United States v. Booker Powell , 732 F.3d 361 ( 2013 )

Case: 11-51205 Document: 00512395361 Page: 1 Date Filed: 10/03/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 3, 2013
No. 11-51205 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
BOOKER ANDERSON-JAY POWELL; APRIL MARIE AKIN
Defendants-Appellants
Appeals from the United States District Court
for the Western District of Texas
Before JONES, SMITH, and GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
This appeal arises from the conviction and sentencing of Booker Anderson-
Jay Powell (“Powell”) and April Marie Akin (“Akin”) on charges of conspiracy to
possess cocaine base (“crack cocaine”) with intent to distribute, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and possession with intent to
distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and
18 U.S.C. § 2. On appeal, Akin and Powell challenge the denials of their motions
to suppress evidence under the Fourth Amendment, Powell challenges the
admission of his co-defendant’s inculpatory statements under the Bruton
doctrine, Akin challenges the legal sufficiency of the evidence supporting
conviction, and Powell challenges his sentence on two grounds—the propriety of
Case: 11-51205 Document: 00512395361 Page: 2 Date Filed: 10/03/2013
No. 11-51205
a two-level enhancement entered under section 3B1.4 of the United States
Sentencing Guidelines, and the substantive reasonableness of the final sentence
imposed. For the reasons that follow, we AFFIRM the judgment of the district
court.
I
Akin and Powell were students at Odessa College. They lived together in
Odessa and had an infant daughter who was 18-months old at the time of trial.
On January 13, 2011, Officer Dwayne Gerber, of the Lubbock Police Department,
received a call from Cory Bracy (“Bracy”), a confidential informant who had
worked with Officer Gerber since 2010.1 Gerber testified that he had received
credible information from Bracy in the past, but he learned that Bracy had lied
to him about whether he was cooking crack cocaine and dealing drugs while
serving as an informant. Bracy told Officer Gerber that a man called “Little
Book” and a woman who had just left his home had purchased a quantity of
crack cocaine and were en route to Midland, where they intended to sell the
narcotics. Bracy described the make, possible model, and color of the vehicle.
He also recounted the first three characters of the license plate. Bracy did not
inform Officer Gerber that he had cooked the crack cocaine which “Little Book”
had just purchased. Officer Gerber took this information to the Midland Police.
He called Detective Marker, conveying the tip he had just received and stating
that, in his belief, Bracy was sufficiently reliable for the tip to provide probable
cause for a vehicle stop.
Detective Marker and his colleague Sergeant Fain established a
surveillance position in Lamesa, Texas—a town on the most direct route between
Lubbock and Midland. In time, the officers observed a vehicle matching the
description provided by Officer Gerber. They began following the vehicle, each
1
Bracy had previously been an informant for Officer Gerber in 1997 and 1998. The two
individuals had not been in contact during the interim period.
2
Case: 11-51205 Document: 00512395361 Page: 3 Date Filed: 10/03/2013
No. 11-51205
in an unmarked car. The officers followed the vehicle until it reached Midland,
verifying its intended destination. The officers observed the vehicle change
lanes without signaling and fail to maintain a signal lane of traffic. However,
the unmarked cars could not perform a traffic stop, so they contacted the
Midland Police to send a marked canine unit. Heeding this call, Officer Welch
and his canine, Bruno, joined in the surveillance. Officer Welch observed the
vehicle fail to maintain a single lane of traffic, and initiated a vehicle stop.
Powell, the driver, pulled the vehicle onto the grassy center median of
Loop 250 in Midland. Akin and their infant daughter were passengers in the
car. Officer Welch testified that he asked Powell to exit the vehicle, frisked him
for weapons, and asked Powell to accompany him to the patrol vehicle to discuss
the traffic violation where there was less danger from oncoming traffic. Officer
Welch testified Powell consented to a search of his pockets for narcotics. He also
performed a horizontal gaze nystagmus test and determined Powell was not
under the influence. Officer Welch returned to the vehicle to speak with Akin.
Approximately ten minutes into the traffic stop, Officer Welch ran Powell’s and
Akin’s names through law enforcement databases to check for warrants. At this
point, Officer Welch testified that he asked Powell for consent to search the
vehicle, which was given. Powell disputes this fact. Midland Police policy
requires occupants be removed from a car before it is searched. There was no
safe location at the scene for Akin and her infant daughter to wait during the
search. It was a cold winter’s evening on the side of a busy Texas state highway.
Officer Welch’s canine unit could not accommodate the young mother and child
and the unmarked vehicles were not on location. Officer Welch called for a back-
up vehicle to remedy this problem. They waited 20–30 minutes for its arrival.
During this wait, Powell told Officer Welch that he “was coming from an
apartment complex in Midland.” However, Powell could not identify the name
of the complex or its street location. When the search commenced, Officer Welch
3
Case: 11-51205 Document: 00512395361 Page: 4 Date Filed: 10/03/2013
No. 11-51205
and Bruno entered the vehicle. Bruno “alerted” to the backseat of the car.
Midland’s police dogs are trained by a private company prior to their arrival,
then they undergo an additional 20 hours of training with their handler and
receive formal certification as a drug detection dog. Bruno was new to the force
and had not yet received formal certification. Though his formal certification
was received six weeks after the instant search, Officer Welch—who had
handled two other drug dogs—testified that Bruno was fully trained. After
alerting, Bruno was returned to his kennel. Officer Welch and other officers
began searching the car. Detective Marker and Sargent Fain arrived on scene
and asked Akin about her whereabouts. According to trial testimony, Akin
stated she had come from Lubbock. During the search Powell was placed in
handcuffs.
Because of inclement weather and the dangerous location of the vehicle,
the officers moved the car to the Midland police station to continue the search.
According to Detective Marker, although the officers never sought their consent
for the move, Akin and Powell did not object. Powell contests this point. At the
police station, the officers conducted a more thorough search of the vehicle.
Detective Marker reported smelling drugs near the front of the car. The officers
pried a button off of the dashboard. With a flashlight they could see drugs and
U.S. currency stashed behind the dash. The officers recovered approximately
240 grams of crack cocaine and $1,400 in United States currency. Akin and
Powell were interviewed in separate rooms. Detective Marker and Sergeant
Fain testified that Akin admitted that she had been to Lubbock to meet with
Bracy, also known as “Caine,” to pick up crack cocaine.
Officers heard a ringing cell phone during the search of the car. The phone
was located between the door and the driver’s seat. Powell denied ownership of
the phone. Akin claimed the phone belonged to Powell, denying her personal
ownership. Later in the evening, officers looked at the phone’s contents and
4
Case: 11-51205 Document: 00512395361 Page: 5 Date Filed: 10/03/2013
No. 11-51205
identified a series of text messages between Powell and Bracy concerning their
trip to Lubbock to purchase crack cocaine. At trial, the district court admitted
the drugs, currency, cell phone, text messages and other evidence discovered
from the search of the car.
