FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 23, 2005

THOMAS K. KAHN

CLERK

Honorable Eugene E. Siler, United States Circuit Judge for the Sixth Circuit, sitting by *

designation.

[ PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 03-15073

________________________

D.C. Docket No. 02-00103-CR-FTM-29-DNF

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL J. LYONS, JR.,

Defendant-Appellant.

__________________________

Appeal from the United States District Court 

for the Middle District of Florida

_________________________

(March 23, 2005)

Before MARCUS, FAY and SILER , Circuit Judges. *

MARCUS, Circuit Judge:
2

Daniel L. Lyons appeals his conviction for possession of ammunition by a

convicted felon, in violation of 18 U.S.C. § 922(g), and the 235-month sentence the

district court imposed based on his status as an “armed career criminal,” pursuant to

18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4(b). On appeal, Lyons argues that: (1) the

district court erred by denying his pre-trial motion to suppress four bullets found on

his person during a search incident to his arrest for disorderly conduct, a violation of

Fla. Stat. § 877.03; (2) the district court erred by granting the government’s motion

in limine to exclude evidence of Lyons’s state-court acquittal on the § 877.03

charges; and (3) the imposition of a 235-month “armed career criminal” sentence

constitutes cruel and unusual punishment, in violation of the Eighth Amendment.

We apply a mixed standard of review to the denial of a defendant's motion to

suppress, reviewing the district court’s findings of fact for clear error and its

application of law to those facts de novo. United States v. Desir, 257 F.3d 1233,

1235-36 (11th Cir. 2001). We review a district court’s evidentiary rulings for abuse

of discretion. See United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en

banc), petition for cert. filed, No. 04-8324 (Jan. 13, 2005). As for Lyons’s

constitutional challenge to his sentence, our review is de novo. See United States v.

Reynolds, 215 F.3d 1210, 1212 (11th Cir. 2000). 
3

Upon thorough review of the record, as well as careful consideration of the

parties’ briefs and oral argument, we find no reversible error and affirm.

I.

The relevant facts are straightforward. On November 13, 2002, Lyons was

indicted in one count for possession of ammunition (four Remington .22 caliber

bullets), after having been convicted of three or more violent felony or serious drug

offenses, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The indictment identified

eight prior felony convictions: grand theft, attempted robbery, aggravated assault, two

robberies, sale or delivery of cocaine, possession of cocaine, and sale of a substance

in lieu of a controlled substance. Lyons moved to dismiss the indictment, arguing

that the armed-career-criminal charge violated the Eighth Amendment’s proscription

of cruel and unusual punishment. The district court denied his motion. Lyons

then filed a motion to suppress the four bullets found on his person during a search

incident to his arrest for disorderly conduct. He argued that the seizure of the bullets

was illegal because his conduct did not violate Florida’s disorderly conduct statute,

Fla. Stat. § 877.03. He maintained that the foregoing argument was supported by the

fact that he had been acquitted on the § 877.03 charge in state court. 

At an evidentiary hearing on the motion to suppress, the government presented

the following evidence. Detective Brian Gederian of the Fort Myers Police
4

Department (“FMPD”) testified that, during the early morning hours of September 16,

2001, he was patrolling an area containing a number of bars where “several fights”

had occurred that evening. When he arrived, Detective Gederian approximated, 30

to 40 people were present at the scene. This was right around the closing time of the

area bars. In the course of breaking up a developing fight, Detective Gederian

arrested a friend of Lyons. According to Detective Gederian, after he had arrested

Lyons’s friend and placed the friend in the back of a patrol car, Lyons began

“protesting about his friend’s arrest” by “swearing and cussing.” Lyons also directed

racial epithets at Detective Gederian. Detective Gederian described Lyons’s demeanor

as “very aggressive,” and indicated that he appeared intoxicated. 

