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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-10902 Non-Argument Calendar ________________________
D.C. Docket No. 2:16-cr-14009-DMM-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
TODD ERLING BECKER,
Defendant–Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(February 19, 2019)
Before MARCUS, ROSENBAUM and JILL PRYOR, Circuit Judges.
PER CURIAM:
Todd Becker appeals his convictions and sentences on one count of
conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a); three
counts of Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2; and three Case: 17-10902 Date Filed: 02/19/2019 Page: 2 of 15
counts of brandishing a firearm in furtherance of a crime of violence, in violation of
18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. On appeal, he argues that: (1) the district court
erred in denying his motion to suppress based on a lack of probable cause for his
arrest; (2) his post-arrest Miranda1 waiver was rendered involuntary by statements
made by the Federal Bureau of Investigation (“FBI”) agent conducting the
interrogation; (3) his convictions for Hobbs Act robbery do not qualify as “crime of
violence” offenses under 18 U.S.C. § 924(c)(3)(A); (4) his Fifth Amendment right
to remain silent was violated by the prosecutor’s comment during closing argument;
and (5) his 794-month total sentence was grossly disproportionate to the offense
conduct for which he was convicted. After thorough review, we affirm.
Rulings on motions to suppress involve mixed questions of law and fact.
United States v. Touset, 890 F.3d 1227, 1231 (11th Cir. 2018). We review a district
court’s factual findings for clear error and its application of the law to the facts de
novo, and construe all facts in the light most favorable to the prevailing party. Id.
A district court has committed clear error where we are left with a definite and firm
conviction that a mistake was made. United States v. Villarreal, 613 F.3d 1344,
1349 (11th Cir. 2010). We review de novo whether a confession was voluntary, and
construe the facts in a light most favorable to the prevailing party. United States v.
Ransfer, 749 F.3d 914, 921 (11th Cir. 2014); United States v. Lall, 607 F.3d 1277,
1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 Case: 17-10902 Date Filed: 02/19/2019 Page: 3 of 15
1285 (11th Cir. 2010). We also review de novo whether an offense qualifies as a
“crime of violence” under 18 U.S.C. § 924(c). United States v. McGuire, 706 F.3d
1333, 1336 (11th Cir. 2013), overruled on other grounds by Ovalles v. United States,
905 F.3d 1231 (11th Cir. 2018) (en banc). And we review de novo the legality of a
sentence under the Eighth Amendment. United States v. McGarity, 669 F.3d 1218,
1255 (11th Cir. 2012). Where a prosecutor has commented on a defendant’s choice
to remain silent, we review a district court’s denial of a mistrial for abuse of
discretion. United States v. Wilchcombe, 838 F.3d 1179, 1190 (11th Cir. 2016).
Where an issue was not raised below, we will review it only for plain error.
United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). To establish plain
error, the defendant must show (1) an error, (2) that is plain, and (3) that affected his
substantial rights. Id. at 1276. If the defendant satisfies these conditions, we may
exercise our discretion to recognize the error only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
First, we are unpersuaded by Becker’s claim that the district court erred in
concluding that probable cause existed to arrest him and in denying his motion to
suppress. “To determine whether an officer had probable cause for an arrest, we
examine the events leading up to the arrest, and then decide whether these historical
facts, viewed from the standpoint of an objectively reasonable police officer, amount
to probable cause.” Dist. of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018)
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(quotations omitted). Probable cause “requires only a probability or substantial
chance of criminal activity, not an actual showing of such activity. Probable cause
is not a high bar.” Id. (quotations and citations omitted). Courts may examine the
collective knowledge of law officers where the officers maintained a minimal level
of communication during their investigation. United States v. Willis, 759 F.2d 1486,
1494 (11th Cir. 1985).
