NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0270n.06 No. 10-3781 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. DENNIS KING , Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNITED STAT ES DIS TRICT C O U R T F O R T H E NORTHERN DISTRICT OF OHIO

O P I N I O N

BEFORE: DAUG HTREY, MOORE an d McK EAGU E, Circuit Judges. McK EAGU E, Circuit Judge. Def endant- Appellant Dennis King was convicted of possession to distribute c ocaine base in violation of 21 U .S.C. §§ 841(a)(1) and (b)( 1)(B ) (“Count 1”), possession with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a) (1) and (b)( 1)(C) (“ C o u nt 2”), and being a felon in possession of a firea rm in violation of 18 U.S.C. § 922(g )(1 ) (“Count 3”) . On appe al, King alleg es three err ors. We AF F IRM. I. BACKG ROUND On J uly 28, 2009, L akew ood Police Detec tives Terr y Miller and J o h n Guzik wer e in a Detec tive Bur eau vehicle on a “sexual reg istration follow up.” R. 53, Suppression Transc ript, p. 20. Detec tive Guzik observe d a b lack Cadillac driven by a larg e Afric an-A merica n man in his fifties pass throug h the intersec tion of Detroit Road and Clarence Avenue

. Id. Guzik testified that the drive r matched a reliable confide ntial source ’s descr iption of an individual suspected of drug activity at anNo. 10-3781

United States v. King
apar tment on Clarenc e Avenue

. Id. at 16-17. Fur ther, Clarenc e Avenue was “dee med a high- drug location within [ L akew ood].” Id. at 19. B eca use Guzik and Miller wer e in a bur eau c ar, G uzik exit ed the vehicle, asked Miller to drive awa y , “and proce eded to do a foot surveillance just to see wher e this vehicle w as g oing or what mig ht happen a t that point in t ime.” Id. at 20. The Cadillac subsequently p ar k ed “a l ong the east curb, probably 50 fee t north of Detroit Avenue .” Id. Guzik observe d the driver sit in the Cadillac from approximately 40 y ards awa y . Id. The driver remained in the vehicle for a pproxi mately

three minutes before exit ing the Cadillac, at which point the driver stood by his Cadillac’s open door an d l o o k ed around for twenty to thirty seconds. Id. at 22. Guzik watche d the driver cross the street whi l e “constantly looking in all direc tions.” Id. at 23. The driver enter ed the suspec t apar tment building on Clarenc e Avenue and

rema ined inside for four minutes. Id. at 26. When the driver emer g ed from the building, he returne d to his car. Id. at 26-27. Guzik believed th at t h e driver matched the phy sical descr iption g iven by the confide ntial informant. Id. at 22-23. Guzik also considere d t h e d ri ver’ s brief visit to the C lare nce Avenue on the apar tment to be indicative of a drug sal e b ased on his training and experience

. Id. at 22. Acc ording ly , Guzik intended to stop the driver based on “[r]easonable and articula ble suspicion.” Id. at 27. Consequent l y , Guz ik arr ang ed for a uniformed office r t o proce ed to the area to provide assistance while he c ontinued to monitor the situation. Id. The individual in the Cadillac then beg an to dr ive awa y , Id. at 28-29, and Guzik — still on foot — re t urned to Miller’s vehicle. Id. at 29. Guzik and Miller followed the Cadillac in their burea u car as it proce eded eastbound on Detroit Avenue

. Id. at 29. By this point, Guzik’s back- up - 2 -No. 10-3781

United States v. King had arr ived, and L akew ood Police Offic er Romanello was driving immediately behind the Cadillac, follo we d b y L ieutenant Ci resi’s vehicle. Id. When the C adillac reac hed the border of t he C ity of
L akew ood and the City of Cleveland, Ciresi instructed Romanello to stop the vehicle. Id. Be cause Romanello wanted to avoid stopping the vehicle at “a very busy intersec tion,” Romanello waited to activate his flashing light until the car s wer e one city block inside of Cl ev el an d , an d the Cadillac immediately

pulled over. Id. at 63-64. Romanello approa ched the driver and obt ained his driver’ s license. Id. at 66. The lice nse identified the driver as Dennis King

. Id. at 66-67. Whil e Romanello was running King ’s license, Romanello hear d “squea ling tire s, looked up and the ve hicle fle d from the stop.” Id. at 68. Romanello conducte d a hig h