Before trial, Akin and Powell filed motions to suppress evidence obtained
during the search of the vehicle, which were denied. Powell filed a pre-trial
motion in limine under the Confrontation Clause of the Sixth Amendment to
exclude witness testimony about Akin’s out of court statements. The district
court denied this order but entered an order that the “government will not elicit
a response that requires” a witness to make any statement one defendant made
concerning the other.
Akin and Powell were tried by jury in a joint trial. Multiple witnesses
testified as to Akin’s and Powell’s involvement in crack cocaine dealing. For
example, Taeshiba Bracy, Cory Bracy’s sister, testified that she and Powell sold
crack cocaine from her beauty salon—approximately two or three kilograms in
total. Taeshiba testified that Akin would bring more crack cocaine when she and
Powell would exhaust their supply. Ashley Nicole Smith-McDowell testified that
she bought crack from Powell since August 2010. Bracy testified that he and
Powell would cook crack cocaine together with some frequency. He further stated
that Akin would accompany Powell on his trips. Powell elected to testify, Akin
did not. At trial, Akin’s statements were introduced against her through
investigating police officers’ testimony. Sergeant Fain testified, “She said that
she had been to Lubbock and had met a guy named Caine and picked up some
. . . cocaine, crack cocaine, was picked up and she drove back to Midland.”
Detective Marker testified: “Ms. Akin stated that she had traveled from Odessa
to Lubbock on this date, the 13th, and had obtained a quantity of crack cocaine
. . . from somebody named Caine.” During his cross-examination, Powell
asserted that he did not go to Lubbock on the day in question. In response, the
5
Case: 11-51205 Document: 00512395361 Page: 6 Date Filed: 10/03/2013
No. 11-51205
prosecution challenged Powell with Akin’s out of court statements, asking him
to explain them.
The jury returned a guilty verdict for both parties on both counts. The
district court sentenced Powell to 188 months of imprisonment and 5 years of
supervised release. The district court included a sentence enhancement for
Powell’s use of his minor daughter in the commission of the offense. Akin was
sentenced to 120 months of imprisonment and 5 years of supervised release.
This timely appeal followed.
II
Appellants contend the district court erred in denying their respective
motions to suppress evidence gathered during the vehicle search. Powell and
Akin each challenge the admission of the crack cocaine and U.S. currency
discovered behind the dashboard. Akin additionally challenges the admissibility
of the cell phone found under the driver’s seat and the information it contained.
“When reviewing a district court’s denial of a motion to suppress evidence
as obtained in violation of the Fourth Amendment, we review the factual
determinations for clear error and the legal conclusions de novo.” United States
v. Pompa, 434 F.3d 800, 803 (5th Cir. 2005). The evidence is viewed in the light
most favorable to the party who prevailed below—here, the government. See
United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993). And, in our review
of the case, “we may affirm the district court’s decision on any basis established
by the record.” United States v. Ibarra-Sanchez, 199 F.3d 753, 758 (5th Cir.
1999).
A
1
The validity of the initial traffic stop is not contested. Both Powell and
Akin contest the reasonableness of the investigatory detention and search that
followed the initial stop. Powell asserts that the detention exceeded its objective
6
Case: 11-51205 Document: 00512395361 Page: 7 Date Filed: 10/03/2013
No. 11-51205
purpose. Akin asserts that she was detained beyond the time necessary to
process the traffic violation. In response, the government asserts that the traffic
violation was not the only justification for the stop—additionally, the police had
reasonable suspicion, based on Bracy’s tip to the police, subsequent
corroboration, and the appellants’ conflicting statements, that Powell and Akin
were transporting a significant amount of crack cocaine. The government
contends that the officers’ actions were reasonably related to this additional
basis of reasonable suspicion and therefore complied with the Constitution. We
agree.
The reasonableness of traffic stops and investigative detentions of persons
suspected of criminal activity is evaluated through a two-step inquiry under
Terry v. Ohio, 392 U.S. 1 (1968). See United States v. Stevens, 487 F.3d 232, 244
(5th Cir. 2007). First, we determine whether stopping the vehicle was initially
justified by reasonable suspicion. Second, we evaluate whether the officer’s
actions were reasonably related in scope to the circumstances that justified the
stop. In the context of a traffic stop, once an officer’s initial suspicions “have
been verified or dispelled, the detention must end unless there is additional
reasonable suspicion supported by articulable facts.” United States v. Estrada,
459. F.3d. 627, 631 (5th Cir. 2006). Our assessment of reasonable suspicion is
based on the totality of the circumstances. Id. Furthermore, reasonable
suspicion can vest through the collective knowledge of the officers involved in the
search and seizure operation. The collective knowledge theory for reasonable
suspicion applies so long as there is “some degree of communication” between the
acting officer and the officer who has knowledge of the necessary facts. See
United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007). Reasonable suspicion
can be formed by a confidential informant’s tip so long as the information is
marked by “indicia of reliability.” Adams v. Williams, 407 U.S. 143, 147 (1972);
United States v. Zamora, 661 F.3d 200, 207 (5th Cir. 2011). In United States v.
7
Case: 11-51205 Document: 00512395361 Page: 8 Date Filed: 10/03/2013
No. 11-51205
Martinez, 486 F. 3d 855, 861 (5th Cir. 2007), we discussed a number of the
factors applied in determining whether a tip provides reasonable suspicion,
including: “the credibility and reliability of the informant, the specificity of the
information contained in the tip or report, the extent to which the information
in the tip or report can be verified by officers in the field, and whether the tip or
report concerns active or recent activity, or has instead gone stale.” Id.The informant’s tip to Officer Gerber set this chain of events in motion.
Powell and Akin claim that Bracy’s tip was not sufficiently reliable to provide
independent reasonable suspicion of a drug crime. They allege Bracy’s status as
a drug-dealer and his concealment of this fact from Officer Gerber render his tip
categorically unreliable. Bracy’s personal credibility and reliability is certainly
questionable. Bracy began serving as an informant for Officer Gerber of the
Lubbock Police in September or October of 2010. Officer Gerber testified at trial2
that Bracy provided law enforcement with credible information, which was
corroborated by law enforcement. However, Officer Gerber later discovered that
Bracy was selling crack—a status that Bracy initially concealed. Officer
Gerber’s trial testimony established that Bracy had lied about his current
involvement with drugs and drug crime. In fact, Bracy is the very individual
who sold Powell and Akin the drugs discussed in the tip that were later
discovered in the car. At trial, Officer Gerber conceded that an informant
involved in drug dealing loses reliability, but noted that the information might
still be credible.
