          Case: 14-13465   Date Filed: 03/29/2016   Page: 1 of 10


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-13465
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:12-cr-00501-LSC-TMP-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

BINIAM ASGHEDOM,

                                                        Defendant-Appellant.

                      ________________________

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

                            (March 29, 2016)

Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Biniam Asghedom appeals his conviction and 10-year prison sentence for

one count of possession with intent to distribute cocaine hydrochloride, in violation

of 21 U.S.C. § 841(a)(1) and (b)(1)(C). On appeal, Asghedom argues first that the

magistrate judge abused his discretion by disqualifying his counsel, in violation of

his Sixth Amendment right to counsel of choice. Second, the district court erred

by failing to suppress the evidence stemming from a search of his vehicle because

he did not provide consent, the stop was impermissibly extended, and it stemmed

from an illegal GPS tracking of his vehicle. Third, his right to due process was

violated by the government’s failure to disclose the existence of the GPS and pole

camera devices. Fourth, his sentence was procedurally and substantively

unreasonable because the court relied on improper factors.

                               (1) Disqualification of Counsel

      Under 28 U.S.C. § 636(b)(1)(A), magistrate judges are authorized to hear

and determine any pretrial matter, except for certain exceptions. The decision to

disqualify counsel is not one of the exceptions listed in § 636(b)(1)(A). Further,

pursuant to Federal Rule of Criminal Procedure 59(a), after a magistrate judge

enters an order on a non-dispositive matter, a party must file objections to that

order within 14 days, or the party waives the right to review. Moreover, we do not

have jurisdiction to hear appeals directly from federal magistrate judges. United

States v. Schultz, 565 F.3d 1353, 1359 (11th Cir. 2009).


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      Because Asghedom did not object to the magistrate judge’s order, he waived

the right to review because we do not have jurisdiction to hear appeals directly

from the magistrate judge.

                                     (2) Vehicle Search

      We review a district court’s denial of a motion to suppress evidence as a

mixed question of law and fact. United States v. Lewis, 674 F.3d 1298, 1302 (11th

Cir. 2012). Rulings of law are reviewed de novo, while the district court’s findings

of fact are reviewed for clear error, in the light most favorable to the prevailing

party below. Id. at 1302-03.

      When police stop a motor vehicle, even for a brief period, a Fourth

Amendment “seizure” occurs. Whren v. United States, 517 U.S. 806, 809-10, 116

S. Ct. 1769, 1772, 135 L. Ed.2d 89 (1996). The stop’s duration must be limited to

the time necessary to effectuate the purpose of the stop. United States v. Ramirez,

476 F.3d 1231, 1236 (11th Cir. 2007). Therefore, in the context of a lawful traffic

stop, a seizure is unlawful “if it is prolonged beyond the time reasonably required

to complete the mission of issuing a ticket for the violation.” Rodriguez v. United

States, 575 U.S.___, 135 S. Ct. 1609, 1612, 191 L. Ed.2d 492 (2015) (quotation

omitted). Besides determining whether to issue a ticket, an officer’s mission

includes “ordinary inquiries incident to the traffic stop.” Id. 575 U.S. at___, 135

S. Ct. at 1615. These inquiries typically involve checking the driver’s license,


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determining whether there are outstanding warrants, and inspecting registration

and insurance documents. Id.

        However, in the absence of reasonable suspicion, further questioning is

allowed only if the initial detention has become a consensual encounter. United

States v. Pruitt, 174 F.3d 1215, 1220 (11th Cir. 1999). Although there is no bright-

line test for determining whether a traffic stop is a seizure or a consensual

encounter, we examine the totality of the circumstances, including whether there is

any police coercion, whether the exchange is cooperative in nature, and whether

the defendant had everything reasonably required to leave. Ramirez, 476 F.3d at

1240. The Supreme Court has instructed that the ultimate, objective inquiry

remains whether “a reasonable person would feel free to terminate the encounter.”

United States v. Drayton, 536 U.S. 194, 201, 122 S. Ct. 2105, 2110, 153 L. Ed.2d

242 (2002). Therefore, where a reasonable person would feel free to decline the

requests of law enforcement or otherwise terminate the encounter, the encounter is

consensual, and the Fourth Amendment is not implicated. Ramirez, 476 F.3d at

1238.

