finding circumstances weighed in favor of voluntary consent when defendant “concede[d] that he was told several times he did not have to consent and that his consent could be withdrawn”
How later courts described this case
- finding circumstances weighed in favor of voluntary consent when defendant “concede[d] that he was told several times he did not have to consent and that his consent could be withdrawn”
- stating approvingly that the indictments listed the dates of the offenses
- remanding for resentencing to determine whether four offenses that occurred on three different dates occurred on the same occasion
- declining to find that recent Supreme Court case abrogated prior cases and relying in part on Mallory
Written by the judges who cited it.
The opinion
Case: 21-10966 Document: 00516861985 Page: 1 Date Filed: 08/17/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 17, 2023
No. 21-10966
Lyle W. Cayce
____________
Clerk
United States of America,
Plaintiff—Appellee,
versus
Abedel Sattar Alkheqani,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-124-1
______________________________
Before Haynes and Engelhardt, Circuit Judges, and deGravelles,
District Judge. *
John W. deGravelles, District Judge:
Abedel Sattar Alkheqani appeals the district court’s denial of his
motion to suppress on two grounds: (1) that officers lacked reasonable
suspicion to initiate a traffic stop of his vehicle, and (2) that Alkheqani did
not voluntarily consent to the search of his home and truck during the stop.
*
United States District Judge for the Middle District of Louisiana, sitting by
designation.
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No. 21-10966
Alkheqani also appeals his sentencing, arguing, inter alia, that the district
court erred in relying on the Pre-Sentence Investigation Report (“PSR”) to
sentence him under the Armed Career Criminal Act (“ACCA”) rather than
any evidence required by Shepard v. United States, 544 U.S. 13 (2005). For
the following reasons, we AFFIRM the denial of Alkheqani’s motion to
suppress but REVERSE the district court’s application of the ACCA,
VACATE his sentence, and REMAND for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Shooting and Traffic Stop
On March 29, 2020, around 3:49 p.m., in Arlington, Texas, 911
operators received several calls about a shooting. The gunshots were heard
near a Boys and Girls Club. Callers reported arguing between men, yelling,
and ultimately gunshots. A witness identified a dark-colored (black or gray),
older pickup truck with a driver’s side that needed to be painted and was
lighter than the rest of the truck. Additionally, the description of the suspect
was a male who was 5’10”, had a dark-complexion (“black or Hispanic”),
had facial hair and dark hair, weighed 160 pounds, and was in his late 20’s.
Within minutes of these calls, officers with the Arlington Police
Department arrived on the scene. Police spoke with a witness who described
the suspect consistently with the 911 calls: a Hispanic male, late 20’s or early
30’s, 5’10”, with black hair and black facial hair. Officers also obtained
surveillance footage from the Boys and Girls Club that showed a darkish
colored pickup truck leaving the parking lot. The vehicle had distinctive
markings, some of which were consistent with the 911 calls; these markings
included a driver’s side passenger door that was lighter in color than the rest
of the vehicle, a truck bed cover, and four stickers in the back window (two
lighter colored ones in the lower left and lower right, one lighter colored in
the center, and a bluish colored sticker in the top left area).
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Police then drove the area and located a darkish colored Ford pickup
truck matching the features of the vehicle and with the same stickers. The
officers ran the license plate for the truck, and the registration came back with
Alkheqani as the owner, a man whose ID photo showed he was Middle-
Eastern, of dark complexion, and about 27 years old. As one officer indicated,
“Alkheqani . . . could reasonably be seen as a dark-complected Hispanic
male” and “also had black facial hair in his ID photo.”
Police then kept surveillance of the house where the truck was parked,
and they ultimately saw a Middle Eastern man matching the suspect’s
description leave the house in a red car. Officers followed the vehicle and
conducted a traffic stop. The officers drew their pistols, aimed at the
occupants, and ordered them to keep their hands up. The passengers were
separated and detained.
Officers detected a strong odor of marijuana coming from the inside
of the vehicle, so they conducted a probable cause search. Alkheqani was
placed under arrest for possession of marijuana. Police released the other
occupants.
Alkheqani was placed in the back of a squad car, and a rear dash
camera captured his exchanges with officers. Police asked for permission to
search Alkheqani’s home and truck, and he granted it several times, even
after officers said he could refuse.
Alkheqani was told he was under arrest for the marijuana. But, police
also candidly told him that there was an incident earlier in which “[s]omeone
got hurt[,]” that his vehicle matched the one seen, and that his physical
description matched the suspect.
Again after being told he could refuse, Alkheqani signed consent-to-
search forms. Alkheqani said he had nothing to hide.
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Throughout his exchange with law enforcement, Alkheqani spoke
English well and understood the officers, even going so far as to ask questions
about the contents of the consent form. He also acknowledged that “it’s not
my first,” which is consistent with his five prior convictions (four of which
were for felony Burglary of a Habitation).
Officers asked him if he had any firearms in the house, and he replied,
“I have a .22 rifle in the back room. It’s my wife’s, she uses it. Just for
safety.” During the search of the home, the .22 caliber rifle was found in the
master bedroom.
II. Procedural History
Alkheqani was indicted for one count of possession of a firearm by a
convicted felon. He later moved to suppress the evidence acquired from the
search of his residence and truck. Alkheqani argued that (1) officers lacked
reasonable suspicion to pull over his car, so the stop was unlawful, and (2) he
did not voluntarily consent to the search of his home and truck. The district
court denied the motion, finding reasonable suspicion and voluntary consent.
On March 22, 2021, the matter proceeded to trial by jury. Three days
later, Alkheqani was convicted.
The PSR was issued on May 19, 2021. The PSR noted in the facts:
A 911 caller that observed the incident[ ] reported they heard
Alkheqani demand the victim, “Get on the ground, bitch.”
The caller reported Alkheqani then shot at D.D. multiple times
while the victim was running away. . . . Investigators conducted
an interview with D.D. who stated Alkheqani had demanded he
give him food and money[ ] and told D.D. to get on the ground.
