                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                                                          FEB 18, 2010
                            No. 09-12379
                                                           JOHN LEY
                        Non-Argument Calendar
                                                             CLERK
                      ________________________

               D. C. Docket No. 08-00071-CR-ORL-22GJK

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

CHRISTOPHER SAMUEL CARTER,

                                                       Defendant-Appellant.


                      ________________________

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

                           (February 18, 2010)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:
      Following his conviction for possession of ammunition by a convicted

felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(e)(1), Christopher

Samuel Carter argues that (1) the district court erred in denying his motion to

suppress all evidence obtained as a result of the stop and search of the vehicle in

which he was a passenger; (2) the evidence was insufficient to support his

conviction; and (3) the government should have been required to prove to the jury

beyond a reasonable doubt his statutory predicate convictions that provided the

basis for his Armed Career Criminal Act (“ACCA”) sentencing enhancement.

I.    Whether the District Court Erred in Denying Carter’s Motion to
      Suppress

      On appeal, Carter argues that the district court erred in denying his motion

to suppress all evidence obtained as a result of the traffic stop of the Dodge

Magnum in which he was a passenger, including a loaded firearm found under the

front passenger seat where he was sitting.

      In reviewing the denial of a motion to suppress, “we review the district

court’s factual findings for clear error and its legal conclusions de novo” and are

not restricted to the record made at the suppression hearing, but may review the

entire record, including trial testimony. United States v. Newsome, 475 F.3d

1221, 1223-24 (11th Cir. 2007). “[A]ll facts are construed in the light most



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favorable to the prevailing party below.” Id. (quotation omitted). “‘The

individual challenging the search bears the burdens of proof and persuasion.’” Id.

at 1224 (quoting United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998)).

Absent a demonstration of clear error, we are bound by the credibility

determinations made by the fact finder because he or she personally observed the

testimony and was thus in a better position than the reviewing court to assess the

witnesses’ credibility. United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th

Cir. 2002).

      Carter first argues that the traffic stop was unlawful because Deputy

Michael DeGraw lacked probable cause to initiate the traffic stop as there was no

basis to believe that Lakeisha Johnson, the driver of the Dodge, had committed a

traffic infraction by cutting off the driver of a pick-up truck. However, the district

court credited DeGraw’s testimony that she did so over Ms. Johnson's testimony

that she did not recall cutting anyone off and also noted that Florida law prohibits

drivers from changing lanes unless "the move can be completely made with safety

and without interfering with the safe operation of any vehicle approaching from

the same direction." (citing Fla. Stat. § 316.085(2).

      Because Carter has not pointed to any facts in the record showing that the

district court's decision to credit DeGraw's testimony was clearly erroneous, this

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Court is bound by that credibility determination. See Ramirez-Chilel, 289 F.3d at

749. DeGraw's testimony established that he observed Ms. Johnson commit a

violation of Florida's laws, thus providing DeGraw with probable cause to stop the

vehicle. Therefore, the district court did not err in determining that the traffic stop

did not violate Carter's Fourth Amendment rights.

      Carter next argues that he was unlawfully detained beyond the period that

was necessary to process Ms. Johnson’s traffic infraction warning because (a) Ms.

Johnson testified that the deputies had finished processing her traffic warning at

the point when they began questioning the passengers in the Dodge about their

identities, (b) the district court erred in crediting Deputy Yancy Bowling’s

inconsistent testimony about where he was standing in relation to the Dodge when

he observed Carter remove a large black object from his waistband and place it

under the seat, and (c) Carter had a right to refuse to tell the deputies his name

during the consensual encounter.

      Based on this record, we cannot say the district court clearly erred in

crediting Officers DeGraw’s and Carriuolo’s testimony that DeGraw had not

finished processing Ms. Johnson’s traffic warning at the time the other deputies

began questioning Carter, despite Ms. Johnson’s testimony to the contrary. See

Ramirez-Chilel, 289 F.3d at 749. The district court also permissibly credited

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Carriuolo’s testimony that the continued detention of Carter was based on the

investigation of Carter’s possible seatbelt law violation. Carter has not shown that

this credibility determination was clearly erroneous. Further, Bowling’s and

Carriuolo’s observations of Carter’s suspicious reaching from his waistband to

hide an object under the seat provided reasonable, articulable suspicion to justify

the detention because it was reasonable for the deputies to believe that Carter was

engaging in illegal conduct and that officer safety was at risk.

      Carter further contends that there was no basis for the deputies to believe

that other illegal activity was afoot that would justify a pat-down search for

weapons under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Although both Deputy Bowling testified that he observed Carter take a large black

object from his waistband and place it under the front passenger seat and Deputy

Christopher Carriuolo testified that he also saw Carter reach under the seat, Carter

contends that at the point when he was asked to step out of the car, the deputies

lacked a basis to believe that he was armed and dangerous. Finally, Carter

contends that the seizure of his wallet during the pat-down search was unlawful.

