                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-2452
                                   ___________

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Northern District of Iowa.
Craig Allen Thomas,                   *
                                      *
            Defendant-Appellant.      *
                                 ___________

                          Submitted: April 22, 2008
                              Filed: May 5, 2008
                                  ___________

Before BYE, COLLOTON, and BENTON, Circuit Judges.
                         ________________

BYE, Circuit Judge.

       Craig Allen Thomas appeals his conviction for possessing with intent to
distribute fifty grams or more of crack cocaine as well as the 250-month sentence he
received. We initially affirmed Thomas's conviction and sentence. Thomas filed a
petition for writ of certiorari with the Supreme Court which was granted; the Supreme
Court vacated our judgment and remanded the case to us for further consideration
because of Kimbrough v. United States, 552 U.S. ___, 128 S. Ct. 558 (2007). As a
result we vacated our original opinion and requested the parties to submit
supplemental briefs addressing Kimbrough. After considering the supplemental
briefing, we again affirm Thomas's conviction, but reverse and remand for
resentencing.
                                         I

      On May 23, 2005, the Cedar Rapids, Iowa, Police Department (CRPD) received
word from the Chicago Police Department about Markell Lane, a suspect in a shooting
death which had occurred in Chicago the day before, could be on his way to Cedar
Rapids on a particular bus.

       Three CRPD officers met the bus upon its arrival in Cedar Rapids. Among
others, two African-American males not matching Lane’s description exited the bus,
and were not stopped. Thomas then exited the bus. Officers decided he matched a
photograph they had of Lane. They approached Thomas and handcuffed him, then
performed a pat-down search. An officer felt a metal object and what he believed to
be a large bundle of currency in Thomas’s front pants pockets, and left them where
they were. He also found some paperwork in Thomas’s back left pocket, which he left
there.

      Thomas told officers his name was Donnell Thomas (actually his brother’s
name) and said he did not have any identification. He said he was unemployed and
did not know his Social Security number. He gave his address as being in an affluent
Chicago suburb of Country Club Hills, Illinois.

      The officers did not believe him. They asked Thomas if he had any relatives
they could contact to confirm his identity. He gave a phone number but no name for
his mother in Chicago and said his brother, Craig Thomas, also lived in Chicago.
Thomas then denied consent for officers to search his person and his bag. An officer
reached into Thomas’s back pocket, however, and pulled out a bus ticket assigned to
“Thomas, C.” The district court held this to be an illegal search, but declined to
suppress the evidence, citing the inevitable discovery doctrine.




                                        -2-
      Officers ran a search on both Craig and Donnell Thomas’s names, and
discovered the description of Donnell Thomas did not match the man they had
handcuffed, and that a warrant was outstanding for Craig Thomas’s arrest.

       A plan was hatched by one officer, who walked away from Thomas while
another officer remained with him. The officer who walked away called out “Craig!”
and Thomas “snapped [his] neck towards our direction looking at us, acknowledging
the word ‘Craig,’” the officer testified. After being confronted with his reaction,
Thomas admitted he was indeed Craig and had a warrant outstanding. He was then
arrested on the warrant and for providing false information to a police officer.

      Incident to the arrest, officers subsequently searched Thomas and his bag, and
found two tin-foil wrapped objects in a pair of brown shoes. Though they looked like
baked potatoes, they turned out to be 241.8 grams of crack cocaine. Officers testified
the encounter took about ten minutes.

       Thomas was charged with possession with the intention of distributing 50
grams or more of crack cocaine. At a suppression hearing, his testimony was at odds
with police officers’. He said his head did not snap around when the officer called out
“Craig!” Instead, he testified about turning to the other officer and asked, “What did
he say?” He said he was detained for an hour before his Miranda rights were read to
him. He also said officers brought a drug-sniffing dog to the scene; officers denied
doing so (though one of the police units dispatched to the scene was indeed a K-9
unit).

       At sentencing, the district court, citing Thomas’s testimony, gave him a two-
level enhancement for obstruction of justice, holding his statements material to the
defense theory he was putting forward – that it was a racially motivated stop in search
of drugs. “[D]efendant’s false statements were made in an attempt to put some flesh
on that bald assertion,” the district court held. “He made statements about the

                                         -3-
circumstances of the offense that, if believed, could have resulted in the suppression
of the evidence, and so nothing could be more material than that.”

      Thomas’s sentencing guideline range was 236 to 293 months, and he was
sentenced to 250 months, with five years of supervised release.

