United States v. Lamont Sneed , 385 F. App'x 551 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0439n.06
No. 09-3215
FILED
UNITED STATES COURT OF APPEALS
Jul 19, 2010
LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
)
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE SOUTHERN
v. ) DISTRICT OF OHIO
)
LAMONT SNEED, ) OPINION
)
Defendant-Appellant. )
BEFORE: NORRIS, MOORE, and McKEAGUE, Circuit Judges.
McKeague, Circuit Judge. Lamont “Dante” Sneed was convicted by a jury of conspiracy
to violate a federal law and aiding and abetting armed bank robbery in connection with his
involvement in a 2007 bank robbery. Prior to trial, Sneed moved to suppress evidence that had been
gathered from his car. Sneed contended that the affidavit, used to obtain the warrant to search his
car, failed to establish probable cause that evidence from the robbery would be located in his car.
The district court rejected this argument and admitted the incriminating evidence at trial. After the
jury returned a guilty verdict, Sneed moved at sentencing for a downward departure and objected to
a sentence enhancement factor on the grounds that it violated his Sixth Amendment rights. The
district court also rejected Sneed’s Sixth Amendment argument and sentenced him to prison terms
of sixty months on the conspiracy count and eighty months on the robbery count, to run concurrently.
No. 09-3215
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Sneed now appeals the district court’s denial of his motion to suppress and rejection of his Sixth
Amendment argument. After carefully reviewing the search warrant affidavit, we have determined
that the district court properly denied Sneed’s motion to suppress. We have further determined that
the district court properly rejected Sneed’s Sixth Amendment argument. Accordingly, we AFFIRM
Sneed’s conviction and sentence.
I.
Agents with the Federal Bureau of Investigation were notified on May 3, 2007, of a robbery
at the Sky Bank in Pickerington, Ohio. Witnesses at the scene described a dark-colored Honda
Accord, including license plate number, and three individuals. The witnesses were able to describe
the robbers putting on masks prior to the robbery, the car in question used during the robbery, and
two robbers exiting the bank and getting back into the vehicle after the robbery. In addition, bank
employees informed agents that a suspicious-looking male, identifying himself as Dante, entered the
bank a little over an hour before the robbery, asked about money orders, and exited the bank without
transacting any business. Video surveillance captured the suspicious-looking male.
FBI agents searched vehicle registration records for the license plate number reported by
witnesses and identified the Honda as belonging to Virginia Castro. Based on this lead, agents
questioned Castro about her whereabouts on May 3. Castro informed investigators that her brother,
Dante Sneed, borrowed her car on May 3 and returned it later that night. But upon further
questioning, Castro changed her story and told the agents that she had used the car on May 3. Agents
had also received information about an April 27 robbery of a CME credit union and determined that
a car matching the description of Castro’s was used in that robbery as well. Castro informed agents
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that Sneed had used her car on April 27; she also eventually confirmed that Sneed used her car on
May 3 during the time of the Sky Bank robbery.
Based on the information provided by Castro as well as witness statements, agents obtained
and executed a warrant to search Castro’s Honda Accord. Within the vehicle, they discovered a Sky
Bank business card and a set of gloves matching those seen in surveillance video taken at the time
of the Sky Bank robbery. Agents then decided to investigate Sneed further. They ran a criminal
history and motor vehicle check and discovered that a Cadillac was registered to his name.1 Witness
statements confirmed that Sneed regularly drove the Cadillac. Agents also determined that Sneed
worked the night shift at a Greyhound terminal in Columbus and that he listed the address of his
mother and Castro as his home address. Castro informed the investigating agents that Sneed
occasionally stayed at her home, but that he did not permanently live there. She also told agents that
Sneed had children with many women and that he stayed with these women at times, though he did
not have any permanent residence.
Agents then decided to interview Sneed at his place of employment on May 16. Upon
arriving at the Greyhound station, they noticed a Cadillac Seville with a license plate number
matching the Cadillac registered to Sneed. The agents parked their vehicles around Sneed’s Cadillac
and entered the Greyhound station. A Greyhound manager stated that Sneed had clocked in earlier
in the night, confirming that he was present at the station. The manager then paged Sneed over the
loudspeaker, asking him to report to the front desk, but Sneed never reported to the front. With the
1
Agents subsequently learned that Sneed bought another vehicle on April 28, though the
record is unclear as to when exactly agents discovered this information.
