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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13174
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRACY LAMONT MILES,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cr-20687-JEM-1
____________________
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2 Opinion of the Court 20-13174
Before WILSON, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Tracy Miles appeals his conviction for being a felon in pos-
session of a firearm, in violation of
28 U.S.C. § 922(g)(1). There are
three issues on appeal. First, Miles argues that the district court
erred in finding a government witness credible at a hearing and
denying his motion to suppress based on the witness’s testimony.
Second, he contends that the cumulative effect of multiple errors
at trial, including prosecutorial misconduct and evidentiary errors,
deprived him of his right to a fair trial under the Sixth Amendment.
Third, he asserts that his 108-month sentence must be vacated be-
cause his prior conviction1 under
Fla. Stat. § 893.13(1)(a)(2) did not
involve a “controlled substance offense” for purposes of the career
offender sentencing enhancement under § 4B1.2(b) of the Sentenc-
ing Guidelines. After thorough review, we find no reversible error
and therefore affirm.
I. BACKGROUND
Because Miles raises challenges to three parts of his criminal
proceedings, we discuss the relevant facts of each part in turn.
1 Miles’s motion to supplement the record with a certified judgment of his
prior Florida conviction is GRANTED.
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20-13174 Opinion of the Court 3
A. Suppression Hearing
A grand jury indicted Miles on one count of possession of a
firearm by a convicted felon. Before trial, he moved to suppress the
firearm, arguing that his arrest and subsequent search were unlaw-
ful under the Fourth and Fourteenth Amendments. A magistrate
judge conducted an evidentiary hearing at which Miami Dade Po-
lice Department (“MDPD”) Detectives Jonathan Ortiz and Yuneski
Arriola testified about the events leading to Miles’s arrest and the
search that produced the firearm.
Ortiz was in an unmarked vehicle on an undercover proac-
tive detail near Broadway Park, an area officers knew to be high in
crime, particularly violent crimes and drug offenses. Ortiz testified
that, as he pulled up to the park, he saw an unknown individual
approach Miles. Ortiz was around 150 feet away, but his view was
unobstructed, and it was light outside. Ortiz observed the pair en-
gage in a conversation. Then, the individual extended his hand to
Miles while holding something. Miles took the item, put it in his
front right pants pocket, and extended his hand—which was also
holding an object—back toward the individual. The individual
took the object and then walked away, and detectives never appre-
hended the individual.
Based on his training and experience, Ortiz concluded that
he had witnessed a hand-to-hand drug transaction. Ortiz began to
move closer to Miles, but Miles, with his eyes on Ortiz, stepped
back and reached in a grabbing motion toward the right rear side
of the waistband of his pants. Given Miles’s movements and Ortiz’s
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4 Opinion of the Court 20-13174
experience that people conducting drug transactions often carry
firearms, Ortiz believed that Miles had a firearm in his waistband.
After Miles removed his hand from his waistband, Ortiz called for
backup and gave a description of Miles, adding that Miles was
armed.
Arriola, also in an unmarked vehicle, arrived quickly. He tes-
tified that, as he approached the scene, Miles was holding the right
rear side of his waistband as if he had a firearm. Arriola then turned
on his vehicle’s lights to show that he was law enforcement, and
Miles stopped clutching at his side. Arriola drew his firearm as he
exited his vehicle and ordered Miles to put his hands up. Miles
stepped back, looking behind himself. When he saw other officers
arriving behind him, Miles stopped and put his hands up. Arriola
then took Miles to the ground.
Arriola conducted a pat-down and recovered a firearm from
the right rear side of Miles’s waistband, the same area where Ortiz
and Arriola had observed Miles reaching. After finding the firearm,
the detectives also conducted a full search of Miles’s person, recov-
ering currency from his front right pants pocket that was separated
into “quick-count bundles,” consistent in the officers’ experience
with hand-to-hand drug transactions. Doc. 46 at 27. 2 The detectives
also recovered a wallet with cash in it from Miles’s left rear pocket.
2 “Doc.” numbers refer to the district court’s docket entries.
