Petition for Writ of Certiorari — Robert Tremaine Williams, Petitioner v. United States

\

No. :

IN THE

SUPREME COURT OF THE UNITED STATES

ROBERT TREMAINE WILLIAMS,

PETITIONER,

V.

UNITED STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE ELEVENTH CIRCUIT COURT OF APPEALS

APPENDIX

N

Robert Tremaine Williams

# 17231-002

received

dec - 2 2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 18-30902

FILED

August 27, 2019

UNITED STATES OF AMERICA,

Lyle W. Cayce

Clerk

Plaintiff - Appellee

v.

ROBERT TREMAINE WILLIAMS,

Defendant - Appellant

Appeal from the United States District Court

j for the Western District of Louisiana

USDCNo. 2:17-CR-122

Before KING, HIGGINSON, and DUNCAN, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:*

Robert Tremaine Williams, challenging his conviction for possession of

cocaine with intent to distribute, argues that the district court should have

i

suppressed evidence obtained by a Louisiana police officer during a highway

stop. Williams also challenges his sentence, 96 months, as substantively

unreasonable. We affirm,

* Pursuant to 5TH Cm. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

ClR. R. 47.5.4.

No. 18-30902

I

An indictment filed in May 2017 charged Williams with possessing 500

grams or more of cocaine with intent to distribute, in violation of 21 U.S.C.

§ 841. The charge arose from a traffic stop along Interstate 10 near Lake

Charles, Louisiana on September 9, 2014. Williams moved to suppress the

cocaine found during that traffic stop, leading to an evidentiary hearing before

a U.S. magistrate judge.

At the suppression hearing, the Government presented the testimony of

Chad Booth, an officer of the Lake Charles Police Department and a member

of an anti-drug t'ask force operating in Calcasieu Parish, Louisiana. Booth

testified that on the morning of September 9, 2014, he had parked his marked

i

canine unit near mile marker 35 on 1-10, facing the eastbound lanes. At 5:57

AM, he observed a tan Grand Marquis traveling in the left lane, side by side

with a tractor trailer! Booth said his visibility was roughly a mile despite the

early-morning dafkness thanks to fights on the interstate. This permitted him

to observe the vehicle traveling next to the tractor trailer for “[approximately

half a mile” without passing it. After the Grand Marquis and tractor trailer

passed, Booth followed, acting on a Louisiana statute that prohibits travel in

the left lane, subject to certain exceptions, like passing. See LA. REV. STAT.

§ 32:71(B)(l)(a).

Catching up to the Grand Marquis, which had remained in the left lane

without passing the tractor trailer, Booth did not yet switch on his fights or

siren. Instead, hd “applied pressure” by driving “very close” to the rear of the

vehicle. The Grand Marquis then sped up, passed the tractor trailer, and

moved out of the passing lane, at which point Booth turned on his fights and

pulled it over.

j

Williams wjas the vehicle’s driver and only occupant. Booth approached

on the passenger side and asked Williams for his driver’s license. At this point,

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No. 18-30902

Booth observed that Williams’s hands were shaky and sweaty and that sweat

was forming on the bridge of his nose, despite the car’s air conditioning. Booth

inferred Williams was “extremely nervous.” Booth also asked Williams about

his origin and destination. Williams evidently said he had interviewed at “a

refinery in Beaumontf, Texas] for a scaffolding job” but did not identify the

company. During this questioning, Booth saw that Williams’s “carotid artery

began to pulsate visibly,” and he observed Williams pausing before answering,

sensing that Williams was hesitant to speak. Booth then took Williams’s

driver’s license to run a computer check. Just before leaving, he told Williams

that “if everything comes back ... valid then I’ll just give [you] a warning.”

While Booth was running the computer check, a second officer, Kevin

Hoover, arrived. According to Booth, Hoover had heard about the stop over the

radio and decided to help. The check came back clean, and Booth asked

Williams to get out of his vehicle and sign a “notice of violation,” a written

warning. Booth then returned Williams’s driver’s license.

Despite the earlier promise, Booth did not now tell Williams he could go.

Instead, Booth asked Williams “if he would agree to speak with me some more,”

and Williams did. Noting Williams’s continued signs of nervousness, Booth

resumed questioning, with Hoover standing nearby. Booth asked Williams for

the name of the company where he had interviewed, and this time, Williams

answered that it ;was Chevron. Booth judged this an inconsistency, because

Williams had not said the company name earlier.1 Booth also discerned an

inconsistency when Williams explained his destination. Williams had said at

some point earlier that he was unemployed. Now, during this second round of

questioning, Williams said that he had to get home to Alabama “to make some

1 It is not clear from the record whether Booth had asked Williams specifically for the

company name during the first round of questioning.