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aid of local law enforcement officers, agents searched the facility for Sneed for over an hour, but
were unable to locate him. A man matching Sneed’s description was seen near the Greyhound
station, though officers were unable to apprehend him. Dante Sneed never returned to the
Greyhound station that night to clock out or retrieve his vehicle.
After discontinuing the search, the agents seized Sneed’s Cadillac from the Greyhound
parking lot and towed it to the Columbus Police Department. The next morning they applied for a
warrant to search the vehicle and attached an affidavit signed by FBI Agent Erik Lauber. The
affidavit stated that witnesses to the Sky Bank robbery observed two black males exit the bank and
enter a Honda Accord, driven by a third black male, with Ohio plate number DWN 2893. The
affidavit also stated that the vehicle was registered to Virginia Castro and that an interview with
Castro revealed that Castro’s brother Dante Sneed had access to the Honda Accord. In addition,
Lauber’s affidavit noted that a suspicious-looking male entered Sky Bank in the hours leading up
to the robbery, identified himself as “Dante,” and asked questions about money orders. Surveillance
video revealed the suspicious-looking male to be Dante Sneed. Specifically in regards to Sneed’s
Cadillac, the affidavit stated that the vehicle in question was registered to Dante Sneed, per Ohio
motor vehicle records. The affidavit then went on to state the following:
13. On 5/4/2007, Castro, Sneed’s sister, stated that Sneed did not live at 2259 New
Village Road, but instead lived in many different places. Castro did not know the
exact address where Sneed stays, because it changes nightly.
14. On 5/16/2007, at approximately 10:15 pm, agents went to the Greyhound
terminal to interview Sneed. Upon arrival Sneed’s vehicle, Ohio Registration EBT-
6523, a four door, black in color, Cadillac, was seen in the Greyhound parking lot.
Agents parked their vehicles next to Sneed. Greyhound management advised that
Sneed had clocked in at 9:56 pm. Greyhound management attempted to find Sneed,
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even paging him over the loud speaker. Sneed did not respond. Agents and
Columbus Police Department officers searched the entire terminal for Sneed but he
had fled the premises. A CPD officer saw a black male, matching the height of
Sneed and having similar clothing to what Sneed was wearing, walking on 4th Street
away from the Greyhound terminal. Agents and CPD officer’s [sic] surrounded
Sneed’s vehicle. It is believed that Sneed did not return to the vehicle in hopes of
disassociating himself from the car and its contents.
15. On 5/17/2007, Greyhound management confirmed that Sneed never returned to
work to clock out.
16. Due to Sneed having abandoned his job and his vehicle agents seized the vehicle
for safe keeping. Furthermore, as Sneed does not have a full time residence it is the
belief that evidence of the Sky Bank robbery may be in Sneed’s vehicle.
17. Your affiant believes there is sufficient probable cause to search the 1996
Cadillac, four door Vin#: 1G6KD52Y4TU214423, with Ohio registration EBT-6523.
A magistrate judge authorized the search warrant on May 17. Prior to searching the Cadillac,
agents made a final attempt to locate Sneed, but were unsuccessful. They therefore executed the
warrant the following day. Within Sneed’s vehicle, agents found the following: a handgun, similar
in style to that used in the Sky Bank robbery; hats and bandanas, suspected of being worn in the
CME bank robbery; and several pairs of gloves, also believed to have been used in the CME robbery.
Prior to trial, Sneed moved to suppress the evidence seized from his Cadillac. He argued that
the warrantless seizure of his Cadillac was not supported by exigent circumstances and that the
search warrant affidavit did not establish probable cause to believe that evidence from the robberies
would be located in the vehicle. The district court conducted a hearing on the motions. During this
hearing, Lauber testified that the agents “truly believed when a suspect, such as Mr. Sneed . . . , did
not have a residence of his own . . . that it was much easier for him to place evidence in a vehicle
. . . .” Tr. of Hr’g on Def.’s Mot. to Suppress at 67:7–10, United States v. Sneed, 2:07-cr-00122
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(S.D. Ohio Aug. 28, 2007). The court ultimately denied both motions. It determined that a warrant
was not necessary to seize the Cadillac, so long as the agents had probable cause to believe that it
contained contraband. As to the search warrant affidavit, the district court determined that the
affidavit taken as a whole set forth probable cause to believe that items related to the robbery would
be found in the Cadillac.