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20-13174 Opinion of the Court 5
During the suppression hearing, defense counsel introduced
photographs of the park. Ortiz testified that the photographs failed
to depict the exact vantage point where he was positioned. He re-
asserted that he had observed the hand-to-hand drug transaction
clearly.
Following the evidentiary hearing, the magistrate judge en-
tered a report and recommendation (“R&R”), recommending that
the district court deny the motion to suppress. The magistrate
judge found Ortiz’s and Arriola’s testimony credible and, based on
that testimony, found that the detectives had reasonable suspicion
to detain Miles and pat him down.3 The magistrate judge also
found that Ortiz could see clearly because he was 150 feet away
from Miles with an unobstructed view and it was light outside. The
magistrate judge noted the photographic evidence but rejected
Miles’s argument—that Ortiz was not credible because it was im-
possible for him to have seen a hand-to-hand transaction from his
location—because Miles offered only speculation, with no support-
ing evidence to counter Ortiz’s credible testimony. Over Miles’s
objections, the district court adopted the R&R and denied the mo-
tion to suppress.
3 The magistrate judge did not address Miles’s argument about the legality of
the subsequent search of his person. Miles did not pursue the argument fur-
ther, however, in his objections to the R&R or by otherwise raising it to the
district court.
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6 Opinion of the Court 20-13174
B. Trial
Miles proceeded to trial. During opening statements, the
government explained that the detectives who arrested Miles were
patrolling Broadway Park to prevent crime. Ortiz and Arriola tes-
tified, reiterating their testimony from the suppression hearing.4
During Ortiz’s direct examination, the prosecutor asked
questions about the detectives’ actions and observations during
their search of Miles’s person following his arrest. While examining
Ortiz, the prosecutor several times used the pronoun “we” to refer
to law enforcement.5 Ortiz responded to the questions on direct
examination in a manner consistent with his testimony at the sup-
pression hearing. Ortiz also testified that, after Miles was arrested
and transported to the police station, Miles asked what he was be-
ing charged with. After Ortiz advised him of the charge—being a
felon in possession of a firearm—Miles responded that he “knew it
was hot and he wasn’t looking for [serial] numbers.” Doc. 85 at 59.
Ortiz testified that he believed the term “hot” to mean something
that was contraband or illegal and understood Miles to be referring
to the firearm recovered during the arrest.
4 Two additional responding MDPD officers testified about Miles’s arrest.
Both MDPD officers testified that they observed the firearm in Miles’s waist-
band once he was arrested.
5 For example, the prosecutor asked, “did we find any drugs on [Miles]?”
Doc. 85 at 53-54.
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20-13174 Opinion of the Court 7
Next, Arriola testified that he had conducted over 100 inves-
tigations involving narcotics and had received training relating to
narcotics. He testified that when he arrived at the park, he observed
Miles holding the right rear side of his waistband. The prosecutor
asked, “based on your training and experience, how common is it
for firearms to be . . . concealed in this area of the body?” Id. at 126.
Miles objected on the ground that the answer would call for expert
opinion. The district court overruled the objection, stating, “[h]e’s
an expert based on his experience and training. I’ll permit it.” Id.
Arriola responded that, in his experience, it was very common for
people to carry firearms in their waistbands. In testifying that he
recognized a photograph of the firearm, he stated that he remem-
bered that the serial number on the firearm found in Miles’s waist-
band was scratched off.
The prosecutor asked Arriola why people who sell drugs
separate money into different pockets. Miles objected based on a
lack of foundation and because the answer would call for specula-
tion. The district court overruled the objection. Arriola answered
that, based on his experience, individuals will split the money into
multiple pockets “because either they’re separating the money for
the different type of drugs that they have, or also if they’re working
for somebody, the money that belongs to the owner of the drugs
and the money that belongs to the individual selling the drugs.” Id.
at 138. Arriola also testified that he understood the term “hot,” as
used by Miles, to mean that the firearm was probably stolen or used
in another crime.
