U.S. v. Puckett

• Decision Date: 06 September 2005
• Docket Number: No. 04-5988.,04-5988.
• Citation: 422 F.3d 340
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martece PUCKETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

422 F.3d 340

UNITED STATES of America, Plaintiff-Appellee, v. Martece PUCKETT, Defendant-Appellant.

No. 04-5988.

United States Court of Appeals, Sixth Circuit.

Argued: May 11, 2005.

Decided and Filed: September 6, 2005.

ARGUED:

Paula R. Voss, Federal Defender Services, Knoxville, Tennessee, for Appellant. Matthew T. Morris, Assistant United States Attorney, Knoxville, Tennessee, for Appellee.

ON BRIEF:

Paula R. Voss, Federal Defender Services, Knoxville, Tennessee, for Appellant. Matthew T. Morris, Assistant United States Attorney, Knoxville, Tennessee, for Appellee.

Before: SILER and ROGERS, Circuit Judges; REEVES, District Judge.^*

SILER, J., delivered the opinion of the court, in which REEVES, D. J., joined.

ROGERS, J. (p. 346), delivered a separate dissenting opinion.

OPINION

SILER, Circuit Judge.

Defendant Martece Puckett was arrested for drug and gun possession following a search of his vehicle after a routine traffic stop. He contends that the stop was illegal for lack of probable cause. Accordingly, Puckett appeals the district court's denial of his motion to suppress evidence obtained by the police pursuant to his traffic stop and the district court's denial of a motion for a downward departure of his sentence. For the reasons discussed below, we AFFIRM.

I. BACKGROUND

In 2002, Officer Felix Vess of the Knoxville Police Department observed a white Mercury Marquis driven by Puckett. Vess was interested in the Mercury because a similar motor vehicle had been involved in an alleged shooting in the area weeks before. Vess "paced" Puckett for several blocks, using the speed of his own cruiser to determine the speed of Puckett's vehicle. Thereafter, Vess stopped Puckett for speeding. Puckett contends that because Vess followed him for only a few seconds he was unable to accurately determine his speed, and therefore had no probable cause to stop him. Following the stop, Vess arrested Puckett for driving without a valid driver's license. Vess also smelled a strong odor of marijuana in the vehicle and observed a plastic bag containing marijuana in the passenger seat. A search of the vehicle resulted in the discovery of a pistol, ammunition, and approximately 117.6 grams of marijuana.

Puckett was subsequently indicted for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g); possession of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a) and (b)(1)(B); and possession of a firearm during the course of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). His motion to suppress the drug and gun evidence obtained in the search of his car was denied.

Puckett later entered a conditional plea of guilty and was sentenced to 97 months' incarceration. The court denied Puckett's motion for a downward departure from the Sentencing Guidelines range pursuant to 18 U.S.C. § 3553.

II. MOTION TO SUPPRESS

When reviewing a district court's determination regarding a suppression question, "a district court's factual findings are accepted unless they are clearly erroneous; however, the district court's application of the law to the facts, such as a finding of probable cause, is reviewed de novo." United States v. Pasquarille, 20 F.3d 682, 685 (6th Cir.1994) (citing United States v. Thomas, 11 F.3d 620, 627 (6th Cir.1993)). A factual finding will only be clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed — with the evidence reviewed "in the light most likely to support the district court's decision." United States v. Johnson 242 F.3d 707, 709 (6th Cir.2001).

Puckett contends that the district court erred in not granting his motion to suppress because Vess lacked probable cause to stop him and therefore the fruits of the illegal search are inadmissible. Probable cause is determined by the totality of the circumstances, Pasquarille, 20 F.3d at 686; is fact-dependent; and will turn on what the officer knew at the time he made the stop. Johnson, 242 F.3d at 709; see also United States v. Ferguson, 8 F.3d 385, 392 (6th Cir.1993) (en banc) ("This totality of the circumstances analysis includes a realistic assessment of the situation from a law enforcement officer's perspective.").

Puckett suggests that Vess's true motivation for the traffic stop was to find a white four-door sedan involved in a shooting two weeks prior. He further argues that the totality of the circumstances does not support Vess's decision to begin following and pacing Puckett's vehicle. However, the reasons for Vess's interest in Puckett's vehicle are immaterial to the determination of whether probable cause for the stop existed; rather, a probable cause determination turns on what the officer knew at the time he made the stop. See Ferguson, 8 F.3d at 391.

