                                   NOT FOR PUBLICATION
                                    File Name: 07a0699n.06
                                   Filed: September 26, 2007

                                      NOs. 06-5159; 06-5161

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES,

       Plaintiff-Appellee/Cross-Appellant,
                                                               ON APPEAL FROM THE
v.                                                             UNITED STATES DISTRICT
                                                               COURT FOR THE MIDDLE
CARL FRAZIER, JR.,                                             DISTRICT OF TENNESSEE

      Defendant-Appellant/Cross-Appellee.
_________________________________________/

BEFORE:        SUHRHEINRICH, CLAY and SUTTON, Circuit Judges.

       SUHRHEINRICH, J.: Defendant-Appellant Carl Frazier, Jr. appeals from his conviction

and sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and

924; possession with the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1); and

carrying a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A).

On appeal, he challenges the district court’s denial of his motion to suppress. The Government cross-

appeals the sentence. For the following reasons, we affirm the denial of the motion to suppress, and

vacate the sentence and remand for resentencing.

                                           I. Background

                                      A. Procedural History

       On October 8, 2003, Frazier was indicted for being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1) (Count 1); possessing cocaine with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1) (Count 2); and for carrying a firearm in relation to a drug

trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3). Frazier initially entered a

guilty plea as to Counts 1 and 2, but, after substituting counsel, withdrew his guilty plea and filed

a motion to suppress. On July 21, 2005, the district court held a suppression hearing, and denied

Frazier’s motion. On January 3, 2006, the first day of trial, Frazier entered a guilty plea to Count 1

and proceeded to trial on Counts 2 and 3. The jury convicted him of both.

                                     B. Suppression Hearing

       At the suppression hearing, Officer Sharraff Mallery testified that he and two other officers

of the Nashville Metropolitan Police Department were on patrol on the evening of October 21, 2002,

in the University Court area of Nashville, a high drug crime area. Mallery and the other officers

were doing a walk-through when Mallery observed Frazier having his hair braided, outside an

apartment building. When Frazier saw the officers, he stood up and hurriedly walked into the

apartment. Mallery asked the woman who was braiding Frazier’s hair if she knew him. She said that

she did not know his name, and that Frazier went inside to use the bathroom. Moments later the

woman’s mother and leaseholder of the apartment, came out of the apartment. Mallery asked her

if she knew Frazier. She stated that she did not. Mallery asked for permission to search her

apartment for contraband and she consented.

       Mallery and the other officers entered the apartment. Frazier was seated on a couch in the

living room. Mallery reported that Frazier appeared nervous, exhibiting heavy breathing. Mallery

pulled out his flashlight and walked around Frazier, looking to see if he had stashed anything.

Mallery observed digital scales protruding from Frazier’s front left pants pocket. At this point

Mallery asked Frazier to stand. When Frazier stood up, Mallery observed a bulge in Frazier’s


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waistband, which Mallery believed to be a gun. Mallery frisked Frazier and found a 9 mm gun.

Mallery took Frazier into custody for carrying a concealed weapon. Mallery then conducted a

complete search of Frazier, recovering three bags of cocaine in both crack and powder, worth

approximately $2500; five empty plastic bags; a cell phone; and $236 in cash. Mallery arrested

Frazier for possession of cocaine with intent to distribute a controlled substance, and advised Frazier

of his Miranda rights. Frazier then admitted that the cocaine and firearm were his and that he had

been selling drugs in the area for six months.

        Frazier’s version of the story differs. He testified that he went into the residence to use the

bathroom, not to avoid the police. He further claimed that he paused to watch a television program

that caught his interest. Frazier admitted being in possession of the scales, but claimed that it was

impossible for the officers to see the scales while he was seated, because he was wearing a shirt that

covered deep pants pockets. Frazier was wearing the same t-shirt and pants at the suppression

hearing, and demonstrated how the scales were covered by his t-shirt. Frazier claimed that the

officers asked him if they could search him and he refused, but was searched anyway. He further

claimed that Frazier retrieved the scales and drugs first, and then handcuffed him and conducted the

pat-down, at which time he found the gun.