                                          II

      This court reviews the district court’s factual findings for clear error, and its
application of law and the sentencing guidelines de novo.

      Thomas argues officers knew early on he was not murder suspect Markell Lane
and had no reason to hold him for further questions on an unrelated matter. The
evidence does not support this argument.

       When they stopped Thomas, the police officers were at the bus station to look
for Lane on a bus from Chicago. He resembled the photograph they had of Lane,
giving police both good reason to believe Thomas might be Lane, and good reason to
handcuff him. Police are authorized to use handcuffs in making Terry stops. United
States v. Miller, 974 F.2d 953, 957 (8th Cir. 1992).

       Though the search of Thomas’s pocket was improper, the evidence found need
not be suppressed if the two prongs of the inevitable discovery doctrine are proved by
a preponderance of the evidence: (1) there is a reasonable probability the evidence
would have been discovered by lawful means in the absence of police misconduct, and
(2) the government was actively pursuing a substantial, alternative line of
investigation at the time of the constitutional violation. United States v. Glenn, 152
F.3d 1047, 1049 (8th Cir. 1998).




                                         -4-
       We find the discovery of the evidence on the ticket – the name “Thomas, C.”
 – was inevitable. The officers were trying to determine whether they had a murder
suspect on their hands. The “substantial, alternative line of investigation” the officers
were conducting was whether the man they were speaking to was Lane; the stop could
not be concluded until police discovered Thomas’s true identity. This is a permissible
reason to continue a Terry stop. “A brief stop of a suspicious individual, in order to
determine his identity . . . may be most reasonable in light of the facts known to the
officer at the time.” Adams v. Williams, 407 U.S. 142, 145-46 (1972); Terry v. Ohio,
392 U.S. 1 (1968).

        Before the improper search of his pocket, Thomas had told officers his first
name was “Donnell.” After he was unable to give them his Social Security number
and did give them an address they believed unlikely to be his – and after a check on
“Donnell Thomas” returned a description he did not match – police had good reason
to believe he was not Donnell Thomas. The other name he had mentioned to officers
was his own, giving officers some reason to think he was, instead, Craig Thomas. But
until they could confirm such, officers had no firm reason to believe he was not Lane.

      When Thomas turned his head to look at the officers who yelled “Craig!” he
gave them reason to believe he was indeed not Lane. Unfortunately for him, at that
same moment he also gave them reason to arrest him lawfully as Craig Thomas on an
outstanding warrant and search him incident to that arrest.

      Thomas’s argument about the stop being racially motivated is also not
supported by the evidence. Officers had in hand a photograph of an African-
American male and did not stop several other African-American males who were on
the bus from Chicago. The district court found Thomas did indeed resemble the
photograph of Lane the officers had in hand. Only when he exited the bus did police
make their first stop.



                                          -5-
       As to the obstruction of justice enhancement, the district court based its
determination on the pre-sentence report, which listed three areas in which the
probation officer found Thomas lied at his suppression hearing when he testified: (1)
he turned to another officer with a question, and not toward the officer who called his
name; (2) he was detained for an hour without being Mirandized; and (3) police had
a drug-sniffing dog along on their search.

       Thomas also testified he was not aware drugs were in his bag, and the drugs
were not his. The district court found those statements to be false, but declined to
make them part of her obstruction calculation because they went to the ultimate issue
of guilt versus innocence.

       The sentencing guidelines allow for an obstruction of justice enhancement if a
district court finds by the preponderance of the evidence the defendant willfully
obstructed or impeded the administration of justice during the investigation,
prosecution, or sentencing. United States v. Molina, 172 F.3d 1048, 1058 (8th Cir.
1999). The application notes to the guidelines list providing materially false
information to a judge or magistrate as conduct constituting obstruction of justice.

       The suppression hearing was before the district court who sentenced Thomas;
she was in a good position to evaluate the truthfulness and materiality of his
testimony. While the district court dealt him quite a heavy blow when it levied the
obstruction enhancement, it cannot be said it committed clear error in finding he
perjured himself materially at the suppression hearing. See, e.g., United States v.
Carter, 884 F.2d 368, 375 (8th Cir. 1989) (“[I]t is axiomatic that, although we might
have decided differently in the first instance, we will not substitute our judgment for
that of the district court absent a finding of clear error, and we do not so find”).




                                         -6-
                                         III

      At sentencing, Thomas asked the district court to vary downward from the
advisory guideline range of 236 to 293 months arguing the guidelines' 100:1 ratio
between crack and powder cocaine has an unjust effect on crack cocaine offenders.1
The district court declined to vary from the advisory guideline range, stating a
sentence within the guideline range was a reasonable sentence without specifically
commenting on the request for a downward variance.