D.D. responded he didn’t have anything and fled when he was
shot by Alkheqani.
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The PSR gave a four-level enhancement for possessing the firearm in
connection with Aggravated Assault with a Deadly Weapon because “[t]he
defendant used a 9-millimeter firearm to shoot D.D. at least three times[.]”
The PSR also enhanced the offense level to 34 based on the ACCA and
Alkheqani’s four prior convictions for Burglary of a Habitation.
The Government objected to, among other things, the cross-reference
and argued that the PSR should have cross-referenced U.S.S.G. § 2A2.1 for
Assault with Intent to Commit Murder or Attempted Murder. Alkheqani
objected that, inter alia, (1) he did not possess a firearm or ammunition in
connection with another felony offense, and (2) he was not an Armed Career
Criminal. As to the latter, Alkheqani objected at the sentencing hearing that,
though the burglaries occurred on separate days, they should be considered
one criminal episode. But, Alkheqani did not object to the court’s failure to
consider only Shepard-documents and evidence.
At the sentencing hearing, the district court sustained the
Government’s objection and overruled Alkheqani’s. The district court also
adopted the probation officer’s findings of fact in the PSR. The statement of
reasons provides, “The Court concludes that USSG 2K2.1(c)(1) applies and
the cross-reference to USSG 2A2.1 [does as well] because the defendant
possessed the charged ammunition in connection with attempted murder.
This cross-reference results in a Total Offense Level of 35.” Alkheqani was
sentenced to 324 months imprisonment as a career offender.
DISCUSSION
I. The Suppression Motion
Alkheqani now raises five issues on appeal, two of which involve the
district court’s denial of his motion to suppress. First, he argues that the
police lacked a particularized and objective basis for suspecting he committed
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No. 21-10966
the shooting when they initiated the traffic stop. Second, Alkheqani urges
that he did not voluntarily consent to the search of his vehicle.
“When a challenge to the denial of a motion to suppress is made, we
review legal determinations de novo and factual findings for clear error.”
United States v. Thomas, 997 F.3d 603, 609 (5th Cir. 2021) (citing United
States v. Bolden, 508 F.3d 204, 205 (5th Cir. 2007)). “We view the evidence
in the light most favorable to the party who prevailed in district court — here,
the Government.” Id. (citing United States v. Michelletti, 13 F.3d 838, 841 (5th
Cir. 1994) (en banc)). “The district court’s ruling on a motion to suppress
will be upheld if there is any reasonable view of the evidence to support doing
so.” Id. (citing Michelletti, 13 F.3d at 841).
A. Reasonable Suspicion to Support the Traffic Stop
“‘Whether an officer had reasonable suspicion to support a stop is
treated as a question of law.’” United States v. Broca-Martinez, 855 F.3d 675,
678 (5th Cir. 2017) (quoting United States v. Castillo, 804 F.3d 361, 364 (5th
Cir. 2021)). “Demonstrating reasonable suspicion is the Government’s
burden.” United States v. McKinney, 980 F.3d 485, 491 (5th Cir. 2020) (citing
United States v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014)).
“The Fourth Amendment protects individuals against warrantless
searches and seizures.” Broca-Martinez, 855 F.3d at 678 (citing U.S. Const.
amend. IV). “It ‘applies to seizures of the person, including brief
investigatory stops such as the stop of the vehicle here.’” Id. (quoting United
States v. Cortez, 449 U.S. 411, 417 (1981)).
“When a vehicle is stopped, the officer ‘must have a particularized
and objective basis for suspecting the particular person stopped of criminal
activity.’” Id. (quoting Cortez, 449 U.S. at 417–18). “‘[R]easonable
suspicion[’] exists ‘when the officer can point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably
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warrant the search and seizure.’” Broca-Martinez, 855 F.3d at 678 (quoting
United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005)).
“[T]he level of suspicion the standard requires is considerably less
than proof of wrongdoing by a preponderance of the evidence, and obviously
less than is necessary for probable cause.” Thomas, 997 F.3d at 610 (quoting
Kansas v. Glover, 140 S. Ct. 1183, 1187 (2020)). “[T]he essence of all that has
been written is that the totality of the circumstances — the whole picture —
must be taken into account.” Thomas, 997 F.3d at 610 (quoting Cortez, 449
U.S. at 417).
“Whether an officer has reasonable suspicion to stop is answered
from the facts known to the officer at the time.” United States v. Alvarez, 40
F.4th 339, 345 (5th Cir. 2022) (quoting United States v. Vickers, 540 F.3d 356,
361 (5th Cir. 2008)). “Relevant facts and considerations may include a
description of a suspect, a suspect’s location and proximity to known or
reported criminal activity, the timeliness of information or the stop, a
suspect’s behavior, and the officer’s experience.” Id. at 346 (citing Illinois v.
Wardlow, 528 U.S. 119, 124 (2000); Thomas, 997 F.3d at 610–11; McKinney,
980 F.3d at 491–95; United States v. Vickers, 540 F.3d 356, 361 (5th Cir.
2008)). “Facts that appear innocent when viewed in isolation can constitute
reasonable suspicion when viewed collectively.” Id. (citing United States v.
Arvizu, 534 U.S. 266, 277 (2002)).
Alkheqani argues that the district court erred in finding reasonable
suspicion on three main grounds. First, Alkheqani contends that the officers
were operating on generic information about the suspect and his vehicle
rather than the requisite particularized facts. Second, Alkheqani maintains
that the police improperly used conflicting and contradictory information to
support the stop. And third, Alkheqani asserts that temporal and geographic
proximity do not weigh in support of a finding of reasonable suspicion
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because he was seized three hours after the shooting at a distance less than a
mile away.
We disagree. In sum, we agree with the district court that (1) the stop
was based on particularized, not generic, information; (2) minor conflicts in
eyewitness accounts do not warrant a different finding; and (3) temporal and
geographic proximity support a finding of reasonable suspicion. Thus, for the
reasons provided below, we reject each of Alkheqani’s arguments.
