             Case: 17-10902    Date Filed: 02/19/2019   Page: 1 of 15


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 17-10902
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 2:16-cr-14009-DMM-1

UNITED STATES OF AMERICA,

                                                               Plaintiff–Appellee,

                                     versus

TODD ERLING BECKER,

                                                            Defendant–Appellant.

                          ________________________

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

                               (February 19, 2019)

Before MARCUS, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Todd Becker appeals his convictions and sentences on one count of

conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a); three

counts of Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2; and three
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counts of brandishing a firearm in furtherance of a crime of violence, in violation of

18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. On appeal, he argues that: (1) the district court

erred in denying his motion to suppress based on a lack of probable cause for his

arrest; (2) his post-arrest Miranda1 waiver was rendered involuntary by statements

made by the Federal Bureau of Investigation (“FBI”) agent conducting the

interrogation; (3) his convictions for Hobbs Act robbery do not qualify as “crime of

violence” offenses under 18 U.S.C. § 924(c)(3)(A); (4) his Fifth Amendment right

to remain silent was violated by the prosecutor’s comment during closing argument;

and (5) his 794-month total sentence was grossly disproportionate to the offense

conduct for which he was convicted. After thorough review, we affirm.

      Rulings on motions to suppress involve mixed questions of law and fact.

United States v. Touset, 890 F.3d 1227, 1231 (11th Cir. 2018). We review a district

court’s factual findings for clear error and its application of the law to the facts de

novo, and construe all facts in the light most favorable to the prevailing party. Id.

A district court has committed clear error where we are left with a definite and firm

conviction that a mistake was made. United States v. Villarreal, 613 F.3d 1344,

1349 (11th Cir. 2010). We review de novo whether a confession was voluntary, and

construe the facts in a light most favorable to the prevailing party. United States v.

Ransfer, 749 F.3d 914, 921 (11th Cir. 2014); United States v. Lall, 607 F.3d 1277,


1
      Miranda v. Arizona, 384 U.S. 436 (1966).
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1285 (11th Cir. 2010). We also review de novo whether an offense qualifies as a

“crime of violence” under 18 U.S.C. § 924(c). United States v. McGuire, 706 F.3d

1333, 1336 (11th Cir. 2013), overruled on other grounds by Ovalles v. United States,

905 F.3d 1231 (11th Cir. 2018) (en banc). And we review de novo the legality of a

sentence under the Eighth Amendment. United States v. McGarity, 669 F.3d 1218,

1255 (11th Cir. 2012). Where a prosecutor has commented on a defendant’s choice

to remain silent, we review a district court’s denial of a mistrial for abuse of

discretion. United States v. Wilchcombe, 838 F.3d 1179, 1190 (11th Cir. 2016).

      Where an issue was not raised below, we will review it only for plain error.

United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). To establish plain

error, the defendant must show (1) an error, (2) that is plain, and (3) that affected his

substantial rights. Id. at 1276. If the defendant satisfies these conditions, we may

exercise our discretion to recognize the error only if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id.

      First, we are unpersuaded by Becker’s claim that the district court erred in

concluding that probable cause existed to arrest him and in denying his motion to

suppress. “To determine whether an officer had probable cause for an arrest, we

examine the events leading up to the arrest, and then decide whether these historical

facts, viewed from the standpoint of an objectively reasonable police officer, amount

to probable cause.” Dist. of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018)


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(quotations omitted). Probable cause “requires only a probability or substantial

chance of criminal activity, not an actual showing of such activity. Probable cause

is not a high bar.” Id. (quotations and citations omitted). Courts may examine the

collective knowledge of law officers where the officers maintained a minimal level

of communication during their investigation. United States v. Willis, 759 F.2d 1486,

1494 (11th Cir. 1985).