After a three day trial, the jury found Sneed guilty on Count One of conspiracy to commit an
offense against the Unites States and on Count Two of aiding and abetting in armed bank robbery.
The jury acquitted Sneed of the charges in Count Three, aiding and abetting in the possession of a
firearm in furtherance of a crime. The Presentence Investigation Report (“PSR”) calculated Sneed’s
total offense level to be 28, which included a five level enhancement for use of a firearm in the Sky
Bank robbery, and his criminal history category to be III. Prior to sentencing, Sneed filed a motion
for a downward departure. Sneed specifically contended that a criminal history category of III
overstated the seriousness of his criminal history. He also argued that the five level enhancement
for use of a firearm in the robbery violated his Sixth Amendment rights because the jury had
acquitted him of Count Three, which charged Sneed with aiding and abetting the possession of a
firearm in furtherance of a crime, though Sneed conceded that this court had already addressed this
argument in United States v. White, 551 F.3d 381 (6th Cir. 2008) (en banc).
The district court acknowledged Sneed’s Sixth Amendment argument and determined that
the firearm enhancement was justified because Count Two charged that Sneed and his co-
conspirators used a dangerous weapon in the Sky Bank robbery. The court then adjusted the criminal
history category to II and sentenced Sneed to sixty months imprisonment on Count One and eighty
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months on Count Two, to be served concurrently. Sneed now brings this appeal, challenging the
district court’s determination that the search warrant affidavit was supported by probable cause and
the district court’s use of the firearm sentence enhancement. Sneed does not challenge the district
court’s determination on the warrantless seizure of his vehicle nor does he challenge any other aspect
of his sentence.
II.
We begin by addressing Sneed’s argument that the warrant to search his Cadillac lacked
probable cause. This court reviews legal conclusions as to the existence of probable cause de novo.
United States v. Williams, 544 F.3d 683, 685 (6th Cir. 2008). We uphold factual findings unless the
findings are clearly erroneous. Id. We also give great deference to the issuing judge’s determination
of probable cause, and we will not disturb this determination unless it was arrived at arbitrarily.
United States v. Higgins, 557 F.3d 381, 389 (6th Cir. 2009). Further, we will uphold the district
court’s decision to deny a motion to suppress if any reason exists to justify the denial. Id.
The Fourth Amendment requires a showing of probable cause, supported by oath or
affirmation, before a warrant may legally issue. United States v. McPhearson, 469 F.3d 518, 523
(6th Cir. 2006) (quoting U.S. Const. amend. IV). In determining whether this requirement has been
satisfied, the issuing magistrate must “make a practical, common-sense decision whether, given all
the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence
of a crime will be found in a particular place.” United States v. Lapsins, 570 F.3d 758, 763–64 (6th
Cir. 2009)(internal quotations omitted). The magistrate must have a substantial basis for concluding
that the search will uncover evidence of wrongdoing. McPhearson, 469 F.3d at 523–24. In applying
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the probable cause standard, the magistrate uses a practical standard, based on factual and practical
considerations of every day life, rather than a technical standard. United States v. Brooks, 594 F.3d
488, 492 (6th Cir. 2010). In the event that a warrant lacks probable cause, evidence obtained from
the illegal search may still be used at trial if the search meets the requirements of the good faith
exception. McPhearson, 469 F.3d at 523.
A.
Sneed challenges the search warrant affidavit for failing to establish the required nexus
between his Cadillac and evidence of the bank robbery. He does not contend that probable cause
was lacking to establish his involvement in the bank robbery. Nor does he challenge the veracity of
the information contained in the affidavit. Accordingly, our analysis focuses on the sole issue of
whether Lauber’s affidavit sufficiently set forth probable cause to believe that evidence of the
robbery would be located in the Cadillac.
When a warrant application seeks to search a particular location, the affidavit must establish
a sufficient “nexus between the place to be searched and the evidence to be sought.” Brooks, 594
F.3d at 492 (internal quotations omitted). It is not enough that the owner of the property is suspected
of a crime; rather, the affidavit must show reasonable cause to believe that contraband sought will
be found in the property to be searched. Id. The Sixth Circuit, along with numerous other Circuits,
has consistently held that a nexus can be inferred based on the nature of the evidence sought and the
type of offense that the defendant is suspected of having committed. See, e.g., United States v.