Bracy’s role in the sale of the crack cocaine to Akin and Powell is a clear
mark against his credibility. However, we are mindful of the government’s
observation at oral argument that informants in criminal investigations are
2
When reviewing a district court’s determination in a motion to suppress, we may
consider evidence presented at trial in addition to evidence presented at the initial suppression
hearing. See United States v. Basey, 816 F.3d 980, 983 n.1 (5th Cir. 1987).
8
Case: 11-51205 Document: 00512395361 Page: 9 Date Filed: 10/03/2013
No. 11-51205
rarely removed from all aspects of the underlying criminality. While Bracy’s
involvement in selling drugs and his concealment of this fact from Officer Gerber
certainly cut against his personal credibility and reliability, this is not the end
of our analysis. In assessing reasonable suspicion, we must account for the
totality of the circumstances. See Estrada, 459. F.3d. at 631. Here, there are
several additional circumstances to consider.
First, the information contained in Bracy’s tip was very specific. It was
based on his first-hand knowledge of events that had just taken place. Bracy’s
tip to Gerber indicated two “guys” were en route from his house to Midland with
a large quantity of crack. He identified these “guys” as “Little Book” and a
female companion. He further provided a very specific description of the vehicle
in which they traveled. Bracy reported the car’s make (a Ford), the possible
model (either a Fusion or a Focus), and the first three letters of the license plate
affixed to the car (BV5). Additionally, officers in the field were readily able to
verify this information. Acting on Bracy’s tip, Midland detectives waited in
Lamesa, a town on the most direct route from Bracy’s house to Midland. There,
they observed a car matching Bracy’s description and followed that car to the
Midland city limits in order to verify its intended destination. When Officer
Welch stopped the car he discovered Booker Powell, also known as “Little Book,”3
and April Marie Akin, a female—just as Bracy’s tip predicted. Finally, Bracy’s
tip was exceedingly fresh. Officer Gerber received Bracy’s call around 5:00 P.M.
on January 13, 2011. Officer Welch initiated the traffic stop approximately two
hours later.4
3
Witnesses at trial connected Powell to the alias “Little Book.”
4
The communication in this case between the officers is sufficient to trigger the
collective knowledge theory. Officer Gerber was in direct communication with the Midland
police and communicated the underlying basis of the tip. This provided the Midland police
with the same basis of reasonable suspicion as Officer Gerber had.
9
Case: 11-51205 Document: 00512395361 Page: 10 Date Filed: 10/03/2013
No. 11-51205
The specificity, predictive value, and recency of Bracy’s tip are sufficiently
strong to balance the flaws in Bracy’s personal credibility and reliability. A total
evaluation of these factors shows that the informant tip was supported by
sufficient “indicia of reliability” to satisfy the reasonable suspicion requirements
under Terry.
In this case, the reasonable suspicion provided by Bracy’s tip rests on a
strong foundation when viewed alongside cases finding reasonable suspicion in
similar circumstances. Alabama v. White, 496 U.S. 325 (1990), provides a clear
example. In that case, the Supreme Court held that officers had reasonable
suspicion that White possessed cocaine even though they did not personally
observe any illegal activity. Id. In White, police received an anonymous phone
call stating that a woman named White would be in possession of a quantity of
cocaine in a brown leather case. The anonymous informant told police that the
woman would leave a particular apartment around a specific time in a brown
station wagon with a damaged rear light. The informant told police White would
travel to a specific motel. Based on this tip, officers watched a woman leave the
described apartment and drive the described vehicle along the most direct route
to the described motel. The officers stopped the station wagon before it arrived,
an act the Court deemed constitutional. The specificity and accuracy of the
informant’s tip in White, and the police’s ability to verify its contents in the field
prior to effecting the stop are strikingly similar to the instant case. Here,
moreover, the argument for reasonable suspicion based on the informant tip is
stronger than that in White. Whereas the informant in White was anonymous,
Bracy is a known informant. Bracy’s credibility and reliability can at least be
assessed as part of our reasonable suspicion analysis. In White, the Court had
no means of assessing the anonymous informant’s credibility, and nonetheless
determined that other indicia of reliability supported reasonable suspicion.
10
Case: 11-51205 Document: 00512395361 Page: 11 Date Filed: 10/03/2013
No. 11-51205
Officer Welch initiated the traffic stop with two initial justifications:
traffic violations and reasonable suspicion of drug crime. Consequently, under
the second prong of Terry, the officers’ actions were permissible under the
Fourth Amendment because they were reasonably related in scope to the drug
crime justification. We find that the officer’s reasonable suspicion of drug crime
justified the time taken to process the initial traffic infraction, the scope of
Officer Welch’s questioning, and the delay in waiting for the canine unit.
Reasonable suspicion of the drug crime provided an independent basis for
prolonging the investigatory detention beyond the parameters of a run-of-the-
mill traffic stop.5
2
While reasonable suspicion of drug crime provided the necessary Fourth
Amendment basis for the prolonged traffic stop, the discovery of the drugs and
currency at the center of the motions to suppress did not immediately occur
during this stop. Police located the contraband only after they searched the
interior of the vehicle, a drug dog alerted to the possible presence of contraband
inside the vehicle, officers relocated the vehicle to the Midland police station for
additional inspection, and Detective Marker removed a piece of the dashboard.
Akin and Powell challenge the constitutionality of each of these actions and
assert them as grounds for suppression by operation of the exclusionary rule.
Reasonable suspicion is insufficient to permit a general search under the
Constitution. Reasonable suspicion may be sufficient for police to perform a
protective search of a vehicle’s passenger compartment for weapons to ensure
officer safety, see Michigan v. Long, 463 U.S. 1032, 1049 (1983) (explaining
5
Akin and Powell challenge the reasonableness of the investigatory detention based upon the
traffic infraction justification alone. They assert that the police improperly conducted the traffic stop
and illegally prolonged their detention under our standards for vehicle stops. See, e.g., United States v.
Dortch, 199 F.3d 193 (5th Cir. 1999); United States v. Brigham, 382 F.3d 500, 508 (5th Cir. 2004) (en
banc). Because we find that the police had reasonable suspicion of drug crime, providing an adequate
basis for the scope and duration of the stop from the outset, we need not reach these arguments.
11
Case: 11-51205 Document: 00512395361 Page: 12 Date Filed: 10/03/2013
No. 11-51205
permissibility of automobile frisks for limited purpose of ensuring officer safety
in presence of armed or dangerous suspects), but more is needed to justify a full
search of the interior of the vehicle. In this case, the police needed probable
cause or another factor justifying a warrantless search under the Fourth
Amendment—such as consent—in order to carry out a full search of the interior.
