                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                No. 04-14024                     MAY 10, 2005
                            Non-Argument Calendar              THOMAS K. KAHN
                          ________________________                 CLERK


                        D.C. Docket No. 02-00543-CR-1-1

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

      versus

WILLIE C. ANDERSON,

                                              Defendant-Appellant.
                         __________________________

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

                                  (May 10, 2005)

Before BLACK, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

      Willie C. Anderson appeals his conviction and 188-month sentence for

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

On appeal, Anderson challenges the district court’s denial of his motion to
suppress evidence, as well as the constitutionality of his sentence. Although we

affirm the district court’s evidentiary ruling, Anderon’s preserved Booker

challenge requires us to vacate his sentence and remand for resentencing.

                                  BACKGROUND

      Prior to trial, Anderson had moved to suppress evidence obtained in

connection with a search incident to his arrest. At the suppression hearing, Officer

Chad Alexander of the Atlanta Police Department testified he and his partner were

flagged down by Bobby Bell, who then told the officers that: (i) a black male,

wearing a purple coat and blue jeans, had burglarized the home Bell and his wife

were restoring and was walking towards Officer Alexander’s location; (ii) Bell

had followed this individual (Anderson) after he had left Bell’s house; and (iii)

Bell saw Anderson recover a handgun from his left-front pant pocket and place it

in his front coat pocket. Officer Alexander further testified that: (i) after Bell

made these statements, Officer Alexander witnessed a black male wearing a purple

coat and blue jeans approaching them; (ii) Bell identified that individual as the

perpetrator, saying, “that’s him.” Officer Alexander stated that he and his partner

then approached Anderson, who had his hands in his pockets. The police ordered

Anderson to remove his hands from his pockets, and because of his reluctance to

do so, they ordered him to his knees. Alexander then conducted a “quick frisk” of

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Anderson’s person, during which he felt a hard object with the feel and shape of a

handgun. The officers removed the item, which proved to be a loaded

semiautomatic weapon. The officers then placed Anderson under arrest.

       To the extent that Alexander’s testimony conflicted with Bell’s own

testimony, the magistrate expressly credited Alexander’s testimony, finding that

Bell’s equivocations and lapses of memory rendered him a less credible witness.

Based on Alexander’s testimony, the magistrate’s report concluded that the

officers had probable cause to arrest Alexander and to conduct a lawful

warrantless search incident to the arrest. In the alternative, the magistrate

concluded that the officers conducted a lawful “stop and frisk,” the results of

which then gave them probable cause to arrest Anderson. The magistrate

accordingly recommended a denial of Anderson’s suppression motion. The

district court adopted the magistrate’s report.

      Following a stipulated bench trial, the district court found Anderson guilty

of violating 18 U.S.C. § 922 (g)(1) (2005). At sentencing, the district court found

that Anderson had three prior violent felony convictions, subjecting him to the

minimum fifteen-year sentence mandated by 18 U.S.C. § 924(e). The district court

granted an additional enhancement beyond the fifteen-year minimum, finding by a




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preponderance of the evidence that Anderson was using the weapon in connection

with burgling Bell’s home – a crime of which Anderson was never convicted.

      Anderson objected to the court’s enhancements based on Blakely v.

Washington, 124 S.Ct. 2531 (2004). The district court overruled Anderson’s

Blakely objections, relying on our decision in United States v. Sanchez, 269 F.3d

1250 (11th Cir. 2001), which held that the principle embodied in Blakely had no

application to the U.S. Sentencing Guidelines. After the district court granted an

offense-level reduction for acceptance of responsibility, the guidelines range was

188 to 235 months. The district court sentenced Anderson to 188 months in

prison, the minimum sentence permissible under the guidelines, but eight months

above the statutory minimum sentence prescribed by § 924(e). Anderson appeals.

                           STANDARDS OF REVIEW

      “This court reviews a district court’s denial of a defendant’s motion to

suppress under a mixed standard of review, reviewing the district court’s findings

of fact under the clearly erroneous standard and the district court’s application of

law to those facts de novo.” United States v. Desir, 257 F.3d 1233, 1235-36 (11th

Cir. 2001).