1. Generic Information
Alkheqani primarily relies on two cases in arguing that the information
relied upon by the police was too generic: Alvarez and United States v. Jaquez,
421 F.3d 338 (5th Cir. 2005) (per curiam). We find both distinguishable.
In Alvarez, the Fifth Circuit reversed the district court’s finding of
reasonable suspicion. Alvarez, 40 F.4th at 347–52. Because the case involved
“completed criminal activity” rather than “a report of ongoing or very
recent criminal activity[,] . . . the description of a Hispanic male who had
once ridden a bicycle with large handlebars in a general area at some unknown
time in the past [could not] justify the stop of Alvarez.” Id. at 347–48.
Further, the majority also found the “subject’s physical description” to be
“too general and vague” when “[o]ther than race and sex, [the officers] knew
of no descriptors” and when descriptions of the suspect as “Hispanic”
meant little in a predominately Hispanic or Latino community so that the
description “fit too many people . . .” Id. at 348. As to the bicycle, “‘[l]arge
handlebars’ pales in comparison to vehicle descriptions that have created or
contributed to reasonable suspicion,” and there was no evidence establishing
that the “handlebars were sufficiently distinctive to create reasonable
suspicion.” Id. at 348–49 (citations omitted).
Likewise, in Jaquez, the Fifth Circuit reversed the lower court’s
denial of a motion to suppress and found reasonable suspicion lacking.
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Jaquez, 421 F.3d at 340. The officer admitted at the hearing “that at the time
she stopped Jaquez’s car she had no specific information about the car
reported to have been involved in the ‘shots fired’ incident other than the
fact that it was red; she had no further description of that vehicle or its
occupants.” Id. Jaquez was stopped “only because (1) he was driving a red
car, (2) in the general vicinity of the incident reported 15 minutes earlier, (3)
late at night, (4) in an area known for its high crime rate.” Id. The Court
found, “The sparse and broadly generic information provided by the
dispatcher, without more, was insufficient to support a determination of
reasonable suspicion, as required under Terry.” Id. at 341.
Unlike Alvarez and Jacquez, this case does not involve vague and
generalized descriptions of Alkheqani or his vehicle. Alkheqani’s truck was
identified from witness descriptions and surveillance footage taken near the
scene of the crime. As the district court explained, while trucks are certainly
common in Texas, “the truck in the video had several distinguishing
characteristics. It had a dark-colored bed cover; it had a marred paint job on
the driver’s side; and it had several distinctive stickers on the back window.
Together, these attributes narrowed the field of possible trucks to a very
small number.” Likewise, officers located the truck and obtained
Alkheqani’s ID photo, and he substantially matched the description of the
suspect: “in his 20s, with a dark complexion, and facial hair.” Thus, Alvarez
and Jacquez do not entitle defendant to relief.
Rather, this case more closely resembles those cases cited by Alvarez
and Jaquez which found reasonable suspicion. See United States v. Campbell,
178 F.3d 345, 347–48 (5th Cir. 1999) (upholding stop where individual
“matched the physical description” of bank robber and “was approaching a
car that matched a detailed description of the getaway vehicle and bore the
same license plate,” namely “a late 1980s, black Chevrolet Cavalier with
Tennessee license plate 600TTP”); United States v. Brown, 558 F. App’x
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386, 392 (5th Cir. 2014) (per curiam) (holding “investigatory stop was
justified at its inception” where victim identified vehicle as “look[ing] just
like” the two suspects’ truck and it “matched the make, model, and color of
the vehicle . . . and had Florida license plates”); United States v. Hall, 557
F.2d 1114, 1117 (5th Cir.1977) (finding that officer was justified in making stop
of “a red 1969 Ford driven by a light complexioned black male, proceeding
away from the vicinity of a bank robbery within twenty minutes after the
robbery” because “[t]he description of the car and the driver fit the cursory
description of one of the robbers.”). For these reasons, we reject Alkheqani’s
argument on this issue.
2. Contradictory Information
We next reject Alkheqani’s complaints about the discrepancies in the
witnesses’ descriptions of the perpetrator and vehicle. 1 Alkheqani relies on
United States v. Rias, 524 F.2d 118 (5th Cir. 1975), where the appellate court
found no reasonable suspicion when an officer stopped two black men in a
black Chevrolet on the grounds that, a few weeks before, “two black males in
a black or blue Chevrolet were suspects in a series of Farm Store robberies,”
because, inter alia, the “officer was unsure whether the automobile . . . was
black or blue” and “the only description of the robbers was that they were
black males[.]” Id. at 119–21.
But Rias also does not entitle Alkheqani to relief. Numerous other
appellate courts have recognized that minor inconsistencies in witness
1
Specifically, one witness described the suspect as “dark complected,” guessing
he was Hispanic; in his late 20’s; “average height, maybe a little bit . . . shorter . . . [m]aybe
5’10”ish;” “thin built;” with a “goatee;” with dark hair; and “probably about 160,” while
another witness said the suspect was Hispanic, 6’2”, and about 190. Further, one witness
described the truck as “black,” while another described it as “gray” with the driver’s side
that needed to be painted.
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descriptions are not automatically fatal to a finding of probable cause, and
these cases apply a fortiori here, as reasonable suspicion demands even less
than probable cause. See United States v. Quinn, 18 F.3d 1461, 1464 (9th Cir.
1994) (finding that “inconsistencies of the witnesses’ descriptions of the
robber [did] not negate the probable cause” when “there was evidence
independent of the descriptions connecting the defendant to illegal
activity.”). 2
As amply established above, the corroboration here went well beyond
eye witness descriptions of the truck’s color and included video showing the
truck’s highly distinctive features and Alkheqani’s ID photo. Thus, the
minor contradictions highlighted by Alkheqani do not warrant reversal.
