     Case: 19-30283      Document: 00515390547         Page: 1    Date Filed: 04/21/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                      No. 19-30283                          FILED
                                                                        April 21, 2020
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk

              Plaintiff - Appellee

v.

MARLON G. GLADNEY,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:18-CR-79 -1


Before JONES, ELROD, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Marlon G. Gladney pleaded guilty to one count of conspiracy to possess
with intent to distribute methamphetamine in violation of 21 U.S.C. § 846 and
21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii). The district court sentenced him to
270 months of imprisonment and five years of supervised release. On appeal,
he challenges (1) the district court’s denial of his motion to suppress evidence
obtained as a result of a traffic stop, (2) the district court’s denial of his motion


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                        No. 19-30283
to withdraw his guilty plea, and (3) the substantive reasonableness of his
sentence. We AFFIRM.
                                               I
       On October 27, 2017, Louisiana State Police Trooper Matthew Titus
pulled over a car Gladney was driving. During the stop, Titus searched the car
and found a handgun, which Gladney admitted he did not lawfully possess.
During a post-arrest interview, Gladney confessed to DEA agents that he
distributed methamphetamine in the Shreveport, Louisiana area. Subsequent
investigation led to a two-count indictment of Gladney—one count for
conspiracy to possess with intent to distribute methamphetamine and one
count for possession of a firearm by a convicted felon.
       Gladney filed a motion to suppress the evidence and statements obtained
as a result of the traffic stop. He argued that the stop was not justified at its
inception, was unreasonably extended, and resulted in his invalid consent to a
search of the car. A magistrate judge conducted a hearing at which Titus and
Gladney both testified.
       Titus testified that he pulled Gladney over for failing to yield to an
emergency vehicle in violation of LA. STAT. ANN. § 32:125. 1 The DEA was
investigating a drug distribution organization run by Gladney, and it asked
Louisiana state police to be on the lookout for Gladney’s car and stop it if there
was probable cause to do so. While patrolling near the border of Texas and
Louisiana, Titus saw Gladney’s car pass him on the highway and exit to a
nearby rest area. Titus drove past the rest area where Gladney was pulled off,



       1 Under that statute, when an emergency vehicle makes use of “any visual signals,”
the driver “shall,” “[w]hen driving on an interstate highway or other highway with two or
more lanes traveling in the same direction, yield the right-of-way by making a lane change
into a lane not adjacent to the parked vehicle, if possible with due regard to safety and traffic
conditions. If a lane change is not possible, the driver shall slow to a reasonably safe speed.”
LA. STAT. ANN. § 32:125(B)(1).
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                                  No. 19-30283
stopped his vehicle on the right shoulder of the highway, and activated the left
directional arrow on his light bar, indicating to approaching vehicles that they
should move from the right to the left lane. Soon thereafter, he witnessed
Gladney pass him in the right lane despite the fact that there were no vehicles
in the left lane at the time. He pulled Gladney over for failing to yield.
        Titus further testified that after he pulled Gladney over, he asked for
identification, and Gladney gave him an expired Louisiana driver’s license.
Gladney told Titus that he lived in Dallas, Texas but was on his way to the
DMV in Shreveport, Louisiana to renew his license. Gladney was avoiding eye
contact and his hands were “nervously shaking.” When Titus ran a check on
Gladney’s license and criminal history, he discovered that Gladney’s license
was suspended, and Gladney had a criminal history involving narcotics and a
conviction for aggravated battery. Titus asked Gladney to step out of the car
and explained to him that because his license was suspended, he needed to call
someone to get the car or it would be towed. Gladney said he would call
someone. Titus then asked Gladney if he had any illegal narcotics, large
amounts of currency, or illegal weapons in the car. Gladney admitted that he
had a handgun in the car and that he was a violent offender. Titus asked if he
could search the car, and Gladney provided verbal and then written consent.
        Gladney’s testimony differed somewhat from Titus’s. Most relevantly,
although Gladney admitted to passing Titus’s vehicle in the right lane, he
testified that he had no choice because there was traffic in the left lane at the
time.
        The magistrate judge issued a report discrediting Gladney’s testimony
that there was traffic in the left lane and recommending that the motion to
suppress be denied. The district court adopted the magistrate judge’s report
and recommendation, explicitly agreeing not to credit Gladney’s testimony.


