            Case: 19-12794   Date Filed: 04/06/2020   Page: 1 of 9



                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-12794
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:18-cr-00327-MHT-SRW-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

CODY EUGENE MOBLEY,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      ________________________

                              (April 6, 2020)

Before WILSON, BRANCH, and FAY, Circuit Judges.

PER CURIAM:
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      Cody Mobley appeals the district court’s denial of his motion to suppress, as

well as his consecutive 30-year sentence for possession of a firearm silencer under

18 U.S.C. § 924(c)(1)(B)(ii). On appeal, Mobley argues that the district court

erred in denying his motion to suppress, because the police engaged in an illegal

search violating his Fourth Amendment rights, and because neither the automobile

nor inevitable-discovery exception applied. Mobley also argues that his 30-year

consecutive sentence for possessing a firearm silencer violates the Eighth

Amendment’s prohibition on cruel and unusual punishment as applied. For the

following reasons, we affirm.

                                           I

      “A district court’s ruling on a motion to suppress presents a mixed question

of law and fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999).

We review the district court’s factual findings for clear error. Id. “[A]ll facts are

construed in the light most favorable to the prevailing party below.” United States

v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000). The district court’s application

of the law to the facts is reviewed de novo. Id. “[W]e may affirm the denial of a

motion to suppress on any ground supported by the record.” United States v.

Caraballo, 595 F.3d 1214, 1222 (11th Cir. 2010). We have made clear that “[t]he

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

United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998). However, if “it is


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established that the government conducted an unlawful search,” the government

bears the burden “to show that [the] evidence was not obtained as a direct result of

the illegal search.” United States v. Crosby, 739 F.2d 1542, 1549 (11th Cir. 1984).

      Even if the government conducted a warrantless search of Mobley’s car, the

Fourth Amendment’s warrant requirement is subject “to a few specifically

established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347,

357 (1967). One is the “automobile exception.” Maryland v. Dyson, 527 U.S.

465, 466 (1999) (per curiam). “If a car is readily mobile and probable cause exists

to believe it contains contraband, the Fourth Amendment permits police to search

the vehicle without more.” Id. at 467 (alteration adopted). Underlying a probable

cause determination is a totality-of-the-circumstances analysis. Illinois v. Gates, 462

U.S. 213, 238 (1983). On appeal, we review to ensure that there was a “substantial

basis” for concluding that, under the circumstances, there was “a fair probability that

contraband . . . will be found in a particular place.” Id. at 238–39.

      Here, the district court did not err in concluding that the automobile

exception applied. To start, nothing suggests that the magistrate judge clearly

erred in finding that Mobley’s car—a Tahoe—was operational and therefore

“readily mobile.” And there was a substantial basis for concluding that there was a

fair probability that drugs and/or firearms would be found in the Tahoe. An officer

testified that (1) Mobley arrived at one of the controlled buys in the Tahoe; (2) a


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confidential informant told the police that he twice saw Mobley exiting the car

with a firearm in his waistband at controlled buys; and (3) drug traffickers

commonly keep firearms in their cars. So the district court did not err in denying

the motion to suppress on this basis.

      But even if the district court did err in applying the automobile exception, it

also correctly denied the motion to suppress based on the exception to the

exclusionary rule for inevitable discovery. See United States v. Johnson, 777 F.3d

1270, 1274 (11th Cir. 2015). Under that exception, “the government may

introduce evidence that was obtained by an illegal search if the government can

establish a reasonable probability that the evidence in question would have been

discovered by lawful means” that it was actively pursuing before the illegal search.

Id. (internal quotation mark omitted). The government must show the exception’s

applicability “by a preponderance of the evidence” using “demonstrated historical

facts.” United States v. Terzado-Madruga, 897 F.2d 1099, 1114 (11th Cir. 1990).

      In this case, the government invoked forfeiture as its path to inevitable

discovery. “All conveyances, including . . . vehicles, . . . which are used . . . in any

manner to facilitate the transportation, sale, receipt, possession, or concealment” of

illegally manufactured, distributed, dispensed, or acquired controlled substances

are subject to forfeiture to the United States. 21 U.S.C. § 881(a)(4). So too are

“all proceeds traceable to . . . an exchange [for a controlled substance].” Id.


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§ 881(a)(6). The government may seize that property in the manner set forth in 18

U.S.C. § 981(b). 21 U.S.C. § 881(b). Per § 981(b), warrantless seizure is

permissible if “there is probable cause to believe that the property is subject to

forfeiture and . . . the seizure is made pursuant to a lawful arrest or search.” 18

U.S.C. § 981(b)(2)(B)(i).

      In this context, “[p]robable cause exists when the United States has

reasonable grounds to believe that there is a substantial connection between the

property charged and specific transactions involving illicit drugs.” Nnadi v. Richter,

976 F.2d 682, 686 (11th Cir. 1992). Though an indirect connection will suffice, “a

car is considered directly involved when it is used to transport an individual to the

place where a drug transaction takes place even though it is not used to transport

drugs or money.” Id.

