U.S. v. Clay

• Decision Date: 03 April 2007
• Docket Number: No. 06-10088.,06-10088.
• Citation: 483 F.3d 739
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. John Windell CLAY, Defendant-Appellant, Cross-Appellee.

483 F.3d 739

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. John Windell CLAY, Defendant-Appellant, Cross-Appellee.

No. 06-10088.

United States Court of Appeals, Eleventh Circuit.

April 3, 2007.

Neil L. Hanley (Court-Appointed), Mobile, AL, for Clay.

Donna Barrow Dobbins, David Andrew Sigler, Asst. U.S. Atty., Mobile, AL, Thomas M. Gannon, U.S. Dept. of Justice/App. Sec./Crim. Div., Washington, DC, for U.S.

Appeals from the United States District Court for the Southern District of Alabama.

Before CARNES, PRYOR and FARRIS,^* Circuit Judges.

PRYOR, Circuit Judge:

The main question presented in these cross-appeals is the contention of the government that John Windell Clay's 60-month sentence for possessing methamphetamine precursors is unreasonably lenient, when the advisory Guidelines range was 188 to 235 months and the variance was based primarily on Clay's postoffense rehabilitation. Several witnesses, including drug counselors and corrections workers, testified at Clay's sentencing hearing that Clay's rehabilitation was extraordinary, and the district court credited their testimony. In his appeal, Clay argues that the district court erred when it denied his motion to suppress evidence and when it enhanced his sentence based on acquitted conduct. We affirm Clay's conviction and sentence.

I. BACKGROUND

On October 10, 2004, Sergeant James Eissler stopped Clay's car because only one headlight was operating. While Clay looked for his insurance card, Sergeant Eissler saw a shotgun between the driver's seat and the door. Sergeant Eissler asked Clay to get out of the car and conducted a pat-down search of Clay's person before placing him in the squad car.

Sergeant Eissler's search of Clay's pants pocket revealed an empty barrel from a ball-point pen, which is often used as a device for ingesting narcotics. Sergeant Eissler removed the item from Clay's pocket because he could not tell by feel whether it was a weapon; he thought it might be a screwdriver. Sergeant Eissler advised Clay of his Miranda rights.

Clay, who did not appear impaired, consented to a search of his car. Sergeant Eissler left the window of the squad car open so that Clay could stop the search at any time. Sergeant Eissler discovered in the trunk of the vehicle ten unopened boxes of cold and allergy medication containing pseudoephedrine and arrested Clay. At the police station, after waiving his Miranda rights, Clay told police that he had purchased the pseudoephedrine pills for a man he occasionally supplied with such pills and admitted involvement with methamphetamine manufacturing and distribution.

Six months later, Clay was indicted with five others on charges of conspiracy to manufacture and possess with intent to distribute more than 500 grams of methamphetamine, 21 U.S.C. §§ 846, 841(a)(1), and possession of pseudoephedrine with reasonable cause to believe that it would be used to manufacture a controlled substance, id. § 841(c)(2). Before trial, Clay moved to suppress the evidence seized from his car and his statements to the police on October 10, 2004. The district court denied the motions, on the ground that the search of Clay's car was reasonable and his statements were voluntary.

At trial, the government presented evidence, including testimony by the five co-operating codefendants, that Clay had been involved in the manufacture of methamphetamine since 2000. Clay would supply manufacturers with precursor chemicals and supplies in exchange for methamphetamine. By 2004, Clay was participating directly in the manufacture and helped to produce about an ounce of methamphetamine two or three times a week for three to five months. The jury acquitted Clay of the conspiracy charges and convicted him of possession of pseudoephedrine.

Under the advisory Sentencing Guidelines, the base offense level for the offense of conviction was 22. United States Sentencing Guidelines § 2D1.11(d)(9) (Nov. 2005). At sentencing, the court found by a preponderance of the evidence that Clay was responsible for the manufacture of at least 1.5 kilograms of methamphetamine, which enhanced the offense level to 34. Id. §§ 1B1.3(a), 2D1.1(c)(3). The district court also found that Clay possessed a firearm during the offense, which enhanced the offense level by 2 levels. Id. § 2D1.11(b)(1). Clay's criminal history category was I, and the advisory sentencing range was 188 to 235 months' imprisonment.