        In Ramirez, the defendant argued that once the officer confirmed that

Ramirez’s vehicle was not stolen and was advised that Ramirez had a clean driving

record, there was no basis to continue to detain Ramirez. Id. at 1236. According

to this argument, after the issuance of the traffic citation, and after the officer’s


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suspicions of illegality had been completely dispelled, Ramirez was free to go, but

nevertheless, the officer asked Ramirez an additional question - whether he had

anything illegal in his vehicle - which, Ramirez contended, extended his detention

unnecessarily. Id. We affirmed the district court’s findings that the officer had

returned Ramirez’s license and registration to him prior to instigating any

additional questioning about contraband in the car, noting that the follow-up

discussion with the officer appeared to have been fully cooperative and non-

coercive. Id. at 1239-40. Therefore, we held that Ramirez’s stop became a

consensual encounter at the time when the officer asked Ramirez whether he had

anything illegal in his car, and thus, Ramirez was not “detained” for Fourth

Amendment purposes. Id. at 1237, 1239-40. We clarified that the fact that

Ramirez chose to answer a follow-up question, instead of terminating the

encounter, did not change the fact that it had converted from a traffic stop into a

consensual encounter. Id. at 1240. Viewing the totality of the circumstances, we

concluded that a reasonable person in Ramirez’s circumstances would have felt

free to terminate the encounter and to decline the officer’s request for further

information, and, accordingly, Ramirez’s Fourth Amendment rights were not

implicated. Id.

      Moreover, a search of a vehicle is reasonable under the Fourth Amendment

when law enforcement receives a person’s voluntary consent to search.


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Schneckloth v. Bustamonte, 412 U.S. 218, 219, 222, 93 S. Ct. 2041, 2043-44, 2046,

36 L. Ed.2d 854 (1973).

      Even when evidence is obtained in violation of the Fourth Amendment, the

Fourth Amendment does not say anything about suppressing that evidence. Davis

v. United States, 564 U.S. 229, 131 S. Ct. 2419, 2426, 180 L. Ed. 285 (2011).

Exclusion is “not a personal constitutional right,” and the sole purpose of the

exclusionary rule is to deter future Fourth Amendment violations. Id. (quotation

omitted). When law enforcement acts with an objectively “reasonable good-faith

belief” that their conduct is lawful, the “deterrence rationale loses much of its

force.” Id. at ___, 131 S. Ct. at 2427-28 (quotation omitted). In Davis, the

Supreme Court extended the good-faith exception to the exclusionary rule to

situations where police conduct was in objectively reasonable reliance on binding

appellate precedent. Id. at ___, 131 S. Ct. at 2434.

      In United States v. Smith, 741 F.3d 1211, 1217-18 (11th Cir. 2013), the

defendant claimed that his Fourth Amendment rights were violated when

warrantless GPS surveillance was performed, which led to a search warrant of his

home. We held that the good-faith exception to the exclusionary rule applied.

Id. at 1220. We held that the officers relied on then-binding, but subsequently

overruled, appellate precedent because at the time the officers attached the

trackers, our precedent in United States v. Michael, 645 F.2d 252 (5th Cir. 1981)


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(en banc) specifically allowed officers to install “an electronic tracking device” on

a vehicle upon a showing of reasonable suspicion. Id. (quotation omitted). We

further held that although Michael involved a beeper, and Smith involved a GPS

tracking device, a GPS device was nonetheless an “electronic tracking device,” and

therefore, the officers followed our precedent to the letter. Id. at 1222.

      Here, because Asghedom had already been issued a verbal warning, because

there was no coercive police behavior, and because the encounter appeared to be

cooperative, the traffic stop had converted into a consensual encounter and,

therefore, it was not impermissibly extended. Further, the evidence presented

indicated that Asghedom had consented to a search of the vehicle, and therefore,

his Fourth Amendment rights were not implicated.