       In Kimbrough, the Supreme Court held sentencing courts may vary downward
from the advisory guidelines because of the disparity created by the 100:1 ratio
between crack and powder cocaine offenses. 128 S. Ct. at 575-76. We cannot tell
from the sentencing record in this case whether the district court would have granted
Thomas's request for a downward variance if the district court had known it could do
so. Under such circumstances, a remand for resentencing is appropriate. See United
States v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008) (remanding for resentencing
when it was "unclear whether the district court declined to use its discretion in the
requested manner because of then-current Eighth Circuit precedent or because it did
not find that the disparity warranted any variance from the guidelines").

                                         IV

       The district court did not err when it admitted evidence gained from the Terry
stop of Thomas. We therefore affirm his conviction. We also conclude the district
court did not clearly err when it sentenced him with an enhancement for obstruction


      1
       The 100:1 ratio between crack and powder cocaine offenses, contained within
the guidelines in effect the time of Thomas's sentencing, has subsequently been
retroactively modified by an amendment to the guidelines. The base offense level
assigned to each threshold quantity of crack cocaine is now two levels lower. See
U.S. Sentencing Guidelines Manual, Amend. 706, app. C (2007).

                                         -7-
of justice. We reverse and remand for resentencing in order for the district court to
consider Thomas's request for a downward variance.

COLLOTON, Circuit Judge, with whom BENTON, Circuit Judge, joins, concurring.

       I concur in Judge Bye’s opinion affirming Craig Allen Thomas’s conviction and
remanding the case for resentencing. In particular, with respect to the conviction, I
concur that the district court properly applied circuit precedent concerning the
“inevitable discovery doctrine” to the facts of this case. The discussion of that
doctrine, however, provides an opportunity to observe that our court’s present
articulation of the inevitable discovery doctrine is inconsistent with Supreme Court
precedent and warrants consideration at an appropriate time by the en banc court.

       In Nix v. Williams, 467 U.S. 431 (1984), the Supreme Court adopted the
ultimate or inevitable discovery exception to the exclusionary rule. The Court held
that where information is discovered after police violate the Fourth Amendment, the
evidence should not be suppressed “[i]f the prosecution can establish by a
preponderance of the evidence that the information ultimately or inevitably would
have been discovered by lawful means.” Id. at 444. The rationale for this inevitable
discovery exception, like the related independent source doctrine, is that “the interest
of society in deterring unlawful police conduct and the public interest in having juries
receive all probative evidence of a crime are properly balanced by putting the police
in the same, not a worse, position that they would have been in if no police error or
misconduct had occurred.” Id. at 443.

       Since then, our court has said that the inevitable discovery exception to the
exclusionary rule applies only where the government proves “by a preponderance of
the evidence: (1) that there was a reasonable probability that the evidence would have
been discovered by lawful means in the absence of police misconduct, and (2) that the
government was actively pursuing a substantial, alternative line of investigation at the

                                          -8-
time of the constitutional violation.” United States v. Conner, 127 F.3d 663, 667 (8th
Cir. 1997). This two-pronged test was adopted from decisions of the Fifth Circuit, see
United States v. Wilson, 36 F.3d 1298, 1304 (5th Cir. 1994) (citing United States v.
Cherry, 759 F.2d 1196, 1205-06 (5th Cir. 1985)), with no analysis of the competing
approaches to the doctrine or whether Fifth Circuit’s approach is consistent with Nix
v. Williams.

        Our court’s present approach is both overinclusive and underinclusive. The
first prong of the analysis is overinclusive. It provides that evidence is admissible if
the government proves by a preponderance of the evidence that there is merely a
“reasonable probability” that the disputed evidence would have been discovered by
lawful means. The Supreme Court, however, held that a preponderance of the
evidence must show that the evidence “ultimately or inevitably would have been
discovered.” Nix, 467 U.S. at 444 (emphasis added). “Reasonable probability” means
something less than “more likely than not.” See Kyles v. Whitley, 514 U.S. 419, 434
(1995). By diluting the Supreme Court’s standard – “would have been discovered”
– to a “reasonable probability that the evidence would have been discovered,” we
open the possibility that police will be in a better position as a result of police error
or misconduct.

