FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 DECEMBER 17, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-10155

Non-Argument Calendar

________________________

D. C. Docket No. 08-20367-CR-WPD

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONAVEON LIGHTBOURN,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(December 17, 2009)

Before TJOFLAT, WILSON and FAY, Circuit Judges.

PER CURIAM:
Donaveon Lightbourn appeals the district court’s denial of his motion to

suppress, as well as his conviction and sentence for possession of a firearm and

ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and

924(e)(1). Lightbourn argues that (1) the evidence found in the vehicle in which

he was sitting was seized during an unlawful search incident to arrest; (2) certain

incriminating statements should have been excluded as fruit of the poisonous tree;

(3) there was insufficient evidence to support his conviction; and (4) the district

court violated his Fifth and Sixth Amendment rights by enhancing his sentence

based on prior convictions that were not alleged in the indictment or found by a

jury. For the reasons set forth below, we affirm.

I.

Lightbourn was charged with possession of a firearm and ammunition by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), to which he

pled not guilty. Lightbourn filed a motion to suppress the firearm, ammunition, a

baggie of marijuana, and certain statements he made to authorities, asserting that

this evidence was obtained as a result of an illegal detention, illegal arrest, and

illegal vehicle search.

At the suppression hearing, Tom Wever, an officer with the Miami-Dade

Police Department, testified that, on January 23, 2008, he was driving in his patrol

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car when he saw a flash out of the corner of his eye and heard what he believed to

be a gunshot. The gunshot came from the area of two vehicles – one vehicle that

was traveling southbound and another vehicle that was parked on the side of the

road facing the wrong direction. Wever approached the parked vehicle, turned on

his high beams, and parked his patrol car in front of the parked vehicle. Wever

observed three individuals in the car and saw that the front passenger side window

was rolled down. Wever noted that, when he first approached the vehicle, the front

passenger was “leaning down,” and Wever thought that he “was messing with

something on the floorboard.” Wever approached the passenger side window and

asked Lightbourn, the front passenger, who had fired the shot. Lightbourn

informed Wever, and the driver confirmed, that the car that had driven past them

had fired the shot.

Wever removed Lightbourn from the vehicle and patted him down for

weapons, at which point he observed a small bag of marijuana on the front

passenger seat. Wever arrested Lightbourn for possession of marijuana and placed

him in the back of his patrol car. Wever then returned to the vehicle to “check the

area where [he] saw Mr. Lightbourn reaching down.” Under the front passenger

seat, Wever discovered a firearm. He explained that the barrel of the firearm was

“pointing toward the back seat and the handle of the gun was pointing towards the

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front of the car.” Wever discovered that there were five bullets inside the gun and

one spent casing.

Wever transported Lightbourn to the Northside District police station. He

explained that, “before we g[o]t to the station, we read him his rights from my

card.” Lightbourn told Wever, “[j]ust take me to jail.” Wever asked Lightbourn

about the firearm, but Lightbourn did not say anything about it. Once they arrived

at the station, Wever prepared paperwork. On the way to the jail, Lightbourn told

Wever that

he had the gun because he has a lot of enemies in that

area, and he has been shot multiple times, and he saw the

car pass by. He thought they might try to shoot him.

And that’s when he pulled the gun out. He said that the

car passed by without anything happening. So he went to

put the gun back and it went off by accident.

On cross-examination, Wever acknowledged that he did not mention in his

arrest affidavit or incident report that a silver car drove past the parked vehicle, that

he saw a flash out of the corner of his eye, or that two other individuals were inside

the parked vehicle. He pointed out that he did write in the incident report and

arrest affidavit that “a shot was fired.” He stated that he searched “the area where

Mr. Lightbourn was sitting.”

Wever testified that he did not question Lightbourn at the scene or on the

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way to the station. He stated that he informed Lightbourn of his Miranda rights

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inside the patrol car. Wever stated that Lightbourn responded that he understood

his rights and never waived them. When Wever asked Lightbourn about the gun,

Lightbourn “just said take him to jail.” Wever did not reengage Lightbourn after

completing the paperwork at the station. Instead, Lightbourn “began talking about

the reason for having the gun.” Wever estimated that it took him “at least 45

minutes” to complete the paperwork.

