                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
___________

No. 04-3079
___________

United States of America,              *
                                       *
              Appellee,                *
                                       *
      v.                               *
                                       *
Ramiro R. Urbina,                      *
                                       *
              Appellant.               *

__________                                 Appeal from the United States
                                           District Court for the
No. 04-3142                                Western District of Missouri.
__________

United States of America,              *
                                       *
              Appellant,               *
                                       *
      v.                               *
                                       *
Ramiro R. Urbina,                      *
                                       *
              Appellee.                *
                                  ___________

                             Submitted: June 23, 2005
                                Filed: December 9, 2005
                                 ___________

Before ARNOLD, McMILLIAN, and COLLOTON, Circuit Judges.
                           ___________
COLLOTON, Circuit Judge.

       Following a jury trial, Ramiro Urbina was convicted of one count of possession
with intent to distribute cocaine in violation of 21 U.S.C. § 841. The jury also found
that the government proved two counts of criminal forfeiture, pursuant to 21 U.S.C.
§ 853. The district court sentenced Urbina to 300 months’ imprisonment. He appeals
his conviction and sentence, and the government cross-appeals the sentence. We
affirm the conviction and remand the case for resentencing in light of United States
v. Booker, 125 S.Ct. 738 (2005).

                                            I.

       Urbina’s first point on appeal challenges the district court’s denial of his motion
to suppress evidence. We relate the facts as found by the district court, adopting the
report and recommendation of a magistrate judge. On April 1, 2003, at approximately
10 a.m., Missouri State Highway Patrolman Corporal Thomas Hall observed a gold
pickup truck pulling a horse trailer on I-44 in Lawrence County, Missouri. Hall
stopped the truck after observing the vehicle cross the center line of traffic on at least
four occasions. Corporal Gary Braden, also of the Highway Patrol, arrived
immediately after the stop. Hall asked Urbina, the driver, if the wind was blowing his
vehicle over the line, and Urbina replied, “It may be, but I’m tired too.” Urbina told
the officer that he was en route to Dayton, Ohio, to pick up a horse for a friend.

       Hall noticed an auxiliary gas tank in the back of the truck. He asked Urbina the
purpose of the tank, and Urbina responded that he used it as an extra tank and hooked
it up to the battery. Hall saw no wiring connecting the tank to the battery.

       Urbina was unable to produce a driver’s license, but did offer Hall an Oregon
identification card. Hall asked Urbina to accompany him back to the patrol car, where
he determined that the Oregon driver’s license was suspended. While in the patrol

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car, Urbina said that the truck belonged to his brother-in-law, but that he, Urbina,
owned the trailer and had purchased it specifically for this trip. Urbina acknowledged
that he did not own any horses, and then said, contradicting his earlier explanation,
that he was going to Ohio to purchase an automobile. Hall asked Urbina if there was
anything illegal in the truck, and Urbina said no. Hall then asked for consent to search
the truck, and Urbina agreed. A drug dog was in the back seat of the patrol car during
the stop, but it was never used to investigate the vehicle, because Urbina consented
to the search.

       After examining the horse trailer and the cab of the truck without finding
contraband, Hall and Braden examined the bed of the truck. Around the auxiliary
tank, they observed scratch marks that appeared fresh. Hall also testified that the tank
was not fastened to the bed of the truck. The officers tipped the tank and heard not
the sloshing sound one might expect from gasoline, but rather a dull thud, as if
nonmetallic objects were moving around inside. Hall noticed that on the bottom of
the tank, there was fresh paint and putty surrounding a portion of the tank that had
been cut out and then reattached. Hall stated that in his experience, there normally is
no opening on the bottom of an auxiliary gas tank.

      Both troopers had been involved in stops in which narcotics had been hidden
in auxiliary gas tanks, and their suspicions were raised by what they had seen of the
tank on Urbina’s vehicle. Braden then kicked in the access panel on the tank with his
boot and observed six bundles in the tank. He pried open the tank further with a
screwdriver and discovered that the bundles contained cocaine.




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                                           II.

                                           A.

       Urbina first argues that he did not voluntarily consent to a search. The district
court recognized that Urbina had raised this issue in his motion to suppress, and
addressed the issue, noting that it was undisputed that Urbina answered “yes” when
asked for consent and finding no evidence of any coercion by the troopers or the
presence of the drug dog. We thus reject the government’s contention that the issue
is not preserved, and we review the district court’s determination that consent was
voluntary for clear error. United States v. Poulack, 236 F.3d 932, 936 (8th Cir. 2001).