       “[W]arrantless arrests for crimes committed in the presence of an arresting

officer are reasonable under the Constitution.” Virginia v. Moore, 553 U.S. 164,

176 (2008). “[W]hile States are free to regulate such arrests however they desire,

state restrictions do not alter the Fourth Amendment’s protections.” Id. In Moore,

police erroneously made an arrest for the misdemeanor of driving on a suspended

license, in violation of a Virginia law that authorized only the issuance of a summons

for the offense (and not an arrest), and during a search incident to the arrest, police

found crack cocaine. Id. at 166–67. The Virginia Supreme Court overturned the

conviction on Fourth Amendment grounds, reasoning that the officers were not

authorized to arrest Moore under state law and the Fourth Amendment did not permit

searches incident to citation. Id. at 168. The Supreme Court disagreed, holding that

it is not the province of the Fourth Amendment to enforce state law and the arrest

was permissible under the Fourth Amendment because it was supported by probable

cause -- regardless of whether the arrest violated state law. Id. at 178.


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      In United States v. Goings, we addressed whether Moore required suppression

where a defendant had been arrested in Florida by Georgia officers following a high-

speed pursuit. 573 F.3d 1141, 1142 (11th Cir. 2009). The defendant argued that the

Georgia officers exceeded their authority when they arrested him in Florida, in

violation of state law, and thus, suppression of the drug-related evidence found

incident to that arrest was warranted. Id. We rejected that argument, holding that

any violation of state law was irrelevant to the Fourth Amendment analysis, so long

as the arrest was supported by probable cause. Id. at 1143.

      “Whoever has in his or her possession any tool, machine, or implement with

intent to use the same, or allow the same to be used, to commit any burglary or

trespass shall be guilty of a felony of the third degree.” Fla. Stat. § 810.06. To

sustain a conviction under § 810.06, the government must prove the defendant

intended to (1) commit a burglary or trespass while in the possession of burglary

tools and (2) use those tools to commit the crime. Brooks v. State, 23 So. 3d 1227,

1229 (Fla. Dist. Ct. App. 2009). The requisite specific intent exists when the

defendant engages in or causes some overt act toward the commission of the

burglary. Thomas v. State, 531 So. 2d 708, 710 (Fla. 1988). “Although probable

cause requires more than suspicion, it does not require convincing proof, and need

not reach the same standard of conclusiveness and probability as the facts necessary

to support a conviction.” United States v. Dunn, 345 F.3d 1285, 1290 (11th Cir.


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2003) (brackets and quotations omitted). Whether probable cause exists depends on

the elements of the alleged crime and the facts of the case. Skop v. City of Atlanta,

Ga., 485 F.3d 1130, 1137–38 (11th Cir. 2007) (discussing probable cause in the

context of a 42 U.S.C. § 1983 suit). Officers can infer that a defendant possessed

the requisite mens rea giving rise to probable cause where that inference is

reasonable under the totality of the circumstances. Wesby, 138 S. Ct. at 586.

       Here, the district court did not err in denying Becker’s motion to suppress

because probable cause existed to arrest Becker for possession of burglary tools. 2

The circumstances of the arrest, when viewed in their totality, show that: (1)

Detective Andrew Bolonka, a member of an FBI task force with knowledge of

Becker’s 2015 burglary arrest, had been conducting surveillance on Becker’s home

in February 2016 in order to find Vickey Jones, with whom Becker had been when

he was arrested in 2015, and to serve a warrant on her; (2) when Becker and Jones