       Subsequent to Nix, the Supreme Court has reiterated that “inevitable discovery
of illegally seized evidence must be shown to have been more likely than not.”
Bourjaily v. United States, 483 U.S. 171, 176 (1987). The Second Circuit, interpreting
Nix, has concluded that “the government cannot prevail under the inevitable discovery
doctrine merely by establishing that it is more probable than not that the disputed
evidence would have been obtained without the constitutional violation.” United
States v. Heath, 455 F.3d 52, 58 (2d Cir. 2006). That court has found “semantic
problems in using the preponderance of the evidence standard to prove inevitability,”
id. at 59 n.6 (internal quotation omitted), and two of Yale Law School’s most
distinguished professors have yet to solve this “semantic puzzle,” other than to

                                          -9-
observe that there is a difference between proving that something “would have
happened” and that something “would inevitably have happened.” United States v.
Cabassa, 62 F.3d 470, 474 (2d Cir. 1995) (Winter, J.); Heath, 455 F.3d at 59 n.6
(Calabresi, J.). This analysis arguably overlooks the fact that the Supreme Court
spoke of evidence that “ultimately or inevitably would have been discovered,” Nix,
467 U.S. at 444 (emphasis added), and there may be no difference between proving
that something “would have happened” and that something “ultimately would have
happened.” In any event, whether the proper standard is “more likely than not” or
some higher degree of certainty, suffice it to say for present purposes that a
“reasonable probability” standard is inconsistent with Nix and should be eliminated
from our court’s formulation. See Heath, 455 F.3d at 60.

       The second prong of our court’s analysis, on the other hand, is underinclusive.
A rule that the inevitable discovery doctrine applies only where “the government was
actively pursuing a substantial, alternative line of investigation at the time of the
constitutional violation,” Conner, 127 F.3d at 667, allows for the exclusion of
evidence that inevitably would have been discovered. Even if the police were not
actively pursuing an alternative line of investigation at the time of police error or
misconduct, for example, the government may well be able to establish that the
execution of routine police procedure or practice inevitably would have resulted in
discovery of disputed evidence. By requiring proof that a “substantial, alternative line
of investigation” was in progress, our court’s application of the doctrine contravenes
the command of Nix that police should not be placed in a worse position than they
would have occupied in the absence of error or misconduct. 467 U.S. at 444. The
existence of an alternative line of investigation may be strong proof, as in Nix, that
supports a finding that evidence inevitably would have been discovered in a particular
case. But a rigid requirement that such proof be mustered in every case is an
inappropriate prophylactic rule that unduly expands the exclusionary rule. Cf. Murray
v. United States, 487 U.S. 533, 540 n.2 (1988) (rejecting prophylactic exception to
independent source rule).

                                         -10-
       Most courts of appeals have expressly or implicitly rejected the “substantial,
alternative line of investigation” requirement. See United States v. Vasquez De Reyes,
149 F.3d 192, 195 (3d Cir. 1998); United States v. Larsen, 127 F.3d 984, 987 (10th
Cir. 1997); United States v. Kennedy, 61 F.3d 494, 499-500 (6th Cir. 1995); United
States v. Fialk, 5 F.3d 250, 253 (7th Cir. 1993); United States v. Thomas, 955 F.2d
207, 210 (4th Cir. 1992); United States v. Boatwright, 822 F.2d 862, 864 (9th Cir.
1987) (Kennedy, J.); United States v. Silvestri, 787 F.2d 736, 745-46 (1st Cir. 1986).
That prophylactic rule is now followed by only our court, the Eleventh Circuit, and
the Fifth Circuit, from which both we and the Eleventh Circuit adopted it. Jefferson
v. Fountain, 382 F.3d 1286, 1296 (11th Cir. 2004); Conner, 127 F.3d at 667; United
States v. Kirk, 111 F.3d 390, 392 (5th Cir. 1997). We should align ourselves with the
majority of circuits and abandon this unwarranted requirement.

      Because I agree that the district court properly applied our governing precedent
regarding the inevitable discovery doctrine to the facts of this case, I concur in the
opinion of the court affirming Thomas’s conviction, as well as the remand for
resentencing. The district court’s order, moreover, includes a determination that the
disputed evidence was admissible under what I believe to be the correct standard: “In
sum, because it was inevitable that Defendant’s true identity would have been
discovered, there is no need to suppress this evidence.” United States v. Thomas, No.
05-0055, Order Regarding Defendant’s Motion to Suppress, at 15 (N.D. Iowa Aug.
8, 2005) (emphasis added). I do not believe, therefore, that an adjustment of our
court’s approach to the inevitable discovery doctrine would change the result in this
case.




                                        -11-
