                                                         [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                               FILED
                     __________________________
                                                U.S. COURT OF APPEALS
                                                  ELEVENTH CIRCUIT
                            No. 04-14389              August 31, 2005
                        Non-Argument Calendar      THOMAS K. KAHN
                     __________________________         CLERK

                 D.C. Docket No. 03-00001-CR-WTM-5


UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,
     versus


JAMES EDWARD BROWN,

                                                     Defendant-Appellant.

                      _________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                     __________________________

                            (August 31, 2005)

Before EDMONDSON, Chief Judge, TJOFLAT and DUBINA, Circuit Judges.
PER CURIAM:

      James Edward Brown appeals his conviction, pursuant to his guilty plea,

and 108-month sentence for being a felon in possession of a firearm, in violation

of 18 U.S.C. § 922(g)(1). We affirm his conviction. But we vacate his sentence

and remand for resentencing consistent with United States v. Booker, 125

S.Ct. 738 (2005).



                                 BACKGROUND



      Brown initially was charged with: possession with intent to distribute crack

cocaine, 21 U.S.C. § 841, carrying firearms during and in relation to a drug

trafficking crime, 18 U.S.C. § 924(c), and being a felon in possession of a firearm,

18 U.S.C. § 922(g)(1). By plea agreement, Brown pled guilty only to the felon-in-

possession charge, but reserved the right to appeal the denial of his motion to

suppress firearms and drugs found in the trunk of the car he was driving.

      At the suppression hearing, conducted by a magistrate judge, Police Officer

Tommy Spikes testified that, very early on a morning in April 2002, he stopped

two cars. The second car, driven by Brown’s girlfriend, Dany Cotrell, had a

headlight out; and the first car, driven by Brown, was weaving between lanes and

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running off the side of the road. Brown exited his car and staggered toward

Officer Spikes, slurring his speech. Charlton County Sheriff’s Deputy Grover

Rhoden arrived at the scene: a videotape of part of the arrest was taken from

Deputy Rhoden’s patrol car. When approached by Officer Spikes, Brown on his

own accord placed his hands on the patrol car and spread his legs as if to be

searched. Brown tested positive for alcohol. Officer Spikes searched Brown,

handcuffed him, and placed him in the back of patrol car. Officer Spikes arrested

Brown for driving under the influence, for failure to maintain his lane, and for

driving with a suspended driver’s license.

        Cotrell moved Brown’s car out of the way and handed Officer Spikes the

ignition key. Officer Spikes then asked Brown if he would consent to a search of

the vehicle. According to the officers, Brown answered, “Yeah, you’re not going

to find nothing but a little gin and juice anyways.” Brown said that he did not

know where the trunk key was. Deputy Rhoden discovered the key in the backseat

of the patrol car where Brown was being detained. Officer Spikes again asked

Brown for consent to search the car; and Brown responded affirmatively. The

officers found a cup of alcohol inside the car; they searched the trunk and found

six firearms and a tin can containing what appeared to be crack cocaine.1 But

  1
      The tin can later was determined to contain 22.57 grams of crack cocaine.

                                                 3
Brown testified that he was not asked for, and did not offer, consent to the search.

And Cotrell testified that she did not hear Brown give permission for the search.

      The magistrate judge recommended that Brown’s motion to suppress be

denied. The district court adopted the magistrate’s report and recommendation.

      The presentence investigation report (“PSI”) assigned a base offense level

of 20, U.S.S.G. § 2K2.1(a)(4)(A), along with a 2-level enhancement for possessing

between 3 and 7 firearms, § 2K2.1(b)(1)(A), and a 4-level enhancement for

possessing firearms in connection with another felony offense: “possession of a

large amount of crack cocaine”, § 2K2.1(b)(5). But based on a determination that

Brown possessed the firearms in connection with his possession with intent to

distribute more than 20 but less than 35 grams of crack cocaine, the PSI then

recommended applying the cross-reference provision, § 2X1.1, which provided for

a base offense level of 28, under § 2D1.1(c)(6). The PSI recommended a 2-level

enhancement for possessing a firearm, § 2D1.1(b)(1), and a 3-level reduction for

acceptance of responsibility, § 3E1.1, for a total offense level of 27. Combined

with criminal history category III, Brown’s guideline imprisonment range was 87

to 108 months.

      Brown objected to the application of the four-level § 2K2.1(b)(5)

enhancement and the application of the § 2X1.1 cross-reference as a violation of

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his Sixth Amendment rights under Blakely v. Washington, 124 S.Ct. 2531 (2004):

he did not admit to the offenses of possession of cocaine or possession of cocaine

with intent to distribute.2 The district court denied Brown’s objection, adopted the

recommendations in the PSI, and sentenced Brown to 108 months’ imprisonment.



                                        DISCUSSION



       First, Brown challenges the district court’s denial of his motion to suppress

the guns and drugs found in the trunk of his car during the traffic stop. Brown

contends that the warrantless search of his trunk was not justified as the search

was not intended to prevent danger to the officers conducting the traffic stop. And

Brown maintains that he did not knowingly and voluntarily consent to the search

of the trunk: he tried to hide the key to the trunk, and the arresting officers’ claims

of consent were not corroborated or supported by the videotape of the scene taken

from Deputy Rhoden’s vehicle. We reject Brown’s arguments.




