United States v. John Windell Clay

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

APR 3, 2007

THOMAS K. KAHN

Nos. 06-10088

CLERK

________________________

D. C. Docket No. 05-00154-CR-6

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Cross-Appellant,

versus

JOHN WINDELL CLAY,

Defendant-Appellant,

Cross-Appellee.

________________________

Appeals from the United States District Court

for the Southern District of Alabama

_________________________

(April 3, 2007)

Before CARNES, PRYOR and FARRIS,* Circuit Judges.

*

Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by

designation.

PRYOR, Circuit Judge:

The main question presented in these cross-appeals is the contention of the

government that John Windell Clay’s 60-month sentence for possessing

methamphetamine precursors is unreasonably lenient, when the advisory

Guidelines range was 188 to 235 months and the variance was based primarily on

Clay’s postoffense rehabilitation. Several witnesses, including drug counselors

and corrections workers, testified at Clay’s sentencing hearing that Clay’s

rehabilitation was extraordinary, and the district court credited their testimony. In

his appeal, Clay argues that the district court erred when it denied his motion to

suppress evidence and when it enhanced his sentence based on acquitted conduct.

We affirm Clay’s conviction and sentence.

I. BACKGROUND

On October 10, 2004, Sergeant James Eissler stopped Clay’s car because

only one headlight was operating. While Clay looked for his insurance card,

Sergeant Eissler saw a shotgun between the driver’s seat and the door. Sergeant

Eissler asked Clay to get out of the car and conducted a pat-down search of Clay’s

person before placing him in the squad car.

Sergeant Eissler’s search of Clay’s pants pocket revealed an empty barrel

from a ball-point pen, which is often used as a device for ingesting narcotics.

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Sergeant Eissler removed the item from Clay’s pocket because he could not tell by

feel whether it was a weapon; he thought it might be a screwdriver. Sergeant

Eissler advised Clay of his Miranda rights.

Clay, who did not appear impaired, consented to a search of his car.

Sergeant Eissler left the window of the squad car open so that Clay could stop the

search at any time. Sergeant Eissler discovered in the trunk of the vehicle ten

unopened boxes of cold and allergy medication containing pseudoephedrine and

arrested Clay. At the police station, after waiving his Miranda rights, Clay told

police that he had purchased the pseudoephedrine pills for a man he occasionally

supplied with such pills and admitted involvement with methamphetamine

manufacturing and distribution.

Six months later, Clay was indicted with five others on charges of

conspiracy to manufacture and possess with intent to distribute more than 500

grams of methamphetamine, 21 U.S.C. §§ 846, 841(a)(1), and possession of

pseudoephedrine with reasonable cause to believe that it would be used to

manufacture a controlled substance, id. § 841(c)(2). Before trial, Clay moved to

suppress the evidence seized from his car and his statements to the police on

October 10, 2004. The district court denied the motions, on the ground that the

search of Clay’s car was reasonable and his statements were voluntary.

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At trial, the government presented evidence, including testimony by the five

cooperating codefendants, that Clay had been involved in the manufacture of

methamphetamine since 2000. Clay would supply manufacturers with precursor

chemicals and supplies in exchange for methamphetamine. By 2004, Clay was

participating directly in the manufacture and helped to produce about an ounce of

methamphetamine two or three times a week for three to five months. The jury

acquitted Clay of the conspiracy charges and convicted him of possession of

pseudoephedrine.

Under the advisory Sentencing Guidelines, the base offense level for the

offense of conviction was 22. United States Sentencing Guidelines

§ 2D1.11(d)(9) (Nov. 2005). At sentencing, the court found by a preponderance

of the evidence that Clay was responsible for the manufacture of at least 1.5

kilograms of methamphetamine, which enhanced the offense level to 34. Id.

§§ 1B1.3(a), 2D1.1(c)(3). The district court also found that Clay possessed a

firearm during the offense, which enhanced the offense level by 2 levels. Id. §

2D1.11(b)(1). Clay’s criminal history category was I, and the advisory sentencing

range was 188 to 235 months’ imprisonment.

At the sentencing hearing, eight witnesses testified about the religious

conversion and life changes that Clay had experienced before his arrest in October

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2004 and continuing until his conviction in August 2005. A leader of Clay’s drug

and alcohol rehabilitation program, Alan Cobb, testified that Clay was

rehabilitated, obtained employment, and was a good employee. Another program

leader, who worked in corrections, testified that Clay was living a “different life”

since his involvement in the program. A minister at Clay’s church who had

worked in corrections for ten years testified that he had “seen a lot of inmates, so

to speak, play a game” but the change in Clay’s life was real. John and Rachael

Leno had met Clay through the rehabilitation program and testified that they had

overcome their drug addictions because of Clay’s example and encouragement.

