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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-15802
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:14-cr-20208-DPG-1


UNITED STATES OF AMERICA,

                                                            Plaintiff–Appellee,

                                  versus

FESTUS OKEY OLUIGBO-BERNARDS,

                                                         Defendant–Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Florida
                      ________________________

                            (January 14, 2016)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
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       A jury convicted Defendant Festus Oluigbo-Bernards of possession with

intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1),

and importation of a controlled substance, in violation of 21 U.S.C. § 952(a). The

district court sentenced him to 60 months’ imprisonment. On appeal, Defendant

challenges the district court’s denial of his motion to suppress evidence found

during a border search. He also argues that his sentence was procedurally and

substantively unreasonable. After careful review, we affirm.

I.     Background1

       On March 18, 2014, Defendant flew from Curaçao, Netherlands Antilles, to

Miami, Florida. When the plane arrived at Miami International Airport, U.S.

Customs and Border Protection (“Customs”) agents checked the passports and

customs declaration forms of all passengers as they disembarked at the gate. The

agents checked to make sure the passengers’ documentation was in order and

asked three to five questions of each passenger, looking for any inconsistencies or

suspicious behavior.

       The Customs agents were specifically interested in Defendant, as they had

received a “look-out” alert from their supervisor based on information from

German customs officials that Defendant was involved in narcotics smuggling.


1
   The following facts are taken from the testimony at the suppression hearing, viewed in the
light most favorable to the Government. United States v. Mercer, 541 F.3d 1070, 1074 (11th Cir.
2008).
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Before Defendant’s flight landed, Customs agents researched Defendant’s travel

itineraries and discovered that he had multiple flight reservations for that same

day: one from Miami to Toronto via New York, and another from New York to

Lagos, Nigeria, via London and Amsterdam. In reviewing Defendants’ travel

history, the agents found a photo of Defendant and saw that he was a frequent

traveler.

      As the passengers made their way through the three inspection lines, Agent

David Simko encountered Defendant. Agent Simko greeted Defendant, “Good

morning,” to which Defendant replied, “Business.” Defendant presented a Dutch

passport, and Agent Simko observed several signs that Defendant was nervous: he

was sweating a little, he avoided eye contact, and his carotid artery was pulsating

in the base of his neck. Agent Simko directed Defendant to passport control,

where he was diverted to the secondary inspection area. Agents searched his

carry-on luggage and conducted a pat-down search, but they found no contraband.

Agents, however, did find five cellular phones, thirteen SIM cards, and five

currencies. Throughout the inspection process, the agents observed that Defendant

had white, pasty lips, he was pacing back and forth, he avoided eye contact, and his

carotid artery continued to throb.

      During Defendant’s secondary interview with Agent Christian Veloz,

Defendant said he was traveling to the United States to purchase hair-weave

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products for his business in Curaçao. When asked which cities he was traveling to,

he explained that he was going to travel to New York for four days to purchase the

merchandise, and then he was going to take a bus to Canada to visit a cousin

named Tony. This information struck Agent Veloz as inconsistent with

Defendant’s airline reservations. Defendant said he was going to stay at a hotel in

Queens, New York, but he did not have a reservation because he usually checked

into hotels without booking in advance. Agent Veloz asked if Defendant was

going to stay with his cousin Tony in Canada, but Defendant then said he was

going to Canada to visit his girlfriend. Defendant said his girlfriend knew he was

coming, but she did not know which day he would arrive. According to

Defendant, he had never been to Canada before.

      When Agent Veloz asked Defendant a question, Defendant would repeat the

question back to him. For example, when asked, “What’s the purpose of your

trip,” Defendant responded, “What’s the purpose of my trip?” Agent Veloz

believed this was a stalling tactic and a sign of nervous behavior. It was also odd

because Defendant was a frequent business traveler and, based on their research,

the agents knew that Defendant had been through the inspection process many

times. Typically, frequent travelers are familiar and comfortable with the

inspection process and know what to expect.



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         Based on Agent Veloz’s behavior-analysis training, the agent believed

Defendant exhibited verbal and nonverbal signs suggesting that he was a narcotics

smuggler. The agents told Defendant they suspected him of being an “internal

carrier,” meaning he was smuggling drugs inside his body. Defendant denied that

he was carrying drugs and said he did not want to speak to the agents anymore.

The agents explained to Defendant that he could be taken to the hospital to be x-

rayed, and they presented him with an x-ray consent form. They told him the x-ray

was voluntary, but if he did not consent to an x-ray, they would seek approval from

their supervisor to conduct a monitored bowel movement. Defendant read the

form, confirmed he understood it, and signed it.

         The agents next read Defendant his Miranda2 rights. The agents presented

Defendant a Miranda form, and Defendant read and initialed each line as the

agents explained it to him. Defendant then invoked his Miranda rights. The

agents filled out paperwork associated with their investigation and awaited

approval to conduct the x-ray, which took about two hours. At some point,

Defendant asked for his cell phone so he could listen to music. He was told he was

not allowed to use electronic devices, but he became adamant that he was going to

use his cell phone. As his body language became more threatening, Agent Veloz

took out his baton and held it down behind his right leg. Agents warned Defendant


2
    Miranda v. Arizona, 384 U.S. 436 (1966).
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that he needed to calm down, and then he was placed in a holding cell until he

could be taken to the hospital.