Gunter, 551 F.3d 472, 481 (6th Cir. 2009) (“[I]t was reasonable to infer that evidence of illegal
activity would be found at Gunter’s residence.”); Williams, 544 F.3d at 688; see also United States
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v. Stearn, 597 F.3d 540, 554 (3d Cir. 2010) (“Probable cause can be . . . inferred from ‘the type of
crime, the nature of the items sought, the suspect’s opportunity for concealment, and normal
inferences about where a criminal might hide [evidence].’”); United States v. Tate, 586 F.3d 936,
943 (11th Cir. 2009) (“‘Evidence that a defendant has stolen material which one normally would
expect him to hide at his residence will support a search of his residence.’”); United States v. Orozco,
576 F.3d 745, 749 (7th Cir. 2009) (“‘Warrants may be issued even in the absence of direct evidence
linking criminal objects to a particular site.’”); United States v. Thompson, 263 F. App’x 374, 378
(4th Cir. 2008) (per curiam) (“[T]his court has observed that it is reasonable to assume that
individuals store weapons in their homes.”); United States v. Ribeiro, 397 F.3d 43, 49 (1st Cir. 2005)
(“The probable-cause nexus . . . ‘can be inferred from the type of crime, the nature of the items
sought . . . .’”).
In applying the nexus requirement, this court has held that an affidavit established the
required nexus between the defendant’s home computer and images of child pornography where the
affidavit showed that (1) the images were uploaded in the early morning hours, at a time when the
defendant was likely to be home, (2) pornographic images are more likely to be stored on a home
computer, where there is relatively more privacy, and (3) the IP address connected with the images
was traced to a residential cable modem. Lapsins, 570 F.3d at 766. The affidavit in Lapsins
established a nexus even though it did not specifically state that the IP address was registered to the
defendant’s name. Id. The nexus requirement was also met where the affidavit stated that the
defendant’s residence contained a strong odor of marijuana and that the defendant was arrested at
his residence with $1,000 in his pocket. Brooks, 594 F.3d at 494–95. This information provided
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probable cause to believe that contraband would be located in the defendant’s home, even though
the affidavit contained some amount of stale information. Id. at 489, 495. Furthermore, this court
has also held that a magistrate judge could infer that instrumentalities of criminal activity would be
found at a defendant’s residence where the affidavit contained information implicating the defendant
in a robbery. Williams, 544 F.3d at 688.
On the other hand, probable cause was not established, and the affidavit failed to show a
nexus between the residence and evidence of drug activity, in a case where the defendant was
arrested at his residence on an assault charge and crack cocaine was discovered on his person.
McPhearson, 469 F.3d at 524. The McPhearson court noted that an inference of drug activity is
permissible in some cases, but was not permissible in that particular case because there was no
independent corroborating evidence that the defendant was a known drug dealer. Id. at 524–25.
Similarly, probable cause was not established where the affidavit in support of the warrant to search
the defendant’s residence contained uncorroborated statements from an informant that the informant
had purchased drugs from the defendant. Higgins, 557 F.3d at 389–90. The Higgins court noted that
the affidavit contained no information as to whether the informant had been inside the defendant’s
apartment or seen drugs at the defendant’s home. Id. at 390.
Based on the above-surveyed case law, this case presents a close call as to whether Lauber’s
affidavit established a nexus between Sneed’s Cadillac and evidence of the bank robbery. Yet
reading the affidavit as a whole, and based on the totality of the circumstances, we conclude that it
set forth sufficient facts to meet the nexus requirement. See Lapsins, 570 F.3d at 763–64 (stating
the standard for evaluating whether probable cause exists). Sneed does not dispute that the
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information contained in Lauber’s affidavit clearly established probable cause to believe that Sneed
was connected with the Sky Bank robbery. A reading of the affidavit in its entirety also supports an
inference that Sneed would have kept instrumentalities from the robbery in his Cadillac. See Gunter,
551 F.3d at 481 (stating that an inference can be drawn that a suspect will keep criminal
instrumentalities in his place of residence).
First, the affidavit established that Sneed did not live at the address that he had listed with
motor vehicle records and that his address “change[d] nightly.” The affidavit also established that
the Cadillac was registered to Sneed and that the vehicle was discovered at a location where Sneed
was known to have been only moments before the vehicle’s discovery. In addition, the affidavit
stated that the affiant believed that Sneed intentionally tried to “disassociate” himself from the
vehicle and its contents and that Sneed never returned for the vehicle once agents went in search of
him. Further, Sneed had a known history of storing instrumentalities from the robbery in vehicles,
as the search of Castro’s Honda Accord revealed. Moreover, the affidavit stated that because Sneed
did not have a permanent residence, the affiant believed that evidence from the Sky Bank robbery,
which occurred only fourteen days prior to the seizure of the car, may be located in the Cadillac.
