Case: 13-10321    Date Filed: 05/21/2014   Page: 1 of 10


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-10321
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 8:11-cr-00578-SCB-TGW-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

FREDERICK L. BURROWS,

                                                            Defendant-Appellant.

                          ________________________

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

                                 (May 21, 2014)

Before HULL, MARCUS, and FAY, Circuit Judges.

PER CURIAM:

      Frederick L. Burrows appeals his conviction and 15-year imprisonment

sentence for possession of a firearm and ammunition by a convicted felon, in
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violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and marijuana possession, in

violation of 21 U.S.C. § 844(a). We affirm.

                                I. BACKGROUND

      In the early morning of August 4, 2011, Corporal Gary Pruitt and Sergeant

Jim Harris of the Tampa Police Department were on foot patrol in a parking lot

near a downtown bar. Corporal Pruitt observed Burrows back into a parking space

away from all other cars in a paid parking lot. Burrows stayed in his car, with the

interior light on, and concentrated on something in his lap. Based on Corporal

Pruitt’s experience, this behavior was consistent with rolling a marijuana cigarette.

After watching Burrows for two to three minutes, Corporal Pruitt and Sergeant

Harris approached Burrows’s car. Burrows looked at the officers, quickly turned

toward the passenger seat, turned off the light, and drove out of the parking lot at a

normal rate of speed. As Burrows exited the parking lot, Corporal Pruitt’s partner

relayed Burrows’s license plate number to other officers.

      Officer Cameron Greene heard the radio description of Burrows’s car and

located it. When Burrows committed a traffic infraction by stopping in a

crosswalk, Officer Greene and his partner stopped him. At Officer Greene’s

request, Burrows showed him a plastic bag that had been partially covered by a t-

shirt on the front seat. There appeared to be four marijuana cigarettes inside the

bag. The officers arrested Burrows, issued him a citation for stopping in a


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crosswalk, and found additional marijuana in Burrows’s pocket. As the officers

took him into custody, Burrows stated a gun was hidden underneath a t-shirt on the

front seat. After being advised of his rights, Burrows claimed the firearm was not

his, but admitted the marijuana belonged to him.

      Burrows was indicted on two counts of possession of a firearm and

ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and

§ 924(e) (Counts 1 and 3), and one count of marijuana possession, in violation of

21 U.S.C. § 844(a) (Count 2). The government thereafter filed a notice of prior

convictions, which stated Burrows had been convicted of possession with intent to

sell cocaine in 1996 and several counts of selling cocaine in 1998.

      Burrows moved to suppress the evidence obtained on August 4, 2011. He

argued there was no evidence he had committed a traffic violation when the

officers stopped his car, and the circumstances did not otherwise give rise to

reasonable suspicion to justify an investigatory stop. The government responded

the officers properly stopped Burrows after they saw him stop his car in a

crosswalk, in violation of Florida law. In addition, the officers had reasonable

suspicion to stop Burrows because of his actions in the parking lot and while he

was leaving it.

      Following a suppression hearing, the district judge denied Burrows’s motion

to suppress. The judge determined the officers were entitled to stop Burrows to


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issue a citation for stopping in a crosswalk. Based on the totality of the

circumstances, the judge alternatively concluded Burrows’s activities in the

parking lot also caused reasonable suspicion to justify an investigatory stop.

Following a jury trial, Burrows was convicted on all three counts, based on the

August 4, 2011, occurrences.

      During Burrows’s sentencing, the government introduced Florida state-court

documents showing (1) in 1996, Burrows pled guilty to possession with intent to

sell cocaine, and (2) in 1998, Burrows pled nolo contendere to five counts of

selling cocaine. The felony information for the 1998 case listed a total of 11

counts, 5 of which charged Burrows with selling cocaine on July 15, 22, 28, and

31, and August 11, 1998. The judgment in that case shows Burrows pled nolo

contendere to all 11 counts in November 1998. Based on these documents, the

district judge concluded Burrows had at least three prior felony controlled-

substance convictions and imposed a 15-year imprisonment sentence, the statutory

minimum under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1).