For security reasons, Detective Gederian asked Lyons to “step back about ten

to fifteen times.” Lyons failed to comply with these ten to fifteen requests and kept

running toward Detective Gederian, approaching Gederian at a distance he estimated

was not closer than “arm’s length.” At this point, Detective Gederian moved to arrest

Lyons. When he was told that he was going to be arrested, Lyons took a “fighting

stance,” necessitating Gederian’s use of pepper spray to subdue him. After Lyons’s

arrest, police officers found four Remington .22 caliber bullets in Lyons’s front

pocket. 
5

FMPD Officer Jeffrey Paul Bernice, who was on patrol in the same area on the

night of Lyons’s arrest, assisted in the arrest of Lyons’s friend. Officer Bernice

testified that the friend was an Asian male who, it was reported, had slapped a white

female. Officer Bernice testified that he had encountered Lyons prior to the evening

of September 16, 2001, and that, in these situations, “Lyons was always respectful to

me, courteous, kind, always friendly.” However, on the evening of his arrest, Bernice

described Lyons as “very upset” and “angry.” According to Officer Bernice, after

Lyons’s friend was arrested, Lyons began “screaming obscenities,” and gesturing by

holding his hands up in the air. At some point, two bottles were thrown at law

enforcement officers in the area, but the officers were unable to tell who threw the

bottles. There were about five law enforcement officers at the scene of the arrest.

Officer Bernice confirmed that Detective Gederian directed Lyons to leave, but that

Lyons did not comply with this instruction. Officer Bernice testified that the crowd

then consisted of over 100 people. 

In support of his suppression motion, Lyons presented the testimony of a

friend, Jana K. Minor, who had been at the scene of Lyons’s arrest. Minor stated that

she, Lyons, and Lyons’s then-girlfriend went to a bar in downtown Fort Myers.

Outside of the bar, Minor saw a woman named “Tracy” hit an Asian man, at which

point, the man had to “restrain her [Tracy]. . . so she wouldn’t hit him again.” Minor
6

further testified that Tracy then falsely reported to law enforcement that the Asian

man hit her. After the alleged false report, Minor saw the officers arrest the Asian

man. Minor also observed that after a female friend protested the arrest, the police

“thr[ew] her to the ground and put [her] in handcuffs.” According to Minor, at this

point Lyons called the officers “fucking honkeys” while he was walking away from

the scene. The police officers then sprayed Lyons with mace and handcuffed him.

According to Minor’s account, Lyons swore at the police officers only once.

In a Report and Recommendation (R&R), the magistrate judge recommended

denying the motion to suppress. The magistrate judge concluded that the police had

probable cause to arrest Lyons for a violation of Florida law (disorderly conduct)

based on the following facts: (1) “[a]t the time of Mr. Lyons’s arrest, Detective

Gederian was facing a large crowd of people” and was attempting to disperse the

crowd; (2) Lyons yelled obscenities at the officers and was “running up to the

officers,” for a “reason [that] did not appear to be evident to Officer Detective

Gederian”; and (3) bottles were thrown at the officers by unknown persons in the

crowd. The magistrate judge denied Lyons’s suppression motion, concluding that

“Lyons’s words along with his non-verbal actions interfered with Officer Detective

Gederian’s duty to disperse the crowd, and Officer Detective Gederian had probable

cause for arresting Mr. Lyons pursuant to [Fla. Stat.] § 877.03.”
7

Lyons objected to the R&R, arguing, inter alia, that under Florida law, his

conduct did not constitute disorderly conduct because it consisted of “mere words.”

The district court disagreed, observing: (1) “the testimony established that a crowd

of a couple hundred people were” assembled at the scene of Lyons’s arrest; (2) when

police officers arrested Lyons’s friend after a fight, Lyons began “swearing and

cussing”; (3) Lyons “would stand back for a moment, then run up in an aggressive

manner while continuing to yell, scream, and use profanity the entire time”; and (4)

Lyons “repeated this conduct between ten and fifteen times over a period of about ten

minutes.” Based upon these findings, the district court concluded that “the totality

of the circumstances in this case establishes that defendant’s conduct was more than

mere protected speech and was sufficient for the officers to have probable cause to

arrest under the Florida disorderly person statute.” Accordingly, the district court

denied Lyons’s objections, adopted the R&R, and denied the motion to suppress.