At the sentencing hearing, eight witnesses testified about the religious conversion and life changes that Clay had experienced before his arrest in October 2004 and continuing until his conviction in August 2005. A leader of Clay's drug and alcohol rehabilitation program, Alan Cobb, testified that Clay was rehabilitated, obtained employment, and was a good employee. Another program leader, who worked in corrections, testified that Clay was living a "different life" since his involvement in the program. A minister at Clay's church who had worked in corrections for ten years testified that he had "seen a lot of inmates, so to speak, play a game" but the change in Clay's life was real. John and Rachael Leno had met Clay through the rehabilitation program and testified that they had overcome their drug addictions because of Clay's example and encouragement. Clay and his family members testified that, following his conversion, Clay had stopped using drugs and alcohol, rededicated himself to his family, and began regularly attending rehabilitation meetings and visiting a juvenile detention center.

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

Well, I have considered the statutory purposes of sentencing in this case and I have considered the sentencing guidelines. I am sentencing under the guidelines scheme. But I find, Mr. Clay, that in your case a downward departure for post-offense rehabilitation is appropriate.

But I also agree with [the government] that one of the primary purposes of sentencing as set out in 3553 is punishment. And I have to take into account the fact that, although your motivation for participation in the manufacture of methamphetamine was so that you could use it, the others who were participating in it with you were also doing it and providing it at the same time as to you to many other people, and your help in that manufacture was in essence helping other people get hooked on drugs themselves. And I can't just ignore that.

Your guidelines, the low end of them, is 188 months. That's in excess of 15 years. I'm going to give you a substantial reduction, and you and your family still will think that it is too long to spend in jail. But it is a more substantial reduction than I have given to anybody for this reason that I'm going to give it to you.

I do believe that your change is real. And with God's help, you will continue on the same path that you are currently on.

The court imposed a sentence of 60 months' imprisonment. Clay appealed, and the government cross-appealed.

II. STANDARDS OF REVIEW

Several different standards of review govern this appeal. We review under a mixed standard of review the denial of a motion to suppress, United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir.1999), and the application of the Sentencing Guidelines, United States v. Miranda, 348 F.3d 1322, 1330 (11th Cir.2003). In reviewing Clay's sentence, we review the factual findings of the district court for clear error and the application of the law to the facts de novo. Id. We review de novo whether a sentencing factor is impermissible. United States v. Williams, 456 F.3d 1353, 1361 (11th Cir.2006), petition for cert. filed (U.S. Oct. 19, 2006) (No. 06-7352). We review a sentence for reasonableness. Id. at 1363. Our review for reasonableness is deferential, and the party challenging the sentence has the burden of establishing unreasonableness. United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). "The weight to be accorded any given § 3553(a) factor is a matter committed to the sound discretion of the district court," but "we will remand for resentencing if we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case." Williams, 456 F.3d at 1363.

III. DISCUSSION

We must first review Clay's appeal and then the cross-appeal by the government. Clay argues that the district court erred when it denied his motion to suppress the evidence seized from his car and when it enhanced his sentence based on acquitted conduct. The government argues that Clay's sentence was unreasonable. We discuss each issue in turn and conclude that the district court committed no reversible error.

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

Clay argues that the boxes of pseudoephedrine pills seized from the trunk of his car should have been suppressed because they were the fruit of an unreasonable search, but we disagree. Sergeant Eissler obtained reasonable suspicion to conduct a pat-down search of Clay's person when he saw the shotgun in plain view, which created reason to believe that he was "dealing with an armed and dangerous individual." Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968). This case is unlike Minnesota v. Dickerson, 508 U.S. 366, 378, 113 S.Ct. 2130, 2138-39, 124 L.Ed.2d 334 (1993), in which a Terry search was held unreasonable when it extended to a pocket that the officer believed contained drugs. Sergeant Eissler continued his search only because he thought the long, thin object in Clay's pocket might be a screwdriver or something similar that could be used as a weapon.

We join our sister circuits in affirming that a Terry search may continue when an officer feels a concealed object that he reasonably believes may be a weapon. See, e.g., United States v. Hartz, 458 F.3d 1011, 1018 (9th...