       To determine if consent is freely and voluntarily given, we consider the totality
of the circumstances. Schneckloth v. Bustamante, 412 U.S. 218, 227 (1973).
Characteristics of a defendant relevant to the voluntariness of his consent include (1)
his age, (2) his general intelligence and education, (3) whether he was intoxicated or
under the influence of drugs when he consented, (4) whether he consented after being
informed of his right to withhold consent or of his Miranda rights, and (5) whether,
because he had been previously arrested, he was aware of the protections afforded to
suspected criminals by the legal system. United States v. Chaidez, 906 F.2d 377, 381
(8th Cir. 1990). Urbina also points to the factors we have cited for use in examining
the environment in which consent was given: whether the defendant (1) was detained
and questioned for a long or short time, (2) was threatened, physically intimidated, or
punished by police, (3) relied upon promises or misrepresentations made by the
police, (4) was in custody or under arrest when the consent was given, (5) was in a
public or secluded place, or (6) either objected to the search or stood by silently while
the search occurred. Id.

      Urbina argues that the circumstances surrounding his consent undermine its
voluntariness. He claims that Hall did not advise him of his right not to consent, that

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he was taken to a relatively secluded place (the patrol car) for no reason, that a
German Shepherd was in the back seat of the patrol car, that Hall told Urbina neither
that he suspected he was a drug courier nor why he wanted to search the vehicle, that
Urbina was not requested to aid the search, that Urbina did not assist the search, that
Urbina was not told that he could revoke his consent at any time, and that there was
no visible evidence of contraband.

       We conclude that adequate evidence supports the district court’s conclusion that
Urbina’s consent was voluntarily given, and we see no convincing evidence to the
contrary. The interior of a police patrol car on the shoulder of a public highway
during the day is not a secluded location. Chaidez, 906 F.2d at 382; see also United
States v. Mancias, 350 F.3d 800, 806 (8th Cir. 2003). The district court specifically
found that there was no evidence of any coercion by the presence of the dog, and we
do not believe that the mere presence of a dog in the back seat of the patrol car
requires a finding that Urbina was coerced into giving consent. See United States v.
Malone, 886 F.2d 1162, 1165-66 (9th Cir. 1989). The lack of visible evidence of
contraband and Hall’s failure to inform Urbina of his suspicions are not relevant to
determining whether the totality of the circumstances indicates that consent was
voluntary.

       Even if Urbina was unaware of his right to withhold or revoke consent, this is
another case in which “other considerations set out in Chaidez overwhelmingly favor
the district court’s finding” that Urbina’s consent was voluntary. United States v.
Thompson, 408 F.3d 994, 996 (8th Cir. 2005). Urbina is an adult with a lengthy
criminal record. The traffic stop had lasted only a few minutes before Hall asked
Urbina for consent to search. There is no evidence that the officer treated Urbina in
anything other than a professional manner. The district court’s finding that Urbina’s
consent was voluntary was not clearly erroneous.




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        Urbina also argues that the evidence should have been suppressed because the
patrolmen exceeded the scope of his consent when they used force to open his
auxiliary gas tank. We measure the scope of consent under the Fourth Amendment
using a standard of objective reasonableness, considering what an objectively
reasonable person would have understood the consent to include. United States v.
Fleck, 413 F.3d 883, 892 (8th Cir. 2005). We believe a reasonable person would have
understood Urbina’s consent to search the vehicle to include consent to examine and
open unlocked containers within the vehicle, see Florida v. Jimeno, 500 U.S. 248,
251-52 (1991), but Urbina suggests that the officers’ efforts to access the interior of
the gas tank went beyond opening a container to the point of destroying it, and that the
latter is outside the scope of an objectively reasonable interpretation of his consent.
See United States v. Alverez, 235 F.3d 1086, 1088-89 (8th Cir. 2000). We need not
resolve this question, because by the time the officers removed the panel, they had
probable cause to search the tank. The sound of objects moving in the tank gave the
officers probable cause to believe that the gas tank contained contraband, and probable
cause is sufficient to justify the warrantless search of an automobile or a container
therein, including the destruction, if necessary, of the container. Id. at 1089.

