[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-12621 FILED
Non-Argument Calendar U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 19, 2012
D.C. Docket No. 4:09-cr-00431-BAE-GRS-1 JOHN LEY
CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC LAVONNE SMALLS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(January 19, 2012)
Before BARKETT, MARCUS and MARTIN, Circuit Judges.
PER CURIAM:
Eric Lavonne Smalls appeals the district court’s denial of his motion to
suppress evidence and his sixty-five-month sentence imposed after he pled guilty
to the offense of possession of a firearm by a convicted felon. See
18 U.S.C. §
922(g)(1).
Smalls argues that the district court erred in denying his motion to suppress
evidence seized from his automobile after he was stopped by Savannah-Chatham
County Metropolitan Police Officer John McNamara for violating a state statute
prohibiting amplification of sound from any “mechanical sound-making device” in
a motor vehicle so that the sound becomes “plainly audible at a distance of 100
feet or more from the motor vehicle.”
Ga. Code Ann. § 40-6-14(a).1
The Fourth Amendment to the United States Constitution prohibits
“unreasonable searches and seizures.” U.S. Const. amend. IV. Within the
limitations imposed by the Fourth Amendment, a police officer “may stop a
vehicle when there is probable cause to believe that the driver is violating [an]
applicable traffic [or] equipment regulation[] relating to the operation of motor
1
Officer McNamara testified that he stopped Smalls to enforce both the statute and a
local ordinance prohibiting loud music from a motor vehicle, however, because the government
relies on the statute and does not specify what ordinance McNamara was enforcing, we address
McNamara’s authority to effectuate the stop for a violation of the statute only.
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vehicles.” United States v. Spoerke,
568 F.3d 1236, 1248 (11th Cir. 2009)
(internal quotation marks omitted).
Here, Smalls contends that McNamara lacked probable cause to stop him for
a violation of the statute because there was no specific testimony at the
suppression hearing that Officer McNamara was located more than one-hundred
feet away when he heard the sound emitted from Smalls’ vehicle. However, even
if Officer McNamara was positioned more than one-hundred feet away, “[a] traffic
stop based on an officer’s incorrect but reasonable assessment of facts does not
violate the Fourth Amendment” provided that the “mistake of fact was
reasonable.” United States v. Chanthasouxat,
342 F.3d 1271, 1276 (11th Cir.
2003). Officer McNamara testified at the suppression hearing that he heard a loud
“thumping” sound coming from the radio in Smalls’ automobile when Officer
McNamara was located one block away from Smalls, and that he heard the
automobile before he saw it. A reasonable officer in Officer McNamara’s position
could have believed that the music was audible more than one-hundred feet away
on the basis of these observations. Because any mistake of fact by Officer
McNamara in evaluating his distance from Smalls’ car was thus a reasonable one,
he did not violate the Fourth Amendment when he stopped Smalls for violation of
the noise statute. See Illinois v. Rodriguez,
497 U.S. 177, 185 (1990) (“What is
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generally demanded of the many factual determinations that must regularly be
made by agents of the government . . . is not that they always be correct, but that
they always be reasonable.”).
In challenging his sentence, Smalls argues that the district court erred in
applying a four-level enhancement for use or possession of a firearm “in
connection with another felony offense,” see U.S.S.G. § 2K2.1(b)(6) (2010), based
upon its finding that, at the time of his arrest, Smalls was involved in committing
the felony offense of possessing marijuana with intent to distribute it, see
18
U.S.C. § 841(a)(1)-(b)(1)(D).2 Smalls argues this was erroneous because, he
asserts, the evidence was more consistent with personal use of marijuana than with
distribution of it. We review the district court’s findings for clear error, see
United States v. Blas,
360 F.3d 1268, 1272 (11th Cir. 2004), and we may reverse
only if “after reviewing all of the evidence,” we are left with “a definite and firm
conviction that a mistake has been committed.” United States v. Rodriguez-
Lopez,
363 F.3d 1134, 1137 (11th Cir. 2004) (internal quotation marks omitted).
2
This finding does not give rise to an Apprendi violation because the sentence imposed
was within the ten-year statutory maximum punishment for violation of
18 U.S.C. § 922(g)(1), to
which Smalls pled guilty. See
18 U.S.C. § 924(a)(2); Blakely v. Washington,
542 U.S. 296, 303
(2004) (“[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.”) (emphasis omitted).
4
Having reviewed all of the evidence to which the parties refer us,3 we find no clear
error in the district court’s determination that Smalls was engaged in distributing
marijuana at the time of his possession of the handgun.
Finally, Smalls contends that the district court erred in denying him credit
for acceptance of responsibility in computing his offense level. See U.S.S.G. §
3E1.1(a) (2010). “The district court’s determination of whether a defendant is
entitled to a reduction for acceptance of responsibility is a finding of fact that is
entitled to great deference on appeal and will not be disturbed unless clearly
erroneous.” United States v. Caraballo,
595 F.3d 1214, 1233 (11th Cir. 2010)
(internal quotation marks omitted). Here, the district court denied Smalls a
reduction for acceptance of responsibility because Smalls tested positive for
cocaine usage during his pre-trial release. See United States v. Pace,
17 F.3d 341,
343 (11th Cir. 1994) (affirming district court’s finding that defendant’s illegal
drug use while on pre-trial release was inconsistent with acceptance of
responsibility). Although Smalls produced the results of a drug test administered
3
The district court’s finding was based on testimony at the sentencing hearing and
information in Smalls’ presentencing report which showed that, at the time of his offense, Smalls
was in possession of seventy-one grams of marijuana, drug paraphernalia, and numerous small
baggies that the court found are typically used to distribute marijuana, and that Smalls had a prior
record of conviction for a drug-distribution offense. Although Smalls argues that some of this
evidence was consistent with personal use, that Smalls may have used some of the marijuana
himself does not necessarily negate that he also distributed it, and therefore this assertion alone
does not render the district court’s finding clearly erroneous.
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by a private lab in which he tested negative, the district court credited the
government’s test because it was conducted by a lab that is certified by the
government and that takes precautions to prevent a false positive result. The
district court’s decision to credit the positive test result was not clearly erroneous
on its face, and Smalls points us to no additional evidence that calls the district
court’s finding into question.
AFFIRMED
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