      Defendant was eventually transported to Jackson Memorial Hospital, where

an x-ray revealed foreign objects in his alimentary canal. He eventually passed 27

condoms filled with a total of 1.33 kilograms of cocaine. Defendant was charged

with possession with intent to distribute a controlled substance, in violation of 21

U.S.C. § 841(a)(1), and importation of a controlled substance, in violation of 21

U.S.C. § 952(a).

      Before trial, Defendant moved to suppress the cocaine evidence because he

argued that his consent to be x-rayed was not voluntary. He further argued that the

Customs agents lacked reasonable suspicion of drug activity to justify taking an x-

ray absent his consent. The district court denied the motion, finding that the agents

had a reasonable articulable suspicion that Defendant was smuggling narcotics

internally and that, in any event, Defendant had voluntarily consented to the x-ray.

Defendant proceeded to trial, a jury convicted him of both counts, and the court

sentenced him to 60 months’ imprisonment, which was within the Guidelines

range of 51 to 63 months.




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II.   Discussion

      A.     Motion to Suppress

      We review the denial of a defendant’s motion to suppress under a mixed

standard of review, reviewing findings of fact under the clearly erroneous standard

and reviewing de novo the application of law to those facts. United States v. Gil,

204 F.3d 1347, 1350 (11th Cir. 2000). Because the Government prevailed below,

we construe the facts in its favor. United States v. Mercer, 541 F.3d 1070, 1074

(11th Cir. 2008). We allot substantial deference to the district court in making

credibility determinations with respect to witness testimony. United States v.

McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003).

      Persons crossing the border into the United States have a greatly reduced

expectation of privacy. United States v. Montoya de Hernandez, 473 U.S. 531, 539

(1985). Routine border searches are “not subject to any requirement of reasonable

suspicion, probable cause, or warrant.” Id. at 538. Moreover, a secondary customs

search following the initial inspection is proper even absent reasonable suspicion

of criminal activity. United States v. Santiago, 837 F.2d 1545, 1548 (11th Cir.

1988).

      A more intrusive, non-routine border search, however, requires that a

customs agent have reasonable suspicion. United States v. De Montoya, 729 F.2d

1369, 1371 (11th Cir. 1984); see also United States v. Pino, 729 F.2d 1357, 1359

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(11th Cir. 1984) (finding that use of an x-ray was constitutional when customs

agents had reasonable suspicion that a traveler was smuggling drugs internally).

“To determine whether reasonable suspicion exists, the court must look at the

totality of the circumstances of each case to see whether the detaining officer has a

particularized and objective basis for suspecting legal wrongdoing.” United States

v. Tinoco, 304 F.3d 1088, 1116 (11th Cir. 2002) (internal quotation marks

omitted).

      Defendant argues that the district court’s fact-finding was erroneous because

Defendant’s behavior provided no cause for suspicion and the district court failed

to consider any alternative rational explanations for Defendant’s conduct and

answers. Defendant cites Brent v. Ashley, 247 F.3d 1294, 1300–01 (11th Cir.

2001), where we held that a strip search and x-ray examination by customs

officials were unconstitutional when the searches were based on nothing more than

the traveler’s nervousness and her arrival from a drug source country. But here we

have much more. In addition to receiving a look-out alert that Defendant was

suspected of being involved in narcotics smuggling, Customs agents observed

signs of nervousness, including sweating, pacing back and forth, and a throbbing

carotid artery. Before the Customs agents diverted Defendant to secondary

inspection, he responded, “Business,” when an agent said, “Good morning.” All of

this behavior was suspicious considering Defendant was a frequent business

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traveler and had been through the inspection process several times. Defendant also

provided inconsistent stories about his trip to Canada and had two flight

reservations for that same day to Toronto and Lagos, neither of which matched

Defendant’s stated plans to go to New York for several days before taking a bus to

Canada. While there were no drugs in Defendant’s luggage or on his person, he

had five cell phones, thirteen SIM cards, and five currencies, which struck the

customs agents as unusual even for a business traveler. And after being told he

was suspected of smuggling drugs, Defendant was so insistent that he wanted to

use his cell phone that the agents warned him to calm down and placed him in a

holding cell.

      These facts, coupled with an absence of contraband in Defendant’s luggage,

created a reasonable suspicion that Defendant was an internal carrier. See Denson

v. United States, 574 F.3d 1318, 1343 (11th Cir. 2009) (explaining that a failure to

find drugs externally could raise a reasonable suspicion that a traveler is carrying

drugs internally if other facts and circumstances would lead a customs agent to

reasonably suspect a traveler is carrying drugs); United States v. Vega-Barvo, 729

F.2d 1341, 1350 (11th Cir. 1984) (finding reasonable suspicion to conduct an x-ray

after a strip search revealed no drugs when passenger was traveling alone from a

source country, carried only one piece of poor-quality luggage, and told an

implausible story about her business trip to the United States). Moreover, we

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disagree that the existence of possible innocent explanations for Defendant’s

conduct thereby neutralized the agents’ rational concerns. Based on the totality of

the circumstances here, the Customs agents had reasonable suspicion “even if each

fact, viewed in isolation, [could have been] given an innocent explanation.”

