           Case: 13-11046   Date Filed: 06/19/2014   Page: 1 of 18




                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11046
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 7:12-cr-00004-HL-TQL-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

QUENTALIN BROWN,

                                                          Defendant-Appellant.

                       ________________________

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

                              (June 19, 2014)

Before TJOFLAT, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
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      A Middle District of Georgia grand jury indicted Quentalin Brown on five

counts. Four counts charged violations of 21 U.S.C. § 841(a)(1): Count One,

distribution of cocaine on July 27, 2011; and Counts Two and Three, possession

with intent to distribute cocaine on August 12, 2011; Count Four, possession with

intent to distribute marijuana on August 12, 2011. Count Five charged possession

of firearms in furtherance of the offenses charged in the previous counts, in

violation of 18 U.S.C. § 924(c)(1)(A)(i). Brown moved the District Court to

suppress evidence found during the search of his residence pursuant to a search

warrant. The court denied his motion, and he stood trial. The Jury found him

guilty of Counts One through Four, and acquitted him on Count Five. The District

Court thereafter sentenced Brown to concurrent prison terms: 200 months on

Counts One through Three, and 120 months on Count Four.

      Brown appeals his convictions and sentences. He challenges his convictions

on these grounds: (1) the district court erred in denying his motion to suppress

because state officers violated Fed. R. Cr. P. 41(b) by obtaining a search warrant

for his residence from the Superior Court of Tift County, Georgia, instead of a

federal magistrate judge; and (2) the district court erred in admitting witness

testimony about his uncharged prior drug dealing because he did not have

sufficient notice, and the evidence was not admissible under Fed. R. Evid. 404(b).

He challenges his sentences on the grounds that (1) the district court clearly erred


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by including the unrelated, uncharged drug sales from that testimony in his

relevant conduct for sentencing purposes; (2) the district court should not have

assessed him a two-point enhancement of his offense level based on prior

shoplifting convictions, because the Ninth Circuit Court of Appeals has held that

misdemeanor shoplifting convictions are similar to the excluded offense of

“insufficient funds check,” and therefore should also be excluded; and (3) the

district court clearly erred by assessing another two-point enhancement because a

firearm was possessed during his commission of the Counts One through Four

drug offenses and doing so violated his Fifth and Sixth Amendment rights. We

address first Brown’s challenges to his convictions, then his sentences.

                                         I.

                                         A.


      A district court’s denial of a motion to suppress is a mixed question of law

and fact. United States v. Frank, 599 F.3d 1221, 1228 (11th Cir. 2010). We

review factual findings for clear error, and the district court’s application of the

law to those facts de novo. Id. When considering a ruling on a motion to suppress,

all facts are construed in the light most favorable to the prevailing party. United

States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000).

      Rule 41 states that, at the request of a federal law enforcement officer or

government attorney, “a magistrate judge with authority in the district—or if none

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is reasonably available, a judge of a state court of record in the district—has

authority to issue a warrant to search for and seize a person or property located

within the district.” Fed. R. Crim. P. 41(b)(1).

      Rule 41 governs searches that are “federal in execution.” United States v.

Lehder-Rivas, 955 F.2d 1510, 1522 (11th Cir. 1992). A search is federal in

execution if a federal official had a hand in it. Id. In Lehder-Rivas, we held that a

warrant was federal in nature, and thus subject to Rule 41, because federal agents

had provided intelligence to state officers during an investigation. Id.

      We have stated that when analyzing alleged violations of Rule 41 relating to

search warrants:

      Unless a clear constitutional violation occurs, noncompliance with
      Rule 41 requires suppression of evidence only where (1) there was
      ‘prejudice’ in the sense that the search might not have occurred or
      would not have been so abrasive if the rule had been followed, or (2)
      there is evidence of an intentional and deliberate disregard of a
      provision in the Rule.

United States v. Gerber, 994 F.2d 1556, 1560 (11th Cir. 1993) (quoting United

States v. Loyd, 721 F.2d 331, 333 (11th Cir. 1983)) (emphasis in original).

      The former Fifth Circuit addressed the applicability of Rule 41(b)’s

predecessor to warrants obtained by state officers in Navarro v. United States, 400

F.2d 315 (5th Cir. 1968), overruled by United States v. McKeever, 905 F.2d 829

(5th Cir. 1990). At that time, Rule 41(a) read as follows:



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      Authority to Issue Warrant. A search warrant authorized by this rule
      may be issued by a judge of the United States or of a state,
      commonwealth or territorial court of record or by a United States
      Commissioner within the district wherein the property sought is
      located.

