                                                                    [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                        JUNE 5, 2012
                                            No. 11-11867
                                                                         JOHN LEY
                                      ________________________
                                                                          CLERK

                            D.C. Docket No. 4:10-cr-00074-RH-WCS-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellee,

                                                versus

JESSE CARTER,

llllllllllllllllllllllllllllllllllllllll                         Defendant - Appellant.

                                     ________________________

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

                                            (June 5, 2012)

Before EDMONDSON, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

         Jesse Carter appeals his 120-month sentence for conspiracy to distribute 500
grams or more of powder cocaine, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(B)(ii). On appeal, Carter argues that the district court erred in applying a

sentence enhancement under 21 U.S.C. § 841(b)(1)(B) based on a 2007 conviction

because that prior conviction was obtained as a result of an unconstitutional search

incident to arrest. We find that Carter did not prove the alleged constitutional

violation because the search was a valid automobile search. The district court

therefore did not err in applying the enhancement.

                                          I.

      We start with a discussion of the undisputed facts surrounding Carter’s prior

conviction, as presented at his sentencing hearing. In 2006, Tampa Police Officer

Petit frequently communicated with a concerned citizen about the drug activity in

her neighborhood. The concerned citizen received no compensation for her phone

calls and was generally considered a reliable source. In July 2006, she called

Officer Petit and advised him of a possible drug transaction. When he arrived,

Officer Petit observed two men standing near a building. One of the men walked

away from the other and conducted a drug transaction with a woman. The other

man (later identified as Carter) then approached a different woman who had just

arrived at the scene. From his vantage point, Officer Petit could not see what

happened between Carter and the second woman, but he could see that they “made

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brief contact with their hands.” Given his prior experience as a narcotics officer,

Officer Petit was convinced that he had witnessed a hand-to-hand drug

transaction. During Petit’s observation of the transaction, he identified Carter and

discovered that he had a suspended driver’s license. He conveyed this information

to the concerned citizen and asked that she call him if she ever saw Carter driving.

       In August 2006, the citizen called Officer Petit to report that Carter was

driving around her neighborhood. Officer Petit called for backup, and the backup

officer saw Carter near a local park. This officer saw Carter drive his car into a

parking space, get out of his car, and walk toward the nearby pavilion

approximately thirty to forty feet away from his car. When Officer Petit arrived,

the two officers positively identified Carter, verified that his license was still

suspended, approached him, and arrested him for driving with a suspended license.

The officers detected a strong smell of marijuana on Carter and discovered more

than $500 in small, disorganized bills stashed in various pockets. Carter stated

that he did not have drugs on his person, and the officers did not find drugs on

him.

       The officers then searched Carter’s car. When they opened the door, they

detected a strong stench of marijuana. They found approximately 30 pieces of

crack cocaine, some grams of marijuana, and a digital scale. In early 2007, Carter

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pled guilty to the charges stemming from this transaction.

                                         II.

      We review de novo a district court’s legal conclusion that a prior conviction

may be used to enhance a sentence under 21 U.S.C. §§ 841 and 851. United States

v. Mikell, 102 F.3d 470, 474, 477 (11th Cir. 1996) (reviewing de novo a district

court’s denial of a defendant’s § 851(c)(2) constitutional challenge of a prior-

conviction enhancement under § 841.).

      A defendant convicted of conspiring to distribute between 500 grams and 2

kilograms of cocaine is subject to a mandatory minimum sentence of five years.

21 U.S.C. § 841(b)(1)(B)(ii). If the defendant has a prior conviction for a felony

drug offense, the mandatory minimum sentence is increased to ten years. Id. The

government may seek a § 841 sentence enhancement for a prior conviction by

complying with the requirements of § 851. See Mikell, 102 F.3d at 477. Under §

851, a defendant can challenge the prior-conviction enhancement if he proves by a

preponderance of the evidence that the prior conviction was “obtained in violation

of the Constitution of the United States.” 21 U.S.C § 851(c)(2). A guilty plea is a

conviction for the purposes of sentence enhancement under § 841. United States

v. Mejias, 47 F.3d 401, 404 (11th Cir. 1995) (per curiam).

      The Fourth Amendment protects “[t]he right of people to be secure in their

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persons, houses, papers, and effects, against unreasonable searches and seizures.”

U.S. Const. amend. IV. The Fourth Amendment generally guarantees this right by

requiring the government to obtain a search warrant prior to a search, but there are

exceptions to the general warrant requirement. United States v. Tamari, 454 F.3d

1259, 1261 (11th Cir. 2006). Two possible exceptions could apply here—the

automobile exception and the search incident to arrest. Under the automobile

exception, police officers may conduct a warrantless search of a vehicle if the

vehicle is readily mobile and if they have probable cause to believe that the

vehicle contains contraband. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.

Ct. 2485, 2487 (1996) (per curiam); United States v. Watts, 329 F.3d 1282, 1286

(11th Cir. 2003) (per curiam). Accordingly, under the automobile exception, a

vehicle search does not violate the Fourth Amendment if, “under the totality of the

circumstances, there is a fair probability that contraband or evidence of a crime

will be found in the vehicle.” Tamari, 454 F.3d at 1261–62 (internal quotation

marks omitted). Under the search incident to arrest exception, the Supreme Court

recently clarified that the “[p]olice may search a vehicle incident to a recent

occupant’s arrest only if the arrestee is within reaching distance of the passenger

compartment at the time of the search or it is reasonable to believe the vehicle

contains evidence of the offense of arrest.” Arizona v. Gant, 556 U.S. 332, 351,

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129 S. Ct. 1710, 1723 (2009).

                                         III.

      Carter argues that his 2007 conviction was obtained in violation of the

Constitution because the search of his vehicle was not a valid search incident to

arrest under Gant. He argues that because he was arrested for driving with a

suspended license thirty to forty feet away from his car, the police could not

constitutionally execute a search incident to arrest. Although this may be true, a

warrantless search that does not meet the requirements of a search incident to

arrest may still pass constitutional muster under a different exception to the

warrant requirement. Id. at 351, 129 S. Ct. at 1723–24 (Noting that when a

warrantless vehicle search is not a search incident to arrest, the search may still be

valid if “another exception to the warrant requirement applies.”). Because it is

undisputed that the car was operational at the time of the arrest, and because we

agree with the district court that Officer Petit had probable cause to believe that

the car contained contraband, we find that the search was valid under the

automobile search exception to the warrant requirement and did not violate the

Fourth Amendment. See Tamari, 454 F.3d at 1261–62; Gant, 556 U.S. at 351, 129

S. Ct. at 1723–24.

      Carter failed to prove that his prior conviction was obtained in violation of

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the Constitution, see 21 U.S.C. § 851(c), so his prior conviction was properly used

to enhance his sentence.

      AFFIRMED.




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