                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-1607
                        ___________________________

                            United States of America

                                      Plaintiff - Appellee

                                        v.

                              Ryan Nicholas Haynes

                                    Defendant - Appellant
                                  ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                          Submitted: January 16, 2020
                                Filed: May 5, 2020
                                ____________

Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
                              ____________

GRUENDER, Circuit Judge.

      Ryan Nicholas Haynes appeals his conviction and sentence for being a felon
in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). We
affirm.
                                         I.

       In July 2017, police officers followed a bus in downtown Des Moines, Iowa.
Officer Luke Harden observed both that the bus did not properly signal while making
multiple turns and that it did not have a light illuminating its license plate. The
officers initiated a traffic stop.

      As the officers approached the driver, passengers were moving about the bus,
and Officer Harden believed that some passengers were rowdy. He also noted a
strong smell of marijuana emanating from the bus. Officer Harden boarded the bus
and assisted in removing an individual that another officer had observed passing
what appeared to be a marijuana cigarette.

      Haynes was seated toward the front of the bus. Officer Harden noticed that
Haynes was making “furtive movements and gestures” and seemed nervous
compared to the other passengers. Eventually, Officer Harden asked Haynes to leave
the bus. As he did so, Haynes, unprompted by the officers, began emptying his
pockets. Haynes pulled out a marijuana cigarette and showed it to the officers.

       Officer Harden then conducted a pat-down search of Haynes and felt what he
believed to be a firearm in Haynes’s left pant leg. Harden did not make Haynes
aware of the fact that he felt the firearm and instead attempted to handcuff him. As
he did so, Haynes pulled away and began to flee on foot. The officers pursued
Haynes, running between alleys and buildings, over fences, and through shrubbery.
During the chase, the officers lost sight of Haynes. Eventually, Haynes stopped and
the officers took him into custody.

      The officers did not find a weapon on Haynes after the chase. After retracing
Haynes’s steps, however, they recovered a firearm between two townhomes and in
front of a fence that Haynes jumped. Later, an officer dusted the firearm for
fingerprints but was unable to lift any fingerprints from the firearm or magazine.



                                        -2-
Officers did not check the firearm, magazine, or ammunition for DNA, nor did they
check the identity of the last known purchaser of the firearm.

       In September 2017, Haynes was arraigned in Iowa state court. Seven weeks
before his state trial date, he was charged by federal indictment in the Southern
District of Iowa with being a felon in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). On August 14, 2018, Haynes was arrested on a
federal warrant. Haynes later filed a motion to suppress the evidence resulting from
Officer Harden’s pat down and a motion to dismiss that alleged a Speedy Trial Act
violation. The district court 1 denied both motions. Haynes proceeded to trial, and
the jury returned a guilty verdict.

       After his conviction, Haynes filed a motion for judgment of acquittal, and
alternatively, a motion for a new trial based upon insufficient evidence, which the
district court denied. At the sentencing hearing, the district court calculated a total
offense level of 28 and a criminal history category of VI, resulting in an advisory
sentencing guidelines range of 140 to 175 months’ imprisonment. But because the
statutory maximum sentence for the crime is 120 months, see § 924(a)(2), that
necessarily became the guidelines recommendation. See U.S.S.G. § 5G1.1(a)
(“Where the statutorily authorized maximum sentence is less than the minimum of
the applicable guideline range, the statutorily authorized maximum sentence shall be
the guideline sentence.”).       The court sentenced Haynes to 120 months’
imprisonment.

       Haynes appeals his conviction and sentence on several grounds. He argues
that the district court erred in denying his motion to dismiss and in denying his
motion to suppress. He also argues that insufficient evidence existed to support his
conviction. Finally, he asserts that the district court’s sentence is substantively
unreasonable. We address each argument in turn.


      1
      The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.

                                         -3-
                                          II.

                                          A.

      Haynes asserts both that the district court erred in finding no Speedy Trial Act
(“the Act”) violation and abused its discretion by failing to hold an evidentiary
hearing on the matter.

       We review a district court’s findings of fact as to whether a defendant’s rights
under the Speedy Trial Act were violated for clear error and review its legal
conclusions de novo. United States v. Aldaco, 477 F.3d 1008, 1016 (8th Cir. 2007).
The Act provides that an indictment must be filed against an individual “within thirty
days from the date on which such individual was arrested or served with a summons
in connection with such charges.” 18 U.S.C. § 3161(b). The thirty-day clock to
return an indictment under the Act begins when there is a federal arrest or summons.
See United States v. Beede, 974 F.2d 948, 950 (8th Cir. 1992) (“Only a federal arrest,
not a state arrest, triggers § 3161(b).”).

