[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________            FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-13423         ELEVENTH CIRCUIT
                                                        JULY 26, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                           CLERK

                  D. C. Docket No. 08-00251-CR-T-30TBM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

ANTWAN BOYD,

                                                          Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                                (July 26, 2010)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

     Antwan Boyd appeals his conviction and life sentence for possession with
intent to distribute 50 or more grams of crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(A), and his conviction and concurrent 120-month sentence

for being a felon in possession of a firearm and ammunition, in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2). After review, we affirm.

                            I. BACKGROUND FACTS

A.    Offense Conduct

      The Hillsborough County Sheriff’s Office (“HCSO”) received an

anonymous tip that Defendant Boyd had five kilograms of cocaine and a gun and

was driving around in a black truck. The caller gave an address where Boyd could

be found. HCSO officers began surveillance on the residence and observed a black

truck parked in the carport. When Boyd was seen leaving the residence in a green

car, HCSO’s Sergeant James Mosher, among others, followed Boyd but did not

stop him because they believed they did not have probable cause.

      Later, as officers watched, Boyd returned to his residence and briefly

accessed the black truck. Shortly thereafter, Boyd left as a passenger in a red car.

Sergeant Mosher again followed Boyd and this time executed a traffic stop after

seeing that part of the red car’s license plate and decal registration were obscured

by the license plate frame, in violation of Florida law.

      The driver was unable to produce a license, insurance or registration for the



                                           2
car and admitted to Sergeant Mosher that his license was suspended. When asked

separately, the driver and Defendant Boyd each indicated that the car belonged to

their respective girlfriends. Boyd gave Sergeant Mosher his girlfriend Valarie

Guy’s telephone number to confirm her ownership.

      After determining that Valarie Guy was the car’s registered owner, Sergeant

Mosher called Guy. Guy told Sergeant Mosher that Boyd had possessed the car for

“at least a month.” When Sergeant Mosher asked, Guy admitted that, although she

had not yet reported the theft, Boyd had stolen her car. Guy also admitted that she

had provided the earlier anonymous tip to police about Boyd’s drug activities.

Guy said she had seen Boyd earlier that day with five kilograms of crack cocaine

and a handgun and that officers would find these items in a gray Gucci bag with a

red and blue striped handle either in Boyd’s vehicle or at his house. Sergeant

Mosher arrested the driver of the red car and Defendant Boyd for possession of a

stolen vehicle. During the arrest, Sergeant Mosher recovered the key to the black

truck parked outside Boyd’s residence.

      HCSO officers at Boyd’s residence, spoke to Boyd’s aunt, who owned the

home, and she consented to a search of the house and cars, although she stated that

she did not know who owned the black truck. Deputy Brian Bennett looked

through the window of the black truck and saw on the front seat a gray Gucci bag



                                          3
with a blue and red handle. A narcotics dog “alerted” to the presence of drugs at

the passenger side door of the black truck. Sergeant Mosher arrived with the key

taken from Boyd after his arrest and opened the black truck. The dog alerted on

the gray Gucci bag. Inside the bag, Deputy Bennett found 959.6 grams of crack

cocaine, an electronic scale and a gun. Officers also found in the black truck

registration paperwork indicating Defendant Boyd was the owner. In a white car

parked in front of the black truck, officers found a box of ammunition suitable for

a .45 automatic.

B.    Pre-Trial and Trial Proceedings

      A federal grand jury indicted Boyd with possessing with intent to distribute

50 grams of crack cocaine and being a felon in possession of a firearm and

ammunition. On June 18, 2008, prior to trial, the government filed an information

pursuant to 21 U.S.C. § 851 that it would rely on Boyd’s two previous state felony

convictions to seek the statutory mandatory minimum life sentence in 21 U.S.C.

§ 841(b)(1)(A). The § 851 information listed two 1995 Florida drug convictions–

for felony delivery and felony possession of cocaine–and a 2003 Florida conviction

for felony possession of cannabis.

      Boyd moved to suppress all the evidence found on his person and in his

truck, arguing that the traffic stop, his arrest and search of his truck were all



                                            4
unlawful. After an evidentiary hearing, the district court denied Boyd’s motion to

suppress.