The district court denied Lightbourn’s motion to suppress, finding that

Wever’s testimony was credible and that Weaver was justified in investigating the

parked vehicle and conducting a pat-down search of Lightbourn after seeing

Lightbourn lean down in the passenger seat. It noted that Wever was authorized to

conduct a search incident to arrest after he observed the marijuana and placed

Lightbourn under arrest. Finally, it found that Lightbourn made incriminating

statements after reinitiating the conversation with Wever as they left the police

station.

At trial, Wever testified that he was driving in his patrol car at

approximately 11:00 p.m. on January 23, 2008, when he saw a flash out of the

corner of his eye and heard a bang that sounded like a gunshot coming from the

 Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). 1

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area of a southbound car and a vehicle parked on the side of the road facing the

wrong direction. Wever radioed to other officers that he “had a shot fired in the

area,” approached the vehicle, turned on his high beams, and saw two occupants in

the front of the vehicle and one occupant in the back. Wever stated that he “saw

the front passenger reach down like he was messing with something or trying to

either retrieve or conceal something underneath the floorboard.” Wever noticed

that the front passenger window was rolled down.

Wever asked Lightbourn, the front passenger, to step out of the vehicle and

patted him down for weapons, at which point he saw a small bag of marijuana on

the seat on which Lightbourn had been sitting. Wever handcuffed Lightbourn and

placed him in the back of his patrol car. Wever then returned to the vehicle and

“looked in the area that [Lightbourn] was sitting where [Wever] saw him

reaching.” Wever located a firearm underneath the front passenger seat. He stated

that the firearm would have been visible to someone entering the front passenger

seat. He stated that the gun was flush with the seat—“[i]t wasn’t really far back

and it wasn’t out on the floorboard.” He stated that there were six bullets in the

firearm, although one of the rounds had already been fired so that only the casing

was left. Wever explained that he “got down on the floorboard and used [a]

flashlight to look completely under the [front passenger] seat.” He stated that it did

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not appear that an object could have passed from the rear of the vehicle to where

the gun was found underneath the seat. He also noted that there was a center

console between the driver’s side and the front passenger side of the vehicle. He

stated that, based on his inspection of the vehicle, the firearm would have had to be

placed under the seat by the front seat passenger.

Wever transported Lightbourn to the Northside police station and, before he

exited the vehicle, he read Lightbourn his Miranda rights. Lightbourn told Wever

that he understood his rights and said “[j]ust take me to jail.” Wever then took

Lightbourn inside the station and began preparing paperwork, including an arrest

affidavit and offense incident report. He stated that the paperwork took about 45

minutes to complete. During the completion of the paperwork, Lightbourn

provided biographical information, but did not make any further statements. As

Lightbourn was being released to be transported to the county jail, he told Wever,

“[l]ook, I only have that gun for my protection because I got a lot of enemies in

that area” and “[h]e saw the car approach them and he pulled the gun out because

he thought maybe the car was going to shoot at them – at him. He said when the

car passed without anything happening, he went to put the gun back and it went off

accidentally.”

On cross-examination, Wever explained that he did not include in his

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paperwork Lightbourn’s statements regarding his reasons for having the firearm

because he had already completed the paperwork when Lightbourn made the

statements. He noted that he included Lightbourn’s statement in a supplemental

report written three months after Lightbourn’s arrest. Wever explained that he

planned to tell prosecutors about Lightbourn’s statements when he met with them

to discuss the case.

On re-cross, Wever explained that he usually met with prosecutors to discuss

cases within a week of an arrest, but that the meeting in this case was delayed and

the case eventually was transferred to federal court.

John Webb, a Special Agent with the Bureau of Alcohol, Tobacco, Firearms,

and Explosives, was qualified as an interstate nexus expert. He testified that the

firearm seized from the vehicle in this case had traveled in interstate commerce

because the manufacturer did not have a manufacturing plant in the state of

Florida. He stated that the bullets found inside the firearm also had traveled in

interstate commerce.