       Haynes does not dispute that, if the federal arrest and indictment dates are
used, the Act was not violated. He argues, however, that an exception applies and
that the thirty-day clock began to run on the date of his state arrest because there is
evidence of collusion between Iowa and federal prosecutors. See United States v.
Sims, 779 F.2d 16, 17 (8th Cir. 1985). He alleges the federal prosecutor brought
charges seven weeks before the date of his state trial in order to avoid the results of
a pending Iowa Supreme Court case that, according to Haynes, would have
supported his pending motion to suppress in state court.2

       There is no evidence that Iowa and federal prosecutors colluded. We have
held that mere delay between a state arrest and federal indictment does not constitute

      2
       We will assume without deciding that a federal indictment on the eve of a
state court suppression hearing can implicate the Speedy Trial Act collusion
exception.

                                         -4-
evidence of collusion. See id. Haynes offers no evidence beyond the timing of his
federal indictment to suggest that it was a result of collusion. Additionally, Haynes’s
reliance on a District of Massachusetts case, United States v. Ganious, 635 F. Supp.
2d 80, 85 (D. Mass. 2009), is unavailing. In Ganious, the court held that the
defendant was not entitled to an evidentiary hearing on collusion even though he
was arrested by state agents who were part of a federal task force, prosecuted by a
state prosecutor who was also a Special Assistant United States Attorney, and held
in custody for 404 days before his arraignment on federal charges. Id. at 82-86. As
that court also noted, “mere delay cannot show the existence of a ruse without active
federal involvement in the state prosecution.” Id. at 86. Because Haynes does not
offer any evidence of such active involvement other than speculation about the
timing of his federal arraignment coinciding with a state supreme court decision, the
Government did not violate the Speedy Trial Act.

       Haynes also argues that the district court abused its discretion by failing to
hold an evidentiary hearing regarding the existence of collusion. See United States
v. Santos-Pulido, 815 F.3d 443, 445 (8th Cir. 2016). A district court must hold an
evidentiary hearing when the moving party identifies material facts in the record
“that are actually in dispute.” See United States v. Saucedo, No. 19-1693, 2020 WL
1870254, at *3 (8th Cir. Apr. 15, 2020). Haynes offered the district court mere
speculation that his federal and state prosecutors colluded and does not “identify any
material facts in the record . . . that are actually in dispute.” Id. Therefore, the
district court did not abuse its discretion in denying an evidentiary hearing.

                                          B.

       Haynes next argues that the district court erred in denying his motion to
suppress because he was unlawfully seized and then unlawfully searched by the
officers. When reviewing a district court’s ruling on a motion to suppress, we review
factual findings for clear error and legal conclusions de novo. United States v.
Oliver, 950 F.3d 556, 563 (8th Cir. 2020). A factual finding is “clearly erroneous”
when a court reviews the evidence in its entirety and is “left with the definite and


                                         -5-
firm conviction that a mistake has been made.” United States v. Guzman, 926 F.3d
991, 997 (8th Cir. 2019). “A finding based on the credibility of live witnesses can
almost never be clearly erroneous.” United States v. E.R.B., 86 F.3d 129, 130 (8th
Cr. 1996).

       Although Haynes does not dispute that the officers lawfully stopped the bus
for traffic violations, he argues that he was unlawfully seized when Officer Harden
ordered him off the bus.

      “[A]n officer making a traffic stop may order passengers to get out of the car
pending completion of the stop.” Maryland v. Wilson, 519 U.S. 408, 415 (1997)
(noting that any “intrusion on the passenger is minimal”); see also United States v.
Cloud, 594 F.3d 1042, 1045 (8th Cir. 2010). The Supreme Court has explained that
“the possibility of a violent encounter stems . . . from the fact that evidence of a more
serious crime might be uncovered during the stop,” a possibility equally applicable
to both drivers and passengers, and that passengers are less likely to have access to
dangerous weapons when they are outside the vehicle. Wilson, 519 U.S. at 414.

       Officer Harden lawfully ordered Haynes off the bus, particularly as the smell
of marijuana alerted the officer that “evidence of a more serious crime” than failure
to use a turn signal “might be uncovered during the stop.” See Wilson, 519 U.S. at
414. Haynes’s effort to distinguish the situation here from Wilson by relying on
United States v. Henderson, 463 F.3d 27 (1st Cir. 2006), is fruitless. In that case, an
officer demanded a passenger’s information, including his social security number,
to investigate him for failure to wear a seatbelt. See id. at 29. The court held that
the demand of information was not proper under Wilson because the questioning
“expanded the scope of the stop, changed the target of the stop, and prolonged the
stop.” Id. at 46. But here, prior to Haynes producing the marijuana cigarette, Officer
Harden did not ask Haynes any questions but merely ordered him off the bus in
keeping with Wilson. Therefore, Haynes was not unlawfully seized.




