                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                              No. 08-16417                    Nov. 20, 2009
                          Non-Argument Calendar             THOMAS K. KAHN
                        ________________________                CLERK


                  D. C. Docket No. 06-00289-CR-J-33-MCR

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

JASMINE ALLEN,
RODNEY LEON SMITH,

                                                         Defendants-Appellants.

                        ________________________

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

                            (November 20, 2009)

Before BARKETT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

     Rodney Leon Smith appeals from his convictions and sentences for a

number of drug-related offenses, and his co-defendant, Jasmine Allen, appeals
from her sentence for similar offenses. On appeal, Smith argues that the district

court: (1) erred by denying his suppression motion because the police did not have

probable cause to search his car for cocaine base; (2) violated the Confrontation

Clause by limiting his cross-examination of a government witness; (3) erred by not

dismissing his indictment, pursuant to Brady v. Maryland, 373 U.S. 83 (1963),

when the government failed to properly turn over evidence concerning the

unreliability of the confidential source (“CS”); (4) violated the Confrontation

Clause by permitting a government agent to testify that the CS told him that he had

previously purchased drugs from Smith; and (5) erred by finding that he was

responsible for distributing 11.33 grams of cocaine base.1 Allen argues on appeal

only that her 235-month sentence is substantively unreasonable.                   After careful

review, we affirm.

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

standard of review. See United States v. Ramirez, 476 F.3d 1231, 1235 (11th Cir.

2007). The court’s factual findings are reviewed for clear error, and its application

of law to those factual findings is reviewed de novo.                    Id.    “Further, when

considering a ruling on a motion to suppress, all facts are construed in the light



       1
         Smith also raises a number of new arguments for the first time in his reply brief, which
we will not consider on appeal. See United States v. Martinez, 83 F.3d 371, 377 n.6 (11th Cir.
1996).

                                                2
most favorable to the party prevailing in the district court.” Id. at 1235-36. We

review de novo an alleged violation of a Sixth Amendment right. United States v.

Yates, 438 F.3d 1307, 1311 (11th Cir. 2006) (en banc).          The key question,

however, is whether the district court clearly abused its discretion by curtailing

cross-examination, once there was sufficient cross-examination to satisfy the

Confrontation Clause, and whether a reasonable jury would have received a

significantly different impression of the witness’s credibility had counsel pursued

the proposed line of cross-examination. United States v. Maxwell, 579 F.3d 1282,

1296 (11th Cir. 2009). A district court’s denial of a Brady objection is reviewed

for abuse of discretion. United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir.

2002). We also review the denial of a mistrial motion for abuse of discretion.

United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir.), cert. denied, 128 S.

Ct. 218 (2007). We will only reverse the denial of a mistrial when “there is a

reasonable probability that, but for the remarks [in question], the outcome of the

trial would have been different.” Id.

      “This court reviews the district court’s application and interpretation of the

sentencing guidelines under the de novo standard of review, but reviews its

findings of fact for clear error.” United States v. Rhind, 289 F.3d 690, 693 (11th

Cir. 2002).   Under this deferential standard,    a sentencing court’s credibility



                                         3
findings are “virtually never” reversible so long as the pertinent witness’s

testimony was internally consistent.    See United States v. Rodriguez, 398 F.3d

1291, 1296 (11th Cir. 2005) (quotations omitted). Finally, we review the ultimate

sentence a district court imposes for “reasonableness,” which “merely asks whether

the trial court abused its discretion.” United States v. Pugh, 515 F.3d 1179, 1189

(11th Cir. 2008) (quoting Rita v. United States, 127 S. Ct. 2456, 2465 (2007)).

      First, we reject Smith’s claim that the district court erred in denying his

suppression motion. The Fourth Amendment prohibits law enforcement officers

from searching a person’s property unless: (1) they have a valid search warrant; or

(2) an exception to the search warrant requirement applies. See United States v.

Tamari, 454 F.3d 1259, 1261 (11th Cir. 2006). One of the exceptions to the search

warrant requirement is the automobile exception, which permits law enforcement

officers to search a vehicle if: (1) the vehicle is operational; and (2) the law

enforcement officers have probable cause to believe the vehicle contains evidence

of a crime. Id. “Probable cause, in turn, exists when under the totality of the

circumstances, there is a fair probability that contraband or evidence of a crime

will be found in the vehicle.” Id. at 1264 (quotations omitted).