3. Temporary and Physical Proximity
Finally, we turn to Alkheqani’s last argument about reasonable
suspicion. “A less specific description may support reasonable suspicion
where there is temporal and geographic proximity to recent criminal
2
See also Ellis v. United States, 264 F.2d 372, 374–75 (D.C. Cir. 1959) (affirming a
conviction for burglary and finding of probable cause, even given “[s]uch inconsistencies
as . . . complaining witnesses [ ] not agree[ing] in their estimates of age or height” because
“the basic elements of the various descriptions were similar, and fairly matched Ellis’
appearance.”); Burgess v. DeJoseph, 725 F. App’x 36, 39 (2d Cir. 2018) (summary order)
(affirming finding of probable cause after two witnesses identified the plaintiff as the
shooter, despite “inconsistencies in the descriptions given by the interviewees,” because
“[t]here [was] no evidence . . . that either officer was aware of the inconsistencies,” and
“even if they were aware of the inconsistencies, they reasonably relied on the independent
positive photo identifications when making the probable cause determination.”); Torry v.
City of Chicago, 932 F.3d 579, 588 (7th Cir. 2019) (Barrett, J.) (“Under our precedent, an
imperfect match between a suspect and a description does not necessarily make an officer’s
suspicion unreasonable.” (citing D.Z. v. Buell, 796 F.3d 749, 754 (7th Cir. 2015) (finding
reasonable suspicion to stop a person “who somewhat matched the description of the
suspect”)).
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activity.” Alvarez, 40 F.4th at 347 (citations omitted). See also Thomas, 997
F.3d at 611 (“The passage of a meaningful period of time since a crime can
be a factor in considering reasonableness. In some circumstances, the shorter
the temporal gap, the more likely it is that someone in the vicinity of the crime
was involved.”) (citing Bolden, 508 F.3d at 205, 207 (upholding stop of car
driving “relatively fast” within a minute of hearing gunshots “around the
corner”)); Hall, 557 F.2d at 1115–17 (upholding stop of man matching
complexion of one of the suspects driving vehicle matching color, year, and
brand of escape car when driver was “proceeding away from the vicinity of a
bank robbery within twenty minutes after the robbery.”). Cf. also McKinney,
980 F.3d at 488–93 (finding that drive-by shootings occurring at a gas station
in a high crime area, including one at 4:00 a.m., did not justify a stop at 9:00
p.m. that day because there was no “connection between the person and
those crimes”).
The district court relied on temporal and physical proximity to
support its decision. Specifically, the lower court noted that Alkheqani’s
vehicle was found “only three hours after the video was taken and less than
a mile away” from the scene of the crime.
While Alkheqani does not dispute these factual findings, he maintains
that they “are of little help to officers in the instant case,” and he again relies
on Alvarez, which also found that these factors did not support a finding of
reasonable suspicion. In that case, as to location, “officers knew only that the
subject had previously been seen in the Leopard–Up River area and ‘may be’
there. They had no information whatsoever about where in the area he had
been seen or when he had been seen there—whether ‘that day,’ ‘the day
before,’ or ‘the week before.’” Alvarez, 40 F.4th at 349–50 (footnote
omitted). “Nor did they have reason to believe he might still have been in the
area—for example, if he resided there.” Id. at 350 (citing, inter alia, United
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States v. Jones, 619 F.2d 494, 498 (5th Cir. 1980) (finding description of
suspect from robbery five weeks ago “stale”)).
While the three hour, less-than-a-mile proximity here is not as close
as Bolden, 508 F.3d at 205 (within a minute and “around the corner”), or
Hall, 557 F.2d at 1117 (driving away from the “vicinity” of the robbery
“within twenty minutes” of it), it is much closer in time than Alvarez, 40
F.4th at 350 (unknown whether suspect had been seen there “the week
before”) or Jones, 619 F.2d at 498 (five-week-old “stale” information).
Thus, we find that temporal and physical proximity to the crime weighs in
the Government’s favor.
4. Conclusion
Again, “[t]he district court’s ruling on a motion to suppress will be
upheld if there is any reasonable view of the evidence to support doing so.”
Thomas, 997 F.3d at 609 (citing Michelletti, 13 F.3d at 841). Here, there was
ample evidence supporting the lower court’s finding, and, indeed, we agree
with its conclusions. Consequently, we reject this assignment of error.
B. Consent to Search the Home and Vehicle
“Whether consent was given voluntarily is a question of fact reviewed
under a clearly erroneous standard.” United States v. Bass, 996 F.3d 729, 739
(5th Cir. 2021) (citing United States v. Blevins, 755 F.3d 312, 326 (5th Cir.
2014)). “Factual findings are clearly erroneous only if a review of the record
leaves this Court with a definite and firm conviction that a mistake has been
committed.” Id. at 736 (citation and quotations omitted). “A factual finding
is not clearly erroneous as long as it is plausible in light of the record as a
whole.” Id. (quoting United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir.
2001)). “The Government must prove [Alkheqani] voluntarily consented to
the search by a preponderance of the evidence.” Id. at 739 (citing United
States v. Rounds, 749 F.3d 326, 338 (5th Cir. 2014)).
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Consent is determined based on the totality of the circumstances, and
this Court looks at six factors:
(1) the voluntariness of the defendant’s custodial status; (2)
the presence of coercive police procedures; (3) the extent and
level of the defendant’s cooperation with the police; (4) the
defendant’s awareness of his right to refuse consent; (5) the
defendant’s education and intelligence; and (6) the
defendant’s belief that no incriminating evidence will be found.
United States v. Perales, 886 F.3d 542, 546 (5th Cir. 2018) (cleaned up).
“Although all six factors are relevant, no single factor is dispositive.” Id.
(quoting United States v. Shabazz, 993 F.2d 431, 438 (5th Cir. 1993)).
The district court found that one factor (custodial status) weighed in
favor of involuntariness, one factor (belief that incriminating evidence would
be found) was neutral, and the rest weighed in favor of voluntariness.
Alkheqani disagrees, arguing that, at most, two factors support a finding of
voluntariness, and four factors militate against it.
