                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT            FILED
                           ________________________ U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                 No. 04-12600                     APRIL 19, 2005
                             Non-Argument Calendar              THOMAS K. KAHN
                           ________________________                  CLERK


                        D. C. Docket No. 03-00039-CR-1-2

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

      versus

PEDRO BENITEZ-MACEDO,

                                                              Defendant-Appellant.

                            _______________________

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

                                 (April 19, 2005)

Before BIRCH, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

      Pedro Benitez-Macedo appeals his 33-month sentence, imposed pursuant to

his guilty plea, for being an illegal alien in possession of firearms, in violation of

18 U.S.C. § 922(g)(5). On appeal, Benitez-Macedo argues that the district court
erred by (1) denying his motion to suppress evidence seized during a warrantless

search of his car, and (2) enhancing his offense level by four, pursuant to U.S.S.G.

§ 2K2.1(b)(5), for possessing a firearm during the commission of another felony

offense.1

        1
         Benitez-Macedo also argues, for the first time on appeal, that the § 2K2.1(b)(5)
enhancement violated Blakely v. Washington, 542 U.S. --, 124 S. Ct. 2531, 159 L. Ed. 2d 403
(2004). After the filing of the briefs in this case, the Supreme Court extended Blakely to the Federal
Sentencing Guidelines. See United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005). Because
he did not raise this issue in the district court, he must show plain error to warrant reversal on this
basis. We will correct plain error only where (1) there is an error; (2) the error is plain or obvious;
(3) the error affects the defendant’s substantial rights in that it was prejudicial and not harmless; and
(4) the error seriously affects the fairness, integrity, or public reputation of a judicial proceeding.
See United States v. Rodriguez, __ F.3d __, 2005 WL 272952, at *6 (11th Cir. Feb. 4, 2005); see
also Booker, 125 S.Ct. at 769 (stating that the plain error rule applies and will prevent a new
sentencing hearing from being necessary in every case on direct appeal involving a pre-Booker
sentence).

        We have made clear that a defendant who fails to show that there is a reasonable probability
of a different sentence if the Guidelines had been applied in an advisory fashion cannot satisfy the
third prong of plain-error review. See United States v. Rodriguez, __ F.3d __, 2005 WL 272952, at
*9 (11th Cir. Feb. 4, 2005); see also United States v. Duncan, 2005 WL 428414, at *1 (11th Cir.
Feb. 24, 2005) (applying Rodriguez and finding that defendant did not meet his burden of showing
Booker affected his substantial rights). To establish that the error affected his substantial rights,
Benitez-Macedo’s burden is to show that the error “‘must have affected the outcome of the district
court proceedings.’” Rodriguez, 2005 WL 272952, at *7 (quoting United States v. Cotton, 535 U.S.
625, 632, 122 S.Ct. 1781, 1786, 152 L.Ed.2d 860 (2002) (citation omitted)). “The standard for
showing that [an effect on the outcome] is the familiar reasonable probability of a different result
formulation, which means a probability “‘sufficient to undermine confidence in the outcome.’”
Rodriguez, 2005 WL 272952, at *7 (quoting United States v. Dominguez Benitez, --- U.S. ----, 124
S. Ct. 2333, 2340, 159 L. Ed. 2d 157 (2004)).

         Like in Rodriguez, Benitez-Macedo’s Blakely (now Booker) claim consists solely of arguing
that based on the Blakely decision alone, he is entitled to a new sentencing hearing. Simply put, the
fact of the Blakely and intervening Booker decisions is insufficient to satisfy plain error, as even the
Supreme Court recognized in Booker when it observed that not every appeal will lead to a new
sentencing hearing. See 125 S.Ct. at 769 (“That fact [the retroactive application of the decision to
cases on direct review] does not mean that we believe that every sentence gives rise to a Sixth
Amendment violation. Nor do we believe that every appeal will lead to a new sentencing hearing.”).
We find no plain error based on Blakely or Booker in this case.

