                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                  FILED
                                                           U.S. COURT OF APPEALS
                                No. 09-10025                 ELEVENTH CIRCUIT
                                                                MARCH 12, 2010
                          ________________________
                                                                  JOHN LEY
                                                                   CLERK
                        D. C. Docket No. 07-00033-CR-2

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                     versus

DENNIS MITCHELL,

                                                            Defendant-Appellant.


                          ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                        _________________________
                               (March 12, 2010)

Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

      Defendant-appellant Dennis Mitchell appeals his conviction and 262-month

sentence for possession of a firearm by a convicted felon. On appeal, we must
decide whether (1) the delays in Mitchell’s case violated his constitutional and

statutory rights to a speedy trial, (2) the court should have suppressed evidence

seized during a traffic stop, and (3) the sentence imposed was proper. After a

thorough review of the record and with the benefit of oral argument, we affirm.

                                         I.

      On April 14, 2005, Brunswick Police Officer Rodrick Nohilly stopped a car

that failed to yield at a stop sign. Nohilly issued Mitchell, the driver, a citation.

He then turned his attention to Kalvin Mangram, the only passenger, who had an

open container of beer. After difficulty confirming Mangram’s identity, Nohilly

arrested Mangram for giving false information and conducted a search of the car

incident to arrest. Therein Nohilly found firearms and arrested Mitchell for

possession of a firearm. Mitchell was placed in state custody, where he remained

until November 17, 2006.

             A. First Indictment

      On July 14, 2005, Mitchell and Mangram were charged in a three-count

indictment. Count 2 charged Mitchell with possession of a firearm with an

obliterated serial number, in violation of 18 U.S.C. § 922(k). Count 3 charged him

with possession of a firearm and ammunition by a convicted felon, in violation of

18 U.S.C. §§ 922(g) and 924(e). Trial was set for November 7, 2005.



                                              2
      Mitchell moved to suppress the firearm seized during the traffic stop.

According to testimony from the suppression hearing and a videotape of the stop,

just after midnight on April 14, 2005, Nohilly pulled Mitchell over for failing to

yield. Nohilly approached the car and observed an open container of beer in

Mangram’s lap. He asked Mangram for identification and instructed him to empty

the container. Neither Mangram nor Mitchell appeared intoxicated, and Nohilly

did not intend to cite either of them for the open-container violation.

      Officers Cothran and Wilson arrived as back-up. Wilson contacted dispatch

about Mangram’s identification and to confirm ownership of the car, revealing that

the car did not belong to Mitchell or Mangram. Nohilly wrote Mitchell a citation

for failure to yield and returned his license. When the officers were unable to

confirm Mangram’s date of birth, Nohilly arrested Mangram for giving false

information to a police officer.

      Although he had no intention to cite Mitchell for any other violations,

Nohilly asked Mitchell if the officers could search the car. Mitchell refused,

stating the car did not belong to him. Nohilly conducted the search anyway as a

search incident to arrest and found firearms and hunting masks. Nohilly asked

Mitchell if he had any prior convictions, and Mitchell responded that he had been

“in trouble.”



                                           3
      Based on the evidence presented, the magistrate judge recommended

denying the motion to suppress. On November 4, 2005, the district court adopted

the magistrate judge’s recommendation and denied Mitchell’s motion to suppress,

concluding that the police were justified in arresting Mangram and searching the

car based on Mangram’s false information.

      The government moved for a continuance on October 27. The court granted

and reset the trial for December 19, 2005. Due to a scheduling conflict for the

court, the trial was rescheduled for January 12, 2006. In early January, however,

the court continued the trial date until further notice.

      On February 13, 2006, while the indictment was pending, Mitchell’s case

was transferred to a different judge. On May 31, the case was reassigned a second

time. The record shows a flurry of activity from the time of the indictment until

February 13, 2006, but there was no action on the case from February 2006

through May 2007. Although Mitchell had completed his term in state custody on

November 17, 2006, he remained in federal custody while the federal indictment

was pending.