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No. 18-30902

money’ and to get back to his children. Booth viewed this as inconsistent with

being unemployed.

By this time, Booth suspected criminal conduct and intended to search

Williams’s vehicle! though he kept his suspicion and intent to himself. Instead,

he showed Williams a “search and seizure form” used by the drug task force,

but Williams refused to let Booth search his vehicle.2 Notwithstanding

Williams’s refusal, Booth returned to his unit to get his drug dog. While being

walked around Williams’s vehicle, the dog alerted next to the trunk. Booth’s

search of the trunk turned up 2.5 pounds of cocaine.

Following the hearing, the magistrate judge issued a report and

recommendation in which she concluded that Booth’s initial stop was justified

under the Louisiana statute restricting travel in the left lane. The magistrate

judge also concluded that the stop was “converted into a consensual encounter”

after Booth returned Williams’s driver’s license and completed issuing

Williams a warning. The magistrate judge explained that a reasonable person

would have felt free to leave under the circumstances.

Over Williams’s objections, the district court adopted the magistrate

judge’s report and recommendations in full, adding no reasoning of its own.

Williams agreed to a conditional guilty plea, retaining his right to appeal the

denial of his moticn to suppress. The district court then sentenced Williams to

96 months’ imprisonment, the upper bound of the guideline range produced by

Williams’s pre-sentence report (PSR).3 Williams timely appealed.

2 Booth read the form to Williams after Williams explained that he could not read.

3 Williams’s guideline range was 77 to 96 months, the product of an offense level of 21

and a category VI criiiinal history.

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No. 18-30902

II

In considering motions to suppress, we review the district court’s factual

findings for clear error and its conclusions of law de novo. United States v.

Contreras, 905 F.3d 853, 857 (5th Cir. 2018). We will uphold the denial

of a

motion to suppress “if there is any reasonable view of the evidence to support

It.” Id. (quoting United States v. Michelletti, 13 F.3d 838, 841 (5th Cir. 1994)

(en banc)). We view all evidence in the light most favorable to the prevailing

party below. Id. .

HI

A

A traffic stop is a seizure under the Fourth Amendment. United States

v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc). We examine the

legality of a traffic stop under the two-pronged inquiry of Terry v. Ohio, 392

U.S. 1 (1968). See Brigham, 382 F.3d at 506. “[We] first examine whether the

officer’s action was justified at its inception, and then inquire whether the

officer’s subsequent actions were reasonably related in scope to the

circumstances that justified the stop.” Id.

Officer Booth justified stopping Williams under Louisiana’s law that

[ujpon all multilane highways, no vehicle shall be driven in the left-hand lane

except when.. . overtaking or passing another vehicle proceeding in the

direction,’ among certain other circumstances.

See La.

same

Rev. Stat.

§ 32:71(B)(l)(a).4 Williams contends that, from Booth’s vantage point, he “

could

not have observed ,Mr. Williams’s vehicle for long enough to form

a reasonable

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No. 18-30902

suspicion that a violation of [the statute] had occurred.” Williams adds that he

in fact did pass the adjoining tractor trailer before Booth pulled him over, so

he actually compli ed with the statute.

To justify a stop, an officer’s view that a driver has violated the law need

not be strictly correct, but it must be “objectively reasonable.” United States v.

Henry, 853 F.3d 754, 757 (5th Cir. 2017). Williams’s argument is not without

force, because the Louisiana statute does not specify a time or distance that a

car must remain in the left-hand lane before a violation occurs. To gauge the

reasonableness of an officer’s interpretation of state law, we may look to the

judicial decisions of that state. See id. at 757-58. A violation of § 32:71(B)(l)(a)

is not established merely by a vehicle being momentarily in the left-hand lane.

See Sons v. Commercial Union Assur. Cos., 433 So. 2d 842, 845-46 (La. Ct.

App. 1983). But th!e Louisiana Court of Appeal has found a stop justified under

§ 32:71(B)(l)(a) when'an officer testified that he saw the vehicle travel “a good

half mile” before moving over to the side. See State v. Lewis, 980 So. 2d 251,

255 (La. Ct. App. 2008).6 Under these interpretations of the statute, Booth’s

testimony that he watched Williams in the left-hand lane for approximately

half a mile is an objectively reasonable justification for the initial stop.