        Mallery was recalled after Frazier’s testimony. He testified that Mallery’s t-shirt was behind

the digital part of the scales, that the scales were protruding from Frazier’s left pocket, and that they

were still visible when Frazier stood up. Mallery reiterated that he first noticed the bulge in Frazier’s

waistband when Frazier stood up, and that he did not retrieve the drugs or paraphernalia until after

he had Frazier handcuffed and had retrieved the weapon.




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       Regarding the scales, the district court credited Mallery’s testimony and rejected Frazier’s.

The court found as a matter of fact that (1) Frazier’s t-shirt was behind the top of the digital part of

the scales and that, by Frazier’s own admission, drugs were also in his pockets; (2) because other

items were in Frazier’s pockets, the scale was pushed up in the pocket such that the head of the scale

was protruding from the pocket with the t-shirt behind it; and (3) Mallery then asked Frazier to stand

up, at which point he saw a bulge on the right side of Frazier’s waistband. The district court also

found that (4) Mallery observed Frazier in a high drug crime area; (5) Mallery saw Frazier abruptly

get up and enter the apartment when he saw the officers; (6) the woman braiding Frazier’s hair said

that he went inside to use the bathroom; (7) the leaseholder of the residence told Mallery that she did

not know Frazier and also stated that she thought Frazier was avoiding the police; (8) the leaseholder

gave Mallery verbal consent to enter and search for contraband; (9) Mallery entered the apartment

not more than thirty seconds after Frazier entered; and (10) Frazier was not using the bathroom, and

was seated on the couch, breathing heavily and acting extremely nervous.

       The court concluded as a matter of law that under the totality of the circumstances, Frazier

was “either . . . appropriately arrested for the offense of drug possession and scales–drug

paraphernalia possession before the pat-down was conducted or he was appropriately arrested after

the pat-down when the weapon was found.”

                                           C. Sentencing

       The presentence report noted that Count 2, possession with intent to distribute cocaine, would

be grouped with Count 1, felon in possession of a firearm. See U.S.S.G. § 3D1.2(c) (stating that

counts will be grouped together “when one of the counts embodies conduct that is treated as a

specific offender characteristic in . . . the guideline applicable to another of the counts”). Further,


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Count 2 produced the highest offense level since Frazier qualified as a career offender. See U.S.S.G.

§ 3D1.3(a). The base offense level for Count 2 was 14. See U.S.S.G. § 2D1.1(c)(13) (providing a

base offense level of 14 for “[a]t least 25 G but less than 50 G of Cocaine”). However, because the

instant offense was a controlled substance offense, and because he had two prior felony convictions

of controlled substances offenses, Frazier was a career offender under U.S.S.G. § 4B1.1(a), resulting

in a total offense level of 32. See U.S.S.G. § 4B1.1(b)(C). As to Count 3, the presentence report

noted that under 18 U.S.C. § 924(c), Frazier was required to serve a five year sentence, consecutively

to any other sentence.

       The presentence report calculated Frazier’s criminal history points at 14, establishing a

criminal history category of VI, based on eleven criminal convictions between 1992 and his parole

violation in 2002. The presentence report also reflected that Frazier had been arrested, but not

convicted, for possession of cocaine with intent to distribute while on public housing property, just

one month prior to commission of the instant offenses. Further, Frazier’s criminal history, coupled

with the instant convictions, made him a career offender, also with a category of VI. See U.S.S.G.

§ 4B1.1(b). The resulting sentencing range for Counts 1 and 2 was 210-262 months. See U.S.S.G.

§ 5A. Frazier had no reported history of physical, mental, or emotional problems. Frazier did not

file any objections to the presentence report.

       Frazier’s mother testified at sentencing. Mrs. Frazier held a steady job in the juvenile court

system for thirty-five years. She stated that Frazier lived with her until he was eighteen. The young

Frazier witnessed his father’s physical and mental abuse of her. When Frazier was around nine years

old, Frazier’s father began abusing Frazier as well, repeatedly striking him and calling him “dumb.”

