                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                               FEB 9, 2007
                               No. 05-15999                 THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                      D. C. Docket No. 04-00012-CR-F-S

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

CLAUDE LEE WOODS,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Alabama
                       _________________________

                              (February 9, 2007)

Before ANDERSON, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

     Appellant Claude Lee Woods appeals the district court’s order denying his
motion to suppress evidence discovered during a search of his car. He also appeals

his conviction and 262-month sentence, imposed after a jury found him guilty of

possession with intent to distribute 50 grams or more of methamphetamine, in

violation of 21 U.S.C. § 841(a)(1). Finally, Woods appeals the district court’s

order denying his motion to dismiss for violation of his speedy trial and double

jeopardy rights.

      This case involved a warrantless search of Woods’s car, during which police

officers found more than 149 grams of methamphetamine and other drug

paraphernalia. Woods argues that there was no probable cause for the police

officers to stop him or to perform a search of his car. Woods also argues that there

is insufficient evidence to support a finding that he intended to distribute

methamphetamine. Further, he contends that the district court erred in calculating

his guideline sentence range and imposed an unreasonable sentence. Finally,

Woods alleges that the district court erred in denying his motion to dismiss for

violation of his speedy trial rights because too much time passed between his

indictment and trial, and for violation of his double jeopardy rights because, he

alleges, the state civil forfeiture of his property should have barred the federal

prosecution.




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                                 I. Motion to Suppress

         In reviewing a district court’s denial of a motion to suppress, we employ a

mixed standard of review. United States v. Simms, 385 F.3d 1347, 1356 (11th Cir.

2004). We review the district court’s findings of fact for clear error, and the

district court’s application of the law to those facts de novo. Id. “[W]hen

considering a ruling on a motion to suppress, all facts are construed in the light

most favorable to the party prevailing in the district court,” which is the

government in this case. United States v. Hromada, 49 F.3d 685, 688 (11th Cir.

1995).

         The Fourth Amendment guarantees that individuals will be “secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.”

U.S. C ONST. amend. IV. “Temporary detention of individuals during the stop of an

automobile by the police, even if only for a brief period and for a limited purpose,

constitutes a ‘seizure’ of ‘persons’ within the meaning of this provision.” Whren v.

United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 1772 (1996). Therefore, an

automobile stop is “subject to the constitutional imperative that it not be

‘unreasonable’ under the circumstances.” Id. at 810, 116 S. Ct. at 1772. The

“decision to stop an automobile is reasonable where the police have probable cause

to believe that a traffic violation has occurred.” Id. Alabama law prohibits



                                            3
individuals from operating motor vehicles if they are under the influence of

alcohol. A LA. C ODE § 32-5A-191(a).

      Regarding the scope of a law enforcement officer’s ability to search a

suspect, his possessions, or his residence, “[t]he Fourth Amendment generally

requires police to secure a warrant before conducting a search.” Maryland v.

Dyson, 527 U.S. 465, 466, 119 S. Ct. 2013, 2014 (1999). Searches of vehicles,

however, are an established exception to the requirement for a warrant. Id. The

automobile exception allows officers to search any item or compartment in the car

that might contain the object of the search without a warrant, as long as they have

probable cause to believe that it holds evidence of a crime. United States v.

Strickland, 902 F.2d 937, 942 (11th Cir. 1990). The automobile exception does

not contain a separate exigency requirement. Dyson, 527 U.S. at 466-67, 119 S.

Ct. at 2014. “If a car is readily mobile and probable cause exists to believe it

contains contraband, the Fourth Amendment permits police to search the vehicle

without more.” Id. at 467, 119 S. Ct. at 2014 (quotation omitted). “[T]he

requirement of exigent circumstances is satisfied by the ‘ready mobility’ inherent

in all automobiles that reasonably appear to be capable of functioning.” United

States v. Nixon, 918 F.2d 895, 903 (11th Cir. 1990).

      We decide probable cause issues on an objective basis, without regard to the



                                           4
law enforcement officers’ subjective beliefs. Craig v. Singletary, 127 F.3d 1030,

1042 (11th Cir. 1997). “Probable cause for a search exists when under the totality

of the circumstances there is a fair probability that contraband or evidence of a

crime will be found in a particular place.” United States v. Magluta, 418 F.3d

1166, 1182 (11th Cir. 2005) (quotations omitted), cert. denied, 126 S. Ct. 2966

(2006).

      Here, we conclude from the record that the district court correctly denied

Woods’s motion to suppress because there was probable cause for the traffic stop

and probable cause for the search of Woods’s car. First, construing the evidence in

the light most favorable to the government, the traffic stop was not pretextual

because the officers observed Woods weave over the fog line at least three times.

