United States v. Cody Eugene Mobley

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-12794
Non-Argument Calendar
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D.C. Docket No. 2:18-cr-00327-MHT-SRW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CODY EUGENE MOBLEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(April 6, 2020)
Before WILSON, BRANCH, and FAY, Circuit Judges.
PER CURIAM:
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Cody Mobley appeals the district court’s denial of his motion to suppress, as
well as his consecutive 30-year sentence for possession of a firearm silencer under
18 U.S.C. § 924(c)(1)(B)(ii). On appeal, Mobley argues that the district court
erred in denying his motion to suppress, because the police engaged in an illegal
search violating his Fourth Amendment rights, and because neither the automobile
nor inevitable-discovery exception applied. Mobley also argues that his 30-year
consecutive sentence for possessing a firearm silencer violates the Eighth
Amendment’s prohibition on cruel and unusual punishment as applied. For the
following reasons, we affirm.
I
“A district court’s ruling on a motion to suppress presents a mixed question
of law and fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999).
We review the district court’s factual findings for clear error. Id. “[A]ll facts are
construed in the light most favorable to the prevailing party below.” United States
v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000). The district court’s application
of the law to the facts is reviewed de novo. Id. “[W]e may affirm the denial of a
motion to suppress on any ground supported by the record.” United States v.
Caraballo, 595 F.3d 1214, 1222 (11th Cir. 2010). We have made clear that “[t]he
individual challenging the search bears the burdens of proof and persuasion.”
United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998). However, if “it is
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established that the government conducted an unlawful search,” the government
bears the burden “to show that [the] evidence was not obtained as a direct result of
the illegal search.” United States v. Crosby, 739 F.2d 1542, 1549 (11th Cir. 1984).
Even if the government conducted a warrantless search of Mobley’s car, the
Fourth Amendment’s warrant requirement is subject “to a few specifically
established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347,
357 (1967). One is the “automobile exception.” Maryland v. Dyson, 527 U.S.
465, 466 (1999) (per curiam). “If a car is readily mobile and probable cause exists
to believe it contains contraband, the Fourth Amendment permits police to search
the vehicle without more.” Id. at 467 (alteration adopted). Underlying a probable
cause determination is a totality-of-the-circumstances analysis. Illinois v. Gates, 462
U.S. 213, 238 (1983). On appeal, we review to ensure that there was a “substantial
basis” for concluding that, under the circumstances, there was “a fair probability that
contraband . . . will be found in a particular place.” Id. at 238–39.
Here, the district court did not err in concluding that the automobile
exception applied. To start, nothing suggests that the magistrate judge clearly
erred in finding that Mobley’s car—a Tahoe—was operational and therefore
“readily mobile.” And there was a substantial basis for concluding that there was a
fair probability that drugs and/or firearms would be found in the Tahoe. An officer
testified that (1) Mobley arrived at one of the controlled buys in the Tahoe; (2) a
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confidential informant told the police that he twice saw Mobley exiting the car
with a firearm in his waistband at controlled buys; and (3) drug traffickers
commonly keep firearms in their cars. So the district court did not err in denying
the motion to suppress on this basis.
But even if the district court did err in applying the automobile exception, it
also correctly denied the motion to suppress based on the exception to the
exclusionary rule for inevitable discovery. See United States v. Johnson, 777 F.3d
1270, 1274 (11th Cir. 2015). Under that exception, “the government may
introduce evidence that was obtained by an illegal search if the government can
establish a reasonable probability that the evidence in question would have been
discovered by lawful means” that it was actively pursuing before the illegal search.
Id. (internal quotation mark omitted). The government must show the exception’s
applicability “by a preponderance of the evidence” using “demonstrated historical
facts.” United States v. Terzado-Madruga, 897 F.2d 1099, 1114 (11th Cir. 1990).
In this case, the government invoked forfeiture as its path to inevitable
discovery. “All conveyances, including . . . vehicles, . . . which are used . . . in any
manner to facilitate the transportation, sale, receipt, possession, or concealment” of
illegally manufactured, distributed, dispensed, or acquired controlled substances
are subject to forfeiture to the United States. 21 U.S.C. § 881(a)(4). So too are
“all proceeds traceable to . . . an exchange [for a controlled substance].” Id.
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§ 881(a)(6). The government may seize that property in the manner set forth in 18
U.S.C. § 981(b). 21 U.S.C. § 881(b). Per § 981(b), warrantless seizure is
permissible if “there is probable cause to believe that the property is subject to
forfeiture and . . . the seizure is made pursuant to a lawful arrest or search.” 18
U.S.C. § 981(b)(2)(B)(i).
In this context, “[p]robable cause exists when the United States has
reasonable grounds to believe that there is a substantial connection between the
property charged and specific transactions involving illicit drugs.” Nnadi v. Richter,
976 F.2d 682, 686 (11th Cir. 1992). Though an indirect connection will suffice, “a
car is considered directly involved when it is used to transport an individual to the
place where a drug transaction takes place even though it is not used to transport
drugs or money.” Id.