Finally, criminal instrumentalities from a robbery are the type of evidence that an individual in
Sneed’s position, who lacked a permanent residence, would likely keep in his vehicle. See Williams,
544 F.3d at 688. Taken as a whole, this information provides a substantial basis from which a
magistrate judge could infer that instrumentalities from the Sky Bank robbery would be located in
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Sneed’s Cadillac. See Stearn, 597 F.3d at 554; Tate, 586 F.3d at 943; Orozco, 576 F.3d at 749;
Gunter, 551 F.3d at 481.
Further, the affidavit in this case is distinguishable from cases where the nexus requirement
was not satisfied. In McPhearson, we determined that the affidavit did not establish a nexus because
the affidavit did not provide independent corroborating evidence that the defendant was suspected
of having engaged in the criminal activity for which evidence was sought. 469 F.3d at 524.
However, the affidavit in this case contained plenty of independent corroborating evidence to
establish that Sneed was involved in the Sky Bank robbery. Specifically, the affidavit stated that
Sneed had access to the getaway vehicle used in the robbery, that Sneed suspiciously entered the
bank a mere hour and one-half before the robbery, and that evidence of the Sky Bank robbery was
found in the getaway vehicle. Further, unlike the facts in Higgins, where the affidavit was based on
uncorroborated informant statements, the affidavit in this case was based on facts directly determined
by the investigating officers. See 557 F.3d at 390.
As a final matter, we are unpersuaded by the case law that Sneed advances to support his
position. Sneed first relies on United States v. Bethal, 245 F. App’x 460 (6th Cir. 2007), where this
court found that the affidavit, containing general facts about the defendant’s status as a gang member
and connecting him to other gang members whose residences contained weapons, did not establish
probable cause to believe that weapons would be found in the defendant’s home. However, unlike
the facts in Bethal, the affidavit in this case contained specific information linking Sneed to a
specific robbery and also contained a statement that officers believed that Sneed was intentionally
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distancing himself from incriminating evidence in his vehicle. Finally, Sneed cites to United States
v. Savoca, 761 F.2d 292 (6th Cir .1985), where this court determined that a nexus was not
established between a bank robbery and a motel room. Yet in that case the motel room was located
2,000 miles away from the robbery and the affidavit did not contain information on when the bank
robbery had occurred. Savoca, 761 F.2d at 295. In this case, Sneed’s vehicle was located in the
general area of the robbery and was searched only days after the robbery. Based on the totality of
the circumstances, and using a common-sense approach, we hold that Lauber’s affidavit sufficiently
established a nexus between Sneed’s Cadillac and evidence of the Sky Bank robbery.
B.
Even if the affidavit does not meet the nexus requirement, we would nonetheless uphold
Sneed’s conviction under the Leon good faith exception. Items recovered pursuant to an invalid
search warrant do not have to be excluded if the search meets the good faith exception to the
exclusionary rule. See United States v. Leon, 468 U.S. 897, 922 (1984); United States v. Carpenter,
360 F.3d 591, 595 (6th Cir. 2004) (en banc). The good faith exception applies if the evidence is
“obtained in objectively reasonable reliance on a subsequently invalidated search warrant.”
Carpenter, 360 F.3d at 595 (quoting Leon, 468 U.S. at 922). The objectively reasonable reliance
standard requires less than the showing required for probable cause. Id. We have recognized four
situations under which the good faith exception does not apply: (1) when the affidavit contains a
known or reckless falsity; (2) when the magistrate who issued the warrant wholly abandoned his or
her role; (3) when the affidavit lacks an indicia of probable cause such that reliance on it is
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objectively unreasonable; and (4) when the warrant is facially invalid such that it cannot reasonably
be presumed valid. McPhearson, 469 F.3d at 525. Sneed argues that the third situation applies to
this case. To determine whether agents’ reliance on the affidavit was objectively unreasonable, we
must inquire into whether the warrant was issued on the basis of a “bare bones” affidavit; that is,
whether the affidavit merely contained suspicions and beliefs without any underlying factual
information on the veracity or reliability of the information. Id. at 525–26.