Prior to the search, Carter had told Deputy Carriuolo, when he was preparing a

citation for failing to wear a seat belt, that he did not have identification on his

person. However, during the pat-down search for weapons, Carter told Deputy

                                           5
Carriuolo that the item in his pocket was his wallet that contained his

identification. Florida law prohibits a person who has been lawfully detained by

law enforcement from giving a false name or otherwise falsely identifying himself

to the law enforcement officer. Fla. Stat. § 901.36(1). We find no error under

these circumstances for the seizure of Carter’s wallet.

      Accordingly, Carter’s Fourth Amendment rights were not violated because

(a) the deputies had a lawful basis to stop the vehicle, (b) Carter was not

unlawfully detained, (c) the deputies had reasonable, articulable suspicion

justifying the pat-down search of Carter’s person, and (d) the deputies did not

exceed the permissible scope of the pat-down search. Therefore, the district court

therefore did not err in denying Carter’s motion to suppress.

      II.    Whether Sufficient Evidence Supports Carter’s Conviction for
             Possession of Ammunition by a Convicted Felon

      Carter next argues that the district court erred in denying his motion for

judgment of acquittal because the evidence presented at trial was insufficient to

show beyond a reasonable doubt that he knowingly possessed the ammunition in

question. Carter essentially argues that the witnesses against him were not

credible. We find this argument unavailing.




                                          6
      To the extent that a defendant’s argument depends upon challenges to the

witnesses’ credibility, the jury has exclusive province over that determination and

we may not revisit this question when the witnesses’ testimony is not incredible as

a matter of law. “For testimony of a government witness to be incredible as a

matter of law, it must be unbelievable on its face.” United States v. Calderon, 127

F.3d 1314, 1325 (11th Cir. 1997) (internal quotation omitted). It must be

testimony as to “facts that the witness physically could not have possibly observed

or events that could not have occurred under the laws of nature.” Id. (internal

quotations and brackets omitted).

      In this case sufficient evidence was presented to the jury to support the

guilty verdict. Deputy Bowling testified that when he was standing approximately

three feet from the car, he observed Carter lift up his shirt, reach into his

waistband, remove an eight to ten-inch long object that appeared to be wrapped in

black cloth, and shove that object under the seat. That object turned out to be a

loaded firearm. Deputy Bowling also testified that when he saw Carter reach to

his waistband and place the object under the seat, he immediately "called that out

to [Officer] Carriuolo," and when Carter continued to reach under the seat after

being ordered to exit the vehicle, Bowling again alerted Carriuolo to Carter's

actions. Carriuolo confirmed that as he was walking to his squad car to check

                                           7
Carter's identification, Bowling was standing near the front passenger side of the

vehicle and shouted to him that Carter was reaching under the seat.

       The jury also heard testimony from the backseat passenger, Ford, that she

saw Carter lean forward in his seat when a deputy was outside the car. Ford also

testified that she did not own a gun, that she had been in the Dodge at least 50

times prior, had never seen a gun or ammunition in the Dodge before that night,

and that neither the owner nor the driver of the Dodge owned a gun or

ammunition. Ms. Johnson and her father likewise testified that they did not own a

gun or any ammunition. Mr. Johnson also testified that immediately before Carter

left in the Dodge with Ms. Johnson and Ford, he had seen Carter holding a gun

wrapped in a dark cloth. Based on the witness testimony and the physical

evidence found in the Dodge, we conclude that the government presented

sufficient evidence for a jury to convict Carter of knowingly possessing

ammunition in or affecting interstate commerce.

III.   Whether the Government Should Have Been Required to Prove to a
       Jury Carter’s Prior Convictions that Provided the Basis for the ACCA
       Sentencing Enhancement

       Finally, Carter argues, for preservation purposes, that despite the Supreme

Court’s holding in Apprendi v. New Jersey, 530 U.S. 466, 473, 120 S.Ct. 2348,

2354, 147 L.Ed.2d 435 (2000), his sentence should be overturned because (1) the

                                          8
government failed to prove to the jury beyond a reasonable doubt his statutory

predicate convictions for ACCA enhancement purposes, and (2) the Apprendi rule

that except for the fact of prior convictions, the government must prove to a jury

beyond a reasonable doubt any fact that increases the statutory maximum sentence,

has been called into question by some members of the Supreme Court.

      We reiterate that the holding of Almendarez-Torres, 523 U.S. at 227, 118

S.Ct. at 1223, that a prior felony conviction is not an element of the offense for

purposes of the imposition of an enhanced sentence, remains good law after

Apprendi. United States v. Cantellano, 430 F.3d 1142, 1147 (11th Cir. 2005).

      AFFIRMED.




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