      As applied here, the district court did not err by denying Smith’s motion to

suppress drug evidence seized during a search of his car because police officers



                                          4
had probable cause to believe that Smith’s car contained cocaine base that Smith

intended to sell to a CS. During the suppression hearing, a government agent

testified that on August 2, 2006, the CS, in a telephone conversation, brokered a

transaction with Smith in which Smith agreed to sell the CS cocaine base at the

Hwy. 17/State Rd. 100 gas station. Thus, when Smith subsequently showed up at

the Hwy. 17/State Rd. 100 gas station, the investigators could have reasonably

believed that there was a fair probability that Smith’s vehicle contained cocaine

base that he intended to sell to the CS. This is especially true given that, prior to

this date, Smith had twice sold cocaine base to the CS and law enforcement

officers in controlled transactions.

      Moreover, Smith’s argument that the evidence should be suppressed because

the CS was unreliable is meritless. First, the investigators did not learn about the

CS’s unreliability until pretrial preparations, which occurred well after the search

of Smith’s car. United States v. Brazel, 102 F.3d 1120, 1147 (11th Cir. 1997)

(upholding a warrantless search of an automobile because there was sufficient

evidence to find that “probable cause existed at the time of the search”). Second,

the investigators recorded a phone conversation in which the CS and Smith set up

the drug transaction that was supposed to occur later in the day.         Thus, the

investigators had independent means to corroborate the CS’s information about



                                          5
this planned drug transaction, and Smith’s appearance further supported the CS’s

veracity as to this series of events.   In short, because the investigators could

reasonably believe that Smith was arriving at the Hwy. 17/State Rd. 100 gas station

to sell the CS cocaine base, they had probable cause to search Smith’s car, and the

district court did not err by denying Smith’s suppression motion.

      Next, we find no merit in Smith’s argument that the district court violated

his Confrontation Clause rights by limiting his cross-examination of a government

witness. In Francis v. Dugger, 908 F.2d 696 (11th Cir. 1990), we considered the

applicability of the Confrontation Clause to cross-examination questions dealing

with a pending criminal charge.     The trial court in Francis did not permit the

defendant in that case to ask one of the government witnesses about an unrelated

murder charge that was pending against that witness.       Id. at 699.   On habeas

review, we held that “[t]he main and essential purpose of confrontation is to secure

for the opponent the opportunity of cross-examination.” Id. at 701 (emphasis in

the original; quotations omitted). We added that:

      The confrontation clause does not, however, prevent a trial court from
      imposing any limits on the cross-examination of a prosecution witness
      concerning that witness’s potential bias. A trial court retains wide
      latitude insofar as the Confrontation Clause is concerned to impose
      reasonable limits on such cross-examination based on concerns about,
      among other things, harassment, prejudice, confusion of the issues,
      the witness’ safety, or interrogation that is repetitive or only
      marginally relevant.

                                         6
Id. at 702 (applying Del. v. Van Arsdall, 475 U.S. 673, 679 (1986) (direct criminal

appeal)).   We held that evidence of the pending murder charge was only

“marginally relevant and, therefore, inadmissible.” Francis, 908 F.2d at 702. We

elaborated that the facts of the pending charge were not relevant to the facts of the

case in which the witness was testifying, and there was no evidence (and no

proffer) that the witness made a deal with the government with regard to her

pending charge. Id.

      In this case, the district court did not violate the Confrontation Clause by

limiting Smith’s cross-examination of the government witness who had an

unrelated pending charge for attempted murder. As the record shows, there was a

proffer that the witness was charged with the attempted murder of Allen’s brother.

