                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT            FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                    No. 06-11435                        AUGUST 14, 2007
                              ________________________                 THOMAS K. KAHN
                                                                           CLERK
                       D. C. Docket No. 01-00470-CR-01-JTC-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                           versus

ROLAND MATHIS,
a.k.a. Fat,
a.k.a. Fats,
a.k.a. John Davis,
a.k.a. Leroy Mathis,
a.k.a. John David,

                                                                 Defendant-Appellant.
                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                           _________________________

                                     (August 14, 2007)


Before TJOFLAT, BLACK and EBEL,* Circuit Judges.

PER CURIAM:

       *
        The Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting
by designation.
      Roland Mathis appeals his convictions and sentence imposed after a jury

convicted him of (1) 2 counts of distribution of cocaine, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(A)(ii); (2) conspiracy to possess with the intent to distribute

cocaine and marijuana, in violation of 21 U.S.C. §§ 841(b)(1)(A)(ii) and (vii) and

846; (3) conspiracy to commit money laundering, in violation of 18 U.S.C.

§ 1956(h); and (4) 11 counts of money laundering in violation of 18 U.S.C.

§ 1956(a)(1)(B)(i). Mathis raises seven issues on appeal. Three issues pertain to

his trial, two issues pertain to his sentencing, and two issues concern the jury’s

verdict. We address each issue in turn.

                                      I. TRIAL

A.    Right to an Evidentiary Hearing

      Mathis first contends the district court should have granted him an

evidentiary hearing to challenge the constitutionality of the search of his closed

duffle bag from the trunk of an automobile. The district court refused Mathis an

evidentiary hearing on whether the search violated the Constitution because the

court found the search was supported by probable cause. Mathis contends the facts

were insufficient to support a finding of probable cause. We disagree.

      A district court’s denial of a motion to suppress is reviewed as a mixed

question of law and fact. United States v. Gil, 204 F.3d 1347, 1350 (11th Cir.

2000). We review the court’s factual findings for clear error, and its application of


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law to those facts de novo. Id. The district court’s decision on whether to hold an

evidentiary hearing is reviewed for an abuse of discretion. United States v. Mena,

863 F.2d 1522, 1528 (11th Cir. 1989). Where record testimony demonstrates

probable cause for the search existed, reversal is not warranted. See id.

       “If probable cause justifies the search of a lawfully stopped vehicle, it

justifies the search of every part of the vehicle and its contents that may conceal

the object of the search.” United States v. Ross, 456 U.S. 798, 825, 102 S. Ct.

2157, 2173 (1982). Every part of the vehicle and its contents has been construed to

include all containers within a car regardless of ownership. California v. Acevedo,

500 U.S. 565, 572, 111 S. Ct. 1982, 1987 (1991). In addition, if law enforcement

has probable cause to believe a package within a car contains evidence or

contraband, they may conduct a warrantless search of the package, even if they do

not have probable cause to search the entire car. Id. at 580, 111 S. Ct. at 1991.

Probable cause exists “when the facts and circumstances would lead a reasonably

prudent [person] to believe that the vehicle contains contraband.” United States v.

Alexander, 835 F.2d 1406, 1409 (11th Cir. 1988).

      At trial, the record testimony demonstrated probable cause existed that the

duffle bag contained proceeds from a drug transaction. Agents had knowledge of

an anticipated drug deal, watched two men exchange the duffle bag, and later saw

Mathis with the duffle bag. The agents then watched the duffle bag being placed in


                                           3
the trunk of the Lexus automobile subjected to the search. Taken together, these

facts were sufficient to lead a reasonably prudent person to believe the duffle bag

contained contraband. See id. Thus, reversal is not warranted because record

evidence demonstrated probable cause existed to search the automobile. Mena,

863 F.2d at 1528.

B.    Proffer Agreement

      Mathis next asserts statements made to the Government under a proffer

agreement should have been excluded pursuant to derivative-use immunity.

Mathis contends that his conviction on Count Five should be vacated because the

Government obtained and used evidence uncovered directly from his proffer, and

not from derivative sources, relying on Kastigar v. United States, 406 U.S. 441, 92

S. Ct. 1652 (1972). The district court ruled that because the Government did not

grant Mathis any immunity related to the proffer, a Kastigar hearing was

unnecessary. We agree.

      The interpretation of a proffer agreement is generally controlled by

principles of contract law. United States v. Pielago, 135 F.3d 703, 709 (11th Cir.

1998). When the district court interprets a contract without reference to extrinsic

evidence, we review the interpretation de novo. United Benefit Life Ins. Co. v.

United States Life Ins. Co., 36 F.3d 1063, 1065 (11th Cir. 1994).




                                          4
      In Pielago, the proffer agreement provided: “The government also expressly

reserves the right to pursue any and all investigative leads derived from . . .

statements or information and use such derivative evidence in any criminal or civil

proceeding against her and/or others.” 135 F.3d at 710. We concluded this

provision did not conflict with an earlier provision providing: “No information or

statement provided . . . may be used against [her] in this case or any other criminal

investigation.” Id. Mathis’s proffer agreement contained almost verbatim the two

sentences in Pielago, which were held to allow the government to use anything

derived from the proffer agreement except the defendant’s statements and

information making up the proffer. Id. Here, the Government used facts derived

from the statements and not “statements and information which made up

[Mathis’s] proffer.” See id. Thus, the district court’s ruling was not in error.

