           Case: 13-15413   Date Filed: 06/26/2014   Page: 1 of 10


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-15413
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 3:13-cr-00059-RV-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

KADEEM C. MOORE,

                                                          Defendant-Appellant.

                       ________________________

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

                              (June 26, 2014)

Before TJOFLAT, WILSON and FAY, Circuit Judges.



PER CURIAM:
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      A Northern District of Florida grand jury indicted Kadeem Moore for

possession with intent to distribute cocaine, cocaine base, and hydrocodone, in

violation of 21 U.S.C. § 841(a)(1) (“Count One”), and (2) for being a felon in

possession of a firearm, a Ruger 9 millimeter pistol, in violation of 18 U.S.C. §

922(g)(1) (“Count Two”). Moore subsequently moved the District Court to

suppress evidence that was obtained and statements he made during a traffic stop

on October 6, 2012, in Pensacola, Florida. He argued that the stop violated the

Fourth Amendment prohibition against unreasonable searches and seizures because

(1) the traffic stop was not justified, and (2) even if it was, the stop was

unreasonably prolonged. 1


      The District Court denied Moore’s motion, and pursuant to a plea

agreement, he entered conditional pleas of guilty to both counts of the indictment,

reserving his right to challenge the suppression ruling on appeal. The District

Court thereafter sentenced Moore to concurrent prison terms of 110 months.

Moore now appeals the District Court’s suppression ruling and his sentences—on

the ground that they are procedurally unreasonable because the court erred in

determining that Count Two involved four or more firearms. We affirm.



      1
      In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court ruled that the Fourth
Amendment applies to the States by way of the Due Process Clause of the Fourteenth
Amendment.
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                                           I.


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

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

2012). Rulings of law are reviewed de novo, while findings of fact are reviewed

for clear error, in the light most favorable to the prevailing party, here, the

Government. Id. at 1302-03. We afford considerable deference to the district

court’s credibility determinations because the court is “in a better position than a

reviewing court to assess the credibility of witnesses.” United States v. Ramirez-

Chilel, 289 F.3d 744, 749 (11th Cir. 2002). We must accept the version of events

adopted by the district court “unless it is contrary to the laws of nature, or is so

inconsistent or improbable on its face that no reasonable factfinder could accept

it.” Id. (quotations omitted).


      The Fourth Amendment protects individuals from unreasonable searches and

seizures. Lewis, 674 F.3d at 1303. A court must examine the totality of the

circumstances in order to determine whether a search or seizure is reasonable

under the Fourth Amendment. Id. “Rigid time limitations and bright-line rules”

are not appropriate in determining reasonableness. United States v. Purcell, 236

F.3d 1274, 1279 (11th Cir. 2001).




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

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

S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). Under Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968), law enforcement officers may seize a suspect

for a brief, investigatory stop, but that stop “must be reasonably related in scope to

the circumstances which justified the interference in the first place.” United States

v. Ramirez, 476 F.3d 1231, 1236 (11th Cir. 2007) (quotations omitted). Also, “the

duration of the traffic stop must be limited to the time necessary to effectuate the

purpose of the stop.” Id. (quotations omitted). The officer’s subjective intentions

play no role in the legal analysis. Whren, 517 U.S. at 813, 116 S.Ct. at 1774.

      An officer may prolong a traffic stop in two circumstances. United States v.

Boyce, 351 F.3d 1102, 1106 (11th Cir. 2003). First, officers may “prolong the

detention to investigate the driver’s license and the vehicle registration, and may

do so by requesting a computer check.” Id. (quotations omitted); see also Purcell,

236 F.3d at 1278-79 (officer’s request for criminal history as part of a routine

computer check does not violate Fourth Amendment so long as the check does not

unreasonably prolong the stop). Officers may also ask questions, even those

unrelated to the original purpose of the stop, so long as the questioning does not