                                          -6-
       Haynes further argues that he was unlawfully searched by Officer Harden
because he did not consent to a search and Harden did not have a reasonable
suspicion that Haynes was armed and dangerous. But we have held that once
probable cause for an arrest exists, an officer may conduct a pat-down search
incident to arrest. See United States v. Jerde, 481 F. App'x 280, 282-83 (8th Cir.
2012) (finding that, after a suspect voluntarily produced a marijuana pipe, an officer
had probable cause to arrest him, and therefore a pat down of the suspect was
lawful); see also Sibron v. New York, 392 U.S. 40, 77 (1968) (Harlan, J., concurring)
(reasoning that a defendant may not validly say, “Although the officer had a right to
arrest me at the moment when he seized me and searched my person, the search is
invalid because he did not in fact arrest me until afterwards”).

        Once Haynes produced his marijuana cigarette, Officer Harden had probable
cause to arrest him and therefore was permitted to search him. See United States v
Binion, 570 F.3d 1034, 1040 (8th Cir. 2009) (holding that a suspect’s admission to
carrying an ounce of marijuana in his pants created probable cause for an arrest); see
also Rawlings v. Kentucky, 448 U.S. 98, 111 (1980) (explaining that, when police
already possess probable cause for an arrest and “the formal arrest followed quickly
on the heels of the challenged search of petitioner's person,” it is not “particularly
important that the search preceded the arrest rather than vice versa”); State v. Horton,
625 N.W.2d 362, 363-64 (Iowa 2001) (holding that an officer had probable cause to
believe a defendant had committed a drug offense when he observed “marijuana
roaches” in plain view, and further concluding that a subsequent pat down was
justified as a search incident to arrest even though the pat down technically preceded
formal arrest); Iowa Code § 124.401(5) (criminalizing possession of marijuana).
Thus, Haynes was not unlawfully seized or searched, and the district court did not
err in denying his motion to suppress.




                                          -7-
                                         C.

       Haynes also argues that the evidence was insufficient to support his conviction
because the evidence did not demonstrate (1) that he knowingly possessed a firearm
or (2) that he knew he was prohibited from possessing a firearm. We review
sufficiency of the evidence arguments de novo, viewing the evidence in the light
most favorable to the jury verdict. United States v. Reddest, 512 F.3d 1067, 1069-
70 (8th Cir. 2008). “We reverse only if no reasonable jury could have found the
defendant[] guilty.” United States v. Johnson, 450 F.3d 366, 372 (8th Cir. 2006).
All credibility determinations are resolved in favor of the jury’s verdict. United
States v. Wiest, 596 F.3d 906, 910 (8th Cir. 2010).

       First, Haynes’s argument that the Government failed to prove that he
knowingly possessed a firearm is unavailing. See United States v. McDonald, 826
F.3d 1066, 1072 (8th Cir. 2016) (holding that, in order to prove the element of
knowing possession, “it is sufficient if the [G]overnment proved [the defendant] had
actual or constructive possession of the firearm”). Although there were no
fingerprints or DNA linking Haynes to the weapon, Officer Harden testified he was
“100 percent certain” that he felt a gun during his pat down of Haynes. Moreover,
while no officer saw Haynes drop a gun while he ran, officers saw him jump over a
fence and stop immediately thereafter. And officers testified that they found a
loaded handgun in a flowerbed next to the fence that Haynes jumped, indicating that
Haynes dropped it there. After hearing this evidence, the jury was entitled to weigh
the credibility of Officer Harden’s testimony and credit his statement that he felt a
gun on Haynes’s person during the pat down. See Wiest, 596 F.3d at 910. Therefore,
a reasonable juror could have found that Haynes knowingly possessed a firearm.

