USA v. Brewer
| Decision Date | 21 October 2010 |
| Docket Number | No. 09-3909.,09-3909. |
| Citation | 624 F.3d 900 |
| Parties | UNITED STATES of America, Appellee, v. Edward Frank BREWER, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
624 F.3d 900
UNITED STATES of America, Appellee,
v.
Edward Frank BREWER, Appellant.
No. 09-3909.
United States Court of Appeals,Eighth Circuit.
Submitted: June 18, 2010.
Filed: Oct. 21, 2010.
COPYRIGHT MATERIAL OMITTED.
Wallace L. Taylor, argued, Cedar Rapids, IA, for appellant.
Daniel A. Chatham, Special AUSA, argued, Cedar Rapids, IA, for appellee.
Before LOKEN, BRIGHT, and GRUENDER, Circuit Judges.
GRUENDER, Circuit Judge.
Edward Brewer was convicted after a jury trial of conspiracy to distribute crack cocaine, distribution of crack cocaine, and possession with intent to distribute crack cocaine. See 21 U.S.C. §§ 841(a)(1) and 846. The district court 1 sentenced Brewer to 370 months' imprisonment and 10 years of supervised release. Brewer appeals his convictions and sentence. For the following reasons, we affirm.
I. BACKGROUND
In September 2008, Kelly Meggers, an Iowa Division of Narcotics Enforcement Special Agent, arranged to buy crack cocaine from Brewer, a suspected drug dealer, with the help of a Drug Enforcement Administration (“DEA”) confidential source (“CS”). The CS called Brewer and introduced him to Agent Meggers over the phone. Agent Meggers arranged for the CS to meet Brewer on September 19, 2008, in order to buy a bag of crack cocaine. During the conversation, Brewer warned that he always has “a second set of eyes watch [his] back” during such deals.
On September 19, after strip searching the CS and equipping her with a digital recording device, Agent Meggers provided the CS with prerecorded buy money and drove her to the appointed location, a mall parking lot. A surveillance team consisting of DEA agents and Cedar Rapids Police Department officers was already in place at the parking lot. Brewer arrived in a white van and sold approximately 13.2 grams of crack cocaine to the CS for $800.
Following the sale, Brewer drove the white van away from the mall. Having learned ahead of time that Brewer's driver's license was suspended, Officer Dale Moyle requested that a patrol officer in a marked car stop Brewer. Officer Jeff Herbert pulled Brewer over. At least two other patrol cars arrived on the scene, and Brewer was arrested for driving with a suspended license. During the stop, Officer Chip Joecken recovered the $800 in prerecorded cash used in the undercover buy.
That same evening, Agent Meggers called Brewer to tell him that she was pleased with the crack cocaine and to arrange another purchase the following week. Despite what Brewer described as “the drama” of being arrested, he agreed to sell her more crack. In a series of recorded phone calls, Meggers asked to buy “two of them” at “8 a pop,” meaning that she wanted to purchase two $800 bags of crack cocaine.
During a September 23, 2009 phone call, Brewer directed Agent Meggers to go to the same mall parking lot, where he told her she would find a cup on the ground. Brewer instructed Meggers to retrieve a bag of crack cocaine hidden inside the cup and to leave the money under a nearby rock. Before the transaction, surveillance officers observed a purple Grand Am driven by Brewer's girlfriend, Rosina Rhodes, stop in a nearby Burger King parking lot. Rhodes opened the car door and picked up a Burger King cup that was lying on the ground. Later, when Agent Meggers approached the area of the parking lot identified by Brewer, she found a Burger King cup with 27 grams of crack cocaine in it. Meggers left $1,600 in prerecorded buy money under a nearby rock, as instructed.
On September 30, 2008, Agent Meggers met Brewer in the parking lot of an apartment complex to buy more crack cocaine. When Meggers arrived, Brewer got in her truck and, without speaking, pulled a bag containing approximately 29 grams of crack cocaine out of his front pocket and placed it in the cupholder. Meggers paid Brewer, after which he promptly exited her vehicle and walked away. Rhodes picked Brewer up and drove away from the parking lot irregularly-doubling back over streets and making U-turns-in an apparent attempt to avoid being followed.
In subsequent recorded phone calls, Agent Meggers arranged to buy more crack cocaine from Brewer on October 9, 2008. Once again, surveillance officers positioned themselves in various places in the mall parking lot to observe the transaction. Shortly before noon, Rhodes parked her purple Grand Am in the lot. Twenty
minutes later, Brewer drove up. After speaking briefly with Rhodes, Brewer drove away. Rhodes remained in her car, watching the area of the parking lot where the Burger King cup had been left on September 23. Brewer then met Agent Meggers on the opposite side of the mall. Brewer got into Meggers's truck, and she drove him to a different part of the parking lot. Brewer told her that he would reveal where the crack cocaine was hidden after she paid him in full. Meggers balked at this request, but Brewer remained steadfast. During their conversation, Brewer barely talked above a whisper and repeatedly turned up the radio. Agent Meggers later testified that Brewer was wearing a Bluetooth headset, which he appeared to be using to speak with someone else. Agent Meggers refused to pay without seeing the crack cocaine, and Brewer refused to show her the crack before she gave him the money. After about twenty minutes, Meggers drove Brewer back to his car.
Brewer was arrested as soon as he exited Meggers's truck. The arresting officers recovered two cell phones from Brewer. They also found a Bluetooth headset on the ground nearby. Using cell phone records, Agent Meggers later discovered that Brewer had been on the phone with Rhodes while he was in Meggers's truck.