We will examine each of these factors in turn below. In sum, we find
no clear error in the district court’s analysis as to any individual factor or as
to all factors as a whole.
1. Voluntariness of Custodial Status
Both sides agree that because Alkheqani was under arrest at the time
for possession of marijuana, the district court correctly concluded that this
factor weighed in favor of involuntariness. However, as the district court
stated, “the fact of custody alone has never been enough in itself to
demonstrate a coerced confession or consent to search.” United States v.
Watson, 423 U.S. 411, 424 (1976). See also United States v. Malagerio, 49 F.4th
911, 917 (5th Cir. 2022) (affirming denial of motion to suppress because,
though defendant’s “custodial status was not voluntary, [ ] most or all of the
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No. 21-10966
remaining factors tilt in favor of the search’s being voluntary.”), cert. denied,
No. 22-6575, 2023 WL 3046174 (U.S. Apr. 24, 2023).
2. Coercive Police Procedures
Conduct falling under this category includes threats of force,
promises, trickery, or deceit designed to pressure a suspect into consenting
to searches or “more subtle forms of coercion that might flaw his judgment.”
Watson, 423 U.S. at 424. See also United States v. Soriano, 976 F.3d 450, 456–
57 (5th Cir. 2020).
The district court found that, though there were some elements of
coercion, this factor ultimately weighed in favor of voluntariness.
Specifically, the traffic stop was initiated in a “highly coercive way,” with
officers having guns drawn and ordering the occupants from the vehicle, and
there were multiple officers around Alkheqani. However, “all the other facts
weigh against coercion,” as (1) sufficient time passed between the stop and
the consent so that “everyone was much calmer,” (2) the officers spoke to
Alkheqani “one on one, not in groups,” in conversations with a polite tone,
(3) “[p]olice never made any promises, threatened to get a warrant, or used
any deception,” and (4) officers “calmly explained his rights several times,
including the right to say ‘no.’”
Alkheqani maintains that the district court clearly erred in weighing
this factor in favor of voluntariness. He notes, as the district court did, that
he was ordered out of his car at gunpoint and was surrounded by multiple
officers. Further, Alkheqani complains that deceit was in fact used, as officers
falsely said they wanted to search in order to rule Alkheqani out as a suspect
and that they would not search his car without him present. Finally,
Alkheqani was handcuffed in the back of a police car, with four officers
present, when he gave his consent.
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No. 21-10966
Having reviewed the conversation between the officers and
Alkheqani, we find that the district court did not clearly err in finding this
factor weighed in the Government’s favor. Even accepting that the officers
told Alkheqani that he could be present for the search, he had already said
several times that his house and car could be searched before those promises
were made.
Further, Alkheqani claims the officers misrepresented they were
searching for exculpatory evidence, but, when Alkheqani asked what was
happening, the police forthrightly said that there was an incident earlier in
which “[s]omeone got hurt,” that his truck matched the suspect vehicle, and
that his physical description matched the suspect’s description. Thus, while
there is some gamesmanship by the detective, this was not the kind of trickery
designed to put pressure on Alkheqani to consent or impair his judgment. See
Soriano, 976 F.3d at 456–57; Watson, 423 U.S. at 424.
Further, even accepting that these two facts weighed in favor of
involuntariness, the other facts highlighted by the district court—the passage
of time, individual conversations, no threat to get a warrant, and calm
explanations of rights, including the right to refuse—remain in favor of
voluntariness. At the very least, when viewing the evidence in a light most
favorable to the Government, Thomas, 997 F.3d at 609, the district court’s
conclusion remains “plausible in light of the record as a whole.” Bass, 996
F.3d at 736. Thus, there was no clear error here.
3. Extent and Level of Defendant’s Cooperation
“Cooperation by the defendant is a factor favoring a finding that
consent was voluntary.” Soriano, 976 F.3d at 457. Even if a defendant
expresses several instances of being nervous, this factor weighs in favor of
voluntariness if the defendant is “more cooperative than not.” See id. Here,
Alkheqani concedes that, though he was nervous and frustrated at times, he
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No. 21-10966
was “generally responsive and polite” and that the district court’s finding on
this factor is plausible. Thus, this factor also weighs in favor of voluntariness.
4. Defendant’s Awareness of his Right to Refuse
“An officer’s failure to inform a suspect that he has a right to refuse
to consent to a search militates against voluntariness.” Soriano, 976 F.3d at
457 (citation omitted). Alkheqani concedes that he was told several times he
did not have to consent and that his consent could be withdrawn.
Consequently, this factor weighs in favor of voluntariness.
5. Defendant’s Education and Intelligence
The district court found that this factor weighed in favor of
voluntariness. Alkheqani argues this was clear error, pointing to his ninth-
grade education, repeated questions to the officers, and statements that he
did not understand what was happening.
We find that the district court’s conclusion was not clearly erroneous.
As the lower court explained, “Alkheqani was 26 years old, spoke fluent
English, and competently interacted with police;” while he had only a ninth-
grade education, he had “substantial experience in the criminal justice
system;” and though he asked many questions about the situation, his
intelligent questions and responses “actually show his intelligence” and
supports the conclusion that he “appears to have understood what was
happening.” At the very least, this conclusion is plausible in light of the
record as a whole.
Soriano supports this conclusion. There, the Fifth Circuit found no
clear error in the district court’s finding that this factor “weigh[ed]
marginally in favor of voluntariness[.]” Soriano, 976 F.3d at 457–58. The
Fifth Circuit noted that defendant was “37 years old at the time of his arrest
and had completed six years of formal education in Mexico.” Id. at 458. The
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No. 21-10966
appellate court’s “review of the transcript of the traffic stop confirm[ed] that
[defendant] was responsive to [the officer’s] questions and understood the
import of the traffic stop.” Id. Moreover, the Fifth Circuit also agreed with
the district court, which noted that defendant’s “previous interactions with
police indicated that [defendant] was not a newcomer to the law” and that
“[defendant’s] helpful demeanor during the stop, his interaction with the
police, and his testimony indicated that he was at least of average
intelligence.” Id. at 457. Thus, there was no clear error. See also United States
v. Galberth, 846 F.2d 983, 987–88 (5th Cir. 1988) (finding that defendant’s
“prior experience with the criminal justice system” also “weigh[ed] in favor
of the district court’s finding of a valid consent to the search”).