   2
     During his guilty plea hearing, Brown admitted that he “was driving the car that had the guns
and the crack in it.” But Brown admitted neither to drug quantity nor to possessing the drugs with
intent to distribute them. Also, Brown did not object to the § 2K2.1(b)(1)(A) enhancement for the
number of firearms involved.

                                                5
      In considering the denial of a defendant’s motion to suppress, we apply a

mixed standard of review: we review “the district court’s findings of fact for clear

error and its application of law to those facts de novo.” United States v. Lyons,

403 F.3d 1248, 1250 (11th Cir. 2005). We construe all facts in the light most

favorable to the prevailing party: the government. United States v. Boyce, 351

F.3d 1102, 1105 (11th Cir. 2003).

      “[T]he general rule in the criminal context is that warrantless searches are

per se unreasonable under the Fourth Amendment--subject only to a few

specifically established and well-delineated exceptions.” United States v.

Gonzalez, 71 F.3d 819, 825 (11th Cir. 1996) (internal citation and quotation

omitted). One of these exceptions “is a search conducted pursuant to consent to

search.” Id. at 827. A district court’s determination that consent was voluntary is

a finding of fact: we will not disturb this finding absent clear error. United States

v. Simms, 385 F.3d 1347, 1355 (11th Cir. 2004), cert. denied, 125 S.Ct. 1872

(2005). In analyzing voluntariness, courts make a factual determination based on

the totality of the circumstances. Id. (citation omitted) (listing factors courts

examine).

      The district court committed no error in denying Brown’s motion to

suppress based on his consent to the search of the trunk of the car he was driving.

                                           6
Brown does not argue that his consent was coerced; instead, more accurately he

argues that he was not asked for, and did not grant, his consent to the search at all.

But the magistrate judge rejected Brown’s and Cotrell’s testimony as less credible

than that of the officers. This credibility determination “is within the province of

the factfinder”, and Brown has presented no reason to disturb this determination.

United States v. Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004).

        Brown points to the videotape as evidence that he did not consent to the

search. But the videotape is inconclusive and does not contradict Officer Spikes’s

testimony. Brown is not in the videotape: it is a video from Deputy Rhoden’s

patrol car, it focuses on Brown’s car, and Brown was detained in the back of

Officer Spikes’s patrol car. And, Officer Spikes testified that Brown consented to

a search after the trunk key was found: this indicates Brown’s consent to a search

of the trunk.3 Brown has shown no clear error in the district court’s fact

determination that Brown consented to a search of the vehicle, including the

trunk.4


   3
     Brown’s attempt to hide the trunk key could cast doubt on whether he consented to a search of
the trunk. But the possibility that he both hid the trunk key and consented to the search could have
been based on a belief that the key would not be found. At least, no clear error exists: this possibility
is not “contrary to the laws of nature, or is so inconsistent or improbable on its face that no
reasonable factfinder could accept it.” Pineiro, 389 F.3d at 1366.
   4
     We need not address Brown’s claim that the search was not one that would have been made
legal because the evidence inevitably would have been discovered.

                                                   7
      Next, citing Blakely, Brown argues that the district court improperly

enhanced his sentence based on relevant conduct he did not admit, in violation of

his Sixth Amendment right to have a jury make this determination.

      Brown timely raised his constitutional objection. We review this issue de

novo; but we will not reverse the district court if the government shows that any

error was harmless beyond a reasonable doubt. See United States v. Paz, 405

F.3d 946, 948 (11th Cir. 2005).

      We have stated that under Booker “the Sixth Amendment right to trial by

jury is violated where under a mandatory guidelines system a sentence is increased

because of an enhancement based on facts found by the judge that were neither

admitted by the defendant nor found by the jury.” United States v. Rodriguez, 398

F.3d 1291, 1297 (11th Cir.) (emphasis in original), cert. denied, 125 S.Ct 2935

(2005). Brown’s sentence was enhanced, under a mandatory guidelines system,

based on facts found by the judge and not admitted by him: Booker indicates that

Brown’s Sixth Amendment right to trial by jury was violated. See United States v.

Davis, 407 F.3d 1269, 1270 (11th Cir. 2005).

      And the government has failed to show “that the mandatory, as opposed to

the advisory, application of the guidelines did not contribute to [Brown]’s

sentence.” Id. at 1271. The district court rejected Brown’s Blakely objection; but

                                         8
the district court elaborated no further on this matter. The district court did note at

sentencing (1) that it had accepted the plea agreement because it was “satisfied

that the agreement adequately reflects the seriousness of the actual offense

behavior” and (2) that Brown had received a “great benefit” from the plea

agreement. But these statements do not speak to whether the district court would

have given the same sentence regardless of whether the guidelines were advisory

or mandatory. See id. at 1271-72 (no harmless error beyond a reasonable doubt

where “[w]e simply do not know what the sentencing court would have done had

it understood the guidelines to be advisory rather than mandatory”).

      Brown’s sentence was erroneous under Booker. And the government has

not met its burden of showing that this error was harmless beyond a reasonable

doubt. Brown must be resentenced under the advisory guidelines system: on

remand, the district court, “while not bound to apply the Guidelines, must consult

those guidelines and take them into account when sentencing.” Paz, 405 F.3d

at 949 (quoting Booker, 125 S.Ct. at 767).

      We AFFIRM Brown’s conviction; but we VACATE Brown’s sentence and

REMAND for resentencing consistent with Booker.




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