Case: 15-10642   Date Filed: 07/21/2015   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-10642
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:14-cr-20442-JAL-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

DELVIN DEON TINKER,

                                                         Defendant-Appellant.

                      ________________________

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

                             (July 21, 2015)


Before HULL, WILLIAM PRYOR and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       After pleading guilty, Delvin Deon Tinker appeals his conviction and 180-

month sentence for one count of possession of a firearm by a felon, in violation of

18 U.S.C. § 922(g)(1). 1 During a traffic stop of a vehicle in which Tinker was a

passenger, a police officer performed a pat-down search of Tinker and found a

firearm in Tinker’s waistband. On appeal, Tinker challenges the denial of his

motion to suppress the firearm and also his enhanced sentence under the Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). After review, we affirm

Tinker’s conviction and sentence.

                               I. MOTION TO SUPPRESS

       The district court did not err when it denied Tinker’s motion to suppress.

First, the police officers involved in the traffic stop had both probable cause to

believe a traffic violation had occurred and also a reasonable suspicion that a crime

was being committed. See United States v. Harris, 

, 1337 (11th Cir.

2008) (requiring a traffic stop to be supported by either probable cause to believe

that a traffic violation has been committed or a reasonable suspicion that crime is

afoot).

       Both officers testified that they observed the vehicle swerve and weave as it

travelled down an unmarked roadway, even though there were no obstructions in

the roadway, and the vehicle did not need to pass another car. Specifically,

       1
        Pursuant to a written plea agreement, Tinker entered into a conditional guilty plea,
reserving his right to appeal the district court’s denial of his motion to suppress.
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Detective Jeffrey Parker testified that the vehicle was “swerving off and on the

road.” Detective Michael Fernando Mendez testified that the vehicle was

“weaving in and out of the traffic lane on the street” and that it was “impeding the

other lane for” oncoming traffic. While the officers’ testimonies differed slightly,

they agreed that the vehicle left its own lane and crossed into the lane for

oncoming traffic, which is a “noncriminal traffic infraction” under Florida law.

See Fla. Stat. § 316.081(1), (5) (requiring vehicles to drive on the right side of the

roadway). Moreover, the officers agreed that the vehicle weaved several times and

that they stopped the vehicle because they were concerned that the driver might be

intoxicated, which is a criminal offense under Florida law. See Fla. Stat. § 316.193

(making it a crime to drive a vehicle while under the influence of alcohol or a

controlled substance).

      The district court listened to the officers’ testimony, weighed their

credibility, and determined that the officers were justified in making the stop.

Tinker did not present any evidence to controvert the officers’ testimony. And, the

fact that the officers’ testimony was not completely consistent on every detail does

not provide a basis for reversing the district court’s credibility findings. See

United States v. Pineiro, 

, 1366 (11th Cir. 2004) (explaining that this

Court will not reverse a credibility finding unless the challenged testimony “is

contrary to the laws of nature, or is so inconsistent or improbable on its face that no


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reasonable factfinder could accept it” (internal quotation marks omitted)).

Construing the evidence in the light most favorable to the government and

affording deference to the district court’s credibility findings, the officers had both

probable cause and a reasonable suspicion to initiate the traffic stop. See United

States v. Lewis, 

, 1303 (11th Cir. 2012).

      Additionally, Detective Parker’s testimony established that, after the vehicle

was pulled over, he had a reasonable suspicion that Tinker was armed and

dangerous. See Arizona v. Johnson, 

, 327, 

, 784 (2009)

(concluding that an officer is permitted to conduct a limited search of the outer

clothing of a passenger in vehicle during a traffic stop if the officer has a

reasonable suspicion that the passenger may be armed and dangerous). Detective

Parker testified that the traffic stop occurred in a high-crime area. As Detective

Parker spoke to Tinker through the passenger-side window, Tinker appeared

nervous, muttered, and would not make eye contact, his right hand was shaking,

and his left hand appeared to be holding an object in his waistband. When, at

Detective Parker’s request, Tinker stepped out of the vehicle, Tinker adjusted the

object in his waistband as if to secure it. At this point, Detective Parker asked

Tinker to place his hands on top of the vehicle, conducted a pat-down search of his

waist area, felt the butt of a gun, and then found a loaded firearm in his waistband.




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      Based on this testimony, the district court found that, “[a]fter seeing Tinker

adjust something in his waistband, Detective Parker immediately ordered Tinker to

face the vehicle and place his hands on it.” This finding is not inconsistent with

Detective Parker’s testimony and Detective Parker’s testimony was not so

improbable on its face that no reasonable factfinder would accept it. See 

. Given the facts as the district court found them, Detective

Parker had a reasonable suspicion that Tinker was armed and dangerous based on

the totality of the circumstances. See United States v. Griffin, 

, 1359

(11th Cir. 2012) (explaining that the officer does not have to have definitive

evidence of a weapon or be certain the defendant is armed to have a reasonable

suspicion). Accordingly, the district court did not err in finding that the pat-down

search was justified and constitutional.

                          II. ACCA ENHANCEMENT

      Finally, Tinker asserts that the district court misapplied the ACCA’s

mandatory minimum sentence because his three qualifying prior convictions were

neither charged in the indictment nor proven to a jury. As Tinker acknowledges,

however, this Apprendi-based argument is foreclosed by binding precedent. See

Almendarez-Torres v. United States, 

, 239-47, 

, 1229-

33 (1998) (allowing the district court to consider prior convictions at sentencing);

Apprendi v. New Jersey, 

, 489-90, 

, 2362 (2000)


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(expressly declining to overrule Almendarez-Torres); Alleyne v. United States, 570

U.S. ___, ___

, 2160 n.1 (2013) (declining to revisit Almendarez-

Torres); United States v. King, 

, 1280 (11th Cir. 2014) (concluding

that Almendarez-Torres remains binding precedent).

      We note that Tinker has never disputed that his prior Florida convictions—

1999 convictions for robbery while using a deadly weapon and aggravated assault

with a firearm, a 2010 conviction for resisting an officer with violence, and a 2013

conviction for aggravated battery—constitute “violent felonies” under the ACCA.

Moreover, Tinker’s predicate offenses appear to qualify as violent felonies under

the “elements” clause in § 924(e)(2)(B)(1), rather than the “residual” clause in

§ 924(e)(2)(B)(ii), and thus Tinker’s classification as an armed career criminal

does not appear to be affected by Johnson v. United States, 576 U.S. ____, ____ S.

Ct. ____, No. 13-7120, 

(June 26, 2015). In any event, Tinker

has never claimed that his predicate offenses are included based on the residual

clause and has never raised the constitutional challenge to the ACCA’s residual

clause asserted by the defendant in Johnson.

      For these reasons, we affirm Tinker’s conviction and 180-month sentence.

      AFFIRMED.




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