      On May 23, 2007, the district court sua sponte dismissed the indictment

without prejudice for violations of Mitchell’s constitutional and statutory rights to

a speedy trial under the Sixth Amendment and the Speedy Trial Act, 18 U.S.C.



                                            4
§ 3161. The court noted that the delays were due to oversight by court staff and

not to any fault of the parties. Mitchell moved for reconsideration, arguing that the

indictment should have been dismissed with prejudice. After considering the

seriousness of the offense, the circumstances leading to dismissal of the case, the

administration of justice, and the lack of prejudice, see Barker v. Wingo, 407 U.S.

514 (1972), the court denied the motion. With the court’s dismissal of the

indictment, Mitchell was released from custody.

               B. Second Indictment

       On June 7, 2007, the government filed a second indictment against Mitchell

and Mangram. Count 3, the sole count against Mitchell, charged a violation of 18

U.S.C. §§ 922(g) and 924(e), possession of a firearm by a convicted felon.

Mitchell was rearrested on October 7, 2007 and held without bond. Mitchell filed

a plea in bar, arguing that the prior indictment should have been dismissed with

prejudice for violations of the Speedy Trial Act. According to Mitchell, he had

been incarcerated 411 days beyond the time allotted for a speedy trial before the

first indictment was dismissed.1 Although he conceded that the court had



       1
         In his plea in bar, Mitchell calculated the time as follows: As of January 23, 2006, only 20
days had run under the Speedy Trial Act. Another 284 days ran from February 10, 2006 until
November 21, 2006. From November 27 through May 23, 2007, another 177 days ran. The total
was 481 days, which was in excess of the Act’s 70-day time frame by 411 days. The government
does not dispute these calculations.

                                                 5
addressed his arguments in the prior case, he asserted that the prejudice he had

suffered required the first indictment be dismissed with prejudice, thus preventing

the government from proceeding on the second indictment. On November 9, 2007,

Mitchell refiled his motion to suppress the firearm seized during the traffic stop.

      At the second suppression hearing, the court took judicial notice of the prior

proceedings. The government indicated that it had no new evidence to offer, and

Nohilly again testified. Defense counsel asked whether Nohilly had any safety

concerns at the time of the stop and Nohilly responded that he had no other

concerns except for those normally present during a traffic stop.

      In supplemental briefing after the hearing, Mitchell argued that Nohilly

unlawfully questioned Mangram during a traffic stop, the detention was unlawful

and unreasonable, and Nohilly lacked probable cause for the search. Mitchell

further argued that, because the open-container violation did not constitute an

arrestable offense, there was no permissible search incident to arrest.

      The government responded that the district court had addressed the search in

the prior case and had denied the motion to suppress. The government also argued

that Mitchell could not challenge the dismissal of his indictment because the court

had addressed it in the previous case. In reply, Mitchell reiterated that he had been

in jail another 204 days during the pending indictment and this length of time was



                                           6
presumptively prejudicial.

         Over Mitchell’s objections, the district court adopted the magistrate judge’s

recommendation and denied both the plea at bar and the motion to suppress for the

reasons given in the previous orders.

               C. Trial and Sentencing

         Mitchell’s case proceeded to trial in August 2008. At that time, Nohilly

testified that as he approached the car following a traffic stop, he observed an open

container of beer in Mangram’s possession. When Mangram could not produce

identification, and Nohilly could not confirm Mangram’s date of birth, Nohilly

placed Mangram under arrest for giving a false date of birth and placed him in

Cothran’s patrol car. Nohilly issued Mitchell a citation for failure to yield.

Nohilly then conducted a search incident to arrest looking for any contraband

“within the wingspan area.” Nohilly found a loaded firearm and ammunition under

the passenger seat and another weapon on the front seat between the driver and

passenger seats. Mitchell was arrested after Nohilly confirmed he was a convicted

felon.

         Mangram testified against Mitchell, explaining that the two men had planned

to rob and attack a man with whom Mangram had a dispute. The jury convicted

Mitchell of possession of a firearm.