2
         As part of our probable cause analysis, we reject the government’s claim that Florida law
is irrelevant. In both Moore and Goings, the question was whether suppression was warranted
under the Fourth Amendment where an officer exceeded their authority to make an arrest despite
having probable cause to do so. Both this Court and the Supreme Court held that an arrest that
violated state law was valid for the purposes of the Fourth Amendment so long as the arrest was
supported by probable cause. Goings, 573 F.3d at 1143; Moore, 553 U.S. at 178. Here, we’re
not asking whether an unlawful arrest amounted to a constitutional violation where the arrest was
supported by probable cause but was made in violation of state law on some other basis; in
contrast, we’re looking to Florida law to inform the analysis of whether probable cause existed
for the purposes of the Fourth Amendment. The probable cause analysis for a given arrest is
necessarily framed by the nature of the law allegedly violated, insofar as the reasonableness of
that arrest can be determined only by looking at the alleged criminal conduct and comparing it to
the conduct prohibited by law. See Skop, 485 F.3d at 1137–38. In other words, it is only
possible to know whether an officer’s decision to arrest was objectively reasonable if one knows
what the alleged crime entails, an analysis that necessarily implicates state law.
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left his home in a minivan, Bolonka stopped the vehicle to execute the warrant on

Jones; (3) as Bolonka approached the van, he observed the presence of a pry bar,

sledgehammer, and powered saw in the van that he knew were similar to those found

in the rented van Becker had been driving when arrested in 2015 on burglary

charges; and (4) at that point, Bolonka arrested Becker. In light of this evidence and

Bolonka’s familiarity with Becker’s 2015 burglary arrest -- including the

involvement of the same people, mode of transportation, and tools -- a reasonable

officer in Bolonka’s position could have inferred a substantial chance that Becker

intended to or was in the process of committing a burglary using the tools in the van.

Willis, 759 F.2d at 1494; Wesby, 138 S. Ct. at 586 (“Probable cause is not a high

bar.” (quotations omitted)). It was not necessary for Bolonka to have conclusive

proof of Becker’s intent, so long as Bolonka had something more than a mere

suspicion that Becker intended to commit a burglary, which the circumstances

surrounding Becker’s 2016 arrest supplied. Dunn, 345 F.3d at 1290.

      Becker adds that Florida courts have sought to limit “pretextual arrests” that

lack an overt act evidencing the defendant’s specific intent to commit burglary with

the tools he possessed, so that an officer familiar with the defendant’s criminal

history cannot arrest him any time he knows the defendant possesses a burglary tool.

But that is not the case before us. Here, Detective Bolonka based his arrest on more




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than mere possession, including the use of a rental van, Jones’s presence, and

Becker’s criminal history and modus operandi. Thomas, 531 So. 2d at 710.

      As for Becker’s argument that the district court clearly erred in finding, as part

of its probable cause analysis, that Bolonka saw a mask and bandana in the van

before he arrested Becker, we do not address it because the record supports a finding

of probable cause without consideration of the mask and bandana. Nor is there any

reason to undergo a “fruit of the poisonous tree” analysis, since we’ve concluded

that the arrest did not violate the Fourth Amendment. In short, the district court did

not err in holding that Bolonka had probable cause to arrest Becker.

      We also are unconvinced by Becker’s challenge to his Miranda waiver.

Before the government may introduce a defendant’s uncounseled statements made

during custodial interrogation, it must show that he made a voluntary, knowing, and

intelligent waiver of his privilege against self-incrimination and his right to counsel.

Lall, 607 F.3d at 1282. This showing requires: (1) the relinquishment of the right to

have been voluntary, i.e., “the product of free and deliberate choice rather than

intimidation, coercion, or deception”; and (2) the waiver to have been made with “a

full awareness of both the nature of the right being abandoned and the consequences

of the decision to abandon it.” Id. at 1283 (quotations omitted). Miranda rights are

effectively waived if the “totality of the circumstances surrounding the interrogation

reveal both an uncoerced choice and the requisite level of comprehension.” Ransfer,


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749 F.3d at 935 (quotations omitted). In determining whether a defendant was

coerced, we consider the defendant’s education, level of intelligence, the failure to

appraise the defendant of his rights, the length of detention, the length and nature of

the questioning, and the use of physical punishment. Id.

