     Case: 13-30275      Document: 00512630516         Page: 1    Date Filed: 05/14/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 13-30275
                                   c/w No. 13-30280
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                  Summary Calendar                              FILED
                                                                            May 14, 2014
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff-Appellee

v.

RAMON ANDERSON,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                      for the Middle District of Louisiana
                             USDC No. 3:11-CR-96-1
                            USDC No. 3:11-CR-147-1


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Ramon Anderson appeals his conviction and sentence for possession of a
firearm by a convicted felon and the sentence imposed following his guilty plea
conviction for failure to register as a sex offender in violation of the Sex
Offender Registration and Notification Act, 18 U.S.C. § 2250.                       Anderson
challenges the district court’s denial of his motion to suppress evidence


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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obtained during the traffic stop that led to his arrest on the firearm charge and
the imposition of a 13-month upward departure or variance from his guidelines
sentence range.
      On review of the denial of a motion to suppress evidence obtained from
a traffic stop, we review findings of fact for clear error, “but the ultimate
question of whether those facts add up to establish an appropriate level of
reasonable articulable suspicion of criminality or danger is a question of law,
reviewed de novo.” United States v. Scroggins, 599 F.3d 433, 441 (5th Cir.
2010). “A finding is clearly erroneous only if the court is left with a definite
and firm conviction that a mistake has been committed.” Id. at 440.
      Anderson maintains that the district court clearly erred by finding that
the traffic stop occurred at 6:45 AM, before sunrise, because Alonda Young, the
police dispatcher, testified that she could not be certain that the indication in
the computer aided dispatch (CAD) report that the traffic stop began at 6:45
AM was the traffic stop of Anderson or a different traffic stop close in place and
time. He contends that the testimony of Corporal Neil Porter, the officer who
made the traffic stop, and the CAD report showed that Anderson was arrested
at 7:20 AM and that the estimate that Corporal Porter made in the police
report that the traffic stop began 15 minutes earlier, at 7:05 AM, was more
consistent with the evidence regarding the traffic stop than the district court’s
finding that the traffic stop began 35 minutes earlier at 6:45 AM. Anderson
maintains that there was no justification for the initial traffic stop because it
was after sunrise and the justification given of a violation of Louisiana Revised
Statutes § 32:301 for failing to display headlights between sunset and sunrise
was not applicable. He asserts that even if the time of the traffic stop was 6:45
AM, before sunrise, the traffic stop was not justified because he was parked




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when Corporal Porter first encountered him and had traveled less than one
block on a residential street when Corporal Porter initiated the traffic stop.
      Anderson asserts that the traffic stop was unreasonably prolonged
beyond the time needed to resolve the failure to display headlights issue. He
contends that his hand movement was reasonably explained as an attempt to
put on his seat belt. He argues that the area where he was stopped was not a
high crime area because Corporal Porter acknowledged that it was a
residential street with single family homes and big yards. He maintains that
his presence in a vehicle with a woman at 7:00 AM does not show that illegal
activity such as prostitution was occurring and that he explained that his fly
was open because he forgot to zip it after using the bathroom.
      The Fourth Amendment guarantees individuals the right “‘to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures.’” United States v. Macias, 658 F.3d 509, 517 (5th Cir. 2011)
(quoting U.S. Const. amend. IV). “The stopping of a vehicle and the detention
of its occupants is a seizure within the meaning of the Fourth Amendment.”
Macias, 658 F.3d at 517 (internal quotation marks and citation omitted). We
analyze the legality of traffic stops for Fourth Amendment purposes under the
standard established by the Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968),
and United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc).
Macias, 658 F.3d at 517. First, we examine whether the officer’s action was
justified at its inception, then inquire whether the officer’s subsequent actions
were reasonably related in scope to the circumstances that justified the stop.
Id. Then we inquire whether the officer’s subsequent actions were reasonably
related in scope to the circumstances that justified the stop. Id. “An officer’s
subsequent actions are not reasonably related in scope to the circumstances
that caused him to stop the vehicle if he detains its occupants beyond the time



