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                                                             [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 16-15521
                            ________________________

                       D.C. Docket No. 1:15-cr-20802-DPG-1



UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee,

versus

DAMASO RIVERA FONSECA,

                                                     Defendant - Appellant.

                            ________________________

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

                                   (March 7, 2018)

Before JORDAN and JILL PRYOR, Circuit Judges, and REEVES, ∗ District Judge.

PER CURIAM:

∗
 The Honorable Danny C. Reeves, United States District Court for the Eastern District of
Kentucky, sitting by designation.
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      After a five day trial, a jury found Damaso Rivera Fonseca guilty of (1)

being a felon in possession of a firearm and ammunition, see 18 U.S.C. §

922(g)(1); (2) possession of marijuana with intent to distribute, see 21 U.S.C. §

841(a)(1), (b)(1)(D); and (3) possession of a firearm in furtherance of drug

trafficking, see 18 U.S.C. § 924(c)(1)(A).      The jury found him not guilty of

possession of cocaine with intent to distribute. The district court sentenced Mr.

Fonseca to 235 months, with 115 months to be served concurrently for each of the

first two counts, and 120 months to be served consecutively for the third count,

followed by five years of supervised release.

      Mr. Fonseca now appeals. After reviewing the record, and with the benefit

of oral argument, we find none of his arguments meritorious, and affirm his

conviction and sentence.

                                         I

                                         A

      At 2:30 a.m. on October 5, 2015, a woman entered a Walgreens store in

Aventura, Florida, became panicked, and told the overnight manager that her crazy

boyfriend was outside in a blue van with a big gun. She said he was going to come

into the store, shoot up the store, and kill all of them. The manager called 911 and

relayed this information, and the 911 operator dispatched Aventura police units to

the store.


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      Officer James Martin, who responded to the 911 call, testified that he

received a call from dispatch advising that a robbery was about to take place at the

Walgreens at 18665 Biscayne Boulevard in Aventura, and that the suspect had a

rifle and was in a blue van. When Officer Martin arrived at the Walgreens, he

observed a van matching that description parked right in front of the door to the

pharmacy. In the van, Officer Martin saw a man hunched over and moving around

in the rearmost seat with a long object extending up from his person. Officer

Martin ordered the man, later determined to be Mr. Fonseca, from the van and took

him into custody. Officer Martin smelled a strong odor of marijuana coming from

the open door of the van. He also saw the stock of an AR-15 rifle sticking up in

plain view, but partially covered by clothing, in the rear seat of the van where Mr.

Fonseca had been sitting.

      Another Aventura police officer, Officer Ricardo Moreno, similarly testified

about responding to the dispatch concerning a possible robbery by an armed man

in a blue van at the Walgreens. He identified Mr. Fonseca as the person who was

in the van with the object that was later confirmed to be an AR-15. He testified

that when the police arrested Mr. Fonseca, they found $891 in his wallet.

      Officer Moreno additionally described what he and the crime scene

investigators who inventoried the van located during their vehicle search: an AR-

15 with a round in the chamber, a magazine of 29 rounds inserted, and the weapon


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on “fire”; an additional 28 rounds of ammunition; six cell phones; a rifle case;

narcotics; marijuana; large and small Ziploc baggies; and a container which

appeared to be a sugar shaker, but which had been modified to conceal more

baggies of narcotics.

       Several crime lab personnel, ATF agents, and experts testified about the

physical evidence in the case. ATF Agent Carlos Perez testified that the blue van

was registered to Sonia Fonseca Baez, who lived at the same location as Mr.

Fonseca. Agent Perez also testified that he obtained a warrant for and performed

DNA swab tests on Mr. Fonseca, and that he sent the rifle and ammunition for

comparative DNA testing. Olga Saavedra, who performed the DNA tests on the

rifle, ammunition, and magazine, and who testified as an expert, concluded that

Mr. Fonseca’s DNA was a virtually-certain match to DNA found on the rifle.

Melissa Darby, a criminalist, testified that cocaine and marijuana were present

within the samples found in the van. Detective Wayne Tillman, who testified as an

expert in street-level drug trafficking and distribution, explained that the physical

evidence found in the van was consistent with the trade of street-level drug

traffickers.




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         ATF Special Agent Katherine Brady testified about post-Miranda1

statements Mr. Fonseca made to her immediately before and while she transported

him from the Aventura Police Department to the Miami Federal Detention Center.