      On appeal, Burrows challenges the district judge’s denial of his suppression

motion. He contends the judge erred when she concluded (1) his actions in a

parking lot before his stop and arrest caused reasonable suspicion, and (2) officers

alternatively were entitled to stop him when he stopped his car in a crosswalk

before making a right turn. Burrows also argues the district judge improperly


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sentenced him under the ACCA. He contends the government failed to establish

he had at least three prior ACCA-predicate convictions for crimes committed on

separate occasions.

                                 II. DISCUSSION

A. Motion to Suppress

      We review a district judge’s denial of a motion to suppress under a mixed

standard: findings of fact for clear error and application of the law to those facts de

novo. United States v. Gordon, 

, 753-54 (11th Cir. 2000). The

Fourth Amendment protects individuals from unreasonable searches and seizures

by government authorities. United States v. Garcia, 

, 360 (11th Cir.

1989). A traffic stop is constitutional if it is either based on probable cause to

believe a traffic violation has occurred or justified by reasonable suspicion. United

States v. Harris, 

, 1337 (11th Cir. 2008) (per curiam).

      When determining whether reasonable suspicion exists, a judge must review

the totality of the circumstances to ascertain whether officers had a particularized

and objective basis to suspect legal wrongdoing. United States v. Arvizu, 

, 273, 

, 750 (2002). Reasonable suspicion should be examined

from the standpoint of the collective knowledge of all officers involved in a stop,

United States v. Glinton, 

, 1257 (11th Cir. 1998), provided the

officers maintained at least a minimal level of communication during their


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investigation, United States v. Willis, 

, 1494 (11th Cir. 1985). Flight

from law enforcement is a relevant factor in determining whether reasonable

suspicion exists. See 

.

      Under Florida law, “[e]xcept when necessary to avoid conflict with other

traffic, or in compliance with law or the directions of a police officer or official

traffic control device, no person shall [s]top, stand, or park a vehicle . . . [o]n a

crosswalk.” Fla. Stat. § 316.1945(1)(a)(4). Florida law also authorizes a law

enforcement officer to arrest a person who has violated § 316.1945 without a

warrant. See Fla. Stat. § 901.15(5).

      The plain language of § 316.1945 unambiguously proscribes stopping in a

crosswalk, with exceptions not applicable to this case. Upon seeing Burrows stop

in a crosswalk, the officers lawfully could detain him. See Fla. Stat.

§§ 316.1945(1)(a)(4), 901.15(5); 

. The Florida cases cited

by Burrows in support of his argument, that pedestrians or other traffic must have

been affected by his actions to justify the traffic stop, involved statutes that

contained express language referring to other conditions, unlike § 316.1945. See

State v. Riley, 

(Fla. 1994) (addressing a statute requiring the use of

a turn signal “in the event any other vehicle may be affected by the movement”

(citation and internal quotation marks omitted)); Crooks v. State, 

(Fla. Dist. Ct. App. 1998) (addressing a statute prohibiting changing lanes “until


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the driver has first ascertained that such movement can be made with safety”

(citation and internal quotation marks omitted)). Section 316.1945 contains neither

of the types of express conditions present in those cases. Accordingly, the officers

properly stopped Burrows for stopping in a crosswalk.

      Reasonable suspicion justifying an investigatory stop also was present based

on the totality of the circumstances surrounding Burrows’s previous activities in

the parking lot. See 

, 122 S. Ct. at 750; 

. Corporal Pruitt saw Burrows, early in the morning in a high-crime area,

park away from all other cars in a paid parking lot, stay in his car, act in a way that

was consistent with rolling a marijuana cigarette, and deliberately depart upon

seeing the officers. These facts caused an objective, particularized basis to suspect

Burrows possessed marijuana. See 

, 122 S. Ct. at 750;

.