However, there was no evidence that Smith was in any way involved with the

events surrounding that alleged attempted murder, and as a result, the witness’s

attempted murder charge was, at best, only marginally relevant to show bias

toward Smith through his alleged hatred of Smith’s girlfriend’s brother. Further,

questioning the witness about this charge had a very high potential for undue

prejudice because it was evidence of prior criminal conduct, even though the

witness had not been convicted of this conduct. Because this line of questioning

had minimal relevance to this case while having a very high potential for undue



                                          7
prejudice, the district court did not abuse its considerable discretion by limiting

Smith’s cross-examination of that witness.             See Maxwell, 579 F.3d at 1296;

Francis, 908 F.2d at 702.2

       We likewise are unpersuaded by Smith’s claim that the district court erred

by not dismissing his indictment pursuant to Brady v. Maryland. In Brady, the

Supreme Court held that, under the Due Process Clause, the government may not

suppress evidence favorable to an accused when that evidence “is material either to

guilt or to punishment.” 373 U.S. at 87.

       To establish a Brady violation, the defendant must show that (1) the
       government possessed favorable evidence to the defendant; (2) the
       defendant does not possess the evidence and could not obtain the
       evidence with any reasonable diligence; (3) the prosecution
       suppressed the favorable evidence; and (4) had the evidence been
       disclosed to the defendant, there is a reasonable probability that the
       outcome would have been different.

Vallejo, 297 F.3d at 1164.

       Here, the district court did not abuse its discretion by determining that the

government complied with Brady even though it failed to turn over evidence

concerning the unreliability of the CS. As an initial matter, Smith’s assertion that

he did not know why the government considered the CS an unreliable witness



       2
         As for Smith’s suggestion that the district court improperly limited his cross-
examination of other witnesses, we are unconvinced. On our review of the record, it does not
appear that the district court limited Smith’s cross-examination of these other witnesses.

                                               8
misstates the record. During the Brady hearing, Smith told the court that he was

informed by the government that it had decided not to use the CS as a witness

because it had discovered that, during the course of the investigation, the CS was

involved in illicit drug transactions with Smith. On this record, Smith’s argument

that the belated disclosure of this evidence constituted a Brady violation is

therefore meritless because Smith’s previously-unknown drug deals with the CS

were not exculpatory, but rather, were actually inculpatory. See Vallejo, 297 F.3d

at 1164. In addition, as the record shows, the government did not suppress this

evidence, but turned the evidence over to Smith’s attorney soon after it was

discovered. As a result, the district court did not abuse its discretion by denying

Smith’s Brady motion.

      We also reject Smith’s claim that the district court violated the

Confrontation Clause by permitting a government agent to testify that the CS told

him that he had previously purchased drugs from Smith. As the record shows,

there is no reasonable probability that the outcome of the trial would have been

different if the government agent Smith never made his statement about the CS

telling him that he had previously purchased drugs from Smith. During the course

of the trial: (1) two government witnesses testified that they had regularly

purchased cocaine base from Smith; (2) another witness testified that he had twice



                                         9
purchased cocaine base from Smith; and (3) two investigators testified that Smith

sold cocaine base in controlled drug transactions. Because this evidence was more

than sufficient to convict Smith of the charged drug distribution offenses, the

government agent’s remark about the CS’s prior dealings with Smith would not

have affected the probable outcome of this trial, and the district court did not abuse

its discretion by denying Smith’s motion for a mistrial.

      We are unpersuaded by Smith’s final argument as well: that the district court

erred by finding that he was responsible for distributing 11.33 grams of cocaine

base. “When a defendant objects to a factual finding that is used in calculating his

guideline sentence, . . . the government bears the burden of establishing the

disputed fact by a preponderance of the evidence.” Rodriguez, 398 F.3d at 1296

“The preponderance of evidence is a relaxed evidentiary standard, however, it does

not grant the court a license to sentence a defendant in the absence of sufficient

evidence when that defendant has properly objected to a factual conclusion.” Id.

(quotations omitted).

      When a defendant is convicted of a drug crime, his base offense level is

determined primarily using the drug quantity table in U.S.S.G. § 2D1.1(c). See

U.S.S.G. § 2D1.1(a)(3). This drug quantity table provides different base offense

levels for different amounts of drugs, and it assigns its maximum base offense



                                          10
level of 38 to defendants who are involved with at least 4.5 kilograms of cocaine

base. See id. § 2D1.1(c)(1).