                                          B.

        Urbina next argues that the district court erred by not granting a mistrial when
the government, in its opening statement, made dramatic reference to Urbina’s flight
from police in a stolen car following his arrest. We recognize the trial court’s broad
discretion in controlling the direction of opening statements and closing arguments,
and we will not reverse that court’s decision absent a showing of abuse of discretion.
United States v. Conrad, 320 F.3d 851, 855 (8th Cir. 2003). In this context, the
district court abuses its discretion if a prosecutor’s improper comments “prejudicially
affected the defendant’s substantial rights so as to deprive the defendant of a fair
trial.” United States v. Hernandez, 779 F.2d 456, 458 (8th Cir. 1985).



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        The record indicates that the district court, in response to Urbina’s motion in
limine, had told the parties off the record at a conference in chambers that it would not
allow the government to discuss certain details of Urbina’s flight. The government
apparently misunderstood the court’s decision and described some details of the flight,
such as the speed of the chase, at the start of its opening statement. Urbina objected.
After a discussion with counsel, the court indicated that it may not have been as
specific about the ruling as it should have been. Urbina moved both for a mistrial and
for a curative instruction to the jury. The district court declined to grant a mistrial but
instructed the jury to disregard the statements. The court also clarified that the
government would be permitted to discuss Urbina’s acquisition of the car and his
flight, but could not talk about the speeds at which Urbina drove during his flight or
mention that he was convicted of fleeing by vehicle and reckless driving in Indiana
state court.

       Assuming, arguendo, that the prosecutor’s comments were improper, Urbina
still must establish that the comments prejudicially affected his substantial rights so
as to deprive him of a fair trial. To determine the effect of alleged prosecutorial
misconduct, we consider the cumulative effect of the misconduct, the strength of the
evidence against the defendant, and the curative actions taken by the district court.
United States v. Flores-Mireles, 112 F.3d 337, 341 (8th Cir. 1997). In this case, the
cumulative effect of the misconduct was minimal. While the prosecutor mentioned
specific details the district court believed he ought not have described, the general
subject of his comments – Urbina’s flight – was deemed admissible by the district
court, and evidence of the flight was introduced in the course of the trial. The
evidence against Urbina was strong: he had six bricks of cocaine concealed in a
container in his truck, he had provided inconsistent stories as to the purpose of his trip
to police, and he agreed to cooperate and arrange a controlled delivery of the cocaine
– cooperation that ended when he fled from the agents escorting him to his
destination. Finally, the district court offered an immediate curative instruction at
Urbina’s request, which “further served to obviate the claimed error.” United States

                                           -7-
v. Guerra, 113 F.3d 809, 816 (8th Cir. 1997). We do not believe the comments, even
assuming they were improper, reasonably could be viewed as having affected the
jury’s verdict. The district court therefore did not abuse its discretion in denying
Urbina’s motion for mistrial.

                                           C.

       Urbina also argues that the district court erred in admitting the government’s
expert testimony regarding his “unknowing courier” defense and repeated testimony
about his flight. We review the district court’s evidentiary rulings for abuse of
discretion. Fleck, 413 F.3d at 890.

       The government presented Agent Mark Hooten of the Drug Enforcement
Administration to testify, inter alia, that in his experience he had never seen a drug
dealer entrust as large a quantity of drugs as were found in Urbina’s auxiliary gas tank
to a courier who was not aware of what he was transporting. Urbina argues that this
evidence was inadmissible under Federal Rule of Evidence 704(b), which prohibits
experts from stating an opinion as to whether the defendant had the requisite mental
state for the crime charged, and that the government improperly sought through this
evidence to establish Urbina’s guilt by showing that his characteristics matched the
profile of a knowing drug courier. See United States v. Vasquez, 213 F.3d 425, 427
(8th Cir. 2000). We recently rejected a similar claim in United States v. Martinez.
358 F.3d 1005, 1010 (8th Cir. 2004), and although the claim in Martinez was
reviewed for plain error rather than for abuse of discretion, we believe the reasoning
dictates the same conclusion here.