“[W]arrantless arrests for crimes committed in the presence of an arresting
officer are reasonable under the Constitution.” Virginia v. Moore, 553 U.S. 164,
176 (2008). “[W]hile States are free to regulate such arrests however they desire,
state restrictions do not alter the Fourth Amendment’s protections.” Id. In Moore,
police erroneously made an arrest for the misdemeanor of driving on a suspended
license, in violation of a Virginia law that authorized only the issuance of a summons
for the offense (and not an arrest), and during a search incident to the arrest, police
found crack cocaine. Id. at 166–67. The Virginia Supreme Court overturned the
conviction on Fourth Amendment grounds, reasoning that the officers were not
authorized to arrest Moore under state law and the Fourth Amendment did not permit
searches incident to citation. Id. at 168. The Supreme Court disagreed, holding that
it is not the province of the Fourth Amendment to enforce state law and the arrest
was permissible under the Fourth Amendment because it was supported by probable
cause -- regardless of whether the arrest violated state law. Id. at 178.
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In United States v. Goings, we addressed whether Moore required suppression
where a defendant had been arrested in Florida by Georgia officers following a high-
speed pursuit. 573 F.3d 1141, 1142 (11th Cir. 2009). The defendant argued that the
Georgia officers exceeded their authority when they arrested him in Florida, in
violation of state law, and thus, suppression of the drug-related evidence found
incident to that arrest was warranted. Id. We rejected that argument, holding that
any violation of state law was irrelevant to the Fourth Amendment analysis, so long
as the arrest was supported by probable cause. Id. at 1143.
“Whoever has in his or her possession any tool, machine, or implement with
intent to use the same, or allow the same to be used, to commit any burglary or
trespass shall be guilty of a felony of the third degree.” Fla. Stat. § 810.06. To
sustain a conviction under § 810.06, the government must prove the defendant
intended to (1) commit a burglary or trespass while in the possession of burglary
tools and (2) use those tools to commit the crime. Brooks v. State, 23 So. 3d 1227,
1229 (Fla. Dist. Ct. App. 2009). The requisite specific intent exists when the
defendant engages in or causes some overt act toward the commission of the
burglary. Thomas v. State, 531 So. 2d 708, 710 (Fla. 1988). “Although probable
cause requires more than suspicion, it does not require convincing proof, and need
not reach the same standard of conclusiveness and probability as the facts necessary
to support a conviction.” United States v. Dunn, 345 F.3d 1285, 1290 (11th Cir.
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2003) (brackets and quotations omitted). Whether probable cause exists depends on
the elements of the alleged crime and the facts of the case. Skop v. City of Atlanta,
Ga., 485 F.3d 1130, 1137–38 (11th Cir. 2007) (discussing probable cause in the
context of a 42 U.S.C. § 1983 suit). Officers can infer that a defendant possessed
the requisite mens rea giving rise to probable cause where that inference is
reasonable under the totality of the circumstances. Wesby, 138 S. Ct. at 586.