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                                 No. 19-30283
      After the motion to suppress was denied, Gladney agreed to plead guilty
to the drug conspiracy charge in exchange for dismissal of the felon-in-
possession charge. The plea agreement preserved Gladney’s right to challenge
the denial of his motion to suppress.
      On October 25, 2018, Gladney entered his guilty plea under oath at a
change of plea hearing before the magistrate judge. At that hearing, Gladney
stated that he had enough time to visit with his attorney about the case and
that he was satisfied with his attorney’s advice. He also stated that he was
pleading guilty because he was actually guilty of the offense. In terms of his
sentence, he stated that he understood that he could receive a sentence
between ten years to life in prison and a fine of up to ten million dollars. He
also stated that he understood the magistrate judge’s basic explanation of the
sentencing guidelines and the fact that the guidelines range would only be a
recommendation. The magistrate judge explained that if Gladney’s attorney
told Gladney what the guidelines range would be, “[t]hat’s just his prediction;
that’s his best guess, that none of us really know at this point.” Gladney stated
that no one had made any promises to him about what his sentence would be.
He said he understood that if the sentence he received was longer than he
hoped for, he would still be bound by the guilty plea. Upon the recommendation
of the magistrate judge, the district court accepted Gladney’s guilty plea on
November 7, 2018.
      On November 30, 2018, we decided United States v. Reyes-Contreras, 910
F.3d 169, 187 (5th Cir. 2018) (en banc), in which we held that there is no valid
distinction between direct and indirect force for purposes of determining
whether prior convictions qualify as crimes of violence under the sentencing
guidelines. On March 11, 2019, Gladney’s presentence investigation report
(PSR) was filed. It calculated an advisory imprisonment range of 262 to 327
months. Pertinently, this range was based on the probation officer’s finding
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                                 No. 19-30283
that Gladney was a career offender under U.S.S.G. § 4B1.1. Gladney objected
to the career offender enhancement, arguing that his prior convictions for
aggravated battery should not qualify as crimes of violence.
      On March 11, 2019—a couple days after the government advised
Gladney that it would not request a guidelines reduction based on Gladney’s
assistance pursuant to U.S.S.G. § 5K1.1, and three days before Gladney’s
sentencing was scheduled—Gladney filed a motion to withdraw his guilty plea.
He argued that his plea was not made knowingly and voluntarily because he
believed he would receive a guidelines reduction for assisting the government
pursuant to U.S.S.G. § 5K1.1, and, prior to Reyes-Contreras, he did not believe
he would qualify as a career offender under U.S.S.G. § 4B1.1. At the hearing
on this motion, Gladney and his attorney admitted that the government never
promised to file a U.S.S.G. § 5K1.1 motion. Gladney’s attorney also stated that
he did not promise Gladney that he would receive a guidelines reduction, and
Gladney agreed.
      The district court denied the motion, and the case proceeded to
sentencing. The district court overruled Gladney’s objection to the career
offender enhancement, relying on our decision in Reyes-Contreras. See 910 F.3d
169. Then, the district court heard argument from defense counsel regarding
the assistance Gladney provided to the government and the circumstances of
his prior crimes of violence. The district court also heard from a number of
Gladney’s friends and family. Ultimately, the district court adopted the factual
findings in the PSR, and sentenced Gladney to a within-guidelines sentence of
270 months of imprisonment. The district court stated that it sentenced
Gladney to “the bottom end of [the] guidelines range” based on his “criminal
history, his personal characteristics, and his involvement in the instant
offense.” Gladney objected to the sentence and filed a timely notice of appeal.
We address each of Gladney’s arguments in turn.
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                                 No. 19-30283
                                       II
      First, Gladney challenges the district court’s denial of his motion to
suppress. He argues that (1) the traffic stop was not justified at its inception,
(2) the traffic stop was unreasonably extended, and (3) his subsequent consent
to a search of the car was invalid. The government responds that the issue is
moot because the only fruit of the search was the handgun, which is irrelevant
to the crime of conviction—conspiracy to possess with the intent to distribute
methamphetamine. Alternatively, the government argues that Gladney has
waived any challenge to the admissibility of his incriminating statements
because he failed to seek suppression of them in the district court.
      In his motion to suppress, Gladney sought suppression of, inter alia,
“statements made by Mr. Gladney to Troopers Matthew Titus, Rodger Cason,
and George Strickland . . . and DEA Task Force Officer Hank Haynes.” The
magistrate judge concluded that “[b]ecause the stop and detention of [Gladney]
were completely proper and [Gladney’s] statements were voluntarily made,
there is no basis to suppress those statements.” The district court agreed. On
appeal, Gladney continues to argue that his statements are fruits of the
poisonous tree and should be suppressed. At least some of these statements,
like Gladney’s post-arrest admission to drug trafficking, are relevant to the
crime of conviction. Therefore, the issue is not moot, and Gladney has not
waived it.
      In reviewing the merits of the denial of Gladney’s motion to suppress, we
review the district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Mendez, 885 F.3d 899, 907 (5th Cir. 2018).
Where, as here, the district court heard live testimony, we “must view the
evidence most favorably to the party prevailing below, except where such a
view is inconsistent with the trial court’s findings or is clearly erroneous
considering the evidence as a whole.” Id. (internal quotation marks and
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                                  No. 19-30283
citation omitted). We will uphold the district court’s ruling “if there is any
reasonable view of the evidence to support it.” Id. at 908 (citation omitted).
      “When a police officer makes a traffic stop, the driver of the car is seized
within the meaning of the Fourth Amendment.” Brendlin v. California, 551
U.S. 249, 251 (2007). We analyze the legality of traffic stops under the Fourth
Amendment using the standard articulated in Terry v. Ohio, 392 U.S. 1 (1968).
United States v. Grant, 349 F.3d 192, 196 (5th Cir. 2003). We ask: “1) whether
the officer’s action was justified at its inception, and 2) whether the search or
seizure was reasonably related in scope to the circumstances that justified the
stop in the first place.” Id.
      A traffic stop is justified at its inception if the officer had an objectively
reasonable suspicion that illegal activity occurred, or was about to occur, before
stopping the vehicle. United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th
Cir. 2005). “[T]he constitutional reasonableness of [a] stop does not depend
upon the actual motivations of the officer involved. An officer may stop a
motorist for a traffic violation even if, subjectively, the officer’s true motive is
to investigate unrelated criminal offenses.” United States v. Sanchez-Pena, 336
F.3d 431, 437 (5th Cir. 2003) (citations omitted).
      Gladney argues that the traffic stop was not justified at its inception
because he did not commit a traffic infraction, and, alternatively, because Titus
provoked his traffic infraction. He recognizes that Titus’s subjective
motivations are irrelevant, see Sanchez-Pena, 336 F.3d at 437, but he argues
that an officer lacks an objectively reasonable suspicion of a traffic infraction
when that officer is a precipitating cause of the infraction.




