United States v. Randy Dewitt Gadson, Jr. , 389 F. App'x 892 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15276 ELEVENTH CIRCUIT
JULY 27, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00103-CR-J-25JRK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDY DEWITT GADSON, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 27, 2010)
Before BLACK, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Randy Dewitt Gadson, Jr. appeals his convictions and sentences for
possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(e), possession with intent to distribute cocaine, in violation of 21
U.S.C § 841(a)(1), (b)(1)(C), and possession of a firearm in furtherance of a drug
trafficking offense, in violation of 18 U.S.C. § 924(c)(1). On appeal, Gadson
argues: (1) the district court erred in denying his motion to suppress because
Deputy Tolbert lacked probable cause to make an arrest, and (2) the imposition of
consecutive mandatory minimum sentences for firearms offenses that resulted from
the use of a single gun violates the except clause of 18 U.S.C. § 924(c)(1)(A).
Upon review of the record and the parties briefs, we find no error.1
I.
On appeal, Gadson argues the district court erred in crediting Tolbert’s
testimony that he was aware of Gadson’s status as a felon at the time of the arrest.
Gadson contends the district court erred in denying his motion to suppress because
Tolbert lacked probable cause to arrest him.
We accept a district court’s credibility determinations unless they are clearly
erroneous. United States v. White, 593 F.3d 1199, 1202 (11th Cir. 2010). A
1
We review a district court’s findings of fact on a motion to suppress evidence for clear
error, and the district court’s application of the law to those facts de novo. United States v.
Tokars, 95 F.3d 1520, 1531 (11th Cir. 1996). We review questions of statutory interpretation de
novo. United States v. Segarra, 582 F.3d 1269, 1271 (11th Cir. 2009).
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factfinder’s choice between two permissible views of the evidence cannot be
clearly erroneous. United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003).
Thus, a district court’s choice of whom to believe is entitled to deference unless the
court credited exceedingly improbable testimony that is either “contrary to the laws
of nature,” or so “inconsistent or improbable on its face that no reasonable
factfinder could accept it.” United States v. Ramirez-Chilel, 289 F.3d 744, 749-50
(11th Cir. 2002) (quotation omitted).
Tolbert’s testimony that he was aware Gadson was a felon and a member of
the drug game in his small community is not contrary to the laws of nature or
ordinary human experience. Ramirez-Chilel, 289 F.3d at 749-50. The district
court did not clearly err in crediting this testimony, and its findings of fact are
entitled to deference. Id. at 750. Accordingly, Gadson’s arrest was based on
probable cause under the totality of the circumstances, and the district court did not
err in denying Gadson’s motion to suppress. See United States v. Street, 472 F.3d
1298, 1305 (11th Cir. 2006) (stating probable cause exists “when the facts and
circumstances within the officer’s knowledge, of which he or she has reasonably
trustworthy information, would cause a prudent person to believe, under the
circumstances shown, that the suspect has committed . . . an offense”). Gadson’s
convictions are affirmed.
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II.
In relevant part, 18 U.S.C. § 924(c) provides:
Except to the extent that a greater minimum sentence is otherwise
provided by this subsection or by any other provision of law, any
person who, during and in relation to any crime of violence or drug
trafficking crime . . . in furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment provided for such crime
of violence or drug trafficking crime — (i) be sentenced to a term of
imprisonment of not less than 5 years.
18 U.S.C. § 924(c)(1)(A). Section 924(c) further provides that, “[n]ot
withstanding any other provision of law - no term of imprisonment imposed on a
person under this subsection shall run concurrently with any other term of
imprisonment imposed . . . .” 18 U.S.C. § 924(c)(1)(D)(ii).
At the time Gadson was sentenced, we had interpreted the except clause of
§ 924(c) only to hold that the clause requires consecutive sentences where the
mandatory minimum sentence for a defendant’s drug offense is greater than the
mandatory minimum for the firearm offense. United States v. Segarra, 582 F.3d
1269, 1272-73 (11th Cir. 2009). After Gadson was sentenced, however, the
holding in Segarra was extended to affirm a district court’s imposition of
consecutive sentences for each of a defendant’s firearms convictions under
§ 924(c)(1)(A). United States v. Tate, 586 F.3d 936, 946-47 (11th Cir. 2009).
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The district court did not err in imposing a consecutive sentence of 60
months for Gadson’s § 924(c)(1) conviction. As Gadson recognizes, this Court is
bound to apply Segarra and Tate because they have not been overruled by either
this Court sitting en banc or the U.S. Supreme Court. Cargill v. Turpin, 120 F.3d
1366, 1386 (11th Cir. 1997). Accordingly, we affirm Gadsons’s total sentence of
240 months.
AFFIRMED.
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