Here, the district court did not err in denying Becker’s motion to suppress
because probable cause existed to arrest Becker for possession of burglary tools. 2
The circumstances of the arrest, when viewed in their totality, show that: (1)
Detective Andrew Bolonka, a member of an FBI task force with knowledge of
Becker’s 2015 burglary arrest, had been conducting surveillance on Becker’s home
in February 2016 in order to find Vickey Jones, with whom Becker had been when
he was arrested in 2015, and to serve a warrant on her; (2) when Becker and Jones
2 As part of our probable cause analysis, we reject the government’s claim that Florida law is irrelevant. In both Moore and Goings, the question was whether suppression was warranted under the Fourth Amendment where an officer exceeded their authority to make an arrest despite having probable cause to do so. Both this Court and the Supreme Court held that an arrest that violated state law was valid for the purposes of the Fourth Amendment so long as the arrest was supported by probable cause. Goings, 573 F.3d at 1143; Moore, 553 U.S. at 178. Here, we’re not asking whether an unlawful arrest amounted to a constitutional violation where the arrest was supported by probable cause but was made in violation of state law on some other basis; in contrast, we’re looking to Florida law to inform the analysis of whether probable cause existed for the purposes of the Fourth Amendment. The probable cause analysis for a given arrest is necessarily framed by the nature of the law allegedly violated, insofar as the reasonableness of that arrest can be determined only by looking at the alleged criminal conduct and comparing it to the conduct prohibited by law. See Skop, 485 F.3d at 1137–38. In other words, it is only possible to know whether an officer’s decision to arrest was objectively reasonable if one knows what the alleged crime entails, an analysis that necessarily implicates state law. 6 Case: 17-10902 Date Filed: 02/19/2019 Page: 7 of 15
left his home in a minivan, Bolonka stopped the vehicle to execute the warrant on
Jones; (3) as Bolonka approached the van, he observed the presence of a pry bar,
sledgehammer, and powered saw in the van that he knew were similar to those found
in the rented van Becker had been driving when arrested in 2015 on burglary
charges; and (4) at that point, Bolonka arrested Becker. In light of this evidence and
Bolonka’s familiarity with Becker’s 2015 burglary arrest -- including the
involvement of the same people, mode of transportation, and tools -- a reasonable
officer in Bolonka’s position could have inferred a substantial chance that Becker
intended to or was in the process of committing a burglary using the tools in the van.
Willis, 759 F.2d at 1494; Wesby, 138 S. Ct. at 586 (“Probable cause is not a high
bar.” (quotations omitted)). It was not necessary for Bolonka to have conclusive
proof of Becker’s intent, so long as Bolonka had something more than a mere
suspicion that Becker intended to commit a burglary, which the circumstances
surrounding Becker’s 2016 arrest supplied. Dunn, 345 F.3d at 1290.
Becker adds that Florida courts have sought to limit “pretextual arrests” that
lack an overt act evidencing the defendant’s specific intent to commit burglary with
the tools he possessed, so that an officer familiar with the defendant’s criminal
history cannot arrest him any time he knows the defendant possesses a burglary tool.
But that is not the case before us. Here, Detective Bolonka based his arrest on more
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than mere possession, including the use of a rental van, Jones’s presence, and
Becker’s criminal history and modus operandi. Thomas, 531 So. 2d at 710.
As for Becker’s argument that the district court clearly erred in finding, as part
of its probable cause analysis, that Bolonka saw a mask and bandana in the van
before he arrested Becker, we do not address it because the record supports a finding
of probable cause without consideration of the mask and bandana. Nor is there any
reason to undergo a “fruit of the poisonous tree” analysis, since we’ve concluded
that the arrest did not violate the Fourth Amendment. In short, the district court did
not err in holding that Bolonka had probable cause to arrest Becker.
We also are unconvinced by Becker’s challenge to his Miranda waiver.
Before the government may introduce a defendant’s uncounseled statements made
during custodial interrogation, it must show that he made a voluntary, knowing, and
intelligent waiver of his privilege against self-incrimination and his right to counsel.
Lall, 607 F.3d at 1282. This showing requires: (1) the relinquishment of the right to
have been voluntary, i.e., “the product of free and deliberate choice rather than
intimidation, coercion, or deception”; and (2) the waiver to have been made with “a
full awareness of both the nature of the right being abandoned and the consequences
of the decision to abandon it.” Id. at 1283 (quotations omitted). Miranda rights are
effectively waived if the “totality of the circumstances surrounding the interrogation
reveal both an uncoerced choice and the requisite level of comprehension.” Ransfer,
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749 F.3d at 935 (quotations omitted). In determining whether a defendant was
coerced, we consider the defendant’s education, level of intelligence, the failure to
appraise the defendant of his rights, the length of detention, the length and nature of
the questioning, and the use of physical punishment. Id.
The use of deception to obtain a confession is an important factor when
considering the totality of the circumstances. Lall, 607 F.3d at 1285. While
misrepresentations of fact are not enough to render a suspect’s subsequent
confession involuntary or to undermine a suspect’s Miranda waiver,
misrepresentations of law are more likely to render a confession involuntary. Id.
