NOT RECOMMENDED F OR P UBLICATION File Na me: 13a0258n.06 No. 12-5450 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. DEON T. PA TTON, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF TEN NESSEE

BEFORE: MERRITT, MARTIN and CLAY, Circuit Judges. MERRITT, Circuit Ju dge. Def endant De on Patton is serving a 70-month sentenc e after pleading g uilty to being a felon in possession of a firea rm in violation of 18 U.S.C. § 922(g )(1)

. He appea ls the district court’s partial denial of his motion to suppress evidenc e found in his vehicle afte r

a canine aler

t inc ident to a lawful stop. He also appea ls his within-g uidelines sentenc e, contesting the calc ulation of his criminal history cate g ory and the failure of the district court to vary downwar d from the g uideline ra

ng e. F or the following rea sons, we af firm the judg ment of the district cour t. I. We f irst tur n to Patton’s appea l of the par tial denial of his motion to suppress. I n the ear ly

m orning hours of November 28, 2009, police responde d to a 911 call conce rning a brea k-in at a residenc e in Knoxvi lle. The caller identified the s uspect as her ex-boy friend, defe ndant Deon Patton,No. 12-5450

United States v. Patton
and descr ibed his vehicle. The responding police office r parke d a distance awa y from the house and proce eded on foot. As the office r walked toward the residenc e, a white vehicle slowly approa ched him and stopped. The driver identified himself to the office r as Deon Patton, the name g iven to the office r as the suspect in the bre ak -i n . T h e o ff i cer asked Patton to step out of the car . Patton complied, but loc ked his c ar upon exit ing. The office r then place d Patton in handcuf fs beca use he believed he was the perpe trator of the brea k-in and beca

use Patton appea

red to be under the influence of drug s or alcohol. Patton was place d in the back of the patrol car as the back- up office r and narc otics-detec tion dog arr ived on the scene . The dog was used to sniff the parke d vehicle and aler ted to the prese nce of narc otics by sitti ng down near the car door. The office r stated his intention to sear ch the car based

on the dog aler

t a nd asked Patton for

the key s to the car

. Patton r efuse d at first, but the n ag ree d to provide the key s if his handcuf fs wer e loosened. Patton was remove d from the patrol car , his cuff s loosened and he gave the car key s to the officer. As Patton was being put back into the pa trol car he said, “He y , I ain’t g oing to lie to y ou. I ’ve g ot a g un in the car .” The police conducte d the sear ch and found a handg un and six rounds of ammunition in a bag on the back seat of defe ndant’s vehicle. Additional ammunition was also found in the g love box, as well as a cig are tte wra pper with w hite residue on it. 1 Patton moved to suppress the g un and ammunition on the g round that the sear ch was illega l beca use it was conducte d without a war rant in violation of the Four th Amendment. The office r who

The “ white re sidue” wa s never tested, so its composition i s not known. 1 2No. 12-5450

United States v. Patton
handled the dog testified about his partne rship with the narc otics dog and the monthly training the two did t o get h er. He testified that the dog is tested reg ularly for reliability and is cer tified by the Police Working Dog Association. The officer also testified t hat t h i s p ar t i cular dog was ge nera lly reliable in actual wor

king situations out on patrol. I n the Report and Recommenda tion, the ma g istrate judg e denie d the motion to suppress in part and g rante d it in part. Report and Recommenda tion, De c. 28, 2010. He found the initial stop of Patton to be lawful under Terry v. Ohio , 392 U.S. 1 (1968). He also found the dog sniff of the car to be lawful and that the alert by the dog t o supply the necessar y probable cause to sear ch the car , s o the phy sical evidence of the firearm and ammunition found i n the car need not be suppr es s ed