Agent Brady testified that when Mr. Fonseca saw his girlfriend in a police car

outside the Aventura police station, he told Agent Brady that the narcotics and the

firearm found earlier in the blue van belonged to him, and that his girlfriend should

not face any charges for them.

         Agent Brady also testified that, during the drive, Mr. Fonseca stated that the

blue van belonged to his mother and that he wanted to return it to her. Mr. Fonseca

said he needed a gun for protection from enemies, and that he would rather be

caught with a gun than be caught without one and be dead. He said that he knew

he was a felon and was not allowed to possess a firearm. Finally, he stated that he

had recently obtained this firearm on the street, and that he would acquire another

gun once he got out of prison this time. Agent Brady testified that she did not

initiate any of these conversations.

         The government presented a joint stipulation that Mr. Fonseca had been

previously convicted of a felony, and that he was unable to own, possess, or use

firearms.


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



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                                          B

      Before trial, Mr. Fonseca filed a motion to suppress the physical and

testimonial evidence associated with his arrest, and the district court held a hearing

to determine whether suppression was appropriate. Mr. Fonseca filed a pre-trial

motion in limine, requesting that the district court exclude any evidence relating to

allegations of attempted armed robbery. At the pretrial hearing, the district court

heard the audio recording of the 911 call from the Walgreens manager. Officer

Martin and Agent Brady testified about their observations regarding, and their

involvement with, Mr. Fonseca’s arrest, his interrogation, his transport from the

Aventura police station to FDC Miami, and the vehicle inventory.

      The district court denied the motion to suppress after finding that Mr.

Fonseca’s arrest was lawful, the items at issue were properly seized, and Mr.

Fonseca’s statements were made freely and voluntarily. The district court based its

probable cause finding, in part, on the statement Mr. Fonseca’s girlfriend had made

to the Walgreens manager that Mr. Fonseca was going to “come in and shoot up

the place” — a statement which the district court said was not an anonymous tip

because it was made by “a woman who is intimately known to the defendant.” The

district court also found that probable cause existed based on the identification and

description, in the 911 call, of a blue van parked in front of the store, with a man




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inside with a large rifle. This description matched what the police found upon their

arrival.

       Next, the district court found that the vehicle search was conducted lawfully

because it was a search incident to a lawful arrest. In addition, the district court

said the search was lawful based on the automobile exception to the Fourth

Amendment, or as an inventory search.           Finally, the district court found no

constitutional violation regarding Mr. Fonseca’s statements to Agent Brady,

because the statements were spontaneous, and were freely and voluntarily made.

       The district court also heard argument about Detective Tillman’s proposed

expert testimony regarding the drug trade, and found that his testimony would be

probative and not unduly prejudicial.         The district court specifically allowed

Detective Tillman to testify that, based on his training and experience, the physical

evidence in Mr. Fonseca’s case was consistent with distribution. But the district

court placed limitations on the testimony — Detective Tillman would not be

permitted to testify about the defendant’s state of mind.

                                         II

       In reviewing a district court’s ruling on a motion to suppress, we review the

district court’s factual findings for clear error, and the application of law to those

facts de novo. See United States v. Mercer, 541 F.3d 1070, 1073-74 (11th Cir.




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2008). We construe all facts in the light most favorable to the party that prevailed

in the district court — here, the government. See id. at 1074.

      We review the district court’s decisions regarding expert testimony, motions

in limine, and a motion for a new trial for an abuse of discretion. See United States

v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (expert testimony); Al-Amin v.

Smith, 637 F.3d 1192, 1195 (11th Cir. 2011) (motions in limine); United States v.

Sweat, 555 F.3d 1364, 1367 (11th Cir. 2009) (new trial). Under this standard, we

affirm unless we find that the district court made a clear error of judgment or

applied the wrong legal standard. See Frazier, 387 F.3d at 1259.

      We review de novo the district court’s interpretation and application of the

sentencing guidelines. See United States v. McVay, 447 F.3d 1348, 1352-53 (11th

Cir. 2006).

                                         III

      Mr. Fonseca makes five arguments on appeal. We address each in turn.

                                         A

      First, Mr. Fonseca argues that the district court erred in denying his motion

to suppress physical and testimonial evidence. As in his motion to suppress, he

objects to the government’s introduction of the AR-15 rifle, ammunition,

marijuana, cocaine, digital scale, clear plastic baggies, and money discovered on

his person and in the vehicle subsequent to his arrest.    He claims that the police


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had no probable cause to arrest him, and that all evidence seized after this illegal

arrest should have been suppressed.