Navarro, 400 F.2d at 316. The court determined that a search warrant for a federal

search that was obtained by a state officer from the San Antonio Corporation

Court, which was not a court of record under Texas law, violated Rule 41, and the

evidence from that search should have been suppressed. Id. at 316-20. However,

the Fifth Circuit later ruled that Rule 41’s 1972 amendments made clear that the

rule only applied to warrants issued upon the request of federal officers or

government attorneys, and overruled Navarro to the extent that it said otherwise.

McKeever, 905 F.2d at 833.

      The Fourth Circuit has held that Rule 41(b) is not triggered by a federal

investigation, but instead by a federal warrant proceeding. United States v.

Claridy, 601 F.3d 276, 281 (4th Cir. 2010). According to the Fourth Circuit,

“there is nothing in the Federal Rules of Criminal Procedure that suggests that in a

joint federal-state law-enforcement investigation, all search warrants must be

obtained under the Federal Rules of Criminal Procedure.” Id. at 282.

      A search is federal in execution, thus implicating federal standards for the

warrant, when federal officers provide intelligence to state officers during an

investigation, Lehder-Rivas, 955 F.2d at 1522, so the DEA’s involvement in the


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instant case arguably caused the search of Brown’s residence to be “federal in

execution,” making Rule 41 applicable. However, even if Rule 41 applied, Rule

41(b) was not violated. The warrant for Brown’s residence was obtained in state

court by a state officer. The language of Rule 41(b) grants authority to federal

magistrates and state court judges to issue federal warrants when they are

requested by federal agents or government attorneys. Fed. R. Crim. P. 41(b)(1). It

does not speak to requests from state officers, as was the case here, nor does it ban

a state warrant from being used during a joint state-federal investigation. While

we have not previously weighed in on the issue, other circuits have agreed with

this interpretation of the rule. See Claridy, 601 F.3d at 281-82; McKeever, 905

F.2d at 833. Additionally, neither the facts stipulated at the suppression hearing,

nor any evidence at trial, detailed whether a federal magistrate was “reasonably

available” when the warrant was issued by a state court judge, and Brown does not

address the issue in his brief. Since Rule 41 authorizes state courts to issue

warrants when a federal magistrate is not “reasonably available,” Brown has not

shown that it was improper for the state court to issue the warrant. See Fed. R.

Crim. P. 41(b).

      Moreover, even if the search warrant was not issued in compliance with

Rule 41(b), Brown has not shown that suppression was the proper remedy. See

Gerber, 994 F.2d at 1560. First, even if Rule 41 is viewed as an extension of the


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Fourth Amendment, obtaining the warrant from a state court was not a clear

violation, because the rule does not clearly address warrants obtained by state

officers, and because it is not clear from the record whether a federal magistrate

judge was “reasonably available” when the state court judge issued the warrant.

See Fed. R. Crim. P 41(b). Additionally, Brown did not argue at the suppression

hearing that officers did not have probable cause to search his residence, and he

does not make that argument on appeal. Therefore, he has failed to show that the

alleged Rule 41 violation “prejudiced” him in the sense that the search might not

have occurred or might not have been so abrasive otherwise. Gerber, 994 F.2d at

1560. Finally, the district court did not clearly err when it found that there was no

bad faith, considering that Brown did not support his assertion to the contrary with

any evidence.

                                           B.

      Evidentiary rulings are reviewed for an abuse of discretion. United States v.

Range, 94 F.3d 614, 620 (11th Cir. 1996). We review only “for plain error those

issues to which the defendant did not make timely objections in the district court.”

United States v. Parrish, 427 F.3d 1345, 1347 (11th Cir. 2006). Under that

standard, if the error is plain and it affects substantial rights, we have the

discretionary authority to provide relief if the error seriously affects the fairness,




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integrity, or public reputation of judicial proceedings. United States v. Olano, 507

U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993).

      Federal Rule of Evidence 404(b) provides that “[e]vidence of a crime,

wrong, or other act is not admissible to prove a person’s character in order to show

that on a particular occasion the person acted in accordance with the character.”

Fed. R. Evid. 404(b)(1). However, the rule goes on to state that such evidence

“may be admissible for another purpose, such as proving motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.” Fed. R. Evid. 404(b)(2).