This weaving was sufficient to establish probable cause that a traffic violation

occurred because weaving indicates that the driver may be under the influence of

alcohol, which is a traffic violation in Alabama. See Strickland, 902 F.2d at 939-

41; A LA. C ODE § 32-5A-191(a).

      Second, the officers had probable cause to search Woods’s car, making the

search lawful. See Magluta, 418 F.3d at 1182. Both police officers observed that

Woods had an opened alcoholic beverage in his lap while driving. They also

observed rolling papers in the driver’s side door that are commonly used to make



                                          5
marijuana cigarettes. Both officers smelled the faint odor of burnt marijuana.

Given all of these observations, the officers had probable cause to believe that

contraband would be found in the car. We conclude that the district court properly

denied Woods’s motion to suppress because the warrantless search was legal under

the automobile exception.

                          II. Sufficiency of the Evidence

      We review “challenges to the sufficiency of the evidence de novo, viewing

the evidence in the light most favorable to the government.” United States v.

Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000). “A conviction must be upheld

unless the jury could not have found the defendant guilty under any reasonable

construction of the evidence.” United States v. Chastain, 198 F.3d 1338, 1351

(11th Cir. 1999). We do not consider the sufficiency of the evidence to prove

elements that are not challenged on appeal. See United States v. Starrett, 55 F.3d

1525, 1541-42 (11th Cir. 1995).

      Section 841(a)(1) of Title 21of the U.S. Code defines the offense of which

Woods was convicted and states that “it shall be unlawful for any person

knowingly or intentionally to manufacture, distribute, or dispense, or possess with

intent to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C.

§ 841(a)(1). In order to convict a defendant of possession with the intent to



                                          6
distribute methamphetamine, the government must establish three elements:

“(1) knowledge; (2) possession; and (3) intent to distribute.” United States v.

Gamboa, 166 F.3d 1327, 1331 (11th Cir.1999) (quotation omitted). The intent to

distribute may be inferred from the amount of drugs involved. United States v.

Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005), cert. denied, 126 S. Ct. 1635

(2006).

      In the present case, Woods only challenges whether the evidence is

sufficient to show that he intended to distribute the methamphetamine and does not

dispute any other element of the offense. Woods’s argument that insufficient

evidence supports the conviction because the government did not show evidence of

drug sales, but only of possession of a large amount of drugs, fails. Viewing the

evidence in the light most favorable to the government, the large amount of

methamphetamine in Woods’s possession, over 149 grams, and Woods’s

possession of materials related to drug distribution, including electronic scales,

sandwich bags, and a large number of rolled $ 100 bills, support a finding that

Woods intended to distribute the methamphetamine. Therefore, we affirm

Woods’s conviction.

                            III. Sentencing Guidelines

      A.     Calculation of Guidelines Range



                                           7
      Although the Supreme Court’s decision in United States v. Booker, 543 U.S.

220, 125 S. Ct. 738 (2005), rendered the Guidelines advisory and established a

reasonableness standard for reviewing the ultimate sentence imposed on a

defendant, the district court still is obligated to consult the Guidelines and

“calculate correctly the sentencing range prescribed by the Guidelines.” United

States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). In this appeal, Woods

challenges whether the district court correctly calculated his guidelines range

because he argues the court made factual findings in violation of the Sixth

Amendment, based its calculation on prior convictions that had been consolidated

for sentencing, and failed to give a two-level decrease for acceptance of

responsibility.

      1. Enhancements Not Found By the Jury

      Woods argues that his Sixth Amendment right to a trial by jury was violated

by judicial fact-finding at the sentencing hearing. 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. See Booker, 543 U.S. at

249-53, 125 S. Ct. at 759-61. However, a constitutional error only occurs where

the sentencing judge applies the Guidelines as if they are mandatory after using



                                            8
extra-verdict enhancements to reach a guidelines range. See United States v.

Rodriguez, 398 F.3d 1291, 1301 (11th Cir.), cert. denied, 545 U.S. 1127 (2005).

      Here, Woods’s argument presumably refers to the enhancement for the drug

quantity involved in the offense. Although the district court had to determine the

amount of drugs involved in order to set the base offense level, it did not consider

the Guidelines mandatory when imposing the sentence. See Rodriguez, 398 F.3d at

1301. Therefore, Woods’s argument that his Sixth Amendment rights were

violated by judicial fact-finding fails.

      2. Criminal History

      Woods argues that several of his prior convictions should not have been

counted separately when determining his criminal history score because the

convictions had been consolidated for sentencing purposes. Section 4A1.2 of the

Guidelines provides, “Prior sentences imposed in unrelated cases are to be counted

separately.” U.S.S.G. § 4A1.2(a)(2). Unrelated cases are those where an

intervening arrest occurred between offenses. Id., comment. (n.3). If there was no

intervening arrest and the offenses were consolidated for sentencing purposes, the

cases are considered related. Id.