The parties stipulated that Lightbourn had been convicted of a felony prior

to January 23, 2008. The jury found Lightbourn guilty of being a convicted felon

in possession of a firearm and ammunition.

The presentence investigation report (“PSI”) initially set Lightbourn’s base

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offense level at 24, pursuant to U.S.S.G. § 2K2.1(a)(2). However, it noted that

Lightbourn was considered a career offender under 18 U.S.C. § 924(e) and,

therefore, was subject to an enhanced offense level of 33, pursuant to U.S.S.G.

§ 4B1.4(b)(3)(B). Lightbourn did not qualify for any additional adjustments, so

his total offense level remained 33. Because Lightbourn was a career offender, he

was placed in criminal history category VI, which, when combined with offense

level 33, yielded a guideline imprisonment range of 235 to 293 months. Neither

the government nor Lightbourn filed objections to the PSI.

At the sentencing hearing, Lightbourn stated that he was in agreement with

the guideline calculations set forth in the PSI and asked the court to sentence him

at the low end of the applicable guideline range. The court noted that Lightbourn

qualified as a career offender and, therefore, was subject to a statutory minimum of

15 years’ imprisonment. It stated that it had considered the 18 U.S.C. § 3553(a)

sentencing factors and determined that a sentence at the high-end of the guideline

range was appropriate, in light of Lightbourn’s significant criminal history, and it

sentenced him to 293 months’ imprisonment, to be followed by 5 years’ supervised

release. Neither party objected to the sentence.

II.

Failure to Suppress Firearm and Ammunition

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Rulings on motions to suppress evidence constitute mixed questions of law

and fact. United States v. LeCroy, 441 F.3d 914, 925 (11th Cir. 2006). We accept

the district court’s findings of fact unless they are clearly erroneous, but review de

novo the application of law to those facts. Id. We will defer to the district court’s

credibility determinations, unless the district court’s “understanding of the facts

appears to be ‘unbelievable.’” United States v. Ramirez-Chilel, 289 F.3d 744, 749

(11th Cir. 2002).

To conduct an investigatory stop, an officer must “have a reasonable,

articulable suspicion based on objective facts that the person has engaged in, or is

about to engage in, criminal activity.” United States v. Lindsey, 482 F.3d 1285,

1290 (11th Cir. 2007). Reasonable suspicion is “considerably less than proof of

wrongdoing by a preponderance of the evidence” and less than probable cause.

United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1

(1989). Nevertheless, the officer must articulate “some minimal level of objective

justification.” Id.

The Fourth Amendment protects “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. amend. IV. In general, unless there is consent, police

officers must obtain a warrant supported by probable cause to justify a search

10
under the Fourth Amendment. United States v. Magluta, 418 F.3d 1166, 1182

(11th Cir. 2005). However, “[o]nce an officer has legitimately stopped an

individual, the officer can frisk the individual so long as a reasonably prudent man

in the circumstances would be warranted in the belief that his safety or that of

others was in danger.” United States v. Hunter, 291 F.3d 1302, 1306 (11th Cir.

2002) (quotation omitted).

The Supreme Court also has held that, once a suspect is under lawful arrest,

law-enforcement officers may search areas within the immediate control of the

suspect to prevent him from obtaining a weapon or destroying evidence. Chimel v.

California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969).

Recently, the Supreme Court clarified that officers are authorized “to search a

vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured

and within reaching distance of the passenger compartment at the time of the

search” or if “it is reasonable to believe evidence relevant to the crime of arrest

might be found in the vehicle.” Arizona v. Gant, 556 U.S. __, __ 129 S.Ct. 1710,

1719, 173 L.Ed.2d 485 (2009) (quotation omitted). If the offense of arrest supplies

a basis for a search incident to arrest, the officer may search “the passenger

compartment of an arrestee’s vehicle and any containers therein.” Id.

