United States v. Samuel Khabeer, Sr. , 159 F. App'x 743 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2046
___________
United States of America, *
*
Appellee, *
*
v. *
*
Samuel Khabeer, Sr., *
*
Appellant. *
___________ Appeal from the United States
District Court for the
No. 04-2091 Eastern District of Arkansas.
___________
United States of America, *
*
Appellee, *
*
v. * [UNPUBLISHED]
*
Karen Cox Khabeer, *
*
Appellant. *
___________
Submitted: January 12, 2005
Filed: December 21, 2005
___________
Before MELLOY, SMITH, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
In a previous opinion, United States v. Khabeer, 410 F.3d 477 (8th Cir. 2005),
we remanded this case to the district court for the limited purpose of making findings
of fact as to whether the decision of police officers to seek a search warrant for the
residence of the appellants, Samuel Khabeer, Sr., and Karen Cox Khabeer, was
prompted by what Officer Scott Miller had observed during his initial entry into the
residence without a warrant. See Murray v. United States, 487 U.S. 533, 542 (1987).
We retained jurisdiction to consider the case further after receiving additional findings
from the district court. The district court, on remand, found that “the affidavit and
warrant were not bottomed upon (even in part) any of Officer Miller’s observations.”
(Order of Sept. 14, 2005). Having reviewed the record, we conclude that the district
court’s finding that the decision to seek the warrant was not prompted by Miller’s
observations is consistent with the testimony of both Officer Miller and the affiant,
Detective Cole Dearing, and the district court’s determination to credit that testimony
is not clearly erroneous. Because the affidavit did not make reference to Officer
Miller’s observations, yet included probable cause for the search based on information
from other sources, the evidence seized pursuant to the warrant is admissible under
the independent source doctrine despite Miller’s entry. Murray, 487 U.S. at 542.
Accordingly, we conclude that the district court properly denied the appellants’
motion to suppress.
The Khabeers also argue that the cases should be remanded for resentencing,
because the district court imposed sentence under the mandatory sentencing guidelines
based on facts that were found by the court at sentencing. There was no objection at
sentencing based on the Sixth Amendment or the use of mandatory guidelines, so we
review the sentences under the plain error standard. See United States v. Pirani, 406
F.3d 543, 550 (8th Cir. 2005) (en banc). Having reviewed the record as a whole, we
note that the district court did not even exercise its discretion under the then-
mandatory guidelines to sentence either defendant at the bottom of the applicable
-2-
guideline range, and we conclude that the Khabeers have not established a reasonable
probability that the district court would have imposed a more favorable sentence under
the advisory guideline scheme announced in United States v. Booker, 543 U.S. 220
(2005). Consequently, they are not entitled to relief under Pirani, 406 F.3d at 551,
and the judgments of the district court are affirmed.
______________________________
-3-