from the United States District Court for the Eastern
District of Texas
JOLLY, SMITH, and GRAVES, Circuit Judges.
E. SMITH, Circuit Judge:
Bams appeals his convictions of conspiracy to possess with
intent to distribute cocaine and use of an interstate
facility in aid of racketeering. He contends that certain
evidence should have been suppressed and that there was
insufficient evidence for conviction. He also raises various
challenges to his sentence. Because we find no reversible
error, we affirm.
and Frederick Mitchell were stopped by Officer Dale Baggett
in Nacogdoches County, Texas, for speeding. Bams was the
driver, and when Baggett approached the vehicle, he detected
a strong odor of marihuana and saw that Bams's eyes were
bloodshot. Baggett asked Bams and Mitchell about their travel
plans, and they gave conflicting answers. He asked Mitchell
whether there was any contraband in the car, and Mitchell
said no. Baggett then asked whether there was any luggage,
and Mitchell said he had a blue duffel bag and Bams had an
orange Nike bag, both of which were in the trunk. After a
search of the vehicle, Baggett found the bags Mitchell had
described and discovered five plastic bags of cash in them.
The currency had been separated into stacks wrapped by rubber
bands. Mitchell stated that the money was his but that he was
unsure how much there was. A later count established $253,
and Mitchell were arrested for money laundering, and the cash
was seized. Several days later, the district attorney reached
a settlement with Bams and Mitchell, whereby they agreed to
forfeit $100, 000 of the seized cash; the county returned the
remaining currency to them. That returned money was
ultimately deposited into an account owned by Bams.
weeks later, Bams and Mitchell were stopped by Officer Adam
Pinner in Arkansas for making an unsafe lane change. Bams was
driving the vehicle, which was registered to him, and
Mitchell was the only passenger. When Pinner asked Bams for
his license, he noticed that Bams's hands were shaking
and that he appeared nervous. Pinner also saw that one of the
rear quarter panels appeared to have been tampered with, that
there was a single key in the ignition, and that there were
energy drinks in the vehicle. Pinner testified that those
observations were consistent with drug trafficking. After
receiving consent from Bams, Pinner searched the vehicle and
found ten kilograms of cocaine concealed within two false
compartments in the rear quarter panels.
and Mitchell were indicted for (1) conspiracy to possess with
intent to distribute cocaine hydrochloride, in violation of
21 U.S.C. § 846, and for (2) use of an interstate
facility in aid of racketeering, in violation of 18 U.S.C.
§§ 2 and 1952(a)(3). Bams moved to suppress
evidence obtained from the Arkansas traffic stop, and the
district court denied the motion. After a four-day jury
trial, Bams was convicted of both counts.
presentence report ("PSR") classified Bams as a
career offender and thus calculated his offense level as 37
and his criminal-history category as VI, yielding a guideline
range of 360 months to life. U.S. Sentencing Guidelines
Manual ("U.S.S.G.") Ch. 5, Pt. A (Sentencing
Table). The PSR recommended 360 months for the Section 846
conviction and 60 months for the Section 1952
conviction. The district court accepted the PSR in its
entirety but granted Bams's motion for a downward
departure, sentencing Bams to 240 months on the first count
and 60 months on the second, to run concurrently.
contends that the district court erred in denying his motion
to suppress evidence obtained from the Arkansas stop.
"In reviewing a district court's denial of a motion
to suppress, we review the district court's findings of
fact for clear error and its conclusions of law de
novo." "In reviewing findings of fact, we
view the evidence in the light most favorable to the party
prevailing below, which in this case is the Government."
Id. When determining reasonable suspicion, "we
must 'give due weight to inferences drawn from those
facts by resident judges and local law enforcement
analyze the constitutionality of a traffic stop using the
two-step inquiry set forth in Terry v. Ohio, 392
U.S. 1 (1968)." Andres, 703 F.3d at 832
(citation partially omitted). At the first step, "we
determine whether the stop was justified at its
inception." Id. "For a traffic stop to be
justified at its inception, an officer must have an
objectively reasonable suspicion that some sort of illegal
activity, such as a traffic violation, occurred, or is about
to occur, before stopping the vehicle." Id.
