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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12448 Non-Argument Calendar ________________________
D.C. Docket No. 1:18-cr-20033-JEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEX KNIGHT,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(May 16, 2019)
Before TJOFLAT, JORDAN, and JILL PRYOR, Circuit Judges.
PER CURIAM: Case: 18-12448 Date Filed: 05/16/2019 Page: 2 of 16
Alex Knight, a convicted felon, was indicted and charged with (1) unlawful
possession of a firearm and ammunition (Count One), (2) possession of a
controlled substance with intent to distribute (Count Two), and (3) possession of a
firearm in furtherance of a drag trafficking crime (Count Three). Knight moved to
suppress the firearm, ammunition, and controlled substance that provided the bases
for the charges. The District Court denied the motion, and the case went to trial.
A jury found Knight guilty of possessing a firearm and ammunition—Count One—
and guilty of simple possession of a controlled substance—a lesser-included
offense in Count Two. The jury found Knight not guilty of possessing a firearm in
furtherance of a drag trafficking crime—Count Three. The District Court
sentenced him to 72 months’ imprisonment; this was above the recommended
Guideline range.
Knight raises three issues on appeal. First, he argues that the District Court
erred by denying his Motion to Suppress. Second, he claims the District Court
erred when it applied a four-level enhancement to his sentence based on its finding
that he “possessed a[] firearm or ammunition in connection with another felony
offense.” See United States Sentencing Commission, Guidelines Manual §
2K2.1(b)(6)(B) (Nov. 2016). Third, he says the District Court erred by refusing to
reduce his sentence because he accepted responsibility. See id. § 3E1.1(a) (noting
that the sentencing court should decrease the offense level by two “[i]f the
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defendant clearly demonstrates acceptance of responsibility for his offense”). We
affirm.
I.
Knight was indicted based on a firearm and drugs that police officers found
while searching his house. The officers had a warrant, but Knight says the warrant
was invalid—and thus its fruits should be suppressed—because the author of the
warrant’s supporting affidavit purposefully or recklessly left out important
information.
Here’s what happened. Knight was a suspect in a string of burglaries, and
there was a warrant for his arrest. Two detectives and a police officer went to
Knight’s house to execute the arrest warrant. After they placed him under arrest
and cuffed him, Knight said that he was having stomach pains. In response, one of
the detectives called fire rescue to the scene so they could evaluate Knight before
taking him to the police station. No one gave Knight the Miranda warnings.
While the group was waiting for fire rescue to arrive, the lead detective for
the burglary investigation arrived on the scene. According to the detective’s
testimony at the suppression hearing, she arrived at Knight’s house and asked him
for consent to search for the items related to the burglaries. Knight said he would
consent if the detective would “overlook a weapon that he had.” The detective
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explained that’s not how things work: if he consented to a search, there would be
no stipulations.1 Then, the detective went outside.
The detective was called back inside because Knight wanted to speak with
her. She went inside, and Knight told her that she could search his house if she
would overlook the drugs that he had for his “personal use.” The detective
explained that she was going to get a search warrant and again rejected Knight’s
conditional offer. She eventually went back to the police station and filled out the
search warrant and supporting affidavit.
In the probable cause statement, the detective noted that she did “not
include[] every aspect, fact, or detail of t[he] investigation” “[b]ecause t[he]
affidavit [was] being submitted for a limited purpose of requesting a warrant.” The
detective explained that she located Knight at his house. Then, she wrote this:
“The officers who contacted [Knight] indicated that they need[ed] to talk with him.
Spontaneously, [Knight] stated that there was a weapon and illegal narcotics in [his
house].” In the “Property Sought” section of the supporting affidavit, the detective
listed (1) firearms, (2) ammunition, (3) illegal drugs, and (4) the items taken during
the burglaries.
1 The detective asked Knight why he had the firearm, and he said his friend gave it to him for protection. She asked if the firearm was on his person, and he explained that it was in his bedroom closet. 4 Case: 18-12448 Date Filed: 05/16/2019 Page: 5 of 16
The search warrant was approved, and police officers executed it. During
the search, they found a firearm, bullets, 72 baggies that contained a heroin-
fentanyl mixture, and $160 in one-, ten-, and twenty-dollar bills.
Knight moved to suppress the evidence and requested a Franks 2 hearing. He
argued that the warrant’s supporting affidavit left out material facts: it did not
mention that the detective asked Knight for consent to search after he was placed
under arrest. Nor did it say that Knight told the officers about the firearm and
narcotics in his house only after he was asked to consent to a search. Thus, Knight
argued, his statements were not really “spontaneous”; instead, he was in custody
and answering a question when he made them. Finally, Knight claimed that if the
supporting affidavit told the full story, it would not have supported a finding of
probable cause.
