United States v. Festus Okey Oluigbo-Barnards , 638 F. App'x 868 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-15802
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20208-DPG-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
FESTUS OKEY OLUIGBO-BERNARDS,
Defendant–Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 14, 2016)
Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
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A jury convicted Defendant Festus Oluigbo-Bernards of possession with
intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1),
and importation of a controlled substance, in violation of 21 U.S.C. § 952(a). The
district court sentenced him to 60 months’ imprisonment. On appeal, Defendant
challenges the district court’s denial of his motion to suppress evidence found
during a border search. He also argues that his sentence was procedurally and
substantively unreasonable. After careful review, we affirm.
I. Background1
On March 18, 2014, Defendant flew from Curaçao, Netherlands Antilles, to
Miami, Florida. When the plane arrived at Miami International Airport, U.S.
Customs and Border Protection (“Customs”) agents checked the passports and
customs declaration forms of all passengers as they disembarked at the gate. The
agents checked to make sure the passengers’ documentation was in order and
asked three to five questions of each passenger, looking for any inconsistencies or
suspicious behavior.
The Customs agents were specifically interested in Defendant, as they had
received a “look-out” alert from their supervisor based on information from
German customs officials that Defendant was involved in narcotics smuggling.
1
The following facts are taken from the testimony at the suppression hearing, viewed in the
light most favorable to the Government. United States v. Mercer, 541 F.3d 1070, 1074 (11th Cir.
2008).
2
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Before Defendant’s flight landed, Customs agents researched Defendant’s travel
itineraries and discovered that he had multiple flight reservations for that same
day: one from Miami to Toronto via New York, and another from New York to
Lagos, Nigeria, via London and Amsterdam. In reviewing Defendants’ travel
history, the agents found a photo of Defendant and saw that he was a frequent
traveler.
As the passengers made their way through the three inspection lines, Agent
David Simko encountered Defendant. Agent Simko greeted Defendant, “Good
morning,” to which Defendant replied, “Business.” Defendant presented a Dutch
passport, and Agent Simko observed several signs that Defendant was nervous: he
was sweating a little, he avoided eye contact, and his carotid artery was pulsating
in the base of his neck. Agent Simko directed Defendant to passport control,
where he was diverted to the secondary inspection area. Agents searched his
carry-on luggage and conducted a pat-down search, but they found no contraband.
Agents, however, did find five cellular phones, thirteen SIM cards, and five
currencies. Throughout the inspection process, the agents observed that Defendant
had white, pasty lips, he was pacing back and forth, he avoided eye contact, and his
carotid artery continued to throb.
During Defendant’s secondary interview with Agent Christian Veloz,
Defendant said he was traveling to the United States to purchase hair-weave
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products for his business in Curaçao. When asked which cities he was traveling to,
he explained that he was going to travel to New York for four days to purchase the
merchandise, and then he was going to take a bus to Canada to visit a cousin
named Tony. This information struck Agent Veloz as inconsistent with
Defendant’s airline reservations. Defendant said he was going to stay at a hotel in
Queens, New York, but he did not have a reservation because he usually checked
into hotels without booking in advance. Agent Veloz asked if Defendant was
going to stay with his cousin Tony in Canada, but Defendant then said he was
going to Canada to visit his girlfriend. Defendant said his girlfriend knew he was
coming, but she did not know which day he would arrive. According to
Defendant, he had never been to Canada before.
When Agent Veloz asked Defendant a question, Defendant would repeat the
question back to him. For example, when asked, “What’s the purpose of your
trip,” Defendant responded, “What’s the purpose of my trip?” Agent Veloz
believed this was a stalling tactic and a sign of nervous behavior. It was also odd
because Defendant was a frequent business traveler and, based on their research,
the agents knew that Defendant had been through the inspection process many
times. Typically, frequent travelers are familiar and comfortable with the
inspection process and know what to expect.
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Based on Agent Veloz’s behavior-analysis training, the agent believed
Defendant exhibited verbal and nonverbal signs suggesting that he was a narcotics
smuggler. The agents told Defendant they suspected him of being an “internal
carrier,” meaning he was smuggling drugs inside his body. Defendant denied that
he was carrying drugs and said he did not want to speak to the agents anymore.
The agents explained to Defendant that he could be taken to the hospital to be x-
rayed, and they presented him with an x-ray consent form. They told him the x-ray
was voluntary, but if he did not consent to an x-ray, they would seek approval from
their supervisor to conduct a monitored bowel movement. Defendant read the
form, confirmed he understood it, and signed it.
The agents next read Defendant his Miranda2 rights. The agents presented
Defendant a Miranda form, and Defendant read and initialed each line as the
agents explained it to him. Defendant then invoked his Miranda rights. The
agents filled out paperwork associated with their investigation and awaited
approval to conduct the x-ray, which took about two hours. At some point,
Defendant asked for his cell phone so he could listen to music. He was told he was
not allowed to use electronic devices, but he became adamant that he was going to
use his cell phone. As his body language became more threatening, Agent Veloz
took out his baton and held it down behind his right leg. Agents warned Defendant
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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that he needed to calm down, and then he was placed in a holding cell until he
could be taken to the hospital.
