United States v. Robert Williams, Jr.

Opinion

USCA11 Case: 20-10405 Date Filed: 02/04/2021 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10405 Non-Argument Calendar ________________________

D.C. Docket No. 1:18-cr-00150-WKW-SMD-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT WILLIAMS, JR.,

Defendant-Appellant. ________________________

Appeal from the United States District Court for the Middle District of Alabama ________________________

(February 4, 2021)

Before JILL PRYOR, LUCK, and BRASHER, Circuit Judges.

PER CURIAM:

Robert Williams, Jr., appeals his conviction and sentence for being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and possessing USCA11 Case: 20-10405 Date Filed: 02/04/2021 Page: 2 of 12

controlled substances in violation of 21 U.S.C. § 844(a). Williams makes two

arguments on appeal. First, he argues that the district court erred in denying his

motion to suppress evidence seized by a police officer during a warrantless search.

Second, Williams argues that the court erred by denying his request for a sentencing

reduction for accepting responsibility. After careful consideration, Williams’s

conviction and sentence are AFFIRMED.

I.

At about 2:15 a.m. one morning, Officer Kaufmann and his trainee conducted

a traffic stop of a motorcycle that had been traveling at 57-miles-per-hour in a 40-

miles-per-hour zone. Williams, who was driving the motorcycle, was wearing an

“Outcast Motorcycle Club” leather jacket. A female passenger, Mack, riding on the

back of the motorcycle, was also wearing an OMC vest. Officer Kaufmann knew

that there was an OMC rally in town that night and was aware of a large fight at an

OMC rally the previous year, in which someone was “severely beaten.” Earlier that

night, Officer Kaufmann and his trainee had responded to a call for backup related

to an OMC traffic stop. There, another officer had stopped a man wearing an OMC

jacket who was also riding a motorcycle with a female passenger. A large group of

OMC motorcycle riders had gathered around the traffic stop, and the officer found

three pistols on the driver’s person.

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With this in mind, Officer Kaufmann approached Williams. As he

approached, he saw Williams furtively pass Mack a cigarette pack, which she hid

between her legs. He asked Williams why he had handed the cigarette pack to Mack,

and Williams asked why he needed to know. Officer Kaufmann then asked Mack

for the cigarette pack. She was “frozen” and did not respond until Williams told her

to give the cigarette pack to Officer Kaufmann. Mack then gave Officer Kaufmann

the pack. A “quick flip of the lid” allowed Officer Kaufmann to the see the contents

of the pack—cocaine and oxycodone pills.

Officer Kaufmann then patted down Williams and found a pistol on his right

hip. He testified that he patted down Williams for two reasons: first, because his

jacket identified him as a member of the motorcycle gang, and second, because he

had just passed a container to Mack that contained narcotics. After Officer

Kaufmann found the gun, he placed Williams under arrest and charged him on the

scene for possession of a controlled substance and carrying a firearm without a valid

permit. Officer Kaufmann searched the motorcycle in relation to the arrest and found

another weapon.

The government indicted Williams on one count of being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1) and two counts of possessing

controlled substances in violation of 21 U.S.C. § 844(a). Williams filed a motion to

suppress the evidence seized during Officer Kaufmann’s search, which he argued

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was unlawful. The magistrate judge held a hearing on Williams’s motion, after

which he recommended that Williams’s motion be denied. The recommendation was

based upon three findings that are relevant here: first, that the search of the cigarette

pack was consensual; second, if the search was not consensual, the officer still had

reasonable suspicion to conduct a Terry protective search of the cigarette pack; and

third, the officers would have inevitably discovered the drugs in the cigarette pack

by patting down Williams to protect their personal safety, at which point they would

have found the pistol, arrested him, and conducted a search of the cigarette pack

incident to his arrest.

Williams objected to the magistrate judge’s findings that he consented to the

search of the cigarette pack; that the officers had particularized reasonable suspicion

to search either the cigarette pack or Williams’s person for weapons; and,

consequently, that discovery of the drugs was inevitable. The district court overruled

the objections, adopted the magistrate judge’s recommendations, and denied

Williams’s motion to suppress.

After a trial, Williams was convicted by a jury of all counts. A probation

officer calculated Williams’s offense level without a reduction for acceptance of

responsibility under U.S.S.G. § 3E1.1. His total offense level of 15 and criminal

history category of II resulted in a guideline imprisonment range of 21 to 27 months.

Williams objected in writing to the denial of a two-level reduction in offense level

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for acceptance of responsibility. At his sentencing hearing, Williams again objected

to the denial of a two-level reduction to the offense level for acceptance of

responsibility. The district court overruled his objections and adopted the guideline

calculations set forth in the PSR before sentencing Williams to a prison term of 27

months.