      We use a three-part test to determine whether prior bad acts are admissible

under Rule 404(b):

      First, the evidence must be relevant to an issue other than the
      defendant's character; Second, the act must be established by
      sufficient proof to permit a jury finding that the defendant committed
      the extrinsic act; Third, the probative value of the evidence must not
      be substantially outweighed by its undue prejudice . . . .

United States v. Matthews, 431 F.3d 1296, 1310-11 (11th Cir. 2005) (quotation

marks omitted).

      Evidence of prior drug dealings is “highly probative of intent to distribute a

controlled substance.” United States v. Sanders, 668 F.3d 1298, 1314 (11th Cir.

2012). The risk of unfair prejudice can be reduced by an appropriate limiting

instruction. United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005).


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      Evidence of criminal activity other than the offense charged is not extrinsic,

and thus falls outside the scope of Rule 404(b) if the evidence is: “(1) an uncharged

offense which arose from the same transaction or series of transactions as the

charged offense, (2) necessary to complete the story of the crime, or (3)

inextricably intertwined with the evidence regarding the charged offense.” United

States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007).

      On request by a defendant in a criminal case, the prosecutor must provide

reasonable notice of the general nature of any Rule 404(b) evidence that the

prosecutor intends to offer at trial. Fed. R. Evid. 404(b)(2)(A). The government

alerted Brown several months before trial that it anticipated that its confidential

informant would testify “about her prior dealings with Defendant Brown at trial,

particularly the number and locations of said transactions, the amounts of cocaine

and/or other illegal narcotics transacted, the prices paid therefore.” Thus, as an

initial matter, the prosecutor provided reasonable notice of the general nature of its

confidential informant’s Rule 404(b) testimony. See Fed. R. Evid. 404(b)(2)(A).

      Brown objected to the notice he received regarding the confidential

informant’s testimony, but he did not object to the admissibility of that testimony

under Rule 404(b), nor did he object to the admissibility of three other witnesses’

testimony about their past drug dealings with Brown. Therefore, whether the




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district court admitted that evidence in violation of Rule 404(b) is reviewed only

for plain error. Parrish, 427 F.3d at 1347.

      The evidence of Brown’s prior drug dealings satisfied our three-part test for

determining admissibility under Rule 404(b). See Matthews, 431 F.3d at 1310-11.

Counts Two through Four were possession “with intent to distribute” charges

involving the drugs seized during the traffic stop and the search of Brown’s

residence. Therefore, Brown’s intent to distribute those drugs was relevant,

satisfying the first part of the test. The government established the prior acts

through specific witness testimony—sufficient proof to allow a jury to find that the

prior acts had been committed, in satisfaction of the test’s second part. Finally, the

evidence of the past drug dealings was highly probative of Brown’s intent to

distribute the drugs at issue. Sanders, 668 F.3d at 1314. The district court also

diminished any unfair prejudice caused by the evidence’s admission through

limiting instructions to the jury, both during the presentation of evidence and

during its final instructions. Therefore, the third part of the test for admissibility of

Rule 404(b) evidence was satisfied, because the high probative value of the

evidence was not substantially outweighed by the danger of unfair prejudice. As

such, the district court did not err, much less plainly err, by admitting testimony

regarding Brown’s uncharged prior drug dealings.

                                           II.


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      We review the district court’s factual findings for clear error, and the court’s

application of the sentencing guidelines to the facts de novo. United States v.

McGuinness, 451 F.3d 1302, 1304 (11th Cir. 2006). Furthermore, a district court’s

factual findings used to support a sentencing calculation must be based on reliable

and specific evidence and cannot be based on speculation. United States v.

Cataldo, 171 F.3d 1316, 1321-22 (11th Cir. 1999). Constitutional sentencing

issues are reviewed de novo. United States v. Steed, 548 F.3d 961, 978 (11th Cir.

2008).

      We afford “substantial deference” to a district court’s credibility

determinations. United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003).

Credibility determinations are typically the province of the factfinder because the

factfinder personally observes the testimony and is in a better position than a

reviewing court to assess the credibility of witnesses. United States v. Ramirez-

Chilel, 289 F.3d 744, 749 (11th Cir. 2002).

                                         A.