Clay and his family members testified that, following his conversion, Clay had

stopped using drugs and alcohol, rededicated himself to his family, and began

regularly attending rehabilitation meetings and visiting a juvenile detention center.

The court found that Clay’s postoffense rehabilitation was extraordinary:

Well, I have considered the statutory purposes of sentencing in

this case and I have considered the sentencing guidelines. I am

sentencing under the guidelines scheme. But I find, Mr. Clay, that in

your case a downward departure for post-offense rehabilitation is

appropriate.

But I also agree with [the government] that one of the primary

purposes of sentencing as set out in 3553 is punishment. And I have

to take into account the fact that, although your motivation for

participation in the manufacture of methamphetamine was so that you

could use it, the others who were participating in it with you were

also doing it and providing it at the same time as to you to many other

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people, and your help in that manufacture was in essence helping

other people get hooked on drugs themselves. And I can’t just ignore

that.

Your guidelines, the low end of them, is 188 months. That’s in

excess of 15 years. I’m going to give you a substantial reduction, and

you and your family still will think that it is too long to spend in jail.

But it is a more substantial reduction than I have given to anybody for

this reason that I’m going to give it to you.

I do believe that your change is real. And with God’s help, you

will continue on the same path that you are currently on.

The court imposed a sentence of 60 months’ imprisonment. Clay appealed, and

the government cross-appealed.

II. STANDARDS OF REVIEW

Several different standards of review govern this appeal. We review under

a mixed standard of review the denial of a motion to suppress, United States v.

Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999), and the application of the

Sentencing Guidelines, United States v. Miranda, 348 F.3d 1322, 1330 (11th Cir.

2003). In reviewing Clay’s sentence, we review the factual findings of the district

court for clear error and the application of the law to the facts de novo. Id. We

review de novo whether a sentencing factor is impermissible. United States v.

Williams, 456 F.3d 1353, 1361 (11th Cir. 2006), petition for cert. filed (U.S. Oct.

19, 2006) (No. 06-7352). We review a sentence for reasonableness. Id. at 1363.

Our review for reasonableness is deferential, and the party challenging the

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sentence has the burden of establishing unreasonableness. United States v. Talley,

431 F.3d 784, 788 (11th Cir. 2005). “The weight to be accorded any given

§ 3553(a) factor is a matter committed to the sound discretion of the district

court,” but “we will remand for resentencing if we are left with the definite and

firm conviction that the district court committed a clear error of judgment in

weighing the § 3553(a) factors by arriving at a sentence that lies outside the range

of reasonable sentences dictated by the facts of the case.” Williams, 456 F.3d at

1363.

III. DISCUSSION

We must first review Clay’s appeal and then the cross-appeal by the

government. Clay argues that the district court erred when it denied his motion to

suppress the evidence seized from his car and when it enhanced his sentence based

on acquitted conduct. The government argues that Clay’s sentence was

unreasonable. We discuss each issue in turn and conclude that the district court

committed no reversible error.

A. Clay’s Motion to Suppress Was Properly Denied.

Clay argues that the boxes of pseudoephedrine pills seized from the trunk of

his car should have been suppressed because they were the fruit of an

unreasonable search, but we disagree. Sergeant Eissler obtained reasonable

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suspicion to conduct a pat-down search of Clay’s person when he saw the shotgun

in plain view, which created reason to believe that he was “dealing with an armed

and dangerous individual.” Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883

(1968). This case is unlike Minnesota v. Dickerson, 508 U.S. 366, 378, 113 S. Ct.

2130, 2138-39 (1993), in which a Terry search was held unreasonable when it

extended to a pocket that the officer believed contained drugs. Sergeant Eissler

continued his search only because he thought the long, thin object in Clay’s pocket

might be a screwdriver or something similar that could be used as a weapon.

We join our sister circuits in affirming that a Terry search may continue

when an officer feels a concealed object that he reasonably believes may be a

weapon. See, e.g., United States v. Hartz, 458 F.3d 1011, 1018 (9th Cir. 2006);

United States v. Hanlon, 401 F.3d 926, 930 (8th Cir. 2005); United States v.

Holmes, 385 F.3d 786, 789-91 (D.C. Cir. 2004); United States v. Majors, 328 F.3d

791, 795 (5th Cir. 2003); United States v. Harris, 313 F.3d 1228, 1237-38 (10th

Cir. 2002); United States v. Rahman, 189 F.3d 88, 120 (2d Cir. 1999); United

States v. Swann, 149 F.3d 271, 275-77 (4th Cir. 1998). Under Terry, a search

does not exceed “that which is necessary for the discovery of weapons which

might be used to harm the officer or others nearby” if the officer has an objective,

reasonable belief that “his safety or that of others is in danger.” Terry, 392 U.S. at

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26-27, 88 S. Ct. at 1882-83. Sergeant Eissler was entitled to ensure his safety by

searching Clay’s pocket after his initial pat-down supplied reason to believe that

the item concealed therein might be a weapon.

