                             UNPUBLISHED ORDER
                          Not to be cited per Circuit Rule 53




            United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                                Argued April 19, 2005
                                Decided May 16, 2005

                                       Before

                   Hon. ILANA DIAMOND ROVNER, Circuit Judge

                   Hon. TERENCE T. EVANS, Circuit Judge

                   Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 04-3314

UNITED STATES OF AMERICA,                       Appeal from the United States
    Plaintiff-Appellee,                         District Court for the Southern
                                                District of Illinois
      v.
                                                No. 02-CR-30060-DRH
JOHN M. WYATT,
    Defendant-Appellant.                        David R. Herndon,
                                                Judge.

                                     ORDER

      Pursuant to a conditional plea agreement, John M. Wyatt pleaded guilty to
possession with intent to distribute over 100 kilograms of marijuana, 21 U.S.C.
§ 841(a)(1), and was sentenced to 262 months’ imprisonment. Under the plea
agreement, Wyatt reserved the right to challenge on appeal the district court’s
denial of his motion to suppress under the Fourth Amendment the evidence seized
during a search arising from a traffic stop of his rented recreational vehicle (RV).
Wyatt argues that after the traffic stop ended the police detained him without
reasonable suspicion to conduct a canine sniff of the RV, and that the positive alert
by the dog did not give the officer probable cause to search the vehicle. In addition,
Wyatt challenges his career offender sentence under U.S.S.G. § 4B1.1, as well as
the reasonableness of the term imposed. We affirm his conviction and sentence.
No. 04-3314                                                                   Page 2


                                          I.

        We recount from the testimony at the suppression hearing the early morning
traffic stop on January 15, 2002, that led to Wyatt’s conviction. At 3:19 a.m.,
Narcotics Officer Modrusic, working with his canine partner Seer, initiated a traffic
stop after spotting an RV traveling at 60 miles per hour in a 55-mile-per-hour zone.
As the officer approached the driver, he noticed that a bed visible through a window
was elevated to a level “even with the window.” The officer testified that the height
of the bed “seemed rather odd.” Wyatt, the driver, identified himself and provided
his driver’s license and “vehicle paperwork.” Modrusic testified at the hearing that
Wyatt seemed “real nervous” and was “shaking.” Questioning Wyatt about his
travel plans, Modrusic learned that Wyatt was returning home to Chicago after
spending four or five days in Phoenix, Arizona. According to the officer’s testimony,
Wyatt said he rented another car to drive to Arizona and then once in Phoenix he
rented the RV to return home. Modrusic thought it “odd” for a person to rent an RV
to travel alone from a warmer climate to a colder climate in the middle of winter.
Adding to Modrusic’s suspicions, the rental agreement specified the pickup point as
Mesa, not Phoenix as Wyatt had claimed; Modrusic was not aware that Mesa is a
suburb of Phoenix.

      At that point, Officer Modrusic returned to his patrol car and radioed for
back-up. The officer told the dispatcher that he felt “something ain’t right” because
Wyatt was “shaking like a leaf” and “his story wasn’t panning out.” Then, while
running a license check, Modrusic discovered that Wyatt was on probation for what
he assumed was a drug offense.

       Officer Modrusic’s captain, McKinney, arrived within minutes to act as back-
up. Modrusic told him of his suspicions and that he planned to issue Wyatt a
warning and then request consent to search the RV. The captain approached
Wyatt, who was still in the driver’s seat. Conscious of the camcorder that had been
recording the traffic stop from the dashboard of Modrusic’s car, the captain
requested that Wyatt walk around to the back of the RV to meet Modrusic.
Modrusic testified that he then returned all Wyatt’s documents, issued and
explained a written warning for speeding, and advised Wyatt that he was “free to
leave.” As Wyatt took one or two steps toward the RV, Modrusic asked if Wyatt
“would consent to a search of the vehicle.” Wyatt declined. Wyatt testified at the
hearing that he viewed the encounter at this point as a detention. Modrusic then
asked whether Wyatt was on probation. According to Modrusic, Wyatt answered
that “when he was young and dumb, he got caught running cannabis.” Modrusic
followed up with a request to “walk the police canine around the vehicle.” Wyatt’s
response is in dispute; Modrusic testified that Wyatt agreed to the canine sniff, but
No. 04-3314                                                                    Page 3

Wyatt testified that he refused. At this point, no more than 10 minutes had passed
since Modrusic initiated the stop.

