United States v. James E. Maxwell, Jr.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 04-15295 July 27, 2005

THOMAS K. KAHN

Non-Argument Calendar

CLERK

________________________

D. C. Docket No. 03-00093-CR-DF-5

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES MAXWELL, JR.,

a.k.a. Sonny Spoon,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(July 27, 2005)

Before BIRCH, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

James Maxwell, Jr. appeals his convictions for the following three counts:

possession with intent to distribute cocaine, a violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(B)(iii) and 18 U.S.C. § 2; possession with intent to distribute N-

benzylpiperazine (“BZP”) and 1-3-Trifluoromethylenephenylpiperazine

(“TFMPP”), a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2;

and possession of a firearm in furtherance of a drug trafficking crime, a violation

of 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2. On appeal, Maxwell argues that the

district court erred when it denied his motion to suppress the evidence seized

during a traffic stop and the resulting search of his car because they were

conducted without probable cause. He further argues that the district court erred in

denying his motion for a judgment of acquittal as to the firearm conviction because

there was insufficient evidence that he used the firearm “during and in relation to”

the drug trafficking offenses. Finally, Maxwell argues for the first time in his reply

brief that the district court erred when it sentenced him in accordance with the

federal sentencing guidelines in violation of United States v. Booker, 543 U.S. ___,

125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

I. The Motion to Suppress

Maxwell argues that the district court erred in denying his motion to

suppress the physical evidence obtained from the traffic stop and the resulting

search of his car because the officers had no reasonable suspicion upon which to

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base the stop. He asserts that the seatbelt violation was “manufactured” to justify a

traffic stop based on his race and his presence in a neighborhood known for its

drug activity. Maxwell also contends that the officers had neither a reasonable,

articulable suspicion, nor consent, to detain him for longer than was necessary to

write the citation. In response, the government argues that Officer Jones had

probable cause to effectuate a traffic stop because he observed – albeit mistakenly

– Maxwell not wearing his seatbelt. Regarding the duration of the stop, the

government argues that the stop was reasonably prolonged once Officer Jones

learned that Maxwell had a concealed and loaded weapon underneath the driver’s

seat.

“A district court’s ruling on a motion to suppress presents a mixed question

of law and fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999).

We accept the district court’s findings of fact to be true, unless it is shown to be

clearly erroneous, and review the district court’s application of the law to those

facts de novo. Id. These factual findings include the district court’s credibility

determinations, to which we will “accord considerable deference.” United States v.

Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (internal citation and quotation

omitted). “[A]ll facts are construed in the light most favorable to the prevailing

party below.” United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000).

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“The individual challenging the search has the burdens of proof and persuasion.”

United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998).

A. The Legality of the Stop

The Fourth Amendment protects individuals from “unreasonable searches

and seizures” by government officials, and its protections extend to “brief

investigatory stops of persons or vehicles.” United States v. Arvizu, 534 U.S. 266,

273 (2002). For brief investigatory stops, the Fourth Amendment is satisfied if the

police officer has a “reasonable suspicion” to believe that criminal activity “may be

afoot.” Id. (citing Terry v. Ohio, 392 U.S. 1, 20 (1968)). When determining

whether reasonable suspicion exists, courts must consider the totality of the

circumstances to determine whether the police officer had a “particularized and

objective basis” for suspected legal wrongdoing. Arvizu, 534 U.S. at 273 (citation

omitted). In so doing, “the reviewing court must give due weight to the police

officer’s experience.” United States v. Briggman, 931 F.2d 705, 709 (11th Cir.

1997). A decision to stop a vehicle is also reasonable under the Fourth

Amendment where an officer has probable cause to believe that a traffic violation

occurred. United States v. Simmons, 172 F.3d 775, 778 (11th Cir. 1999).

The seminal case on the legality of traffic stops is Whren v. United States,

517 U.S. 806, 819 (1996), in which the Supreme Court declined to deviate from

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“the traditional common-law rule that probable cause justifies a search and

seizure.” In other words, regardless of the officer’s subjective intent at the time the

traffic stop is made, as long as he has “probable cause to believe that [the

defendant has] violated the traffic code,” the stop will be reasonable for Fourth

Amendment purposes. Id.