                                            7
      The probation officer prepared a presentence investigation report (“PSI”),

assigning a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2) because Mitchell

had two prior crimes of violence: attempt to commit burglary and burglary. The

probation officer added two levels because the firearm had an obliterated serial

number, § 2K2.1(b)(4), and four levels because Mitchell possessed the firearm in

connection with felony offenses of armed robbery and drug possession,

§ 2K2.1(b)(5). The resulting adjusted offense level was 30; Mitchell’s criminal

history, however, qualified him for career-offender status, § 4B1.4, which

increased his offense level to 34 and required a criminal history category VI. In

addition to his status as a career criminal under § 4B1.4, the number of points

assigned to the prior convictions also placed Mitchell in category VI. Mitchell’s

adjusted offense level and criminal history category yielded a guidelines range of

262 to 327 months’ imprisonment. Under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e), Mitchell faced a statutory mandatory minimum

sentence of 15 years’ imprisonment. 18 U.S.C. § 924(e).

      Mitchell filed several objections to the PSI, including factual challenges

based on the testimony at trial. Relevant to this appeal, Mitchell also argued that

(1) burglary did not qualify as a crime of violence; (2) the jury did not consider

whether the serial number was obliterated and thus the enhancement should not



                                           8
apply; and (3) he should not receive an enhancement as an armed career criminal

because his prior convictions did not qualify and there was no evidence that he had

committed a crime of violence at the time of the instant offense.

      The probation officer responded to each objection as follows: (1) relevant

precedent identified burglary as a crime of violence; (2) the jury was not required

to make findings regarding the serial number for purposes of applying the

enhancement; and (3) the facts were sufficient to establish Mitchell’s status as an

armed career criminal because his prior convictions for robbery and assault were

crimes of violence.

      At sentencing, Mitchell reiterated his various objections. He then argued

that the 18 U.S.C. § 3553(a) sentencing factors supported a sentence at the

mandatory minimum of 15 years rather than within the guidelines range of 262 to

327 months’ imprisonment. The court overruled the objections for the reasons

given in the probation officer’s responses. After listening to the parties and

considering the § 3553(a) factors, the court sentenced Mitchell to 262 months’

imprisonment. The court stated that the low end of the guidelines range was

sufficient to meet the sentencing goals and there was no reason to depart from the

range in light of Mitchell’s criminal history.

      Mitchell raises three issues on appeal: whether (1) the delays in the case



                                           9
constituted a Sixth Amendment or Speedy Trial Act violation, (2) the court should

have suppressed the firearm, and (3) the sentence imposed was proper. We will

address each in turn.

                                        II.

      We review questions of law de novo. United States v. Schier, 438 F.3d

1104, 1107 (11th Cir. 2006). “Determination of whether a defendant’s

constitutional right to a speedy trial has been violated is a mixed question of law

and fact.” United States v. Ingram, 446 F.3d 1332, 1336 (11th Cir. 2006)

(quotation marks and citation omitted). A district court’s denial of a motion to

suppress evidence is also a mixed question of law and fact. We review legal

conclusions de novo and factual findings for clear error. Id. In our review of a

motion to suppress, we view the evidence in the light most favorable to the

prevailing party–in this case the government–and we may consider the entire

record. United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir. 2007); United

States v. Newsome, 475 F.3d 1221, 1224 (11th Cir. 2007). We review a district

court’s interpretation and application of the sentencing guidelines de novo. United

States v. Chavarriya-Mejia, 367 F.3d 1249, 1251 (11th Cir. 2004).

                                        III.

      A. Speedy Trial Act



                                          10
       The Speedy Trial Act states:

       [I]n any case in which a plea of not guilty is entered, the trial of a
       defendant . . . shall commence within seventy days from the filing
       date (and making public) of the information or indictment, or from the
       date the defendant has appeared before a judicial officer of the court
       in which such charge is pending, whichever date last occurs.

18 U.S.C. § 3161(c)(1).2 When a trial is not commenced within the prescribed

period of time, “the information or indictment shall be dismissed on motion of the

defendant.” 18 U.S.C. § 3162(a)(2).