      The government responds that the police had probable cause to arrest Mr.

Fonseca, and that the subsequent search of his vehicle was a lawful search incident

to his arrest. The government points to the content of the 911 call, the dispatch the

police received based on that call, and the match between the content of the 911

call and what the officers found upon arriving at the Walgreens as establishing

probable cause. The government contends that the officers’ observations of a man

holding a long object — potentially a rifle — inside the van, and the strong smell

of marijuana emanating from the van when the man opened the door, further

established probable cause for arrest.

      The government contends that the search of the van was permissible under

multiple legal frameworks. First, the government contends that it was a search

incident to lawful arrest, because pursuant to Arizona v. Gant, 556 U.S. 332

(2009), it was reasonable for the officers to believe that evidence of the offense of

arrest might be found in the vehicle. Second, the government argues that under

United States v. Tamari, 454 F.3d 1259, 1264 (11th Cir. 2006), the automobile

exception to the Fourth Amendment applied, because both probable cause and

exigent circumstances existed. Third, the government claims that pursuant to

Colorado v. Bertine, 479 U.S. 367, 371-72 (1987), the inventory exception to the


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Fourth Amendment applied, because the van was impounded following Mr.

Fonseca’s arrest in keeping with the police department’s procedures.

      The district court based its factual findings and suppression ruling on the

audio recording of the 911 call, as well as on the testimony of Officer Martin and

Agent Brady. In finding probable cause, the district court relied on the girlfriend’s

description of her boyfriend’s impending crime — that he was going to come in

and shoot up the place — and the fact that she was not an anonymous tipster but a

person who intimately knew Mr. Fonseca. The district court also noted the close

correlation between what the girlfriend had described and what the police observed

when they arrived on the scene as supporting probable cause, a blue van parked in

front of the Walgreens with a man inside holding a long item in a shape similar to

that of a rifle.   On this record, we do not believe the district court erred in

concluding that the officers had probable cause to arrest Mr. Fonseca.          And

because Mr. Fonseca’s arrest was lawful, the subsequent search of his vehicle was

a lawful search incident to his arrest. See Arizona v. Gant, 556 U.S. 332, 343

(2009) (concluding that police may search a vehicle incident to arrest when

arrestee is unsecured and within reaching distance of the interior of the vehicle or

when it is “reasonable to believe that evidence of the offense of arrest might be

found in the vehicle”).




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        The district court, in sum, did not err in finding that the physical evidence

was lawfully seized. And it did not abuse its discretion in admitting the evidence

at trial.

                                          B

        Second, Mr. Fonseca contends that the district court should have excluded

his statements to Agent Brady based on the police’s failure to scrupulously honor

his invocation of his right to an attorney. He also argues that the district court

should have, post-verdict, granted him a new trial based on its erroneous admission

of his statements, including his confession. He argues that by (1) “not immediately

ceasing interrogation upon the defendant’s first unambiguous invocation of his

right to counsel,” and (2) “explaining the federal criminal process to the defendant

immediately after he unambiguously invoked his right to an attorney for a second

time,” Agent Brady violated his rights. He claims Agent Brady’s actions made all

of his subsequent statements presumptively involuntary. Thus, Mr. Fonseca claims

the statements he made during the drive to FDC Miami — that the guns and drugs

belonged to him — were involuntary and therefore inadmissible. Mr. Fonseca

believes the police should have re-administered his Miranda warnings when he




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began speaking to ensure he had knowingly and voluntarily waived his right to

counsel. 2

       The government, on the other hand, contends that after Mr. Fonseca invoked

his right to counsel, no law enforcement officer subjected him to questioning or to

the functional equivalent of interrogation at any time. The government argues that

Mr. Fonseca voluntarily and freely made incriminating statements about his

ownership of the gun and drugs, and that suppression of these statements was not

warranted. The government maintains that the district court correctly admitted

these statements, and that because overwhelming evidence supported the jury’s

guilty verdicts, the district court did not abuse its discretion in denying Mr.

Fonseca’s motion for a new trial.

       The district court found that Mr. Fonseca’s statements, both outside the

police station and during transport, were freely and voluntarily made. The district

court made its decision after watching an interrogation video, which showed Mr.