“measurably extend the duration of the stop.” United States v. Griffin, 696 F.3d

1354, 1362 (11th Cir. 2012) (quotation omitted), cert. denied, 134 S.Ct. 956


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(2014). Second, an officer may prolong a stop if he has “articulable suspicion of

other illegal activity.” Boyce, 351 F.3d at 1106 (quotation omitted); see also

United States v. Spoerke, 568 F.3d 1236, 1248-49 (11th Cir. 2009) (extension of

stop must be based on an “objectively reasonable and articulable suspicion” that

illegal activity had occurred or was occurring). “When making a determination of

reasonable suspicion, we must look at the totality of the circumstances of each case

to see whether the detaining officer has a particularized and objective basis for

suspecting legal wrongdoing.” United States v. Simms, 385 F.3d 1347, 1354 (11th

Cir. 2004) (quotation omitted). Reasonable suspicion thus requires more than “an

inchoate and unparticularized suspicion or hunch of criminal activity.” Id.

(quotation omitted). Generally, when all computer background checks have been

performed, the citation is written, and the police officer returns the driver’s license,

the traffic violation investigation is complete and the driver is free to go. See

Boyce, 351 F.3d at 1107.

      A Fourth Amendment violation may occur when police conduct a dog sniff

and uncover contraband while an individual is unlawfully detained, e.g., “during an

unreasonably prolonged traffic stop.” Illinois v. Caballes, 543 U.S. 405, 407-08,

125 S.Ct. 834, 837, 160 L.Ed.2d 842 (2005). Moreover, “[t]he police cannot base

their decision to prolong a traffic stop on the detainee’s refusal to consent to a

search.” Boyce, 351 F.3d at 1110. However, a dog sniff that does not


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unreasonably prolong the traffic stop is not a search subject to the Fourth

Amendment, and based on this principle, the Supreme Court has rejected the

notion that the mere act of a dog sniff transforms a lawful traffic stop into a drug

investigation that was unlawful because it was not supported by reasonable

suspicion. Caballes, 543 U.S. at 408-09, 125 S.Ct. at 837-38 (holding that the

Fourth Amendment does not require reasonable suspicion to justify using a drug-

detection dog to sniff a car during a legitimate traffic stop).

      Here, the duration of the traffic stop was approximately 24 minutes, starting

when the police officer stopped the car and concluding when a drug-sniffing dog

alerted to the drugs. The District Court credited the testimony given by the police

officer at the suppression hearing and concluded that, under the circumstances, 24

minutes was a reasonable duration for the traffic stop. Specifically, the court

found, based on the officer’s testimony, that much of that time was spent gathering

and re-verifying information from the car’s occupants, running driver’s license and

warrant checks, and writing a citation using a computer system and statute the

officer was unfamiliar with. Accepting the version of facts adopted by the court,

we cannot say that the court erred in concluding that the duration of the stop here

was reasonable and constitutional. Accordingly, Moore’s convictions are affirmed.

                                           II.




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      Moore argues that the District Court erred in applying a two-level

enhancement to the offense level under U.S.S.G. § 2K2.1(b)(1)(A) because the

Government failed to prove his possession of four firearms by a preponderance of

the evidence. We review the court’s application of the sentencing guidelines de

novo and its findings of fact for clear error. United States v. Demarest, 570 F.3d

1232, 1239 (11th Cir. 2009). For sentencing purposes, possession of a firearm

involves a factual finding. United States v. Stallings, 463 F.3d 1218, 1220 (11th

Cir. 2006). “When a defendant challenges one of the factual bases of his sentence

as set forth in the [PSI], the Government has the burden of establishing the

disputed fact by a preponderance of the evidence.” United States v. Lawrence, 47

F.3d 1559, 1566 (11th Cir. 1995). Similarly, our precedent authorizes a district

court to consider relevant conduct in fashioning a defendant’s sentence so long as

that conduct has been proven by a preponderance of the evidence. United States v.

Saavedra, 148 F.3d 1311, 1314 (11th Cir. 1998); see also United States v.