We conclude that Officer Jones was responding to a valid “be on the

lookout” call when he stopped Maxwell, based on another officer’s reasonable

suspicion that criminal activity was afoot and his knowledge of the neighborhood’s

history of drug activity. Accordingly, the call was legal justification for a brief

investigatory stop under Terry. Notwithstanding the call, however, Officer Jones

also believed that Maxwell was in violation of a Georgia traffic law, thus giving

him another basis to effectuate a legal stop. Even though Officer Jones later

admitted at trial that his belief that Maxwell was not wearing his seatbelt was

“mistaken,” such a mistake of fact will not vitiate probable cause to support the

traffic stop. Thus, because Officer Jones was responding to a valid “be on the

lookout” call, and also observed what he thought at the time to be a seatbelt law

violation, he had probable cause to effectuate the traffic stop.

B. The Duration of the Stop

We have held that, “[u]nder Terry v. Ohio, an officer’s investigation of a

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traffic stop must be ‘reasonably related in scope to the circumstances which

justified the interference in the first place.’” United States v. Boyce, 351 F.3d

1102, 1106 (11th Cir. 2003) (citing Terry v. Ohio, 392 U.S. 1, 20 (1968)). The

stop must be of “limited duration,” and may not last “any longer than necessary to

process the traffic violation unless there is articulable suspicion of other illegal

activity.” Id. (citation omitted). The duration of the traffic stop “must be limited

to the time necessary to effectuate the purpose of the stop.” United States v.

Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001). However, where the initial traffic

stop is legal, the officer has “the duty to investigate suspicious circumstances that

then [come] to his attention.” United States v. Harris, 928 F.2d 1113, 1117 (11th

Cir. 1991) (quotation omitted).

We conclude that the investigation was reasonably related in scope and

duration to the circumstances that led to the stop. See Boyce, 351 F.3d at 1106.

While he wrote out the traffic citation, Officer Jones asked Maxwell whether he

had any guns in the car in order to ensure his safety. Maxwell informed Officer

Jones of his gun, which led to the brief search of his car. Because the investigation

arose out of a valid traffic stop, the investigation into the gun and the subsequent,

brief detention were valid. Id. Accordingly, because both the stop and the

detention were both reasonable under the Fourth Amendment, we affirm the

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district court’s denial of Maxwell’s motion to suppress.

II. The Motion for Judgment of Acquittal

Maxwell next contends that the district court erred in denying his motion for

judgment of acquittal as to the firearms charge because there was insufficient

evidence that he used the firearm “during and in relation to” the drug trafficking

offenses. He notes that the evidence revealed that the gun was located well

beneath the driver’s seat of his car and that there was no evidence that he took the

gun out of the car to use it in connection with obtaining the drugs. In response, the

government argues that the evidence was sufficient to sustain Maxwell’s

conviction because the firearm’s proximity to the drugs was not merely

coincidental and unrelated to the offense. Because Maxwell was arrested while

transporting both the drugs and the gun, the government argues it was reasonable

for the jury to infer that Maxwell used the gun for his protection while he obtained

and moved the drugs and once he reached his destination.

We review the denial of a motion for a judgment of acquittal de novo. See

United States v. Bowman, 302 F.3d 1228, 1237 (11th Cir. 2002). If the evidence

was sufficient to support the conviction, then the motion was properly denied. Id.

at 1238. We will not overturn a jury verdict “so long as a reasonable juror could

have concluded beyond a reasonable doubt that defendant used these weapons in

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connection with the drug trafficking offense.” United States v. Poole, 878 F.2d

1389, 1393 (11th Cir. 1989) (internal citation omitted).

Section 924(c) provides in relevant part that an individual who, “during and

in relation to any . . . drug trafficking crime . . . , uses or carries a firearm, shall, in

addition to the punishment provided for such crime of violence or drug trafficking

crime, be sentenced to imprisonment for five years . . .” 18 U.S.C. § 924(c)(1).

