                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                      FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________  ELEVENTH CIRCUIT
                                                   FEB 24, 2009
                                                THOMAS K. KAHN
                           No. 08-10198
                                                     CLERK
                        Non-Argument Calendar
                      ________________________

                  D. C. Docket No. 07-20708-CR-PCH

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

BOBBY SANDERS,

                                                       Defendant-Appellant.


                      ________________________

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

                          (February 24, 2009)

Before TJOFLAT, DUBINA and ANDERSON, Circuit Judges.

PER CURIAM:
      Bobby Sanders appeals his convictions and 264-month sentences for being a

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

possession with the intent to distribute a controlled substance in violation

of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). On appeal, Sanders argues that the district

court erred by denying his motion to suppress evidence obtained during a search

of his residence, including a firearm and cocaine base, and any statements made

before he was given the warnings under Miranda v. Arizona, 384 U.S. 436, 86

S.Ct. 1602 (1966). He asserts that his arrest was made without probable cause and

that his statements made following the arrest should have been suppressed as a

byproduct of his illegal detention. He suggests that the search of his residence was

conducted in violation of the Fourth Amendment because the officers did not have

probable cause, and they did not have valid consent.

      Ordinarily, “[r]eview of a district court’s denial of a motion to suppress is a

mixed question of law and fact.” United States v. Delancy, 502 F.3d 1297, 1304

(11th Cir. 2007). Accordingly, we accept the district court’s factual findings as

true unless clearly erroneous, and review the district court’s interpretation and

application of the law de novo. Id. Additionally, “all facts are construed in the

light most favorable to the prevailing party.” United States v. Bervaldi, 226

F.3d 1256, 1262 (11th Cir. 2000). Arguments that are not raised before the district

                                          2
court are reviewed for plain error. United States v. Ward, 486 F.3d 1212, 1221

(11th Cir.), cert. denied, 128 S.Ct. 398 (2007). Under plain error review, there

must be “(1) error, (2) that is plain, and (3) that affects substantial rights.” Id.

“The admission of statements obtained in violation of Miranda is subject to

harmless error scrutiny.” United States v. Arbolaez, 450 F.3d 1283, 1292 (11th

Cir. 2006).

      In general, unless there is consent, police officers must obtain a warrant

supported by probable cause to justify a search under the Fourth Amendment.

United States v. Magluta, 418 F.3d 1166, 1182 (11th Cir. 2005). A search of

property without a warrant and probable cause is constitutionally permissible if

preceded by valid consent. United States v. Dunkley, 911 F.2d 522, 525 (11th

Cir. 1990). A third party may give valid consent to search if he or she has

“common authority over or other sufficient relationship to the premises or effects

sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94

S.Ct. 988, 993 (1974). Common authority is not implied from the mere property

interest a third party has in the property, “but rests rather on mutual use of the

property by persons generally having joint access or control for most purposes.”

Id. at 172 n.7, 94 S.Ct. at 993 n.7.




                                            3
      “[W]here a consent to search follows prior illegal activity by the police,” we

“must determine whether the consent was voluntary” and “whether the consent,

even if voluntary, requires exclusion of the evidence found during the search

because it was the ‘fruit of the poisonous tree.’” Delancy, 502 F.3d at 1308. “The

second requirement focuses on causation: ‘whether, granting establishment of the

primary illegality, the evidence to which instant objection is made has been come

at by exploitation of that illegality or instead by means sufficiently distinguishable

to be purged of the primary taint.’” Id. (quoting Wong Sun v. United States, 371

U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). “Th[e] two-step approach is

mandatory, and the government bears the burden on both issues.” Id. We may

conduct the Wong Sun analysis for the first time on appeal if the factual record is

adequate. Id. at 1309.

      “A consensual search is constitutional if it is voluntary; if it is the product of

an essentially free and unconstrained choice.” United States v. Purcell, 236

F.3d 1274, 1281 (11th Cir. 2001) (quotation omitted). Voluntariness is a factual

assessment and “depends on the totality of the circumstances.” Id. In evaluating

voluntariness, we examine several factors, “including the presence of coercive

police procedures, the extent of the defendant’s cooperation with the officer, the

defendant’s awareness of his right to refuse consent, the defendant’s education and

                                           4
intelligence, and the defendant’s belief that no incriminating evidence will be

found.” Id.