In addressing whether officers’ reliance on a warrant was objectively unreasonable, this court
has found that the good faith exception applied where the affidavit contained at least some nexus
between the residence to be searched and the illegal activity. Carpenter, 360 F.3d at 595–96. The
Carpenter court noted that the officers’ reliance on the invalid search warrant was objectively
reasonable because the affidavit in support of the warrant stated that marijuana was growing near
the residence and that a road connected the residence to the growing marijuana plants. Id.
Therefore, reasonable officers could have believed that the affidavit supported the issuance of the
warrant. Id. at 596. Similarly, the good faith exception applied where officers could have inferred
a nexus between the residence to be searched and evidence of known drug activities. Higgins, 557
F.3d at 391. The Higgins court noted that even though the affidavit did not meet the probable cause
standard, a reasonably well trained officer would not have known the search was illegal based on
information provided to the officers. Id.
On the other hand, the good faith exception did not apply where the supporting affidavit
provided no information establishing a connection between the place to be searched and evidence
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of drug activity. McPhearson, 469 F.3d at 526; United States v. Laughton, 409 F.3d 744, 751 (6th
Cir. 2005). As previously noted, the affidavit in McPhearson contained nothing more than the fact
that the defendant was arrested at his residence and that crack cocaine was found in his pocket; it
contained no information indicating that the defendant was known to have participated in drug
trafficking. Id. Similarly, the affidavit in Laughton simply stated that a confidential informant had
purchased drugs on multiple occasions, but did not contain information as to whether the informant
had purchased drugs from the defendant or whether the informant had seen drugs at the particular
location to be searched. 409 F.3d at 751. Because the affidavit contained no information connecting
the drug activity to the residence, a reasonable officer could not have believed that it established
probable cause. Id. at 749, 751.
Applying the above case law to this case, we believe that the good faith exception applies
here. To begin with, this court has noted that reasonably well trained officers may infer a nexus
between a place to be searched and items sought, even when the affidavit fails to establish probable
cause. See Higgins, 557 F.3d at 391. Further, unlike the affidavits in McPhearson and Laughton,
the affidavit in this case contained some indication of a nexus between Sneed’s Cadillac and
evidence of the Sky Bank robbery. Specifically, paragraph thirteen stated that officers believed that
Sneed tried to distance himself from the Cadillac and its contents. And Sneed does not challenge
the veracity of this statement. In addition, paragraph sixteen stated that Sneed did not have a
permanent residence and that the affiant therefore believed that evidence of the robbery may be
located in Sneed’s vehicle. Moreover, the affidavit connected Sneed to the vehicle by noting that
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the vehicle was discovered at Sneed’s place of employment, only moments after Sneed reported for
work. In sum, this is not the type of “bare bones” affidavit which this court has found lacking in any
indicia of probable cause. See McPhearson, 469 F.3d at 525–26.
III.
We now move to Sneed’s Sixth Amendment argument regarding his sentence enhancement.
Sneed claims that his Sixth Amendment rights were violated by the district court’s use of the firearm
enhancement because the jury acquitted him of the charge related to possession of a firearm. Sneed
concedes that this issue has been addressed by the en banc court in United States v. White, 551 F.3d
381 (6th Cir. 2008) (en banc), and states that he advances the argument only for the purposes of
preserving it for further appellate review. In White, this court noted that “[s]o long as the defendant
receives a sentence at or below the statutory ceiling set by the jury’s verdict, the district court does
not abridge the defendant’s right to a jury trial by looking to other facts, including acquitted conduct,
when selecting a sentence within that statutory range.” 551 F.3d at 385. In this case, Sneed does not
contend that his sentence exceeds the maximum allowed by the jury’s verdict. Further, the district
court provided adequate explanation as to why it enhanced Sneed’s sentence for use of a firearm. We
therefore affirm Sneed’s sentence.
IV.
For the foregoing reasons, we AFFIRM Sneed’s conviction and sentence.
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KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I agree with
Part III of the majority opinion upholding Sneed’s sentence in light of United States v. White, 551
F.3d 381 (6th Cir. 2008) (en banc). I would uphold the search of the Cadillac solely on the basis of
the good-faith exception to the exclusionary rule articulated in United States v. Leon, 468 U.S. 897,
922 (1984). Therefore, I concur in the judgment.
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