       Officer Modrusic retrieved the dog, Seer, from his patrol car and walked the
dog around the RV. The dog alerted by scratching in two locations: the seam of the
driver’s door and the “passenger rear corner in the back of the vehicle” (which does
not seem to be near the bed inside the RV from the officer’s description). Among
other skills, Seer is trained in the detection of narcotics, having graduated from a
14-week course at the St. Louis City Canine Police Academy. Modrusic and Seer
also attend periodic courses to refresh the dog’s skills. There is no evidence in the
record, however, about Seer’s accuracy in detecting narcotics.

      Once Seer alerted, Officer Modrusic informed Wyatt that he had probable
cause to search the vehicle. Nonetheless, Modrusic wanted to contact the State’s
Attorney’s office before conducting a warrantless search. Modrusic testified that
Wyatt asked whether he was free to go; Modrusic responded that he was but said
the RV would be detained pending an answer from an on-call state’s attorney.
Wyatt chose to leave in a taxicab before the search, traveling to the St. Louis
airport, rather than the nearby hotel where the officers assumed he would wait.

      Officer Modrusic received permission from the state’s attorney to search the
RV without a warrant based on the canine alert. In searching the RV, Modrusic
and McKinney found 2 large duffels in the RV’s shower and 11 similar duffels
under the bed, all filled with bales of marijuana totaling 128 kilograms. After
finding the marijuana within 10 minutes of Wyatt’s departure, the officers tracked
down Wyatt’s location via the cab company. Wyatt was arrested a week later.

        Wyatt moved to suppress the marijuana, arguing that Officer Modrusic did
not have reasonable suspicion to detain him beyond the completion of the traffic
stop. The district court denied Wyatt’s motion in an oral opinion. Bypassing the
question whether Modrusic had reasonable suspicion to detain Wyatt beyond the
traffic stop, the court found the post-stop encounter to be consensual and Wyatt to
have consented to the canine sniff. Finding it “obvious” that as a “convicted felon”
Wyatt “is savvy to search and seizure rules,” the court believed that Wyatt thought
the dog would not alert to narcotics because it was a cold night and the marijuana
was “bundled up” inside the vehicle. Given, then, the positive alert by the dog and
the advice of the state’s attorney, along with Modrusic’s other bases for reasonable
suspicion—Wyatt’s extreme nervousness, the higher-than-usual bed, renting one
vehicle to travel to Phoenix and an RV to return, identifying Phoenix instead of
Mesa, and Wyatt’s probationary status and prior offense of “running
marijuana”—the court concluded that the officer had probable cause to search the
vehicle.
No. 04-3314                                                                      Page 4

       Before the preparation of the presentence report and sentencing, the
Supreme Court decided Blakely v. Washington, 124 S. Ct. 2531 (2004), which holds
that facts, except for prior convictions, that increase a “statutory maximum” must
be admitted or proven beyond a reasonable doubt to a jury, and we interpreted the
6th Amendment right discussed in Blakely to apply to the federal sentencing
guidelines in United States v. Booker, 375 F.3d 508 (7th Cir. 2004). The probation
officer still relied on the guidelines in her presentence report to arrive at an
imprisonment range of 262 to 327 months based on the career offender guideline.
See U.S.S.G. § 4B1.1. The career offender status was premised on a prior controlled
substance offense and a conviction for escape from custody, which the probation
officer categorized as a crime of violence. Wyatt objected, arguing that his
conviction for a nonviolent escape was not a crime of violence and that, under
Blakely and our decision in Booker, the court could not apply § 4B1.1 based on facts
not found by a jury beyond a reasonable doubt.

