Filed: Jan. 06, 2015
Latest Update: Mar. 02, 2020
Summary: Case: 14-10822 Date Filed: 01/06/2015 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-10822 Non-Argument Calendar _ D.C. Docket No. 1:13-cr-20651-KMM-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus EDUARDO BARNES, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (January 6, 2015) Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges. PER CURIAM: Case: 14-10822 Date Filed:
Summary: Case: 14-10822 Date Filed: 01/06/2015 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-10822 Non-Argument Calendar _ D.C. Docket No. 1:13-cr-20651-KMM-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus EDUARDO BARNES, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (January 6, 2015) Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges. PER CURIAM: Case: 14-10822 Date Filed: 0..
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Case: 14-10822 Date Filed: 01/06/2015 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10822
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cr-20651-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO BARNES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 6, 2015)
Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 14-10822 Date Filed: 01/06/2015 Page: 2 of 7
Eduardo Barnes appeals his conviction and sentence of 120 months of
imprisonment for being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1).
Barnes challenges the denial of his motion to suppress; the admission of an
inculpatory statement during his sentencing proceeding; and the procedural
reasonableness of his sentence. Barnes also challenges, for the first time, the
constitutionality of section 922(g). We affirm.
The district court did not err by denying Barnes’s motion to suppress the
firearm. Barnes lacked standing to challenge the search of the rental vehicle in
which the firearm was found. See Rakas v. Illinois, 439 U.S. 128, 134,
99 S. Ct.
421, 425 (1978); United States v. Lee,
586 F.3d 859, 864–65 (11th Cir. 2009). The
driver of the vehicle, Ricky Taylor, told officers that a man named “Shrimp”
loaned the vehicle to him, and neither Taylor nor Barnes were listed as approved
drivers on the rental agreement. As a passenger, Barnes had standing to challenge
the traffic stop, but the evidence established that the stop was “constitutional
[because] it . . . [was] based upon probable cause to believe a traffic violation ha[d]
occurred . . . .” United States v. Harris,
526 F.3d 1334, 1337 (11th Cir. 2008). Sean
Bergert, an officer for the City of Aventura, Florida, stopped the vehicle because
Taylor was speeding and made a sharp turn that almost caused the vehicle to
collide with Bergert’s patrol car. See Fla. Stat. § 316.183(1). Barnes fled from the
back seat before the rental vehicle came to a stop, and officers noticed a semi-
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automatic handgun lying in the accessory pocket of the rear passenger door that
Barnes had left ajar. Barnes lacked any expectation of privacy in the vehicle.
The district court fulfilled its obligation to make an independent and
informed decision about the lawfulness of the traffic stop. A magistrate judge held
a hearing on Barnes’s motion to suppress and credited Bergert’s testimony about
the reasons for the traffic stop. Barnes objected and was entitled to de novo review
of the decision to rely on Bergert’s testimony, see Fed. R. Crim. P. 59(b)(3), but
the district court was unable to obtain a transcript of the hearing. The district court
made a final determination about the validity of the traffic stop when it assessed
Bergert’s testimony during Barnes’s bench trial. See United States v. Raddatz, 447
U.S. 667, 680–81,
100 S. Ct. 2406, 2415 (1980). And the district court was entitled
to credit Bergert’s undisputed explanation that he stopped the driver of the rental
vehicle for speeding in violation of Florida law. As stated by the district court,
Bergert’s “testimony . . . [was] sufficient to support the denial of the motion” to
suppress. We are “satisfied that [the] district court . . . exercised his non-delegable
authority by considering . . . actual testimony, and not merely by reviewing the
magistrate’s report and recommendations.” United States v. Elsoffer,
644 F.2d 357,
359 (5th Cir. 1981).
The district court did not err by adopting the recommendation of the
magistrate judge to use Barnes’s incriminating statement to determine an
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appropriate sentence. Although Barnes’s statement was not admissible as
substantive evidence of his guilt because he was not advised of his rights to remain
silent and to counsel, see Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602 (1966),
he acknowledged that his “statements [could] be considered at sentencing . . .