We find no basis for Clay’s contention that the search of the trunk of his car

was unreasonable. Clay gave voluntary consent to the search of the trunk and

does not argue that his consent was involuntary or invalid. Reasonable detention

during a Terry search is proper, see Michigan v. Long, 463 U.S. 1032, 1051, 103

S. Ct. 3469, 3482 (1983), and Clay does not argue that his detention was

unreasonable or rendered his consent involuntary. Because Clay consented to the

search that led to the discovery of the pseudoephedrine pills, that search was not

unreasonable and Clay’s motion to suppress was properly denied.

B. The District Court Did Not Err When It Used Acquitted Conduct

to Enhance Clay’s Sentence.

Clay argues that the involvement of 1.5 kilograms of methamphetamine, of

which the jury acquitted him, was not proved by a preponderance of the evidence,

but again we disagree. Clay argues that the trial testimony that established the

quantity of drugs was incredible and inconsistent, but “[w]e afford substantial

deference to the factfinder, in this case, the district court, in reaching credibility

determinations with respect to witness testimony.” United States v. Pham, 463

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F.3d 1239, 1244 (11th Cir. 2006) (internal quotation marks omitted). The

testimony of Clay’s co-conspirators was largely consistent, and it was

corroborated by Clay’s own admissions. In the absence of any record evidence

that undermines this finding by the district court, we cannot say the district court

clearly erred.

Clay also erroneously argues that the acquitted conduct enhancement

increased his sentence so much as to violate due process. The Supreme Court has

hinted at the possibility of this problem, see United States v. Watts, 519 U.S. 148,

156-57, 117 S. Ct. 633, 637-38 (1997), but has never identified a case in which

those extreme circumstances exist, and neither has this Court. We are convinced

that this Guidelines enhancement is not extraordinary. Clay did not face a

mandatory-minimum life sentence, cf. United States v. Lombard, 72 F.3d 170,

177, 186 (1st Cir. 1995), or a twelve-fold increase in his sentence, cf. United

States v. Kikumura, 918 F.2d 1084, 1100-01 (3d Cir. 1990). Clay’s enhancement

raised the bottom of the Guidelines range by a factor of 3.7 and the top of the

range was still less than the 20-year maximum authorized by the jury verdict, see

21 U.S.C. § 841(c). The enhancement did not violate due process.

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C. Clay’s Sentence Was Not Unreasonable.

In its cross-appeal, the government argues that Clay’s 60-month sentence,

which was less than one-third of the low end of the Guidelines range, was

unreasonable for these reasons. The government contends that Clay’s religion is

an impermissible factor, the district court gave too much weight to postoffense

rehabilitation and insufficient weight to the other sentencing factors, and the

district court did not adequately explain the substantial variance. Each argument

fails, as we discuss in turn.

First, the district court did not rely on religion as a sentencing factor.

Religion is an impermissible factor, U.S.S.G. § 5H1.10, and a sentence can be

unreasonable, regardless of length, if it was substantially affected by the

consideration of impermissible factors, Williams, 456 F.3d at 1361. The district

court did not consider Clay’s religious belief; the court credited testimony at the

sentencing hearing about changes in Clay’s life that followed his religious

conversion. These considerations of postoffense rehabilitation are appropriate

when a district court evaluates the history and characteristics of the defendant and

the need to protect the public from further crimes of the defendant. See 18 U.S.C.

§ 3553(a)(1), (a)(2)(C).

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Second, we do not believe the district court abused its discretion when it

weighed the sentencing factors of section 3553(a). The government argues that

the court relied too heavily on postoffense rehabilitation in fashioning Clay’s

sentence, but the district court observed that the sentencing factors cut both ways

for Clay. Although his history and the circumstances of his rehabilitation

suggested that a sentence below the Guidelines range was appropriate, the

seriousness of Clay’s offense and the need for just punishment required a sentence

much longer than Clay had urged. The government argues about sentencing

disparities among Clay’s codefendants, but that argument is irrelevant because

none of the codefendants had yet been sentenced at the time of Clay’s hearing.

The codefendants have since received terms of 35, 36, 48, and 60 months after

being convicted of the conspiracy offense, and the leader of the conspiracy

received a 146-month sentence. If Clay’s sentence were unreasonably disparate,

we would expect it to be considerably lower than those of the codefendants more

culpable than Clay but less culpable than the organizer.