      Three non-exhaustive factors are considered in determining whether a

defendant’s consent was tainted by his illegal arrest: (1) “the temporal proximity

of the seizure and the consent”; (2) “the presence of intervening circumstances”;

and, most importantly, (3) “the purpose and flagrancy of the official misconduct.”

See Delancy, 502 F.3d at 1309. “[The] factor-based analysis [cannot] obscure the

underlying question, which generally involves a pragmatic evaluation of the extent

to which the illegal police conduct caused the defendant’s response.” Id. at 1310

(quotation omitted).

      Under Miranda, “evidence obtained as a result of a custodial interrogation is

inadmissible unless the defendant had first been warned of his rights and

knowingly waived those rights.” United States v. Parr, 716 F.2d 796, 817 (11th

Cir. 1983). “Miranda safeguards come into play whenever a person in custody is

subjected to either express questioning or its functional equivalent.” Rhode Island

v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980).

Officers engage in the “functional equivalent” of express questioning when they

use “any words or actions . . . (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to elicit an

                                          5
incriminating response from the suspect.” Id. at 309 n.5, 100 S.Ct. at 1694 n.5. In

determining “whether the police practice was so coercive that it was likely to

evoke an incriminating response,” we must “focus[] primarily upon the

perceptions of the suspect, rather than the intent of the police.” United States v.

Stubbs, 944 F.2d 828, 832 (11th Cir. 1991) (emphasis omitted). “Voluntary and

spontaneous comments by an accused . . . are admissible evidence if the comments

were not made in response to government questioning.” Cannady v. Dugger, 931

F.2d 752, 754 (11th Cir. 1991) (habeas case).

      Sanders argues, for the first time on appeal, that the officers lacked probable

cause for his arrest and that the evidence obtained as a result of the unlawful arrest

should have been suppressed. Because he did not contend that his arrest was

unlawful before the district court, his argument is reviewed for plain error. See

Ward, 486 F.3d at 1221. However, the record does not clearly show when the

officers placed Sanders in custody. Thus, it is unclear whether the officers had

probable cause when they placed Sanders under arrest. See United States v.

Goddard, 312 F.3d 1360, 1362 (11th Cir. 2002) (noting that “the Fourth

Amendment permits warrantless arrests in public places where an officer has

probable cause to believe that a felony has occurred”). Nevertheless, this Court

need not decide the legality of the arrest because even assuming that the arrest

                                          6
violated the Fourth Amendment, the evidence found during the search was

admissible as the result of a voluntary consent. See Delancy, 502 F.3d at 1307.

      Overstreet gave her consent to the search knowingly and voluntarily. There

is no dispute that Overstreet had common authority over or other sufficient

relationship to the residence. The officers were not armed when they approached

Overstreet, did not make any threats or coercion, and did not notice anything

unusual about her appearance. Further, Overstreet affirmed that she was not under

the influence of alcohol, drugs, or medication, that she had a college-level

education, and that she did not have any mental problems. While Sanders refused

to sign the consent form, he gave verbal consent to the search and did not object to

Overstreet’s consent, and there was no evidence that he was threatened or coerced

by the officers. Thus, this situation was not similar to Georgia v. Randolph, 547

U.S. 103, 122-23, 126 S.Ct. 1515, 1528 (2006) (holding that a tenant cannot

consent over a co-tenant’s express objection). See Delancy, 502 F.3d at 1308 n.7.

Based on the above facts, the district court did not err in finding that Overstreet’s

consent was knowing and voluntary and that the officers had valid consent to

search the residence. See Purcell, 236 F.3d at 1281.

      As to the statement made by Sanders claiming ownership of the cocaine

base, the firearm, and the ammunition, the government does not dispute that

                                          7
Sanders was in custody at the time he made the incriminating statement and that

the officers had not read Sanders his Miranda warnings. The record, however,

demonstrates that Villa Verde directed the question to Overstreet, rather than

Sanders. Therefore, the district court’s finding that his statement was voluntary

and spontaneous was not clearly erroneous.