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                                       No. 19-30283
       In support of his first argument, Gladney points to his own testimony
that there was traffic in the left lane when he passed Titus. 2 The district court
explicitly discredited this testimony, however, explaining that Gladney was not
credible based on other inconsistencies in his testimony. Because “[w]e will not
second guess the district court’s factual findings as to the credibility of
witnesses,” we reject this argument. United States v. Garza, 118 F.3d 278, 283
(5th Cir. 1997).
       Gladney’s second argument is also not supported by the evidence
adduced at the suppression hearing. Even assuming Titus could not have an
objectively reasonable suspicion of a traffic infraction that he provoked, there
is no credible evidence that Titus provoked Gladney’s failure to yield. Titus
testified that he pulled over on the right shoulder because a cable barrier
prevented him from stopping in the median. Gladney did not testify that he
did not have enough time to yield or that he was otherwise lured into
committing a traffic violation. The only testimony suggesting that Gladney was
unable to yield was Gladney’s own discredited testimony that there was traffic
in the left lane. Again, “[w]e will not second guess the district court’s factual
findings as to the credibility of witnesses.” Id.
       Titus had an objectively reasonable suspicion that Gladney had
committed a traffic infraction when he pulled Gladney over. The fact that he
may have been subjectively motivated by a desire to investigate drug activity
is irrelevant. See Sanchez-Pena, 336 F.3d at 437. The stop was justified at its
inception.