Accord Florida v. Royer, 460 U.S. 491, 499 (explaining that Terry is a limited
exception to the probable cause rule). The district court held that the full range
of this search was supported by Powell’s voluntary consent or, in the alternative,
by the existence of probable cause. We agree that the police had probable cause
to believe the vehicle contained crack cocaine, providing a sufficient
constitutional basis for searching the interior of the vehicle, relocating the
vehicle, and removing a piece of the dashboard.6
An exception to the Fourth Amendment’s warrant requirement exists
when a police officer has probable cause to search an automobile for contraband.
See Almeida-Sanchez v. United States, 413 U.S. 266, 269 (1973). The primary
basis for probable cause in this case, like reasonable suspicion, is Bracy’s tip. To
determine whether an informant’s tip is sufficient to establish probable cause,
courts examine the totality of the circumstances. Gates, 426 U.S. at 234.
For the same reasons Bracy’s tip was sufficient to establish reasonable
suspicion, it was sufficient to provide probable cause. The tip, despite Bracy’s
personal credibility problems, is supported by strong indicia of
reliability—corroboration, specificity and recency.7 In Illinois v. Gates, the Court
found that probable cause was established by an anonymous letter indicating
defendants were involved in activities violating state drug laws. Gates, 462 U.S.
at 241–44. The letter predicted future criminal activities that were largely
6
Because we find that probable cause is sufficient to support law enforcement’s action
in this case, we do not address the myriad issues concerning consent and the scope thereof.
7
See supra Section II.A.
12
Case: 11-51205 Document: 00512395361 Page: 13 Date Filed: 10/03/2013
No. 11-51205
corroborated by law enforcement. Id. The Gates Court noted that informants’
statements may be relied upon for probable cause “so long as [they] are
reasonably corroborated by other matters within the officer’s knowledge.” Id. at
241. Similarly, in Draper v. United States, the Court held that an informant’s
tip established probable cause even though the informant gave no indication of
the basis of his claim that a suspect in possession of heroin would arrive in
Denver, by train from Chicago, on either of two days. 358 U.S. 307, 308 (1959).
This informant’s tip contained a detailed physical description of the suspect,
predicted the suspect’s clothing, and asserted that the suspect would be walking
“real fast.” Id.Here, Bracy’s tip was at least as credible as those sufficient to establish
probable cause in Gates and Draper. Unlike the informants in those two cases,
Bracy provided Officer Gerber with the specific basis of his knowledge: he stated
that the subjects had just been in his home and were now traveling with the
crack cocaine in a specific vehicle to Midland. Here, as in Gates and Draper, law
enforcement corroborated the informant’s information in several material
respects—the car’s destination, make, model, color, passengers, and a partial
license plate. Officer Gerber received the tip directly from Bracy and then
communicated it to the Midland police officers and detectives who effected the
stop and search.8 Bracy’s tip provided law enforcement with probable cause that
Powell and Akin were transporting crack cocaine in the vehicle from the outset.
Because the police had probable cause to believe the car contained crack
cocaine, they could validly perform a warrantless search of the vehicle’s interior
to locate that contraband. Probable cause also permitted Bruno to enter and
search the interior of the vehicle. A canine “sniff” test is not a “search” for
Fourth Amendment purposes and is exempt from the probable cause
8
See supra note 4 (discussing the collective knowledge theory).
13
Case: 11-51205 Document: 00512395361 Page: 14 Date Filed: 10/03/2013
No. 11-51205
requirement so long as the dog does not enter the home or vehicle. See Illinois
v. Caballes, 543 U.S. 405 (2005). Here, Bruno did not merely sniff the vehicle’s
exterior, he actually entered the vehicle and alerted on the back seat.9 In the
presence of probable cause, this action was constitutionally permissible.
Furthermore, because law enforcement had probable cause to conduct a
search of the vehicle, moving the car to a safer location—the Midland Police
station—did not undermine the constitutionality of the search. See United
States v. Estrada, 459 F.3d 627, 634 n.7 (5th Cir. 2006) (collecting sources). In
the presence of probable cause, “given the scope of the initial intrusion caused
by seizure of an automobile, there is no constitutional difference between the
proper search on [a] highway and [a] later search at [a police] station.” United
States v. Banuelos-Romero, 597 F.3d 763, 768 (5th Cir. 2010). Here, moving the
vehicle was supported by probable cause stemming from Bracy’s tip and does not
constitute grounds for suppressing the drug and U.S. currency evidence.10
Lastly, the existence of probable cause to believe the vehicle contained
crack cocaine permitted the officers to remove a piece of the dashboard during
the continuation of the search at the police station. In United States v. Zucco,
9
At the time of the search, Bruno had not completed final paper-certification process
with the Midland Police. Bruno had, however, undergone certain training programs. The
district court determined that Bruno’s alert provided a basis for probable cause, justifying the
officers’ continued search of the vehicle. On appeal, the parties have devoted significant
briefing to the validity of Bruno’s alert, his training status, and the meaning of the Supreme
Court’s recent discussion of dog alerts in Florida v. Harris, 133 S.Ct. 1050 (2013). Because we
find that Bracy’s tip provided probable cause from the outset, we need not reach this series of
issues. We note, in passing, that this situation appears very unusual. Bruno, the canine,
alerted to the presence of crack in the backseat—where none was found. Detective Marker,
the human, asserts that he smelled crack cocaine in the dashboard area—where drugs were
found but where the canine did not alert. In any event, Bruno’s alert (if valid) could only have
added to probable cause for the search. In no way did Bruno’s actions detract from the
existing probable cause based on Bracy’s tip.
10
Because probable cause provides a sufficient legal basis for moving the vehicle during
the search, we do not address whether the move falls within the scope of any consent Powell
may have given law enforcement during the traffic stop.
14
Case: 11-51205 Document: 00512395361 Page: 15 Date Filed: 10/03/2013
No. 11-51205
71 F.3d 188, 191–92 (5th Cir. 1995), we determined that “every part of a vehicle
which may conceal the object of the search may be searched” when the search is
supported by probable cause. In Zucco, law enforcement officers had probable
cause that the vehicle contained drugs and moved the vehicle to a police station
for inspection. The search included “dismantling a wall of a vehicle” to
determine whether drugs were hidden in the interior. Id. at 191. Here, the
officers removed a button from the dashboard. With use of a flashlight, the
officers could see packaged crack cocaine and U.S. currency hidden behind the
dash. The area behind a dashboard is an area capable of concealing the object
of this search, crack cocaine. Thus, in the presence of probable cause, removing
a piece of the dashboard to search for the drugs was constitutionally permissible.
B
Akin separately challenges the district court’s denial of her motion to
suppress evidence obtained from the cell phone discovered during the vehicle
search.