Valarezo-Orobio, 635 F.3d 1261, 1264 (11th Cir. 2011) (unless otherwise

specified, a convicted defendant's guideline range is determined on the basis of all

relevant conduct). A preponderance of the evidence standard “requires the trier of

fact to believe that the existence of a fact is more probable than its nonexistence.”

United States v. Almedina, 686 F.3d 1312, 1315 (11th Cir.) (quotations omitted),

cert. denied, 133 S.Ct. 629 (2012). “[T]he district court’s factual findings for


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purposes of sentencing may be based on, among other things, evidence heard

during trial, undisputed statements in the [presentence investigation report], or

evidence presented during the sentencing hearing.” United States v. Louis, 559

F.3d 1220, 1224 (11th Cir. 2009) (quotations omitted) (alterations in original)

(upholding enhancement of a defendant’s sentence pursuant to § 2K2.1(b)(1)(A)

on the basis of criminal conduct not charged in the indictment). We review the

application of the Guidelines’ relevant conduct provision to the facts for clear

error. United States v. Amedeo, 370 F.3d 1305, 1313 (11th Cir. 2004).

      Under the Guidelines, if a pertinent firearm offense involved three to seven

firearms, a two-level increase applies. U.S.S.G. § 2K2.1(b)(1)(A). Only those

firearms that were “unlawfully sought to be obtained, unlawfully possessed, or

unlawfully distributed” are to be counted under § 2K2.1(b)(1). § 2K2.1, comment.

(n.5). Possession of a firearm may be either actual or constructive. United States

v. Perez, 661 F.3d 568, 576 (11th Cir. 2011). Under § 1B1.3(a), specific offense

characteristics are determined on the basis of all acts and omissions committed by

the defendant in relation to the subject offense. § 1B1.3(a)(1)(A). For firearm-

related offenses falling under § 2K2.1, relevant conduct includes all acts and

omissions that were part of “the same course of conduct or common scheme or

plan as the offense of conviction.” § 1B1.3(a)(2); see § 3D1.2(d).




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      “Same course of conduct” and “common scheme or plan” are terms of art

defined in the commentary to § 1B1.3. For multiple events to form a common

scheme or plan, they must “be substantially connected to each other by at least one

common factor, such as . . . [a] common purpose, or similar modus operandi.”

§ 1B1.3, comment. (n.9(A)). Two or more events will form the same course of

conduct if “they are sufficiently connected or related to each other as to warrant the

conclusion that they are part of a single episode, spree, or ongoing series of

offenses.” § 1B1.3, comment. (n.9(B)). In evaluating whether two or more

offenses meet this test, the sentencing court should consider “the degree of

similarity of the offenses, the regularity (repetitions) of the offenses, and the time

interval between the offenses.” Id.; see also United States v. Maxwell, 34 F.3d

1006, 1011 (11th Cir. 1994) (concluding that the court should consider “similarity,

regularity, and temporal proximity” between the offense of conviction and the

uncharged conduct). The Guidelines commentary makes clear that § 1B1.3(a)(2) is

designed to take account of “a pattern of misconduct that cannot readily be broken

into discrete, identifiable units that are meaningful for purposes of sentencing.”

§ 1B1.3, comment. (backg’d.).

      Although it is likely that the District Court here did not clearly err in

determining that Moore possessed four firearms as part of “relevant conduct”

under U.S.S.G. § 1B1.3, and so properly applied the § 2K2.1(b)(1)(A)


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enhancement, we need not decide the enhancement issue in this case because a

decision either way will not affect the outcome. Here, the court explicitly stated

that it would have imposed the same 110-month sentence even without the

enhancement. Given Moore’s extensive criminal history involving drugs and other

offenses, a 110-month sentence imposed without the enhancement would still be

both within the applicable guideline range and reasonable under the circumstances.

See United States v. Keene, 470 F.3d 1347, 1349-50 (11th Cir. 2006). Therefore,

any error was harmless, and Moore’s sentences are due to be affirmed.

      AFFIRMED.




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