As an initial matter, it appears that Lightbourn may have lacked standing to

11
challenge the search of the vehicle because he was merely a passenger and did not

own the vehicle. However, the government has waived the issue of standing by

failing to raise the issue in the district court and, instead, addressing the merits of

Lightbourn’s Fourth Amendment claims. See United States v. Gonzalez, 71 F.3d

819, 828 n.18 (11th Cir. 1996) (determining that the government waived the issue

of standing because it “declined to press th[e] standing issue before the district

court”). Accordingly, we address the merits of Lightbourn’s Fourth Amendment

claims.

In evaluating Lightbourn’s Fourth Amendment claims, we accept the district

court’s determination that Wever’s testimony was credible because nothing in the

record renders his testimony “unbelievable.” Ramirez-Chilel, 289 F.3d at 749.

Although Lightbourn challenges Wever’s testimony that he heard a gunshot on the

night of Lightbourn’s arrest, Lightbourn offered no evidence in support of this

position. Furthermore, Wever testified that his arrest affidavit and incident report,

written on the night of Lightbourn’s arrest, reflected that “a shot was fired” from

the area in which the car was parked.

Wever’s testimony at the suppression hearing established that he had a

“reasonable, articulable suspicion” that the occupants of the parked vehicle were

engaged in criminal activity, specifically, the discharge of a firearm, based on his

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witnessing a flash out of the corner of his eye and hearing a gunshot coming from

the area of the parked vehicle. Lindsey, 482 F.3d at 129. Wever also was

authorized to conduct a pat-down search of Lightbourn because, when Wever

approached the vehicle, he observed Lightbourn lean down in his seat. This action,

coupled with the gunshot Wever heard shortly before arriving at the vehicle, would

cause a reasonably prudent man to believe that his safety or the safety of others

was in danger. See Hunter, 291 F.3d at 1306. As Wever was patting down

Lightbourn, he observed marijuana in plain view on Lightbourn’s seat. At this

point, Wever had probable cause to arrest Lightbourn for marijuana possession.

Finally, although Lightbourn was secured in the back of Wever’s police

cruiser at the time of the vehicle search, the search was a lawful search incident to

arrest because it was “reasonable to believe that evidence relevant to [Lightbourn’s

possession of marijuana] might be found in the vehicle.” See Gant, 556 U.S. at __,

129 S.Ct. at 1719. Because Lightbourn was arrested for possession of marijuana,

and because Wever had already observed suspected marijuana on the passenger

seat, it would be reasonable to believe that additional marijuana or other drug

paraphernalia would be found inside the vehicle. Furthermore, Wever testified that

his search was confined to the passenger compartment of the vehicle. See Gant,

556 U.S. at __, 129 S.Ct. at 1719 (holding that, if it is reasonable to believe that

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evidence of the offense of arrest will be found in the vehicle, officers may search

“the passenger compartment of an arrestee’s vehicle and containers therein”).

Accordingly, the district court did not err in refusing to suppress the firearm found

during the lawful search incident to arrest.

Failure to Suppress Statements

Generally, any evidence obtained by unconstitutional searches and seizures

is inadmissible in court. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684,

1691, 6 L.Ed.2d 1081 (1961). In addition to the illegally obtained evidence, the

defendant may suppress incriminating evidence that was derived from that primary

evidence, i.e., “fruit of the poisonous tree.” United States v. Terzado-Madruga,

897 F.2d 1099, 1112-13 (11th Cir. 1990).

Law enforcement must issue Miranda warnings when a subject is both “in

custody” and under “interrogation” by police officers. United States v. Castro, 723

F.2d 1527, 1530 (11th Cir. 1984). The term “interrogation” refers to express

questioning or its functional equivalent—“any words or actions on the part of the

police (other than those normally attendant to arrest and custody) that the police

should know are reasonably likely to elicit an incriminating response from the

suspect.” Rhode Island v. Innis, 446 U.S. 291, 309 n.5, 100 S.Ct. 1682, 1694 n.5,

64 L.Ed.2d 297 (1980). The Supreme Court recognized that not “all statements

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obtained by the police after a person has been taken into custody are to be

considered the product of interrogation.” Id. at 299, 100 S.Ct. at 1689. Any

statement given freely and voluntarily is admissible in evidence. Id. at 300, 100

S.Ct. at 1689. Additionally, statements that are voluntary and unresponsive to the

questions posed are not protected by Miranda. See Castro, 723 F.2d at 1532.