. The mag istrate judg e also found tha t Patton volunteer ed the information about a firea rm in his car

s o that statement need not be suppressed. Patton objected to the partial denial of the motion t o 2

s u p p r e s s , but the district court overr uled the objections and adopted the Report and Recomme n d a ti o n in full. Mem. and Orde r, F eb. 10, 2011. On appea l, Patton first arg ues that the sear ch of his vehicle without a war rant incident to his detention by police is a violation o f t h e Fourth Amendment. He arg ues that he was in custody (h an d cu ff ed i n the back of a patrol car) and no exigent circumstance s nece ssitated a search of the locked car without a warra nt. Howeve r, P atton misconstrues t h e n at u re of t he search. The searc h

was not incident to his arr est but, instead, was justified beca use a trained narc otics dog on the scene
Other statements Patton made to police while he was in the patrol car in response to direc t 2 questions wer e suppressed beca use Patton was “in custody ” and did not rec eive Miranda war nings befor e the que stioning. These statements ar e not at issue in this appea l. 3No. 12-5450

United States v. Patton
aler ted to his vehicle. I t is well s ettled t hat a “a canine sniff is not a search within the m eaning of the Four th Amendment” if the canine is “lawf ully

. . . prese nt at t h e l o ca t i o n wher e the sniff

occur s.” United States v. Ree d , 141 F.3d 644, 650 (6th Cir. 1998); see also Illinois v. Caballes , 543 U.S. 405, 409-10 (2005) (a dog sniff conducte d during a l aw fu l t raffic stop does not violate the Four th Amendment). I n addition, an aler t by a proper ly trained narc otics dog while sniffing a vehicle is sufficient to establish proba ble ca use for a sea rch of the vehicle

. United St ates v. Diaz , 25 F.3d 392, 393-94 (6th Cir. 1994). Patton also contends that the gover n m en t fa i l ed to meet it s burden of establishing that the

narc otics dog was reliable and proper ly trained. The Supreme Court rec ently rea ffirme d that the long- standing “totality -of- the-c ircumstance s” approa ch is all that is require d to support a narc otics dog ’s reliability to detec t drug s during a sear ch. Florida v. Harris , ___ U.S. ___, No. 11-817, 2013 WL 598440 (F eb. 19, 2013) ( reje cting the State of F lorida’s strict evidentiar y chec klist to assess a drug -dete ction dog ’s r el i ab i l i t y ). The Court held t hat i f t he gover nment has produced proof from controlled settings that the dog has perf ormed reliably , the defe ndant should have an opportunity to challeng e the evidenc e throug h cross-e x amination or introducing its own fac t or expert witnesses to

co n t es t t h e t ra ining or testing standards as flawe d or too lax. Id

. at *7. The judge should t h en consi der all the evidenc e and apply the usual test for probable cause : whether all the fac ts surrounding the aler

t would make a rea sonably prudent person think that a sear ch would reve al evidenc e of a

crime. Id

.

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United States v. Patton
The rec ord in this case amply supports the district court’s deter mination that the dog ’s aler t

on Patton’s vehicle g ave the office r probable cause t o s ea rc h it. The g overnme nt introduced substantial evidenc e of the dog ’s tr ai ning, cer tification and acc urac y rate of “over 90%.” The mag istrate judge found, as a fac tual matter, that the dog was a proper ly trained and reliable narc otics dog that had aler

ted t o P atton’s vehicle. Patton points to no evidenc e on appea l to challeng e that finding

. L ooking to the “totality -of- the-c ircumstance s,” the evidenc e prese nted at the suppression h ea ri n g supports the finding that the narc otics dog used to sniff Patton’s car was reliable and t h e police had pr obable c ause to sea rch the vehicle.

