United States v. Phillip Walton

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 22, 2009
No. 08-13207 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-20785-CR-UU
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PHILLIP WALTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 22, 2009)
Before TJOFLAT, DUBINA and ANDERSON, Circuit Judges.
PER CURIAM:
Phillip Walton appeals his convictions for possession with intent to
distribute a detectable amount cocaine base, in violation of 21 U.S.C. § 841;
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1);
and possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d); and
his aggregate 300-month custodial sentence. On appeal, Walton challenges the
district court’s denial of his motion to suppress the evidence. Walton argues that
(1) the magistrate judge made improper credibility determinations during the
hearing on the motion to suppress; (2) the warrantless arrest inside his apartment
was not justified by exigent circumstances; (3) his subsequent consent to search
the apartment was not voluntary; and (4) his post-arrest statements were not
voluntary. Walton also contends that the admission of hearsay evidence at trial
violated the Confrontation Clause and, in the alternative, should have been
excluded under Federal Rule of Evidence 403. Lastly, Walton maintains that his
300-month, within-range sentence is unreasonable. For the reasons set forth
below, we affirm.
STANDARD OF REVIEW
A district court’s ruling on a motion to suppress presents a mixed question
of law and fact. United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000).
We review the district court’s application of the law to the facts de novo, but
2
accept the district court’s factual findings unless they are clearly erroneous. Id.Additionally, we construe the facts in the light most favorable to the prevailing
party. Id. In cases where a magistrate judge has made a credibility determination
based on an assessment of witnesses’ in-court testimony, we “defer to the
magistrate judge’s determinations unless his understanding of the facts appears to
be unbelievable.” United States v. Ramirez-Chilel, 289 F.3d 744,
749 (11th Cir. 2002) (internal quotation marks omitted).
We review de novo the scope of the Confrontation Clause. United States
v. Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005). However, we review a
district court’s evidentiary ruling for an abuse of discretion. Conroy v. Abraham
Chevrolet-Tampa, Inc., 375 F.3d 1228, 1232 (11th Cir. 2004).
DISCUSSION
For the reasons set forth below, we conclude that the district court did not
err in denying Walton’s motion to suppress the evidence. Second, we conclude
that there was no violation of the Confrontation Clause and the district court did
not abuse its discretion in declining to exclude testimony under Federal Rule of
Evidence 403. Finally, we discern no error in the district court’s application of the
sentencing guidelines.
A. The Motion to Suppress the Evidence
3
Having reviewed the record and the briefs of the parties, we conclude that
the district court properly denied Walton’s motion to suppress the physical
evidence seized from his apartment. We will address each argument in turn.
1. The Magistrate’s Credibility Determination
First, Walton argues that the magistrate judge rejected his testimony without
making a proper credibility determination. A court cannot reject a defendant’s
testimony due merely to the defendant’s status as the accused. See Gallego v.
United States, 174 F.3d 1196, 1198-99 (11th Cir. 1999). Here, the magistrate’s
report and recommendation reflects that the magistrate considered the conflicting
testimony offered by the police officers and the defense witnesses. The report
then clearly states that the testimony of the officers was credible. Accordingly, we
find that the magistrate judge did make a proper credibility determination.1
2. The Warrantless Arrest
Second, Walton argues that the initial entry, detention and protective sweep
in the apartment violated the Fourth Amendment. “[T]he Fourth Amendment has
1
On appeal, Walton argues that testimony presented for the first time at trial
conflicted with a factual finding upon which the magistrate judge relied in making credibility
determinations. Thus, Walton argues that the magistrate judge’s credibility determinations were
based on a clearly erroneous fact. We can find no indication in the record that Walton brought
this inconsistency to the attention of the district court. As a general rule, we will not consider
arguments not fairly presented to the district court. Jones v. Campbell, 436 F.3d 1285, 1304
(11th Cir. 2006).
4
drawn a firm line at the entrance to the house. Absent exigent circumstances, that
threshold may not reasonably be crossed without a warrant.” Payton v. New York,
445 U.S. 573, 590, 100 S. Ct. 1371, 1382 (1980). Walton argues that there were
no exigent circumstances because two hours had elapsed from the time of the
shooting. According to Walton, the police had secured the apartment complex and
could monitor the apartment in question while obtaining a warrant. We disagree.
“The term ‘exigent circumstances’ refers to a situation where the inevitable
delay incident to obtaining a warrant must give way to an urgent need for
immediate action. Such is the case when resort to a warrant might endanger the
police or the public.” United States v. Burgos, 720 F.2d 1520, 1526 (11th Cir.