- s p e e d c h a s e o f K in g ’ s vehicle until King ’s Cadillac cra shed into another car . Id. at 69-72. During t h e ch ase, Romanello witnessed King commit the following violations, all of which wer e also re corde d by the dashboa

rd ca mera in Romanello’s vehicle: (1) f ailure to use a

turn signa l before pulling fr om the curb; (2) ope rating a vehic le to the left of the cente r line and into oncoming traff ic; (3) f ailure to stop at a r ed tra ffic lig ht; (4) e x cee ding se venty

miles per hour in a

twenty -five miles pe r hour zone; (5) opera ting a vehicle in a rec kless manner or with willful, wanton disreg ard for the safe ty of others; (6) f leeing the sce ne of a

n acc ident; (7) f elony flig ht from the police. Appellee Br

. at 11; see also R. 55 a t 69-72. When Romanello arrive d at the scene of the acc ident, he observe d King flee ing on foot. R. 55 at 73. Romanello chase d King on foot while another office r

arr ived and a ttempted to block King with his vehicle. Id.

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United States v. King Once King was caug ht, he was arr ested for felony flee ing and eluding

. Id. at 39. Detec tives Guzik and Miller sear ched King incident to his arr est and uncover ed 101 individually wra pped rocks of cra ck coca ine weig hing approximately thirty -two g rams, a cellular phone, and approximately $250.00. Id

. at 4 0

. Guz ik then returne d to King ’s Cadillac and, on the g round near the vehicle, found a brown paper bag that contained a black bag with 139 unit dose s of heroin which exceede d 60 g rams in weig ht. Id. at 41. Finally , Guzik observe d a loaded .380 semi-automatic Be retta pistol unobstructed f

rom view on the floorboar d of t he passeng er’ s front sea t. Id. The police seized the evidenc e. Id. On Aug ust 19, 2009, King was charged wi th possession to distribute coca ine base, in violation of 21 U.S.C. §§ 841(a) (1) and (b)( 1)(B ), possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a) (1) and (b)( 1)(C), and being a fe lon in possession of a firear m, in violation of 18 U.S.C. § 922(g) (1). R. 7, I ndictment. On Octobe r 6, 2009, King filed a motion to
suppress the evidenc e, claiming that the cra ck coca ine, heroin and firea rm wer e obtained as the result of an illega l seizure “without probable cause in violation of his constitutional rig hts under the Four th Amendment to the United States Constit ution.” R. 19, Motion to Suppress, p. 2. The Gover nment filed both a response and a supplemental response opposing King ’s motion. See R.22; R. 23. I n its
response s, the Gover

nment arg ued that the first stop was justified by rea sonable suspicion that King

was involved in criminal activity

. Additionally , the Gover nment arg ued that “[a]ssum ing arguendo that

. . . the initial stop was not based on rea sonable suspicion, any taint would have dissipated when King fled the scene and proce eded to commit numerous law violations.” R. 2 2 , p p . 1 1 -1 2

. The district court denied King ’s motion to suppress afte r finding that, althoug h the initial traff ic stop was - 4 -No. 10-3781

United States v. King
not supported by rea sonable suspi ci o n, King ’s intervening decision to flee the scene and brea k

numerous laws —all witnessed by police — provided probable cause for his subsequent arr est and

sear ch. R. 24, Opinion and Orde r, pp. 7-12. King filed a motion for rec onsideration of the district court’s denial of his motion to suppress, and the gover nment filed i ts response in opposition. See R. 26, Motion for Reconsidera tion; R . 28, Gover nment Response. The district c ourt ag ain denied King ’s motion to suppress. R. 29, Order. On Dec ember 15, 2009, a superc eding indictment was filed containing the same three counts but a mending the quantity of the drug s. R. 31, Superce ding I ndictment. King pleade d g uilty to a ll three counts pursuant to a plea ag ree ment. R. 42, Plea Ag ree ment. King ’s plea ag ree ment contained

an appellate waiver provision that rese rved his rig ht to appea l: ( 1) any punishment in excess of the statutory maxi mum; (2) any sentenc e highe r than the advisory Sentencing Guideline rang e deeme d applicable by the court; and (3) the denial of his motion to suppress. Id. at 7. After the district court

acc epted King ’s g uilty plea, the United States Probation Offic e prepa red a Presentenc e I nvestig ation Report (“ P S R ”)

. On May 14, 2010, King objected to the PSR on the following g rounds: (1) the PSR ’s rec ommendation that he rec eive a two-leve l incre ase for obstruction of justice; (2) the PSR ’s inclusion in his criminal history of a fifth-de g ree felony over ten y ear s old; and (3) the enhanc ement for possession of a

firea rm. R. 46, Objections to the Presente nce Re port. At sentenc ing, howeve r, King withdrew his obje ctions after the par ties stipulated to a base offe nse level of 24 rathe r th an t h e P SR’s rec ommended base level of 28. R. 55, Sentencing Transc ript, pp. 2-3. The district court then deter mined the base offe nse level of 24 should be incre ased by four levels: two for possession of a dang erous wea pon pursuant to U.S.S.G. § - 5 -No. 10-3781