      Even if the district court erred in admitting the statement because the

question was the “functional equivalent” of a custodial interrogation, any error

was harmless because Sanders later completed a Miranda waiver form and

reasserted that he owned the seized items. In signing the Miranda waiver form,

Sanders indicated that he was not under the influence of drugs or medication, that

he had a high-school education, that he did not have any mental illness, that he

understood that he could answer “yes” or “no” to the waiver questions, that he

waived his right to a lawyer, and that he signed the form under his own free will,

without any threats or promises. Because the record does not show that the

officers engaged in a “two-step technique” designed “to obscure the Miranda

warnings,” Sanders’s waiver was knowing and voluntary. See United States v.

Gonzalez-Lauzan, 437 F.3d 1128, 1137-38 (11th Cir. 2006) (holding that a

defendant knowingly and voluntarily waived his Miranda rights where the officers

did not ask any pre-Miranda questions of the defendant, the defendant did not

                                         8
offer pre-Miranda any detailed information concerning his involvement in the

crime, the officers did not engage in any threats or coercion, the defendant

understood his Miranda rights, and there was no hostility between the parties).

Thus, Sanders’s post-Miranda statement that he owned the seized items was

admissible, and any error by the district court in admitting the pre-Miranda

statement was harmless.

      Sanders also argues that the district court erred by denying his motion for

judgment of acquittal because the evidence was insufficient to support his

convictions. He asserts that no evidence connected him to the residence and that

other individuals were present during the search. He concludes that his mere

presence at the scene, without more, was insufficient to reach a guilty verdict.

      We review de novo a district court’s denial of judgment of acquittal on

sufficiency of evidence grounds. United States v. Yates, 438 F.3d 1307, 1311-12

(11th Cir. 2006) (en banc). The evidence is viewed in the light most favorable to

the government, with all reasonable inferences and credibility choices made in the

government’s favor. United States v. Garcia, 405 F.3d 1260, 1269 (11th

Cir. 2005). We must affirm unless the jury could not have found, under any

reasonable construction of the evidence, the defendant guilty beyond a reasonable

doubt. Id.

                                          9
      To support a conviction under 18 U.S.C. § 922(g)(1), the government must

establish that: “(1) [the defendant] knowingly possessed a firearm or ammunition,

(2) he or she was previously convicted of an offense punishable by a term of

imprisonment exceeding one year, and (3) the firearm or ammunition was in or

affecting interstate commerce.” United States v. Palma, 511 F.3d 1311, 1315

(11th Cir.), cert. denied, 129 S.Ct. 215 (2008). “[Section] 922(g) is a strict

liability offense that does not require the prosecution to prove that the criminal

acts were done with specific criminal intent.” Id. (internal quotation omitted).

“The government need not prove actual possession in order to fulfill the ‘knowing’

requirement of § 922(g)(1).” United States v. Wright, 392 F.3d 1269, 1273 (11th

Cir. 2004). Instead, “it may be shown through constructive possession.” Id.

Constructive possession may be shown through evidence “that the defendant

exercised ownership, dominion, or control over the firearm or the [premises]

concealing the firearm.” United States v. Gunn, 369 F.3d 1229, 1234 (11th

Cir. 2004). To convict a person of possession with intent to distribute a controlled

substance under 21 U.S.C. § 841(a)(1), the government must prove three elements:

“(1) knowledge; (2) possession; and (3) intent to distribute.” United States v.

Gamboa, 166 F.3d 1327, 1331 (11th Cir. 1999). “Constructive possession is

sufficient to satisfy the possession element, and is proven by showing ownership

                                          10
or dominion and control over the drugs or over the premises on which the drugs

are concealed.” Id. (quotation omitted).

      The district court did not err in denying Sanders’s motion for judgment of

acquittal because a reasonable trier of fact could have found that he knowingly

possessed the firearm and that he knowingly possessed the cocaine base with

intent to distribute. According to the evidence presented at trial, Castro found the

shotgun underneath the bed of the master bedroom. When confronted with the

seized weapon, Sanders admitted that he owned the firearm, needed the shotgun

for protection, and kept it underneath the bed. Based on this evidence, a

reasonable juror could conclude that Sanders knowingly possessed the firearm and

was guilty beyond a reasonable doubt.