1983). In Burgos, the Court affirmed the district court’s denial of a motion to
suppress evidence obtained during a warrantless search. The opinion concluded:
The [ATF] agents had been informed that Mr. Kasha had purchased
one hundred and ninety-two guns without the proper license in a
seven month period. They had observed Mr. Kasha transfer two large
boxes filled with arms to [the defendant]. They had observed [the
defendant] enter his home and get help from an unknown man in
unloading the boxes. The agents were faced with a house laden with
arms and an unknown number of people inside. The officers could
reasonably believe that the household was an arsenal. The threat of
injury to the neighborhood and arresting officers justified the
avoidance of delay involved in obtaining a warrant. Quick action
increased the likelihood that no one would be injured.
Id.5
We find the present circumstances analogous. The Miami-Dade police
department received an emergency call reporting multiple rounds of gunshots from
an assault rifle. The shots were fired in a twelve-building apartment complex
directly across the street from an elementary school. At the scene, investigators
discovered multiple impact holes from an AK-47 and empty casings on the
ground. Approximately two hours after officers arrived on the scene, an
individual involved in the shooting identified Walton as the perpetrator and
directed police to his apartment. The police were informed that Walton kept
weapons in his apartment. As the officers approached the apartment, they
positively identified Walton through an open door. The police were faced with an
apartment potentially full of an unknown number of armed individuals.
Accordingly, we conclude that exigent circumstances justified the officer’s
warrantless entry, detention and protective sweep.2
3. The Consent to Search
Third, Walton argues that his consent to a search beyond the initial
protective sweep was involuntary. Consent to search is effective only if
voluntarily given. Ramirez-Chilel, 289 F.3d at 752. Consent cannot be premised
2
The argument in Walton’s brief is insufficient to preserve the issue of probable
cause. Therefore, it has been waived.
6
on “a mere submission to a claim of lawful authority.” Florida v. Royer, 460 U.S.
491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983). Voluntariness is
determined in reference to the “totality of the circumstances.” Ramirez-Chilel,
289 F.3d at 752 (internal quotations omitted).
After the officers conducted a brief protective sweep of the apartment
incident to Walton’s lawful arrest, Walton signed a written consent form allowing
the officers to search his apartment. The magistrate judge made several findings:
only one officer approached Walton to obtain his consent, Walton was not
threatened, none of the officers had their guns drawn and the written form
specifically advised Walton that he could refuse consent to a search. Accordingly,
we discern no error in the district court’s conclusion that the defendant voluntarily
consented to the search of his apartment.
4. The Post-Arrest Statements
The Fifth Amendment provides that “[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.” U.S. Const. amend. V. In
Miranda v. Arizona, the Supreme Court held that the government “may not use
statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination.”
7
384 U.S. 436, 444 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). In order for a
defendant’s incriminatory statements to be admissible, the government must prove
by a preponderance of the evidence that the defendant made a knowing, voluntary
and intelligent waiver of his Miranda rights. United States v. Farris, 77 F.3d 391,
396 (11th Cir. 1996). We determine voluntariness based upon the totality of the
circumstances, construing the facts in the light most favorable to the prevailing
party. United States v. Barbour, 70 F.3d 580, 584 (11th Cir. 1995). We have
recognized that a statement is not given voluntarily if it is “extracted by any sort of
threats or violence, or obtained by any direct or implied promises, or by the
exertion of any improper influence.” United States v. Veal, 153 F.3d 1233,
1244 n.14 (11th Cir. 1998) (internal quotations omitted).
Having reviewed the record and the briefs of the parties, we conclude that
the district court properly denied Walton’s motion to suppress his post-arrest
inculpatory statements. The magistrate judge made several findings: an officer
read Walton his Miranda rights before he was questioned, Walton appeared to
understand those rights, Walton signed a form waiving his Miranda rights before
he was questioned, Walton was not under the influence of narcotics, and Walton
was not coerced or threatened into giving any statement. Therefore, the district
court did not err in concluding that a preponderance of the evidence established
8
that Walton made a knowing, voluntary, and intelligent waiver his Miranda rights
and that Walton’s statements were voluntary.
B. The Confrontation Clause
The Sixth Amendment’s Confrontation Clause provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” U.S. Const. amend. VI. Federal Rule of Evidence 801
defines hearsay as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Fed.R.Evid. 801(c). Rule 802 excludes hearsay as evidence unless
otherwise authorized by rule or statute. Rule 803 excepts present sense
impressions from the exclusionary hearsay rule. Fed.R.Evid. 803(1).
One of the government’s witnesses testified to an out-of-court statement
made by a third party. The district court admitted the statement as a present sense
impression. Both parties agree that the statement was non-testimonial.