The same reasoning applies here. Despite his limited formal
education, Alkheqani’s age; prior experience with the justice system (“No, I
understand, it’s not my first.”); review of and question about the consent
forms (i.e., asking why the form asked about stolen property); and interaction
with the officers as a whole make the district court’s conclusion plausible.
Thus, construing the evidence in a light most favorable to the Government,
there is no clear error.
6. Defendant’s Belief Incriminating Evidence Would Be Found
“An awareness or belief that no incriminating evidence will be found
weighs in favor of a finding of voluntariness. Consequently, an awareness or
belief that some incriminating evidence will be found weighs against a finding
of voluntariness.” Soriano, 976 F.3d at 458 (internal citation omitted).
The district court concluded this factor was “at best neutral, and
perhaps weigh[ed] slightly in favor of voluntariness.” On the one hand,
Alkheqani “expressed worry that police would find marijuana in his house,”
but, on the other, he said “several times that he had nothing to hide” and
“specifically admitted to police that he had a .22 rifle in the house.”
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No. 21-10966
Alkheqani urges clear error because he knew his house contained
contraband, he expressed worry about additional drug charges, and he
admitted to the rifle. The Government responds that neither shows clear
error; for example, Alkheqani’s admission about the rifle “signaled to police
that he did not think it was incriminating[ ] because it was his wife’s rifle.”
The Government also notes that, elsewhere in this case, Alkheqani tried to
show that possession of the firearm was lawful under state law.
Both of these positions are supported by the record and are plausible,
and this underscores why there is no clear error here. As the Government
argues, Alkheqani did say numerous times he had nothing to hide, and a
reasonable inference from his statement that “I have a .22 rifle in the back
room. It’s my wife’s, she uses it,” is that he believed there was nothing wrong
with his wife possessing it. At the very least, we are not left with “a definite
and firm conviction that a mistake has been committed,” Bass, 996 F.3d at
736 (citation omitted), and there is no clear error, see United States v. Kelley,
981 F.2d 1464, 1471 (5th Cir. 1993) (finding that “the factors, considered as
a whole, support[ed] the district court’s finding [of] voluntar[y] consent,”
even where it was “unclear” whether consenting passenger/owner
“believed that incriminating evidence would be found during the search”
because “[p]erhaps she believed that the search would reveal only evidence
that would incriminate [the driver], and not incriminate her.”).
7. Conclusion
We agree with the district court that four factors weigh in favor of
voluntariness, one indicates involuntariness, and one is, at most, neutral.
Considering the record as a whole and the totality of the circumstances, and
construing the evidence in a light most favorable to the Government, the
district court’s decision was plausible, so there is no reversible error. See
Soriano, 976 F.3d at 455–58 (finding no clear error in district court’s
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No. 21-10966
conclusion that consent was voluntary based on the totality of the
circumstances, even though three factors weighed in favor of voluntariness
and three against); United States v. Valentine, 401 F.3d 609, 613 (5th Cir.
2005) (“Although reasonable jurists might reach different conclusions based
on the evidence presented, we cannot say that the voluntariness conclusion
was clearly erroneous.”).
II. Sentencing
Alkheqani’s remaining issues raised on appeal involve his sentencing.
We find that the last one—related to the ACCA—is dispositive, so we focus
our analysis here. 3
A. Standard of Review
“This court reviews de novo the district court’s application of the
ACCA.” United States v. McGee, 460 F.3d 667, 668 (5th Cir. 2006) (citing
United States v. Munoz, 150 F.3d 401, 419 (5th Cir. 1998)). But if a defendant
does not raise an ACCA argument in the district court, it is reviewed for plain
error. See, e.g., United States v. Jenkins, 487 F.3d 279, 281–82 (5th Cir. 2007)
(applying plain error when defendant argued on appeal that the district court
violated Shepard by relying on a PSR but did not specifically object to the
lower court’s consideration of the PSR); United States v. Stevens, No. 20-
11264, 2022 WL 17832291, at *1 (5th Cir. Dec. 21, 2022) (per curiam)
(reviewing under plain error when defendant argued “[f]or the first time on
3
For the other two issues, Alkheqani argues: (1) that there was insufficient
evidence to find that he committed the shooting so as to apply the cross-referenced
U.S.S.G. § 2A2.1 for Assault with Intent to Commit Murder or Attempted Murder, and
(2) that the district court committed plain error in applying § 2A2.1 because, even
accepting the PSR’s factual determinations as true, his conduct did not constitute
Attempted First Degree Murder as a matter of law. Alkheqani’s counsel stated at oral
argument that if we agree with him on the ACCA, there is no need to decide these other
issues. We agree.
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appeal . . . that he should not have received the enhanced sentence because
the Government failed to show that he had three qualifying prior
convictions.”).
Here, Alkheqani argued at sentencing that the ACCA should not
apply because his prior convictions constituted a single criminal episode.
However, he did not argue that the district court erred in failing to consider
only Shepard-approved documents. Thus, we review the former de novo and
the latter for plain error.
“To prevail on plain error review, [Alkheqani] must identify (1) a
forfeited error (2) that is clear and obvious, and (3) that affects his substantial
rights.” United States v. Velasquez, 825 F.3d 257, 259 (5th Cir. 2016) (citing
Puckett v. United States, 556 U.S. 129, 135 (2009)). “If [Alkheqani] satisfies
the first three requirements, we may, in our discretion, remedy the error if
the error seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. (cleaned up).
B. Parties’ Arguments
The district judge relied solely on the PSR in applying the ACCA. The
PSR found that Alkheqani had “four prior convictions for Burglary of a
Habitation.”