Standing is a central component of Fourth Amendment jurisprudence.
“Fourth Amendment rights . . . may not be vicariously asserted.” Alderman v.
United States, 394 U.S. 165, 174 (1969). A defendant seeking to suppress
evidence under the Fourth Amendment must demonstrate that his or her
individual rights were violated. Rakas v. Illinois, 439 U.S. 128, 134 (1978). This
demonstration requires that a defendant prove both a subjective expectation of
privacy regarding the item searched and that the expectation of privacy is
objectively reasonable. United States v. Finley, 477 F.3d 250, 258 (5th Cir.
2007). Under this rubric, a person has no standing to challenge a search or
seizure of property that was voluntarily abandoned. United States v. Alvarez,
6 F.3d 287, 289 (5th Cir. 1993) (holding defendant lacked standing to object to
search of garment bag after denying ownership and voluntarily abandoning the
15
Case: 11-51205 Document: 00512395361 Page: 16 Date Filed: 10/03/2013
No. 11-51205
bag in a motel room).11 Here, Detective Marker heard a cell phone ringing
during the vehicle search at the police station. After several rings, the detective
located the phone between the driver’s door and the seat. Powell denied the
phone was his. When asked about the ownership of the phone, Akin said that
it belonged to Powell. In this, she disclaimed personal connection to the phone.
As a consequence of her statements abandoning the cell phone, she lacks
standing to challenge the admissibility of the phone and the records contained
therein.
Akin does not dispute that she denied ownership of the phone. Rather, she
challenges the governing law in light of the Supreme Court’s decision in
Brendlin v. California, 551 U.S. 249 (2007). Akin asserts that Brendlin allows
a passenger to object to the admission of any evidence seized following a traffic
stop and detention in which the passenger is seized. We disagree. In Brendlin,
the Court held that when the police stop a car, passengers in the car are “seized”
under the Fourth Amendment to the same extent as a driver and thus have
individual standing to challenge the stop’s constitutionality. Brendlin is clearly
focused on the Fourth Amendment implications of a police stop on an
individual’s person and freedom of movement—the seizure of the person. The
Court concludes that the passenger was “seized from the moment [the driver’s
car] came to a halt on the side of the road.” Nothing in the Court’s opinion alters
the standing analysis for searching an area of a vehicle or an item found in a
vehicle. To gain Fourth Amendment standing to challenge the validity of a
search—not the validity of the underlying seizure—passengers must continue
to show a “legitimate expectation of privacy” in the area or item searched. See
Rakas, 439 U.S. at 148. Having abandoned the cell phone, Akin can make no
11
See also United States v. Canady, 615 F.2d 694 (5th Cir. 1980) (finding no legitimate
expectation of privacy in a suitcase after defendant disclaimed ownership of the suitcase several times
at an airport security checkpoint); United States v. Colbert, 474 F.2d 174 (5th Cir. 1973) (en banc)
(determining defendants lacked standing to challenge admissibility of abandoned briefcases).
16
Case: 11-51205 Document: 00512395361 Page: 17 Date Filed: 10/03/2013
No. 11-51205
such showing. Therefore, we hold that the district court did not err in denying
Powell’s and Akin’s respective motions to suppress.
III
Akin claims that the admissible evidence at trial was legally insufficient
to support her conviction. Akin moved for a judgment of acquittal under Federal
Rule of Criminal Procedure 29(a) at the end of the prosecution’s case and
renewed the motion at the close of all evidence, thereby preserving the issue for
review.
When reviewing the legal sufficiency of a conviction, we consider the
evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We will not
reweigh the evidence or assess the credibility of witnesses. United States v.
Owens, 683 F.3d 93, 101 (5th Cir. 2012).
Akin’s central assertion is that the evidence against her would have been
insufficient had the motion to suppress been granted. Akin contends that the
cocaine, currency, cell phone, text messages from the phone, and Akin’s
statements to the police were inadmissible and should not have been considered
by the trier of fact. However, as we concluded above, the stop and search of the
vehicle complied with the Fourth Amendment and the fruits of those actions
were properly admissible.12 Akin does not challenge the sufficiency of the
evidence actually presented at trial.13 Akin does assert that witnesses for the
government were unreliable, that each had motive to lie, and that none of the
12
See supra Section II.
13
Given Akin’s challenge to the evidence subject to her motion to suppress in this
appeal, we will not review the panoply of facts adduced during the multi-day trial and their
relationship to the essential elements of the crime in this opinion. The district court’s Order
Denying Defendant Akin’s Motion for New Trial concisely addresses the legal sufficiency of
evidence presented at trial, and we agree with its conclusions.
17
Case: 11-51205 Document: 00512395361 Page: 18 Date Filed: 10/03/2013
No. 11-51205
witnesses’ accusations could be proven by corroborating evidence. These
contentions go to the weight of the evidence and the credibility of
witnesses—factors for the trier of fact and the trial judge, not a Court of
Appeals.14 Because Akin’s challenge to the legal sufficiency of the evidence
supporting conviction rests entirely on suppressing the evidence obtained from
the search, it must fail. We find that the evidence was legally sufficient to
support Akin’s conviction.
IV
Powell’s Bruton claims, which we consider next, carry greater weight.
Powell and Akin were tried jointly. Powell elected to testify in his own defense.
Akin exercised her Fifth Amendment right not to do so. At trial, the government
introduced Akin’s out-of-court confession through Detective Marker’s in-court
testimony. On appeal, Powell claims the introduction of Akin’s statements,
combined with his inability to cross-examine Akin about those statements,
violated his Sixth Amendment right to confront the witnesses against him under
Bruton v. United States, 391 U.S. 123 (1968). There are two facets to the Bruton
issue in this case. Akin’s statements were initially introduced through Detective
Marker and Sergeant Fain. Later, the prosecution used these statements to
cross-examine Powell. Powell alleges a Bruton error in each instance. He claims
the language in the statement plainly violates Bruton and also asserts that the
prosecutor’s explicit use of Akin’s statements against him—repeatedly asking
whether Powell could explain those statements—violates the Confrontation
Clause.
14
See United States v. Davis, 752 F.2d 963, 968 (5th Cir. 1985) (“Because it is the sole
province of the jury to weigh the evidence and the credibility of the witnesses, an appellate
court cannot rebalance that assessment of credibility. Therefore, the appropriate question as
to sufficiency of the evidence is to ask merely whether there exists in the record substantial
evidence in support of the jury's finding.”).