      As to Count 2, the parties stipulated that the officers found a bag containing

3.1 grams of cocaine base in the residence. Sanders acknowledges that the

officers discovered this amount of cocaine base during the search. Thus, there is

no merit to his contention that the officers “added” or used the drugs seized from

his earlier arrest to obtain his conviction for possession with intent to distribute.

According to the evidence at trial, Castro found a bag containing suspect cocaine

base and numerous Ziplock baggies in the night stand of the master bedroom.

When confronted with the seized cocaine base and baggies, Sanders admitted that

                                           11
he owned the items, and he stated that he sold and used narcotics in order to

provide for everyone in the house. Further, Villa Verde testified that the markings

and symbols on the Ziplock baggies indicated that they were used in the

distribution of narcotics. Based on this evidence, a reasonable juror could

conclude that Sanders knowingly possessed the cocaine base with intent to

distribute and was guilty beyond a reasonable doubt.

      Sanders argues that the district court erred by enhancing his sentence under

the Armed Career Criminal Act (ACCA) because his prior burglary convictions

did not qualify as violent offenses under 18 U.S.C. § 924(e)(2)(B). He asserts that

his conduct was consistent with auto theft, rather than generic burglary as defined

by Taylor v. United States, 495 U.S. 597, 110 S.Ct. 2143 (1990). He also submits

that his robbery conviction did not qualify as a violent offense under the ACCA.

      We review de novo whether a particular offense constitutes a violent felony

under the ACCA. United States v. Rainey, 362 F.3d 733, 734 (11th Cir. 2004).

Harmless error is applied to sentencing cases, and remand is unnecessary if the

party defending the sentence persuades us that the district court would have

imposed the same sentence absent the erroneous factor. See United States v.

Williams, 503 U.S. 193, 202-03, 112 S.Ct. 1112, 1120-21 (1992).




                                         12
      “Section 4B1.4(a) of the Guidelines provides that [a] defendant who is

subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an

armed career criminal.” United States v. Wade, 458 F.3d 1273, 1276 (11th

Cir. 2006) (quotation omitted). “Application of that statutory provision, the

[ACCA], requires a finding that the defendant who has violated [18 U.S.C.]

§ 922(g) has three previous convictions for a violent felony or serious drug

offense.” Id. The ACCA defines violent felony as any crime that “has as an

element the use, attempted use, or threatened use of physical force against the

person of another” or “is burglary, arson, or extortion, involves use of explosives,

or otherwise involves conduct that presents a serious potential risk of physical

injury to another.” 18 U.S.C. §§ 924(e)(2)(B)(i)-(ii). “This matters to the

calculation of a guidelines sentence . . . because § 4B1.4(a) of the [G]uidelines

effectively incorporates by reference the definition of ‘violent felony’ from

§ 924(e)(2)(B), and § 4B1.4(b) of the [G]uidelines provides for a higher offense

level for armed career offenders.” Wade, 458 F.3d at 1277.

      “Generally, in determining whether a prior conviction is a qualifying

offense for enhancement purposes, we apply a ‘categorical’ approach–that is, we

look no further than the fact of conviction and the statutory definition of the prior

offense.” United States v. Llanos-Agostadero, 486 F.3d 1194, 1196-97 (11th

                                          13
Cir. 2007), cert. denied, __ S.Ct. __ (U.S. Jan. 12, 2009). However, where the

judgment of conviction and the statute are ambiguous, the district court may look

to the facts underlying the state conviction to determine whether it qualifies as a

violent felony under the ACCA. Id. at 1197. In doing so, the district court is

generally limited to “relying only on the charging document[s], written plea

agreement, transcript of plea colloquy, and any explicit factual finding by the trial

judge to which the defendant assented.” Id. (quotation omitted).

      A person commits burglary within the meaning of § 924(e) “if he is

convicted of any crime, regardless of its exact definition or label, having the basic

elements of unlawful or unprivileged entry into, or remaining in, a building or

structure, with intent to commit a crime.” Taylor, 495 U.S. at 599, 110 S.Ct.

at 2158. Florida defined the crime of burglary at the time of Sanders’s conviction

as follows: “‘Burglary’ means entering or remaining in a structure or a

conveyance with the intent to commit an offense therein, unless the premises are at

the time open to the public or the defendant is licensed or invited to enter or

remain.” Fla. Stat. § 810.02(1) (1987). Attempted burglary of a curtilage under

Fla. Stat. § 810.02 presents a serious potential risk of physical injury to another

under the ACCA’s residual clause. United States v. Matthews, 466

F.3d 1271, 1275 (11th Cir. 2006). Florida defined the crime of robbery at the time

                                          14
of Sanders’s convictions as follows: “‘Robbery’ means the taking of money or

other property which may be the subject of larceny from the person or custody of

another by force, violence, assault, or putting in fear.” Fla. Stat. § 812.13(1)

(1980).