      At trial, the government presented the testimony of Sergeant Mosher and

Deputy Bennett, among others, who testified about the investigation and arrest of

Boyd. The jury found Boyd guilty on both counts. Boyd filed a motion for a new

trial arguing that the district court erred in denying his motion to suppress. Boyd

pointed to evidence that Sergeant Mosher had inaccurately testified at the

suppression hearing that he did not arrest Boyd until after his girlfriend, Guy,

signed an affidavit swearing that Boyd had stolen her car. After a hearing, the

district court denied Boyd’s motion for a new trial.

C.    Sentencing

      The Presentence Investigation Report (“PSI”) recommended a base offense

level of 37, pursuant to U.S.S.G. § 4B1.1(a), (b)(A), because Boyd was a career

offender and faced a statutory mandatory minimum life sentence. With a criminal

history category of VI, the PSI calculated Boyd’s initial advisory guidelines range

as 360 months’ to life imprisonment. However, the PSI noted that, pursuant to

U.S.S.G. § 5G1.1(c)(2), Boyd’s advisory guidelines sentence became life

imprisonment due to his statutory mandatory minimum life sentence under 21

U.S.C. § 841(b)(1)(A).



                                           5
      Boyd filed objections to the PSI, arguing, inter alia, that (1) he was not

subject to § 841(b)(1)(A)’s mandatory life sentence because (a) his 2003

conviction for cannabis possession was not a felony and (b) his 2003 cannabis

possession conviction was invalid because his counsel was ineffective and his due

process rights were violated; and (2) a life sentence was cruel and unusual

punishment under the Eighth Amendment.

      At sentencing, the government submitted certified copies of Boyd’s two

prior felony convictions. Boyd submitted copies of his 2003 plea form, sentencing

score sheet and plea colloquy. These documents reflect that Boyd was sentenced

on May 29, 2003 for the 2003 cannabis conviction. The district court heard

testimony from Boyd’s counsel who had represented Boyd during his 2003 guilty

plea to cannabis possession. Boyd’s counsel testified that the state court judge

made it clear to Boyd that he was pleading guilty to a felony offense.

      The district court determined that Boyd’s 2003 cannabis possession

conviction was a valid conviction of record. Because Boyd’s conviction was more

than five years old and Boyd was represented by counsel at the time of his 2003

guilty plea, the district court concluded that it was not entitled to consider the

validity of the state court judgment. The district court overruled Boyd’s Eighth

Amendment objection to his mandatory life sentence. The district court adopted



                                            6
the findings and calculations in the PSI and sentenced Boyd to life imprisonment

for the crack cocaine offense and to a concurrent 120-month sentence on the

firearm offense. Boyd filed this appeal.

                                 II. DISCUSSION

      On appeal, Boyd raises several arguments that are clearly without merit,

which we address only briefly. First, the district court did not err in denying

Boyd’s motion for a new trial. Boyd’s allegedly newly discovered evidence that

Sergeant Mosher testified falsely at the suppression hearing as to whether he

arrested Boyd before or after his girlfriend Guy signed the affidavit was merely

impeachment evidence and not likely to lead to a different result. See United

States v. Thompson, 

, 1294 (11th Cir. 2005).

      Second, the district court correctly concluded that Boyd’s challenge to his

2003 cannabis conviction listed in the government’s § 851 information was time-

barred. A defendant cannot challenge the validity of a prior conviction that

“occurred more than five years before the date of the information alleging such

prior conviction.” 21 U.S.C. § 851(e). Boyd conceded that his May 29, 2003

cannabis conviction occurred more than five years before the government filed its

§ 851 information on June 18, 2008.

      Third, under our binding precedent, Boyd’s mandatory life sentence under



                                           7
§ 841(b)(1)(A) does not violate the Eighth Amendment’s prohibition of cruel and

unusual punishment. See United States v. Willis, 

, 251 (11th Cir.

1992); see also United States v. Castaing-Sosa, 

, 1362 (11th Cir.

2008) (explaining that, even after United States v. Booker, 

, 

(2005), district courts are bound by statutory mandatory minimums).

       Boyd’s arguments regarding his motion to suppress and sufficiency of the

evidence merit a bit more discussion.

