            Case: 10-15561   Date Filed: 07/12/2012   Page: 1 of 9


                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 10-15561
                          Non-Argument Calendar
                        ________________________

                D.C. Docket No. 2:09-cr-00128-MEF-TFM-1

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

RASHEEN JAHMAL SMITH,

                                                          Defendant-Appellant.
                        ________________________

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

                               (July 12, 2012)



Before EDMONDSON, MARTIN, and KRAVITCH, Circuit Judges.

PER CURIAM:

     Rasheen Jahmal Smith appeals his convictions and 60-month sentence for
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possession of marijuana, in violation of 21 U.S.C. § 844(a), and for possession

with intent to distribute more than 5 grams of cocaine base, in violation of 21

U.S.C. § 841. The charges against Smith stem from two separate searches

conducted by police after Smith was stopped for routine traffic violations. First,

on November 6, 2008, Smith was pulled over by police due to an apparent window

tint violation. Smith told the officers he had a lawfully owned and registered

firearm in the vehicle, at which point the police asked him to get out of his vehicle.

After performing a pat down frisk, one of the officers at the scene detected the

smell of marijuana coming from Smith’s vehicle. When asked about this odor,

Smith attempted to flee, but was eventually subdued and arrested. The police then

searched Smith’s vehicle, uncovering 12.4 grams of cocaine base, 2 grams of

marijuana, and a set of scales in Smith’s pocket.

      Second, Smith was stopped again on January 20, 2009, this time pursuant to

a traffic checkpoint set up by the police. After being asked to pull off to the side,

an officer on the scene, incidentally the same officer from Smith’s previous arrest,

again detected marijuana odor in Smith’s vehicle. The officers searched both

Smith and his vehicle, and discovered seven grams of marijuana stashed in

Smith’s shoe, a bag of cocaine in the vehicle, and more scales in Smith’s pockets.

      On appeal, Smith argues that the district court erred by declining to suppress

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evidence seized from his person and vehicle during these two separate traffic

stops. Smith also argues that the district court erred in declining to apply the Fair

Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), to

avoid imposing the mandatory minimum sentence required by the version of 21

U.S.C. § 841 in effect at the time he committed his offenses. After thorough

review of the record and the parties’ briefs, we affirm the conviction, but remand

for re-sentencing under the new FSA sentencing regime.

                                           I.

      First, Smith argues that the district court erred by refusing to suppress

evidence seized from his person and his vehicle during a November 6, 2008 traffic

stop. In reviewing the denial of a motion to suppress evidence, we review for

clear error the district court’s findings of fact and review de novo the district

court’s application of the law to those facts. United States v. Gil, 204 F.3d 1347,

1350 (11th Cir. 2000). Furthermore, we construe “all facts . . . in the light most

favorable to the party prevailing in the district court—in this case, the

government.” United States v. Ramirez, 476 F.3d 1231, 1236 (11th Cir. 2007).

      A law enforcement officer may permissibly order a driver to exit a car when

he has lawfully detained a vehicle for a traffic violation. Pennsylvania v. Mimms,

434 U.S. 106, 111 n.6, 98 S. Ct. 330, 333 n.6 (1977) (per curiam). Moreover, in

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connection with a traffic stop, an officer may conduct a pat down search if he has

reason to believe that his own safety or the safety of others is at risk. United

States v. White, 593 F.3d 1199, 1202 (11th Cir. 2010) (citing Terry v. Ohio, 392

U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968)).

      In addition, “[i]t is well settled that a search incident to a lawful arrest is a

traditional exception to the warrant requirement of the Fourth Amendment.”

United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 471 (1973). A search

incident to arrest may include both “the arrestee’s person and the area within his

immediate control,” meaning “the area from within which he might gain

possession of a weapon or destructible evidence.” Arizona v. Gant, 556 U.S. 332,

339, 129 S. Ct. 1710, 1716 (2009) (quotation marks omitted).

      We find no error in the traffic stop and subsequent search of Smith’s

vehicle. To begin, there is no dispute that the traffic stop itself was permissible.

Nor was the subsequent detention constitutionally problematic. Indeed, Smith

concedes that the officers were entitled to detain him, albeit briefly, in light of

Smith’s revelation that he had a firearm that itself was in plain view. But even

without Smith’s concessions, both the initial stop and detention accord with the

Fourth Amendment. See, e.g., Whren v. United States, 517 U.S. 806, 810, 116 S.

Ct. 1769, 1772 (1996) (“As a general matter, the decision to stop an automobile is

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reasonable where the police have probable cause to believe that a traffic violation

has occurred.”); New York v. Class, 475 U.S. 106, 116, 106 S. Ct. 960, 967 (1986)

(police officer may order suspect to leave car upon observation of firearm in

passenger seat).

