           Case: 14-10822   Date Filed: 01/06/2015   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-10822
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:13-cr-20651-KMM-1



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                 versus

EDUARDO BARNES,

                                                        Defendant-Appellant.

                      ________________________

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

                            (January 6, 2015)

Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Eduardo Barnes appeals his conviction and sentence of 120 months of

imprisonment for being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1).

Barnes challenges the denial of his motion to suppress; the admission of an

inculpatory statement during his sentencing proceeding; and the procedural

reasonableness of his sentence. Barnes also challenges, for the first time, the

constitutionality of section 922(g). We affirm.

      The district court did not err by denying Barnes’s motion to suppress the

firearm. Barnes lacked standing to challenge the search of the rental vehicle in

which the firearm was found. See Rakas v. Illinois, 439 U.S. 128, 134, 99 S. Ct.

421, 425 (1978); United States v. Lee, 586 F.3d 859, 864–65 (11th Cir. 2009). The

driver of the vehicle, Ricky Taylor, told officers that a man named “Shrimp”

loaned the vehicle to him, and neither Taylor nor Barnes were listed as approved

drivers on the rental agreement. As a passenger, Barnes had standing to challenge

the traffic stop, but the evidence established that the stop was “constitutional

[because] it . . . [was] based upon probable cause to believe a traffic violation ha[d]

occurred . . . .” United States v. Harris, 526 F.3d 1334, 1337 (11th Cir. 2008). Sean

Bergert, an officer for the City of Aventura, Florida, stopped the vehicle because

Taylor was speeding and made a sharp turn that almost caused the vehicle to

collide with Bergert’s patrol car. See Fla. Stat. § 316.183(1). Barnes fled from the

back seat before the rental vehicle came to a stop, and officers noticed a semi-


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automatic handgun lying in the accessory pocket of the rear passenger door that

Barnes had left ajar. Barnes lacked any expectation of privacy in the vehicle.

      The district court fulfilled its obligation to make an independent and

informed decision about the lawfulness of the traffic stop. A magistrate judge held

a hearing on Barnes’s motion to suppress and credited Bergert’s testimony about

the reasons for the traffic stop. Barnes objected and was entitled to de novo review

of the decision to rely on Bergert’s testimony, see Fed. R. Crim. P. 59(b)(3), but

the district court was unable to obtain a transcript of the hearing. The district court

made a final determination about the validity of the traffic stop when it assessed

Bergert’s testimony during Barnes’s bench trial. See United States v. Raddatz, 447

U.S. 667, 680–81, 100 S. Ct. 2406, 2415 (1980). And the district court was entitled

to credit Bergert’s undisputed explanation that he stopped the driver of the rental

vehicle for speeding in violation of Florida law. As stated by the district court,

Bergert’s “testimony . . . [was] sufficient to support the denial of the motion” to

suppress. We are “satisfied that [the] district court . . . exercised his non-delegable

authority by considering . . . actual testimony, and not merely by reviewing the

magistrate’s report and recommendations.” United States v. Elsoffer, 644 F.2d 357,

359 (5th Cir. 1981).

      The district court did not err by adopting the recommendation of the

magistrate judge to use Barnes’s incriminating statement to determine an


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appropriate sentence. Although Barnes’s statement was not admissible as

substantive evidence of his guilt because he was not advised of his rights to remain

silent and to counsel, see Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966),

he acknowledged that his “statements [could] be considered at sentencing . . .

unless [they] were involuntary or unreliable.” The district court reviewed de novo

the agents’ testimony about Barnes’s interrogation, see Diaz v. United States, 930

F.2d 832, 836 (11th Cir. 1991), and determined that Barnes’s statement was “the

product of a free and deliberate choice.” See United States v. Bernal-Benitez, 594

F.3d 1303, 1318 (11th Cir. 2010) (quoting Moran v. Burbine, 475 U.S. 412, 421,

106 S. Ct. 1135, 1141 (1986)).

      The district court did not err in denying Barnes’s motion to exclude his

inculpatory statement at sentencing. Detective Roderick Passmore and Officer

Ricardo Martinez, of the Miami Dade Police Department, and Agent David Solis,

of the Federal Bureau of Investigation testified, without dispute, that when

Passmore asked Barnes about his destination at the time of the traffic stop, he

confessed that he was on the way to shoot someone. Passmore and Solis testified

that they treated Barnes as a cooperative witness in hopes of obtaining information

about gang-related homicides in the area and that, during the interview, which

lasted no longer than seven hours, Barnes remained cooperative, articulate, and

alert. And Martinez testified that, before Barnes made the inculpatory statement, he


