U.S. v. Lyons

• Decision Date: 23 March 2005
• Docket Number: No. 03-15073.,03-15073.
• Citation: 403 F.3d 1248
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel J. LYONS, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

403 F.3d 1248

UNITED STATES of America, Plaintiff-Appellee, v. Daniel J. LYONS, Jr., Defendant-Appellant.

No. 03-15073.

United States Court of Appeals, Eleventh Circuit.

March 23, 2005.

COPYRIGHT MATERIAL OMITTED

Rosemary T. Cakmis, R. Fletcher Peacock, James T. Skuthan, Federal Public Defenders, Orlando, FL, Russell K. Rosenthal, Asst. Federal Public Defender, Fort Myers, FL, Mark Rankin, Asst. Federal Public Defender, Tampa, FL, for Defendant-Appellant.

Todd B. Grandy, Tampa, FL, for Plaintiff-Appellee.

Before MARCUS, FAY and SILER^*, Circuit Judges.

MARCUS, Circuit Judge:

Daniel L. Lyons appeals his conviction for possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g), and the 235-month sentence the district court imposed based on his status as an "armed career criminal," pursuant to 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4(b). On appeal, Lyons argues that: (1) the district court erred by denying his pre-trial motion to suppress four bullets found on his person during a search incident to his arrest for disorderly conduct, a violation of Fla. Stat. § 877.03; (2) the district court erred by granting the government's motion in limine to exclude evidence of Lyons's state-court acquittal on the § 877.03 charges; and (3) the imposition of a 235-month "armed career criminal" sentence constitutes cruel and unusual punishment, in violation of the Eighth Amendment.

We apply a mixed standard of review to the denial of a defendant's motion to suppress, reviewing the district court's findings of fact for clear error and its application of law to those facts de novo. United States v. Desir, 257 F.3d 1233, 1235-36 (11th Cir.2001). We review a district court's evidentiary rulings for abuse of discretion. See United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir.2004) (en banc), petition for cert. filed, No. 04-8324 (Jan. 13, 2005). As for Lyons's constitutional challenge to his sentence, our review is de novo. See United States v. Reynolds, 215 F.3d 1210, 1212 (11th Cir.2000).

Upon thorough review of the record, as well as careful consideration of the parties' briefs and oral argument, we find no reversible error and affirm.

I.

The relevant facts are straightforward. On November 13, 2002, Lyons was indicted in one count for possession of ammunition (four Remington .22 caliber bullets), after having been convicted of three or more violent felony or serious drug offenses, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The indictment identified eight prior felony convictions: grand theft, attempted robbery, aggravated assault, two robberies, sale or delivery of cocaine, possession of cocaine, and sale of a substance in lieu of a controlled substance. Lyons moved to dismiss the indictment, arguing that the armed-career-criminal charge violated the Eighth Amendment's proscription of cruel and unusual punishment. The district court denied his motion. Lyons then filed a motion to suppress the four bullets found on his person during a search incident to his arrest for disorderly conduct. He argued that the seizure of the bullets was illegal because his conduct did not violate Florida's disorderly conduct statute, Fla. Stat. § 877.03. He maintained that the foregoing argument was supported by the fact that he had been acquitted on the § 877.03 charge in state court.

At an evidentiary hearing on the motion to suppress, the government presented the following evidence. Detective Brian Gederian of the Fort Myers Police Department ("FMPD") testified that, during the early morning hours of September 16, 2001, he was patrolling an area containing a number of bars where "several fights" had occurred that evening. When he arrived, Detective Gederian approximated, 30 to 40 people were present at the scene. This was right around the closing time of the area bars. In the course of breaking up a developing fight, Detective Gederian arrested a friend of Lyons. According to Detective Gederian, after he had arrested Lyons's friend and placed the friend in the back of a patrol car, Lyons began "protesting about his friend's arrest" by "swearing and cussing." Lyons also directed racial epithets at Detective Gederian. Detective Gederian described Lyons's demeanor as "very aggressive," and indicated that he appeared intoxicated.

For security reasons, Detective Gederian asked Lyons to "step back about ten to fifteen times." Lyons failed to comply with these ten to fifteen requests and kept running toward Detective Gederian, approaching Gederian at a distance he estimated was not closer than "arm's length." At this point, Detective Gederian moved to arrest Lyons. When he was told that he was going to be arrested, Lyons took a "fighting stance," necessitating Gederian's use of pepper spray to subdue him. After Lyons's arrest, police officers found four Remington .22 caliber bullets in Lyons's front pocket.