unless [they] were involuntary or unreliable.” The district court reviewed de novo
the agents’ testimony about Barnes’s interrogation, see Diaz v. United States,
930
F.2d 832, 836 (11th Cir. 1991), and determined that Barnes’s statement was “the
product of a free and deliberate choice.” See United States v. Bernal-Benitez,
594
F.3d 1303, 1318 (11th Cir. 2010) (quoting Moran v. Burbine,
475 U.S. 412, 421,
106 S. Ct. 1135, 1141 (1986)).
The district court did not err in denying Barnes’s motion to exclude his
inculpatory statement at sentencing. Detective Roderick Passmore and Officer
Ricardo Martinez, of the Miami Dade Police Department, and Agent David Solis,
of the Federal Bureau of Investigation testified, without dispute, that when
Passmore asked Barnes about his destination at the time of the traffic stop, he
confessed that he was on the way to shoot someone. Passmore and Solis testified
that they treated Barnes as a cooperative witness in hopes of obtaining information
about gang-related homicides in the area and that, during the interview, which
lasted no longer than seven hours, Barnes remained cooperative, articulate, and
alert. And Martinez testified that, before Barnes made the inculpatory statement, he
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was fed, relocated to a more comfortable conference room, and allowed to speak to
a federal agent. See id. The agents testified consistently that Barnes was not
physically or verbally coerced and, although Solis offered to inform prosecutors
about Barnes’s cooperation, Solis testified that he did not promise Barnes any
reward for cooperating. See United States v. Thompson,
422 F.3d 1285, 1295–96
(11th Cir. 2005). And Barnes made his inculpatory statement after refusing to talk
to Detective Jonathan Ruiz, which evidenced that Barnes knew he was not required
to speak to law enforcement and that he could choose when and with to whom to
speak. This record, which establishes that Barnes was well-treated, the interview
was relaxed, and Barnes was acting intelligently, supports the determination of the
district court that Barnes’s statements were “freely and voluntarily given.”
Barnes argues, for the first time on appeal, that his statements were
inadmissible because he was not timely presented to a magistrate judge, see 18
U.S.C. § 3501(c), but this argument fails. To prevail on review for plain error,
Barnes must prove that an error occurred and that the error is plain, affects his
substantial rights, and “seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” United States v. McNair, 605 F.3d 1152, 1222 (11th Cir.
2010). Section 3501 provides that a confession is admissible when made
voluntarily and “within six hours immediately following arrest or other detention,”
and is admissible even if made after the expiration of the six-hour deadline, so long
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as the delay in presenting him to a judicial officer is “reasonable considering the
means of transportation and the distance to be traveled to the nearest available such
magistrate judge or other officer.” 18 U.S.C. § 3501(c). Because the record is not
developed about exactly how much time elapsed between Barnes’s arrest, his
confession, and his presentment or about the availability of a judicial officer, we
cannot say that any delay in his presentment was unreasonable.
The use of Barnes’s inculpatory statements to determine his base offense
level did not make his sentence procedurally unreasonable. The district court was
allowed to use Barnes’s incriminating statement to enhance his sentence. The
district court credited the agents’ testimony; their testimonies established that
Barnes made the statements voluntarily; and Barnes was given advance notice of
the evidentiary hearing and had the opportunity to rebut the evidence about the
interrogation. See United States v. Baker, 432 F.3d 1189, 1253 (11th Cir. 2005).
Although Passmore testified that Barnes used the word “kill” and Solis recalled
that Barnes used the word “shoot,” the district court reasonably found that the
terms were “internally consistent.” In the light of Barnes’s statements and his
possession of a firearm, the district court did not clearly err in finding that Barnes
had armed himself as part of a plot to murder another person. Based on that
finding, the district court correctly assigned Barnes a base offense level of 33
based on the cross-references in the Sentencing Guidelines that addressed the
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possession of a firearm in connection with an attempted murder. See United States
Sentencing Guidelines Manual §§ 2K2.1(c)(1), 2X1.1(c)(1), 2A2.1(a)(1) (Nov.
2013). Barnes argues that the district court enhanced his sentence based on facts
that were not alleged in his indictment or proved to a jury beyond a reasonable
doubt, in violation of the Fifth and Sixth Amendments, but the district court was
allowed to enhance Barnes’s sentence because “its findings [did] not increase [his]
sentence beyond the statutory maximum authorized by [the] facts determined in
[his] guilty plea,” United States v. Dean, 487 F.3d 840, 854 (11th Cir. 2007).
Barnes concedes that his argument, made for the first time, about the
constitutionality of section 922(g) is foreclosed by precedent. We have held
repeatedly that section 922(g) is constitutional, facially and as applied, as a lawful
exercise of Congress’s power under the Commerce Clause. See United States v.
Scott, 263 F.3d 1270, 1273 (11th Cir. 2001); United States v. Dupree,
258 F.3d
1258, 1259–60 (11th Cir. 2001). “Under [our] prior precedent rule, we are bound
to follow a prior binding precedent unless and until it is overruled by this court en
banc or by the Supreme Court.” United States v. Vega-Castillo,
540 F.3d 1235,
1236 (11th Cir. 2008) (internal quotation marks and citation omitted). The district
court did not err, plainly or otherwise, when it convicted Barnes of violating
section 922(g).
We AFFIRM Barnes’s conviction and sentence.
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