At the time of the stop, Vess had made a reasonable estimate of the defendant's speed to be 45 miles per hour. The posted speed limit for the street in question was 30 miles per hour. Puckett's own expert testified that Puckett was most likely traveling between 36 and 38 miles per hour. Although the expert's speed estimate is lower than Vess's estimate, all evidence indicates that Puckett was speeding at the time Vess initiated the stop.

Based on the testimony at the suppression hearing, the district court determined that Vess had probable cause to believe that Puckett had exceeded the posted speed limit. As the district court noted in its Order,

[N]o dispute exists between Officer Vess and Mr. Jones that [Puckett] was speeding while traveling down Virginia Avenue on April 13, 2002, since he was going over the posted speed limit of thirty (30) miles-per-hour. By the admission of [Puckett's] own expert testimony, [Puckett] was speeding. Since [Puckett] was going over the speed limit, there is no question that Officer Vess had probable cause to stop him for speeding.

Vess testified that he believed that Puckett was exceeding the speed limit when he stopped him — a belief supported by the testimony rendered at the suppression hearing. Viewing the totality of the evidence, we agree with the district court that Vess had probable cause to stop Puckett. After the stop, Vess smelled and saw in open view the marijuana in the seat. Therefore, there was probable cause to search the car at that point. Thus, the search was reasonable and the court correctly denied the motion to suppress.

III. WAIVER OF APPEAL

In his plea agreement, Puckett expressly consented to sentencing under the Sentencing Guidelines. Previously, in United States v. Bradley, 400 F.3d 459 (6th Cir.2005), we held that a voluntary waiver of appeal in a plea agreement precludes Booker review of the sentence. Id. at 465 ("Having voluntarily and knowingly bargained . . . Bradley cannot now extract two components of that bargain-his agreement to be sentenced under the then-mandatory Guidelines and his agreement to waive his right to appeal-on the basis of changes in the law after that bargain was struck."). However, Bradley is inapplicable here in light of our recent decision in United States v. Amiker, 414 F.3d 606 (6th Cir.2005). As in Amiker, Puckett did not expressly waive his right to appeal in the plea agreement, 414 F.3d at 607, and thus the current situation falls outside the reach of Bradley. The mere fact that Puckett agreed to be, and was, sentenced pursuant to the Sentencing Guidelines, does not preclude him from raising on appeal an alleged Booker error regarding his sentence. Amiker, 414 F.3d at 608.

IV. DOWNWARD DEPARTURE

Traditionally, we have reviewed a district court's decision to grant a downward departure from the Sentencing Guidelines for abuse of discretion. See United States v. Cole, 359 F.3d 420, 429 (6th Cir.2004); United States v. Kuhn, 345 F.3d 431, 436 (6th Cir.2003). Further, we have "consistently held that the decision by a district court not to depart downwards from the Guidelines is not reviewable on appeal unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure." United States v. Stewart, 306 F.3d 295, 329 (6th Cir.2002); see also United States v. Lucas, 357 F.3d 599, 609-10 (6th Cir.2004) (same). However, the recent decision of United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), has clouded the issue. Indeed, one line of reasoning suggests that we may now review such decisions for reasonableness. See United States v. Jackson, 408 F.3d 301, 304 (6th Cir.2005); United States v. Climmie Jones, 399 F.3d 640, 650 (6th Cir.2005); cf. United States v. Justin Jones, 417 F.3d 547, 551 n. 3 (6th Cir.2005) ("After Booker, of course, a defendant who received a downward departure for substantial assistance is free to argue that the sentence from which the district court departed was unreasonable in light of 18 U.S.C. § 3553(a)'s sentencing factors.").

The reasonableness standard set forth in Jackson is inapplicable here, as the district court there granted a downward departure after applying the factors listed in 18 U.S.C. § 3553(a). We then found the application unreasonable. 408 F.3d at 304-05. At question here is the district court's decision to deny a downward departure. Shortly following Booker, in United States v. May, 399 F.3d 817 (6th Cir.2005), we "conclude[d] that the district court was aware of its discretion to grant a downward departure but determined that the facts of the case did not justify such a departure. Therefore, the district court's refusal to grant the downward departure is unreviewable on appeal." Id. at 827-28. Following that decision, however, in Climmie Jones, a panel of this court vacated and remanded for resentencing under Booker, but in dicta "encourage[d] the sentencing judge to explicitly state his reasons" for denying a downward departure. 399 F.3d at 650. It continued, stating, "[s]uch a statement will facilitate appellate review as to whether the sentence was `re...