United States v. Renier Herrera , 271 F. App'x 852 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-13130 March 27, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 06-20648-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RENIER HERRERA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 27, 2008)
Before DUBINA, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Renier Herrera appeals his convictions and sentences for
possession of cocaine base, in violation of 21 U.S.C. § 844, possession of
marijuana, in violation of 21 U.S.C. § 844, and possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). The facts of Herrera’s arrest
are simple and straightforward. Detective Jonathon Streetzel (“Detective
Streetzel”) of the Miami-Dade police department observed as Herrera parked a
sports utility vehicle (“SUV”) a few feet from the detective’s unmarked car in a
shopping center parking lot. Within minutes, another man parked alongside
Herrera, approached the driver’s side of Herrera’s SUV, and handed Herrera what
appeared to be a bag of crack cocaine in exchange for money. Detective Streetzel
followed Herrera as he left the parking lot and stopped the SUV soon thereafter.
Detective Streetzel smelled burning marijuana as he approached the SUV, and
officers uncovered marijuana in the ashtray, marijuana and crack cocaine in
Herrera’s pocket, and a loaded handgun jutting out from underneath the driver’s
seat.
On appeal, Herrera argues that the district court erred in (1) denying his
motion to suppress evidence that was seized pursuant to the stop of his vehicle,
(2) enhancing his sentence under the Armed Career Criminal Act (“ACCA”), and
(3) enhancing his offense level under the sentencing guidelines for possession of a
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firearm in connection with another felony offense.1 For the reasons that follow, we
find it necessary to address his first two issues only, and we affirm.
I. Motion to Suppress
Herrera argues first that Detective Streetzel's observations provided an
insufficient basis for the subsequent stop of Herrera's vehicle. He contends that the
officer observed nothing more than the everyday actions of presumably innocent
patrons of a shopping center, and the subsequent discovery of contraband does not
justify an initially unlawful detention.
We review the denial of a motion to suppress under “a mixed standard of
review, reviewing the court’s findings of fact for clear error and its application of
the law to those facts de novo.” United States v. Dunn, 345 F.3d 1285, 1288 (11th
Cir. 2003) (quotations and citations omitted). On review of the denial of a motion
to suppress, we construe all facts in the light most favorable to the prevailing party
below. United States v. Perez, 443 F.3d 772, 774 (11th Cir. 2006).
The stop of a motor vehicle may be justified by a reasonable suspicion of
criminal activity. See United States v. Lindsey, 482 F.3d 1285, 1290-91 (11th
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Herrera also argues that the court erred in enhancing his sentence under ACCA based
on his prior convictions that were neither charged in the indictment nor proven to the jury
beyond a reasonable doubt. However, he acknowledges that the law of the Supreme Court
allows for such use of his prior convictions. See Apprendi v. New Jersey, 530 U.S. 466, 489, 120
S. Ct. 2348, 2362-63 (2000) (“Other than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.”).
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Cir.), cert. denied, 128 S. Ct. 438 (2007). “To have reasonable suspicion, an
officer conducting a stop must have a reasonable, articulable suspicion based on
objective facts that the person has engaged in, or is about to engage in, criminal
activity.” Id. at 1290 (quotations and citations omitted). “We examine ‘the totality
of the circumstances’ to determine whether the police had ‘a particularized and
objective basis for suspecting legal wrongdoing.’” Id. (quoting United States v.
Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750 (2002)). Further, “[a] reasonable
suspicion of criminal activity may be formed by observing exclusively legal
activity.” United States v. Gordon, 231 F.3d 750, 754 (11th Cir. 2000). “In
examining the totality of the circumstances, a reviewing court must give due
weight to the officer's experience.” United States v. Briggman, 931 F.2d 705, 709
(11th Cir. 1991).
Under the totality of the circumstances, including Detective Streetzel’s
experience observing similar drug transactions in the same location, we conclude
that the district court did not err in finding that the detective had reasonable
suspicion to stop Herrera’s SUV. Accordingly, we affirm his convictions.
II. Armed Career Criminal Enhancement
Next, Herrera argues that the district court erred in finding that his prior
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conviction in Florida for high-speed chase constituted a violent felony for purposes
of enhancing his sentence as an armed career criminal, per 18 U.S.C. § 924(e). He
contends that the statutory elements of this offense, along with the charging
document, demonstrate that it is not a violent felony, as it neither requires damage
to persons or property nor has as an element conduct that presents a serious risk of
harm.
We review de novo whether a prior conviction constitutes a violent felony
for purposes of the § 924(e) armed career criminal enhancement. United States v.