Tinoco, 304 F.3d at 1116.3

       Defendant next contends that his consent to the x-ray was not voluntary

because at that point he had already stated that he wanted to stop speaking to the

agents. Once the Customs agents had reasonable suspicion that Defendant was

smuggling drugs internally, however, Defendant’s consent to the x-ray was

unnecessary. United States v. Saldarriaga-Marin, 734 F.2d 1425, 1427–28 (11th

Cir. 1984) (holding that “once reasonable suspicion has been established, Customs

agents can transport the suspected carrier to a hospital for an x-ray exam that is not

physically forced, regardless of whether the carrier has ‘freely and voluntarily’

consented to the exam”); Vega-Barvo, 729 F.2d at 1350 (same). What is more, the

agents’ reasonable suspicion permitted them to detain Defendant for the time

3
  Defendant faults the district court for crediting Agent Veloz’s testimony at the suppression
hearing. In particular, Defendant points to Agent Veloz’s statement in his written report that
Defendant was randomly searched, even though the agents had received the look-out alert and
planned to question him all along. The agent testified that he was trained to call such searches
“random” in written reports to safeguard confidential law enforcement information. Defendant
thus argues that the district court should not have accepted the agent’s testimony and should have
provided a reason for why it found him credible despite the misrepresentation in the report.
After reviewing Agent Veloz’s testimony, and keeping in mind the substantial deference we give
to factfinders in making credibility determinations, McPhee, 336 F.3d at 1275, we do not find the
testimony to be so inconsistent as to be totally unbelievable. Consequently, the district court did
not clearly err in crediting Agent Veloz.
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necessary to conduct an x-ray examination. United States v. Mosquera-Ramirez,

729 F.2d 1352, 1356 (11th Cir. 1984). Accordingly, the district court properly

denied the motion to suppress.

       B.      Sentence

       The district court must impose a sentence that is procedurally and

substantively reasonable. Gall v. United States, 552 U.S. 38, 51 (2007). This

Court first ensures that the district court did not commit a significant procedural

error, such as improperly calculating the Sentencing Guidelines range or failing to

consider the factors under 18 U.S.C. § 3553(a).4 Id. If we find no procedural

error, we proceed to review the substantive reasonableness of the sentence for

abuse of discretion. Id. Under that standard, “[w]e may set aside a sentence only

if we determine, after giving a full measure of deference to the sentencing judge,

that the sentence imposed truly is unreasonable.” United States v. Irey, 612 F.3d

1160, 1191 (11th Cir. 2010) (en banc). But here, Defendant failed to object to the

sentence after it was imposed. Therefore, we review only for plain error. United

States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998).

       First, Defendant argues that his sentence is procedurally unreasonable

because the district court failed to consider all the § 3553(a) factors. The court


4
  These factors include, among others, the nature and circumstances of the offense, the history
and characteristics of the defendant, the need for the sentence to reflect the seriousness of the
offense, and the need to deter criminal conduct. 18 U.S.C. § 3553(a).
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need not discuss each factor explicitly, and “[a]n acknowledgement the district

court has considered the defendant’s arguments and the § 3553(a) factors will

suffice.” United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

Furthermore, “when sentencing within the advisory Guidelines range, the district

court is not required to give a lengthy explanation for its sentence” in the typical

case. United States v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008). Here, the

court properly acknowledged that it had considered the parties’ arguments, along

with the § 3553(a) factors, before imposing the sentence. We find no procedural

error.

         As for the substantive reasonableness of the sentence, Defendant argues that

many of the § 3553(a) factors weighed in favor of a sentence at the low end of the

Guidelines range of 51 to 63 months. Defendant emphasizes that he had no

criminal history, never spent time in prison before his arrest, and was a

businessman who supported his family. The weight given to any particular factor

is left to the district court’s sound discretion. United States v. Amedeo, 487 F.3d

823, 832 (11th Cir. 2007). We reverse only “if we are left with the definite and

firm conviction that the district court committed a clear error of judgment in

weighing the § 3553(a) factors by arriving at a sentence that lies outside the range

of reasonable sentences dictated by the facts of the case.” United States v. Pugh,

515 F.3d 1179, 1191 (11th Cir. 2008) (quotation marks omitted). And while we do

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not presume that a within-Guidelines sentence is reasonable, we typically expect

such a sentence to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th

Cir. 2008). As the Government argues, the factors do not weigh clearly in favor of

Defendant. Defendant committed a serious offense and he refused to accept

responsibility for his conduct. And unlike some cases where defendants may have

smuggled drugs because of coercion or poverty, by all accounts Defendant was a

reasonably successful businessman and frequent traveler. Therefore, we identify

no plain error and further find that Defendant’s 60-month sentence was

substantively reasonable.

III.   Conclusion

       For the foregoing reasons, we affirm Defendant’s conviction and sentence.

       AFFIRMED.




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