Reasonable suspicion can rest upon a mistake of law or fact
if the mistake is objectively reasonable. Assuming the stop
was justified, we move to the second step, where we determine
"whether the officer's subsequent actions were
reasonably related in scope to the circumstances that
justified the stop of the vehicle in the first place."
Id. (quotation marks omitted). "A traffic stop
must be temporary and last no longer than is necessary to
effectuate the purpose of the stop, unless further reasonable
suspicion, supported by articulable facts, emerges."
Id. (quotation marks omitted).
challenges the Arkansas stop on both prongs of
Terry. Each of those challenges fails.
first prong, Bams maintains that Pinner did not have
reasonable suspicion that Bams had engaged in any illegal
activity. The government counters that Pinner had reasonable
suspicion to stop Bams because he had violated Ark. Code Ann.
§ 27-51-306. That statute provides, in relevant part,
that "[t]he driver of a vehicle overtaking another
vehicle proceeding in the same direction shall pass to the
left at a safe distance and shall not again drive to the
right side of the roadway until safely clear of the overtaken
vehicle." According to Pinner, Bams passed a
tractor-trailer on the left side of the road and returned to
the right side when he was only fifty feet in front of the
tractor-trailer, which Pinner believed was insufficient to be
"safely clear" of the truck. He based that belief
on Ark. Code Ann. § 27-51-305, which prohibits
tractor-trailers from following within two hundred feet of
another motor vehicle. He testified that "if the
violator vehicle had to come to a stop for some unknown
reason, something in the traffic lanes or something, then the
large truck would not have time to come to a stop and would
rear-end the vehicle, which I see to be unsafe."
does not dispute Pinner's description of the events.
Instead, he disagrees with Pinner's interpretation of the
Arkansas court has construed the meaning of "safely
clear" in Section 27-51-306. But even assuming that
Pinner's interpretation were incorrect, his understanding
was "objectively reasonable." Heien, 135
S.Ct. at 536. Section 27-51-306 does not provide a precise
number of feet. That imprecision is presumably by design,
since the "safe" distance may vary depending on the
relative speeds of the vehicles, road conditions, and the
like. The statute appears to leave to the officer the task of
deciding when a vehicle is "safely clear." In any
event, Pinner did not base his belief merely on his
experience; he also considered Section 27-51-305, which does
provide a specific distance: two hundred feet. Given that
Bams was overtaking a tractor-trailer, Pinner could
reasonably use Section 27-51-305 to inform the meaning of
counterarguments are unavailing. First, he points to other
Arkansas statutes that require overtaken vehicles to yield to
overtaking vehicles and for overtaking vehicles to return to
the right lane within one hundred feet of a vehicle
approaching from the opposite direction. See Ark.
Code Ann. §§ 27-51-306(2) and 307. But those
provisions have no relevance to the meaning of "safely
clear." Second, he suggests that the statute cannot mean
what Pinner says because it would then "impose a burden
on a lane-changing driver to be able to approximately
estimate the distance between him and the car behind
him." But that is exactly what Section
27-51-306 requires; drivers must determine whether there is
sufficient distance to be "safely clear." Finally,
Bams asserts that Pinner stopped him based on his race. But
the "subjective motivations of police are deemed
irrelevant as long as their conduct does not exceed what they
are objectively authorized to do."
additionally claims that the stop, even if initially
justified, does not pass muster under the second prong of
Terry. But his challenge is narrow. He concedes that
he consented to a search and does not dispute that his
consent was voluntary. Instead, he argues that,
before his giving consent, Pinner had unreasonably
prolonged his detention without reasonable suspicion, thus
tainting his consent.
incorrect. He relies on United States v. Dortch, 199
F.3d 193 (5th Cir. 1999), United States v. Santiago,
310 F.3d 336 (5th Cir. 2002), and United States v.
Jenson, 462 F.3d 399 (5th Cir. 2006), but those cases
are inapposite. In each of them, we held that a detention had
been unnecessarily prolonged because the officers had
detained a vehicle after the computer checks were
concluded-thus terminating the reasonable suspicion that had
initially justified the traffic stop-and before
additional reasonable suspicion arose. Here, in contrast, Pinner had reasonable
suspicion, before the computer check ended, that
Bams was trafficking drugs. When he approached the vehicle,
Pinner observed that (1) Bams's hands were shaking and ...