Mrs. Frazier recounted that after one incident, Mr. Frazier was beating Frazier so severely that she


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had to place her son in protective custody for several days. She testified that her son was bright but

performed poorly in school because “he was rebelling against all the chao[s] . . . [a]t home.” On

cross-examination, Mrs. Frazier acknowledged that Frazier did not get into trouble with the law until

several years after he left home.

       Frazier briefly addressed the court. He apologized to his family, and accepted responsibility

for his conduct, stating that he made bad choices in providing for his children.

       The district court adopted the presentence report’s findings of fact and application of the

guidelines. The court initially acknowledged the applicable guidelines range, see 18 U.S.C. §

3553(a)(4), noting that the guidelines recommendation for Count 1 was the statutory maximum of

120 months, and that the guidelines range for Count 2 was 210 to 262 months, and that Count 3 has

a mandatory minimum consecutive of 60 months. (J.A. 243.) See 18 U.S.C. § 924(a)(2) (Count 1);

21 U.S.C. § 841(b)(1)(c) (Count 2); 18 U.S.C. § 924(c)(1)A)(i) (Count 3). The court further noted

that Frazier had a criminal history category of VI, due to both his criminal history and his career

offender status.

       The court then stated that application of the career offender guideline to Frazier was

“draconian,” because he “is basically a street dealer of drugs.” Commenting on the nature of the

offense, see 18 U.S.C. § 3553(a)(1), the district court stated that it did “not [mean] to diminish the

seriousness of dealing drugs on the street at the housing projects with a gun in your pocket. That’s

a very serious offense.” Notwithstanding, the court felt Frazier would not have faced the sentence

recommended by the guidelines had he struck a plea bargain instead of standing trial on Counts 2

and 3. The court stated that adhering to the recommended guidelines range would result “in a

disparate sentence for defendants in a similar position charged with similar crimes with similar


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records,” and that even a sentence at the bottom of the range “would not be in line with other

sentences for this offense, certainly where there’s a plea bargain.” See 18 U.S.C. § 3553(a)(6).

       Reflecting on the nature and characteristics of the defendant, see 18 U.S.C. § 3553(a)(1), the

district court found that Frazier expressed “some remorse and some acceptance” for his actions in

his statements during the sentencing hearing. The court further found that the remorse was not

simply that he got caught, but rather a reflection concerning his three children and family. The

district court acknowledged his mother’s stable influence, but also found “that it would be

impossible for the home situation with the physical and mental abuse of the father . . . to not have

some pretty significant impact upon the direction of Mr. Frazier both in school and in his choices

made in later life when he got out of that situation.” The court therefore found “some mitigating

factors in Mr. Frazier’s background.”

       The district court exercised its independent judgment to impose a reduced sentence. In

setting the sentence on Counts 1 and 2, the court considered what it believed the guidelines range

would have been if Frazier were not a career offender, which it calculated at 46-57 months. Upon

“balancing that [sentencing range] and what the court really does see as a draconian result of the

application of the guidelines for a career offender,” it fixed the sentence on Counts 1 and 2 at 120

months, despite the actual guidelines range of 210-262 months. The court reiterated that a ten-year

sentence on Counts 1 and 2 was sufficient to address the seriousness of the offense conduct, promote

respect for the law, promote deterrence, protect the public, and “avoid unwarranted sentence

disparities among defendants with similar records found guilty of similar conduct or who plead

guilty to similar conduct.” See 18 U.S.C. § 3553(a)(2), (a)(6). The court imposed a mandatory 60

months of imprisonment as to Count 3, to run consecutively to the sentence on Counts 1 and 2.


                                                -7-
                                             II. Analysis

                                              A. Appeal

        We first consider Frazier’s challenge to the district court’s denial of his suppression motion.

In evaluating a district court’s decision on a motion to suppress, we review its factual findings for

clear error, and its legal conclusions as to the existence of probable cause de novo. United States

v. Combs, 369 F.3d 925, 937 (6th Cir. 2004). The evidence must be viewed in the light most

favorable to the government. Id. This Court has also stated that in determining the reasonable

suspicion required for Terry stops, “the district court is at an institutional advantage, having observed

the testimony of the witnesses and understanding local conditions,” and thus, “‘due weight’ should

be given to inferences drawn from facts by ‘resident judges.’” United States v. Atchley, 474 F.3d

840, 847 (6th Cir. ), cert. denied, 127 S. Ct. 2447 (2007) (citations omitted).

