United States v. Gjavit Thaqi , 312 F. App'x 840 ( 2009 )


Menu:
  •                       United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 07-3364
    ___________
    United States of America,                 *
    *
    Appellee,                    *
    *
    v.                                  * Appeal from the United States
    * District Court for the
    Gjavit Nedjat Thaqi,                      * Eastern District of Missouri.
    *
    Appellant.                   * [UNPUBLISHED]
    ___________
    Submitted: March 5, 2009
    Filed: March 11, 2009
    ___________
    Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
    ___________
    PER CURIAM.
    In this direct criminal appeal, Gjavit Thaqi challenges the district court’s1 denial
    of his motion to suppress evidence from a traffic stop and vehicle search, and the
    sentence imposed upon his guilty pleas to possessing a United States passport
    knowing it was fraudulently procured, in violation of 18 U.S.C. § 1546, and to
    possessing and using, without lawful authority, another person’s identification during
    1
    The Honorable Henry E. Autry, United States District Judge for the Eastern
    District of Missouri, adopting the report and recommendations of the Honorable
    Thomas C. Mummert, III, United States Magistrate Judge for the Eastern District of
    Missouri.
    and in relation to the violation of section 1546, in violation of 18 U.S.C.
    § 1028A(a)(1). We affirm.
    After reviewing for clear error the district court’s factual findings and de novo
    its legal conclusions, see United States v. Bell, 
    480 F.3d 860
    , 863 (8th Cir. 2007), we
    conclude that the district court did not err in finding that the initial stop was supported
    by probable cause, see United States v. Bloomfield, 
    40 F.3d 910
    , 915 (8th Cir. 1994)
    (en banc) (any traffic violation, however minor, provides probable cause for traffic
    stop), and that Thaqi’s offer to the officers to “go ahead” and search the vehicle
    amounted to a voluntary consent under the circumstances, see United States v. Saenz,
    
    474 F.3d 1132
    , 1136-37 (8th Cir. 2007) (describing factors); cf. United States v. Vera,
    
    457 F.3d 831
    , 836-37 (8th Cir. 2006) (defendant’s offer to allow search and
    spontaneously handing keys to officer were most important in determining
    voluntariness of consent); see also Schneckloth v. Bustamonte, 
    412 U.S. 218
    , 231-33
    (1973) (proof of knowledge of right to refuse consent is not prerequisite to
    demonstrating voluntary consent).
    We further conclude that the officers’ questions about whether there were drugs
    and currency in the car did not amount to an illegal detention. This is because during
    the first few minutes of the stop, the answers that the four occupants of the car gave
    to the officers’ routine questions about their destination and the purpose of their trip
    aroused suspicion. See United States v. Johnson, 
    58 F.3d 356
    , 357-58 (8th Cir. 1995)
    (reasonable investigation during stop includes asking driver about his destination and
    purpose; officer may engage in similar routine questioning of passengers to verify
    information provided by driver, and if responses and circumstances give rise to
    suspicions unrelated to traffic offense, officer may broaden inquiry and satisfy
    suspicions); cf. United States v. Olivera-Mendez, 
    484 F.3d 505
    , 510-11 (8th Cir.
    2007) (officer did not effect unreasonable seizure by asking three brief questions
    related to possible drug trafficking amidst other traffic-related inquiries and tasks).
    -2-
    For reversal of his sentence, Thaqi contends that it is procedurally unreasonable
    because the district court failed to articulate its reasoning. The government has filed
    a motion to dismiss this argument based on an appeal waiver in the plea agreement.
    We deny the government’s motion, because the plea transcript was not made a part of
    the record on appeal. See Fed. R. Crim. P. 11(b)(1)(N) (before accepting guilty plea,
    court must determine defendant understands terms of any plea-agreement provision
    waiving right to appeal); United States v. Mink, 
    476 F.3d 558
    , 562 (8th Cir. 2007)
    (government bears burden of proving defendant’s appeal is barred by waiver).
    We review for plain error whether the district court sufficiently articulated its
    reasons for the sentence, because Thaqi’s objection to his sentence as “procedurally
    unreasonable” at sentencing--without further elaboration--did not properly preserve
    this issue for appeal. See United States v. Pirani, 
    406 F.3d 543
    , 549 (8th Cir. 2005)
    (en banc) (to preserve error for appellate review, objection must be timely and clearly
    state grounds for objection; errors not properly preserved are reviewed for plain error
    only); see also United States v. Gray, 
    533 F.3d 942
    , 945 (8th Cir. 2008) (where
    appellant did not object at sentencing to adequacy of district court’s explanation or
    consideration of 18 U.S.C. § 3553(a), court reviewed objection on appeal for plain
    error). We conclude that the district court did not commit plain procedural error. See
    United States v. Robinson, 
    516 F.3d 716
    , 717 (8th Cir. 2008) (sentence is procedurally
    unreasonable if, among other things, district court treated Guidelines as mandatory,
    failed to consider § 3553(a) factors, or failed adequately to explain sentence). In
    imposing the minimum Guidelines sentence, the court recognized the advisory nature
    of the Guidelines, indicated that it had reviewed the presentence report and the
    recommended Guidelines sentence, and sentenced Thaqi “pursuant to the Sentencing
    Reform Act of 1984.” Significantly, the court imposed the sentence only after lengthy
    argument by Thaqi during which he pointed to the sentencing factors under section
    3553(a), urged the court to consider his particular circumstances and history, and
    discussed those matters in detail. See United States v. Roberson, 
    517 F.3d 990
    , 994
    (8th Cir. 2008) (court’s statement of reason for sentence “may be relatively brief if the
    -3-
    district court rests its decision on the Sentencing Commission’s reasoning and
    ‘decides simply to apply the Guidelines to a particular case’” (quoting Rita v. United
    States, 
    127 S. Ct. 2456
    , 2468 (2007))); see also 
    Gray, 533 F.3d at 943-44
    (district
    court judges are presumed to know law and understand obligation to consider all
    § 3553(a) factors; in determining whether district court considered relevant factors,
    appellate court reviews entire sentencing record, not merely district court’s statements
    at hearing); United States v. Todd, 
    521 F.3d 891
    , 897 (8th Cir. 2008) (district court
    need not mechanically recite § 3553(a) factors, especially when court applies advisory
    Guidelines range); United States v. Fields, 
    512 F.3d 1009
    , 1013 (8th Cir. 2008)
    (noting district court’s awareness of defendant’s arguments precludes conclusion that
    court abused its discretion by failing to consider them).
    Accordingly, we affirm.
    ______________________________
    -4-