The District Court held a hearing on Knight’s motion to suppress the
evidence and request for a Franks hearing. It denied relief. The Court found that
the supporting affidavit’s use of “spontaneous” was “the right word”: “If a
question is asked [here, the question was whether Knight would consent to a
search] and he [Knight] answered a different question, that’s spontaneous.” As for
the omissions—that other officers were at the house, that Knight was sick, that fire
rescue had been called, and that Knight had been asked for consent—the Court
2 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978). 5 Case: 18-12448 Date Filed: 05/16/2019 Page: 6 of 16
found that they were not “particularly material.” It also found that they were not
deliberately left out. Finally, the Court found that even if the supporting affidavit
included the omitted statements, it still would have supported a finding of probable
cause.
When considering a motion to suppress, we review a district court’s findings
of fact for clear error and its application of the law to the facts de novo. United
States v. Novaton, 271 F.3d 968, 986 (11th Cir. 2001). Thus, “we will not overturn
a district court’s decision that omissions or misrepresentations in a warrant
affidavit were not reckless or intentional unless clearly erroneous.” United States
v. Reid, 69 F.3d 1109, 1113 (11th Cir. 1995). In reviewing a motion to suppress,
we “construe[] [all facts] in the light most favorable to the prevailing party below.”
Id.
Affidavits supporting arrest warrants are presumptively valid. Franks v.
Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684 (1978). To void the warrant
and exclude the evidence, Knight must prove by a preponderance of the evidence
“(1) that the alleged misrepresentations or omissions were knowingly or recklessly
made by [the detective], and (2) that the result of excluding the alleged
misrepresentations and including the alleged omissions would have been a lack of
probable cause for issuance of the warrant[].” Novaton, 271 F.3d at 986–87.
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We begin with the alleged misrepresentation. Knight argues that he did not
“spontaneously” tell the officers about the firearm and narcotics because he shared
the information only after being asked if he would consent to a search. The
District Court found that Knight’s answers to the consent question were in fact
spontaneous because they did not respond to the question the detective asked. This
finding is not clearly erroneous. Spontaneous means “proceeding from natural
feeling or native tendency without external constraint.” Spontaneous, Merriam-
Webster Online, https://www.merriam-webster.com/dictionary/spontaneous. Here,
Knight knew that he had a firearm, ammunition, and drugs that he shouldn’t have.
And his answer—telling the detective that he would consent to a search if she
overlooked these items—was unconstrained by the detective’s question. Indeed, a
simple yes or no response would have answered the consent question. The District
Court did not clearly err in finding that Knight failed to prove the first prong.
Next, we consider the omissions. Knight argues that the supporting affidavit
should have told the entire story—that other officers were at the house, that Knight
was sick, that fire rescue had been called, and that Knight had been asked for
consent. The District Court found that these facts were not deliberately omitted.
Nothing in the record convinces us that the detective deliberately or recklessly left
these facts out. At the suppression hearing, the detective said that she included
only those facts that were relevant to the finding of probable cause. The District
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Court did not clearly err in finding that Knight failed to prove the first prong for
the omitted facts.
But even if Knight had met his burden under the first prong for either the
misrepresentation or the omissions, the District Court found that Knight had not
met his burden under the second prong. The Court found that even without the
alleged misrepresentation and omissions, the affidavit still would have supported a
finding of probable cause. We give “great deference to a determination of
probable cause by a district court.” United States v. Shabazz, 887 F.3d 1204, 1214
(11th Cir. 2018) (citation and alterations omitted). We agree with the District
Court that—even if the supporting affidavit parroted the detective’s testimony at
the suppression hearing—the affidavit would still “contain ‘sufficient information
to conclude that a fair probability existed that [a firearm, ammunition, and drugs]
would be found’” at Knight’s house. See id. (citation omitted). In other words,
these omissions were immaterial to the probable cause analysis.
Knight argues that if the supporting affidavit told the full story, the judge
who approved the warrant would have questioned whether Knight voluntarily gave
his “un-Mirandized” incriminating statements about the firearm and drugs. He
points out that he has his limited education and mental health issues. He also notes
that he was under arrest at the time. But he points to no coercive behavior from the
detective or other officers. We have no reason to think that his answers to a simple
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yes-or-no question were involuntary or were simply an acquiescence to police
authority. In fact, he tried to bargain with the detective and ultimately refused to
give consent. Thus, the District Court did not err in finding that the affidavit
would support probable cause even without the alleged misrepresentation and
omissions.3
The District Court did not err by denying the motion to suppress.
II.