18
Case: 11-51205 Document: 00512395361 Page: 19 Date Filed: 10/03/2013
No. 11-51205
The core concern of the Bruton doctrine is protection of a criminal
defendant’s Sixth Amendment Confrontation Clause rights. “While we review
constitutional challenges de novo, the trial court’s evidentiary decisions on a
Bruton issue are reviewed for abuse of discretion.” United States v. Jiminez, 509
F.3d 682, 691 (5th Cir. 2007) (internal citations omitted). Nonetheless, a Bruton
error is subject to harmless error analysis. Id. (citing United States v. Matthews,
178 F.3d 295, 300 (5th Cir. 1999).
Under the Confrontation Clause, a criminal defendant is guaranteed the
right to “be confronted with the witnesses against him.” U.S. CONST. amend. VI.
The Supreme Court held in Bruton that a defendant’s Confrontation Clause
rights were violated by the admission of a non-testifying co-defendant’s
confession that directly implicated the defendant in the criminal act, even
though the trial court issued a limiting instruction to the jury. Bruton, 391 U.S.
at 126, 137. The scope of Bruton was later clarified in Richardson v. Marsh, in
which the Court found a non-testifying co-defendant’s confession constitutionally
admissible when it was redacted to include references only to the non-testifying
co-defendant and a third person, not the defendant, and the trial court gave a
limiting instruction to the jury. 481 U.S. 200, 203 (1987). Significant in
Richardson is the fact that the confession did not implicate the defendant on its
face. Any implication of the defendant in the admitted statement required
linkage with other trial evidence. Id. Richardson’s scope was clarified in Gray
v. Maryland, 523 U.S. 185 (1998), in which the Court determined that modifying
a non-testifying co-defendant’s statement by replacing the defendant’s name
with the term “deleted” or “deletion” is insufficient to avoid implicating the
defendant.
The key analytic factor in Richardson is that the statement did not clearly
refer to the defendant and could only be linked through additional evidentiary
material. In United States v. Vejar-Urias, 165 F.3d 337 (5th Cir. 1999), we
19
Case: 11-51205 Document: 00512395361 Page: 20 Date Filed: 10/03/2013
No. 11-51205
determined that a defendant’s Confrontation Clause rights were violated when
a non-testifying co-defendant’s inculpatory statement was altered by using the
word “someone” instead of the defendant’s name. Id. at 340. Our logic tracked
the Court in Richardson: “Where. . . it is obvious from consideration of the
confession as a whole that [the statement refers] to the defendant, then
admitting it does violate Bruton . . . .” Id.A
Akin’s out-of-court statements were introduced through law enforcement
officers. On direct examination, the prosecution asked Detective Marker to
recount Akin’s statements about her activities prior to being stopped by the
Midland police. After an objection from defense counsel, the detective testified
as follows: “Ms. Akin stated that she had traveled from Odessa to Lubbock on
this date, the 13th, and had obtained a quantity of crack cocaine. . . . She stated
that she had obtained the crack cocaine from somebody named Caine.”15
Sergeant Fain testified that Akin, “said she had been to Lubbock and had met
with a guy named Caine and picked up some . . . crack cocaine . . . and drove
back to Midland.” Akin’s statements, as admitted into evidence, did not violate
Powell’s Confrontation Clause rights. As admitted, Akin’s statements focus only
on her personal actions and personal knowledge about the crack cocaine. On
their face, the statements do not even acknowledge that there was another
person present. Here, Powell could only be implicated by Akin’s statements
when they were considered alongside other evidence showing Powell was in the
car. This statement carries all the hallmarks of the one deemed permissible in
Richardson.
Powell’s attempt to distinguish Richardson is unavailing. Powell claims
that the statement in Richardson was admissible because the non-testifying co-
15
Trial testimony established that Bracy used the alias “Caine.”
20
Case: 11-51205 Document: 00512395361 Page: 21 Date Filed: 10/03/2013
No. 11-51205
defendant’s statements had to be linked to other evidence later introduced at
trial—namely the defendant’s own testimony—so the linkage between the
statement and the defendant was not immediately apparent when the statement
was introduced. By contrast, Powell claims, Akin’s statement could be
immediately linked to him because it was well established that Akin and Powell
were in the same vehicle. This is unconvincing. Richardson does not suggest
that the source of the linking factors))the defendant’s own testimony—was
significant. Rather, Richardson focuses on whether the statement facially
implicates the defendant—or at least acknowledges the existence of another
person. Here, Akin’s statements do not.
Neither is Akin’s statement like the one we held violative of Bruton in
Vejar-Urias. In that case, the defendant’s name was replaced with the term
“someone.” As in Gray, we found this form of name-replacement does not
sufficiently remove the defendant from the non-testifying co-defendant’s
inculpatory statement. The key to our analysis is that the statement, despite
removing the defendant’s actual name, could be readily said to facially identify
the defendant. This is not the case here. Detective Marker’s phrasing of Akin’s
statements directly focused the listener on what “she”—Akin—said, did, knew,
or observed. The statements, as admitted, did not indicate the existence of
anybody else. Powell’s involvement is only ascertained with reference to
independent facts presented at trial.
We hold that Akin’s statements were not in the class of statements that
violate Bruton. The composition of the statements did not directly implicate
Powell—they spoke only of Akin. Consequently, their admission into evidence
did not violate Powell’s Confrontation Clause rights.
B
While the statements admitted in evidence against Powell do not violate
the Confrontation Clause, the prosecution’s use of these statements for cross
21
Case: 11-51205 Document: 00512395361 Page: 22 Date Filed: 10/03/2013
No. 11-51205
examination purposes does.16 Powell elected to testify at his trial. On cross-
examination the prosecutor asked a series of questions about Akin’s statements,
demanding that Powell explain her meaning. The prosecutor asked, “Can you
explain how your wife, as you call her, told Detective Marker she had made three
trips to Caine to pick up crack cocaine and come back to Midland, Texas?” When
Powell dodged to avoid giving a full answer to the question, the prosecutor
pushed the point four times more: “Sir, can you explain that statement?”; “Sir,
I ask the questions. Can you explain that statement?”; “So you can’t—you can’t
explain it?”; “So your testimony is, sir—I’m asking the questions. Your
testimony is you can’t explain it?”