Fonseca invoking his right to an attorney, and after evaluating testimony from

2
  Mr. Fonseca also mentions, although he does not fully address the argument, that the police
choreographed his girlfriend’s transport in an effort to elicit a confession or admissions from
him. Because he devotes only one sentence of his brief to this idea, we will not address it
further. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“[A]n
appellant abandons a claim when he either makes only passing references to it or raises it in a
perfunctory manner without supporting arguments and authority.”). In addition, the district court
found that uncontroverted testimony established no choreographing by the police. This factual
finding was not clearly erroneous.




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Agent Brady about the circumstances, content, and context of the comments made

by her and by Mr. Fonseca. The district court pointed to the fact that Mr. Fonseca

was the initiator of both conversations during which he made incriminating

statements. And it noted that, in the interrogation room, questioning ceased when

Mr. Fonseca stated to Agent Brady that he wanted to “stop and let his lawyer

handle it.” The district court explained that Agent Brady’s subsequent description

to Mr. Fonseca of the transport, booking, and legal counsel appointment

procedures might not be the best practice, but it was not interrogation or the

functional equivalent of interrogation, and was not likely to elicit an incriminating

response.

      Although perhaps police officers should refrain from explaining the criminal

justice process immediately after a suspect invokes his Miranda rights, see United

States v. Johnson, 812 F.2d 1329, 1331 (11th Cir. 1986), we find no error in the

district court’s factual finding that Mr. Fonseca’s statements were spontaneous or

its conclusion that the statements — made at a later time and in a different location

— were made voluntarily. The district court properly admitted Mr. Fonseca’s

statements at trial, and did not abuse its discretion in refusing to grant a new trial.

                                           C

      Third, Mr. Fonseca argues that the district court should not have allowed

Detective Tillman to testify as an expert because his testimony did not meet the


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Daubert standard or the requirements of Rules 702, 402, 403, or 704(b) of the

Federal Rules of Evidence. See Daubert v. Merrell Dow Pharm., 509 U.S. 579,

593 (1993). Mr. Fonseca maintains that nothing in Detective Tillman’s testimony

is beyond the understanding of the average lay person, and therefore there was no

reason the jury would need “enlightenment from [someone] having a specialized

understanding of the subject.” Fed. R. Evid. 702 Adv. Comm. Note.

         The government argues that the district court properly performed its

“gatekeeping” function in evaluating Detective Tillman’s testimony because the

testimony was based on his extensive experience in narcotics investigations, and

was both relevant and helpful to jury members, who would not know the

significance of certain conduct or methods of operation unique to the drug

distribution business. Even assuming it was error to admit the testimony, avers the

government, the error was harmless due to the extensive evidence supporting Mr.

Fonseca’s guilt beyond a reasonable doubt, including a loaded AR-15 rifle found

where Mr. Fonseca was sitting before his arrest, which had Mr. Fonseca’s DNA on

it; a black bag filled with an amount of marijuana and cocaine sufficient for

trafficking; $891 in cash; six cell phones; empty plastic baggies; and a digital

scale.

         The district court decided to allow Detective Tillman to testify as an expert

about street-level drug trafficking tactics, techniques, and procedures based on his


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considerable training and experience as an undercover narcotics police officer and

his participation in hundreds of narcotics investigations.            This choice was in

keeping with our precedent, and did not constitute an abuse of discretion. See

Frazier, 387 F.3d at 1260 (explaining the district court’s gatekeeping function is

due considerable deference); United States v. Garcia, 447 F.3d 1327, 1335 (11th

Cir. 2006) (“The operations of narcotics dealers are a proper subject for expert

testimony under Rule 702, and we have recognized the well-established rule that

an experienced narcotics agent may testify as an expert to help a jury understand

the significance of certain conduct or methods of operation unique to the drug

distribution business.”) (internal citations and quotations omitted).

                                             D

       Fourth, Mr. Fonseca contends that the district court should have granted his

motion in limine preventing any reference to allegations of an attempted armed

robbery of the Walgreens because, he says, no evidence supported that suggestion,

and because the government’s intrinsic and inextricably intertwined arguments

about this evidence were improper. 3




3
 In his brief, Mr. Fonseca asserts that the statements made by his girlfriend to the Walgreens
manager, and those made by the store manager to the 911 operator, were inadmissible hearsay.
Because he offers no support for this one-sentence argument, he has abandoned it. See Sapuppo,
739 F.3d at 681.