        Frazier contends that he had a legitimate expectation of privacy while seated on the couch

inside the leaseholder’s apartment, and that Officer Mallery lacked probable cause or reasonable

suspicion to search him. He claims that nothing occurred prior to the officers’ entry into the

residence that would give rise to a reasonable suspicion of criminal activity. He maintains that mere

nervousness was not enough to generate probable cause, citing United States v. Smith, 263 F.3d 571,

591-92 (6th Cir. 2001) (stating that “there is nothing inherently suspicious about [the defendant’s]

. . . initial nervousness during the traffic stop”); and United States v. Wood, 106 F.3d 942, 948 (10th

Cir. 1997) (stating that “[i]t is certainly not uncommon for most citizens–whether innocent or

guilty–to exhibit signs of nervousness when confronted by a law enforcement officer”). Finally, he

claims that the plain view exception to the warrant requirement does not apply, because it was not

immediately apparent that he had contraband.


                                                  -8-
       Frazier’s arguments must be rejected. First, Frazier had no reasonable expectation of privacy

in the apartment. Under the Fourth Amendment, protections from unreasonable searches and

seizures do not depend upon a property right in the invaded place, but upon whether the person has

a legitimate expectation of privacy in the invaded place. Rakas v. Illinois, 439 U.S. 128, 143-44

(1978); United States v. Abdullah, 162 F.3d 897, 902 (6th Cir. 1998). The question of whether a

defendant has standing to challenge an allegedly illegal search collapses into the substantive issue

of whether the defendant has a legitimate expectation of privacy. United States v. Maddox, 944 F.2d

1223, 1234 (6th Cir. 1991). A legitimate expectation of privacy has two components: (1) whether

the individual, by his conduct, has exhibited an actual, subjective, expectation of privacy, whether

the individual has shown that he seeks to preserve something as private; and (2) whether the

individual’s subjective expectation of privacy is one that society is prepared to recognize as

reasonable, whether the individual’s expectation, viewed objectively, is justifiable under the

circumstances. Smith v. Maryland, 442 U.S. 735, 740 (1979); United States v. King, 227 F.3d 732,

743 (6th Cir. 2000).

       Frazier did not have a proprietary interest in the residence he entered, and both occupants of

the dwelling said they did not know him. Under these circumstances, Frazier’s Fourth Amendment

rights were not violated because he did not have an objectively reasonable expectation of privacy.

See United States v. Berryhill, 352 F.3d 315, 317 (6th Cir. 2003) (holding that “a casual, transient

visitor does not have a reasonable expectation of privacy in his host’s home”); United States v.

McNeal, 955 F.2d 1067, 1070-71 (6th Cir. 1992) (same).          Further, the leaseholder voluntarily

consented to allow the police officers to enter and search her apartment, a fact which Frazier did not

contest. See United States v. Scott, 578 F.2d 1186, 1189 (6th Cir. 1978) (holding that apartment


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lessee, who told officers they could look for the defendant inside, voluntarily consented to initial

search of her apartment). Where valid consent is given to search, the Fourth Amendment’s

prohibition against warrantless entry does not apply. Illinois v. Rodriguez, 497 U.S. 177, 181 (1990).

Thus, Mallery was lawfully present when he observed Frazier and saw the scales.

        Mallery also had reasonable suspicion to search Frazier for weapons based upon the totality

of the circumstances. As the district court found, Frazier was in an area known for drug trafficking,

and he showed an intent to evade police, a belief confirmed by the owner of the apartment. See

Illinois v. Wardlow, 528 U.S. 119, 123-25 (2000) (holding that an individual’s presence in a high

crime area, when coupled with unprovoked flight and nervousness, viewed together, gave officers

reasonable suspicion). Furthermore, once inside the apartment, Mallery observed that Frazier was

not in the bathroom, but sitting on a couch in the living room, acting nervous. And as the district

court further found, Mallery observed in plain view a set of digital scales, which, like firearms, this