       “[T]he proper dismissal sanction to be imposed in each case is a matter left

to the exercise of the sound discretion of the trial judge after consideration of the

factors enumerated in the statute,” and the judgment of the district court “should

not lightly be disturbed” if the district court has considered all of the statutory

factors and if the underlying factual findings are not clearly erroneous. United

States v. Knight, 562 F.3d 1314, 1322 (11th Cir. 2009). (citations omitted). A

district court must consider three factors when determining whether to dismiss an

indictment with or without prejudice: (1) “the seriousness of the offense”; (2) “the

facts and circumstances of the case which led to the dismissal”; and (3) “the impact

of a reprosecution on the administration of this chapter and on the administration

of justice.” 18 U.S.C. § 3162(a)(2); Knight, 562 F.3d at 1322. Still, in order to


       2
         The statute excludes certain time such as the time during which motions are pending. 18
U.S.C. § 3161(h)(1).

                                              11
prevent abuses of the Speedy Trial Act’s deadlines, this court requires a showing of

“some affirmative justification” by the government to warrant a dismissal without

prejudice. United States v. Russo, 741 F.2d 1264, 1267 (11th Cir. 1984).

      Criminal cases in the Southern District of Georgia “shall be processed in

accordance with the provisions of the ‘Speedy Trial Act of 1974’ . . . and the ‘Plan

of the United States District Court for the Southern District of Georgia for

Achieving the Prompt Disposition of Criminal Cases’” S.D. Ga. L. Cr. R. 50.1. In

addition, the local rules require the clerk’s office to inform the judge on a monthly

basis of any speedy trial deadlines in connection with pending cases. S.D. Ga. L.

Cr. R. 50.2.

      Here, Mitchell was indicted in July 2005. Due to errors in the clerk’s office,

Mitchell was not brought to trial within seventy days, and the court dismissed the

indictment without prejudice in May 2007. Mitchell contends that his case

exceeded the speedy-trial time limit by 411 days.

      Although “[t]he length of the delay can sometimes be enough, by itself, to

justify dismissal with prejudice,” United States v. Godoy, 821 F.2d 1498, 1506 n.2

(11th Cir. 1987), where the delay was the result of administrative confusion,

dismissal without prejudice may still be appropriate, see, e.g., United States v.

Miranda, 835 F.2d 830, 834 (11th Cir. 1988); United States v. Williams, 314 F.3d



                                          12
552, 561 (11th Cir. 2002) (holding that 68-day delay was not enough to require

dismissal with prejudice); cf. United States v. Stayton, 791 F.2d 17 (2d Cir. 1986)

(concluding that 23-month delay was “dominating factor” in dismissing with

prejudice) (cited in Godoy, 821 F.2d at 1506 n.2).

      Here, the case proceeded quickly from the date of the indictment on July 14,

2005, through its second reassignment to a new judge on February 13, 2006.

During this time, the court conducted a hearing on Mitchell’s motion to suppress

and entertained Mitchell’s numerous motions. Much of the this time is excluded

from the speedy trial period. See 18 U.S.C. § 3161(h)(1). It was only during the

period from February 2006 to May 2007 that the case sat idle. Mitchell was

serving his state sentence from April 2005 through November 2006. And,

although we recognize that Mitchell spent a lengthy time in custody awaiting trial,

we cannot conclude on this record that the district court should have dismissed the

first indictment with prejudice. Our review of the other relevant factors confirms

that the district court acted properly.

      First, there is no question, and Mitchell concedes, that a felon-in-possession

offense is a serious crime. Second, when we review the facts and circumstances

leading to the violation, we focus on the culpability of the delay-producing

conduct. Williams, 314 F.3d at 559 (quotation omitted). “A defendant has no duty



                                          13
to bring himself to trial; the [Government] has that duty . . . .” Barker, 407 U.S. at

527. “Because the prosecutor and the court have an affirmative constitutional

obligation to try the defendant in a timely manner . . . the burden is on the

prosecution to explain the cause of the pre-trial delay.” Ingram, 446 F.3d at 1337

(citation and internal quotation marks omitted). “Where the crime charged is

serious, however, the court should dismiss only for a correspondingly severe

delay.” United States v. Russo, 741 F.2d 1264, 1267 (11th Cir. 1984).