       At sentencing the district court adopted the probation officer’s
recommendations and sentenced Wyatt to 262 months under the guidelines. The
court first relied on United States v. Bryant, 310 F.3d 550 (7th Cir. 2002), to reject
Wyatt’s argument that escape should not categorically be considered a “crime of
violence.” In response to Wyatt’s Blakely/Booker objections, the court recognized
that the Supreme Court might later rule the guidelines to be advisory (which did
occur when the Court affirmed this court’s decision in Booker, see United States v.
Booker, 125 S Ct. 738 (2005)), and imposed a nonguideline term of 262 months in
the alternative. In fashioning its alternative sentence, the court consulted the
factors listed in 18 U.S.C. § 3553(a).

                                           II.

       On appeal Wyatt first challenges the denial of his motion to suppress. He
contends that Officer Modrusic intended from the beginning of the traffic stop to
search his RV for narcotics and that, because the scope of the stop exceeded its
pretextual justification, the stop violated the Fourth Amendment. In addition,
Wyatt contends that Modrusic detained him “at least a few seconds, if not a few
minutes” beyond the completion of the traffic stop without reasonable suspicion or
his consent. In reviewing the district court’s factual findings for clear error and its
legal conclusions de novo, we give special deference to the district court that heard
the testimony and had the best opportunity to observe the witnesses at the
suppression hearing. United States v. Jackson, 300 F.3d 740, 745 (7th Cir. 2002).

        The scope and duration of a traffic stop must be reasonably related to its
initial purpose. United States v. Brown, 188 F.3d 860, 864 (7th Cir. 1999). Where
an officer can articulate grounds that establish reasonable suspicion of criminal
activity, he may extend the duration of the traffic stop to investigate that activity.
No. 04-3314                                                                       Page 5

United States v. Walden, 146 F.3d 487, 490 (7th Cir. 1998). Whether reasonable
suspicion exists depends on a consideration of the totality of the circumstances
known to the officer at that time including his experiences and common sense.
Jackson, 300 F.3d at 745-46.

       As an initial matter, Wyatt’s argument that Officer Modrusic’s subjective
intent vitiated the reasonableness of the search warrants little discussion.
Modrusic had probable cause to initiate a traffic stop because Wyatt had
undisputedly committed a traffic violation by speeding, and so Modrusic’s subjective
intent is irrelevant for purposes of Wyatt’s Fourth Amendment argument. See, e.g.,
Whren v. United States, 517 U.S. 806, 813 (1996); United States v. Moore, 375 F.3d
580, 583 n.1 (7th Cir. 2004); United States v. Robinson, 314 F.3d 905, 907 (7th Cir.
2003); Valance v. Wisel, 110 F.3d 1269, 1275 (7th Cir. 1997).

       The real issue is whether Modrusic’s request to search the RV after he
completed the traffic stop by issuing a warning was a further detention requiring
reasonable suspicion or a consensual encounter. See Ohio v. Robinette, 519 U.S.
33, 35 (1996) (recognizing possibility of consensual encounter following completion
of traffic stop in holding that officer does not have to inform driver that he is free to
go); Moore, 375 F.3d at 584 (consensual encounters between individual and officer
do not trigger Fourth Amendment scrutiny). Wyatt provides little reason other
than the length of the encounter to disturb the district court’s conclusion that the
post-stop encounter was consensual. Once Modrusic returned Wyatt’s paperwork
with a warning and told him he was “free to go,” his request to search the RV
without more did not amount to a new seizure. See United States v. Rivera, 906
F.2d 319, 323 (7th Cir. 1990) (holding that officer’s request to search was part of
consensual encounter after officer had issued written warning, returned
defendant’s documents and declared him free to go); cf. United States v. Finke, 85
F.3d 1275, 1281 (7th Cir. 1996) (until officer told defendants that he was calling
canine unit, court might have upheld encounter as consensual where all documents
were returned, defendants were told they were free to go, and officer asked if
defendants “had a minute” before requesting permission to search).