At the start of Lyons’s subsequent trial, the government moved in limine to

prevent Lyons from introducing evidence of his state-court acquittal on the

disorderly-conduct charges. The government argued that this information was

irrelevant to Lyons’s charged offense of possessing ammunition while a convicted

felon. Lyons conceded this point, but maintained that the evidence was relevant to
8

show Detective Gederian’s motive and bias. The district court disagreed and granted

the government’s motion. 

At trial, Detective Gederian presented testimony that was, in all material

respects, consistent with the testimony he provided at the suppression hearing. In

addition, he testified that after he returned to the police station, Officer Sean Hoover

gave him a “property envelope” containing the four bullets. Detective Gederian

indicated that he placed the bullets into a plastic bag. He also identified the bullets

for the jury. When he submitted the bullets for fingerprinting, about four months

after Lyons’s arrest, analysis of the bullets yielded no fingerprint evidence. Finally,

Detective Gederian explained that he did not mention the bullets on the “booking

sheet,” which he completed shortly after Lyons’s arrest, because Lyons was not

facing federal charges at that point, and the bullets were irrelevant to the state charges

that Lyons was facing. 

During cross-examination, defense counsel showed Detective Gederian a

transcript from Lyons’s state trial. Detective Gederian admitted that, in this

proceeding, he had not testified that Lyons assumed a “fighting stance” when

informed of the arrest. Defense counsel then tried to ask Gederian about the charges

and state trial, at which point the government objected, arguing that the information

was not relevant to the federal charge. Defense counsel responded that he was trying
9

to establish Detective Gederian’s “motivation for testifying.” The district court

sustained the government’s objection. 

FMPD Officer Sean Hoover transported Lyons to the police station after his

arrest. Officer Hoover testified at trial that after arriving at the police station, he

inventoried Lyons’s property. Officer Hoover identified the property envelope in

which he placed Lyons’s possessions, which included, among other things, four .22-

caliber bullets. Hoover said that he removed these bullets fromLyons’s pocket on the

night Lyons was arrested. 

The jury returned a guilty verdict and Lyons proceeded to sentencing. The

presentence investigation report (“PSI”) indicated that, because Lyons had twice been

convicted of a crime of violence, a base offense level of 24 applied. And because of

his multiple prior convictions, Lyons was an “armed career criminal,” within the

meaning of 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4(a). Thus, based on a criminal

history Category VI and a total offense level of 33, his sentencing range was 235 to

293 months’ imprisonment. 

Over Lyons’s Eighth Amendment challenge to the constitutionality of §

4B1.4’s “armed career criminal” provisions, the district court sentenced Lyons to a

235-month term of imprisonment, followed by a 3-year term of supervised release.

This timely appeal followed.
10

II.

Lyons first argues that the district court erred by denying his motion to

suppress the bullets because the FMPD officers lacked probable cause to arrest him

for violating Fla. Stat. § 877.03, and, thus, that there was no basis for searching him

incident to a lawful arrest. More specifically, Lyons says that, because his statements

did not inflict injury or tend to incite an immediate breach of the peace, his behavior

did not constitute disorderly conduct under Florida law. We disagree. 

“Under the Fourth and Fourteenth Amendments, an arresting officer may,

without a warrant[,] search a person validly arrested.” Michigan v. DeFillippo, 443

U.S. 31, 35, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979). In turn, “the Constitution

permits an officer to arrest a suspect without a warrant if there is probable cause to

believe that the suspect has committed or is committing an offense.” Id. at 36. “For

probable cause to exist, both federal and Florida law say that an arrest must be

objectively reasonable based on the totality of the circumstances.” Lee v. Ferraro,

284 F.3d 1188, 1195 (11th Cir. 2002). “This standard is met when the facts and

circumstances within the officer’s knowledge, of which he or she has reasonably

trustworthy information, would cause a prudent person to believe, under the

circumstances shown, that the suspect has committed, is committing, or is about to

commit an offense.” Id. (citation and internal quotation marks omitted). 
11

“The validity of the arrest does not depend on whether the suspect actually

committed a crime; the mere fact that the suspect is later acquitted of the offense for

which he is arrested is irrelevant to the validity of the arrest.” DeFillippo, 443 U.S.

at 36. Thus, the dispositive question in this case is whether, at the time Lyons was

arrested, based on the totality of the facts and circumstances within Detective

Gederian’s knowledge, there was probable cause to believe Lyons had committed the

crime of disorderly conduct. On this record, we conclude that probable cause existed.