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8 Opinion of the Court 20-13174
After the government rested, Miles did not offer any evi-
dence. In closing argument, the prosecutor stated that the only is-
sue in the case was whether Miles possessed a firearm and that ev-
idence of the alleged drug transaction was only offered for context
as to why the officers investigated Miles. In Miles’s closing argu-
ment, he asserted that the officers who testified at the trial were
lying about his possessing the firearm, implying that the officers
planted the weapon on him. The prosecutor’s rebuttal refuted that
assertion, and Miles objected several times throughout. The jury
ultimately returned a guilty verdict.
C. Sentencing
The U.S. Probation Office prepared a presentence investiga-
tion report (“PSR”) to assist the district court in determining Miles’s
sentence. The PSR calculated a base offense level of 24, under
§ 2K1.2(a)(2) of the Sentencing Guidelines, because Miles commit-
ted the instant offense after sustaining two felony convictions for a
crime of violence or a controlled substance offense. One of the two
felony convictions was for a controlled substance offense: a prior
conviction in Florida for “Possession with Intent to Sell, Manufac-
ture, or Deliver a Controlled Substance (Cocaine).” But the certi-
fied judgment for that offense, with which Miles supplements the
record on appeal, shows that Miles was convicted under
Fla. Stat.
§ 893.13(1)(a)(2), which does not include cocaine. Miles now argues
that his prior conviction is not a “controlled substance offense” un-
der the Sentencing Guidelines. But Miles failed to object to his base
offense level calculation at sentencing. With a criminal history
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20-13174 Opinion of the Court 9
category of III, Miles’s guideline range was 97 to 120 months’ im-
prisonment. The district court sentenced Miles to 108 months’ im-
prisonment. Miles now appeals.
II. LEGAL STANDARD
We apply a mixed standard of review to a district court’s de-
nial of a motion to suppress, reviewing the district court’s factual
findings for clear error and its legal determinations de novo. United
States v. McCullough,
851 F.3d 1194, 1199 (11th Cir. 2017). The ev-
idence is viewed in the light most favorable to the party that pre-
vailed on the motion.
Id.
We ordinarily review claims of prosecutorial misconduct de
novo. United States v. Merrill,
513 F.3d 1293, 1306 (11th Cir. 2008).
But when a defendant does not object at trial to the prosecutor’s
conduct, we review only for plain error. See
id. at 1306–07.
To show plain error, the defendant must show that: (1) an
error occurred; (2) the error was plain; and (3) the error affected his
substantial rights. United States v. Smith,
459 F.3d 1276, 1283 (11th
Cir. 2006). Further, if the first three conditions are met, we may
correct a forfeited error only if the error seriously affected the fair-
ness or integrity of judicial proceedings.
Id. “An error is not plain
unless it is contrary to explicit statutory provisions or” controlling
precedent from either the Supreme Court or this Court. United
States v. Schultz,
565 F.3d 1353, 1357 (11th Cir. 2009).
We ordinarily review evidentiary rulings for an abuse of dis-
cretion. United States v. U.S. Infrastructure, Inc.,
576 F.3d 1195,
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10 Opinion of the Court 20-13174
1208 (11th Cir. 2009). “An abuse of discretion occurs where the dis-
trict court’s decision rests upon a clearly erroneous finding of fact,
an errant conclusion of law, or an improper application of law to
fact.” Adams v. Austal, U.S.A., L.L.C.,
754 F.3d 1240, 1248 (11th
Cir. 2014) (internal quotation marks omitted). We will “overturn
evidentiary rulings only when the moving party has proved a sub-
stantial prejudicial effect.”
Id. (internal quotation marks omitted).
But when a party raises a claim of evidentiary error for the first
time on appeal, it is reviewed only for plain error. United States v.
Jernigan,
341 F.3d 1273, 1280 (11th Cir. 2003).
We typically review de novo whether a prior conviction is a
controlled substance offense under § 4B1.2(b) of the Sentencing
Guidelines. United States v. Lange,
862 F.3d 1290, 1293 (11th Cir.
2017). But such arguments raised for the first time on appeal are
reviewed for plain error. See
id.