                                                   2
      We review a district court’s denial of a motion to suppress under a mixed

standard of review, reviewing the court’s findings of fact for clear error and its

application of law to the facts de novo. See United States v. Gil, 204 F.3d 1347,

1350 (11th Cir. 2000). We review purely legal questions concerning use of the

Sentencing Guidelines de novo, United States v. Williams, 340 F.3d 1231, 1234 n.

8 (11th Cir. 2003), and a sentencing court’s factual findings for clear error, see

United States v. Jackson, 276 F.3d 1231, 1233 (11th Cir. 2001).          After the

Supreme Court’s recent decision in United States v. Booker, __ U.S. __, 125 S.Ct.

738 (2005), we review a district court’s sentencing scheme for reasonableness.

      Upon thorough review of the record, as well as careful consideration of the

parties’ briefs, we find no reversible error and affirm.

      The relevant facts are straightforward.        On August 19, 2003, Benitez-

Macedo and co-defendant Silvano Garcia-Rebollar were indicted with one count of

being illegal aliens in the United States, aided and abetted by one another, who

knowingly possessed two firearms, Smith & Wesson (models 639 and 3904) nine-

millimeter semi-automatic handguns, in violation of 18 U.S.C. § 922(g)(5). After

pleading not guilty, Benitez-Macedo filed a motion to suppress evidence seized

during a traffic stop of his car, arguing that officers did not have reasonable




                                           3
suspicion to perform a Terry2 stop because the officers relied solely on an

anonymous tip.

      The government responded that: (1) the stop of Benitez-Macedo’s vehicle

was permissible under Terry because the officers had reasonable suspicion, based

on a radio dispatch about a shooting at a nearby apartment building, which

included a description of Benitez-Macedo’s truck, including its license plate

number, and because the driver was alcohol-impaired; and, alternatively, (2) the

stop was permissible based on probable cause because Benitez-Macedo had

violated a Georgia traffic law.

      The magistrate judge conducted an evidentiary hearing on the motion to

suppress. Sergeant John Robertson of the Gainesville Police Department (“GPD”)

testified that at around 2:00 a.m. on April 4, 2003, while on routine patrol and

accompanied by a police trainee, he heard, over the police radio, a report that shots

had been fired into a nearby occupied apartment. The report contained a general

description of one of the persons inside the vehicle and a description of the vehicle

-- a 1995 Chevrolet Silverado pickup with an extended cab that was burgundy or

dark in color and had a Georgia license plate number 4592AHK.

      On the police radio, Officer Brad Baker called in and indicated that he could



      2
          See Terry v, Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

                                                4
see a vehicle that met the description in a location less than a mile away from the

apartment where the shooting occurred. At that point, Sergeant Robertson told

Baker to “stand by” because he (Robertson) was about one minute away. Sergeant

Robertson then proceeded to pull up behind Benitez-Macedo’s vehicle, which was

“halfway across the stop bar sitting at a red light,” and confirmed the license plate

number with dispatch. Officer Baker indicated over the radio that the vehicle had

been sitting at the traffic light while the lights had cycled from green to red twice.

      Sergeant Robertson testified that just after he had confirmed a match of the

vehicle, the vehicle began to pull away and he decided to conduct a “felony traffic

stop based on the call that had been given out.” Sergeant Robertson explained that

he performed this type of stop -- which consists of safety measures where the

officer does not just pull the vehicle over and walk up to the window of the

stopped car -- based on officer safety concerns prompted by the radio-call

information that the occupants of the car were armed. Sergeant Robertson turned

on his police blue light and Benitez-Macedo pulled over within approximately an

eighth of a mile. Thereafter, Sergeant Robertson and Officer Baker pulled up to

the stopped vehicle, at which point flood lights and take-down lights were

activated to illuminate the inside of the truck.      The three officers (Robertson,

Baker, and the trainee officer) exited their vehicles, drew their guns, and called out



                                           5
toward the truck: “driver, stop the car, place it in park, drop the keys out the

window, keep your hands up where we can see them.”

