     Case: 11-30965       Document: 00512401175         Page: 1     Date Filed: 10/08/2013




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                               Fifth Circuit

                                                                            FILED
                                                                          October 8, 2013
                                       No. 11-30965
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

REGINALD L. SPEARS, also known as RLS Ar Abdul Aziz,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:09-CR-19-1


                    ON PETITION FOR PANEL REHEARING
Before DAVIS, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       The original opinion in this case was issued by the panel on September 4,
2013. We GRANT the petition for rehearing in part and DENY in part. We
withdraw our previous opinion and substitute the following.
       In 2004, Reginald L. Spears (“Spears”) was arrested for possession with
intent to distribute five grams or more of a substance containing cocaine base,
and was subsequently convicted and sentenced to 360 months of imprisonment.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 11-30965

See 21 U.S.C. § 841(a)(1). Now appealing his conviction and sentence, Spears
contends that the district court (1) erred by admitting evidence concerning his
later admission that he had trafficked cocaine after his arrest; (2) violated
Spears’s right to defend himself by pressuring him to waive a defense; (3) erred
by failing to suppress evidence of the drugs in Spears’s possession at the time of
his arrest; and (4) should be required to resentence Spears under the Fair
Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372.
                                        I.
      Spears argues first that the district court erred by admitting evidence of
a 2009 statement by Spears, in which he admitted distributing substantial
quantities of cocaine following his arrest for the charged offense. Specifically,
Spears asserts that the government failed to give timely notice of its intent to
use the statement, and alternatively, that the evidence was irrelevant. At trial,
Spears failed to object to the alleged untimely notice. Because the record reflects
some awareness by Spears that the government intended to use the statement,
and the other evidence against Spears was substantial, we cannot say that any
error affected his substantial rights. See FED. R. EVID. 404(b); United States v.
Cervantes, 706 F.3d 603, 616 (5th Cir. 2013). Moreover, we cannot say that the
district court abused its discretion by finding the evidence of Spears’s
subsequent drug-dealing activities was relevant. Spears disputed that he
intended to distribute drugs, and so evidence of subsequent involvement in drug
distribution was relevant to that intent and was not inherently prejudicial. See
United States v. Moody, 564 F.3d 754, 763–64 (5th Cir. 2009); United States v.
Pompa, 434 F.3d 800, 805 (5th Cir. 2005).
      Spears next argues that the district court violated his right to defend
himself by pressuring him to waive his objection to the 2009 statement, on
grounds that the statement was involuntary and coerced. However, the record
reflects that Spears made a deliberate, informed decision, with the advice of
standby counsel. See Webb v. Texas, 409 U.S. 95, 98 (1972); United States v.

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                                       No. 11-30965

Dupre, 117 F.3d 810, 823 (5th Cir. 1997). Additionally, the record establishes
that the court repeatedly urged Spears to consult standby counsel and that its
overwhelming concern was that Spears not take positions that would prejudice
him before the jury.1 Consequently, Spears waived his right to oppose the
Government’s use of his admission to post-offense cocaine trafficking. See United
States v. Olano, 507 U.S. 725, 733 (2003).
       Spears also argues that the evidence of the drugs seized from him at the
time he was stopped by police should have been suppressed as the fruit of an
unconstitutional search.2 According to Spears, the search which revealed the
crack cocaine in his pocket was prompted by (1) an unconstitutional pat-down
of his person after already being in custody for several minutes, and (2) a false
assertion that the searching officer felt a pocketknife in Spears’s pocket. But,
as the district court explained to Spears, the pat-down search of a suspect


       1
         The court’s remarks were much closer to a truthful warning than to highly
intimidating or obviously threatening statements. See United States v. Gloria, 494 F.2d 477,
485 (5th Cir. 1974) (no error where the judge and the prosecutor “merely advised [the witness]
of the possibility of prosecution if his testimony materially differed from his prior plea”).
Furthermore, the court reminded Spears that its voir dire of prospective jurors had not
included questions about Muslims or Homeland Security because the parties had agreed not
to bring up those matters.
       2
          On appeal from a ruling on a motion to suppress, this court reviews factual
determinations for clear error and legal conclusions, such as determinations of reasonable
suspicion, de novo. United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003). Because the
district court ruled based on live testimony, the court’s factual findings must be accepted
“unless clearly erroneous or influenced by an incorrect view of the law.” United States v.
Outlaw, 319 F.3d 701, 704 (5th Cir. 2003). Spears contends that the district court erroneously
believed that it was required to accept the police officer’s testimony that Spears had a knife
absent defense evidence disputing it. Spears points to certain statements the district court
made that, when read in isolation, tend to support his contention. Of course, a “trier of fact
need not credit any witness’[s] testimony, even if unimpeached.” United States v. Samples, 897
F.2d 193, 198 (5th Cir. 1990). Our reading of the record does not convince us that the district
court misapplied the law. Spears filed a motion for reconsideration of the order denying
suppression of the knife, and the district court stated during a hearing that “all the arguments
about the officer seem to me to deal with his credibility.” Thus, the district court correctly
recognized that the suppression ruling depended upon a determination of the officer’s
credibility. Under those circumstances, we are not persuaded that the district court’s ruling
was influenced by an incorrect view of the law.

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                                 No. 11-30965

running from police in a high-crime area is legitimate as a matter of law. See
Illinois v. Wardlow, 528 U.S. 119, 124 (2000). The fact that a suspect is in
custody for several minutes before the search does not negate the danger
potentially posed by hidden weapons or the reasonable suspicion to which the
officers are otherwise entitled. See id. Second, the fact that Spears challenged
the unsupported testimony of a police officer does not require its suppression.
Because the witness was competent and the testimony was not inherently
incredible, it was the prerogative of the court to evaluate it. See United States
v. Green, 180 F.3d 216, 221–22 (5th Cir. 1999) (internal quotation marks and
citations omitted).
      Finally, Spears argues that he is entitled to be resentenced under the Fair
Sentencing Act of 2010. As the government concedes, the Supreme Court’s
intervening decision in Dorsey v. United States entitles Spears to be resentenced
under the lower penalty provisions of the Fair Sentencing Act.132 S. Ct. 2321,
2329-35 (2012).
                                       II.
      For the reasons stated above, the appellant’s conviction is AFFIRMED, the
sentence is VACATED, and the case is REMANDED for resentencing consistent
with Dorsey, 132 S. Ct. at 2329-35.




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