      The use of deception to obtain a confession is an important factor when

considering the totality of the circumstances. Lall, 607 F.3d at 1285. While

misrepresentations of fact are not enough to render a suspect’s subsequent

confession   involuntary    or   to   undermine    a   suspect’s   Miranda     waiver,

misrepresentations of law are more likely to render a confession involuntary. Id.

Where a law enforcement officer promised a defendant that nothing he said would

be used to prosecute him, we held that the promise rendered the defendant’s

subsequent confession involuntary because it completely undermined the

previously-administered Miranda warning’s prophylactic effect. Id. at 1287. In

United States v. Nash, on the other hand, where a law enforcement officer promised

to make it known to the prosecutor that the defendant had cooperated, encouraged

the defendant to tell the truth, and noted that defendants who cooperate generally

received better sentences, we held that the officer had not illegally induced the

defendant’s ensuing confession. 910 F.2d 749, 752–53 (11th Cir. 1990). We

explained that the officer had not promised that the defendant would receive a




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reduced sentence, but had only afforded the defendant the opportunity to make an

informed decision regarding the advantages of cooperating with the government. Id.

      Here, the district court did not err in concluding that Becker voluntarily and

knowingly waived his Miranda rights. Becker argues that statements made by

Special Agent T.J. Sypniewski rendered Becker’s Miranda waiver involuntary and

tainted everything that followed, focusing on Sypniewski’s statements that (1) the

justice system rewards those who cooperate and punishes those that do not, and (2)

any state charges could be superseded by the federal charges. As for Becker’s

argument that he was coercively promised assistance avoiding state charges, Special

Agent Sypniewski said that he could not promise Becker anything immediately

following his statement that the federal charges could supersede equivalent state

charges and later clarified that Becker’s state charges might be dropped if equivalent

federal charges are pursued. Sypniewski repeated his inability to promise anything

several more times before Becker confessed, and Becker said that he understood that

no such promises could be made because it would make any subsequent confession

look coerced. Further, Becker was given two separate Miranda warnings, was a self-

described law clerk with ten years of legal experience, and advised that the “number

one sin” was to talk to law enforcement without an attorney present, all of which

indicated that he was aware of his rights and the risks of waiving them. Becker also

made several statements that showed that his decision to confess was largely due to


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his desire to remain in federal custody and to avoid dealing with state authorities.

On this record, we cannot say that Special Agent Sypniewski coerced Becker into

waiving his Miranda rights by making impermissible promises. Lall, 607 F.3d at

1285, 1287; Ransfer, 749 F.3d at 935.

      As for Becker’s claim that Special Agent Sypniewski made two statements

that undermined the content of the Miranda warnings, we disagree. Sypniewski

informed Becker that cooperation could work in his favor, said he would inform the

prosecutor of any cooperation Becker chose to give, and repeatedly told Becker that

he could not promise him anything. These statements, absent some other coercive

measure, do not constitute illegal inducement. Nash, 910 F.2d at 752–53.

      As for Becker’s argument that Sypniewski’s ameliorative measures were

unable to remove the taint of his initial misstatement, we again disagree. Becker

suggests that it would be impossible for law enforcement to correct an error made

during a custodial interrogation, even where the defendant is well-acquainted with

the criminal legal process and the error is repeatedly corrected before any

incriminating statements are made. But our case law makes clear that we consider

a Miranda waiver under the totality of the circumstances. Ransfer, 749 F.3d at 935.

And the circumstances here indicate that Becker knowingly made the calculated

choice to confess without any promise of a benefit for doing so. Thus, the district




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court did not err in concluding that Becker voluntarily and knowingly waived his

Miranda rights, and we affirm the district court’s denial of the motion to suppress.3

       In his next issue on appeal, Becker concedes that our binding precedent

forecloses the argument that his convictions for Hobbs Act robbery do not qualify

as predicate crimes of violence for the purposes of 18 U.S.C. § 924(c)(3)(A). See In

re Saint Fleur, 824 F.3d 1337, 1340 (11th Cir. 2016). We are bound by prior panel

precedent unless and until that holding is overruled by this Court en banc or by the

Supreme Court. United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009).