II.

On appeal, Williams makes two arguments. First, Williams argues that the

district court erred in denying his motion to suppress the evidence seized by Officer

Kaufmann during the traffic stop. Second, he argues that the court erred by denying

his request for a sentencing guidelines reduction for acceptance of responsibility.

We address both arguments in turn.

First, Williams argues that the district court’s three reasons for denying his

motion—that he voluntarily consented to the search of the cigarette pack, that

Officer Kaufmann could search the pack pursuant to a Terry protective search, or

that the evidence was admissible under the inevitable discovery doctrine—are

erroneous. The government argues that the totality of the circumstances shows that

Williams consented to the search. Alternatively, the government argues that Officer

Kaufmann was authorized to conduct a protective search of the pack or, at the very

least, of Williams’s person, which would have inevitably led to a justifiable search

of the pack. We agree with the government that, under these circumstances, Officer

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Kaufmann was authorized to conduct a protective search of the pack. Therefore, the

evidence retrieved from the pack was admissible and the district court properly

denied Williams’s motion to suppress.

In reviewing a denial of a motion to suppress, we review the district court’s

findings of fact for clear error and its application of the law de novo. United States

v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999). “[W]hen considering a ruling on a

motion to suppress, all facts are construed in the light most favorable to the

prevailing party below.” United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir.

2000). To be clearly erroneous, the finding of the district court must leave us “with

a definite and firm conviction” that a mistake has been made. United States v.

Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). The district court’s choice between

two permissible interpretations of the evidence will rarely constitute clear error, as

long as the basis of the court’s decision is supported by the record and the court did

not misapply a rule of law. United States v. Monzo, 852 F.3d 1343, 1345 (11th Cir.

2017) (quoting United States v. De Varon, 175 F.3d 930, 945 (11th Cir. 1999) (en

banc)).

The Fourth Amendment to the United States Constitution prohibits

unreasonable searches and seizures. The Supreme Court has held that it is not

unreasonable for police officers to conduct brief, warrantless, investigatory stops

when they have reasonable, articulable suspicion of criminal activity. United States

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v. Hunter, 291 F.3d 1302, 1306 (11th Cir. 2002) (citing Terry v. Ohio, 392 U.S. 1,

30 (1968)). Officers conducting such Terry stops may “take such steps as [are]

reasonably necessary to protect their personal safety.” United States v. Purcell, 236

F. 3d 1274, 1277 (11th Cir. 2001) (quoting United States v. Hensley, 469 U.S. 221,

235 (1985)). We have held that, under Terry, an officer during a traffic stop may

conduct a protective search of the driver, the passengers, or the vehicle as necessary

to ensure officer safety. Id.

Whether reasonable suspicion exists depends on the “totality of the

circumstances.” United States v. Hunter, 291 F.3d 1302, 1306 (11th Cir. 2002)

(quoting United States v. Arvizu, 534 U.S. 266 (2002)). The totality of the

circumstances must establish “specific and articulable facts which, taken together

with rational inferences from those facts,” reasonably warrant the search. Terry, 392

U.S. at 21. In gauging the totality of the circumstances, courts may not consider each

fact in isolation, but must consider their cumulative effect; reasonable suspicion may

exist even if each fact in isolation can be given an innocent explanation. Hunter, 291

F.3d at 1306.

The district court did not clearly err in finding that the circumstances facing

Officer Kaufmann justified a protective search of Williams generally and the pack

specifically. Officer Kaufmann stopped Williams for speeding at 2:15 in the

morning. Williams and his passenger were both wearing clothing identifying them

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as members of a motorcycle gang that had been linked to violent activity. Officer

Kaufmann knew about a violent fight that occurred at an OMC rally the year before

and had just participated in a similar traffic stop hours before in which an OMC

member on a motorcycle was carrying three firearms. When Officer Kaufmann

approached Williams, he became suspicious when he saw Williams furtively pass

the cigarette pack to Mack, who quickly concealed it between her legs. Then, when

he asked Williams about the pack, Williams gave an evasive answer that reasonably

heightened Officer Kaufmann’s suspicions.