United States v. King 2D1.1(b)( 1), and two for rec klessly cre ating a substantial risk of death or serious bodily injury while flee ing from a police office r pursuant to U.S.S.G. § 3C1.2. Id. The district court t h en applied a downwar d adjustment of three levels for King ’s acc eptanc e of responsibility , there by arr iving at an offe nse level 25 with a criminal histor y cate g ory I V. Id. at 3-4. Although King ’s advisory

sentenc ing rang e was 84 to 105 months, Count 1 car ried a m an d at o ry minimum sentenc e of 120 months. Acc ording ly , the district court sentenc ed King to the mandatory minimum of 120 months’ imprisonment followed by an eig ht-y ear term of supervised rele ase, a $300 assessment and a $1,000 fine. Id. pp. 9-10. Kingtimely appea led. R. 48, Notice of A ppeal. On appea l , Ki n g as serts three err ors. First, King arg ues that the district court err ed by deny ing his motion to suppress. Second, King contends the di strict court abused i ts discretion by imposing a $1,000 fine. Finally , King arg ues that his 120-month sentenc e is proce durally and substantively

unrea sonable. II. ANALYSIS A. KIN G’ S MOTION T O SUPP RESS When revie wing a district court’s deter mination on a motion to suppress, this Court revie ws the district court’s finding s of fac t for clea r err or and its ultimate leg al conclusion de novo. See United States v. Al-Cholan , 610 F.3d 945, 953 (6th Cir. 2010). “A fac tual finding will o n l y be clea rly err oneous when, althoug h there may be evidenc e to support it, the re v i ew i ng court on the

en t i re evidenc e is left with the definite and firm conviction that a mistake has been committed.” United States v. Navarro-Camacho , 186 F.3d 701, 705 (6th Cir. 1999)

. Where, as here , “a district

court has denied a motion to suppress, this Court revie ws the evidenc e in the l i gh t most likely to - 6 -No. 10-3781

United States v. King support the district c ourt’s decision.” United States v. Adams , 583 F.3d 457, 463 ( 6th Cir. 2009)

. King appea ls the district court’s denial of his motion to suppress for two rea sons. First, King

asser ts that the L akew ood City Police lacke d jurisdiction to arr est him beca use the rele vant criminal conduct occur

red in Cleveland rathe r th an L ak ew ood. Second, King arg ues that his arr est was insufficiently

attenuate d from the L akew ood Police’s improper Terry stop. King ’s first arg ument is unavailing beca use, even assuming the L akew ood City Police lacke d jurisdiction to arr est King , jurisdictional defe ct s d o not amount to per se violations of the Four th Amendment. See Virginia v. Moore , 553 U.S. 164, 172 (2008) (explaining that the leg ality of a seizure under the Four

th Amendment “has never depende d on the law of the partic u lar State” in which the seizure occur s) (interna l q u o t ation marks omitted); see also State v. W eideman , 764 N.E.2d 997, 10 0 1 -02 (Ohio 2002) (holding t hat an office r’s viol ation of Ohio’s jurisdictional law did “not rise to the leve l of a c onstitut ional violation”). King next arg ues that, because the L akew ood Police’s i nitial Terry stop was improper, his subsequent arr est and sear ch incident to arr est should be suppressed as “fr uits of the poisonous tree .” See Appellant Br

. at 15; see also W ong Sun v. United States , 371 U.S. 471 (1963). I n p articula r, King notes that there wer e “only a few minutes betwee n the unlawful police ac tivity and the defe ndant’s ac tions. That lapse could not in any way dissipate the taint.” Appe llant Br. a t 18. Gen e r a lly , “[i] n order to make eff ective the fundame ntal constitutional g uara ntees of sanctity of the home and inviolabilit y of the person,” the United S t at es S u p reme Court require s that “evide nce seized during an unlawful s ea rc h [can] not constitute proof ag ainst the victim of the

sear ch” and must there fore be excluded from trial. W ong Sun , 371 U.S. at 484. There are , howeve r, - 7 -No. 10-3781