      The occupants did not respond to the police command for approximately a

minute and a half, during which time the brake lights remained illuminated,

indicating to Sergeant Robertson that the driver’s foot was resting on the brake

pedal. The officers repeated the command in Spanish, and Sergeant Robertson

noticed that both the driver’s and passenger’s attention was drawn to the center

console of the vehicle, and their hands were not visible to the officers.     As

Robertson described it at the suppression hearing, “[t]here was a lot of movement

as well as non-compliance with keeping their hands where we could see them.” At

that point, Robertson had “safety concerns as to what they may be doing in the

vehicle.”

      After about a minute and a half, the defendants complied with the command

and both were removed from the vehicle, patted down, handcuffed, and placed in

separate police cars. After removing the defendants, Sergeant Robertson returned

to the stopped vehicle to “make sure there was no other occupants hidden inside

the vehicle,” and approached from the passenger side to “clear the vehicle.” Upon

approaching the vehicle, Robertson noticed a spent shell casing for a nine-

millimeter firearm lying on the ground outside the passenger-side door, which had



                                        6
remained open after Garcia-Rebollar got out. Through the open door, Sergeant

Robertson observed several other casings on the passenger-side floor of the

vehicle.

      After observing the shells, the officers “began a quick frisk search of the

vehicle” and Sergeant Robertson looked into the center console where the

occupants had earlier been focused and found two nine-millimeter firearms. One

firearm was slide-locked to the rear, indicating that it had been fired until empty,

and the other firearm was loaded to capacity with the hammer cocked. There also

was a half-empty box of shells inside the console along with one white glove.

      The magistrate judge issued a Report and Recommendation (“R&R”) in

which she recommended denying the motion to suppress because either the officers

had a reasonable and articulable basis to make an investigatory Terry stop of the

pick-up truck based on the call reporting shots fired at the nearby apartment

building, or, irrespective of the existence of Terry reasonable suspicion, the

officers had probable cause to stop the vehicle for violations of two Georgia

statutes: O.C.G.A. §§ 40-6-20 (requiring drivers to obey the instructions of a traffic

control device) and 40-6-21 (requiring drivers to stop at a stop line when facing a

circular red signal). Additionally, the magistrate judge found that the search of the

vehicle was reasonable for the protection of the officers’ personal safety and under



                                          7
the well-settled automobile exception to the warrant requirement.

      Benitez filed objections to the R&R, arguing, inter alia, that (1) O.C.G.A.

§ 40-6-21(a)(3)(A) could not form the basis for probable cause because the officer

admitted he did not rely on a violation of that statute to make the stop;

(2) O.C.G.A. § 40-6-21(a)(3)(A) did not apply to a conventional traffic light that

has the capability to display either a red, yellow, or green signal; (3) the

government did not prove that O.C.G.A. § 40-6-20(a) applied because it did not

prove that there was “an official traffic-control device” at the intersection of the

stop; and (4) the amount of information the officers had before them at the time of

the traffic stop was an insufficient basis upon which to perform a Terry stop.

      The district overruled Benitez-Macedo’s objections. The district court found

that the officers has probable cause to stop the vehicle based on Benitez-Macedo’s

violation of O.C.G.A. § 40-6-21(a)(3)(A), which required Benitez-Macedo to stop

“at a clearly marked stop line.” The district court observed that Benitez-Macedo

violated this law by stopping “over the line,” and thus the officer had probable

cause to initiate the traffic stop.   Based on this conclusion, the court found it

“unnecessary to decide if th[e] seizure was also valid based on reasonable

suspicion developed from the 911 information.” Benitez-Macedo then entered a

conditional guilty plea, reserving the right to appeal the district court’s denial of



                                          8
his motion to suppress.