      The base offense level for violations of 21 U.S.C. § 841(a)(1) is 32 if the

relevant conduct involves at least 1,000 kilograms but less than 3,000 kilograms of

marijuana. U.S.S.G. § 2D1.1 (a)(5), (c)(4). If the relevant conduct involves

differing controlled substances, the court is to determine the offense level by using

the Drug Equivalency Tables to convert each substance to a marijuana equivalent.


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U.S.S.G. 2D1.1, comment. (8(B)). Under the Drug Equivalency Tables, 1 gram of

cocaine equals 200 grams of marijuana, and 1 gram of cocaine base, or crack

cocaine, equals 3,571 grams of marijuana. U.S.S.G. § 2D1.1, comment. (n.8(D)).

Types and quantities of drugs not specified in the count of conviction may be

considered in determining the offense level. U.S.S.G. § 2D1.1 comment. (n.5).

      With respect to offenses requiring the grouping of multiple counts under

U.S.S.G. § 3D1.2(d), such as violations of § 841(a), relevant conduct includes all

acts or omissions “that were part of the same course of conduct or common scheme

or plan as the count of conviction.” U.S.S.G. § 1B1.3(a)(2). Two offenses involve

the same course of conduct if “they are sufficiently connected or related to each

other as to warrant the conclusion that they are part of a single episode, spree, or

ongoing series of offenses.” U.S.S.G. § 1B1.3, comment. (n.9(B)). In evaluating

whether two or more offenses meet this test, the sentencing court should consider

“the degree of similarity of the offenses, the regularity (repetitions) of the offenses,

and the time interval between the offenses.” Id.

      We broadly interpret the provisions of the relevant conduct guideline.

United States v. Behr, 93 F.3d 764, 765 (11th Cir. 1996). Sentencing courts may

consider uncharged conduct when determining the appropriate sentence. United

States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2006).




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      Brown’s argument that witness testimony was insufficient to allow the court

to establish the drug quantity involved fails. One witness stated that he received 10

ounces of crack cocaine from Brown over a 60-day period in 2011, another

testified that he supplied Brown with 2 kilograms of cocaine around March 2011,

and a third testified that he supplied Brown with at least 10 pounds of marijuana a

week for at least 3 years. Therefore, the district court based its consideration of the

drug amounts involved in these transactions on specific evidence, and not mere

speculation. Cataldo, 171 F.3d at 1321-22. Furthermore, the court personally

observed the testimony, and was better positioned than we are to assess its

reliability. See Ramirez-Chilel, 289 F.3d at 749. Given the substantial deference

afforded to a district court’s credibility determination, the court did not clearly err

in choosing to believe the witnesses’ testimony that Brown was involved in drug

transactions with them, and that the transactions involved the amounts they

claimed. See McPhee, 336 F.3d at 1275.

      The district court also properly concluded that the transactions were part of

Brown’s relevant conduct under U.S.S.G. § 1B1.3(a)(2). The uncharged conduct

involved possession of marijuana, crack cocaine, and cocaine, which was similar in

kind to the charged offenses of possession with intent to distribute cocaine and

marijuana. Brown’s dealings with two of the witnesses occurred in 2011, only a

few months prior to the charged conduct, and he dealt with the third weekly from


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2007 until 2010, so all of the dealings were in temporal proximity to the charged

conduct. Additionally, all three witnesses dealt with Brown on more than one

occasion, and one dealt with him weekly for several years, indicating the conduct

was part of a string of offenses. In light of those facts, the degree of similarity of

the offenses, the regularity of the offenses, and the time interval between the

offenses all indicate that the uncharged offenses involved the same course of

conduct as the charged offenses, because they were sufficiently connected to

warrant the conclusion that they were part of an ongoing series of offenses.

U.S.S.G. § 1B1.3, comment. (n.9(B)).

      Finally, Brown’s argument that the inclusion of uncharged drug transactions

in his relevant conduct violated the Sixth Amendment is squarely foreclosed by our

precedent. See Hamaker, 455 F.3d at 1336.

                                           B.

      For an error to be plain, it must be “obvious and clear under current law.”

United States v. Eckhardt, 466 F.3d 938, 948 (11th Cir. 2011). When the explicit

language of a statute or rule does not specifically resolve an issue, plain error

cannot exist in absence of binding precedent directly resolving the issue. United

States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).

      Under Rule 32 of the Federal Rules of Criminal Procedure, parties must state

in writing any objections to the PSI within 14 days of receiving the PSI. Fed. R.