      Because Anderson made his Blakely objection before the district court,

preserving it for appellate review, we review his sentence de novo, but will reverse

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and remand only for harmful error. United States v. Riley, 250 F.3d 1303, 1307

n.5 (11th Cir. 2001).

                        SUPPRESSION OF THE EVIDENCE

      As a threshold matter, Anderson takes issue with the district court’s findings

of fact. Specifically, Anderson points to the conflict between testimony given by

Alexander and that given by Bell, contending that Bell’s testimony is more

credible than Officer Alexander’s testimony. However, because the trier of fact

remains in a superior position to judge a witness’s demeanor and credibility, we

defer to a magistrate’s credibility determination in the face of conflicting

testimony unless his understanding of the facts appears to be “unbelievable.”

United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). Where the

record of Bell’s testimony included memory lapses and vacillations in testimony,

we certainly cannot say that the magistrate’s version of the facts, which credits

Alexander’s testimony, is incredible. Under that version of the facts, it becomes

clear that Alexander’s search was permissible.

      Consistent with the Fourth and Fourteenth Amendments, a police officer

may conduct a brief, investigatory stop without a warrant when he or she has a

“reasonable, articulable suspicion” that criminal activity is afoot. Illinois v.

Wardlaw, 528 U.S. 119, 123 (2000). “Reasonable suspicion” is a less demanding

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standard than probable cause and requires considerably less than a preponderance

of the evidence. United States v. Sokolow, 490 U.S. 1, 7 (1989). However, the

officer must be able to articulate a level of objective justification that rises above

mere inchoate suspicion. Wardlaw, 528 U.S. at 123, citing Terry v. Ohio, 391

U.S. 1, 27 (1968). Where such justification exists, the officer may conduct a

limited warrant-less search of an individual’s outer clothing in an attempt to

discover weapons. Terry, 391 U.S. at 30.

      In this case, Alexander clearly possessed “reasonable suspicion” to conduct

a Terry frisk of Anderson. Bell had flagged down Alexander and informed him

that a black male individual wearing a purple coat and blue jeans had burglarized

the home he and his wife were restoring, was carrying a concealed gun, and was

traveling towards their location. After Bell relayed this information to Alexander,

they both witnessed a black male wearing a purple coat and blue jeans coming

towards them. Bell identified the individual by saying, “that’s him.” When

Alexander approached, Anderson was resistant to remove his hands from his front

pockets. Taken together, this information reasonably suggested to Alexander that

Anderson had just committed a burglary and was armed with a concealed weapon.

Such information is objectively sufficient to rise to the level of “reasonable

suspicion” for a Terry frisk. Though Anderson relies on Florida v. J.L., 529 U.S.

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266, 270 (2000), that case involved information received via telephone from an

anonymous informant – an “unknown caller, at an unknown location.” Bell

cannot be categorized as an anonymous informant: he personally flagged down

Alexander and directly conveyed the information about Anderson. J.L. and its

insistence on indicia of an anonymous informer’s reliability are inapposite.

       We thus agree with the district court that Alexander possessed reasonable

suspicion of criminal activity, and conducted a permissible Terry frisk on

Anderson.1 Once the Terry frisk revealed the concealed weapon of which Bell had

warned, Alexander had probable cause to arrest Anderson and to conduct a more

thorough search incident to that arrest.

                                       SENTENCING

       “Any fact (other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established by a plea of

guilty or a jury verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt.” United States v. Booker, 125 S.Ct. 738, 756 (2005).

Following Booker, the sentencing guidelines are advisory, though a district court



       1
         Because we conclude that Alexander initially had reasonable suspicion to conduct a Terry
frisk, and upon discovery of the concealed weapon possessed probable cause to arrest, we need not
reach the district court’s alternative holding that Alexander had probable cause to arrest Anderson
prior to frisking his person.