A key component of the Court’s analysis in Bruton is that there is a
substantial risk that juries, despite any instructions to the contrary, will
improperly use a non-testifying co-defendant’s inculpatory statements against
the defendant—so powerful is this form of evidence.17 Bruton, 391 U.S. at 126
16
We review this issue for plain error. Powell did not object to this specific line of
questions at trial. He did raise the Bruton issues via a motion in limine and he made renewed
objections during the officers’ trial testimony introducing Akin’s out-of-court statements. He
did not object during the prosecutor’s cross-examination. However, we have held that, without
a contemporaneous objection, a standing motion in limine is insufficient to preserve a point
of error. See United States v. Graves, 5 F.3d 1546, 1552 (5th Cir. 1993) (“[T]he rationale for
requiring either a renewed objection at trial, or an offer of proof, is to allow the trial judge to
reconsider his in limine ruling with the benefit of having been witness to the unfolding events
at trial.”). Here, we hold that the initial objection to the admissibility of Akin’s out-of-court
statements does not carry-over to the prosecutor’s use of those statements in cross-
examination. Although the statements were properly admitted, a separate and proper
objection to their use against Powell should have been sustained. A claim of error not
preserved at trial is reviewed for plain error only. Fed. R. Crim. P. 54(B). Powell can only
prevail on plain error review by showing: (1) error, (2) that is plain,(3) affects substantial
rights, and (4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See United States v. Garza, 429 F.3d 165, 169 (5th Cir. 2006), cert. denied, 546
U.S. 1220 (2006). Accordingly, we proceed.
17
Notwithstanding the Government’s assertion to the contrary, see Br. for the Appellee
61, the trial record does not reflect any limiting instructions concerning the proper use of
Akin’s out-of-court statements. The district court did not issue instructions to the jury orally
at the time the evidence was admitted or in its written charge before deliberations. Although
neither party raises the issue of the district court’s failure to instruct the jury, we note that
22
Case: 11-51205 Document: 00512395361 Page: 23 Date Filed: 10/03/2013
No. 11-51205
(overruling Delli Paoli v. United States, 352 U.S. 232 (1957)). Akin’s statements,
as admitted in evidence, complied with Richardson. They did not directly
implicate Powell. Consequently, the jury could be assumed not to use them
against Powell.
However, the prosecution itself upended this assumption. The
prosecution’s cross-examination of Powell clearly, directly, and repeatedly used
Akin’s statements against him. Powell was asked to explain Akin’s statements,
a task he could not perform absent the opportunity for cross-examination. Here,
the jury was not left to link the evidence on its own and attempt to “thrust out
of mind” Akin’s statements with regard to Powell. Richardson, 481 U.S. at 208.
Rather, the prosecutor, with the criminal defendant in the crucible of cross-
examination, drew the jury’s attention to Akin’s statements and used her
statements against him. Richardson assumes that there is little danger the jury
will improperly use the co-defendant’s statements when they are properly
modified to avoid implicating the other defendant. Here the prosecution’s
actions significantly increase the danger of improper use. The prosecutor’s use
of Akin’s statements against Powell is plain error, it is a clear and obvious
the obligation is on the defendant, whose failure to request an instruction in this occasion was
critical. See 21A Charles Allen Wright & Arthur Miller, Federal Practice & Procedure,
Evidence § 5066 (2d ed. 2013) (“[A] party triggers the giving of a limiting instruction by
requesting one in a timely manner. In the absence of a timely request, the court does not err
in failing to give a limiting instruction.”). Additionally, because Powell did not allege that the
district court erred in failing to give an instruction in his opening brief, this issue is waived
on appeal. See United States v. Pompa, 434, F.3d 800, 806 n.4 (5th Cir. 2005); Fed. R. App.
P. 28(a)(9)(A).
Lastly, even if an instruction had been given to the jury, the prosecutor’s actions on
cross-examination would have served “to undo the effect of the limiting instruction.”
Richardson, 481 U.S. at 212 (remanding for consideration of a prosecutor’s improper use of a
co-defendant’s otherwise admissible statement). It remains that Akin’s statements, as
admitted, did not indicate the existence of any other person, and that the prosecutor actively
used a non-testifying co-defendant’s statements against Powell. In short, the absence of
limiting instructions does not alter our analysis of this issue.
23
Case: 11-51205 Document: 00512395361 Page: 24 Date Filed: 10/03/2013
No. 11-51205
violation of a constitutional right that substantially affects the fairness of
judicial proceedings. See Garza, 429 F.3d at 169.
C
Nonetheless, a Bruton error does not necessarily mandate reversal. See
Schneble v. Florida, 405 U.S. 427, 430 (1972). “It is well established that a
Bruton error may be considered harmless when, disregarding the co-defendant’s
confession, there is otherwise ample evidence against a defendant.” Vejar-Urias,
165 F.3d at 340 (internal citations and quotations omitted). To find that this
violation of a federal constitutional right is harmless, we must be convinced
beyond a reasonable doubt that the error was harmless in light of the other
evidence presented at trial. Id. (citing Chapman v. California, 386 U.S. 18(1967)). On the other hand, we will find a Bruton error not harmless if, “absent
the [improper evidence], there was a reasonable probability that the defendants
would be acquitted. Id. (citing United States v. Hickman, 151 F.3d 446, 457 (5th
Cir. 1998)).
Powell claims that the Bruton error was not harmless beyond a reasonable
doubt because all of the other evidence was of questionable veracity. He argues
that each witness against him was biased because of cooperation with the
government for lesser punishments, that three witnesses were drug dealers and
are presumptively not credible. By contrast, he asserts that Akin’s statements,
given that she is the mother of his child and his girlfriend, would have been
given great weight by the jury. Additionally, Powell asserts the physical evidence
weighed against conviction. For example, the car did not belong to him or Akin,
and neither Powell’s nor Akin’s fingerprints were found on the individual bags
containing crack cocaine found inside the dashboard. Lastly, Powell argues that
the prosecutor’s role in this Bruton violation exacerbates the resulting harm.
This Bruton violation is particularly pointed. This is not a case where the
government improperly uses a non-testifying co-defendant’s statement in closing
24
Case: 11-51205 Document: 00512395361 Page: 25 Date Filed: 10/03/2013
No. 11-51205
argument. This violation occurred during a crucial moment in the evidentiary
proceedings, the cross-examination of a criminal defendant. Here, at the very
end of cross-examining the defendant, the prosecution repeatedly asked Powell
to explain Akin’s statements—which, obviously, he could not.
Despite this, we find that substantial independent evidence inculpating
the defendants eliminates any reasonable probability that the jury, absent the
prosecutor’s Bruton error, would have acquitted Powell. Powell was caught
driving a car loaded with crack cocaine packaged for sale. Several witnesses
testified that Powell dealt crack cocaine. Evidence showed a pattern of cooking
and selling crack cocaine with Bracy. It also showed a pattern of distributing
drugs with Akin. On the day of the arrest, officers followed Powell’s car on the
expected route between Lubbock and Midland based on Bracy’s tip, which was
specific and verifiable. During the traffic stop, Powell lied about where he was
coming from. Even absent the prosecution’s use of Akin’s statements against
him, it seems that the jury would have concluded that Powell was guilty of the
charges in the indictment.
On review of the record, we are convinced beyond a reasonable doubt that
the prosecution’s error, though legally inexcusable, was harmless in light of the
other evidence presented at trial.