      At sentencing, the Presentence Investigation Report (“PSI”) assigned a base

offense level of 14, pursuant to U.S.S.G. § 2K2.1, and recommended the following

adjustments: a 2-level enhancement based on the fact that one of the firearms had

the serial number removed, U.S.S.G. § 2K2.1(b)(4); a 4-level enhancement for

Benitez-Macedo’s possession of a firearm in connection with another felony

offense (the aggravated assault resulting from the shots being fired into the

apartment), U.S.S.G. § 2K2.1(b)(5); and a 3-level reduction for acceptance of

responsibility, U.S.S.G. §§ 3E1.1(a) and (b). Based on an adjusted offense level of

17 and a criminal history category of II, the sentencing guideline range was 27 to

33 months. Benitez-Macedo objected to the PSI, arguing, in relevant part, that he

should not have received the § 2K2.1(b)(5) enhancement because it was not he but

his co-defendant who shot the firearm and because shooting into an apartment is

not a felony under Georgia law.

      In response to Benitez-Macedo’s objections, at the sentencing hearing, the

government argued that the shooting into the apartment was both a joint action on

Benitez-Macedo’s and his co-defendant’s parts and a felony offense in Georgia,

namely criminal damage to property in the first degree (in a manner so as to

endanger human life). In support of its contention that the shooting was a joint



                                        9
action for sentencing purposes, the government presented the testimony of FBI

Special Agent John Houston who had interviewed           Garcia-Rebollar after the

shooting. Garcia-Rebollar stated that he and Benitez-Macedo “drank some beers

that night and wanted to look for an individual that owed them money, and they

intended on scaring the individual.” Both men were armed with guns when they

proceeded, at 2:00 a.m., traveling in Benitez-Macedo’s truck, to look for the person

who owed them both money.

      A second government witness, GPD Detective Jay Parrish, had responded to

the scene of the shooting and found eight shell casings on the ground outside of the

sliding glass door of the apartment, which had been shattered. He testified that all

eight bullets had gone through the sliding glass door into the targeted apartment.

Three of the bullets had continued through the targeted apartment and into the

apartment immediately behind it. The apartment behind the targeted apartment

was inhabited by two women. One bullet had gone through both apartments and

come out on the other side of the building. Three rounds had gone into the ceiling

of the targeted apartment while another had come into the apartment at waist or

chest level. When Detective Parrish arrived, he found several people present in the

targeted apartment, including a mother and her children who had been asleep in the

apartment.



                                        10
       The district court found that the two defendants were on a “joint mission”

and several of the bullet holes appeared to be approximately waist-high and fired at

2:00 a.m., a time when most people are home. The district court overruled the

objection to the § 2K2.1(b)(5) enhancement and sentenced Benitez to a 33-month

term of imprisonment, followed by a 3-year term of supervised release.                          This

appeal followed.

       First, Benitez-Macedo argues the district court erred by finding that there

was probable cause to arrest him when he was stopped in a vehicle on top of a line

when O.C.G.A. § 40-6-21(a)(3)(A) requires only that vehicles stop “at” the line.

Because we conclude that the officers were justified in stopping Benitez-Macedo’s

car based on the lesser standard of reasonable suspicion.3 Cf. United States v.

Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989) (noting that

reasonable suspicion is “considerably less than proof of wrongdoing by a

preponderance of the evidence” and less than probable cause, which is “‘a fair

probability that contraband or evidence of a crime will be found.’”(citation

omitted)).

       The police may stop and briefly detain a person to investigate a reasonable

suspicion that he is involved in criminal activity, even though probable cause is


       3
         It is well-settled that we can affirm the district court’s decision on “any ground that finds
support in the record.” United States v. Mejia, 82 F.3d 1032, 1035 (11th Cir. 1996).

                                                 11
lacking. United States v. Williams, 876 F.2d 1521, 1523 (11th Cir. 1989). To

justify pulling a vehicle over for a Terry stop, the police officer must “be able to

point to specific and articulable facts which, taken together with rational inferences

from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88

S.Ct. at 1880. “The ‘reasonable suspicion’ must be more than an ‘inchoate and

unparticularized suspicion or hunch.’” Id. Rather, the Fourth Amendment requires

that the police officer articulate facts that provide some minimal, objective

justification for the stop. Williams, 876 F.2d at 1524. In reviewing the totality of

the circumstances facing an officer at the time of the stop, we give due weight to

the officer’s experience. United States v. Briggman, 931 F.2d 705, 709 (11th Cir.