III. ANALYSIS
We first discuss the district court’s finding that Ortiz was
credible, which led to the court’s denial of Miles’s motion to sup-
press. Second, we examine Miles’s arguments about prosecutorial
misconduct and evidentiary errors and whether the cumulative ef-
fects of such errors rendered Miles’s trial unfair. Third, we take up
Miles’s challenge to the base offense level that the court used to
sentence him.
A. Suppression Motion
Miles challenges the district court’s finding that Ortiz was
credible, arguing that the photographs of the park the defense
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20-13174 Opinion of the Court 11
introduced show that Ortiz could not have seen a drug transaction
from where he was positioned. See Docs. 31-2; 61-1 at 3. He con-
tends that, because any reasonable suspicion for stopping and
searching him was predicated on Ortiz’s incredible testimony, the
court erred in denying his suppression motion.
We accept a factfinder’s credibility determination “unless it
is contrary to the laws of nature, or is so inconsistent or improbable
on its face that no reasonable factfinder could accept it.” United
States v. Holt,
777 F.3d 1234, 1255–56 (11th Cir. 2015) (internal
quotation marks omitted). “Thus, we defer to the district court’s
factual determinations unless the district court’s understanding of
the facts is ‘unbelievable.’”
Id. at 1256.
Here, viewing the evidence in the light most favorable to the
government, the prevailing party, the district court did not clearly
err in finding Ortiz’s testimony credible. See McCullough, 851 F.3d
at 1199. Ortiz testified that he viewed, unobstructed and in daylight
from 150 feet away, what he believed to be a hand-to-hand drug
transaction. The court rejected Miles’s argument that Ortiz was
not credible based on the photographic evidence because, accord-
ing to Ortiz, the photographs depicted a different location or angle
from where Ortiz stood, and Miles presented no evidence to the
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12 Opinion of the Court 20-13174
contrary. Thus, we cannot say that the district court’s determina-
tion was “unbelievable.” See Holt, 777 F.3d at 1256. 6
B. Cumulative Error
Miles argues that cumulative trial errors deprived him of his
right to a fair trial. He points to a host of trial errors, which broadly
fall into two broad groups: (1) challenges to the government’s con-
duct and (2) evidentiary errors. We discuss the two groups of errors
in turn, and then consider (3) whether the cumulative effect of such
errors violated Miles’s right to a fair trial.
1. Prosecutorial Misconduct
We have adopted a two-part test for determining whether a
prosecutor’s remarks during trial constitute misconduct, focusing
on “whether the remarks were improper and whether they preju-
dicially affected the defendant’s substantial rights.” United States v.
Lacayo,
758 F.2d 1559, 1565 (11th Cir. 1985). To show that his sub-
stantial rights have been affected, the defendant must show that
“there is a reasonable probability that, but for the remarks, the out-
come would [have been] different.” United States v. Adams,
74 F.3d 1093, 1097 (11th Cir. 1996).
6 Because Miles failed to argue on appeal that Ortiz’s testimony, if credible,
did not establish reasonable suspicion to stop him, we deem this argument
abandoned. See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680 (11th
Cir. 2014). Even if we were to reach its merits, however, we would affirm the
district court because, based on Ortiz’s observations, the officers had reasona-
ble suspicion to stop Miles and pat him down.
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20-13174 Opinion of the Court 13
Miles asserts that the government weaved an inflammatory
narrative about community safety into its prosecution by implying
that Miles’s arrest prevented a shooting or other serious crime. He
also contends that the government bolstered its witnesses by using
the term “we” when discussing their actions at Miles’s arrest. Be-
cause Miles did not raise these issues before the district court, we
review them for plain error. See Merrill,
513 F.3d at 1306–07. But
no plain error occurred: neither asserted error is contrary to prece-
dent from either the Supreme Court or this Court. See Schultz,
565 F.3d at 1357.
Miles also argues, as he did before the district court, that the
government committed misconduct during its closing argument
by making statements that improperly bolstered its witnesses, den-
igrated the defense, inserted facts not in evidence, and placed itself
in the jury box. Assuming for the sake of argument that such re-
marks were improper, the government’s statements did not
amount to prosecutorial misconduct because Miles failed to show
that, but for the remarks during closing arguments, he would not
have been convicted. See Adams,
74 F.3d at 1097. The government
offered substantial evidence of Miles’s guilt through multiple
MDPD officers’ testimony.