        Second, Haynes’s argument that the Government did not present sufficient
evidence that he knew he was a convicted felon prohibited from possessing a firearm
as required by Rehaif v. United States, 588 U.S. ---, 139 S. Ct. 2191 (2019), also
fails. In Rehaif, “the Supreme Court held that to sustain a conviction under 18 U.S.C.
§ 922(g), the government must prove both that the defendant knew that he possessed


                                         -8-
a firearm and knew of his prohibited status.” United States v. Warren, 951 F.3d 946,
951 (8th Cir. 2020). We have held that a reasonable juror could conclude that a
defendant knew of his prohibited status under Rehaif when the defendant stipulated
at trial that “he had been previously convicted of a crime punishable [by] a term
exceeding one year,” the defendant was imprisoned for a term longer than one year
for a previous offense, and the defendant fled the scene of the crime. Warren, 951
F.3d at 951 (discussing the same “reasonable juror” standard that is used in
reviewing the sufficiency of the evidence, but in the plain error context); see also
United States v. Hollingshed, 940 F.3d 410, 415-16 (8th Cir. 2019). Because Haynes
had previously been imprisoned for a term longer than one year, he fled the scene of
his pat down, and he stipulated at trial that he had been previously convicted of a
crime punishable by a prison term of longer than one year, there was sufficient
evidence that he knew of his prohibited status.3

      Haynes also argues that the district court abused its discretion in denying his
motion for a new trial based on his claim of insufficient evidence. See Hallmark
Cards, Inc. v. Murley, 703 F.3d 456, 462 (8th Cir. 2013) (noting that we review a
denial of a motion for a new trial for an abuse of discretion and will not reverse
absent a “miscarriage of justice”). Based on the strength of the evidence detailed
above, we likewise find no abuse of discretion in denying the motion for a new trial.




      3
        Haynes also claims that the district court plainly erred in failing to instruct
the jury on whether he knew of his prohibited status when he possessed a firearm.
To establish plain error, a defendant must show that the error affected his substantial
rights. See United States v. Olano, 507 U.S. 725, 732 (1993). Because sufficient
evidence demonstrated that Haynes knew of his prohibited status, Haynes cannot
demonstrate that a failure to so instruct the jury affected his substantial rights, see
Warren, 951 F.3d at 951, and therefore the district did not plainly err.

                                         -9-
                                         D.

       Lastly, Haynes argues that his sentence is substantively unreasonable because
he claims the district court unfairly punished him for not accepting a plea bargain.
We review the substantive reasonableness of a sentence for an abuse of discretion.
United States v. Stoner, 795 F.3d 883, 884 (8th Cir. 2015).

       “[I]t will be the unusual case when we reverse a district court sentence—
whether within, above, or below the applicable Guidelines range—as substantively
unreasonable.” United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en
banc). A court is required to carefully weigh the factors in 18 U.S.C. § 3553(a) when
imposing a sentence. United States v. McGlothen, 556 F.3d 698, 702 (8th Cir. 2009).
“A sentencing court abuses its discretion when it fails to consider a relevant factor,
gives significant weight to an irrelevant or improper factor, or considers only
appropriate factors but nevertheless commits a clear error of judgment by arriving at
a sentence that lies outside the limited range of choice dictated by the facts of the
case.” United States v. Hernandez, 518 F.3d 613, 616 (8th Cir. 2008).

        Haynes asserts that comments made by the district court at sentencing
demonstrate that it gave undue weight to his decision not to plead guilty, suggesting
it imposed its sentence as punishment for that decision. He acknowledges that this
was not an improper factor to consider because the sentencing guidelines provide
that a defendant who accepts responsibility by pleading guilty may be eligible for a
sentence reduction. See United States v. Wilcox, 487 F.3d 1163, 1175 (8th Cir. 2007)
(“It is settled that a court, consistent with the Constitution, may grant leniency in
return for a plea of guilty, and may withhold similar leniency from a defendant who
proceeds to trial.”). We therefore consider whether the district court committed a
clear error of judgment in weighing the appropriate factors. See United States v.
David, 682 F.3d 1074, 1077 (8th Cir. 2012).




                                        -10-
       In light of the aggravating factors here, the district court did not commit a
“clear error of judgment by arriving at [its] sentence.” See Hernandez, 518 F.3d at
616. For example, the court considered the short amount of time—14 months—that
Haynes had refrained from criminal activity since his release from prison. The court
also noted that Haynes, a felon with a “very violent history who ha[d] no business
being around guns,” was on a bus using marijuana and carrying a loaded handgun.
Moreover, the sentence imposed here was within the guidelines range and not greater
than the statutory maximum. See United States v. Saguto, 929 F.3d 519, 525 (8th
Cir. 2019) (“[W]e may presume a within-Guidelines sentence is reasonable.”).
Therefore, we find no abuse of discretion in the district court’s sentencing decision.

                                         III.

      For the foregoing reasons, we affirm.
                      ______________________________




                                        -11-