      Here, neither party was at fault for the delay. There is no dispute that the

clerk’s office failed to notify the court of the pending indictment and that the court

failed to comply with the local rules, thereby enabling or exacerbating the

administrative delay. The government also failed to adhere to the rules’

notification requirements and bring the defendant to trial in a timely manner. Cf.

Miranda, 835 F.2d at 834. Importantly, however, Mitchell also had an obligation

to notify the court of the delay, see id., and the record shows that he did not do so

in this case. In fact, the court dismissed the first indictment sua sponte.

      Third, considering the impact of a reprosecution on the administration of the

Speedy Trial Act and on the administration of justice, dismissal with prejudice was

not warranted. This factor not only allows courts to review the seriousness of the

criminal charges and the reason for the delayed indictment but also “provides



                                           14
authority for considering such aggravating and mitigating factors as the length of

the delay and the prejudice to the defendant.” Williams, 314 F.3d at 560 (citation

omitted). Mitchell has not shown how the delay prejudiced his ability to prepare

for trial; rather he argues that as a result of the delay Mangram had time to enter

into a plea agreement and testify against him. Moreover, although Mitchell spent

more than 400 days awaiting trial, much of that time was excluded from the

speedy-trial period, and all but 6 months of it was spent in state custody. See

Knight, 562 F.3d at 1323-24 (concluding that the defendant had not shown

prejudice where he would have otherwise been serving a state sentence). Finally,

because the court was responsible for the violations, there would be no deterrent

effect if the dismissal was with prejudice.

      In sum, a review of the facts and circumstances reflect that the district court

did not abuse its discretion. Accordingly, we conclude there was no Speedy Trial

Act violation warranting dismissal with prejudice.

             B. Sixth Amendment

      Mitchell also argues that the delay between his initial indictment in 2005 and

his trial in 2008 violated his Sixth Amendment right to a speedy trial and the

district court’s local rules. He notes the extreme length of the delay and contends

that he suffered prejudice as a result.



                                          15
      The government responds that there was no Sixth Amendment violation

under Barker. The government explains that at the time the first federal indictment

was filed, Mitchell was already in state custody. When his state term of

imprisonment ended on November 17, 2006, Mitchell remained in custody on the

federal indictment until he was released when the court dismissed the indictment.

Mitchell was detained again after the second indictment. As a result, the

government contends, Mitchell cannot meet Barker’s prejudice requirement.

      Mitchell replies that he suffered prejudice resulting from his 411 days of

incarceration and that the reason for the delay was beyond his control. He notes

that he spent an additional 310 days in prison from the time he was rearrested on

the second indictment until he was brought to trial.

      “The Sixth Amendment right to a speedy trial attaches at the time of arrest or

indictment, whichever comes first, and continues until the date of trial.” Knight,

562 F.3d at 1323 (citing United States v. Walters, 591 F.2d 1195, 1200 (5th Cir.

1979)). The right, however, cannot be quantified into a specific number of days or

months. See Vermont v. Brillon, 129 S.Ct. 1283, 1290 (2009). It must be

evaluated under the particular circumstances of each case using a balancing test

that weighs the conduct of both the government and the defendant. See id. In

evaluating a possible Sixth Amendment violation, the district court considers four



                                          16
factors: (1) “length of delay”; (2) “the reason for the delay”; (3) “the defendant’s

assertion of his right”; and (4) “prejudice to the defendant.” Id. (quoting Barker,

407 U.S. at 530). The defendant must prove actual prejudice unless the first three

factors all weigh heavily against the government. Id.; see also Ingram, 446 F.3d at

1336.