FMPD Officer Jeffrey Paul Bernice, who was on patrol in the same area on the night of Lyons's arrest, assisted in the arrest of Lyons's friend. Officer Bernice testified that the friend was an Asian male who, it was reported, had slapped a white female. Officer Bernice testified that he had encountered Lyons prior to the evening of September 16, 2001, and that, in these situations, "Lyons was always respectful to me, courteous, kind, always friendly." However, on the evening of his arrest, Bernice described Lyons as "very upset" and "angry." According to Officer Bernice, after Lyons's friend was arrested, Lyons began "screaming obscenities," and gesturing by holding his hands up in the air. At some point, two bottles were thrown at law enforcement officers in the area, but the officers were unable to tell who threw the bottles. There were about five law enforcement officers at the scene of the arrest. Officer Bernice confirmed that Detective Gederian directed Lyons to leave, but that Lyons did not comply with this instruction. Officer Bernice testified that the crowd then consisted of over 100 people.

In support of his suppression motion, Lyons presented the testimony of a friend, Jana K. Minor, who had been at the scene of Lyons's arrest. Minor stated that she, Lyons, and Lyons's then-girlfriend went to a bar in downtown Fort Myers. Outside of the bar, Minor saw a woman named "Tracy" hit an Asian man, at which point, the man had to "restrain her [Tracy] so she wouldn't hit him again." Minor further testified that Tracy then falsely reported to law enforcement that the Asian man hit her. After the alleged false report, Minor saw the officers arrest the Asian man. Minor also observed that after a female friend protested the arrest, the police "thr[ew] her to the ground and put [her] in handcuffs." According to Minor, at this point Lyons called the officers "fucking honkeys" while he was walking away from the scene. The police officers then sprayed Lyons with mace and handcuffed him. According to Minor's account, Lyons swore at the police officers only once.

In a Report and Recommendation (R&R), the magistrate judge recommended denying the motion to suppress. The magistrate judge concluded that the police had probable cause to arrest Lyons for a violation of Florida law (disorderly conduct) based on the following facts: (1) "[a]t the time of Mr. Lyons's arrest, Detective Gederian was facing a large crowd of people" and was attempting to disperse the crowd; (2) Lyons yelled obscenities at the officers and was "running up to the officers," for a "reason [that] did not appear to be evident to Officer Detective Gederian"; and (3) bottles were thrown at the officers by unknown persons in the crowd. The magistrate judge denied Lyons's suppression motion, concluding that "Lyons's words along with his non-verbal actions interfered with Officer Detective Gederian's duty to disperse the crowd, and Officer Detective Gederian had probable cause for arresting Mr. Lyons pursuant to [Fla. Stat.] § 877.03."

Lyons objected to the R&R, arguing, inter alia, that under Florida law, his conduct did not constitute disorderly conduct because it consisted of "mere words." The district court disagreed, observing: (1) "the testimony established that a crowd of a couple hundred people were" assembled at the scene of Lyons's arrest; (2) when police officers arrested Lyons's friend after a fight, Lyons began "swearing and cussing"; (3) Lyons "would stand back for a moment, then run up in an aggressive manner while continuing to yell, scream, and use profanity the entire time"; and (4) Lyons "repeated this conduct between ten and fifteen times over a period of about ten minutes." Based upon these findings, the district court concluded that "the totality of the circumstances in this case establishes that defendant's conduct was more than mere protected speech and was sufficient for the officers to have probable cause to arrest under the Florida disorderly person statute." Accordingly, the district court denied Lyons's objections, adopted the R&R, and denied the motion to suppress.

At the start of Lyons's subsequent trial, the government moved in limine to prevent Lyons from introducing evidence of his state-court acquittal on the disorderly-conduct charges. The government argued that this information was irrelevant to Lyons's charged offense of possessing ammunition while a convicted felon. Lyons conceded this point, but maintained that the evidence was relevant to show Detective Gederian's motive and bias. The district court disagreed and granted the government's motion.

At trial, Detective Gederian presented testimony that was, in all material respects, consistent with the testimony he provided at the suppression hearing. In addition, he testified that after he returned to the police station, Officer Sean Hoover gave him a "property envelope" containing the four bullets. Detective Gederian indicated that he placed the bullets into a plastic bag. He also identified the bullets for the jury. When he submitted the bullets for...