in violation

of Miranda. At issue is the district court’s admission of testimony at the

sentencing hearing pertaining to a statement Defendant made while he was in

custody but before he received Miranda warnings. Specifically, Officer Moore

testified that he asked Defendant, “Hey, man, you were really reaching for that

gun,” and Defendant responded, “I didn’t want to go back to jail, officer.”


5
  Even if we exercised our discretion to review Defendant’s argument for plain error, he cannot
show that the district court committed error, let alone plain error. See 11th Cir. R. 3-1. The
officers had probable cause to stop Defendant’s vehicle because they observed Defendant
commit a traffic violation. Georgia law requires that “[e]ither a taillight or a separate light shall
be so constructed and placed as to illuminate with a white light the rear registration plate and
render it clearly legible from a distance of 50 feet to the rear.” O.C.G.A. § 40-8-23. Officer
Romer testified that Defendant’s car did not have functioning tag lights and that his license plate
could not be read. Officer Munson testified that Defendant’s car “had no tag lights.” The
officers’ testimony—which was found credible by the district court—established that Defendant
committed a traffic violation under § 40-8-23(d) because his tag was not being illuminated,
regardless of how far away the officers were when they observed the violation. See Carnes v.
State, 667 S.E.2d 620, 621 (Ga. Ct. App. 2008) (“There was probable cause for the initial stop,
based on the officer’s observance of a traffic violation, the nonfunctioning tag light.” (quotations
omitted)).

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      We review issues of law at sentencing de novo. See United States v.

Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010); United States v. Farley, 607 F.3d

1294, 1325 (11th Cir. 2010) (reviewing de novo the voluntariness of a defendant’s

statements); see also United States v. Nichols, 438 F.3d 437, 439 (4th Cir. 2006)

(reviewing de novo whether evidence obtained in violation of Miranda is

admissible at sentencing). “A sentencing court may consider any information,

(including hearsay), regardless of its admissibility at trial, in determining whether

factors exist that would enhance a defendant’s sentence, provided that the evidence

has sufficient indicia of reliability, the court makes explicit findings of fact as to

credibility, and the defendant has an opportunity to rebut the evidence.” United

States v. Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010) (quotation omitted).

      The Supreme Court’s decision in Miranda protects a defendant’s “Fifth

Amendment privilege against self-incrimination by requiring law enforcement

authorities to advise a [defendant] subject to custodial interrogation of certain

rights.” United States v. Bernal-Benitez, 594 F.3d 1303, 1318 (11th Cir. 2010). A

statement made in violation of Miranda is not admissible at trial. Miranda, 384

U.S. at 444–45.

      The district court admitted Defendant’s statement, relying in part on our

decision in United States v. Lynch, 934 F.2d 1226 (11th Cir. 1991). In Lynch, we

held in the context of the Fourth Amendment that the exclusionary rule does not


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apply to sentencing proceedings and that evidence seized in violation of the Fourth

Amendment can be introduced at sentencing as long as it is reliable. Lynch, 934

F.2d at 1235–37. Defendant argues that Lynch is not applicable here because a

statement obtained in violation of Miranda is distinguishable from physical

evidence obtained in violation of the Fourth Amendment.

      We have not specifically addressed whether statements made in violation of

Miranda can be introduced at sentencing. At least two other federal appellate

courts, however, have determined that such statements may be considered at

sentencing if they are voluntary and otherwise reliable. See Nichols, 438 F.3d at

442 (“We agree with the Seventh Circuit that statements obtained in violation of

Miranda, if they are otherwise voluntary, may generally be considered at

sentencing.”); Del Vecchio v. Ill. Dep’t of Corr., 31 F.3d 1363, 1388 (7th Cir.

1994) (en banc) (concluding in the context of a federal habeas corpus petition that,

even assuming a confession was obtained in violation of Miranda, it did not

require exclusion from a state sentencing proceeding because “[t]he exclusionary

rule is generally inapplicable during sentencing”); see also United States v.

Graham-Wright, 715 F.3d 598, 601 (6th Cir. 2013) (“[T]hat is why Miranda

generally does not apply at sentencing. A sentencing court may consider

‘statements obtained in violation of Miranda, if they are otherwise voluntary’ and

reliable.” (quoting Nichols, 438 F.3d at 442)). Further, the Supreme Court has


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concluded that statements obtained in violation of Miranda, while not admissible

as part of the Government’s case-in-chief, may be considered for other purposes.

See, e.g., Oregon v. Elstad, 470 U.S. 298, 307 (1985) (explaining that statements

obtained in violation of Miranda may still be used for impeachment purposes).

Given the district court’s broad discretion in making a sentencing determination, as

well as the reasoning of Lynch and the decisions of our sister circuits, we conclude

that statements obtained in violation of Miranda may be considered at sentencing

if they are voluntary and reliable. See United States v. Tucker, 404 U.S. 443, 446

(1972) (“Before making [the sentencing] determination, a judge may appropriately

conduct an inquiry broad in scope, largely unlimited either as to kind of

information he may consider, or the source from which it may come.”).

      With that in mind, we conclude that the district court did not err by

considering Defendant’s post-arrest statement because the record shows that the

statement was voluntary and reliable. See Lynch, 934 F.2d at 1235–37; see also

Nichols, 438 F.3d at 443; Del Vecchio, 31 F.3d at 1388. At the sentencing hearing,

Officer Moore testified that Defendant was in handcuffs in the back of the patrol

when he made the statement to Officer Moore. Officer Moore escorted Defendant

to the patrol car by grabbing his arm but did not do so forcefully. None of the

officers drew their weapons, threatened Defendant, or made him any promises in

exchange for speaking with them. Officer Moore spoke calmly to Defendant and


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Defendant responded to him in a friendly manner. Based on Officer Moore’s

detailed testimony surrounding the circumstances of Defendant’s arrest, the district

court determined that Defendant’s statement that he did not want to go back to jail

was relevant, reliable, and not coerced. Cf. Hubbard v. Haley, 317 F.3d 1245,

1252–53 (11th Cir. 2003) (explaining that whether a statement is voluntary

depends on the totality of the circumstances, including several factors such as “the

defendant’s intelligence, the length of his detention, the nature of the interrogation,

the use of any physical force against him, or the use of any promises or

inducements by police”).

      Because the record shows that Defendant’s statement was voluntary and

reliable, the district court did not err by considering Defendant’s post-arrest

statement at sentencing. See Lynch, 934 F.2d at 1235–37. But even had there been

no acknowledgement by Defendant that he was reaching for his gun, there was

other evidence supporting this inference. Specifically, the officers testified that

after Defendant refused their commands to lower his window, instead continuing

to move within the car, they opened the car door and saw him reaching down for

something along the floorboard of his side of the vehicle. The gun was later

located in the area where Defendant had been reaching.




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III.   CONCLUSION

       For the above reasons, Defendant’s conviction and sentence are

AFFIRMED.




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