2. Evidentiary Errors
Miles asserts that the government elicited improper lay
opinions from Ortiz and Arriola. Specifically, Miles challenges
Ortiz’s and Arriola’s testimony about what they understood “hot”
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14 Opinion of the Court 20-13174
to mean. Miles failed to object to this testimony before the district
court.
He also challenges Arriola’s testimony that it was common
for people conducting drug transactions to separate money into dif-
ferent pockets. Miles objected to this testimony, but on a different
basis. See United States v. Gallo-Chamorro,
48 F.3d 502, 507 (11th
Cir. 1995) (“To preserve an issue for appeal . . . an objection on
other grounds will not suffice.”).
Thus, we review both these challenges for plain error. See
Jernigan,
341 F.3d at 1280.
Miles cannot show error, let alone plain error, because the
testimony in question was based on their professional experience
as police officers. See United States v. Novaton,
271 F.3d 968,
1008–09 (11th Cir. 2001) (affirming, based on law enforcement
agents’ experience as police officers, the admission of their testi-
mony about the meaning of code words used by the defendants).
For the same reason, Miles’s preserved challenge to Arriola’s
testimony—that it was common for individuals to carry their guns
in the area that he observed Miles holding—fails. See
id. Miles fur-
ther contends that the district court compounded its error by call-
ing Arriola an expert. Even if the district court abused its discretion
by calling Arriola an expert, Miles failed to show that the comment
had a substantial prejudicial effect, as Arriola’s testimony was cor-
roborated by other witnesses’ testimony. See Austal, U.S.A.,
L.L.C., 754 F.3d at 1248.
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20-13174 Opinion of the Court 15
In addition, Miles challenges the district court’s admission of
parts of Arriola’s testimony that he contends implicated him in
other crimes and thus was improper evidence of prior bad acts in
violation of Federal Rule of Evidence 404(b). Specifically, he chal-
lenges Arriola’s testimony (1) about the meaning of “hot,” (2) that
the serial number on the firearm was altered, and (3) about why
someone might separate money in pockets. Because Miles did not
raise these challenges before the district court, we review them for
plain error. See Jernigan,
341 F.3d at 1280.
No plain error occurred because the challenged testimony
was relevant and “necessary to complete the story of the crime” or
“inextricably intertwined with the evidence regarding the charged
offense.” United States v. Edouard,
485 F.3d 1324, 1344 (11th Cir.
2007) (explaining that evidence of criminal activity other than the
charged offense falls outside the scope of Fed. R. Evid. 404(b) in
these circumstances). The officers’ testimony about the meaning
of “hot,” as used by Miles, and about separating money was neces-
sary to complete the story of the crime. This testimony refuted
Miles’s implicit assertion that the officers planted the gun on him
and supported Ortiz’s testimony that he observed a hand-to-hand
drug transaction—the observation that led to Miles’s arrest for the
instant conviction. The testimony about the serial number was in-
extricably intertwined with the evidence regarding the charged of-
fense, as demonstrated by Arriola’s testimony that he recalled the
serial number being scratched off when he explained how he rec-
ognized a photograph of the firearm introduced at trial.
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16 Opinion of the Court 20-13174
3. Cumulative Error
Miles next contends that the cumulative impact of the errors
discussed above prejudicially affected his substantial rights, but
again we disagree. Under the cumulative error doctrine, even if in-
dividual judicial errors would be insufficient to warrant reversal,
the defendant may have been denied a fair trial when the effect of
all the errors is evaluated cumulatively. United States v. Lopez,
590 F.3d 1238, 1258 (11th Cir. 2009). “In addressing a claim of cu-
mulative error, we must examine the trial as a whole to determine
whether the appellant was afforded a fundamentally fair trial.”
Id.
(internal quotation marks omitted). Assuming the district court
erred in some of these respects, we nonetheless conclude, from our
review of trial as a whole, that Miles was not deprived of a funda-
mentally fair trial.