As an initial matter, we have held that possession with intent to distribute

drugs qualifies as a “drug trafficking crime” for purposes of § 924(c). See United

States v. Rivera, 889 F.2d 1029, 1030 (11th Cir. 1989). Furthermore, Maxwell

concedes that there was sufficient evidence to prove the “carrying” element of §

924(c). Therefore, the remaining issue is whether there was sufficient evidence to

prove that the firearm found in Maxwell’s car was used “during and in relation to”

the drug trafficking crime.

To establish use of a firearm “during and in relation to” a drug trafficking

crime for purposes of § 924(c), the government need not prove that the defendant

“fired, brandished, or even displayed” the gun during the drug trafficking offense;

“however, . . . the mere presence of a firearm [will] not constitute use within the

meaning of section 924(c)(1).” Poole, 878 F.2d at 1393. “Rather, possession of a

firearm constitutes use in relation to the drug trafficking offense if the possession is

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an integral part of, and facilitates the commission of, the drug trafficking offense.”

Id. Moreover, “the presence of weapons in a location defendant used to distribute

a significant quantity of illegal drugs is sufficient to submit to the jury the issue of

whether defendant used the firearms in connection with a drug trafficking crime.”

Id.

For example, in Poole, 878 F.2d at 1393-94, when considering whether the

defendant had used the firearm “during and in relation to” the drug offense, we

noted that the evidence supported the inferences that “[the defendant] was engaged

in selling cocaine; the guns were used to protect the house members and the

cocaine; and [the defendant] knew the guns were readily accessible.” Accordingly,

we held that a reasonable jury could have found that the defendant used the guns

during and in relation to her cocaine trafficking. Id. (noting that while the evidence

was “far from overwhelming,” it was sufficient in light of our deferential treatment

of jury verdicts).

Here, the testimony that Maxwell was in possession of large amounts of

cocaine, BZP, and TFMPP supports the inference that he possessed those drugs

with the intent to distribute them. Also, the jury reasonably could have inferred

that the loaded gun, which was discovered under Maxwell’s seat and in close

proximity to the drugs on the backseat, was “readily accessible.” See id. Likewise,

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the jury could have concluded that Maxwell’s intention was to use the gun, if

necessary, to protect the drugs and himself while he transported them. Id. Thus,

the evidence was sufficient, even if not overwhelming, to support Maxwell’s

conviction for a violation of § 924(c). Accordingly, the district court properly

denied Maxwell’s motion for a judgment of acquittal, and we affirm.

III. The Booker Claim

In his reply brief, Maxwell argues for the first time that his sentence should

be vacated in light of the U.S. Supreme Court’s decision in United States v.

Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).1 Maxwell notes

that the district court expressed at his sentencing that the guidelines’ penalties for

his drug offenses were “pretty stiff.” He urges us to remand for re-sentencing in

light of the district court’s comments and in light of Booker.

We have consistently held that an issue not raised in an party’s initial

appellate brief is considered waived, and the party is prohibited from raising the

issue later in the appeal. See United States v. Njau, 386 F.3d 1039, 1041-42 (11th

Cir. 2004) (refusing to consider a claim under Blakely first raised in a letter

1

In his reply brief, Maxwell asserts that Booker was not available to him when he filed

his initial appellate brief. His initial brief, however, was date-stamped January 19, 2005, and the

Booker opinion was released January 12, 2005. Moreover, Maxwell did not make reference in

his initial brief to Apprendi v. New Jersey, 530 U.S. 466 (2000) or Blakely v. Washington, 254

U.S. __ (2004), both of which are predecessor cases to Booker.

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submitted pursuant to Fed. R. App. P. 28 (j)); United States v. Levy, 379 F.3d 1241,

1242-43 (11th Cir. 2004) (refusing to consider a Blakely claim first raised in a

petition for rehearing). Accordingly, because Maxwell raises this Booker issue for

the first time in his reply brief, he has waived the argument and may not raise it on

appeal.

For the foregoing reasons, we affirm Maxwell’s convictions on all counts.

AFFIRMED.

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