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was fed, relocated to a more comfortable conference room, and allowed to speak to

a federal agent. See id. The agents testified consistently that Barnes was not

physically or verbally coerced and, although Solis offered to inform prosecutors

about Barnes’s cooperation, Solis testified that he did not promise Barnes any

reward for cooperating. See United States v. Thompson, 422 F.3d 1285, 1295–96

(11th Cir. 2005). And Barnes made his inculpatory statement after refusing to talk

to Detective Jonathan Ruiz, which evidenced that Barnes knew he was not required

to speak to law enforcement and that he could choose when and with to whom to

speak. This record, which establishes that Barnes was well-treated, the interview

was relaxed, and Barnes was acting intelligently, supports the determination of the

district court that Barnes’s statements were “freely and voluntarily given.”

      Barnes argues, for the first time on appeal, that his statements were

inadmissible because he was not timely presented to a magistrate judge, see 18

U.S.C. § 3501(c), but this argument fails. To prevail on review for plain error,

Barnes must prove that an error occurred and that the error is plain, affects his

substantial rights, and “seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. McNair, 605 F.3d 1152, 1222 (11th Cir.

2010). Section 3501 provides that a confession is admissible when made

voluntarily and “within six hours immediately following arrest or other detention,”

and is admissible even if made after the expiration of the six-hour deadline, so long


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as the delay in presenting him to a judicial officer is “reasonable considering the

means of transportation and the distance to be traveled to the nearest available such

magistrate judge or other officer.” 18 U.S.C. § 3501(c). Because the record is not

developed about exactly how much time elapsed between Barnes’s arrest, his

confession, and his presentment or about the availability of a judicial officer, we

cannot say that any delay in his presentment was unreasonable.

      The use of Barnes’s inculpatory statements to determine his base offense

level did not make his sentence procedurally unreasonable. The district court was

allowed to use Barnes’s incriminating statement to enhance his sentence. The

district court credited the agents’ testimony; their testimonies established that

Barnes made the statements voluntarily; and Barnes was given advance notice of

the evidentiary hearing and had the opportunity to rebut the evidence about the

interrogation. See United States v. Baker, 432 F.3d 1189, 1253 (11th Cir. 2005).

Although Passmore testified that Barnes used the word “kill” and Solis recalled

that Barnes used the word “shoot,” the district court reasonably found that the

terms were “internally consistent.” In the light of Barnes’s statements and his

possession of a firearm, the district court did not clearly err in finding that Barnes

had armed himself as part of a plot to murder another person. Based on that

finding, the district court correctly assigned Barnes a base offense level of 33

based on the cross-references in the Sentencing Guidelines that addressed the


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possession of a firearm in connection with an attempted murder. See United States

Sentencing Guidelines Manual §§ 2K2.1(c)(1), 2X1.1(c)(1), 2A2.1(a)(1) (Nov.

2013). Barnes argues that the district court enhanced his sentence based on facts

that were not alleged in his indictment or proved to a jury beyond a reasonable

doubt, in violation of the Fifth and Sixth Amendments, but the district court was

allowed to enhance Barnes’s sentence because “its findings [did] not increase [his]

sentence beyond the statutory maximum authorized by [the] facts determined in

[his] guilty plea,” United States v. Dean, 487 F.3d 840, 854 (11th Cir. 2007).

      Barnes concedes that his argument, made for the first time, about the

constitutionality of section 922(g) is foreclosed by precedent. We have held

repeatedly that section 922(g) is constitutional, facially and as applied, as a lawful

exercise of Congress’s power under the Commerce Clause. See United States v.

Scott, 263 F.3d 1270, 1273 (11th Cir. 2001); United States v. Dupree, 258 F.3d

1258, 1259–60 (11th Cir. 2001). “Under [our] prior precedent rule, we are bound

to follow a prior binding precedent unless and until it is overruled by this court en

banc or by the Supreme Court.” United States v. Vega-Castillo, 540 F.3d 1235,

1236 (11th Cir. 2008) (internal quotation marks and citation omitted). The district

court did not err, plainly or otherwise, when it convicted Barnes of violating

section 922(g).

      We AFFIRM Barnes’s conviction and sentence.


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