      Here, the district court did not err by applying the inevitable-discovery

exception. Evidence showed that there was a reasonable probability that the

evidence would have been discovered by lawful forfeiture seizure of the Tahoe that

the government was actively pursuing before the illegal search. The authorities

had evidence of the Tahoe’s use in facilitating Mobley’s drug trafficking:

Surveillance showed that Mobley drove it to a controlled buy. Beyond that, the

authorities also had reason—if a bit more tenuous—to believe that Mobley had

access to the Tahoe from proceeds of drug trafficking because Mobley was not


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otherwise lawfully employed. Though the government did not show that Mobley

had bought the car, it did show that he possessed the Tahoe for over two months

before the search. As for active pursuit, an officer testified that, before the search,

the authorities had discussed the Tahoe’s seizure due to its connection to Mobley’s

drug trafficking and then, on the day of the search, they in fact seized the Tahoe

and performed an inventory search. Other officers corroborated this testimony. So

the district court did not clearly err in finding that the plan to seize the Tahoe

predated the search. Therefore, the district court did not err in denying the motion

to suppress on this basis. 1 Accordingly, we affirm as to this issue.

                                               II

       We review de novo a defendant’s challenge to the constitutionality of his

sentence. United States v. Sanchez, 586 F.3d 918, 932 (11th Cir. 2009).

       The Eighth Amendment provides, among other things, that cruel and

unusual punishments shall not be inflicted. U.S. Const. amend. VIII. In examining

an Eighth Amendment claim in a non-capital case, we follow a two-part test:

(1) “we determine whether the sentence is grossly disproportionate to the offense

committed”; and (2) if so, “we then consider sentences imposed on others

convicted of the same crime.” United States v. Suarez, 893 F.3d 1330, 1336 (11th



1
 To the extent that Mobley argues that his incriminating statements were also inadmissible, this
argument fails because, as discussed, the evidence recovered from the Tahoe was admissible.
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Cir. 2018) (internal quotation mark omitted), cert. denied, 139 S. Ct. 845 (2019).

The defendant bears the burden of making that first showing. United States v.

Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (per curiam). As recently as 2018,

we observed that “it appears we have never held that a non-capital sentence for an

adult has violated the Eighth Amendment.” Suarez, 893 F.3d at 1336.

      “Generally, sentences within the statutory limits are neither excessive, nor

cruel and unusual under the Eighth Amendment,” because we “accord substantial

deference” to Congress’s “broad authority to determine the types and limits of

punishments for crimes.” United States v. Bowers, 811 F.3d 412, 432 (11th Cir.

2016). In this case, Congress has set the punishment for possession of a firearm

equipped with a silencer in connection with a drug-trafficking crime at minimum

30 years’ imprisonment. 18 U.S.C. § 924(c)(1)(B)(ii). We have held that a 30-

year statutory mandatory-minimum sentence under § 924(c)(1)(B)(ii) for “the

serious nature of” possession of a machine gun in furtherance of a drug-trafficking

crime was not grossly disproportionate to the offense, because the defendant there

attempted to possess and distribute a large quantity of drugs “and equipped himself

with tools for violence.” United States v. Haile, 685 F.3d 1211, 1214–15, 1222

(11th Cir. 2012) (per curiam).

      Here, Mobley fails to carry his burden to show that his sentence is grossly

disproportionate to his offense conduct. First, he argues that the authorities found


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an unattached silencer in an unoccupied vehicle. But a silencer need not be

attached to a firearm at the time the firearm was found for § 924(c)(1)(B)(ii) to

apply. See United States v. Charles, 469 F.3d 402, 407–08 (5th Cir. 2006), cert.

denied, 549 U.S. 1273 (2007). Second, Mobley argues that he did not act violently

and that there are no alleged victims related to the silencer. The statute requires

neither of these conditions to apply. Lastly, he argues that Alabama law provides

for legal ownership and use of silencers for hunting. But Mobley’s insinuation that

he could have used the silencer for a valid purpose rings hollow because he was a

convicted felon and does not allege that he could lawfully possess a gun at all,

much less one with a silencer.

      Significantly, the district court imposed the mandatory minimum sentence of

30 years, the lowest punishment that Congress gave for this offense. We note also

that Mobley’s conduct is comparable to that in Haile, which in that case justified

the same 30-year sentence under the same statute and did not violate the Eighth

Amendment. Here, Mobley was engaging in ongoing drug trafficking; possessed

substantial drug quantities, multiple weapons, and surveillance equipment; and

carried a weapon during drug transactions. For these reasons, and because Mobley

offers no other bases for concluding that his sentence is grossly disproportionate to

his offense conduct, we cannot conclude that his sentence violated the Eighth

Amendment. Accordingly, we affirm.


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AFFIRMED.




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