C.    Count Six & Duplicity

      Mathis contends the district court erred in failing to require the Government

to select the subsection of 18 U.S.C. § 1956(a)(1) under which it intended to

proceed. Mathis argues Count Six was duplicitous because it charged two separate

crimes, violations of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1956(a)(1)(A)(ii). Count

Six charged Mathis with conspiracy to commit money laundering and cited both

subsections of § 1956(a)(1).




                                           5
       We review a trial court’s decision that a conspiracy charging two objectives

is not duplicitous de novo. See United States v. Burton, 871 F.2d 1566, 1573 (11th

Cir. 1989). While it is true that a count in an indictment may not charge two

substantive crimes, it has long been the law that a conspiracy may have two

objectives. See Braverman v. United States, 317 U.S. 49, 54, 63 S. Ct. 99, 102

(1942) (“The allegation in a single count of a conspiracy to commit several crimes

is not duplicitous, for ‘The conspiracy is the crime, and that is one, however

diverse its objects.’”).

       In this case, the conspiracy count simply charged two objectives for the

conspiracy, not duplicitous offenses. The trial court so instructed the jury;

therefore, no error occurred.

                                 II. SENTENCING

       Mathis makes two separate, but interrelated sentencing arguments. First,

Mathis contends the district court erred when it applied a statutory enhancement to

his mandatory minimum sentence on the basis that he committed a prior felony

drug offense. Specifically, he claims the district court erred in applying the 21

U.S.C. § 841 sentencing enhancement to his drug counts because his 1987 state

conviction was vacated before he was convicted and sentenced in this case, and he

was not seeking to attack the prior conviction’s validity because it had already

been vacated. Second, Mathis asserts the district court violated his constitutional


                                           6
rights under the Ex Post Facto Clause by sentencing him pursuant to the 2005

Guidelines Manual.

      These claims are interrelated because, as discussed below, if we uphold the

district court’s use of the 2005 Guidelines Manual, any district court error

regarding its statutory sentencing enhancement would be harmless because the

district court still would have sentenced Mathis at or above the enhanced statutory

minimum. The district court sentenced Mathis to 240 months’ imprisonment for

the money laundering counts, which is the same amount as the enhanced statutory

minimum for the drug counts. For sentencing claims, we review a district court’s

factual findings for clear error, and the district court’s application of the law to

those facts is reviewed de novo. United States v. Cover, 199 F.3d 1270, 1274 (11th

Cir. 2000). We will first examine whether the district court erred in using the 2005

Guidelines Manual.

A.    2005 Guidelines Manual

      “The Court shall use the Guidelines Manual in effect on the date that the

defendant is sentenced.” U.S.S.G. § 1B1.11(a). If the use of the Guidelines

Manual in effect on the date the defendant is sentenced violates the Ex Post Facto

Clause, the court must use the Guidelines Manual in effect on the date the

defendant committed the offense of conviction. U.S.S.G. § 1B.1.11(b)(1). The Ex

Post Facto Clause protects people against being punished for conduct that was not


                                            7
criminal when they engaged in it, being punished more severely than their crime

was punishable for when committed, or being deprived of defenses then available.

United States v. De La Mata, 266 F.3d 1275, 1286 (11th Cir. 2001). The defendant

does not get the benefit of using multiple Guidelines Manuals; rather, one manual

is used to sentence the defendant for all crimes. United States v. Bailey, 123 F.3d

1381, 1403-04 (11th Cir. 1997). In a conspiracy, this rule operates to put a

defendant on notice that he will be sentenced under the Guidelines in effect at the

time of the last acts of the conspiracy. Id. at 1405.

       The 2000 Guidelines Manual provided an offense level of 23 for money

laundering while the 2001-2005 Guidelines Manuals provided an offense level of

38 for the same offense. See U.S.S.G. § 2S1.1(a) (2000); § 2S1.1(a) (2001-2005);

2D1.1(c)(1) (2001-2005).1 Therefore, if the district court incorrectly used the 2005

Guidelines Manual, it may have violated Mathis’s rights under the Ex Post Facto

Clause.2

       1
          The base offense level for money laundering offenses is the level of the underlying
offense from which the funds were derived, which in this case is the offense level for drug
offenses specified in U.S.S.G. § 2D1.1(c)(1). See U.S.S.G. § 2S1.1(a)(1).
       2
          We say “may have” here as opposed to “violated” because, post-Booker, it is not clear
that using one Guidelines Manual over another violates the Ex Post Facto Clause, even when
using different Guidelines Manuals would produce divergent sentences. Booker made the
Sentencing Guidelines advisory as opposed to mandatory. United States v. Booker, 543 U.S.
220, 125 S. Ct. 738 (2005). Because the Guidelines are advisory, it is difficult to say the
Guidelines, rather than the district court exercising discretion, are the source of the harsher
punishment when the district court consults, in an advisory manner, the current version of the
Guidelines. See generally United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006) (noting
“a rule that a guidelines change cannot be applied retroactively if it would be adverse to the

                                                8
       To prevail on this claim, Mathis must demonstrate that the district court

clearly erred when it found the conspiracy continued past November 1, 2001, the

effective date of the 2001 Guidelines Manual. Mathis fails to make this showing.