1991).

         After an evidentiary hearing, the magistrate judge found the officers had a

sufficiently reasonable and articulable suspicion to conduct a Terry stop. We too

are satisfied that the information known to the police -- the fact that the vehicle

matched the description given in the call, including the make, model, and license

number; the vehicle was spotted at 2:00 a.m. less than a mile from the scene where

the shots were fired and within minutes of the “shots fired” report; and the vehicle

remained stopped at the intersection, across the stop bar, while the traffic lights

cycled twice from green to red -- was sufficiently “specific and articulable” to



                                          12
justify the stop. See Terry, 392 U.S. at 21, 88 S.Ct. at 1880. The underlying

information contained more than a “bare-boned tip[] about guns,” as Benitez-

Macedo suggests. Cf. Florida v. J.L., 529 U.S. 266, 273, 120 S. Ct. 1375, 1380,

146 L. Ed. 2d 254 (2000) (holding anonymous tip that described only subject’s

“readily observable location and appearance . . . does not show that the tipster has

knowledge of concealed criminal activity.”).             Simply put, the information the

officers had was more than an “inchoate and unparticularized suspicion or hunch.”

Cf. United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1

(1989).     Based on the experience of the officers and the “totality of the

circumstances,” the officers had the requisite “particularized and objective basis”

for suspecting legal wrongdoing and making a Terry stop. Accordingly, we affirm

the denial of the motion to suppress.4

       We likewise are unpersuaded by Benitez-Macedo’s sentencing challenge.

Section 2K2.1(b)(5) states that a defendant’s offense level should be increased by

four levels if, inter alia, “the defendant used or possessed any firearm . . . in

connection with another felony offense.”            U.S.S.G. § 2K2.1(b)(5).         “[A]nother

felony offense” includes any state offense that is “punishable by imprisonment for



       4
         Benitez does not contest the magistrate judge’s findings regarding the subsequent search
other than to argue that it was invalid because the stop was not supported by probable cause or
reasonable suspicion.

                                               13
a term exceeding one year, whether or not a criminal charge was brought.”

U.S.S.G. § 2K2.1, comment. (n.7). Although § 2K2.1(b)(5) does not define the

phrase “in connection with,” we read this phrase expansively. United States v.

Rhind, 289 F.3d 690, 695 (11th Cir. 2002).

       Under Georgia law, a person commits the offense of criminal damage to

property in the first degree when he “knowingly and without authority interferes

with any property in a manner so as to endanger human life.” O.G.C.A.

§ 16-7-22(a). This is a felony offense because a “person convicted of the offense

of criminal damage to property in the first degree shall be punished by

imprisonment for not less than one nor more than ten years.” Id. § 16-7-22(b).5

On this record, it is clear that under Georgia law, shooting into an occupied

apartment at 2:00 a.m., including firing some shots at waist-level, is a felony

within the meaning of § 16-7-22(a). 6 Accordingly, the district court did not err by



       5
         The Georgia Supreme Court has interpreted the phrase “so as to endanger human life,” and
upheld a conviction under this section where the evidence established that a defendant:

           . . . fired a gun at night into an inhabited dwelling where residents were likely to
           be present, thus recklessly endangering the life of another. The fact that the
           occupants of the house were not physically present does not lessen the risk of
           danger to others or the recklessness of his behavior.

Carthern v. State, 529 S.E.2d 617, 620 (Ga. 2000).
       6
          To the extent Benitez-Macedo suggests the district court’s factual finding that he was
involved in a “joint enterprise” with Garcia-Rebollar was clear error, in light of the government’s
unrebutted evidence at sentencing, we are unpersuaded.

                                                   14
enhancing the base offense level four additional levels for possession of weapons

in connection with another felony offense, pursuant to U.S.S.G. § 2K2.1.

      AFFIRMED.




                                        15