       The district court did not clearly err by holding Smith responsible for at least

4.5 kilograms of cocaine base because one of the government witnesses testified

that, over a two-year period, he made weekly purchases of significant amounts of

cocaine base from Smith. Indeed, this amount adds up to at least 5.8 kilograms of

cocaine base over the lifetime of the conspiracy.3             And, in addition to the 5.8

kilograms that Smith sold to that witness, there was evidence, from another

witness’s testimony, that Smith would give him gram quantities of cocaine base

three times a week from 2004 until 2005.4 Thus, the evidence that was presented

to the district court easily established that Smith had distributed at least 4.5

kilograms of cocaine base, and we affirm Smith’s convictions and sentences.




       3
         Using a conservative estimate, that witness purchased two ounces of cocaine base per
week from Smith over a two year period. Because there are 52 weeks in a year, that means that
he purchased 104 ounces of cocaine base from Smith each year. This was done over a two year
period, so the 104 yearly amount is multiplied by two to determined that the witness purchased
208 ounces of cocaine base from Smith. Because there are 28 grams in one ounce, 208 is
multiplied by 28 to convert the amount into grams. This yields a total of 5824 grams. Then,
because there are 1000 grams in a kilogram, this number is divided by 1000 to yield a total of
approximately 5.8 kilograms of cocaine base.
       4
         Moreover, Smith’s argument that the testimony of these witnesses was unreliable
because he was unable to fully cross-examine them is without merit because, the district court
did not abuse its discretion by limiting Smith’s cross-examination of the first witness, as
discussed supra, and Smith’s cross-examination of the other witness was never limited in any
significant way.

                                               11
       Lastly, we disagree with the claim of Smith’s co-defendant, Allen, that her

235-month sentence was substantively unreasonable. In reviewing sentences for

reasonableness, we typically perform two steps. Pugh, 515 F.3d at 1190. First, we

“‘ensure that the district court committed no significant procedural error, such as

failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence -- including an explanation for any deviation from the Guidelines

range.’” Id. (quoting Gall v. United States, 128 S.Ct. 586, 597 (2007)).5 If we

conclude that the district court did not procedurally err, we consider the

“‘substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard,’” based on the “‘totality of the circumstances.’” Id. (quoting Gall, 128 S.

Ct. at 597). “The weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court, and we will not substitute




       5
          The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).

                                                12
our judgment in weighing the relevant factors.” United States v. Amedeo, 487

F.3d 823, 832 (11th Cir. 2007) (quotations and alterations omitted).

       “[T]he party who challenges the sentence bears the burden of establishing

that the sentence is unreasonable in the light of both th[e] record and the factors in

section 3553(a).” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006)

(quotation omitted). Further, if a defendant fails to object to facts contained in the

pre-sentence investigation report (“PSI”), she is deemed to have admitted those

facts. United States v. Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006).

       Here, Allen raises only a substantive reasonableness challenge, but has failed

to demonstrate that her within-guidelines sentence was substantively unreasonable

in light of the § 3553(a) factors. To begin with, Allen did not object to most of the

factual statements in the PSI, and, therefore, she is deemed to have admitted them.

Id.   These factual statements indicate that over a two-year period, Allen was

responsible for distributing over 11 kilograms of cocaine base.           Due to this

extremely large quantity of drugs, the § 3553(a) factors of seriousness of the

offense and deterrence strongly favor a longer sentence in this case. See 18 U.S.C.

§ 3553(a).

       As for Allen’s argument concerning her lack of criminal history, we are

unpersuaded because this lack of criminal history was reflected in Allen’s



                                          13
guideline range through her criminal history category. Her remaining argument

concerning her minimal involvement in the offense is likewise misplaced because

the undisputed facts in the PSI indicate that: (1) both Allen and Smith were

responsible for the large amount of drugs involved in this offense; and (2) in at

least one instance, Allen personally sold drugs to a person that she believed was a

drug buyer.

      In short, because at least two § 3553(a) factors favored a longer sentence, the

district court did not abuse its discretion by sentencing Allen to 235 months’

imprisonment, which was at the bottom of her guideline range. Accordingly, we

affirm her sentence.

      AFFIRMED.




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