       2 Gladney also argues that his testimony is supported by the dash cam video that was
admitted into evidence at the suppression hearing. That video begins when Titus activates
his rear lights, which are on top of his vehicle but distinct from the left directional arrow.
These lights came on when Titus initiated the traffic stop. Therefore, it could not show the
state of traffic at the time the infraction occurred.
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         A traffic stop must also be temporary and “last no longer than is
necessary to effectuate the purpose of the stop, unless further reasonable
suspicion, supported by articulable facts, emerges.” United States v. Brigham,
382 F.3d 500, 507 (5th Cir. 2004) (en banc). An officer may examine a driver’s
license and vehicle registration, run computer checks, and ask about the
purpose and itinerary of the trip as part of his investigation of the
circumstances that originally caused the stop. United States v. Pack, 612 F.3d
341, 350 (5th Cir. 2010). An officer can also ask questions unrelated to the
purpose of the stop as long as those questions do not extend the length of the
stop. Id.
         Gladney argues that Titus lacked reasonable suspicion to extend the stop
in order to search the car. We need not decide whether Titus had reasonable
suspicion to extend the stop because, as the district court found, the purpose of
the stop was not completed prior to the search. As part of his investigation of
the failure to yield, Titus asked Gladney about the purpose and itinerary of his
trip, examined his driver’s license and registration, and ran a background
check. At that point, he developed reasonable suspicion of another offense—
driving without a valid license. In order to effectuate the purpose of the stop,
Titus needed to find a way for Gladney’s car to be safely and legally removed
from the shoulder of the highway. In fact, Titus testified that when a driver’s
license is suspended, normal protocol is to either tow the vehicle, park and lock
it, or have the driver call someone to come get it. During this time, Titus was
free to ask Gladney questions unrelated to the purpose of the stop as long as
those questions did not prolong the length of the stop. See id. Gladney does not
argue that Titus’s questions extended the length of the stop. The stop was
reasonably related in scope to the circumstances that justified it in the first
place.