United States v. King exceptions to this exclusionary rule. Evidence obtained following an unlawful sear ch or seizure will

not be excluded if its discovery results from “an intervening independe nt act of a fre e will” sufficie nt to purg e the pr imary

taint of the unlawf

ul invasion.” Id. at 486. I n this Circuit, flee ing or otherwise re s i s ting an unlawful sear ch or seizure constitutes an intervening independe nt act o f fr ee wi ll that purg es the taint from the initial unlawful sear ch or seizure. See United States v. Allen , 619 F.3d 518 (6th Cir. 2010) (finding that “it i s wi d ely

rec og nized that if a suspect’s response to an illega l stop is itself a new, distinct crime, then the police constitutionally may arr est the suspect for that crime” ) (interna l altera tions omitted). Acc ording , we find that the di strict court properly denied King’ s motion to s uppress. The district court first held that Detec tive Guzik lacke d rea sonable suspicion to support his initial Terry stop of King ’s vehicle. R. 24, Orde r Deny

ing Def endant’ s Motion to Suppress, p. 9. Nonethele ss, the district court denied King ’s motion beca

use “De fenda

nt’s flig ht c annot be said to ha ve resulted from an exploi tation of the illega lity of the initial traff ic stop, but was instead an intervening act of fre e will that is sufficie nt
t o p urg e the taint of the illega l stop.” Id. at 11 (quoting W ong Sun , 371 U.S. at 488). Ass u m i n g without deciding

that the district court’s Terry stop holding was corr ect, we wholehearte dly ag ree with the district court’s conclusion that King ’s flig ht constituted an intervening act that purg ed any taint from the initial traff ic stop. As the district court noted, “[d] uring the course of the high- speed chase that ensued from his flig ht, the Def

endant committed numerous violations, including felony flee ing, which

. . . provided probable cause for arr est.” Id. at 12. Acc ording ly , “the e vidence collecte d post-flig ht need not be suppressed based upon the illega lity of the initial traff ic stop, so long as there was a leg itimate basis - 8 -No. 10-3781

United States v. King for its seizure following the captur e and arr est of the Def endant subsequent to his flig ht.” Id. When Ki n g wa s finally appre hended, he was arr ested and the sear ch incident to arr est uncovered approximately thirty -two g rams of cra ck coca ine. Id. The distric t co u rt fo u n d that beca use “the

arr est of the De fenda

nt was lawf

ul, the evidenc e re cover ed fr om his person was law fully obtained and nee d not be suppresse d.” Id. We ag ree . B. THE $1000 FINE King next arg ues that t h e d i strict court abused its discretion by fining King $1,000. I n particula r, King asser

ts that “[b] eing indige nt[ ,] the court should not have imposed a fine,” and that doing so violate d 18 U.S.C. § 3572(a). Appe llant Br. a t 18. This Court revie ws the district court’s fac tual finding as to whether King is capa ble of pay ing

a fine for clea

r err or. United States v. Hicke y , 917 F.2d 901, 906 (6th Cir. 1990). The United States Sentencing Gui d el i n es provide that “[t] he court shall impose a fine in all case s, except wher e the defe ndant establishes that he is unable to pay and is n o t likely to become able to pay any fine.” U.S.S.G. § 5E1.2(d). Section 3572 provides that: “I n deter mining whether to impose a fine, and the amount, time for pay

ment, and method of pay

ment of a fine, the court shall consider, in addition to the fac tors set forth in section 3553(a) ,” eig ht additional fac tors, including: the defe ndant’s income; the burden the fine will impose upon the defe ndant; pecunia ry loss inflicted upon others as a result of the offe nse; and the expected costs to the g overnme nt of imprisonment. 18 U.S.C. §3572(a)

. This Court’s g loss on the §3752(a) fac tors require s the district court to assess: “(1) the defe ndant’s income and ear ning capa city , (2) his financ ial resour ces, (3) the burden on the defe ndant and his dependa nts, (4) whether restitution is order ed and the amount of restitution, (5) the need to deprive the defe ndant - 9 -No. 10-3781

United States v. King of illega l g ains, and (6) the need t o promote respe ct for the law.” United States v. JacksonRandolph , 282 F.3d 369, 387 (6th Cir. 2002). Ultimately , “the defen d an t has the burden of establishing that he or she i s not able and, even w ith the use of a reasonable installment schedule , is not likely to become able to pay all o r part of the fine.” United States v. Tosca , 18 F.3d 1352, 1354 (6th Cir. 1994); see also United States v . Ukomadu , 236 F.3d 333, 340 ( 6th Cir. 2001). Be cause King ’s total offe nse level was 25, his G uidelines fine rang e was be tween $10,000 and $100,000. See § 5E1.2(c) (3). At sentenc ing, the court acknow ledg ed that King “doesn’ t ha ve the ability to pay a fine, a g uideline fine. Howeve r, beca use of the leng th of the sentenc e and the fac t that Mr. King can participa te in the Bur eau of Prisons’ Financ ial Prog ram, I am g oing to impose a $1,000 fine.” R. 55, Sentencing Transc ript, p. 10. I n doing so, t h e d i s t rict court implicitl y considere d the 3752(a) fac tors. Fur ther, King failed to satisfy his burden of proving that he is unable