       Smith argues, however, that the pat down that ensued after he was detained

was unconstitutional. To this end, he contends that Officer McCord “exceeded the

proper scope of a pat down.” Because we conclude that the search was in fact

conducted incident to arrest, we cannot agree that Officer McCord exceeded the

scope of a permissible search. Specifically, Officer McCord testified that after

Smith got out of his vehicle, Officer McCord questioned Smith regarding

marijuana odor emanating from the vehicle.1 Upon asking Smith about this odor,

Smith attempted to flee. By so doing in response to the officer’s detection of

       1
          Smith argues that we should dismiss Officer McCord’s testimony as lacking credibility.
Specifically, Smith calls our attention to expert testimony suggesting that the marijuana found in
Smith’s car was not substantial enough to create enough odor for Officer McCord to detect it
under the conditions of the traffic stop, and additionally that another officer at the scene did not
similarly detect marijuana. He submits that, as a result, the magistrate judge’s decision to credit
Officer McCord at Smith’s expense was in error.
         We cannot agree. We afford considerable deference to a credibility determination, United
States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002), and will not reverse such a
determination 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. (quotation marks omitted). That
burden has not been met here. First, Smith’s expert testified that although the marijuana found in
the car could not create sufficient odor, the smell of marijuana previously in the car may have
been detectable when Smith was first stopped. Second, even if the officer accompanying Officer
McCord did not detect marijuana odor, we think that, standing alone, this is not the sort of
inconsistency that warrants reversing a credibility determination. See id.

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marijuana and suspicion that contraband was present in Smith’s vehicle, Smith

provided sufficient probable cause for the officers to both arrest him and to

conduct a search incident to that arrest. See Chimel v. California, 395 U.S. 752,

762–63, 89 S. Ct. 2034, 2040 (1969) (“When an arrest is made, it is reasonable for

the arresting officer to search the person arrested in order to remove any weapons

that the latter might seek to use in order to resist arrest or effect his escape.”); see

United States v. Dotson, 49 F.3d 227, 231 (6th Cir. 1995) (collecting authorities

for proposition that a defendant’s “efforts to flee, coupled with [a law enforcement

officer’s] reasonable suspicion that [the defendant] was involved in criminal

activities, established probable cause to arrest [the defendant]”); see also United

States v. Lueck, 678 F.2d 895, 903 (11th Cir. 1982) (“[T]he recognizable smell of

marijuana gives rise to probable cause supporting a warrantless search.”).

      Thus, Officer McCord did not violate Smith’s Fourth Amendment rights

when he searched Smith, even if the search exceeded that permissible in a routine

pat down. As a result, the district court properly denied Smith’s motion to

suppress evidence seized during the November 6, 2008 traffic stop.

                                           II.

      Smith next argues that the district court erred by refusing to suppress

evidence seized from his person and his vehicle during the January 20, 2009

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traffic stop. We cannot agree. As with the first traffic stop, Officer McCord

credibly testified that he detected marijuana odor emanating from Smith’s car.2

Upon detecting this odor, the officers were justified to conduct the the search of

the vehicle. United States v. Garcia, 592 F.2d 259, 260 (5th Cir. 1979)

(suggesting that the smell of marijuana justified the search of a vehicle);3 see also

United States v. Tobin, 923 F.2d 1506, 1512 (11th Cir. 1991) (“There is no doubt

that the agent’s suspicions rose to the level of probable cause when, as the door

stood open, he detected what he knew from his law enforcement experience to be

the odor of marijuana.”). As a result, the vehicle search was permissible, and the

cocaine recovered was admissible at trial against Smith.

       Moreover, because the discovery of cocaine in the vehicle would have

permitted the officers to search Smith incident to his arrest for possessing that

cocaine, the magistrate judge properly found that the officers would inevitably

have discovered the marijuana in Smith’s shoe. See Jefferson v. Fountain, 382

F.3d 1286, 1296 (11th Cir. 2004) (explaining that doctrine of inevitable discovery



       2
          Smith again challenges the credibility of Officer McCord, but for the same reasons as
before, we conclude that Smith has failed to overcome the high degree of deference we afford
credibility determinations. See supra note 1(citing Ramirez-Chilel, 289 F.3d at 749).
       3
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
close of business on September 30, 1981.

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permits introduction of evidence that would have been eventually found, even if

the search that uncovered it was itself unconstitutional). For these reasons, we

hold that the district court also properly denied Smith’s motion to suppress the

evidence seized during the January 20, 2009, traffic stop.

                                         III.

      Finally, Smith argues that the district court erred by sentencing him to the

mandatory minimum that was in effect at the time of his conduct. Smith’s conduct

occurred in 2008 and 2009, but he was not sentenced until November 24, 2010. In

the interim, however, the FSA was signed into law on August 3, 2010. See Pub.

L. No. 111-220, 124 Stat. 2372, 2374 (2010). Smith argued before the district

court, and now to us on appeal, that he is entitled to the benefit of the FSA’s

reduced mandatory minimums. He correctly points out that under the changes

wrought by the FSA, the 12.4 grams of cocaine base he possessed would not

trigger the 5-year mandatory minimum that was applied to him at sentencing.

Compare 21 U.S.C. § 841(b)(1)(B)(iii) (2010) (prescribing 5 year mandatory

minimum for possession of 28 grams or more of mixture containing cocaine base)

with 21 U.S.C. § 841(b)(1)(B)(iii) (2008) (imposing 5 year mandatory minimum

for possession of 5 grams or more of mixture containing cocaine base).

      We are compelled to reverse in light of the Supreme Court’s ruling in

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Dorsey v. United States, ___ S. Ct. ___, 2012 WL 2344463 (U.S. June 21, 2012),

in which the Court “conclude[d] that Congress intended the Fair Sentencing Act’s

new, lower mandatory minimums to apply to the post-Act sentencing of pre-Act

offenders.” Id. at *14. This holding plainly applies to Smith who was not

sentenced until November 24, 2012. Because Dorsey has just been decided, the

district court could not have known at the time that it could consider sentencing

Smith below the pre-FSA mandatory minimums. We must therefore vacate

Smith’s sentence and remand for resentencing consistent with the Dorsey opinion.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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