Before sentencing, the probation office prepared a Presentence Investigation
Report (the “PSI”). As part of Knight’s Guideline calculations, the probation
office applied a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B). Section
2K2.1(b)(6)(B) applies if a defendant “possessed a[] firearm or ammunition in
3 There’s a good chance that the firearm, ammunition, and drugs would be admissible under the inevitable-discovery doctrine. That doctrine operates as an exception to the exclusionary rule, allowing the introduction of evidence obtained through unlawful means that would otherwise be inadmissible. United States v. Virden, 488 F.3d 1317, 1322 (11th Cir. 2007). To get the benefit of the doctrine, the Government must show by a preponderance of the evidence that the evidence in question ultimately would have been discovered by lawful means that were being actively pursued before the illegal conduct occurred. See id. Here, even if we assume that the detective intentionally misrepresented and omitted facts, and even if we assume there was no probable cause to search for the firearm and drugs without the misrepresented and omitted facts, the Government likely would have found the evidence anyway. Even without the complained-of problems, the affidavit still would have supported a finding of probable cause to search for items related to the burglaries. Those items included credit cards, ATM cards, bank cards, wallets, and purses. Officers would have reasonably searched the bedroom closet (where the gun was found) and the jar in the kitchen (where the drugs and money were found) when looking for the items related to the burglary. Knight claims the Government’s assertion that the officers would have stumbled across the firearm and drugs is speculative. Given our holding above, we need not definitively decide the inevitable-discovery question. 9 Case: 18-12448 Date Filed: 05/16/2019 Page: 10 of 16
connection with another felony offense.” Here, the “felony offense” that triggered
§ 2K2.1(b)(6)(B) was possession of heroin with intent to distribute, a drug-
trafficking crime.
Knight objected and argued that the Government did not show by a
preponderance of the evidence that Knight possessed the firearm in connection
with a drug trafficking crime. In fact, Knight noted, the jury found him not guilty
of this very crime when it found him not guilty of Count Three. Recall, Count
Three was possession of a firearm in furtherance of a drag trafficking crime. The
District Court overruled the objection and applied the enhancement.
“We review a district court’s factual findings under the Sentencing
Guidelines for clear error” and its interpretation of the guidelines de novo. United
States v. Carillo-Ayala, 713 F.3d 82, 87 (11th Cir. 2013). “The Government bears
the burden of establishing by a preponderance of the evidence the facts necessary
to support a sentencing enhancement.” United States v. Askew, 193 F.3d 1181,
1183 (11th Cir. 1999). A preponderance of the evidence, while not a high standard
of proof, is not a toothless standard, and a district court may not abandon its
responsibility to ensure that the Government meets this standard. Id.
Here, to trigger the enhancement under § 2K2.1(b)(6)(B), the Government
needed to prove by a preponderance that Knight (1) possessed a firearm or
ammunition (2) “in connection with another felony offense,” U.S.S.G.
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§ 2K2.1(b)(6)(B), here, the possession of heroin with intent to distribute. Only the
second element is at issue.
First, we consider whether the Government proved by a preponderance of
the evidence that Knight possessed heroin with intent to distribute. It can make
this showing even though Knight was not convicted of that offense. See U.S.S.G.
§ 2K2.1(b)(6)(B), cmt. n.14(C) (“‘Another felony offense’, for purposes of
subsection (b)(6)(B), means any federal, state, or local offense, other than the
explosive or firearms possession or trafficking offense, punishable by
imprisonment for a term exceeding one year, regardless of whether a criminal
charge was brought, or a conviction obtained.”).
Knight argued that there was not enough evidence at trial to prove that he
intended to distribute the heroin because there was no evidence that he ever
actually sold or delivered it to anyone. The District Court overruled the objection.
It noted that the officers “found everything that looked to anybody with any
experience as the stuff of a petty drug dealer.” It went on and explained that “it
was pretty obvious what [Knight] was doing with this stuff in his house.” Indeed,
the Court said that “people that are going to use drugs do not usually go to the
trouble of putting them in separate glassine envelopes. They just don’t. . . . They
don’t put them in separate envelopes unless they’re going to sell them to
somebody.” The District Court’s finding is not clearly erroneous.