      After reviewing the record, we conclude that Woods’s prior convictions

were properly counted separately when determining his criminal history score



                                           9
because they were separated by intervening arrests. Therefore, Woods’s criminal

history score was calculated correctly.

      3. U.S.S.G. § 3E1.1

      Woods argues that the district court should have given him a downward

adjustment for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. We

review the district court’s decision whether to adjust a sentence for acceptance of

responsibility only for clear error. United States v. Brenson, 104 F.3d 1267, 1288

(11th Cir. 1997). Section 3E1.1(a) of the Guidelines states, “If the defendant

clearly demonstrates acceptance of responsibility for his offense, decrease the

offense level by 2 levels.” U.S.S.G. § 3E1.1(a). The commentary to § 3E1.1

provides,

      This adjustment is not intended to apply to a defendant who puts the
      government to its burden of proof at trial by denying the essential
      factual elements of guilt, is convicted, and only then admits guilt and
      expresses remorse.       Conviction by trial, however, does not
      automatically preclude a defendant from consideration for [the
      acceptance of responsibility] reduction. In rare situations a defendant
      may clearly demonstrate an acceptance of responsibility for his
      criminal conduct even though he exercises his constitutional right to a
      trial. This may occur . . . where a defendant goes to trial to assert and
      preserve issues that do not relate to factual guilt . . . . [H]owever, a
      determination that a defendant has accepted responsibility will be
      based primarily upon pre-trial statements and conduct.

Id., comment. (n.2). Applying this commentary, we have held that where a

defendant denied an essential element of the crime at trial and where the decision

                                          10
to proceed to trial was not to challenge the applicability or constitutionality of the

statute, the trial court’s decision to deny an acceptance of responsibility reduction

was not clear error. See Brenson, 104 F.3d at 1289.

      The record demonstrates that Woods went to trial and denied that he

intended to distribute the methamphetamine. Intent to distribute was an element of

the crime for which he was indicted. See Gamboa, 166 F.3d at 1331. Because

Woods disputed an element of the crime at trial, we conclude that the district court

did not clearly err in finding that he failed to qualify for an acceptance of

responsibility reduction. See U.S.S.G. § 3E1.1, comment. (n.2).

      B.     Reasonableness of Sentence

      We review final sentences for reasonableness, and the defendant has the

burden of establishing that the sentence is unreasonable. United States v. Talley,

431 F.3d 784, 788 (11th Cir. 2005). “Review for reasonableness is deferential.”

Id. Following Booker, we held that, in imposing a sentence, the district court must

first accurately calculate the defendant’s guideline range and, second, consider the

factors set forth in 18 U.S.C. § 3553(a) to determine a reasonable sentence. Id. at

786. The § 3553(a) factors include:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant; (2) the need to reflect the seriousness
      of the offense, to promote respect for the law, and to provide just
      punishment for the offense; (3) the need for deterrence; (4) the need to

                                           11
      protect the public; (5) the need to provide the defendant with needed
      educational or vocational training or medical care; (6) the kinds of
      sentences available; (7) the Sentencing Guidelines range; (8) pertinent
      policy statements of the Sentencing Commission; (9) the need to
      avoid unwanted sentencing disparities; and (10) the need to provide
      restitution to victims.

Id. (citing 18 U.S.C. § 3553(a)). However, “nothing in Booker or elsewhere

requires the district court to state on the record that it has explicitly considered

each of the 3553(a) factors or to discuss each of the 3553(a) factors.” United

States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). Rather it is sufficient, under

Booker, for the district court to acknowledge that “it has considered the

defendant’s arguments and the factors in section 3553(a).” Talley, 431 F.3d at 786.

In addition, while a sentence within the guidelines range is not per se reasonable, it

is expected to be reasonable. Id. at 788.

      Woods’s sentence is reasonable. First, as discussed above, the district court

properly calculated Woods’s guideline range. Second, the district court not only

stated that it had considered the 18 U.S.C. § 3553(a) factors, but specifically listed

the ones it found most important in Woods’s case. Third, the district court stated

that a lower sentence would have been insufficient to accomplish the goals of the

§ 3553(a) factors. Fourth, the district court sentenced Woods within the guideline

range. Because the district court properly calculated the guidelines range and

imposed a reasonable sentence, we affirm Woods’s sentence.