Williams argues that a cigarette pack is small and, therefore, not the usual

kind of item subject to a protective Terry search. But, given the totality of the

circumstances here, a reasonably prudent officer in Kaufman’s position would be

justified in securing and inspecting the pack. Terry, 392 U.S. at 27. Officer

Kaufmann testified at the evidentiary hearing that he was concerned the pack might

have held a small, lightweight weapon like a razor blade or pocket knife. That

concern was reasonable in light of Williams’s furtive movement to pass the pack to

Mack as Officer Kaufmann approached, Mack’s concealment of the pack, and

Williams’s evasive response to Officer Kaufmann’s question. Mack had the pack on

her person and, because Williams was stopped on a motorcycle rather than an

automobile, the pack remained within his arm’s reach as well. See Michigan v. Long,

463 U.S. 1032, 1049 (1983) (upholding protective search of a leather pouch in

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passenger compartment of an automobile, where officers reasonably believed the

driver was dangerous and the area was near enough to the driver that he could have

gained immediate control of weapons if allowed to reenter the car). In these unique

circumstances, Officer Kaufmann reasonably responded by requesting the pack and

flipping open the lid to see what it contained.

The record here does not compel a different conclusion than the one the

district court reached—that Officer Kaufmann’s reasonable concern for his safety

justified a protective search of the cigarette pack. Because the search is justified on

that ground, there is no need to address the alternative grounds considered by the

district court—namely, whether Williams consented to the search or whether the

firearm or drugs were admissible under the inevitable discovery doctrine.

Accordingly, this Court will affirm the district court’s denial of the motion to

suppress.

Second, Williams argues that the district court erred by denying him a

downward adjustment for acceptance of responsibility. The government argues that

the district court correctly denied the request because Williams forced the

government to carry its burden at trial, he had two positive drug screens while on

pretrial release, and his criminal history showed that he was continuing a pattern. In

reply, Williams argues that he never contested the factual allegations associated with

this matter and that the district court failed to consider several factors in support of

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applying the reduction, such as his truthful admission of certain conduct and the

timeliness of his conduct in manifesting acceptance of responsibility.

We review the district court’s denial of a reduction for acceptance of

responsibility for clear error. United States v. Moriarty, 429 F.3d 1012, 1022 (11th

Cir. 2005). We will not set aside the district court’s determination that an adjustment

is unwarranted unless the facts in the record clearly establish that the defendant has

accepted responsibility. Id. at 1022–23. Because of the sentencing court’s unique

position to evaluate acceptance of responsibility, the determination of the district

court is afforded great deference. Id. at 1022.

The sentencing guidelines allow a two-step reduction in a defendant’s offense

level if he “clearly demonstrates acceptance of responsibility for his offense.”

U.S.S.G. § 3E1.1(a). Appropriate considerations for an adjustment include whether

the defendant: truthfully admitted the conduct comprising the offenses of conviction

and either truthfully admitted or did not falsely deny any additional relevant conduct;

voluntarily paid restitution prior to adjudication of guilt; voluntarily surrendered to

authorities promptly after the commission of the offense; voluntarily terminated or

withdrew from criminal conduct or criminal associations; voluntarily provided

assistance to the authorities in recovering the fruits and instrumentalities of the

offense; voluntarily resigned from any office or position held during the offense;

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underwent any post-offense rehabilitative efforts; and timely manifested the

acceptance of responsibility. Id., cmt. n.1.

However, “[t]he adjustment is not intended to apply to a defendant who puts

the government to its burden of proof at trial by denying essential factual elements

needed to show guilt, is subsequently convicted, and only then admits guilt and

expresses remorse.” Id., cmt. n.2. In rare situations, a defendant convicted at trial

can receive the adjustment, but he must clearly demonstrate acceptance of

responsibility. For example, a defendant who goes to trial to assert and preserve

issues that do not relate to factual guilt, such as challenging a statute’s

constitutionality or the applicability of a statute to his conduct, may receive an

adjustment. Id. The district court may consider the nature of the defendant’s legal

challenges to his conviction and sentence, along with the other circumstances of the

case, when determining whether to award credit for acceptance of responsibility.

United States v. Smith, 127 F.3d 987, 989 (11th Cir. 1997) (en banc).

Here, the district court did not clearly err by declining to apply a guidelines

reduction for acceptance of responsibility. This is so for several reasons. First and

foremost, Williams forced the government to carry its burden at trial. Although he

stipulated to several key facts—that he was in fact a convicted felon, that the firearm

at issue had traveled in interstate commerce, and that the drugs seized by Officer

Kaufmann were cocaine and oxycodone—he denied that he knowingly possessed

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the gun and drugs. Second, at trial, he suggested the possibility that he was not

responsible at all, but that the drugs were put in the cigarette pack by his companion,

Mack. Third, he violated the terms of his pretrial release by using marijuana. The

district court did not clearly err by declining to apply a guidelines reduction for

acceptance of responsibility.

III.

For the foregoing reasons, the district court is AFFIRMED.