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Crim. P. 32(f)(1). However, a court may, for good cause, allow a party to make a

new objection at any time before a sentence is imposed. Fed. R. Crim. P.

32(i)(1)(D); see also Fed. R. Crim. P. 32(b)(2) (stating that the court may change

any time limits in Rule 32 for good cause).

      Section 4A1.2(c) of the Sentencing Guidelines provides, in pertinent part,

that all felony offenses are counted when computing criminal history, as are

misdemeanor and petty offenses, with the following exception:

      Sentences for the following prior offenses and offenses similar to
      them, by whatever name they are known, are counted only if (A) the
      sentence was a term of probation of more than one year or a term of
      imprisonment of more than one year, or (B) the prior offense was
      similar to an instant offense: . . . Insufficient funds check . . .

U.S.S.G. § 4A1.2(c). The Ninth Circuit has found that a Nevada shoplifting

conviction was “similar” to the offense of “insufficient funds check,” so the

shoplifting offense should not have been part of the district court’s criminal history

computation. United States v. Lopez-Pastrana, 244 F.3d 1025, 1030-31 (9th Cir.

2001).

      Here, Brown’s objection to his prior shoplifting convictions being included

in his criminal history calculation was untimely, as it was made more than 14 days

after his receipt of the PSI. Because Brown did not timely object to his criminal

history calculation before the district court, we will review the issue only for plain

error. See Parrish, 427 F.3d at 1347.


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      Any error the district court may have committed in calculating Brown’s

criminal history category was not plain. The language of U.S.S.G. § 4A1.2(c) does

not clearly state that shoplifting is a misdemeanor or petty offense that can be

exempt from the criminal history computation. See U.S.S.G. § 4A1.2(c)(1).

Additionally, Brown cites only Ninth Circuit case law for the proposition that

shoplifting is “similar to” an offense specifically mentioned by that provision. We

have not addressed the issue, and neither has the Supreme Court. Because there

was no binding precedent directly resolving the issue, the district court could not

have plainly erred by including Brown’s shoplifting convictions in his criminal

history category. See Lejarde-Rada, 319 F.3d at 1291.

                                         C.

      The Sentencing Guidelines provide for a two-level increase if “a dangerous

weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). That

enhancement applies “if the weapon was present, unless it is clearly improbable

that the weapon was connected with the offense.” U.S.S.G. § 2D1.1 comment.

(n.11(A)).

      The Supreme Court has held that an acquittal does not prevent the

sentencing court from considering conduct underlying the acquitted charge, as long

as that conduct has been proven by a preponderance of the evidence. United States

v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 638, 136 L.Ed.2d 557 (1997). We

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recently stated that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005), did not change that rule, and that it is still permissible for

sentencing courts to consider uncharged and acquitted conduct in determining a

sentence. United States v. Smith, 741 F.3d 1211, 1227 (11th Cir. 2013).

      Brown was acquitted of possession of firearms in furtherance of drug

trafficking. However, he received a two-level enhancement at sentencing for other

counts, pursuant to U.S.S.G. § 2D1.1(b)(1), because a dangerous weapon was

possessed. Brown’s sentence enhancement was not necessarily based on acquitted

conduct, because the acquitted offense required the jury to find the firearms

possession to be “in furtherance of drug trafficking,” whereas the enhancement

only required a finding that it was not clearly improbable that the firearms were

“connected with” the offense. However, even if the enhancement was based on

acquitted conduct, our precedent makes clear that the sentencing court did not

violate the Fifth and Sixth Amendments by considering acquitted conduct when

determining a sentence. See Smith, 741 F.3d at 1227.

      Furthermore, three guns were found in Brown’s residence. All three were

found in close proximity to large amounts of marijuana. One of the guns was an

AR-15, and two AR magazines were found in the same bag as scales. A witness

also testified that in each of his dealings with Brown, Brown kept a handgun

wedged between the seats of his vehicle. Therefore, it was not clearly erroneous


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for the district court to conclude that Brown possessed firearms, and that it was not

“clearly improbable” that the firearms were connected to his drug offenses. See

U.S.S.G. § 2D1.1 comment. (n.11(A)). Accordingly, the district court did not err

in imposing a two-level enhancement because a firearm was possessed.

      After careful review of the record and the parties’ appellate briefs, we affirm

Brown’s convictions and sentences.

      AFFIRMED.




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