Court has long recognized as tools of the drug trade. See United States v. Marino, 658 F.2d 1120,

1123 (6th Cir. 1981); United States v. Goliday, 145 F. App’x 502, 506-07 (6th Cir. 2005); United

States v. Holmes, No. 99-5189, 2000 WL 1033046, at *3 (6th Cir. July 19, 2000) (unpublished) (per

curiam). For this reason, it was also reasonable for Mallery to believe Frazier might be armed. See

United States v. Bohannon, 225 F.3d 615,617-18 (6th Cir. 2000) (holding that it was reasonable for

officers to believe that the suspect was armed and dangerous given his apparent familiarity with a

residence suspected of being a laboratory for an illegal drug operation). Although Frazier disputes

this version of events, we cannot say that the district court’s factual findings were clearly erroneous.1


        1
         Officer Jason Cregan’s testimony does not change this conclusion. Cregan testified that
Mallery asked Frazier to stand up; however, Cregan could not recall when he saw the digital scale
sticking up–when Frazier was sitting down or standing up. Cregan further testified that Mallery next

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       Thus, Mallery did not act unreasonably in asking Frazier to stand up, or in frisking him, even

if he had not observed the bulge, because at this point he had reasonable suspicion based on his

experience to believe Frazier had committed a drug trafficking crime, and that drug dealers are often

armed. See United States v. Strahan, 984 F.2d 155, 156-58 (6th Cir. 1993) (holding that officer was

justified in conducting Terry stop based on information from informant that the defendant was

armed, and upon feeling a bulge in the defendant’s coat pocket, reasonably reached in to search for

a weapon and found cocaine and money). Once Mallery detected the gun, the officers had probable

cause to arrest Frazier for carrying a concealed weapon; and the drugs and additional evidence were

disclosed as a result of a lawful search incident to arrest. As the government points out, a search

incident to arrest is proper prior to formal arrest, so long as the police already have probable cause

prior to the search, and a formal arrest follows closely on the heels of the search. See United States

v. Montgomery, 377 F.3d 582, 586 (6th Cir. 2004) (citing, inter alia, Rawlings v. Kentucky, 448 U.S.

98, 110-11 n.6 (1980)).

               In sum, the court did not err in denying the motion to suppress.

                                         B. Cross-Appeal




placed Frazier under arrest, then retrieved the scales, and then recovered the handgun. In his written
report, Cregan indicated that Frazier was seated and when he stood up a digital scale was sticking
out of his left pocket. Cregan stressed on cross-examination that the report did not state when he
first observed the scale. Cregan acknowledged that it was possible that he saw the scale when
Frazier stood up, but that he simply did not remember. As noted, the district court credited Mallery’s
version of events, and found that Cregan’s testimony was consistent with Mallery’s and that any
inconsistency in the incident report was not material. The district court’s ring-side perception is
entitled to “due weight.” See Atchley, 474 F.3d at 847. In any event, Frazier does not rely on
Cregan’s testimony in his argument on appeal; indeed he does not even mention it.

                                                -11-
        The Government asserts that the discretionary sentence2 imposed by the district court with

respect to Counts 1 and 2 was unreasonable because it (1) failed to give due consideration to the

applicable advisory guidelines, (2) was based on facts which were not established or supported by

sufficient evidence, and (3) failed to give a balanced consideration to statutory sentencing factors.

       United States v. Booker, 543 U.S. 220 (2005) requires appellate courts to review sentences

for “reasonableness,” which includes both procedural and substantive components. See United

States v. Davis, 458 F.3d 491, 495 (6th Cir. 2006), petition for cert. filed, (U.S. Nov. 13, 2006) (No.

06-7784).3 A sentence may be procedurally unreasonable if the district court fails to consider the

applicable guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a).