Where a law enforcement officer promised a defendant that nothing he said would
be used to prosecute him, we held that the promise rendered the defendant’s
subsequent confession involuntary because it completely undermined the
previously-administered Miranda warning’s prophylactic effect. Id. at 1287. In
United States v. Nash, on the other hand, where a law enforcement officer promised
to make it known to the prosecutor that the defendant had cooperated, encouraged
the defendant to tell the truth, and noted that defendants who cooperate generally
received better sentences, we held that the officer had not illegally induced the
defendant’s ensuing confession. 910 F.2d 749, 752–53 (11th Cir. 1990). We
explained that the officer had not promised that the defendant would receive a
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reduced sentence, but had only afforded the defendant the opportunity to make an
informed decision regarding the advantages of cooperating with the government. Id.
Here, the district court did not err in concluding that Becker voluntarily and
knowingly waived his Miranda rights. Becker argues that statements made by
Special Agent T.J. Sypniewski rendered Becker’s Miranda waiver involuntary and
tainted everything that followed, focusing on Sypniewski’s statements that (1) the
justice system rewards those who cooperate and punishes those that do not, and (2)
any state charges could be superseded by the federal charges. As for Becker’s
argument that he was coercively promised assistance avoiding state charges, Special
Agent Sypniewski said that he could not promise Becker anything immediately
following his statement that the federal charges could supersede equivalent state
charges and later clarified that Becker’s state charges might be dropped if equivalent
federal charges are pursued. Sypniewski repeated his inability to promise anything
several more times before Becker confessed, and Becker said that he understood that
no such promises could be made because it would make any subsequent confession
look coerced. Further, Becker was given two separate Miranda warnings, was a self-
described law clerk with ten years of legal experience, and advised that the “number
one sin” was to talk to law enforcement without an attorney present, all of which
indicated that he was aware of his rights and the risks of waiving them. Becker also
made several statements that showed that his decision to confess was largely due to
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his desire to remain in federal custody and to avoid dealing with state authorities.
On this record, we cannot say that Special Agent Sypniewski coerced Becker into
waiving his Miranda rights by making impermissible promises. Lall, 607 F.3d at
1285, 1287; Ransfer, 749 F.3d at 935.
As for Becker’s claim that Special Agent Sypniewski made two statements
that undermined the content of the Miranda warnings, we disagree. Sypniewski
informed Becker that cooperation could work in his favor, said he would inform the
prosecutor of any cooperation Becker chose to give, and repeatedly told Becker that
he could not promise him anything. These statements, absent some other coercive
measure, do not constitute illegal inducement. Nash, 910 F.2d at 752–53.
As for Becker’s argument that Sypniewski’s ameliorative measures were
unable to remove the taint of his initial misstatement, we again disagree. Becker
suggests that it would be impossible for law enforcement to correct an error made
during a custodial interrogation, even where the defendant is well-acquainted with
the criminal legal process and the error is repeatedly corrected before any
incriminating statements are made. But our case law makes clear that we consider
a Miranda waiver under the totality of the circumstances. Ransfer, 749 F.3d at 935.
And the circumstances here indicate that Becker knowingly made the calculated
choice to confess without any promise of a benefit for doing so. Thus, the district
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court did not err in concluding that Becker voluntarily and knowingly waived his
Miranda rights, and we affirm the district court’s denial of the motion to suppress.3
In his next issue on appeal, Becker concedes that our binding precedent
forecloses the argument that his convictions for Hobbs Act robbery do not qualify
as predicate crimes of violence for the purposes of 18 U.S.C. § 924(c)(3)(A). See In
re Saint Fleur, 824 F.3d 1337, 1340 (11th Cir. 2016). We are bound by prior panel
precedent unless and until that holding is overruled by this Court en banc or by the
Supreme Court. United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009).