Alkheqani argues that the predicate offenses constituted, at most, only
two criminal episodes under the Supreme Court’s recent decision of Wooden
v. United States, 142 S. Ct. 1063 (2022). According to Alkheqani, “the first
two burglaries occurred within hours of each other—one late at night on
April 15, 2012, and the other on the morning of April 16, 2012,” and “[t]he
remaining two . . . occurred within an hour of each other within the same
block on May 12, 2012.” Alkheqani contends that the district court erred in
relying on the PSR to apply the enhancement rather than any documents
required by Shepard.
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The Government responds that (1) “[e]ven after Wooden, Alkheqani’s
burglaries—committed on three different days in four different locations—
were committed on at least three different occasions;” (2) Wooden abrogated
prior caselaw requiring Shepard documents; and (3) even if Shepard
documents were required, the record reflects that four burglaries occurred
on three different days, and that is sufficient under Wooden.
In reply, Alkheqani argues that (1) Wooden did not abrogate precedent
requiring Shepard documents; and (2) the Shepard documents in the record
do not conclusively show that the predicate offenses occurred on separate
occasions, as they fail to include the locations or times of the offenses, and
the information that is included strengthens Alkheqani’s position that the
burglaries only constituted two occasions.
C. Whether the District Court Erred: Wooden and Shepard
The ACCA “mandates a 15-year minimum sentence for unlawful gun
possession when the offender has three or more prior convictions for violent
felonies like burglary ‘committed on occasions different from one another.’”
Wooden, 142 S. Ct. at 1067 (quoting 18 U.S.C. § 924(e)(1)). Before Wooden,
the Fifth Circuit “[f]ollow[ed] Shepard [ ], to determine whether two
offenses occurred on different occasions[.]” United States v. Young, 809 F.
App’x 203, 209–10 (5th Cir. 2020) (per curiam) (citing Shepard, 544 U.S. at
16).
Under Shepard, “a court is permitted to examine only ‘the statutory
definition, charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the
defendant assented.’” Id. at 210 (quoting Shepard, 544 U.S. at 16; United
States v. Fuller, 453 F.3d 274, 279 (5th Cir. 2006), abrogated on other grounds
by Wooden, 142 S. Ct. 1063). “In addition to Shepard-approved documents, a
court may consider a defendant’s admissions.” Id. (citing United States v.
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Mendoza-Sanchez, 456 F.3d 479, 483 (5th Cir. 2006)). But “a court cannot
rely on a presentence investigation report’s characterization of predicate
offenses,” id. (citing United States v. Garza-Lopez, 410 F.3d 268, 273–74 (5th
Cir. 2005)), or on police reports, id. (citing Shepard, 544 U.S. at 16).
“Interpreting Shepard, this court holds that a district court errs when
it solely relies upon the PSR’s characterization of a defendant’s prior
offenses for enhancement purposes.” Jenkins, 487 F.3d at 281 (citation
omitted). See also United States v. Wright, No. 21-60877, 2022 WL 3369131,
at *1 (5th Cir. Aug. 16, 2022) (“[U]nder Shepard, a district court is not
permitted to rely on the PSR’s characterization of a defendant’s prior offense
for enhancement purposes.” (citing Garza-Lopez 410 F.3d at 274)). Thus, if
Shepard remains good law, the district court erred in relying on the PSR
alone.
The Government contends that no error was committed. According
to the Government, post-Wooden, Shepard documents are no longer required
to establish ACCA predicate offenses.
We disagree. In Wooden, the Supreme Court granted review with “the
disputed question [being] whether Wooden committed his crimes on a single
occasion or on ten separate ones” for purposes of the ACCA. 142 S. Ct. at
1069. The Supreme Court looked at the “ordinary meaning of ‘occasion’”
to define the term as “an event, occurrence, happening, or episode [which] .
. . may itself encompass multiple, temporally distinct activities.” Id. at 1069. 4
4
The Court explained:
The occasion of a wedding, for example, often includes a ceremony,
cocktail hour, dinner, and dancing. Those doings are proximate in time and
place[ ] and have a shared theme (celebrating the happy couple); their
connections are, indeed, what makes them part of a single event. But they
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In the criminal “sphere too, an ‘occasion’ means an event or episode—which
may, in common usage, include temporally discrete offenses.” Id. at 1070.
The inquiry that requirement entails, given what “occasion”
ordinarily means, is more multi-factored in nature. . . . [A]
range of circumstances may be relevant to identifying episodes
of criminal activity. Timing of course matters, though not in
the split-second, elements-based way the Government
proposes. Offenses committed close in time, in an
uninterrupted course of conduct, will often count as part of one
occasion; not so offenses separated by substantial gaps in time
or significant intervening events. Proximity of location is also
important; the further away crimes take place, the less likely
they are components of the same criminal event. And the
character and relationship of the offenses may make a
difference: The more similar or intertwined the conduct giving
rise to the offenses—the more, for example, they share a
common scheme or purpose—the more apt they are to
compose one occasion.
Id. at 1070–71. “In many cases, a single factor—especially of time or place—
can decisively differentiate occasions. Courts, for instance, have nearly
always treated offenses as occurring on separate occasions if a person
committed them a day or more apart, or at a ‘significant distance.’” Id. at
1071 (first quoting United States v. Rideout, 3 F.3d 32, 35 (2d Cir. 1993), and
then citing United States v. Riddle, 47 F.3d 460, 462 (1st Cir. 1995) (per
do not occur at the same moment: The newlyweds would surely take
offense if a guest organized a conga line in the middle of their vows.
Wooden, 142 S. Ct. at 1069–70.
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curiam)). In “hard cases[,] . . . assessing the relevant circumstances may also
involve keeping an eye on ACCA’s history and purpose[.]” Id. 5
The Supreme Court determined that this was not one of the difficult
cases, as “every relevant consideration shows that Wooden burglarized ten
storage units on a single occasion, even though his criminal activity resulted
in double-digit convictions.” 6 Id. at 1071. In reaching this conclusion, the
High Court relied in part on the indictment as confirmation that offenses
occurred on a single occasion. Id.