      In reaching the conclusion that reasonable suspicion supported an

investigatory stop, the district judge did not err in assessing the collective

knowledge of all officers at the time when Officer Greene apprehended Burrows

for stopping in a crosswalk. See Glinton, 

, 1257; 

; see also United States v. Kapperman, 

, 790-91 & n.5 (11th Cir.

1985) (explaining, regardless of whether the arresting officer knew all facts known

to other officers, the officers’ collective knowledge created probable cause to


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arrest, and the arresting officer was entitled to act on the strength of a radio

communication from officers involved in the investigation). Burrows has failed to

show the district judge erred by denying his motion to suppress.

B. Armed Career Criminal Act

      We review de novo whether prior crimes were committed on different

occasions for purposes of the ACCA. United States v. Weeks, 

, 1261

(11th Cir.) (per curiam), cert. denied, 

(2013). Specific objections or

arguments not raised before the district judge are reviewed for plain error. 

ACCA, a defendant convicted under § 922(g) is subject to a mandatory-

minimum sentence of 15 years of imprisonment, if he has three prior convictions

for serious drug crimes committed on different occasions. 

see also 18

U.S.C. § 924(e)(1). An ACCA sentencing enhancement must be established by a

preponderance of the evidence. See 

. The government

bears the burden of proving an ACCA sentencing enhancement is warranted.

United States v. Lee, 

, 866 (11th Cir. 2009).

      To satisfy the ACCA’s different-occasions requirement, a defendant must

have at least three prior convictions for temporally distinct crimes. 

. When the predicate crimes are successive rather than simultaneous,

they constitute separate criminal episodes under the ACCA. 

are




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considered distinct if some temporal break occurs between them, even when the

time gap is small. 

the character of prior convictions under the ACCA, a district

judge generally is limited to examining the statutory elements, charging

documents, plea agreements, colloquies, and any explicit factual findings by the

trial judge to which the defendant assented. Shepard v. United States, 

,

16, 

, 1257 (2005); 

, 1261. A nolo

contendere plea, followed by an adjudication of guilt, is a conviction under Florida

law that qualifies as an ACCA-predicate conviction. United States v. Drayton, 

, 1193 (11th Cir. 1997) (per curiam). Burrows did not argue his nolo

contendere pleas in the 1998 case rendered the information in that case insufficient

for the judge to determine the charged offenses were committed on different

occasions. Consequently, this argument is subject to plain-error review. See

.

      In Weeks, we concluded the defendant’s nolo contendere pleas in a Florida

court to charges in an information alleging he had burglarized two separate

structures on the same date were sufficient to establish distinct ACCA-predicate

offenses. See 

1261. In the context of an ACCA different-occasions

inquiry, there is no material difference between an allegation in a charging

document that crimes were committed in separate structures and an allegation that


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crimes were committed on different dates. Burrows’s argument that his nolo

contendere pleas did not admit guilt ignores the fact that, following his nolo

contendere pleas, the state judge adjudicated him guilty of the crimes charged in

the information. See 

(holding a nolo contendere plea,

followed by an adjudication of guilt, qualifies as an ACCA-predicate conviction).

Burrows’s nolo contendere pleas to charges in an information alleging he sold

cocaine on five different dates, combined with his guilty plea in the 1996 case,

were sufficient for the district judge to determine he had committed at least three

serious drug offenses on different occasions different, by a preponderance of the

evidence.1

       AFFIRMED.




       1
          As Burrows acknowledges in his brief, his challenge to Almendarez-Torres v. United
States, 

, 

(1998), is contrary to the law of this circuit. See United
States v. Gandy, 

, 1237 (11th Cir.) (explaining this court is “bound to follow
Almendarez-Torres unless and until the Supreme Court overrules that decision” (citation and
internal quotation marks omitted)), cert. denied, 

(2013).



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