      Expert testimony “to the effect that drug traffickers do not typically use couriers
who are unaware they are transporting drugs” is permissible where one theory of the
defense is that the defendant was unaware of the presence of the drugs. Id. (internal
quotation omitted). In this case, one of Urbina’s defenses was that he did not know

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that the cocaine was present in the gas tank. We have also held generally that “[a]
district court has discretion to allow law enforcement officials to testify as experts
concerning the modus operandi of drug dealers in areas concerning activities which
are not something with which most jurors are familiar.” United States v. Brown, 110
F.3d 605, 610 (8th Cir. 1997) (internal quotation omitted). And “a court can allow
opinion testimony if the expert’s specialized knowledge is helpful to the jury to
understand the evidence or determine a fact in issue, even if the opinion embraces an
ultimate issue to be decided by the jury.” Id. In this case, the district court explicitly
warned that it would sustain Urbina’s objection if the prosecution attempted to elicit
the expert’s opinion on the ultimate issue of Urbina’s knowledge, and the agent did
not offer a view on that issue. We note as well that Urbina had an opportunity to
subject Agent Hooten to a thorough cross-examination. The district court thus did not
abuse its discretion in admitting the agent’s testimony.

       Urbina also objects to the admission of testimony about his flight from law
enforcement agents in the course of an attempted controlled delivery following his
arrest. According to Urbina, the district court allowed unnecessarily cumulative
evidence on the issue, such that the chase was unduly emphasized to the jury.
Evidence of flight is generally admissible, because it is probative of a defendant’s
consciousness of guilt. United States v. Hankins, 931 F.2d 1256, 1261 (8th Cir.
1991). While three witnesses did testify regarding some aspect of Urbina’s flight,
each testified about a different portion of the flight. We do not believe that the district
court abused its discretion in admitting the evidence.

                                           III.

       Urbina argues that the district court erred by rejecting his argument that Blakely
v. Washington, 542 U.S. 296 (2004), rendered the United States Sentencing
Guidelines unconstitutional. The government cross-appeals, arguing that the district
court erred by holding that it was not permitted to adjust Urbina’s base offense level

                                           -9-
for obstruction of justice under USSG § 3C1.1 and reckless endangerment during
flight under USSG § 3C1.2. Both parties request a remand for resentencing.

       The district court denied Urbina’s Blakely objection regarding his criminal
history score, but declined to include the adjustments for obstruction of justice and
reckless endangerment during flight when calculating the offense level. The court
explained:

      [T]his is a very difficult decision for me to make because I heard the
      evidence and I have absolutely no doubt in my mind what Mr. Urbina
      did. He took the car, he drove the wrong way on the interstate, drove at
      a high speed. All of that came in as evidence at trial. There was
      absolutely no evidence in opposition to that. It was basically undisputed.
      And it’s clear to me what happened. And I have no doubt that had we
      submitted that to the jury, they would have found the same thing. But
      we didn’t. And Blakely, by my interpretation, puts me in a position
      where if I’m following Blakely and the guidelines, at that point I have to
      deny the enhancements.

(S. Tr. at 15). The presentence investigation report included the enhancements in its
calculation and recommended a sentencing range of 324 to 405 months. In light of
its interpretation of Blakely, however, the district court calculated a total offense level
of 32 (without the adjustments), and a criminal history of VI, resulting in a sentencing
range of 210 to 262 months. Based on this court’s decision in United States v.
Mooney, No. 02-3388, slip op. (8th Cir. July 23, 2004), vacated, No. 02-3388, 2004
WL 1636960 (8th Cir. Aug. 6, 2004), the court then treated the guideline range as
advisory, and imposed a sentence of 300 months’ imprisonment. In the alternative,
considering the guidelines as mandatory, the court imposed a sentence of 262 months’
imprisonment.

      We agree with the parties that resentencing is warranted. Since Urbina was
sentenced, the Supreme Court decided Booker, which declared the guidelines

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“effectively advisory,” but which permits judicial fact-finding and application of
guideline adjustments, so long as the sentencing range is not binding on the sentencing
court. United States v. Killingsworth, 413 F.3d 760, 764 (8th Cir. 2005). Given the
uncertainty in the law at the time of sentencing, although the district court fashioned
a sentence treating the guidelines as “advisory,” the court did not calculate and take
into account a correct guideline range for Urbina under the scheme announced in
Booker. An objection to the sentencing procedure was preserved, and we conclude
that the case should be remanded for resentencing.

                                   *      *       *

      For the foregoing reasons, we affirm Urbina’s conviction, but vacate the
sentence and remand for resentencing in light of Booker.
                     ______________________________




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