Finally, we conclude that Clay’s 60-month sentence was reasonable. One of

the purposes of our sentencing system is to impose “the punishment that most

effectively lessens the likelihood of future crime, either by deterring others or

incapacitating the defendant.” U.S.S.G. ch. 1, pt. A, introductory cmt. 3. Both the

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Guidelines calculations and the sentencing factors of section 3553(a) require a

judge to consider characteristics of the defendant and the offense that make it

more or less likely that the defendant will reoffend.

This record reflects that the sentencing judge engaged in precisely this kind

of objective risk assessment and then entered a sentence “sufficient but not greater

than necessary” to satisfy the purposes of section 3553(a). The enhancements for

the firearm and the acquitted conduct reflect that, unlike some other defendants

who possess ten boxes of cold medicine, Clay had been involved in the drug trade

for years, was armed during the offense, and required longer incapacitation to

protect the community and provide just punishment. The departure for

postoffense rehabilitation reflects that, unlike some other defendants, Clay has

fundamentally changed since his offense, poses a lesser risk to the community, and

does not require incapacitation for too long.

Clay observes that his sentence is within the advisory Guidelines range (51

to 63 months) that would have applied without the enhancement for acquitted

conduct, but this observation attempts to prove too much. It would have been

unreasonable for the district court to ignore a finding of responsibility for

acquitted conduct under the Guidelines, and nothing in the record suggests that the

district court fashioned the sentence to avoid taking acquitted conduct into

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account. The district court found by a preponderance that Clay committed these

offenses, and the district court correctly calculated Clay’s enhanced range under

the Guidelines.

“[W]hen imposing a sentence falling far outside of the Guidelines range,

based on the § 3553(a) factors, an extraordinary reduction must be supported by

extraordinary circumstances.” United States v. McVay, 447 F.3d 1348, 1357

(11th Cir. 2006) (internal quotation marks omitted). This record presents

extraordinary circumstances. According to the district judge, those circumstances

compelled the largest variance for postoffense rehabilitation that she had ever

given.

It is true that some of Clay’s postoffense behavior was not extraordinary.

Among the conditions of Clay’s pretrial release were maintaining or actively

seeking employment, refraining from use or possession of controlled substances,

and participating in substance abuse treatment. If Clay had not attended a drug

program, stayed clean, and found a job, his bail could have been revoked.

But Clay went beyond minimal compliance with his bail conditions. Clay’s

former employer testified that Clay worked a second job for him on the weekends,

and stated that he would hire him again “tomorrow” if he could. The Lenos

testified that, beyond merely attending drug counseling meetings, Clay invited

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fellow addicts into his home and inspired them to overcome their addictions

through his example. On his own initiative, Clay also visited a juvenile detention

center regularly for over a year and encouraged young people to change their lives.

The confidence of people who did not know Clay before his arrest—people who

had nothing to gain by lying about his transformation and plenty to lose if his

transformation was phony—helps to demonstrate the extraordinariness of Clay’s

rehabilitation.

Clay’s family, his lawyer, and witnesses who worked in corrections

emphasized that Clay’s experience was not a “jailhouse conversion.” Six months

elapsed between Clay’s arrest for misdemeanor possession and his indictment on

federal charges. That the changes in Clay’s life occurred before Clay had any

inkling that he would face a prison sentence further evidences that the measure of

his rehabilitation was extraordinary.

We defer to the finding of the sentencing judge that the testimony about

Clay’s rehabilitation was credible, see Pham, 463 F.3d at 1244, and the sentencing

judge’s exercise of discretion based on that finding. The district court was not

required, of course, to believe any of the evidence of Clay’s rehabilitation, and we

are not holding that a district court must vary downward in sentencing when it

finds that there has been postoffense rehabilitation. When we review a decision of

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a district court for abuse of discretion, there are some cases where we will affirm

the district court whichever way it decided the matter. See, e.g., United States v.

Kelly, 888 F.2d 732, 745 (11th Cir. 1989) (“The abuse of discretion standard has

been described as allowing a range of choice for the district court, so long as that

choice does not constitute a clear error of judgment.”); In re Rasbury, 24 F.3d 159,

168 (11th Cir. 1994) (“[U]nder the abuse of discretion standard of review there

will be occasions in which we affirm the district court even though we would have

gone the other way had it been our call.”).

The government argues that the district court should have provided a more

thorough analysis of the sentencing factors, but we have not required district

courts to discuss each factor exhaustively. United States v. Scott, 426 F.3d 1324,

1329 (11th Cir. 2005). The analysis of the district court provides enough

reasoning for us to review meaningfully, and we are not “left with the definite and

firm conviction that the district court committed a clear error of judgment in

weighing the § 3553(a) factors by arriving at a sentence that lies outside the range

of reasonable sentences dictated by the facts of the case.” Williams, 456 F.3d at

1363.

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IV. CONCLUSION

Clay’s conviction and sentence are

AFFIRMED.

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