C. Sentencing
Miles argues that his previous Florida conviction under
Fla. Stat. § 893.13(1)(a)(2) was not a “controlled substance offense”
under the Sentencing Guidelines. First, he asserts that his statute of
conviction did not include cocaine. Second, he contends that, be-
cause § 4B1.2(b) of the Sentencing Guidelines does not define the
term “controlled substance,” we should look to the definition in
the Controlled Substances Act (“CSA”),
21 U.S.C. § 802(6). He ar-
gues that
Fla. Stat. § 893.13(1)(a)’s definition of a controlled sub-
stance is broader than the CSA because
Fla. Stat. § 893.13(1)(a)
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20-13174 Opinion of the Court 17
includes propylhexedrine, which is not a federally-scheduled sub-
stance.
A defendant may be classified as a career offender if: (1) he
is at least 18 years old at the time of the instant offense of convic-
tion; (2) the instant offense of conviction is either a “crime of vio-
lence” or a “controlled substance offense”; and (3) he has at least
two prior convictions of either a “crime of violence” or a “con-
trolled substance offense.” U.S. Sent’g Guidelines Manual
§ 4B1.1(a) (U.S. Sent’g Comm’n 2021). A “controlled substance of-
fense” is an offense under federal or state law, punishable by more
than one year of imprisonment, that prohibits the manufacture,
import, export, distribution, or dispensing of a controlled sub-
stance, or possession of a controlled substance, with intent to man-
ufacture, import, export, distribute, or dispense. U.S. Sent’g Guide-
lines Manual § 4B1.2(b) (U.S. Sent’g Comm’n 2021).
Miles’s arguments are foreclosed by precedent. In United
States v. Smith, we held that a conviction under
Fla. Stat. § 893.13
is a “controlled substance offense” under § 4B1.2(b) of the Sentenc-
ing Guidelines.
775 F.3d 1262, 1268 (11th Cir. 2014). We rejected
the argument that
Fla. Stat. § 893.13’s definition of a controlled sub-
stance was too broad and must be tied to statutory federal ana-
logues or generic federal definitions.
Id. at 1267; see also United
States v. Pridgeon,
853 F.3d 1192, 1200 (11th Cir. 2017) (rejecting
the argument that Smith was wrongly decided and affirming
Smith’s holding that convictions under
Fla. Stat. § 893.13 qualify as
“controlled substance offenses” under the Sentencing Guidelines).
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18 Opinion of the Court 20-13174
Under the prior panel precedent rule, we are bound by a
published prior panel decision “unless and until it is overruled by
us sitting en banc or by the Supreme Court.” United States v.
Cruickshank,
837 F.3d 1182, 1187 (11th Cir. 2016).
Because Miles did not object in the district court to the de-
termination that he was a career offender under the Guidelines, we
review his claim for plain error. See Lange, 862 F.3d at 1293. The
district court did not plainly err in determining that Miles’s prior
Florida conviction qualified as a controlled substance offense under
the Sentencing Guidelines. To the contrary, our prior decisions in
Smith and Pridgeon foreclose any argument that a conviction un-
der
Fla. Stat. § 893.13 is not a “controlled substance offense” under
§ 4B1.2(b) of the Sentencing Guidelines, or that
Fla. Stat. § 893.13’s
definition of a controlled substance is overbroad or must be tied to
a federal analogue. See Pridgeon, 853 F.3d at 1198, 1200; Smith,
775 F.3d at 1267–68. We are bound by these holdings under the
prior panel precedent rule. See Cruickshank, 837 F.3d at 1187.
Thus, Miles’s prior Florida conviction under
Fla. Stat.
§ 893.13(1)(a)(2) qualified as a “controlled substance offense” under
§ 4B1.2(b) of the Sentencing Guidelines, and the district court did
not err in imposing the career offender enhancement. See U.S.
Sent’g Guidelines Manual § 4B1.1(a).
IV. CONCLUSION
For the foregoing reasons, we affirm the district court on all
grounds.
AFFIRMED.