      The district court did not err in sentencing Sanders as an armed career

criminal because three of his prior convictions qualified as violent felonies under

the ACCA. Sanders was convicted of burglary of a structure or conveyance

in 1987. Because it is unclear from the judgment of conviction whether Sanders

burgled a structure or conveyance, it is necessary to examine the underlying facts

of the conviction. See Llanos-Agostadero, 486 F.3d at 1196-97. According to the

arrest affidavit, the burglary related to the entry of a structure or building, rather

than a conveyance. Therefore, Sanders’s conviction fell within the Taylor

definition of a burglary because he entered or remained in a structure or a building

without permission, when the premises were not open to the public, with the intent

to commit an offense. See Matthews, 466 F.3d at 1274.

      Additionally, Sanders had two prior robbery convictions in 1980. Because

robbery under Florida law required the state to prove that Sanders took money or

other property of another “by force, violence, assault, or putting in fear,” the

convictions fell within the meaning of violent felony under the ACCA because

                                           15
they included “as an element the use, attempted use, or threatened use of physical

force against the person of another.” See Fla. Stat. § 812.13(1); 18 U.S.C.

§ 924(e)(2)(B)(i). Because Sanders was convicted of at least three prior violent

felonies within the meaning of the ACCA, he qualified as an armed career

criminal, and the district court did not err by enhancing his sentence under

U.S.S.G. § 4B1.4.

      Finally, Sanders argues that the district court erred by enhancing his

sentences under U.S.S.G. § 2K2.1(b)(6) because the evidence did not show that he

used the firearm during a drug offense, that he had access to it during a drug

transaction, or that it was brandished in any way during any offense. He claims

that the enhancement also runs afoul with United States v. Booker, 543

U.S. 220, 125 S.Ct. 738 (2005), because it enhanced his sentences without

submission of the facts to the jury.

      Ordinarily, we review a Booker claim on appeal de novo and will reverse

only for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).

However, where a defendant raises a Booker objection for the first time on appeal,

we review for plain error. See United States v. Rodriguez, 398 F.3d 1291,

1299(11th Cir. 2005). Booker held that, pursuant to the mandatory Sentencing

Guidelines, the Sixth Amendment was violated when a sentence was enhanced

                                         16
based solely on judicial fact-finding, and the Sentencing Guidelines were advisory

only. Booker, 543 U.S. at 233-35, 259-60, 125 S.Ct. at 749-51, 764. Thereafter,

we have recognized two types of Booker errors: (1) a Sixth Amendment

constitutional error of enhancing a defendant’s sentence using judge-found facts

under a mandatory guideline system; and (2) a statutory error of applying the

advisory guidelines as mandatory. United States v. Shelton, 400 F.3d 1325,

1330-31 (11th Cir. 2005). The use of extra-verdict enhancements in an advisory

guidelines scheme, however, is not unconstitutional. United States v. Rodriguez,

398 F.3d 1291, 1300 (11th Cir. 2005). A district court may determine

enhancements based on a preponderance of the evidence standard as long as the

Guidelines are applied in an advisory fashion. United States v. Chau, 426

F.3d 1318, 1323-24 (11th Cir. 2005).

      The district court did not err in applying the four-level enhancement under

U.S.S.G. § 2K2.1(b)(6) because it applied the Guidelines in an advisory fashion.

Moreover, the enhancement had no effect on the district court’s application of the

Guidelines because Sanders’s offense level was adjusted to 34, pursuant to

§ 4B1.4(b)(3)(A), since he was an armed career criminal. Thus, even if the district

court erred in applying the four-level enhancement under § 2K2.1(b)(6), any error

was harmless.

                                        17
AFFIRMED.1




1
    Sanders’ request for oral argument is denied.

                                          18