To avoid suppression of the evidence, Booth’s subsequent actions must

have been “reasonably related in scope to the circumstances that justified the

stop.” Brigham, 382 F.3d at 506 (citing Terry, 392 U.S. at 19-20). Booth’s initial

questioning and computer check of Williams are well within that scope. See id.

at 506-08. But detention resulting from a traffic stop “must be temporary and

i

last no longer than is necessary to effectuate the purpose of the stop, unless

Similarly, we have upheld a stop by an officer who observed a driver in the left-hand

lane for “ample time” but did not specify a distance. See United States v. Landaverde-Castillo,

731 F. App’x 293, 29^ (5th Cir. 2018).

■ 6

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No. 18-30902

further reasonable suspicion, supported by articulable facts, emerges.” Id. at

507.

The Supreme Court recently clarified the law governing officers’ actions

that broaden their investigation and extend detention beyond the scope of the

initial stop. An officer’s “ordinary inquiries incident to the traffic stop” include

those that Booth carried out: checking the driver’s license, looking for

outstanding warrants, or inspecting the vehicle’s registration. Rodriguez v.

United States, 135 S. Ct. 1609, 1615 (2015) (quotation omitted). “A dog sniff,

by contrast, is a measure aimed at detecting evidence of ordinary criminal

wrongdoing.

Id,\ (quotation omitted). “[A] dog sniff, unlike the routine

measures just mentioned, is not an ordinary incident of a traffic stop.” Id.

The magistrate judge upheld the dog sniff and the extension of

Williams’s detention that it entailed on the ground that the stop had evolved

into a consensual encounter. See Brigham, 382 F.3d at 508 (“[A] consensual

interrogation may follow the end of a valid traffic stop and .,. such consensual

encounters do not implicate Fourth Amendment concerns.”). Once Williams

signed the notice of violation, Booth returned his driver’s license and was not

physically restraining him or accusing him criminal conduct. Thus, the

magistrate judge concluded that a reasonable person would have felt free to

leave. See United States v. Drayton, 536 U.S. 194, 201 (2002) (“If a reasonable

person would feel free to terminate the encounter [with law enforcement], then

he or she has not been seized [within the meaning of the Fourth

Amendment].”).

Williams disputes this conclusion. He points out that Booth had not kept

his initial promise to let him go if the computer check of his license was clean.

Williams also notes that Booth had asked him to get out of his vehicle. This

left Williams “flanked by” the two officers on the side of the interstate, with a

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No. 18-30902

drug dog waiting in the wings and Booth asking Williams if he would keep

talking.

Under these circumstances, the. officers did bring a measure of coercion

to bear on Williams, compared, for instance, to a traffic stop carried out by a

single officer who permitted Williams to remain in his car. But we have

frequently ruled that drivers should have felt free to leave, or that they gave

valid consent to questioning or a search, under circumstances at least as

coercive as these. See, e.g., United States v. Perales, 886 F.3d 542, 547-48 (5th

Cir. 2018); Carney v. Brandon Police Dep’t, 624 F. App’x 199, 200-02 (5th Cir.

2015); United States v. Zambrano, 325 F. App’x 369, 371 (5th Cir. 2009); United

States v. Gurrola, 301 F. App’x 337, 341-42 (5th Cir. 2008); United States v.

Mendieta-Garza, 254 F. App’x 307, 313-14 (5th Cir. 2007). Moreover, when we

have found a seizure or concluded that consent was invalid, officers took some

coercive step beyond what the officers did here. See, e.g., United States v.

Santiago, 310 F.3i 336, 343 (5th Cir. 2002) (deeming consent invalid where

the officer retained the driver’s documents and insinuated the driver was

involved in criminal activity); United States v. Jones, 234 F.3d 234, 243 (5th

Cir. 2000) (same, where officers retained the driver’s documents and kept him

in the back of the patrol unit). Accordingly, consistent with our caselaw, we

conclude that Williams was no longer seized at the moment Booth returned his

driver’s license and asked if he would keep talking.

That conclusion goes only so far, however. After Booth’s second round of

questioning, he asked Williams for consent to search, and at this point,

Williams refused. Booth then told Williams that he would conduct a dog sniff.

In the process, Booth went beyond the “ordinary inquiries” incidental to a

traffic stop. Rodriguez, 135 S. Ct. at 1615. Contrary to the magistrate judge’s

ruling, Williams dj.d not consent to this. Consequently, Booth must have had

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No. 18-30902

“the reasonable suspicion ordinarily demanded to justify detaining an

individual.” Id.

At the evidentiary hearing, the Government presented

argument on

Booth’s suspicions to the magistrate judge, but the magistrate judge declined

to consider it, resting her ruling instead on Williams’s consent. Despite that,

we may affirm the lower court’s ruling on a motion to suppress based on any

rationale raised below and supported by the record. United States v. Wallace,

885 F.3d 806, 809 (5th Cir. 2018) (quotation omitted). We therefore consider

whether Booth had reasonable suspicion to justify the continued detention of

Williams.