Here, the district court did not err by applying the inevitable-discovery
exception. Evidence showed that there was a reasonable probability that the
evidence would have been discovered by lawful forfeiture seizure of the Tahoe that
the government was actively pursuing before the illegal search. The authorities
had evidence of the Tahoe’s use in facilitating Mobley’s drug trafficking:
Surveillance showed that Mobley drove it to a controlled buy. Beyond that, the
authorities also had reason—if a bit more tenuous—to believe that Mobley had
access to the Tahoe from proceeds of drug trafficking because Mobley was not
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otherwise lawfully employed. Though the government did not show that Mobley
had bought the car, it did show that he possessed the Tahoe for over two months
before the search. As for active pursuit, an officer testified that, before the search,
the authorities had discussed the Tahoe’s seizure due to its connection to Mobley’s
drug trafficking and then, on the day of the search, they in fact seized the Tahoe
and performed an inventory search. Other officers corroborated this testimony. So
the district court did not clearly err in finding that the plan to seize the Tahoe
predated the search. Therefore, the district court did not err in denying the motion
to suppress on this basis. 1 Accordingly, we affirm as to this issue.
II
We review de novo a defendant’s challenge to the constitutionality of his
sentence. United States v. Sanchez, 586 F.3d 918, 932 (11th Cir. 2009).
The Eighth Amendment provides, among other things, that cruel and
unusual punishments shall not be inflicted. U.S. Const. amend. VIII. In examining
an Eighth Amendment claim in a non-capital case, we follow a two-part test:
(1) “we determine whether the sentence is grossly disproportionate to the offense
committed”; and (2) if so, “we then consider sentences imposed on others
convicted of the same crime.” United States v. Suarez, 893 F.3d 1330, 1336 (11th
1
To the extent that Mobley argues that his incriminating statements were also inadmissible, this
argument fails because, as discussed, the evidence recovered from the Tahoe was admissible.
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Cir. 2018) (internal quotation mark omitted), cert. denied, 139 S. Ct. 845 (2019).
The defendant bears the burden of making that first showing. United States v.
Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (per curiam). As recently as 2018,
we observed that “it appears we have never held that a non-capital sentence for an
adult has violated the Eighth Amendment.” Suarez, 893 F.3d at 1336.
“Generally, sentences within the statutory limits are neither excessive, nor
cruel and unusual under the Eighth Amendment,” because we “accord substantial
deference” to Congress’s “broad authority to determine the types and limits of
punishments for crimes.” United States v. Bowers, 811 F.3d 412, 432 (11th Cir.
2016). In this case, Congress has set the punishment for possession of a firearm
equipped with a silencer in connection with a drug-trafficking crime at minimum
30 years’ imprisonment. 18 U.S.C. § 924(c)(1)(B)(ii). We have held that a 30-
year statutory mandatory-minimum sentence under § 924(c)(1)(B)(ii) for “the
serious nature of” possession of a machine gun in furtherance of a drug-trafficking
crime was not grossly disproportionate to the offense, because the defendant there
attempted to possess and distribute a large quantity of drugs “and equipped himself
with tools for violence.” United States v. Haile, 685 F.3d 1211, 1214–15, 1222
(11th Cir. 2012) (per curiam).
Here, Mobley fails to carry his burden to show that his sentence is grossly
disproportionate to his offense conduct. First, he argues that the authorities found
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an unattached silencer in an unoccupied vehicle. But a silencer need not be
attached to a firearm at the time the firearm was found for § 924(c)(1)(B)(ii) to
apply. See United States v. Charles, 469 F.3d 402, 407–08 (5th Cir. 2006), cert.
denied, 549 U.S. 1273 (2007). Second, Mobley argues that he did not act violently
and that there are no alleged victims related to the silencer. The statute requires
neither of these conditions to apply. Lastly, he argues that Alabama law provides
for legal ownership and use of silencers for hunting. But Mobley’s insinuation that
he could have used the silencer for a valid purpose rings hollow because he was a
convicted felon and does not allege that he could lawfully possess a gun at all,
much less one with a silencer.
Significantly, the district court imposed the mandatory minimum sentence of
30 years, the lowest punishment that Congress gave for this offense. We note also
that Mobley’s conduct is comparable to that in Haile, which in that case justified
the same 30-year sentence under the same statute and did not violate the Eighth
Amendment. Here, Mobley was engaging in ongoing drug trafficking; possessed
substantial drug quantities, multiple weapons, and surveillance equipment; and
carried a weapon during drug transactions. For these reasons, and because Mobley
offers no other bases for concluding that his sentence is grossly disproportionate to
his offense conduct, we cannot conclude that his sentence violated the Eighth
Amendment. Accordingly, we affirm.
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AFFIRMED.
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