United States v. John W. Bembry , 321 F. App'x 892 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13032 MARCH 24, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 07-00154-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN W. BEMBRY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(March 24, 2009)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
John W. Bembry appeals his convictions and 89-month sentences for:
(1) social security fraud, in violation of 42 U.S.C. § 408(a)(7)(B) (Counts 1 and 3);
(2) aggravated identity theft, in violation of 18 U.S.C. § 1028A (Counts 2 and 4);
and (3) counterfeit securities of private entities, in violation of 18 U.S.C. § 513(a)
(Count 5). Bembry raises five issues on appeal: (1) that the district court erred in
denying his motion to suppress evidence found in his hotel room; (2) that the
district court erred in finding that a search warrant was secured prior to the search
of his hotel room; (3) that the district court erred in upholding Bembry’s arrest
because the arrest warrant, which was based on an unrelated outstanding arrest
warrant for Bembry’s failure to appear, was a “pretext” that the police used in
order to perform an unconstitutional search of his hotel room; (4) that the district
court erred in finding that there was sufficient probable cause to issue a search
warrant for his hotel room; and (5) that the district court erred by giving Bembry
eight criminal history points for three prior convictions at his sentencing.
I.
Bembry first argues that the district court erred in denying his motion to
suppress evidence found in his hotel room because, under Georgia law, an arrest
warrant must be physically nearby when an officer arrests the subject of the
warrant. He contends that the validity of an arrest is controlled by state law and
the arresting officer violated Georgia law by not having a copy of his outstanding
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arrest warrant when he arrested him.
At a suppression hearing, Detective Ray Woodberry testified that, after he
arrested a woman for using a counterfeit check, she told him that Bembry recruited
her to purchase gift cards with his counterfeit checks. She also told him Bembry’s
location and that his girlfriend had been arrested for using counterfeit checks. As a
result, Detective Woodberry looked up Bembry in the computer system, learned
that he had an active outstanding arrest warrant for failure to appear, and later went
to arrest him, pursuant to his arrest warrant. At the arrest of Bembry in his hotel
room, officers searched the room and found blank social security cards, blank birth
certificates, numerous checks in various names, computers, check stock,
laminating sheets, a laminator, and the results of a computer background search on
a man whose identity Bembry had appropriated. Detective Woodberry did not
have the arrest warrant in his physical possession at the time he arrested Bembry.
After the arrest, Detective Woodberry submitted a warrant affidavit, and the
magistrate issued a search warrant at 12:10 p.m. After Detective Woodberry
served the search warrant, he signed the warrant’s Return of Service, indicating
that the search was performed at 12:00 p.m. He testified that the search warrant
actually was served at 12:30 p.m. and the time on the Return of Service was a
clerical error.
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We review a district court's denial of a defendant's motion to suppress under
a mixed standard of review, reviewing the district court's findings of fact for clear
error and the district court's application of law to those facts de novo. United
States v. Ramirez, 476 F.3d 1231, 1235 (11th Cir. 2007). The district court's
factual findings are construed in the light most favorable to the prevailing party.
United States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2006). Here, the prevailing
party was the government.
The Fourth Amendment provides “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const. amend. IV. “An arrest is
quintessentially a seizure of the person.” McClish v. Nugent, 483 F.3d 1231, 1238
(11th Cir. 2007). “[T]he admissibility in federal court of the products of state
searches and seizures is controlled by federal law.” United States v. Clay, 355 F.3d
1281, 1283 (11th Cir. 2004) (per curiam). See also California v. Greenwood, 486
U.S. 35, 43, 108 S. Ct. 1625, 1630 (1988) (“We have never intimated . . . that
whether or not a search is reasonable within the meaning of the Fourth Amendment
depends on the law of the particular State in which the search occurs.”). There is
no federal requirement that an officer have a warrant in hand or nearby when he is
arresting a suspect. Instead, when an officer is arresting a suspect, pursuant to a
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warrant, and “the officer does not possess the warrant, the officer must inform the
defendant of the warrant's existence and of the offense charged and, at the
defendant's request, must show the warrant to the defendant as soon as possible.”
F ED. R. C RIM. P. 4(c)(3)(A).
Here, federal law controls. See Clay, 355 F. 3d at 1283. Because the
arresting officer arrested Bembry pursuant to a valid arrest warrant, he did not
violate federal law when he did not have the warrant in hand or nearby. Thus, the
district court properly denied Bembry’s motion to suppress on this issue.
II.
Bembry next argues that a search warrant was not secured prior to the search
of his hotel room because the Return of Service said that the warrant was served at
12:00 p.m., but the warrant was executed and signed at 12:10 p.m. He contends
that, as a result, the detective performed the search and then subsequently secured a
search warrant.
A district court's credibility determinations are given great deference by this
Court. Clay, 376 F.3d at 1302. Moreover, “defects in the return of a warrant are
ministerial in nature and do not invalidate a search.” United States v. Diecidue,
603 F.2d 553, 562 (5th Cir. 1979)1.
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October
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Because we give deference to the district court’s determination that the
officer’s testimony that he made a clerical error was credible, and a clerical error
on the Return of Service does not invalidate a search, the district court properly
found that the search warrant was obtained prior to the search of Bembry’s hotel
room.
III.
Bembry next argues that the arrest warrant for his failure to appear was a
“pretext” that the police used in order to perform an unconstitutional search of his
hotel room, as they had been investigating him since 2005. Specifically, he
contends that the detective knew that probable cause did not exist for searching his
hotel room, so he used Bembry’s outstanding arrest warrant for failure to appear as
a pretext for gaining entry to, and then searching, his hotel room.