Defendant was eventually transported to Jackson Memorial Hospital, where
an x-ray revealed foreign objects in his alimentary canal. He eventually passed 27
condoms filled with a total of 1.33 kilograms of cocaine. Defendant was charged
with possession with intent to distribute a controlled substance, in violation of 21
U.S.C. § 841(a)(1), and importation of a controlled substance, in violation of 21
U.S.C. § 952(a).
Before trial, Defendant moved to suppress the cocaine evidence because he
argued that his consent to be x-rayed was not voluntary. He further argued that the
Customs agents lacked reasonable suspicion of drug activity to justify taking an x-
ray absent his consent. The district court denied the motion, finding that the agents
had a reasonable articulable suspicion that Defendant was smuggling narcotics
internally and that, in any event, Defendant had voluntarily consented to the x-ray.
Defendant proceeded to trial, a jury convicted him of both counts, and the court
sentenced him to 60 months’ imprisonment, which was within the Guidelines
range of 51 to 63 months.
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II. Discussion
A. Motion to Suppress
We review the denial of a defendant’s motion to suppress under a mixed
standard of review, reviewing findings of fact under the clearly erroneous standard
and reviewing de novo the application of law to those facts. United States v. Gil,
204 F.3d 1347, 1350 (11th Cir. 2000). Because the Government prevailed below,
we construe the facts in its favor. United States v. Mercer, 541 F.3d 1070, 1074
(11th Cir. 2008). We allot substantial deference to the district court in making
credibility determinations with respect to witness testimony. United States v.
McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003).
Persons crossing the border into the United States have a greatly reduced
expectation of privacy. United States v. Montoya de Hernandez, 473 U.S. 531, 539
(1985). Routine border searches are “not subject to any requirement of reasonable
suspicion, probable cause, or warrant.” Id. at 538. Moreover, a secondary customs
search following the initial inspection is proper even absent reasonable suspicion
of criminal activity. United States v. Santiago, 837 F.2d 1545, 1548 (11th Cir.
1988).
A more intrusive, non-routine border search, however, requires that a
customs agent have reasonable suspicion. United States v. De Montoya, 729 F.2d
1369, 1371 (11th Cir. 1984); see also United States v. Pino, 729 F.2d 1357, 1359
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(11th Cir. 1984) (finding that use of an x-ray was constitutional when customs
agents had reasonable suspicion that a traveler was smuggling drugs internally).
“To determine whether reasonable suspicion exists, the court must look at the
totality of the circumstances of each case to see whether the detaining officer has a
particularized and objective basis for suspecting legal wrongdoing.” United States
v. Tinoco, 304 F.3d 1088, 1116 (11th Cir. 2002) (internal quotation marks
omitted).
Defendant argues that the district court’s fact-finding was erroneous because
Defendant’s behavior provided no cause for suspicion and the district court failed
to consider any alternative rational explanations for Defendant’s conduct and
answers. Defendant cites Brent v. Ashley, 247 F.3d 1294, 1300–01 (11th Cir.
2001), where we held that a strip search and x-ray examination by customs
officials were unconstitutional when the searches were based on nothing more than
the traveler’s nervousness and her arrival from a drug source country. But here we
have much more. In addition to receiving a look-out alert that Defendant was
suspected of being involved in narcotics smuggling, Customs agents observed
signs of nervousness, including sweating, pacing back and forth, and a throbbing
carotid artery. Before the Customs agents diverted Defendant to secondary
inspection, he responded, “Business,” when an agent said, “Good morning.” All of
this behavior was suspicious considering Defendant was a frequent business
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traveler and had been through the inspection process several times. Defendant also
provided inconsistent stories about his trip to Canada and had two flight
reservations for that same day to Toronto and Lagos, neither of which matched
Defendant’s stated plans to go to New York for several days before taking a bus to
Canada. While there were no drugs in Defendant’s luggage or on his person, he
had five cell phones, thirteen SIM cards, and five currencies, which struck the
customs agents as unusual even for a business traveler. And after being told he
was suspected of smuggling drugs, Defendant was so insistent that he wanted to
use his cell phone that the agents warned him to calm down and placed him in a
holding cell.
These facts, coupled with an absence of contraband in Defendant’s luggage,
created a reasonable suspicion that Defendant was an internal carrier. See Denson
v. United States, 574 F.3d 1318, 1343 (11th Cir. 2009) (explaining that a failure to
find drugs externally could raise a reasonable suspicion that a traveler is carrying
drugs internally if other facts and circumstances would lead a customs agent to
reasonably suspect a traveler is carrying drugs); United States v. Vega-Barvo, 729
F.2d 1341, 1350 (11th Cir. 1984) (finding reasonable suspicion to conduct an x-ray
after a strip search revealed no drugs when passenger was traveling alone from a
source country, carried only one piece of poor-quality luggage, and told an
implausible story about her business trip to the United States). Moreover, we
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disagree that the existence of possible innocent explanations for Defendant’s
conduct thereby neutralized the agents’ rational concerns. Based on the totality of
the circumstances here, the Customs agents had reasonable suspicion “even if each
fact, viewed in isolation, [could have been] given an innocent explanation.”