II. P at t o n re ce i v ed a sentenc e of 70 months, at the low end of the applicable rang e of 70-87 months imprisonment. Def endant contests the calc ulation of his criminal history cate g ory , arg uing that two of his prior convictions should have been counted as a sin gl e offe nse beca use he was sentenc ed for both of them on the same day

. He also contends that it was an abuse of discretion for the district court to deny his motion for a downwar d varia nce, arg uing that his sentenc e was “g rea ter than nec essar

y ” to satisfy

the fa ctors enume rate d under 18 U .S.C. § 3553(a). A. Calculation of

Crim inal H istory P oints Patton arg ues that he should have receive d only 7 criminal hi story points instead of the 10 he rec eived. He arg ues that two offe nses listed in the Presentenc e Report should have been counted

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The a dditional three points bumped up Patton’s Criminal History Categ ory from a I V to a 3 V. A Criminal History Categ ory of I V with a total offe nse level of 21 would have g iven him a rang e of 57-71 months instead of the 70-87 month rang e he r ece ived. 5No. 12-5450

United States v. Patton

as a single sentenc e beca

use he was sentenc ed for both offe nses on the same day

. See PSR at ¶¶ 47 & 49. Howeve r, same-da y sentenc ing counts as a single offe nse only if there is no “in t ervening

arr est” betwee n the offe nses. U.S.S.G. § 4A1.2(a )(2)

. The two offe nses Patton wants consolidated 4

wer e committed six months apar t and separ ated by an intervening arr est. He was arr ested on Dec ember

19, 1997, for possession with intent to sell at least one- half g ram of c ocaine . PSR at ¶ 47. Patton was arr ested ag ain on J une 30, 1998, and char g ed with esca pe from jail for the Dec ember 1997 offe nse. Id

. at ¶ 49. The two arr ests are rela ted only in that Patton esca ped from prison while serving time for the crimes committed in Dec ember 1997. The case s wer e not consolidated and wer e ch ar ged on differ ent day s six months apar t under two differ ent docket numbers. Be cause t h e offe n s es we re separ ated by an intervening arr est and there is no indication that they wer e consolidated, the district court did not err in counting the resulting convictions separ ately

. See United States v. Cars on , 469 F.3d 528, 531 (6th Cir. 2006) (no functional consolidation when

U.S.S.G. § 4A1.2(a)( 2) provides a s follows: 4 I f the defe ndant has multipl e prior sentenc es, deter mine whether those sentenc es are counted separ ately or as a single sentenc e. Prior sentenc es alway s are counted separ ately if the sentenc es wer e imposed for offe nses that wer e separ ated by an intervening arr est (i.e., the defe ndant is arr es t ed fo r the first offe nse prior to committing the second offe nse). If there is no intervening arrest , prior sentenc es are counted separ ately unless (A) the sentenc es resulted from offe nses contained in the same char g ing instrument; or (B ) the sentenc es wer e imposed on the same day

. Count any prior sente nce c overe d by (A) or (B ) as a single sentenc e. (Emphasis adde d.) 6No. 12-5450

United States v. Patton
offe nses proce ed to sentencing under se para te docke t numbe rs, case s are not f actua lly rela ted, and there was no orde r of c onsolidation).

B. Dow nw ard Variance The defe ndant also contends that the district court err ed i n n o t granting his reque st for a downwar d varia

nce. Patton arg ues that his 70-month, bottom-of-the-g uideline rang e sentenc e is g rea ter than nece ssary beca use at the time of his arr est he was employ ed and was an important part of his g randc hildren’s lives and they wi l l suffe r hardship while he is in prison. These aspec ts of defe ndant’s char acte r wer e thoroug hly cover ed by his counsel at the s en t en ci n g hear ing and the district court was well aware of t hese factor s when it d enied the downwar d varia nce. The dist rict court noted defe ndant’s extensive criminal rec ord as a primary fac tor in declining to g rant the reque st for a downwar d varia

nce. Be cause the sentenc ing transcr ipt makes clea r th at t h e district court considere d all these miti gat i n g factors when imposing Patton’s sentenc e, it was well within its discretion to deny the reque st for a downwar d varia nce and there is no g round on appea l to question the denial. See U

nited States v. Trejo-Martinez , 481 F.3d 409, 413- 14 (6th Cir. 2007). For the fore g oing r easons, the judg ment of the district cour t is affirmed.

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