United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006).4


       2
         After Booker there are two types of departures: (1) a departure authorized by the Sentencing
Guidelines under § 5, Part K; or (2) a non-guidelines departure based on application of the factors
set forth in § 3553(a), also known as a variance. Rita v. United States, 127 S. Ct. 2456, 2461 (2007);
United States v. Booker, 543 U.S. 220, 259-60 (2005); United States v. Husein, 478 F.3d 318, 329
(2007); United States v. Cousins, 469 F.3d 572, 577 (6th Cir. 2006). The district court’s departure
in this case was based on § 3553(a) factors and is therefore a variance.
       3
         The border between factors considered substantive and those considered procedural can be
“blurry if not porous.” United States v. Liou, – F.3d –, No. 06-4405, 2007 WL 2066854, at *3 (6th
Cir. July 20, 2007) (citation omitted).
       4
         Although the guidelines are advisory after Booker, district courts are still required to
consider and calculate the correct advisory guidelines range. See United States v. Booker, 543 U.S.
220, 259-60 (2005) (“The Act nonetheless requires judges to consider the Guidelines ‘sentencing
range established for . . . the applicable category of offense committed by the applicable category of
defendant,’ § 3553(a)(4)(A).”); United States v. Lanesky, — F.3d —, No. 05-2228, 2007 WL
1989023, at *2 (6th Cir. July 11, 2007); United States v. Cage, 458 F.3d 537, 540 (6th Cir. 2006).
As the Government points out, Section 3553(a) directs the district court to consider (1) the offense
and offender characteristics; (2) the need for a sentence to reflect the basic aims of sentencing,
namely (a) just punishment, (b) deterrence, (c) incapacitation, (d) rehabilitation; (3) the kinds of
sentences available; (4) the sentencing Guideline range; (5) policy statements, (6) the need to avoid
unwarranted disparities; and (7) the need to provide restitution to the victims. The provision also
instructs the district court to impose “a sentence sufficient, but not greater than necessary, to comply

                                                 -12-
       Even if a sentence is calculated properly, “i.e. the Guidelines were properly applied and the

district court clearly considered the § 3553(a) factors and explained its reasoning,” United States v.

Husein, 478 F.3d 318, 332 (6th Cir. 2007) (internal quotation marks and citation omitted), a sentence

may nonetheless be substantively unreasonable. Id. A sentence may be considered substantively

unreasonable if the district court selects the sentence arbitrarily, bases the sentence on impermissible

factors, fails to consider pertinent § 3553(a) factors, or gives an unreasonable amount of weight to

any pertinent factor. Id. (citation omitted).

                                   1. Procedural Reasonableness

       The district court did not utilize accurate guidelines considerations in attempting to balance

the minimum of the advisory range of 210 months, and what the court believed Frazier would have

faced if he did not qualify as a career offender, assuming it was 46-57 months. Using those ranges,

the court fixed the sentence at 120 months. In this analysis, the court relied upon the non-career

offender guidelines for Count 2, the drug possession charge. However, the court failed to calculate

and consider the greater applicable guidelines range Frazier would have faced on Count 1, the felon

in possession of a firearm, but for his career offender status. That charge, which is governed by

U.S.S.G. § 2K2.1(a)(2), has a base offense level of 24, since Frazier had previously been convicted

of two felony drug offenses. With a criminal history of VI, Count 1 would have carried a sentencing

range of 100-125 months–double the range the district court used. Thus, at a minimum, this matter

must be remanded for resentencing under the correct applicable guidelines range.

                                 2. Substantive Unreasonableness




with the purposes set forth in” § 3553(a)(2). 18 U.S.C. § 3553(a).

                                                 -13-
       The Government also contends that the sentence imposed was substantively unreasonable.

We decline to address these arguments at this juncture, however, because as noted the matter must

be remanded for recalculation of the correct guidelines range. Upon remand, the district court might

consider resentencing after the United States Supreme Court decides United States v. Gall, 446 F.3d

884 (8th Cir. 2006), cert. granted, 127 S. Ct. 2933 (June 11, 2007), and United States v. Kimbrough,

174 Fed. App’x 798 (4th Cir. 2006) (per curiam), cert. granted, 127 S. Ct. 2933 (June 11, 2007).

                                         III. Conclusion

       For the foregoing reasons, we AFFIRM the district court’s denial of Frazier’s motion to

suppress, and VACATE Frazier’s sentence and REMAND for resentencing.




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