“Subjective intentions play no role in ordinary, probable-cause Fourth
Amendment analysis.” United States v. Jones, 377 F.3d 1313, 1314 (11th Cir.
2004) (per curiam) (quoting Whren v. United States, 517 U.S. 806, 813, 116 S. Ct.
1769, 1774 (1996)). “Instead, an arrest will be upheld if the objective
circumstances justify the arrest.” Id.Because the objective circumstances showed that the arresting officer
1, 1981.
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discovered an active outstanding arrest warrant for Bembry and executed the
warrant, while it was still valid, the district court properly found that the arresting
officer’s subjective intent was irrelevant. Thus, the district court did not commit
error in upholding Bembry’s arrest based on the objective circumstances.
IV.
Bembry argues that there was not probable cause to issue a search warrant
for his hotel room because the items that the detective listed in his affidavit,
including a computer, laser printer, and “other items that may be linked to Identity
Fraud,” did not create probable cause that Bembry was committing a crime.
Specifically, he contends that the reference to “other items” was vague and did not
raise a suspicion of illegal activity, as required to establish probable cause.
We review the district court’s determination that an affidavit establishes
probable cause de novo and its findings of fact for clear error. United States v.
Jiminez, 224 F.3d 1243, 1248 (11th Cir. 2000). We give due weight to the
inferences that the district court and law enforcement officers drew from the facts.
Id.The Fourth Amendment provides that “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation. . . .” U.S. Const. amend. IV. In
Illinois v. Gates, the Supreme Court held that whether an affidavit is sufficient to
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establish probable cause is subject to a “totality-of-the-circumstances analysis”
where the issuing magistrate is to “make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him, including
the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information,
there is a fair probability that contraband or evidence of a crime will be found in a
particular place.” 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983). “An affidavit
must provide the magistrate with a substantial basis for determining the existence
of probable cause.” Id. at 239, 103 S. Ct. at 2332. “A magistrate’s determination
of probable cause should be paid great deference by reviewing courts.” Id. at 236,
103 S. Ct. at 2331 (quotation and citation omitted). The supporting affidavit
“should establish a connection between the defendant and the residence to be
searched and a link between the residence and any criminal activity.” United
States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002).
Here, because a magistrate could reasonably have found probable cause
based on the warrant affidavit, which included Bembry’s location, his manufacture
of counterfeit checks, and the officer’s description of his hotel room, which
contained a computer, laser printer, and “other items that may be linked to Identity
Fraud and the manufacture of counterfeit checks,” as well as the recounting of the
interview with a woman who stated that she participated in the Identity Fraud
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scheme with Bembry, the district court did not err in finding that the warrant
affidavit contained sufficient probable cause for the issuance of a search warrant.
Accordingly, we affirm the district court’s denial of Bembry’s motion to suppress.
V.
Lastly, Bembry argues that the district court erred by giving him eight
criminal history points because it attributed more than one criminal history point
for each of his three prior convictions. Specifically, he contends that “the
additional five points were based on facts other than the fact of a ‘prior
conviction.’” He asserts that, under United States v. Booker, 543 U.S. 220, 125 S.
Ct. 738 (2005), only a total of three criminal history points could be given for his
three prior convictions. He argues that he had already completed the sentences for
his prior convictions, and thus, they could not be used to enhance his sentence in
the instant case.
We review a district court’s factual findings for clear error and its
application of the sentencing guidelines to those facts de novo. United States v.
Kinard, 472 F.3d 1294, 1297 n.3 (11th Cir. 2006) (per curiam). We review de
novo preserved questions concerning the constitutionality of an enhanced sentence.
United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (per curiam).
Under U.S.S.G. § 4A1.1(a), three points are to be added for each prior
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sentence of imprisonment exceeding one year and one month. Under U.S.S.G.
§ 4A1.1(b), two points are to be added for each prior sentence of imprisonment of
at least 60 days not counted in § 4A1.1(a). The guidelines define a “prior
sentence” as “any sentence previously imposed upon adjudication of guilt, whether
by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant
offense.” U.S. S ENTENCING G UIDELINES M ANUAL § 4A1.2(a)(1). The background
commentary to § 4A1.1 states:
Prior convictions may represent convictions in the federal system,
fifty state systems, the District of Columbia, territories, and foreign,
tribal, and military courts. There are jurisdictional variations in
offense definitions, sentencing structures, and manner of sentence
pronouncement. To minimize problems with imperfect measures of
past crime seriousness, criminal history categories are based on the
maximum term imposed in previous sentences rather than on other
measures, such as whether the conviction was designated a felony or
misdemeanor.
§ 4A1.1 cmt. background (emphasis added).
In Almendarez-Torres v. United States, the Supreme Court held that the
government need not allege in its indictment nor prove beyond a reasonable doubt
that a defendant had prior convictions for a district court to use those convictions
to enhance a sentence. 523 U.S. 224, 226-27, 118 S. Ct. 1219, 1222 (1998).
Further, in United States v. Shelton, we held that the decision in Almendarez-
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Torres was “left undisturbed by Apprendi,2 Blakely,3 and Booker,” and that “a
district court does not err by relying on prior convictions to enhance a defendant’s
sentence.” 400 F.3d 1325, 1329 (11th Cir. 2005).
Because the guidelines authorize a district court to give more than one
criminal history point for certain prior convictions, the district court did not err by
giving Bembry eight criminal history points for three prior convictions. Bembry’s
assertion that only a total of three criminal history points could be given for his
three prior convictions under Booker is thus without merit.
CONCLUSION
We find no error by the district court as to any of the issues raised by
Bembry on this appeal. Accordingly, we affirm Bembry’s convictions and 89-
month sentences.
AFFIRMED.
2
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2346 (2000).
3
Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004).
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