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      The government argues that evidence of the Walgreens manager’s call to

911 was inextricably intertwined with the charged offenses. That call was based

on information that a man was outside in a blue van with a loaded AR-15, and that

he was planning to come inside and shoot the store occupants. The 911 operator

dispatched officers to the scene to investigate a possible armed robbery in progress

based on the call. The government argues that the jury needed to understand the

full context of the alleged crime and the police’s response in order to properly

evaluate the charges against Mr. Fonseca.

      The district court decided that evidence of Mr. Fonseca’s alleged attempted

armed robbery was more probative than prejudicial, and permitted the evidence at

trial. See Fed. R. Evid. 403. The district court found that the references to armed

robbery were inextricably intertwined with the charged offenses because the

alleged armed robbery was the very reason the police were dispatched to

Walgreens in the first place. See United States v. McLean, 138 F.3d 1398, 1403

(11th Cir. 1998) (“Evidence, not part of the crime charged but pertaining to the

chain of events explaining the context, motive and set-up of the crime, is properly

admitted if linked in time and circumstances with the charged crime, or forms an

integral and natural part of an account of the crime, or is necessary to complete the

story of the crime for the jury.”) (internal quotations omitted). We find no abuse of

discretion in the district court’s assessment that references to armed robbery were


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vital to an understanding of the context for the police’s arrival at the Walgreens,

their arrest of Mr. Fonseca, and their subsequent search of Mr. Fonseca’s vehicle.

                                             E

       Finally, Mr. Fonseca argues that the district court erred in overruling his

objection to the grouping of Counts 1 and Count 2 in paragraph 20 of the

presentence investigation report. Mr. Fonseca argues that this grouping constituted

impermissible double counting, because he was doubly punished for possessing the

gun — what he called “stacking gun-on-gun.”4 He argues that “[a] legally correct

computation would have been [C]ount 2 (possession with intent to distribute a

controlled substance) running consecutive to the 5-year statutory minimum

mandatory penalty on [C]ount 1 (felon in possession of a firearm and

ammunition).”

       The government counters that Mr. Fonseca’s argument is contrary to the

plain meaning of U.S.S.G. § 3D1.3(a). The government explains that grouping

Counts 1 and 2 in order to calculate the advisory Sentencing Guidelines range is

not a sentence enhancement, but is merely the process required to determine Mr.




4
   In addition, Mr. Fonseca objects to a two-level firearm enhancement under U.S.S.G §
2K2.1(b)(6)(B). But the record indicates that the government abandoned the § 2K2.1(b)(6)(B)
enhancement before sentencing, and that the district court did not apply that enhancement in
calculating Mr. Fonseca’s advisory sentencing guidelines range. See D.E. 103 at 4. Therefore,
this argument is moot.


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Fonseca’s base offense level under § 3D1.2(c). Thus, the government concludes,

Mr. Fonseca is not being punished twice for substantially the same harm.

      We have explained that “[i]mpermissible double counting occurs only when

one part of the Guidelines is applied to increase a defendant’s punishment on

account of a kind of harm that has already been fully accounted for by application

of another part of the Guidelines.” United States v. Webb, 665 F.3d 1380, 1382

(11th Cir. 2012) (internal quotations omitted). Unless the guidelines give specific

instructions otherwise, we “presume that the Sentencing Commission intended to

apply separate sections cumulatively, and, as a result, a defendant asserting a

double counting claim has a tough task.”        Id.   (internal quotations omitted).

Additionally, we recognize that 18 U.S.C. §§ 922(g) and 924(c) are separate

statutes with separate and distinct elements. See United States v. Gunn, 369 F.3d

1229, 1234 (11th Cir. 2004).

      The grouping provision, § 3D1.3(a), states:

      In the case of counts grouped together pursuant to § 3D1.2(a)–(c), the
      offense level applicable to a Group is the offense level, determined in
      accordance with Chapter Two and Parts A, B, and C of Chapter
      Three, for the most serious of the counts comprising the Group, i.e.,
      the highest offense level of the counts in the Group.

In addition, § 3D1.2(c) specifically calls for the grouping of Counts 1 and 2

because “one of the counts embodies conduct that is treated as a specific offense

characteristic in, or other adjustment to, the guideline applicable to another of the


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counts.” U.S.S.G. § 3D1.2(c). The increase in Mr. Fonseca’s offense level based

upon grouping, therefore, was not erroneous. See id. For these reasons, Mr.

Fonseca’s arguments that the district court engaged in double counting and

imposed an improper sentence fail.

                                       V

      We affirm Mr. Fonseca’s conviction and sentence.

      AFFIRMED.




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