While Brewer was being arrested, several officers approached Rhodes, who had been sitting in her car for nearly an hour. Rhodes consented to a search of her car and told the officers they would find a handgun in the trunk. The officers found the gun, which was loaded, in a case. The gun had a trigger lock on it. In a post-arrest interview, Brewer admitted that he knew Rhodes had purchased the handgun and that she always kept it in her trunk. Agent Meggers later searched the area of the parking lot that Rhodes had been watching and found approximately 83 grams of crack cocaine in a plastic shopping bag.
A federal grand jury returned a four-count indictment charging Brewer with various drug offenses. The grand jury later returned a five-count superseding indictment charging Brewer with conspiring with Rhodes to distribute fifty grams or more of crack cocaine (Count I), distribution of five grams of more of crack cocaine (Counts II, III, and IV), and possession with intent to distribute fifty grams or more of crack cocaine (Count V).
Brewer moved to suppress the $800 seized during the September 19, 2008 traffic stop. Following a suppression hearing, the magistrate judge recommended denying Brewer's motion. The district court adopted the magistrate judge's report and recommendation and denied Brewer's motion to suppress.
The case proceeded to trial, and the jury found Brewer guilty on all counts. At sentencing, the district court found that Brewer's base offense level was 32. The district court denied Brewer's request for a two-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1, and applied a two-level enhancement for obstruction of justice, see U.S.S.G. § 3C1.1. 2 The court also applied two-level enhancements for role in the offense, see U.S.S.G. § 3B1.1(c), and for possession of a firearm in connection with the offense, see U.S.S.G. § 2D1.1(b)(1). As a result, the district court determined that Brewer's total offense level was 38 and, with a criminal history category of V, that Brewer's advisory
guidelines range was 360 months to life. The court sentenced Brewer to 370 months' imprisonment, to be followed by 10 years of supervised release.
II. DISCUSSION
Brewer first challenges the denial of his motion to suppress. “We examine the factual findings underlying the district court's denial of the motion to suppress for clear error and review de novo the ultimate question of whether the Fourth Amendment has been violated.” United States v. Estey, 595 F.3d 836, 839-40 (8th Cir.) (quoting United States v. Williams, 577 F.3d 878, 880 (8th Cir.2009)), cert. denied, 560 U.S. ----, 130 S.Ct. 3342, 176 L.Ed.2d 1236 (2010). “In ‘reviewing the denial of a motion to suppress, we must examine the entire record, not merely the evidence adduced at the suppression hearing.’ ” United States v. Anderson, 339 F.3d 720, 723 (8th Cir.2003) (quoting United States v. Martin, 982 F.2d 1236, 1240 n. 2 (8th Cir.1993)).
Brewer argues that the police did not have probable cause to stop or arrest him on September 19, 2008, and that the search of his vehicle incident to his arrest was invalid. As an initial matter, we reject Brewer's claim that the stop and arrest were improper. We have held that “[i]f an officer determines that a person is driving on a suspended license, then the officer has probable cause to arrest.” United States v. Jones, 479 F.3d 975, 978 (8th Cir.2007). Here, Officer Moyle saw Brewer drive away from a drug transaction at the mall and, having already determined that Brewer had a suspended license, see Iowa Code § 321.218, requested that a patrol officer stop Brewer. Accordingly, we conclude that Officer Herbert had probable cause to stop and arrest Brewer for driving with a suspended license. See Jones, 479 F.3d at 978.
Brewer's second point is somewhat more nettlesome. Citing the Supreme Court's decision in Arizona v. Gant, 556 U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), Brewer argues that the search of his van was not a valid search incident to arrest because, after he exited the van and was arrested, the arresting officers could not have reasonably believed that he could access the interior of the van. Therefore, according to Brewer, the $800 in prerecorded buy money seized during the...
To continue reading
Request your trial
-
United States v. Johnson
...at the time the crime was committed.” United States v. Smith, 632 F.3d 1043, 1047–49 (8th Cir.2011) (quoting United States v. Brewer, 624 F.3d 900, 909–10 n. 7 (8th Cir.2010), with internal quotation marks omitted).1 The Savings Statute “ ‘was enacted to overcome the common law rule that al......
-
U.S. v. Watts
...States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010); United States v. Bell, 624 F.3d 803, 814 (7th Cir.2010); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010). As of this writing, the First Circuit, the Eleventh Ci......
-
U.S. v. Santana
...401 Fed.Appx. 818, 820 n. *, 2010 WL 4561395, at *1 n. * (4th Cir. Nov. 12, 2010) (unpublished) (citing § 109); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010) (“[T]he Fair Sentencing Act contains no express statement that it is retroactive, and thus the ‘general savings stat......
-
U.S. v. Bannister
...product, even a highly destructive one, to knowing, willing, adult purchasers in retail quantities. See United States v. Brewer, 624 F.3d 900, 910 (8th Cir.2010) (Bright, J., dissenting) (quoting Perkinson, supra, at 336) (discussing the frequency with which penalties for crack cocaine offe......
-
Chapter 5 - §3. Exceptions to warrant requirement
...to arrest outside the context of automobiles is still a matter of debate among the lower courts. Compare U.S. v. Brewer (8th Cir.2010) 624 F.3d 900, 906 (declining to apply Gant to search of arrestee's person), and U.S. v. Perdoma (8th Cir.2010) 621 F.3d 745, 751-52 (declining to apply Gant......
-
Table of Cases null
...898 F.2d 113 (9th Cir. 1990)—Ch. 5-A, §3.3.1(3)(n) U.S. v. Brannan, 898 F.2d 107 (9th Cir. 1990)—Ch. 5-A, §3.3.1(2)(b)[1] U.S. v. Brewer, 624 F.3d 900 (8th Cir. 2010)—Ch. 5-A, §3.3.2(2)(b)[2][a] U.S. v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975)—Ch. 5-A, §3.2.1(2)......