Tinoco, 304 F.3d at 1116.3
Defendant next contends that his consent to the x-ray was not voluntary
because at that point he had already stated that he wanted to stop speaking to the
agents. Once the Customs agents had reasonable suspicion that Defendant was
smuggling drugs internally, however, Defendant’s consent to the x-ray was
unnecessary. United States v. Saldarriaga-Marin, 734 F.2d 1425, 1427–28 (11th
Cir. 1984) (holding that “once reasonable suspicion has been established, Customs
agents can transport the suspected carrier to a hospital for an x-ray exam that is not
physically forced, regardless of whether the carrier has ‘freely and voluntarily’
consented to the exam”); Vega-Barvo, 729 F.2d at 1350 (same). What is more, the
agents’ reasonable suspicion permitted them to detain Defendant for the time
3
Defendant faults the district court for crediting Agent Veloz’s testimony at the suppression
hearing. In particular, Defendant points to Agent Veloz’s statement in his written report that
Defendant was randomly searched, even though the agents had received the look-out alert and
planned to question him all along. The agent testified that he was trained to call such searches
“random” in written reports to safeguard confidential law enforcement information. Defendant
thus argues that the district court should not have accepted the agent’s testimony and should have
provided a reason for why it found him credible despite the misrepresentation in the report.
After reviewing Agent Veloz’s testimony, and keeping in mind the substantial deference we give
to factfinders in making credibility determinations, McPhee, 336 F.3d at 1275, we do not find the
testimony to be so inconsistent as to be totally unbelievable. Consequently, the district court did
not clearly err in crediting Agent Veloz.
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necessary to conduct an x-ray examination. United States v. Mosquera-Ramirez,
729 F.2d 1352, 1356 (11th Cir. 1984). Accordingly, the district court properly
denied the motion to suppress.
B. Sentence
The district court must impose a sentence that is procedurally and
substantively reasonable. Gall v. United States, 552 U.S. 38, 51 (2007). This
Court first ensures that the district court did not commit a significant procedural
error, such as improperly calculating the Sentencing Guidelines range or failing to
consider the factors under 18 U.S.C. § 3553(a).4 Id. If we find no procedural
error, we proceed to review the substantive reasonableness of the sentence for
abuse of discretion. Id. Under that standard, “[w]e may set aside a sentence only
if we determine, after giving a full measure of deference to the sentencing judge,
that the sentence imposed truly is unreasonable.” United States v. Irey, 612 F.3d
1160, 1191 (11th Cir. 2010) (en banc). But here, Defendant failed to object to the
sentence after it was imposed. Therefore, we review only for plain error. United
States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998).
First, Defendant argues that his sentence is procedurally unreasonable
because the district court failed to consider all the § 3553(a) factors. The court
4
These factors include, among others, the nature and circumstances of the offense, the history
and characteristics of the defendant, the need for the sentence to reflect the seriousness of the
offense, and the need to deter criminal conduct. 18 U.S.C. § 3553(a).
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need not discuss each factor explicitly, and “[a]n acknowledgement the district
court has considered the defendant’s arguments and the § 3553(a) factors will
suffice.” United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
Furthermore, “when sentencing within the advisory Guidelines range, the district
court is not required to give a lengthy explanation for its sentence” in the typical
case. United States v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008). Here, the
court properly acknowledged that it had considered the parties’ arguments, along
with the § 3553(a) factors, before imposing the sentence. We find no procedural
error.
As for the substantive reasonableness of the sentence, Defendant argues that
many of the § 3553(a) factors weighed in favor of a sentence at the low end of the
Guidelines range of 51 to 63 months. Defendant emphasizes that he had no
criminal history, never spent time in prison before his arrest, and was a
businessman who supported his family. The weight given to any particular factor
is left to the district court’s sound discretion. United States v. Amedeo, 487 F.3d
823, 832 (11th Cir. 2007). We reverse only “if we are left with the definite and
firm conviction that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.” United States v. Pugh,
515 F.3d 1179, 1191 (11th Cir. 2008) (quotation marks omitted). And while we do
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not presume that a within-Guidelines sentence is reasonable, we typically expect
such a sentence to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th
Cir. 2008). As the Government argues, the factors do not weigh clearly in favor of
Defendant. Defendant committed a serious offense and he refused to accept
responsibility for his conduct. And unlike some cases where defendants may have
smuggled drugs because of coercion or poverty, by all accounts Defendant was a
reasonably successful businessman and frequent traveler. Therefore, we identify
no plain error and further find that Defendant’s 60-month sentence was
substantively reasonable.
III. Conclusion
For the foregoing reasons, we affirm Defendant’s conviction and sentence.
AFFIRMED.
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