Lyons was arrested for disorderly conduct in violation of Fla. Stat. § 877.03,

which provides that

[w]hoever commits such acts as are of a nature to corrupt the public

morals, or outrage the sense of public decency, or affect the peace and

quiet of persons who may witness them, or engages in brawling or

fighting, or engages in such conduct as to constitute a breach of the

peace or disorderly conduct, shall be guilty of a misdemeanor of the

second degree, punishable as provided in s. 775.082 or s. 775.083.

As a preliminary matter, we note that under Florida law, where the basis for an arrest

under § 877.03 is speech only, the statute’s application is limited:

[W]e now limit the application of Section 877.03 so that it shall

hereafter only apply either to words which ‘by their very utterance . . .

inflict injury or tend to incite an immediate breach of the peace,’ White

v. State, 330 So.2d at 7; see Chaplinsky v. New Hampshire, 315 U.S.

568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); or to words, known to be

false, reporting some physical hazard in circumstances where such a

report creates a clear and present danger of bodily harm to others. . . .

With these two exceptions, Section 877.03 should not be read to
12

proscribe the use of language in any fashion whatsoever. (Emphasis

added).

State v. Saunders, 339 So.2d 641, 644 (Fla. 1976) (emphasis added). The limitation

discussed in Saunders concerns arrests for speech only. Since Lyons’s conduct did

not consist of speech only, the limitation is not relevant to our analysis.

Based on our careful review of Florida law, it is equally clear that challenged

conduct that involves something more than “mere speech” remains subject to §

877.03. See, e.g., C.L.B. v. State, 689 So. 2d 1171, 1172 (Fla. Dist. Ct. App. 1997)

(holding that defendant’s nonverbal acts, which included repeatedly approaching

police officer, in combination with his speech, violated § 877.03); W.M. v. State, 491

So. 2d 335, 336 (Fla. Dist. Ct. App. 1986) (finding that defendant’s conduct during

a traffic stop, which drew a large hostile crowd to the scene, constituted disorderly

conduct); Delaney v. State, 489 So. 2d 891, 892 (Fla. Dist. Ct. App. 1986) (upholding

probable cause to arrest and conviction under § 877.03 where “appellant’s conduct

consisted of more than his arguably ‘protected’speech” and such conduct “precluded

[the] [o]fficer . . . from investigating . . . by being loud and abusive, continually

interrupting [the officer’s] investigation . . . , and ignoring [the officer’s] request to

wait his turn.”).
13

Here, given the totality of the circumstances facing the officers on the night of

Lyons’s arrest, we readily conclude that the facts and circumstances provided an

adequate basis for Officer Gederian to reasonably believe that Lyons had committed

or was about to commit a violation of § 877.03. In addition to his speech, which

consisted of yelling obscenities and a racial epithet, Lyons engaged in non-verbal

conduct, which Gederian reasonably perceived as “aggressive.” This conduct

included running up to Gederian multiple times while Gederian was trying to disperse

a large crowd, amounting to no less than 30 or 40 and possibly exceeding 100 people.