He argues he withdrew from the conspiracy in July 2001, when he surrendered to

law enforcement. While it is true he surrendered, there were sufficient facts

showing that Mathis continued to launder money past November 1, 2001.

Specifically, Mathis purchased two automobiles, one of which the jury convicted

Mathis of purchasing with proceeds from drug sales. Thus, we conclude the

district court did not err in using the 2005 Guidelines Manual.

B.     21 U.S.C. § 851(e)

       Section 841(b)(1)(A)(ii) states, “[i]f any person commits such a violation

after a prior conviction for a felony drug offense has become final, such person

shall be sentenced to a term of imprisonment which may not be less than 20 years

and not more than life imprisonment.” A defendant cannot challenge the validity

of the prior conviction if it “occurred more than five years before the date of the



defendant would have in the long run a purely semantic effect. Instead of purporting to apply
the new guideline, the judge who wanted to give a sentence based on it would say that in picking
a sentence consistent with section 3553(a) he had used the information embodied in the new
guideline.”). We do not conclude one way or another that, after Booker, a district court can
never violate the Ex Post Facto Clause by using the current Guidelines Manual, because we are
not required to and the argument is not properly before us. Because we conclude the district
court was correct, under our pre-Booker precedent to use the 2005 Guidelines Manual, we will
leave this question to a panel that is required to answer it and where the Government raises the
argument in the district court and briefs it to this Court.

                                               9
information alleging such prior conviction.” 21 U.S.C. § 851(e). Mathis does not

argue that his prior state court conviction would not qualify him for an

enhancement or that his prior conviction occurred more than five years before the

information alleging such in this case. Rather, Mathis argues the fact his

conviction was vacated in the interim between the date of the information and the

date of his sentencing makes it inappropriate for the district court to enhance his

sentence.

       We recognize this is a close issue 3 but one we ultimately do not need to

reach because we conclude the district court did not err in using the 2005

Guidelines Manual. The district court sentenced Mathis to 240 months’

imprisonment for the money laundering counts, and Mathis does not challenge that



       3
          Mathis adopted his argument from United States v. McChristian, 47 F.3d 1499, 1502-
03 (9th Cir. 1995) (holding § 851(e) does not preclude a simple showing that a prior conviction
has been invalidated in a state court proceeding). The Ninth Circuit borrows its reasoning from
Custis v. United States, 511 U.S. 485, 114 S. Ct. 1732 (1994). In Custis, the Supreme Court
discussed the policy behind the Armed Career Criminal Act, in particular 18 U.S.C. § 924(e).
The Supreme Court construed § 924(e) as restricting a defendant’s ability to challenge a
previous weapons conviction. Id. at 497, 114 S. Ct. at 1739. The Court held section 924(e)
prevents a court from reviewing an underlying conviction unless a defendant was claiming a
violation to the right of counsel. Id. at 495, 114 S. Ct. at 1738. Unlike the drug offender
sections, however, the Armed Career Criminal Act contains a definition of conviction precluding
a “conviction which has been expunged, or set aside or for which a person has been pardoned or
has had civil rights restored . . . .” 18 U.S.C. § 921(a)(20). We note there is some doubt over
whether the reasoning in Custis, on which the Ninth Circuit relied to allow a showing that a prior
conviction had been invalidated, should apply to a drug offender, where the drug-offender statute
does not define conviction. We decline to decide this issue at this time, however, because
Mathis admits that any error is harmless if we uphold the district court’s use of the 2005
Guidelines Manual.


                                                10
sentence as unreasonable. Therefore, even if we determined the § 841

enhancement was in error, that error would be harmless because the district court’s

valid 240-month sentence for money laundering is equal to the statutory minimum

§ 841 would proscribe. Mathis admits that any error is not prejudicial, and

therefore, we will not reach the merits of this issue.

                                III. JURY VERDICT

      Mathis makes several challenges to the jury’s verdict. First, he challenges

the sufficiency of the evidence the district court found to deny him a directed

verdict as to Counts 7, 14, and 33, and, second, Mathis challenges the sufficiency

of the evidence the jury found to sustain a verdict against him on the money

laundering and substantive drug counts. Because Mathis did not renew his motion

for acquittal after the close of all evidence, these claims are reviewed for a

miscarriage of justice. See United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.

2002) (holding, where a defendant never makes a motion for judgment of acquittal

or fails to renew it at the close of all evidence, a claim of insufficiency of the

evidence is reviewed for a manifest miscarriage of justice). We conclude no

miscarriage of justice occurred and affirm.




                                           11
                              IV. CONCLUSION

      Based on the above discussion, we conclude the district court did not err and

that no miscarriage of justice occurred. We affirm Mathis’s convictions and

sentence.

      AFFIRMED.




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