        We first evaluate the length of the delay between the date of the indictment

and the trial date; any delay beyond one year is “presumptively prejudicial” and

triggers further analysis under the Barker test. See Ingram, 446 F.3d at, 1336,

1337 n.3. (quotation marks and citation omitted). Here, the length of time

exceeded one year and thus was presumptively prejudicial. Accordingly, we

consider the weight of the other factors.

        The government bears the burden of explaining the reason for the delay. See

Ingram, 446 F.3d at 1337. Deliberate delay “to hamper the defense” weighs

heavily against the prosecution. Brillon, 129 S.Ct. at 1290 (citing Barker, 407 U.S.

at 531). “[M]ore neutral reason[s] such as negligence or overcrowded courts”

weigh less heavily “but nevertheless should be considered since the ultimate

responsibility for such circumstances must rest with the government rather than

with the defendant.” Id. Here, there was no deliberate action by the government,

but the administrative issues and the government’s failure to remind the court of



                                            17
the pending case weigh against the government.

       The third factor is the defendant’s assertion of his right to a speedy trial.

Ingram, 446 F.3d at 1336. If the defendant knew of the indictment years before

his arrest but waited until he was arrested to invoke his right to a speedy trial, then

this factor weighs heavily against him. See Doggett, 505 U.S. at 653. But if the

defendant did not learn about the indictment until his arrest, and afterwards

promptly asserted his speedy trial right, then this factor weighs heavily against the

government. See Ingram, 446 F.3d at 1335, 1340. Here, Mitchell never asserted

any right to a speedy trial until after the second indictment, when he filed his plea

at bar seeking to have the first indictment dismissed with prejudice.3 Mitchell’s

failure to assert his right more quickly weighs against his Sixth Amendment claim.

       Because the three factors do not weigh heavily against the government,

Mitchell must show actual prejudice resulting from the delay. Knight, 562 F.3d at

1323. In order to prove actual prejudice, Mitchell must demonstrate one of the

following: (1) oppressive pretrial incarceration, (2) anxiety and concern, or (3)

possible impairment of his defense. See Barker, 407 U.S. at 532. Mitchell must

proffer more than “conclusory assertions of prejudice” or “unsubstantiated

allegations of witnesses’ faded memories.” United States v. Hayes, 40 F.3d 362,


       3
         Mitchell contends he repeatedly contacted the clerk’s office, but he does not dispute that
he never filed a motion seeking to dismiss the indictment.

                                                18
366 (11th Cir. 1994). Mitchell contends that the delay caused him to remain in jail

without bail and resulted in Mangram’s decision to testify against him. Neither of

these claims amounts to oppressive pretrial incarceration, anxiety, or impairment of

his defense. As noted above, Mitchell spent a portion of this time in custody on

state charges; thus he would have been incarcerated regardless of his federal

indictment.

         Because Mitchell cannot show actual prejudice, his Sixth Amendment claim

fails.

         C. Suppression

         Before we reach the merits of Mitchell’s suppression claim, we must first

decide which arguments are properly before us. While Mitchell’s appeal was

pending, the Supreme Court issued its opinion in Arizona v. Gant, 129 S.Ct. 1710

(2009), in which the Supreme Court held that “[p]olice may search a vehicle

incident to a recent occupant’s arrest only if the arrestee is within reaching distance

of the passenger compartment at the time of the search or it is reasonable to believe

the vehicle contains evidence of the offense of arrest.” Gant, 129 S.Ct. at 1723. In

his reply brief, Mitchell argued that the Gant decision confirmed that the search

and seizure in his case was improper. The government asked us to strike the

argument because Mitchell had not preserved the Gant argument before the district



                                           19
court or in is opening brief. A single judge granted the government’s motion to

strike.

          We are not bound by a single judge’s order. See 11th Cir. R. 27-1(d). And

upon review, we conclude that Mitchell properly raised the crux of the Gant

argument both before the district court and in his opening brief. We therefore

consider whether Gant entitles Mitchell to relief. We conclude that it does not.