A.     Motion to Suppress

       Boyd argues that the district court should have granted his motion to

suppress on several grounds.1 Because a district court’s denial of a motion to

suppress is a mixed question of law and fact, we review the legal rulings de novo

and the findings of fact for clear error. United States v. Lindsey, 

,

1290 (11th Cir. 2007). In so doing, we view the facts “in the light most favorable

to the prevailing party in [the] district court.” 

contends Sergeant Mosher’s traffic stop was a pretext. A traffic

stop is reasonable under the Fourth Amendment when an officer has either

       1
        Boyd argues that the ammunition found in the white car parked at his aunt’s house
should have been suppressed. Because Boyd did not raise this issue in his motion to suppress,
we review only for plain error. See United States v. Young, 

, 1305 (11th Cir.
2003) (applying plain error review where defendant failed to raise ground in motion to suppress).
Any error in the admission of the ammunition did not affect Boyd’s substantial rights given that
his convictions were based overwhelmingly on the gun and drugs recovered from his black
truck.

                                                8
probable cause or a reasonable suspicion to believe that a traffic violation occurred.

United States v. Spoerke, 

, 1248 (11th Cir. 2009). “Subjective

intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”

Whren v. United States, 

, 813, 

, 1774 (1996); United

States v. Holloman, 

, 194 (11th Cir. 1997) (stating that Whren

“squarely rejected the pretextual stop analysis” and that an officer’s “ulterior

motives” for a stop are not relevant so long as it is justified by probable cause).

       Here, Sergeant Mosher had probable cause to believe the red car in which

Boyd was riding violated Florida Statutes § 316.605(1). Section 316.605(1)

requires “all letters, numerals, printing, writing, and other identification marks . . .

regarding the word ‘Florida’” as well as the “registration decal, and the

alphanumeric designation” on a license plate to be “clear and distinct and free from

. . . obscuring matter, so that they will be plainly visible and legible at all times 100

feet from the rear or front.” Fla. Stat. § 316.605(1).2 Sergeant Mosher testified,

and Boyd does not dispute, that the yellow registration decal on the red car’s

license plate was obscured by the vanity frame, a violation of § 316.605(1).3 The

       2
        We decline to address Boyd’s argument as to the constitutionality of § 316.605 because
Sergeant Mosher’s good-faith reliance on the statute’s validity was objectively reasonable. See
United States v. Steed, 

, 969-10 (11th Cir. 2008) (citing Illinois v. Krull, 

, 

(1987)).
       3
      Boyd relies on State v. St. Jean, 

, 957 (Fla. Dist. Ct. App. 1997).
However, St. Jean involved a license plate frame that obscured the county name on a license

                                                9
fact that Sergeant Mosher may have had other reasons for stopping the red car does

not render the stop unreasonable under the Fourth Amendment.

       Boyd also argues that after the traffic stop Sergeant Mosher did not have

probable cause to arrest him for grand theft auto and thus a proper basis for the

search incident to his arrest. Law enforcement may search a person without a

warrant incident to a lawful arrest. United States v. Lyons, 

, 1253

(11th Cir. 2005). “Probable cause to arrest exists when law enforcement officials

have facts and circumstances within their knowledge sufficient to warrant a

reasonable belief that the suspect had committed or was committing a crime.”

United States v. Gordon, 

, 758 (11th Cir. 2000) (quotation marks

omitted). The arrest must be objectively reasonable under the totality of the

circumstances. 

. “[S]ufficient probability, not certainty, is

the touchstone of reasonableness . . . .” Craig v. Singletary, 

, 1042

(11th Cir. 1997).

       Boyd focuses on the fact that Sergeant Mosher arrested Boyd before Boyd’s

girlfriend, Guy, had signed an affidavit swearing that Boyd had stolen her car.

However, even without the affidavit, Sergeant Mosher had probable cause to arrest

Boyd for grand theft auto. When Sergeant Mosher stopped the red car in which


plate, not the registration decal, and thus does not support a conclusion that Sergeant Mosher did
not have probable cause to believe the car violated § 316.605(1).

                                                10
Boyd was riding, the driver and Boyd gave conflicting and undocumented stories

about its ownership. Boyd insisted that the car belonged to his girlfriend, Guy, and

gave Sergeant Mosher Guy’s phone number. After Sergeant Mosher confirmed

Guy was the red car’s registered owner, he spoke to Guy, who told him that Boyd

had stolen the red car and had possessed it for at least a month. These

circumstances were sufficient to give rise to an objectively reasonable belief that

Boyd committed grand theft of Guy’s red car. Therefore, Sergeant Mosher’s

search of Boyd’s person was incident to his lawful arrest.

      Finally, Boyd contends that the warrantless search of his black truck was

unlawful because it did not fall within the automobile exception. The automobile

exception to the warrant requirement “allows the police to conduct a search of a

vehicle if (1) the vehicle is readily mobile; and (2) the police have probable cause

for the search.” 