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                                   IV. Motion to Dismiss

       A.      Speedy Trial

       Woods does not indicate whether his motion to dismiss for violation of his

speedy trial rights relies on the Speedy Trial Act or the Speedy Trial Clause of the

Constitution. However, Woods’s arguments before the sentencing court

concerning a specific number of days allowed between phases of a criminal

prosecution indicates that he relied on the Speedy Trial Act.1 We review a claim

under the Speedy Trial Act de novo. United States v. Dunn, 345 F.3d 1285, 1288

(11th Cir. 2003). The Speedy Trial Act provides, in pertinent part, that “[f]ailure

of the defendant to move for dismissal prior to trial or entry of a plea of guilty or

nolo contendere shall constitute a waiver of the right to dismissal under this

section.” 18 U.S.C. § 3162(a)(2); United States v. Miles, 290 F.3d 1341, 1349 n.5

(11th Cir. 2002).

       The record demonstrates that Woods did not move for dismissal until the

sentencing hearing, after his trial and conviction. Therefore, Woods waived any

right to have the case dismissed for violation of the Speedy Trial Act, see 18


       1
         Although we address Woods’s argument under the Speedy Trial Act, Woods’s
argument would also fail under the Speedy Trial Clause because he caused any delay that existed
between his indictment and trial, given that he was in state prison after the indictment and filed
two written and signed speedy trial waivers before his trial commenced. See United States v.
Clark, 83 F.3d 1350, 1353 (11th Cir. 1996); United States v. Twitty, 107 F.3d 1482, 1490 (11th
Cir. 1997).

                                                13
U.S.C. § 3162(a)(2); Miles, 290 F.3d at 1349 n.5, and we affirm the district court’s

denial of his motion to dismiss for violation of speedy trial rights.

      B.     Double Jeopardy

      We review de novo a district court’s ruling on double jeopardy. United

States v. Baptista-Rodriguez, 17 F.3d 1354, 1360 (11th Cir. 1994). The Double

Jeopardy Clause provides that “[n]o person shall . . . be subject for the same

offence to be twice put in jeopardy of life or limb.” U.S. C ONST. amend. V. This

constitutional safeguard is founded on the principle that

      the State with all its resources and power should not be allowed to
      make repeated attempts to convict an individual for an alleged
      offense, thereby subjecting him to embarrassment, expense and ordeal
      and compelling him to live in a continuing state of anxiety and
      insecurity, as well as enhancing the possibility that even though
      innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88, 78 S. Ct. 221, 223 (1957). The

Double Jeopardy Clause protects defendants in three situations: a second

prosecution for the same offense after acquittal; a second prosecution for the same

offense after conviction; and multiple punishments for the same offense. Jones v.

Thomas, 491 U.S. 376, 380-81, 109 S. Ct. 2522, 2525 (1989).

      The Double Jeopardy Clause applies to proceedings that are “essentially

criminal,” as well as to criminal proceedings. See Helvering v. Mitchell, 303 U.S.

391, 398-99, 58 S. Ct. 630, 633 (1938). The Double Jeopardy Clause does not

                                           14
apply in several contexts. For example, because they are in rem proceedings in

which the government proceeds against property, civil forfeiture proceedings are

not criminal proceedings against the defendant. Waterloo Distilling Corp. v.

United States, 282 U.S. 577, 581, 51 S. Ct. 282, 284 (1931).

      Double Jeopardy issues also may arise when more than one sovereign

prosecutes the defendant. Convictions on identical offenses with identical

elements do not violate the Double Jeopardy Clause when the charges arose in two

separate sovereigns. United States v. 817 N.E. 29th Drive, Wilton Manors, Fla.,

175 F.3d 1304, 1311 (11th Cir. 1999). This is based upon the common law

concept that a crime is an offense against the sovereignty of a government. Heath

v. Alabama, 474 U.S. 82, 88, 106 S. Ct. 433, 437 (1985). Thus, the Double

Jeopardy Clause does not bar successive prosecutions by a state and the federal

government. 817 N.E. 29th Drive, 175 F.3d at 1311.

      Woods argues that the federal prosecution violated his double jeopardy

rights because the state had already civilly forfeited his property, and the two

proceedings constituted two punishments for the same crime. Woods’s arguments

are without merit. First, civil forfeitures are not punishment under the Double

Jeopardy Clause and, therefore, the federal prosecution and punishment was not a

second jeopardy. See Waterloo Distilling Corp., 282 U.S. at 581, 51 S. Ct. at 284.



                                          15
Second, the civil forfeiture was done by the City of Dothan in the State of

Alabama, whereas this case was prosecuted by the federal government. The State

of Alabama and the federal government are separate sovereigns, and each may

prosecute Woods for his violation of each sovereign’s laws. See 817 N.E. 29th

Drive, 175 F.3d at 1311. Therefore, we conclude that the district court did not

violate Woods’s double jeopardy rights, and we affirm the district court’s denial of

Woods’s motion to dismiss.

                                  V. Conclusion

      For the above-stated reasons, we affirm the district court’s orders denying

Woods’s motion to suppress and his motion to dismiss. We also affirm Woods’s

conviction and sentence.

      AFFIRMED.




                                         16