Day, 465 F.3d 1262, 1264 (11th Cir. 2006). The ACCA requires a minimum
sentence of 15 years imprisonment for a defendant who violates 18 U.S.C. § 922(g)
and has 3 previous convictions for “a violent felony or serious drug offense.” 18
U.S.C. § 924(e)(1). To that end, the ACCA defines a “violent felony” as:
[A]ny crime punishable by imprisonment for a term exceeding one
year, or any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be punishable by
imprisonment for such term if committed by an adult, that--
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another[.]
18 U.S.C. § 924(e)(2)(B). At the time of Herrera’s conviction, Florida law
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provided that:
Any person who, in the course of unlawfully fleeing or attempting to
elude a law enforcement officer in an authorized law enforcement
patrol vehicle . . . having knowledge of an order to stop by a duly
authorized law enforcement officer, causes the law enforcement
officer to engage in a high-speed vehicle pursuit commits a felony of
the third degree . . . .
Fla. Stat. § 316.1935(2) (1996).
“In determining whether a particular offense falls within [§ 924(e)(2)(B)],
the Supreme Court has directed trial courts to pursue a categorical approach,
‘looking only to the statutory definitions of the prior offenses, and not to the
particular facts underlying those convictions.’” United States v. Wilkerson, 286
F.3d 1324, 1325 (11th Cir. 2002) (quoting Taylor v. United States, 495 U.S. 575,
600, 110 S. Ct. 2143, 2159 (1990)). Further, we have held that “our cases
interpreting ‘crime of violence’ under [U.S.S.G.] § 4B1.2 provide important
guidance in determining what is a ‘violent felony’ under the ACCA[,] because the
definitions for both terms are virtually identical.” United States v. Taylor, 489
F.3d 1112, 1113 (11th Cir.) (quotations and citations omitted), petition for cert.
filed, (U.S. Nov. 16, 2007) (No. 07-668). In this regard, we have held that felony
fleeing and eluding in Florida constitutes a “crime of violence” within
§ 4B1.2(a)(2), as “[t]he dangerous circumstances surrounding a person's attempt to
flee from law enforcement coupled with the person's operation of a motor vehicle
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most assuredly presents a ‘potential risk of physical injury’ to others.” United
States v. Orisnord, 483 F.3d 1169, 1182-83 (11th Cir.), cert. denied, 128 S. Ct. 673
(2007) (quoting U.S.S.G. § 4B1.2(a)(2) and interpreting Fla. Stat. § 316.1935(3)
(2004)).
Here, although Orisnord involved a separate provision of Florida’s fleeing
and eluding statute, our reasoning is equally applicable to the statute under which
Herrera was convicted, as both offenses similarly proscribe conduct involving
motorists who flee from or attempt to elude law enforcement officers. Compare
Fla. Stat. § 316.1935(2) (1996) (“Any person who, in the course of unlawfully
fleeing or attempting to elude a law enforcement officer . . . causes the law
enforcement officer to engage in a high-speed vehicle pursuit commits a felony in
the third degree.”), with Fla. Stat. § 316.1935(3)(a) (2004) (“Any person who
willfully flees or attempts to elude a law enforcement officer . . . and during the
course of the fleeing or attempted eluding . . . [d]rives at high speed, or in any
manner which demonstrates a wanton disregard for the safety of persons or
property, commits a felony of the second degree.”). Accordingly, the fleeing
motorist who causes a high-speed chase in violation of former § 316.1935(2)
creates the very same serious risk of potential injury to pedestrians, other drivers,
and police officers. Further, as with U.S.S.G. § 4B1.2(a)(2)’s residual definition of
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a crime of violence, the plain language of 18 U.S.C. § 924(e)(2)(B)(ii) “makes
clear that the potential risk of injury, rather than actual violence or actual injury, is
the touchstone of a [violent felony].” Orisnord, 483 F.3d at 1182; see 18 U.S.C.
§ 924(e)(2)(B)(ii). Therefore, we hold that the district court did not err in finding
that Herrera’s prior conviction for high-speed chase constituted a violent felony
and, in turn, enhancing his sentence under the ACCA.
Moreover, as a result of our holding, we do not address Herrera’s third issue
regarding the enhancement of his guidelines offense level for possession of a
firearm in connection with another felony offense, per U.S.S.G. § 2K2.1(b)(6).
Herrera’s offense level with the § 2K2.1(b)(6) enhancement was 28. However,
after finding that Herrera qualified as an armed career criminal, the court was
required to apply an offense level of 33. See U.S.S.G. § 4B1.4(b)(3)(B). For the
above-stated reasons, we affirm Herrera’s convictions and sentences.
AFFIRMED.
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