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                                   No. 19-30283
      Because we find that the stop was lawful, we also reject Gladney’s
argument that his consent to a search of the car was the product of an illegal
detention and not an independent act of free will.
                                         III
      Next, Gladney challenges the district court’s denial of his motion to
withdraw his guilty plea. He argues that he should have been allowed to
withdraw his plea because (1) at the time he entered the plea, he believed his
cooperation with the government would lead to a guidelines reduction
pursuant to U.S.S.G. § 5K1.1, and (2) there was a change in the law after he
entered his plea that rendered his state aggravated battery convictions crimes
of violence for purposes of U.S.S.G. § 4B1.1—the career offender guidelines
enhancement. The government responds that it made no promise of a U.S.S.G.
§ 5K1.1 motion and the plea was knowing and voluntary because the district
court correctly advised Gladney of the statutory maximum penalty at the time
he entered his plea.
      We review the district court’s denial of Gladney’s motion to withdraw his
guilty plea for an abuse of discretion. See United States v. Powell, 354 F.3d 362,
370 (5th Cir. 2003). “A district court abuses its discretion if it bases its decision
on an error of law or a clearly erroneous assessment of the evidence.” United
States v. Mann, 161 F.3d 840, 860 (5th Cir. 1998).
      A defendant may withdraw a guilty plea after the court accepts it but
before sentencing if “the defendant can show a fair and just reason for
requesting the withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). In ruling on a motion
to withdraw a guilty plea the district court should consider the totality of the
circumstances, including (1) whether the defendant asserts his innocence, (2)
whether the government will suffer prejudice if the motion is granted, (3)
whether the defendant delayed in filing his motion, (4) whether withdrawal
would substantially inconvenience the court, (5) whether close assistance of
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                                 No. 19-30283
counsel was previously available, (6) whether the plea was made knowingly
and voluntarily, and (7) whether a withdrawal would waste judicial resources.
United States v. Carr, 740 F.2d 339, 343–44 (5th Cir. 1984).
      Gladney primarily argues that the district court erred by finding that his
plea was knowing and voluntary. For a guilty plea to be knowing and
voluntary, “the defendant must be advised of and understand the consequences
of the plea.” United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990). “The
consequences of a guilty plea, with respect to sentencing, mean only that the
defendant must know the maximum prison term and fine for the offense
charged.” Id. “Due process does not mandate . . . notice, advice, or a probable
prediction of where, within the statutory range, the guidelines sentence will
fall.” Id. We have upheld a district court’s denial of a motion to withdraw a
guilty plea where the government chose not to file a U.S.S.G. § 5K1.1 motion
after the defendant failed to provide substantial assistance. United States v.
Watson, 988 F.2d 544, 548–50 (5th Cir. 1993).
      The record illustrates that Gladney was advised of and understood the
maximum prison sentence and fine for the offense he pleaded guilty to.
Therefore, he understood the consequences of his plea. See Pearson, 910 F.2d
at 222–23. Even if Reyes-Contreras altered the guidelines range that the
district court considered, that change did not render Gladney’s guilty plea
unknowing or involuntary because that case did not change the maximum
prison sentence or fine that applied to Gladney’s crime of conviction. See id.
Similarly, Gladney’s mistaken belief that the assistance he provided to the
government would lead to a guidelines reduction pursuant to U.S.S.G. § 5K1.1
did not render his guilty plea unknowing or involuntary. See Watson, 988 F.2d
at 548–50.
      In addition to considering the knowing and voluntary nature of
Gladney’s plea, the district court considered each of the other Carr factors. See
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                                  No. 19-30283
740 F.2d at 343–44. The district court did not abuse its discretion in weighing
those factors and denying Gladney’s motion to withdraw his guilty plea.
                                       IV
      Finally, Gladney challenges the substantive reasonableness of his
within-guidelines sentence. Gladney argues that the district court failed to
adequately consider (1) the assistance he provided to the government, (2) the
relatively small quantity of drugs attributed to him in the PSR, and (3) the fact
that his criminal history is overrepresented in the PSR. The government
responds that the district court considered all these factors along with
Gladney’s extensive and violent criminal history, and Gladney’s within-
guidelines sentence is reasonable.
      We apply a rebuttable presumption of reasonableness to Gladney’s
properly calculated within-guidelines sentence. See United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009). “The presumption is rebutted only upon a
showing that the sentence does not account for a factor that should receive
significant weight, it gives significant weight to an irrelevant or improper
factor, or it represents a clear error of judgment in balancing sentencing
factors.” Id.
      The record illustrates that the district court adequately considered all of
the facts that Gladney urges on appeal. Gladney’s disagreement with the
district court’s balancing of the 18 U.S.C. § 3553(a) factors is not sufficient to
rebut the presumption of reasonableness afforded to his within-guidelines
sentence. See United States v. Illies, 805 F.3d 607, 609–10 (5th Cir. 2015).
                                        V
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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