Moreover, published successive application orders are binding precedent on all
subsequent panels of this Court. United States v. St. Hubert, 909 F.3d 335, 346 (11th
Cir. 2018). Thus, based on In re Saint Fleur, we reject Becker’s argument that
convictions for Hobbs Act robbery do not constitute “crimes of violence” under §
924(c)(3)(A), but deem Becker’s argument as preserved for further review.
We also find no merit to Becker’s claim that the prosecutor made comments
in closing argument that violated his Fifth Amendment right to remain silent. It is
axiomatic that a defendant in custody has an indisputable right under the Fifth
Amendment to remain silent after they have received their Miranda warning.
3 In resolving Becker’s challenge to his Miranda waiver, we decline to apply the plain error standard of review, even though we usually review only for plain error when an issue was not raised below. Turner, 474 F.3d at 1275. It is not obvious from the record whether Becker sufficiently raised his due process argument before the district court to preserve it for appeal, and, in any event, as we’ve explained, Becker has failed to show that the district court erred under the more lenient de novo standard of review. 12 Case: 17-10902 Date Filed: 02/19/2019 Page: 13 of 15
Wilchcombe, 838 F.3d at 1190. At the same time, we allow comments on a
defendant’s pre-Miranda, post-arrest statements to be used as both direct and
impeachment evidence. Id.
Here, Becker challenges the prosecutor’s comment during closing arguments
that Becker never mentioned the gun used or other means by which he could scare
people. Becker admits he did not object at trial to this comment, so we review only
for plain error. Turner, 474 F.3d at 1275. But Becker’s brief does not begin to
develop any plain error argument, beyond asserting that the comment was improper
and that he is simply preserving it for further review. Among other things, Becker
has not explained what the prosecutor was referring to, how the comment amounted
to error, whether that error was plain, or how it affected his substantial rights. Id. at
1276. Accordingly, we cannot say the district court plainly erred as to this issue.
Finally, we are unpersuaded by Becker’s claim that his sentence violated the
Eighth Amendment in that it was grossly disproportionate to his offense of
conviction. The defendant bears the burden of proof to make a threshold showing
that his sentence is grossly disproportional to the offense committed. United States
v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006). Generally, a sentence within
statutorily-prescribed limits is neither excessive nor cruel or unusual under the
Eighth Amendment. Id. So while a narrow principle of proportionality applies to
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noncapital sentences, there have been few successful challenges to the
proportionality of a sentence. McGarity, 669 F.3d at 1256.
Where a defendant has been convicted for a crime of violence under § 924(c)
that involved the brandishing of a firearm, the statutory minimum sentence for a first
conviction is 84 months’ imprisonment. 18 U.S.C. § 924(c)(1)(A)(ii). In the case
of a second or subsequent conviction, the minimum sentence is 300 months’
imprisonment. Id. § 924(c)(1)(C)(i). Any sentence imposed on a defendant under §
924(c) shall run consecutively with any other term of imprisonment imposed. Id. §
924(c)(1)(D)(ii).
Becker has failed to make the threshold showing that his 794-month statutory-
minimum sentence violates the Eighth Amendment. For starters, although he claims
that he did not personally wield a gun, he does not dispute that he was properly
prosecuted and sentenced as an aider and abettor pursuant to 18 U.S.C. § 2.
Moreover, the district court was bound to sentence Becker pursuant to the statutory
minimums listed under 18 U.S.C. § 924(c), and a sentence within statutorily-
prescribed limits is neither excessive nor cruel or unusual under the Eighth
Amendment. Johnson, 451 F.3d at 1243. Becker has not otherwise shown why his
sentence is so grossly disproportional that it constitutes a constitutional violation;
rather, he acknowledges that we have never held that a non-capital offense imposed
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on an adult violated the Eighth Amendment. Thus, he has failed to carry his burden,
and we affirm. Id.
AFFIRMED.