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needed to investigate the circumstances that caused the stop, unless he
develops reasonable suspicion of additional criminal activity in the meantime.
In such an instance, he may further detain its occupants for a reasonable time
while appropriately attempting to dispel this reasonable suspicion.”          Id.
(internal quotation marks and citation omitted).
      Young’s testimony regarding whether the initial call in of a traffic stop
at 6:45 AM was definitely the traffic stop of Anderson was equivocal. However,
her testimony was clear that a call in of a traffic stop was computer dated as
occurring at 6:45 AM, that the call in was made by the officer with call number
1488, and that the traffic stop occurred on Jessamine. Corporal Porter testified
that his call number was 1488, that the CAD report was for the traffic stop of
Anderson, and that he did not call in any other incidents on Jessamine that
morning. Accordingly, despite the equivocation in Young’s testimony, there
was evidence from which the district court could find that the computer
generated time stamp indicating that the traffic stop occurred at 6:45 AM was
for the traffic stop of Anderson. Thus, while there was contrary evidence
presented, the district court’s factual finding that the traffic stop was made at
6:45 AM was not clearly erroneous. See Scroggins, 599 F.3d at 440.
      As the district court’s factual finding was not clearly erroneous,
Anderson has not shown that the district court erred by finding that there was
reasonable suspicion to support the initial traffic stop. The parties stipulated
that sunrise did not occur that morning until 6:57 AM. While Anderson notes
that he only traveled a very short distance without displaying his headlights
before Corporal Porter initiated the traffic stop, Louisiana law provides that
any driving without displaying headlights between sunset and sunrise is a
traffic violation.   See LA. REV. STAT. § 32:301(A)(1).     As Corporal Porter




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observed Anderson commit a traffic violation, the initial traffic stop was
justified. See United States v. Thomas, 120 F.3d 564, 573 (5th Cir. 1997).
      While Anderson described the location of the traffic stop as a residential
street with single family houses as opposed to a high crime area, Corporal
Porter testified that it was a high crime area and that he had made many
arrests in the area for prostitution and other offenses. This testimony was
sufficient for the district court to determine that the area was a high crime
area, whether or not it was also a residential area. See United States v. Rideau,
969 F.2d 1572, 1573, 1575, 1578 n.1 (5th Cir. 1992) (en banc). Although the
fact that the stop occurred in a high crime area was not sufficient by itself to
give Corporal Porter reasonable suspicion to prolong the traffic stop, it was a
factor that could be considered. See Illinois v. Wardlow, 528 U.S. 119, 124
(2000).
      The evidence presented at the suppression hearing indicated that when
Corporal Porter prolonged the traffic stop, the following factors were present:
(1) Anderson was in a high crime area where prostitution and other crimes
occurred; (2) Anderson had been parked in a lane of travel with a female
passenger for no apparent reason; (3) Anderson and his female passenger did
not know each other’s names; (4) Anderson’s fly was open; and (5) Anderson
made a hand move that could have involved trying to hide something in the
back seat immediately upon seeing a police vehicle. These factors collectively
provided Corporal Porter with at least reasonable suspicion that prostitution
may have been occurring. See United States v. Ibarra-Sanchez, 199 F.3d 753,
759 (5th Cir. 1999). While there may have been innocent explanations for all
of these factors, this does not negate the existence of reasonable suspicion. See
id. at 759 n.5. Accordingly, Anderson has not shown that the district court




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erred by finding that there was reasonable suspicion to prolong the traffic stop
or by denying his motion to suppress. See id. at 759 & n.5.
        Anderson argues that the district court plainly erred by making an
upward departure or variance from the guidelines sentence range. He asserts
that the district court improperly relied upon his bare arrest records for failing
to register as a sex offender on other occasions to support the enhancement.
He further maintains that the police report from his arrest in Pointe Coupee
Parish for a sex offender registration violation showed that he did register as
a sex offender in that parish on October 30, 2009, but subsequently failed to
make required community notifications and pay the required fee. He asserts
that the police report from his arrest in Franklin County showed that he was
arrested for failing to register as a sex offender on January 27, 2011, during
the time period that he was living in Baton Rouge that formed the basis of the
SORNA charge, and he could not have been living in Franklin County at that
time.    Anderson maintains that the district court also plainly erred by
increasing his sentence to provide him with treatment and rehabilitation.
Anderson asserts that the district court’s errors affected his substantial rights
and seriously affected the fairness, integrity, or public reputation of judicial
proceedings.
        We review criminal sentences for reasonableness. Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008). We initially determine whether the district court committed
any procedural errors.     Gall, 552 U.S. at 51.     If the sentence imposed is
procedurally sound, we “consider the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard . . . tak[ing] into
account the totality of the circumstances.” Id.