“Admission of non-testimonial hearsay against criminal defendants . . . violates
the Confrontation Clause unless the statement falls within a firmly rooted hearsay
exception, or otherwise carries a particularized guarantee of trustworthiness.”
United States v. Baker, 432 F.3d 1189, 1204 (11th Cir. 2005) (citing Ohio v.
Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L.Ed.2d 597 (1980)). Here, we
9
conclude there was no violation.3 See United States v. Rouse, 452 F.2d 311, 314
n.3 (5th Cir. 1971) (noting that res gestae is a historic concept that embodies
declarations of present sense impressions, declarations of present bodily condition,
declarations of present mental state and emotions, and excited utterances).
In the alternative, Walton argues that the statement should have been
excluded under Fed.R.Evid. 403. A district court’s discretion to exclude evidence
under Rule 403 is limited. United States v. Terzado-Madruga, 897 F.2d 1099,
1117 (11th Cir. 1990). “Evidence may be excluded only when ‘its probative value
is substantially outweighed by the danger of unfair prejudice.’” Id. (quoting
Fed.R.Evid. 403). We have stated that “Rule 403 is an extraordinary remedy
which should be used only sparingly since it permits the trial court to exclude
concededly probative evidence.” Id. (internal quotations and citations omitted).
The disputed statement was introduced for the purpose of establishing, at
least in part, the circumstances surrounding the charged offenses. Furthermore,
Walton had the opportunity to cross-examine the witness. Having reviewed the
3
Defendant’s allegations that the witness fabricated his testimony are irrelevant to
the application of the Confrontation Clause. The Confrontation Clause protects the right of the
accused “to be confronted with the witnesses against him.” U.S. Const. amend. VI. Here, the
witness was available at trial for cross-examination. Walton chose not to conduct a cross-
examination.
10
record and the briefs of the parties, we conclude that the district court did not err
by failing to exclude the statement under Rule 403.
C. Walton’s Sentence
We review a final sentence for reasonableness. United States v. Talley,
431 F.3d 784, 785 (11th Cir. 2005). In conducting this review, we apply a
deferential abuse of discretion standard. Gall v. United States, 552 U.S. ___, ___,
128 S. Ct. 586, 591, 597, 169 L.Ed.2d 445 (2007). We first review whether the
district court committed a procedural error, such as incorrectly calculating the
Guidelines, treating the Guidelines as mandatory, failing to consider the § 3553(a)
factors, imposing a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence. Id. at ___, 128 S. Ct. at 597. The district
court’s application of the Guidelines “may be based on undisputed statements in
the PSI.” United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006).
If there are no procedural errors, we “then consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.”
Gall, 552 U.S. at ___, 128 S. Ct. at 597. This review involves inquiring whether
the § 3553(a) factors supported the sentence and justified any deviation from the
defendant’s sentencing range. Id. at ___, 128 S. Ct. at 600.
The factors presented in § 3553(a) include:
11
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to avoid
unwanted sentencing disparities; and (10) the need to provide restitution
to victims.
Talley, 431 F.3d at 786; 18 U.S.C. § 3553(a). However, the district court is not
required to discuss each individual factor when determining a sentence. United
States v. Scott, 426 F.3d 1324, 1329-30 (11th Cir. 2005). Even if we disagree
with the weight a district court accords to any given 3553(a) factor, we will not
reverse a procedurally proper sentence unless we are left with the firm conviction
that the court committed “a clear error of judgment” in weighing the factors.
United States v. McBride, 511 F.3d 1293, 1297 (11th Cir. 2007) (internal
quotations and citation omitted). A defendant challenging his sentence bears the
burden of establishing that it is unreasonable. Talley, 431 F.3d at 788.
Walton raises three arguments: the district court did not adequately take into
account the § 3553(a) factors, Walton’s prior criminal history did not warrant a
career offender enhancement, and the court failed to consider any mitigating
circumstances. Having reviewed the record and the briefs of the parties, we
12
discern no error with respect to Walton’s sentence. The district court expressly
stated that it considered the statutory factors and provided a detailed explanation
of the basis of its sentence. Similarly, the court took into account the nature of
Walton’s prior criminal acts and found that it was appropriate to categorize
Walton as a career criminal. Finally, the district court stated that it considered the
presentence report, which discusses all of the mitigating circumstances that
Walton sets forth on appeal. Based on the foregoing, the district court did not err
in sentencing Walton to 300 months of incarceration. Gall, 552 U.S. at __, 128 S.
Ct. at 597.
Accordingly, we affirm Walton’s convictions and aggregate sentence.
AFFIRMED.4
4
Appellant’s request for oral argument is denied.
13