Reasonable suspicion must be supported by “specific and articulable

facts.” United, States v. Alvarado-Zarza, 782 F.3d 246, 249 (5th Cir. 2016)

(quoting Terry, 392 U.S. at 21). “Although a mere hunch does not create

reasonable suspicion, the 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.” Navarette v.

California, 572 ILS. 393, 397 (2014) (quotations omitted).

At the evidentiary hearing, the Government emphasized the signs of

Williams’s nervousness that Booth observed: the shaking hands

the

perspiration, and the active carotid artery. The Government also relied on the

apparent inconsistencies in Williams’s answers between the initial and later

rounds of questioning. On appeal, the Government reiterates these facts,

adding Williams’s repeated pauses before answering questions as another form

of suspicious behayior. The Government also points to Williams’s travel along

I-10 from Texas, describing that state and that highway as “a destination and

route well-known for drug trafficking.”

It may be that some of Booth’s observations, taken alone, are “readily

susceptible to an innocent explanation,” but we are to train our review of

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No. 18-30902

reasonable suspicion on the totality of the circumstances. See United States v.

Arvizu, 534 U.S. 266, 274—75 (2002). We have repeatedly ruled that signs of

nervousness and inconsistent or implausible answers to questions can support

reasonable suspicion. See, e.g., United States v. Pack, 612 F.3d 341, 361-62

(5th Cir. 2010); United States v. Pena-Gonzalez, 618 F. App’x 195,199-200 (5th

Cir. 2015); United^ States v. Fajardo-Guevara, 507 F. App’x 365, 367-68 (5th

Cir. 2014); United States v. Stilley, 191 F. App’x 284, 285 (5th Cir. 2006). We

have also ruled that a driver’s location may be significant, though it may be

less compelling in some cases than in others. Compare Pack, 612 F.3d at 345,

362 (finding travel along 1-30 significant), with United States v. Gonzalez, 328

F.3d 755, 757-58 ( 5th Cir. 2003) (finding travel along 1-20 significant because

it was hundreds of miles from the most efficient route to the driver’s claimed

destination).

In light of Our ciaselaw, the relatively low proof required for reasonable

suspicion, and the standard of review favoring the prevailing party below, we

conclude that the Government met its burden. Reasonable suspicion supported

continuing to detain Williams so Booth could conduct the dog sniff. The dog’s

alert, in turn, furnished probable cause to search the vehicle. See United States

v. Ned, 637 F.3d 562, 567—68 (5th Cir. 2011). Accordingly, we affirm the denial

of Williams’s motio n to suppress.

B

Williams also challenges his 96-month sentence as substantively

unreasonable in light of the factors codified at 18 U.S.C. § 3553(a). We review

the substantive reasonableness of a sentence for abuse of discretion. Gall v.

United States, 552 U.S. 38, 51 (2007). A sentence within the guideline range

promulgated by the U.S. Sentencing Commission enjoys “a presumption of

reasonableness.” United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011).

Rebuttal of that presumption requires a showing that the court (1) failed to

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No. 18-30902

consider a factor it should, have considered,

(2) gave significant weight to an

improper or irrelevant factor, or (3) clearly erred in balancing the factors.

United States v. Ayelotan, 917 F.3d 394,

409 (5th Cir. 2019).

Williams’s 'guideline range was 77 to 96 months, and he did not object to

the calculation yielding that

range. At the sentencing hearing, counsel for

Williams urged a sentence of 77 months, identifying the

considerations that Williams now presses

same mitigating

on appeal: a letter from his pastor

attesting to his behavior as a father and husband; the family “support system”

that would help him after release from Dri

prison, and substance abuse motivating

his criminal conduct. The Government responded there and responds

now by

emphasizing Williams’s “substantial criminal history,” which placed him in

Category VI under the Sentencing Guidelines. After

arguments from counsel,

the district court reviewed the § 3553(a) factors, noting “the need to avoid

unwarranted sentencing disparities among defendants with similar records

found guilty of similar conduct” as “a particularly relevant one in this case.”

Seeing “no need to depart from the guidelines,”

bound.

the court chose the upper

The record shows that the district court heard the

same considerations

is thus a request to weigh the

balance of those sentencing factors again, but no argument from Williams

that Williams urges to us. Williams’s appeal

shows us clear error in the balance the district court

struck. Consequently, we

presume the sentence reasonable, and we affirm.

IV

For the foregoing reasons, the judgment

AFFIRMED.

11

of the district court is