. The mobility requirement is satisfied

if “the automobile is operational.” United States v. Watts, 

, 1286

(11th Cir. 2003). Probable cause exists to search a car without a warrant if a drug

dog alerts to drugs in the car. 

in the record suggests the black truck was inoperable. Law

enforcement received an anonymous tip earlier that day that Boyd was driving the

truck. When Deputy Bennett observed the truck, which was relatively new, it was



                                          11
parked at Boyd’s residence. While Deputy Bennett was conducting surveillance,

Boyd accessed the truck using a keyless entry. Although the truck’s driveway

access to the street was blocked by a white car, Deputy Bennett testified the truck

could have reached the street by driving through the front yard. After searching

the truck, Deputy Bennett used the keys to move the truck.

      In addition, a drug dog alerted to the presence of drugs in the truck, giving

Deputy Bennett probable cause to search the truck. Accordingly, the automobile

exception applied, and Deputy Bennett did not need a warrant to search the truck.

For all these reasons, we find no error in the district court’s denial of Boyd’s

motion to suppress.

B.    Sufficiency of the Evidence

      Boyd challenges the sufficiency of the evidence on both counts. Normally,

we review the sufficiency of the evidence de novo. United States v. Gupta, 

, 1193 (11th Cir. 2006). However, where, as here, the defendant failed to

move for a judgment of acquittal at the close of the evidence, we will set aside a

conviction only if we find a manifest miscarriage of justice. United States v.

Edwards, 

, 755-56 (11th Cir. 2008). A manifest miscarriage of justice

occurs when “the evidence on a key element of the offense is so tenuous that a

conviction would be shocking.” 

the sufficiency of the evidence,



                                          12
we consider “the evidence in the light most favorable to the government.” United

States v. Garcia, 

, 1269 (11th Cir. 2005).

       To convict a defendant under 21 U.S.C. § 841(a)(1), the government must

prove “(1) knowing (2) possession of a controlled substance (3) with intent to

distribute it.” United States v. Farris, 

, 395 (11th Cir. 1996).

Knowledge, possession, and intent can be proved by direct or circumstantial

evidence. United States v. Poole, 

, 1391-92 (11th Cir. 1989).

“Constructive possession is sufficient for the possession element, and can be

established by showing ownership or dominion and control over the drugs or over

the premises on which the drugs are concealed.” 

       To convict a defendant for being a felon in possession of a firearm or

ammunition under 18 U.S.C. § 922(g)(1), the government must show that “the

defendant was (1) in knowing possession of a firearm, (2) a convicted felon, and

(3) that the firearm affected interstate commerce.” United States v. Glover, 

, 748 (11th Cir. 2005).4 As with a § 841 drug offense, knowing

possession under § 922(g)(1) can be established through proof of constructive

possession. 

proves constructive possession by showing the

defendant had “ownership, dominion, or control over the firearm.” 

        The parties stipulated that Boyd was a convicted felon and that the firearm in the black
truck and the ammunition in the white car had traveled in interstate commerce.

                                                13
marks omitted).

       Boyd argues that the government failed to present sufficient evidence that he

knowingly possessed either the crack cocaine or the gun. We disagree. Viewing

the evidence in the light most favorable to the government and the jury’s verdict, a

reasonable jury could have found beyond a reasonable doubt that Boyd

constructively possessed the gun and the drugs.

       The trial evidence showed that the gun and drugs were found in a bag sitting

on the front seat of Boyd’s truck. During surveillance earlier that day, Boyd was

seen accessing the truck and moving several objects around. Boyd had the keys to

the truck on his person at the time of his arrest. Officers also found paperwork,

including a purchase agreement, inside the truck indicating that Boyd was the

truck’s owner. These circumstances are sufficient for a reasonable jury to find that

Boyd had dominion and control over the crack cocaine and the firearm.5

Therefore, we find no miscarriage of justice.

       For all these reasons, we affirm Boyd’s convictions and sentences.

       AFFIRMED.


       5
        Because there was ample evidence from which a jury could find that Boyd knowingly
possessed the firearm, we need not address whether the government also presented sufficient
evidence that Boyd possessed the ammunition. See 18 U.S.C. § 922(g) (making it a crime for a
convicted felon to possess either a “firearm or ammunition”); Castle v. United States, 

, 660 (5th Cir. 1961) (explaining that all that needs to be proved is a violation of the statute
and any other allegations in the indictment may be regarded as mere surplusage).

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