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One of the detectives who helped execute the search warrant found a
medium-sized Ziploc bag that had 72 individual baggies of a heroine-fentanyl
mixture. He said the street value for each baggie is $10, or $720 total. He also
found $160 in one-, ten-, and twenty-dollar bills. The detective testified that the
small bills were “very, very common in the street level narcotics.” Another
witness—who had worked on narcotics cases for most of his 21-year career—
testified that, based on his experience, “no more than five” baggies of heroin were
consistent with personal use. “Ten bags and up,” by contrast, were consistent with
someone distributing heroine. The detective said it was “obvious” to him that the
number of baggies in Knight’s apartment was consistent with distribution. Given
all this evidence, the District Court’s finding that the Government proved by a
preponderance that Knight intended to distribute heroin is not clearly erroneous. 4
Knight argues (in a footnote) that the District Court made no findings of fact
as to whether the facts supported the Government’s argument that Knight was
engaged in drug trafficking. True enough, the District Court did not use magic
4 Knight argues that the four-level enhancement violated his Sixth Amendment right to a trial by jury and his Fifth Amendment right to due process of law because the enhancement was based on acquitted conduct. He acknowledges that argument is foreclosed by our precedent. United States v. Faust, 456 F.3d 1342, 1348 (11th Cir. 2006) (“[U]nder an advisory Guidelines scheme, courts can continue to consider relevant acquitted conduct so long as the facts underlying the conduct are proved by a preponderance of the evidence and the sentence imposed does not exceed the maximum sentence authorized by the jury verdict.”).
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words and say that it found as a matter of fact that the Government met its burden.
But based on our discussion above, we have no doubt that the Court did in fact
make the necessary finding.
Next, we consider whether Knight possessed the firearm “in connection
with” the drug trafficking offense. See U.S.S.G. § 2K2.1(b)(6)(B). “A
‘connection’ is shown by less evidentiary proof than is required to show possession
‘in furtherance of’ a drug offense.” Carillo-Ayala, 713 F.3d at 96. When the
“other felony offense” is a drug trafficking crime—and here it is—the
enhancement applies if the “firearm is found in close proximity to drugs.”
U.S.S.G. § 2K2.1(b)(6)(B), cmt. n.14(B). This is because, as the commentary
explains, “the firearm has the potential of facilitating another felony offense.” Id.
Finally, if a firearm in fact is found “in close proximity to drugs,” the enhancement
applies even if there is no additional evidence. See Carillo-Ayala, 713 F.3d at 92
(“A firearm found in close proximity to drugs or drug-related items simply ‘has’—
without any requirement for additional evidence—the potential to facilitate the
drug offense.”).
So, everything turns on whether the firearm in Knight’s apartment was
found in close proximity to the drugs. He argued that the firearm was not in close
proximity because it was in his bedroom closet, and the drugs were in the kitchen.
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The District Court overruled the objection and found that the firearm was in close
proximity. This finding is not clearly erroneous.
A detective testified that Knight’s apartment was “fairly small.” The firearm
was found in in a shoebox on the top shelf of Knight’s bedroom closet. Given the
size of the apartment, the bedroom and the kitchen were close together. Thus, the
District Court did not clearly err.
III.
The Guidelines recommend decreasing a defendant’s offense level by two
levels “[i]f the defendant clearly demonstrates acceptance of responsibility for his
offense.” U.S.S.G. §3E1.1(a). Here, the probation office did not apply the
reduction because “Knight put the government to its burden of proof by denying
the essential factual elements of guilt.”
Knight objected; he argued that he admitted at trial that he possessed
narcotics and asked the jury to find him guilty of simple possession (a lesser-
included offense of Count Two). Thus, Knight said, he should be given some
credit for accepting responsibility. The District Court overruled the objection.
We give great deference to a district court’s denial of a reduction for
acceptance of responsibility under § 3E1.1. United States v. Moriarty, 429 F.3d
1012, 1022 (11th Cir. 2005) (per curiam). We review for clear error. See id.
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Here, “the facts in the record [do not] clearly establish that [Knight] accepted
responsibility,” so the District Court did not err.
We have said that “[a] defendant who fails to accept responsibility for all of
the crimes he has committed and with which he has been charged is entitled to
nothing under § 3E1.1.” United States v. Thomas, 242 F.3d 1028, 1034 (11th Cir.
2001). And the commentary to the Guidelines notes that the adjustment “is not
intended to apply to a defendant who puts the government to its burden of proof at
trial by denying the essential factual elements of guilt, is convicted, and only then
admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, cmt. n.2.
That said, a defendant who proceeds to trial is not “automatically
preclude[d]” from getting the adjustment. Id. In “rare situations,” a defendant
may show that he accepted responsibility even though he exercised his
constitutional right to a trial. Id. For example, this might happen if “a defendant
goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to
make a constitutional challenge to a statute or a challenge to the applicability of a
statute to his conduct).” Id.
Here, Knight argued at trial that he did not knowingly possess the firearm.
Thus, he denied an essential factual element of guilt. He also moved to suppress
the firearm, ammunition, and drugs; this was another attempt to avoid factual guilt.
See United States v. Gonzalez, 70 F.3d 1236, 1239 (11th Cir. 1995) (per curiam)
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(“By challenging the admissibility of the essential evidence against him, [the
defendant] attempted to avoid a determination of factual guilt and to thereby
escape responsibility for his crime.”). The District Court did not clearly err.
IV.
The judgment of the District Court is
AFFIRMED.