      Further, although the GPS tracking device was affixed on his vehicle

without a warrant, the good-faith exception to the exclusionary rule applied

because law enforcement relied on then-binding appellate precedent.

                                 (3) Due Process Violation

      We review de novo an alleged violation of Brady v. Maryland, 373 U.S. 83,

83 S. Ct. 1194, 10 L. Ed.2d 215 (1963). Wright v. Hopper, 169 F.3d 695, 701

(11th Cir. 1999). A defendant’s due process rights are violated when the

prosecution suppresses material evidence favorable to the defendant. Brady, 373

U.S. at 87, 83 S. Ct. at 1196-97. To prove a Brady violation, “(1) The evidence at

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issue must be favorable to the accused, either because it is exculpatory, or because

it is impeaching; (2) that evidence must have been suppressed by the State, either

willfully or inadvertently; and (3) prejudice must have ensued.” Allen v. Sec’y,

Fla. Dep’t of Corr., 611 F.3d 740, 745-46 (11th Cir. 2010). The prejudice or

materiality requirement is satisfied if there is a reasonable probability that, if the

evidence had been disclosed to the defense, the ultimate result would have been

different. Id. at 746.

      Asghedom’s Brady rights were not violated, because he cannot show that

there would have been a different result had the evidence been originally disclosed.

Asghedom had the chance to pursue his Fourth Amendment challenge, based on

the GPS and pole camera devices, and there would not have been a different result

had he learned of those devices earlier.

                          (4) Procedural and Substantive Reasonableness

      We review the reasonableness of a sentence under a deferential abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591,

169 L. Ed. 2d 445 (2007). In reviewing for a district court’s abuse of discretion, we

look to both the procedural and substantive reasonableness of the sentence

imposed. Id. at 51, 128 S. Ct. at 597.

      We first ensure that the district court committed no significant procedural

error, such as failing to or improperly calculating the guidelines range, treating the


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Guidelines as if they were mandatory, failing to consider the factors under 18

U.S.C. § 3553(a), selecting a sentence based on clearly erroneous facts, or failing

to explain the chosen sentence adequately, including an explanation for deviating

from the guidelines range. Id.

      Regarding substantive reasonableness, we review the sentence in light of the

totality of the circumstances. Id. The party who challenges the sentence bears the

burden to show that the sentence is unreasonable in light of the record and the

§ 3553(a) factors. United States. v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

The district court must impose a sentence “sufficient, but not greater than

necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including

the need to reflect the seriousness of the offense, deter criminal conduct, and

protect the public from the defendant’s future criminal conduct. See 18 U.S.C.

§ 3553(a)(2). In imposing a particular sentence, the court must also consider the

nature and circumstances of the offense, the history and characteristics of the

defendant, the kinds of sentences available, the applicable guideline range,

pertinent policy statements, the need to avoid unwarranted sentencing disparities,

and the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).

      District courts are not required to conduct an accounting of every factor and

explain the role each played in the sentencing decision. United States v. Robles,

408 F.3d 1324, 1328 (11th Cir. 2005). Further, the weight given to any specific


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factor is committed to the sound discretion of the district court. United States v.

Dougherty, 754 F.3d 1353, 1361 (11th Cir. 2014). However, “[a] district court

abuses its discretion when it (1) fails to consider relevant factors that were due

significant weight, (2) gives significant weight to an improper or irrelevant factor,

or (3) commits a clear error of judgment in considering the proper factors.” United

States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010)(en banc)(quotation omitted).

Moreover, a district court’s unjustified reliance on any one factor may be a

symptom of an unreasonable sentence. United States v. Crisp, 454 F.3d 1285, 1292

(11th Cir. 2006).

      First, Asghedom’s sentence was procedurally reasonable because the court

was permitted to consider his history and characteristics, and the evidence of other

criminal acts he was involved in was relevant to that inquiry. Second, his sentence

was substantively reasonable because the district court based its upward variance

on Asghedom’s involvement in a drug conspiracy, his disregard of the purpose of

jail, and the fact that he gave law enforcement a fake name, and the weight given

to any of the § 3553 factors is within the discretion of the district court.

      AFFIRMED.




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