The magistrate judge found that Lyons’s conduct interfered with the officers’

dispersal attempts. Although Gederian repeatedly warned Lyons to leave the area

between 10 and 15 times, Lyons refused to comply. It was a busy night in the

“entertainment district,” where the bars were located, and the police had come to the

scene in response to reports of several fights that evening. Indeed, at some point

during the officers’ dispersal efforts, members of the crowd threw two bottles at the

officers (although there is no indication Lyons threw anything at the officers). Again,

there were only five officers at the scene compared to a crowd of at least 30 to over

100 people. Simply put, based on the presence of all these factors, which have been

considered in various Florida disorderly conduct cases, Gederian reasonably could

have believed that Lyons had committed or was about to commit a violation of §
14

877.03. Accordingly, we can discern no error in the district court’s denial of Lyons’s

motion to suppress the bullets found during a search incident to his arrest. 

We are likewise unpersuaded by Lyons’s argument that the district court

abused its discretion by granting the government’s motion in limine to preclude him

from introducing evidence that he had been acquitted of disorderly conduct in state

court. Again, our review of this evidentiary ruling is for abuse of discretion. “The

application of an abuse-of-discretion review recognizes the range of possible

conclusions the trial judge may reach.” Frazier, 387 F.3d at 1259. Thus, we will

affirm the district court even on “‘occasions in which . . . we would have gone the

other way had it been our call.’” Id. (quoting Rasbury v. I.R.S. (In re Rasbury), 24

F.3d 159, 168 (11th Cir. 1994)). When employing this standard, “we must affirm

unless we find that the district court has made a clear error of judgment, or has

applied the wrong legal standard.” Id. (citation omitted).

Lyons argues that evidence of his acquittal was relevant to show that Detective

Gederian was biased against him and might have planted the bullets on him, and that

the district court’s ruling violated his Fifth and Sixth Amendment rights by

precluding effective cross-examination of Detective Gederian. More specifically,

Lyons argues that the district court’s rulings prevented him from arguing that

Detective Gederian was prejudiced against him because of his state court acquittal,
 Lyons says that he wanted to cross-examine Gederian on whether he had “planted” the 1

bullets in retaliation for Lyons’s acquittal on the underlying disorderly conduct charges. As Lyons

concedes in the reply brief, however, the date on which Detective Gederian claimed to find the

bullets preceded the date of the state court acquittal. Therefore, the acquittal itself could not have

motivated Detective Gederian to plant evidence on Lyons.

15

and that this motivated Detective Gederian to embellish his testimony in this case.1

“[T]he Sixth Amendment only protects cross-examination that is relevant.”

Jones v. Goodwin, 982 F.2d 464, 469 (11th Cir. 1993) (emphasis added); United

States v. Novaton, 271 F.3d 968, 1006 (11th Cir. 2001) (“[A] defendant is only

entitled to cross-examine a witness if the information sought to be elicited [is]

relevant.” (citation and internal quotation marks omitted)). Thus, a trial court retains

“wide latitude insofar asthe Confrontation Clause is concerned to impose reasonable

limits on such cross-examination based on concerns about, among other things,

harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation

that is repetitive or only marginally relevant.” Francis v. Dugger, 908 F.2d 696, 702

(11th Cir. 1990) (citation and internal quotation marks omitted). 

While “[c]ross-examination of a government ‘star’ witness is important, and

a presumption favors free cross-examination on possible bias, motive, ability to

perceive and remember, and general character for truthfulness,” United States v.

Phelps, 733 F. 2d 1464, 1472 (11th Cir. 1984) (citation omitted), “the mere fact that

[a defendant] sought to explore bias on the part of a prosecution witness does not
16

automatically void the court’s ability to limit cross-examination.” United States v.

Diaz, 26 F.3d 1533, 1540 (11th Cir. 1994). The Federal Rules of Evidence define

“relevant evidence” as “evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Fed. R. Evid. 401. Of course, even

relevant evidence “may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” Fed. R. Evid. 403; cf. Cook ex rel. Estate of Tessier v. Sheriff

of Monroe County, Fla., --- F.3d ----, 2005 WL 552483 (11th Cir. Mar. 10, 2005)

(excluding evidence of other crimes, wrongs, or acts where “any probative value the

[evidence] might have was substantially outweighed by [its] potential to mislead the

jury and prejudice the defendant”).