       In any event, even if Officer Modrusic’s questioning amounted to a seizure,
he had reasonable suspicion to detain Wyatt further in order to investigate whether
Wyatt was transporting narcotics. Modrusic listed the following factors as
contributing to his reasonable suspicion: (1) Wyatt’s nervousness, (2) the unusual
height of the bed visible through the RV window, (3) Wyatt’s exchange of a rental
car with a rental RV for his return trip from Phoenix, (4) his driving alone in an RV
back home to a colder climate, and (5) his prior criminal history. In the face of this
list, Wyatt’s attempts to explain away his shaking by citing the cold weather and
characterizing the other grounds as “specious,” do little to deflect the specter of
reasonable suspicion. This is because Wyatt never confronts the most suspicious
No. 04-3314                                                                     Page 6

factors Modrusic cited: the unusual height of the bed when considered along with
the one-way rental of a type of vehicle favored for transporting large quantities of
drugs. See United States v. Salzano, 158 F.3d 1107, 1112-12 (10th Cir. 1998)
(reasonable suspicion when considering both use of tractor trailer, which is often
used to transport large amounts of drugs, and an additional suspicious element of
vehicle); see also United States v. Patterson, 65 F.3d 68, 71 (7th Cir. 1995)
(recognizing modification to tailgate interior—missing screws—a factor supporting
probable cause); United States v. Seals, 987 F.2d 1102, 1107 (5th Cir. 1993)
(considering modification to rear seat a factor supporting probable cause).
Although there may be an innocent explanation for each individual factor Modrusic
identified, when considered together against the background of a narcotic officer’s
experience, the factors rise to reasonable suspicion of drug activity. See Finke, 85
F.3d at 1280 (although possible innocent explanation for each factor, reasonable
suspicion where car was a rental, travel plans to California brief and made straight
through without stopping, and defendants nervous and evasive); see also Jackson,
300 F.3d at 746 (knowledge of criminal record can contribute to totality of
circumstances); Brown, 188 F.3d at 865 (nervousness can be considered as one of
several factors).

       Given the existence of reasonable suspicion, we need not address Wyatt’s
challenge to the district court’s finding that he consented to the dog sniff of the RV
exterior. A canine sniff of the exterior of a vehicle that reveals no information other
than the location of narcotics does not implicate any separate Fourth Amendment
concerns; Wyatt need only be lawfully detained. See Illinois v. Caballes, 125 S. Ct.
834, 838 (2005); United States v. Gregory, 302 F.3d 805, 810 (8th Cir. 2002); United
States v. Dortch, 199 F.3d 193, 197 (5th Cir. 1999). Regardless, Wyatt’s reliance on
the videotape to establish that he did not consent to the canine sniff cannot
overcome the deference that we pay to a district court’s factual findings. According
to Wyatt, the videotape never shows “any sign” that Wyatt “talked or motioned with
his head to give consent.” Objectively, however, the tape is of little value on this
issue because Wyatt’s face is so overexposed from the light of Captain McKinney’s
flashlight that one could not see what he said to the officers and the tape did not
record the conversation. And Wyatt’s rationale that he would not have consented to
the dog sniff if he did not consent to a search is merely an alternative theory and
does not undercut the court’s reasoning that Wyatt did not believe the dog would
find the narcotics based on the cold weather and their location. See Robinson, 314
F.3d at 907 (disturbing district court’s credibility finding only where court credited
exceedingly improbable testimony). There is no reason to disturb the district court’s
finding that Wyatt consented to the canine sniff, and so it did not violate the Fourth
Amendment. See Moore, 375 F.3d at 584.

      In a final effort to suppress the seized marijuana, Wyatt asserts that, even if
the canine sniff did not violate the Fourth Amendment, the dog’s positive alerts to
No. 04-3314                                                                     Page 7

drugs did not provide probable cause to search the RV. Probable cause was lacking,
Wyatt contends, because the government failed to establish that the dog, Seer, was
sufficiently trained and had an accurate track record in detecting narcotics. To
shore up his claim that Seer was not reliable, Wyatt points to the dog’s alerting to
sites in the RV where drugs were not found (the driver’s door and the rear
passenger corner).