V
The district court sentenced Powell to 188 months of imprisonment and 5
years of supervised release. On appeal, Powell challenges his sentence on two
grounds. First, Powell asserts the district court erred in applying a two-level
enhancement under U.S. Sentencing Guideline § 3B1.4—the “use of a minor”
provision. Second, Powell claims his sentence was unreasonable.
A
“The determination of whether [a defendant] used or attempted to use a
minor to assist in avoiding detection within the meaning of § 3B1.4 is a
25
Case: 11-51205 Document: 00512395361 Page: 26 Date Filed: 10/03/2013
No. 11-51205
conclusion of law that we review de novo, while any findings of fact made in
support of that determination we review for clear error.” United States v. Mata,
624 F.3d 170, 175 (5th Cir. 2010) (per curiam).
Section 3B1.4 allows for a two-level increase in guideline calculations, “[i]f
the defendant used or attempted to use a person less than eighteen years of age
to commit the offense or assist in avoiding detection of, or apprehension for, the
offense.” U.S.S.G. § 3B1.4. In Mata, we clarified the application of section
3B1.4, determining that it applies when a defendant “makes a decision to bring
a minor along during the commission of a previously planned crime as a
diversionary tactic or in an effort to reduce suspicion . . . .” Mata, 624 F.3d at
175. To trigger the enhancement, a defendant must take “some affirmative
action to involve the minor in the offense” because the “mere presence of a minor
at the scene of the crime is insufficient.” Id. at 176. (emphasis added) (internal
quotations and footnotes omitted). It is not the case that “every defendant who
brings a minor child along while smuggling drugs” is subject to the
enhancement. Id. Rather, district courts “should consider additional
circumstantial evidence to determine whether the defendant used the minor to
avoid detection.” Id. Mata requires a purpose driven inquiry. Mata was decided
against the background of United States v. Molina, 469 F.3d 408 (5th Cir. 2006),
in which we held the enhancement was not warranted because “there was no
evidence that the defendant in a drug-conspiracy case believed that his
seventeen year-old girlfriend’s presence in the vehicle during the drug run would
assist in avoiding detection and there was a plausible alternate explanation for
the girlfriend’s presence in the vehicle,” namely that she was riding from her
home to the defendant’s. Mata, 469 F.3d at 176 (quoting Molina, 469 F.3d at
413).
Turning to the instant case, Powell alleges the district court erroneously
applied the two-level enhancement based on its conclusion that Powell had put
26
Case: 11-51205 Document: 00512395361 Page: 27 Date Filed: 10/03/2013
No. 11-51205
his infant daughter in the backseat to help him avoid detection. He argues the
child was merely present in the vehicle. It is clear that Powell’s decision to bring
his daughter on the previously-planned drug trafficking trip was an “affirmative
action” under Mata. See Mata, 624 F.3d at 176. “[W]hen a defendant’s crime is
previously planned—when, for example, she leaves the house knowing she is on
her way to smuggle drugs . . . the act of bringing the child along instead of
leaving the child behind is an affirmative act that involves the minor in the
offense.” Id. Here, Powell placed his daughter in the car and intentionally drove
to meet with Bracy—an affirmative act. However, the facts in this case present
a closer question than those in Mata.
As in Molina, here there is a plausible alternate explanation for the
minor’s presence in the vehicle. Powell argues that his infant daughter was in
the vehicle simply because both parents were in the vehicle and very young
children tend to be with their parents. This is especially so, Powell asserts,
because Akin and Powell were young parents without means. This argument is
not without merit. Unlike Molina, however, there is evidence in this case that
Powell believed the minor child’s presence in the vehicle would assist in avoiding
detection. When Powell was questioned about his whereabouts during the traffic
stop, he told officers that he was returning from picking up his child at an
apartment in Midland. He also denied going to Lubbock—where he had in fact
purchased crack cocaine from Bracy. These statements demonstrate use of a
minor to avoid detection and provide the additional circumstantial evidence
necessary under Mata. Powell argues that his daughter was not necessary to
the untruthful story he told the officers about his whereabouts—he could have
just as easily stated he was at his mother’s house. But this is not what was said.
The minor’s presence in the car, coupled with Powell’s statements, provide
the necessary evidence for applying the section 3B1.4 sentence enchantment.
27
Case: 11-51205 Document: 00512395361 Page: 28 Date Filed: 10/03/2013
No. 11-51205
We hold that the district court did not err in applying the two-level
enhancement.
B
Powell challenges the substantive reasonableness of his sentence. While
he did ask for a sentence below guideline range at sentencing, Powell did not
raise this reasonableness objection in district court. Therefore, our review of his
sentence is for plain error. United States v. Peltier, 505 F.3d 389, 391–92 (5th
Cir. 2007). Under this standard, we will disturb the sentencing determination
only if “(1) there is error . . . , (2) it is plain; and (3) it affects substantial rights.”
Id. (citing United States v. Olano, 507 U.S. 725, 732 (1993)). Under United
States v. Booker, 543 U.S. 220, 261 (2005) finding an “unreasonable” sentence
equates to a finding of error. Peltier, 505 F.3d at 391.
Powell’s sentence of 188 months of imprisonment is on the low end of the
calculated guideline range. We apply a presumption of reasonableness to a
properly calculated within-guidelines sentence. United States v. Candia, 454
F.3d 468, 473 (5th Cir. 2006). The presumption can be rebutted by a showing
that the sentence does not account for a factor that should receive significant
weight, giving weight to an improper factor, or demonstrating a clear error in
judgment in balancing the factors. Here, Powell asserts that the presumption of
reasonableness is rebutted because the sentence is “greater than necessary” to
achieve the four purposes for criminal sentencing set forth in 18 U.S.C. §
3553(a).18 Powell claims that his youth, efforts to gain an education, and his
young child render the 188-month sentence substantively unreasonable.
However, it is clear from the record that the sentencing court took note of these
18
“(A) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and (D) to provide the defendant
with needed educational or vocational training, medical care, or other correctional treatment
in the most effective manner . . . .” 18 U.S.C. § 3553(a)(2).
28
Case: 11-51205 Document: 00512395361 Page: 29 Date Filed: 10/03/2013
No. 11-51205
factors at the sentencing hearing and considered them in issuing the low-
guidelines range sentence. Even if we assume that the sentenced imposed is
unreasonable and therefore constitutes an error, that error is not plain—it is
neither clear nor obvious. The district court explicitly stated that it considered
the section 3553(a) factors in rendering its judgment. Under the plain error
standard, we will not disturb the sentence imposed merely because an appellant
disagrees with the sentence and the balancing of factors conducted by the
district court. This within-guidelines sentence is presumptively reasonable and
Powell has not rebutted the presumption.
VI
The judgment of the district court is AFFIRMED.
29