Thus, little in Wooden can be read as abrogating the requirements of
Shepard. In fact, Wooden supports the continued vitality of Shepard, as the
Supreme Court looked to the state-court charging document in support of its
decision. See id.
Even putting this aside, as Alkheqani argues, the Fifth Circuit has
twice looked at the ACCA after Wooden, and, on both occasions, the Court
has emphasized the necessity of Shephard documents. See Wright, 2022 WL
3369131, at *1 (vacating sua sponte sentence because “[t]he district court
relied on the PSR—and only the PSR—to find that Wright had the three
5
With respect to history, “Congress added the occasions clause only after a court
applied ACCA to an offender much like Wooden—a person convicted of multiple counts
of robbery arising from a single criminal episode.” Wooden, 142 S. Ct. at 1072. With respect
to the purpose of the ACCA, Congress enacted the law “to address the special danger
posed by the eponymous armed career criminal. The theory of the statute is that those who
commit a large number of fairly serious crimes as their means of livelihood are especially
likely to inflict grave harm when in possession of a firearm.” Id. at 1074 (cleaned up). The
statute “targets . . . those who have repeatedly committed violent crimes.” Id. (cleaned
up).
6
The burglaries happened “on a single night, in a single uninterrupted course of
conduct . . . at one location, a one-building storage facility with one address[;]” were
“essentially identical” and “intertwined with the others[;]” and involved the “same
scheme, actuated by the same motive, and accomplished by the same means.” Wooden, 142
S Ct. at 1071.
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requisite convictions,” and, though the Court “examined the record, . . . no
Shepard-approved documents [were] conclusive as to whether the predicate
ACCA offenses occurred on separate occasions . . .”); Stevens, 2022 WL
17832291, at *1 (“When making this determination” of whether a defendant
committed predicate offenses “‘on occasions different from one another,’ . .
. a court may examine only ‘Shepard-approved’ material . . .”). The
Government complains that these cases are not binding precedent, but they
remain highly persuasive, particularly in light of Wooden.
For all these reasons, Wooden did not abrogate Shepard. Consequently,
the district court erred in relying on the PSR alone. See Mallory v. Norfolk S.
Ry. Co., 143 S. Ct. 2028, 2038 (2023) (“If a precedent of this Court has direct
application in a case, . . . a lower court should follow the case which directly
controls, leaving to this Court the prerogative of overruling its own
decisions.” (cleaned up)).
D. Whether A Substantial Right Was Affected: Review of
Shepard-Approved Documents
We must next decide whether the lower court’s error affected a
substantial right. Velasquez, 825 F.3d at 259. “To satisfy the ‘substantial-
rights’ prong, [Alkheqani] must demonstrate ‘a reasonable probability that,
but for the district court’s [error], he would have received a lesser
sentence.’” Stevens, 2022 WL 17832291, at *2 (quoting United States v.
Martinez-Rodriguez, 821 F.3d 659, 663–64 (5th Cir. 2016) (internal quotation
omitted)).
To answer this question, we must review the record to determine
whether “Shepard-approved documents are conclusive as to whether the
predicate ACCA offenses occurred on separate occasions[.]” See Wright,
2022 WL 3369131, at *1; Stevens, 2022 WL 17832291, at *2. If so, there is no
reversible plain error, and the sentence will be affirmed. See Stevens, 2022
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WL 17832291, at *2. If not, the sentence must be vacated. See Wright, 2022
WL 3369131, at *1.
Again, under Wooden, the Court is required to consider “a range of
circumstances.” Wooden, 142 S. Ct. at 1070–71. These include timing (such
as whether the events consisted of “an uninterrupted course of conduct” or
whether they were “separated by substantial gaps in time or significant
intervening events”), “proximity of location” (with crimes taking place
further apart considered less likely to be parts of the same criminal event),
and the “character and relationship of the offenses” (such as whether they
are “more similar [and] intertwined” or “share a common scheme or
purpose”). Id. at 1071.
Here, the Shepard-approved documents in the record show four
judgments and indictments for the crime of Burglary of a Habitation in
Tarrant County, Texas, for the offenses committed on (1) April 15, 2012; (2)
April 16, 2012; (3) May 12, 2012; and (4) May 12, 2012. None of the
judgments or indictments list the time of the offenses. Further, locations are
not definitively given, though four different victim initials are listed.
We find that these limited Shepard-approved documents do not
“conclusively” show that the predicate offenses occurred on different
occasions. The four offenses occurred on three different dates, but, as
Alkheqani argues, no other details are given as to whether the burglaries
occurring on April 15–16, 2012, happened “on a single night, in a single
uninterrupted course of conduct . . . .” Wooden, 142 S. Ct. at 1071. Further,
different victims imply different locations, but no detail is given as to the
proximity of these victims to one another. Moreover, no information is given
as to whether these events were “intertwined with the others” or involved
the “same scheme, actuated by the same motive, and accomplished by the
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same means.” Id. Indeed, the fact that the same exact crime was committed
in such a narrow span weighs in Alkheqani’s favor.
In sum, the Shepard-documents do not conclusively show that
Alkheqani’s predicate offenses occurred on three separate occasions. Thus,
the district court’s error affected a substantial right, and we must vacate the
sentence. See Wright, 2022 WL 3369131, at *1 (“Because no Shepard-
approved documents are conclusive as to whether the predicate ACCA
offenses occurred on separate occasions, Wilson’s sentence must be
vacated.”). Further, given the fact that Wooden was decided after the notice
of appeal was filed, we will remand the case for a full resentencing consistent
with this opinion, at which time the Government may introduce any
additional Shepard-evidence into the record.
CONCLUSION
For the reasons discussed, we AFFIRM the district court’s denial of
Alkheqani’s motion to suppress, REVERSE the district court’s application
of the Armed Career Criminal Act, VACATE the sentence, and REMAND
for full resentencing consistent with this opinion.
28