       Wyatt’s reliance on the absence of information in the record about Seer’s
accuracy is not enough to overcome the generally accepted principle that a positive
alert from a well-trained dog is enough for probable cause. See, e.g., Dortch, 199
F.3d at 197 (dog’s positive reaction to narcotics establishes probable cause); United
States v. Thomas, 87 F.3d 909, 912 (7th Cir. 1996) (same). The record establishes
that Seer was well-trained; Officer Modrusic testified about Seer’s graduation from
a 14-week program and the refresher courses the two take to maintain the dog’s
skills. See United States v. Robinson, 390 F.3d 853, 875 (6th Cir. 2004) (it would be
inappropriate to require mini-trial on dog’s training and performance before officer
can rely on dog alert; it is enough for officer to know dog is certified in drug
detection); United States v. Boxley, 373 F.3d 759, 762 (6th Cir. 2004) (once
established that dog is certified, evidence as to reliability goes only to credibility,
not qualifications); United States v. Sanchez-Pena, 336 F.3d 431, 444 (5th Cir.
2003) (evidence of dog’s certification sufficient proof of training). And Wyatt’s
assumption about Seer’s accuracy based on its alerts to the RV is misplaced; we
review probable cause based on information known to the officers at the time of the
search, Smith v. Lamz, 321 F.3d 680, 684-85 (7th Cir. 2003), and there is no
evidence that Modrusic had any doubts about Seer’s accuracy.

       Wyatt also does not succeed in his sentencing arguments. Wyatt first makes
the familiar argument that escape should not be categorically classified as a crime
of violence for purposes of the career offender guideline. We have previously
rejected Wyatt’s contention because of the ever-present potential for escape to
become violent. See, e.g., United States v. Howze, 343 F.3d 919, 921-22 (7th Cir.
2003); Bryant, 310 F.3d at 553-54; United States v. Franklin, 302 F.3d 722, 724
(7th Cir. 2002); United States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001); see also
United States v. Rosas, 401 F.3d 843, 845 (7th Cir. 2005) (same definition of crime
of violence for career offender adjustment and Armed Career Criminal Act). And
the Supreme Court’s recent decision in Shepard v. United States, 125 S.Ct. 1254
(2005), would seem to support the continued categorical consideration of escape as a
crime of violence based on its warning against finding facts beyond the judicial
record. See Shepard, 125 S. Ct. at 1261.

       In addition, Wyatt would be hardpressed to establish a Booker error. The
district court properly anticipated the Supreme Court’s ruling in Booker by
recognizing that the guidelines may be advisory and imposing an alternative
No. 04-3314                                                                 Page 8

sentence (which happened to be the same as its guidelines’ sentence). See Booker,
125 S. Ct. at 756-57. Although nonguidelines sentences must still be reviewed for
“reasonableness” after Booker, no principled argument can be made that Wyatt’s
sentence was unreasonable. See Booker, 125 S. Ct. at 765-66; see also United
States v. Crosby, 397 F.3d 103, 114-16 (2d Cir. 2005) (recognizing reasonableness
as a flexible concept and that sentence may be unreasonable regardless of length
where judge committed Blakely/Booker error or failed to consider applicable
guideline range). Wyatt bases his argument that his sentence was unreasonable on
the same losing principle that his escape is not a crime of violence and should not
be considered. But the advisory guideline range of 262 to 329 months was properly
calculated, as discussed above. See Bryant, 310 F.3d at 553-54. And the district
court imposed the lowest sentence within that advisory range. See United States v.
Tedder, — F.3d —, 2005 WL 767061, at *8 (7th Cir. Apr. 6, 2005) (recognizing that
applicable guideline range available to district court post-Booker without need to
justify departure from guidelines).

      Accordingly, we AFFIRM Wyatt’s conviction and sentence.