          This court recently addressed the impact of Gant in United States v. Davis,–

F.3d – (11th Cir. 2010). In that case, police conducted a routine traffic stop, found

the passenger to be intoxicated, and asked for his name. After the police

determined that the passenger had not given his real name, they arrested him and

placed him in a patrol car. The driver, who had failed a sobriety test, was also

arrested and placed in a separate patrol car. During a subsequent search of the car,

police found a firearm. Davis, manuscript op. at 2-3. At the time of the search, our

case law permitted a vehicle search incident to arrest under such conditions. See

Davis, manuscript op. at 4 (citing United States v. Gonzalez, 71 F.3d 819, 825

(11th Cir. 1996)).

          After determining that Gant applied retroactively to cases pending on

appeal, this court concluded that the search in Davis was unconstitutional; a search

of the car was unlikely to produce evidence that Davis had given police a false



                                            20
name, and both Davis and the driver had been removed from the car before the

search and thus were not within reaching distance of the passenger compartment.

We then considered the separate question whether Gant required suppression of the

evidence. Davis manuscript op. at 7-8. We explained that prior precedent in this

circuit permitted searches such as the one in Davis, and the Supreme Court’s

subsequent rejection of that interpretation of law did not prevent police from

relying on our interpretation of the law at the time of the search. Davis manuscript

op. at 4-5. We further noted that suppressing evidence when the police acted in

good faith would serve no deterrent purpose. Davis manuscript op. at 12-13.

Accordingly, we concluded that the evidence was admissible when obtained by

officers acting “act[ing] in the objectively reasonable belief that their conduct did

not violate the Fourth Amendment.” Davis, manuscript op. at 11 (quoting United

States v. Leon, 468 U.S. 897, 919 (1984)).

      Applying Gant and Davis to the case at bar, there is no question that the

search violated Gant. See Davis manuscript op. at 6. Nohilly did not express any

officer-safety concerns, and the search was unlikely to produce evidence of giving

false information or underage drinking. Nevertheless, we need not require

suppression of the evidence because Nohilly acted on the objectively reasonable

belief that the search was constitutional under the law in effect at the time. Davis,



                                           21
manuscript op. at 7-8. “[A] search performed in accordance with our erroneous

interpretation of Fourth Amendment law is not culpable police conduct.” Davis,

manuscript op. at 12. Accordingly, because suppression of the evidence would

serve no deterrent purpose, Davis draft manuscript op. at 12-13, the good-faith

exception to the exclusionary rule applies, and the evidence against Mitchell was

admissible.

      D. Sentencing

      Mitchell argues that attempted burglary was not a crime of violence, the

court should not have increased his offense level based on the obliterated serial

number where the jury made no factual findings, and he did not qualify as an

armed career criminal because the court erroneously assigned points to two of his

prior convictions. We find no merit in Mitchell’s arguments.

      Under the ACCA, a person who violates 18 U.S.C. § 922(g) and who has

three previous convictions for a “violent felony” is an armed career criminal and

subject to a mandatory minimum sentence of 15 years’ imprisonment. 18 U.S.C.

§ 924(e)(1). This court’s precedent holds that attempted burglary is a violent

felony for purposes of the ACCA. See United States v. James, 430 F.3d 1150,

1157 (11th Cir. 2005). We are bound by decisions of prior panels until overruled

by this court sitting en banc or by the Supreme Court. United States v. Steele, 147



                                          22
F.3d 1316, 1317-18 (11th Cir. 1998).

      Moreover, the government is not required to prove sentencing enhancements

- such as an increase for obliterated serial numbers - to the jury, and the court may

make factual findings relevant to enhancements. See United States v. Rodriguez,

398 F.3d 1291, 1300-01 (11th Cir. 2005).

      Finally, Mitchell had sufficient criminal history points to qualify as a

criminal history category VI even if the court had not included points for the

convictions for battery and possession of a counterfeit substance. See U.S.S.G.

Sentencing Table (listing 13 or more criminal history points as category VI). Thus,

any error in the calculation of points or the qualification of Mitchell as an armed

career criminal under § 4B1.4 was harmless.

                                 IV.

      For the foregoing reasons, we AFFIRM Mitchell’s conviction and sentence.




                                          23