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must still consult them along with the factors found at 18 U.S.C. § 3553(a). Id. at

764-65. However, Booker neither disturbs a district court’s ability to rely on prior

convictions to enhance a defendant’s sentence, United States v. Orduno-Mireles,

04-12630, 2005 U.S. App. LEXIS 5442 at *6 (11th Cir. April 6, 2005), nor does

Booker enable a district court to employ its discretion to impose a sentence below

the prescribed statutory minimum. United States v. Shelton, 400 F.3d 1325, 1333

n.10 (11th Cir. 2005).

      We thus reject Anderson’s initial contention that Booker prevented the

district court – rather than a jury – from finding his three prior felony convictions.

Booker itself makes clear that a district court’s fact-finding as to prior convictions

works no Sixth Amendment violation. Booker, 125 S.Ct. at 756; see also,

Orduno-Mireles, 2005 U.S. App. LEXIS 5442 at *6. Thus, there is no

constitutional Booker error in the district court’s findings as to Anderson’s prior

convictions, nor its consequential application of the § 924(e)(1) statutory

minimum which resulted. Moreover, there can be no non-constitutional

“statutory” Booker error in the district court’s application of § 924(e)(1), because

Booker’s excise of the statutory provision that made the guidelines mandatory left

undisturbed statutory minimums. Shelton, 400 F.3d at 1333 n.10.




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       We likewise find no merit in Anderson’s argument that Booker requires a

jury to find that the predicate convictions qualified as “violent felonies” within the

meaning of 18 U.S.C. § 924(e)(2)(b).2 To the contrary, the question of whether the

prior felonies qualify as “violent” remains a matter of law to be determined by the

court. This is made clear by the Supreme Court’s recent decision in Shepard v.

United States, 125 S.Ct. 1254 (2005). Shepard reaffirmed that “a court sentencing

under [§ 924(e)] could look to statutory elements, charging documents, and jury

instructions to determine whether an earlier conviction” qualified as a violent

felony. Shepard, 125 S.Ct. at 1257 (emphasis added). While Shepard thus limited

the categories of material a court could consider in making its “violent felony”

determination, it in no way unsettled a court’s power to pass on this matter of law

or even suggested it was appropriate for jury consideration. Accord United States

v. Schlifer, No. 04-3398, 2005 U.S. App. LEXIS 5613 at *7 (7th Cir. April 7,

2005) (refusing to “parse out the recidivism inquiry” where appellant argued that

judge’s findings as to whether prior convictions were for crimes of violence

violated Sixth Amendment); United States v. Marcussen, No, 04-2935, 2005 U.S.

       2
          Anderson does not raise his claim, made below, that the predicate aggravated stalking
conviction does not satisfy the definition of a “violent felony” for § 924 purposes. Nonetheless we
note that the Georgia courts have interpreted the aggravated stalking offense (Ga. Code. Ann. § 16-5-
91(a)) to require “a knowing and willful course of conduct directed at a specific person which causes
emotional distress by placing such person in reasonable fear of death or bodily harm.” See Fly v.
State, 494 S.E.2d. 95, 97 (Ga. Ct. App. 1997).

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App. LEXIS 5877 at *5 (8th Cir. April 11, 2005) (holding that Shepard “lends

further support to the rule that the sentencing court, not a jury, must determine

whether prior convictions qualify as violent felonies”) (emphasis added).

      Nonetheless, the district court did engage in fact-finding beyond its

conclusion as to Anderson’s prior convictions and their status as “violent felonies”

under § 924(e)(2)(b). Specifically, the district court found by a preponderance of

the evidence that Anderson committed burglary of Bell’s residence prior to his

arrest, and used the concealed firearm found on his person in connection with that

burglary. Though the Georgia courts never convicted Anderson of the burglary

offense, the district court relied on testimony presented to the magistrate at the

suppression hearing to reach its conclusion as to the burglary and the weapon’s

relation thereto. The district court then used those findings to enhance Anderson’s

offense level by four points pursuant to § 2K2.1(b)(5) of the guidelines. In so

doing, the district court clearly violated Anderson’s Sixth Amendment rights

under Booker. Because Anderson’s objections below preserved this issue, and

where the government has not even argued that this Booker error was harmless,

we vacate Anderson’s sentence and remand for re-sentencing.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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