At the trial, the government pointed out that evidence of Lyons’s state court

acquittal was irrelevant to whether or not he violated § 922(g). Indeed, the elements

of a § 922(g) charge plainly differ from those that support a violation of § 877.03.

Defense counsel noted that the evidence “isn’t relevant as to whether or not he

possessed the ammunition,” but argued that it was “relevant to the motive and bias”

of Detective Gederian -- Lyons wanted to impeach Detective Gederian by arguing
17

that “he must now justify” Lyons’s arrest. In short, the relevance, if any, of Lyons’s

acquittal in state court was exceedinglymarginal and, given that it may have confused

the jury, we can find no abuse of discretion in the district court’s decision to exclude

this evidence.

Finally, Lyons argues his 235-month sentence constitutes cruel and unusual

punishment, in violation of the Eighth Amendment. “The Eighth Amendment, which

forbids cruel and unusual punishments, contains a narrow proportionality principle

that applies to noncapital sentences.” Ewing v. California, 538 U.S. 11, 20, 123 S.

Ct. 1179, 155 L. Ed. 2d 108 (2003)(emphasis added)(citations and internal quotation

marks omitted); United States v. Brant, 62 F.3d 367, 368 (11th Cir. 1995) (“In

non-capital cases, the Eighth Amendment encompasses, at most, only a narrow

proportionality principle.”). Moreover, “[r]ecidivism has long been recognized as a

legitimate basis for increased punishment.” Ewing, 538 U.S. at 25.

Indeed, the Supreme Court has consistently affirmed the imposition of longer

sentences, even for non-violent offenses, based on an offender’s recidivism. See

Ewing, 538 U.S. at 30-31 (affirming a 25-year to life sentence given to recidivist who

stole 3 golf clubs priced at $399 each); Hutto v. Davis, 454 U.S. 370, 374-75, 102 S.

Ct. 703, 70 L. Ed.2d 556 (1982) (affirming two consecutive sentences of 20 years

each given to recidivist for possessing 9 ounces of marijuana with the intent to
 Section 4B1.4(c) of the Sentencing Guidelines provides that a finding that a defendant 2

is an armed career criminal may, under certain circumstances, increase the criminal history category

that applies. However, because Lyons had a category VI criminal history even before this provision

was applied, he was not affected by § 4B1.4(c).

18

distribute it and for distribution of marijuana); Rummel v. Estelle, 445 U.S. 263, 265,

100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980) (affirming life sentence with the possibility

of parole imposed upon recidivist who “obtain[ed] $120.75 by false pretenses”).

The provisions of 18 U.S.C. § 924(e) require imposition of “not less than 15

years” imprisonment upon “armed career criminal[s],” which the statute defines as

any person who violates § 922(g) after having been convicted of three or more violent

felonies or “serious drug offense[s.]” 18 U.S.C. § 922(g). Accordingly, U.S.S.G. §

4B1.4(b) provides that a defendant’s total offense level must be increased to at least

33 when the defendant is an “armed career criminal.” See U.S.S.G. § 4B1.4(b).2

In the instant case, Lyons’s category VI criminal history and the heightened

total offense level required by § 4B1.4(b) resulted in a guidelines sentencing range

of 235 to 293 months. See U.S.S.G. § 5A. This sentence was entirely the result of

Lyons’s recidivism. In fact, because § 922(g)(1) only applies to individuals with

predicate convictions, Lyons could not have been convicted in the first place had he

not previously been convicted of a crime punishable by more than one year of

imprisonment. See 18 U.S.C. § 922(g)(1). Again, Lyons was previously convicted
19

of grand theft, attempted armed robbery, two counts of robbery without a weapon,

battery, sale of cocaine, sale of a substance in lieu of a controlled substance, and an

additional count ofsale of a controlled substance. The length of his sentence was the

result of his extensive criminal history and it is well-settled law that a longer sentence

may be imposed on a recidivist, based on his criminal history, even if the offense of

conviction is relatively minor in nature. In short, under controlling Supreme Court

precedent, we can find no Eighth Amendment violation in this case.

AFFIRMED.