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      While Anderson objected to the imposition of the upward departure or
variance, he did not raise the arguments that he raises on appeal concerning
the consideration of his bare arrest record and rehabilitative needs. Therefore,
as Anderson acknowledges, we review for plain error only. See United States
v. Neal, 578 F.3d 270, 272 (5th Cir. 2009); United States v. Medina-Anicacio,
325 F.3d 638, 643 (5th Cir. 2003).       In order to demonstrate plain error,
Anderson must show a forfeited error that is clear or obvious and that affects
his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
If he makes such a showing, we have the discretion to correct the error but will
do so only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. See id.
      In making the upward departure or variance, the district court
secondarily relied upon Anderson’s prior violent felony convictions for rape and
two counts of armed robbery, for which Anderson was sentenced at the same
time and which counted for only five criminal history points, and primarily
upon evidence that Anderson failed to properly register as sex offender on
many occasions. Thus, the basis of the upward departure was based upon
factors set forth in the Guidelines. See U.S.S.G. § 4A1.3(a)(2)(B), (E). The
district court did not mention Anderson’s arrest record, and it instead based
the upward departure upon Anderson’s conduct as shown by the evidence
presented. While the evidence of Anderson’s arrest in Franklin County in 2011
may not have been reliable evidence that he had failed to register in Franklin
County because he was living in Baton Rouge at the time, there were large
amounts of other evidence in the record that Anderson had been non-compliant
with sex offender registration requirements on numerous occasions since he
was released from prison in 2003, such as six administrative notifications of
Anderson’s failure to comply with sex offender registration requirements and



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                                c/w No. 13-30280
Anderson’s admission at rearraignment that he had falsely registered at an
address where he did not live. Furthermore, while Anderson’s arrests for sex
offender registration violations were reported in the PSR, factual recitations of
Anderson’s conduct underlying those arrests based upon offense reports were
also included, making the district court’s consideration of that conduct
permissible. See United States v. Windless, 719 F.3d 415, 420 (5th Cir. 2013).
As the upward departure or variance was based upon evidence of Anderson’s
conduct contained in the PSR and obtained from law enforcement sources, and
Anderson did not challenge the factual recitations contained in the PSR,
Anderson has not shown that the upward departure or variance was plainly
erroneous on this ground. See United States v. Harris, 702 F.3d 226, 229-31
(5th Cir. 2012), cert. denied, 133 S. Ct. 1845 (2013).
      In pronouncing sentence, the district court referenced Anderson’s need
for sex offender treatment, medical treatment, and possibly drug abuse
treatment. Nevertheless, the primary concern expressed by the district court
was Anderson’s criminal history. The only mention of the need for sex offender
and medical treatment was made in the course of the district court’s
recommendation that Anderson be incarcerated at a facility where he could
receive such treatment, and the Supreme Court has held that “a court may
urge the BOP to place an offender in a prison treatment program.” Tapia v.
United States, 131 S. Ct. 2382, 2392 (2011). As the district court made only
two brief references to rehabilitative programs and one of these was expressly
permitted by the Supreme Court, it is clear that to the extent that the district
court relied upon rehabilitative needs at all, this was a permissible secondary
concern, not an impermissible dominant factor. See United States v. Garza,
706 F.3d 655, 660 (5th Cir. 2013). Accordingly, Anderson has not shown that




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the district court committed error, plain or otherwise, by basing his sentence
on rehabilitative needs. See id.
      AFFIRMED.




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