t o p ay his below-G uidelines fine; aside from asser ting his indige nce, King never addre sses t h e d istrict court’s point that King can work off his fine throug h the Bur eau of Prisons’ Financ i al Prog ram. Consequently , even though the district co u rt d i d n ’t expli citly walk throug h eac h of §3752(a) fac tors, King ’s ar g ument is unavailing

. C. KIN G’ S SE NTENCE King arg ues that the district court err ed by “imposing what it beli ev ed t o be a mandatory

sentenc e . . . without considera tion of t he § 3 553 fac tors.” Appellant Br. at 20. Towar d that end, King relies on the dissent in United States v. Franklin , which rea soned that “the district court should be able to c onsider the mandatory seven- y ear

sentenc e for

brandishing a firea

rm in violation of 18 U.S.C. § 924(c) when the court evalua tes the 18 U.S.C. § 3553(a) fac tors in fashioning the additional - 10 -No. 10-3781

United States v. King appropr iate sentenc e to be imposed for the other counts of conviction.” 622 F.3d 650, 658 (6th Cir. 2010) (Moore , J ., dissenting) , vacate d on other grounds , 131 S.Ct . 1675 (2011). This Court revie ws a district court’s sentenc e for proce dural and substantive rea sonablene ss under the defe rential abuse of discretion standard. See , e.g. , United States v. Alex ander , 543 F.3d 819, 821 (6th Cir. 2008). A s en tence is proce durally unrea sonable if, inter alia, the di strict court failed to pr operly calc ulate the Guidelines rang e, trea ted the Guidelines rang e as mandatory , failed

to consid er § 3553(a) fac tors, used clea rly err oneous fac ts in imposing the sentenc e, or failed to adequately explain the sentenc e. Id. at 822. A sentenc e is substantively unrea sonable if the district

court arr ives at a se n

te n c e a r b it r a r il y , u s es impermissible sentenc ing fac tors, fails to consider rele vant
sentenc ing fac tors, or g ives unrea sonable weig ht to any one fac tor. United States v. Bake r , 559 F.3d 443, 448 (6th Cir. 2009). Section 3553(a) fac tors do not apply to mandatory minimum s in the Six th Circuit. See , e.g. , United States v. Penne

y , 576 F.3d 297, 317 (6th Cir. 2009) (holding that “§ 3553(a) fac tors do not apply to cong ressionally mandated sentence s”) ; Un i ted St ates v. Simpson , 546 F.3d 394, 397 (6th Cir. 2 0 08) (obser

ving that “a sentenc ing court must deter mine an appropr iate sentenc e for the underly ing crimes without considera tion of the mandatory sentenc es for firea rm offe nses”) ; United States v. Locke tt , 359 Fe d. App’x 598, 611 (6th Cir. 2009) (re cog nizi ng that sentenc ing c ourts are

“ c o n s tr a in e d by the mandatory minimum s Congr ess presc ribed” ); United States v
. W im b le y , 5 5 3 F

. 3 d 455 (6th Cir. 2009) (obser ving that while Kimbrough v. United States , 552 U.S. 85 (2007), expli citly allows the sentenc ing court to take into acc ount the Guidelines’ disparate trea tment of cra ck versus

- 11 -No. 10-3781

United States v. King powder cocai n e, K

imbrough is inapposite wher e the sentenc e is set by a statutory mandatory minimum rathe r than subjec t to the advisory Sentencing

Guidelines). Be cause the district court was not allowed to consider the § 3553(a) sentenc ing fac tors to

arr ive at a sentenc e less than the mandatory minimum , King ’s sentenc e is both proced urally and substantively rea sonable. Procedur ally , the district court corr ectly calc ulated King ’s 120-month mandatory minimum sentenc e pursuant to 21 U.S.C. §§ 841(a) (1) and (b)( 1)( B) wi t h an enhanc ement under 21 U.S.C. § 851. Fur ther, King ignor es the extensive Six th Circuit case law that makes clea

r that 3553(a) factors do not apply to mandatory minimum s. Acc ording ly , we find no

err or in the district court’ s sentence

. III. CONCLUSION For the fore g oing r easons, this Court AF F IRMS King ’s conviction and se ntence

.

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