Moreover, published successive application orders are binding precedent on all

subsequent panels of this Court. United States v. St. Hubert, 909 F.3d 335, 346 (11th

Cir. 2018). Thus, based on In re Saint Fleur, we reject Becker’s argument that

convictions for Hobbs Act robbery do not constitute “crimes of violence” under §

924(c)(3)(A), but deem Becker’s argument as preserved for further review.

       We also find no merit to Becker’s claim that the prosecutor made comments

in closing argument that violated his Fifth Amendment right to remain silent. It is

axiomatic that a defendant in custody has an indisputable right under the Fifth

Amendment to remain silent after they have received their Miranda warning.


3
        In resolving Becker’s challenge to his Miranda waiver, we decline to apply the plain error
standard of review, even though we usually review only for plain error when an issue was not
raised below. Turner, 474 F.3d at 1275. It is not obvious from the record whether Becker
sufficiently raised his due process argument before the district court to preserve it for appeal, and,
in any event, as we’ve explained, Becker has failed to show that the district court erred under the
more lenient de novo standard of review.
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Wilchcombe, 838 F.3d at 1190. At the same time, we allow comments on a

defendant’s pre-Miranda, post-arrest statements to be used as both direct and

impeachment evidence. Id.

      Here, Becker challenges the prosecutor’s comment during closing arguments

that Becker never mentioned the gun used or other means by which he could scare

people. Becker admits he did not object at trial to this comment, so we review only

for plain error. Turner, 474 F.3d at 1275. But Becker’s brief does not begin to

develop any plain error argument, beyond asserting that the comment was improper

and that he is simply preserving it for further review. Among other things, Becker

has not explained what the prosecutor was referring to, how the comment amounted

to error, whether that error was plain, or how it affected his substantial rights. Id. at

1276. Accordingly, we cannot say the district court plainly erred as to this issue.

      Finally, we are unpersuaded by Becker’s claim that his sentence violated the

Eighth Amendment in that it was grossly disproportionate to his offense of

conviction. The defendant bears the burden of proof to make a threshold showing

that his sentence is grossly disproportional to the offense committed. United States

v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006). Generally, a sentence within

statutorily-prescribed limits is neither excessive nor cruel or unusual under the

Eighth Amendment. Id. So while a narrow principle of proportionality applies to




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noncapital sentences, there have been few successful challenges to the

proportionality of a sentence. McGarity, 669 F.3d at 1256.

      Where a defendant has been convicted for a crime of violence under § 924(c)

that involved the brandishing of a firearm, the statutory minimum sentence for a first

conviction is 84 months’ imprisonment. 18 U.S.C. § 924(c)(1)(A)(ii). In the case

of a second or subsequent conviction, the minimum sentence is 300 months’

imprisonment. Id. § 924(c)(1)(C)(i). Any sentence imposed on a defendant under §

924(c) shall run consecutively with any other term of imprisonment imposed. Id. §

924(c)(1)(D)(ii).

      Becker has failed to make the threshold showing that his 794-month statutory-

minimum sentence violates the Eighth Amendment. For starters, although he claims

that he did not personally wield a gun, he does not dispute that he was properly

prosecuted and sentenced as an aider and abettor pursuant to 18 U.S.C. § 2.

Moreover, the district court was bound to sentence Becker pursuant to the statutory

minimums listed under 18 U.S.C. § 924(c), and a sentence within statutorily-

prescribed limits is neither excessive nor cruel or unusual under the Eighth

Amendment. Johnson, 451 F.3d at 1243. Becker has not otherwise shown why his

sentence is so grossly disproportional that it constitutes a constitutional violation;

rather, he acknowledges that we have never held that a non-capital offense imposed




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on an adult violated the Eighth Amendment. Thus, he has failed to carry his burden,

and we affirm. Id.

      AFFIRMED.




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