Because the vehicle search was a lawful search incident to a valid arrest, the

“fruit of the poisonous tree” doctrine does not apply to Lightbourn’s subsequent

incriminating statements. See Mapp, 367 U.S. at 655, 81 S.Ct. at 1691; Madruga,

897 F.2d at 1112-13. Furthermore, Wever testified that Lightbourn made his

statements spontaneously, rather than in response to any remark made or question

asked by Wever. According to Wever’s testimony, at least 45 minutes had passed

between the time that Wever asked Lightbourn about the firearm and the time that

Lightbourn made this statement. In the interim, Wever had filled out paperwork

and Lightbourn had provided various biographical information to Wever.

Accordingly, because Lightbourn’s incriminating statements were made

spontaneously, rather than during an interrogation, the district court did not err in

denying Lightbourn’s request to suppress the statements.

Sufficiency of the Evidence

We review de novo challenges to the sufficiency of the evidence in criminal

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cases. United States v. Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000). “[A]n

appellate court must view the evidence in the light most favorable to the

government, drawing all reasonable inferences and credibility determinations in

favor of the verdict.” United States v. Simpson, 228 F.3d 1294, 1299 (11th Cir.

2000). “A conviction must be upheld unless the jury could not have found the

defendant guilty under any reasonable construction of the evidence.” United States

v. Byrd, 403 F.3d 1278, 1288 (11th Cir. 2005).

“To obtain a conviction for being a felon in possession of a firearm the

[government] must prove beyond a reasonable doubt that the defendant was (1) in

knowing possession of a firearm, (2) a convicted felon, and (3) that the firearm

affected interstate commerce.” United States v. Glover, 431 F.3d 744, 748 (11th

Cir. 2005) (quotation omitted). “Possession can be shown by circumstantial as

well as direct evidence.” United States v. Crawford, 906 F.2d 1531, 1535 (11th

Cir. 1990). “Possession can be either actual or constructive and can be either joint

or sole.” Id. (citation omitted). “Constructive possession exists when a defendant

has ownership, dominion, or control over an object itself or dominion or control

over the premises or the vehicle in which the object is concealed.” United States v.

Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005).

On appeal, Lightbourn challenges the sufficiency of the government’s

16
evidence only as it pertains to the “knowing possession” of the firearm and

ammunition. Thus, we do not address the other elements of the offense. See

United States v. Curtis, 380 F.3d 1308, 1310 (11th Cir. 2004) (recognizing that

issues not argued on appeal are deemed abandoned and waived).

The evidence presented at trial was sufficient to establish that Lightbourn

had either actual or constructive possession of the firearm and ammunition. Wever

testified that Lightbourn confessed to him that he possessed the firearm for his own

protection and that the firearm accidentally discharged. Thus, Lightbourn’s

statement established that he knowingly possessed both the firearm and the

ammunition. Although Lightbourn questions the credibility of Wever’s testimony,

Lightbourn presented no evidence at trial to directly contradict Wever’s testimony

that Lightbourn confessed, and Wever explained that the delay in amending his

paperwork to reflect Lightbourn’s statements was caused by a postponed meeting

with state prosecutors and the subsequent transfer of the case into the federal

system. Because we must draw all reasonable credibility determinations in favor

of the verdict, we accept Wever’s testimony as true. See Simpson, 228 F.3d

at 1299.

Even in the absence of Lightbourn’s confession, circumstantial evidence

established that Lightbourn constructively possessed the firearm. Wever testified

17
that (1) the firearm was found underneath the front passenger seat, in which

Lightbourn had been sitting; (2) the handle of the firearm was facing the front of

the vehicle; and (3) it would have been impossible for an object in the rear or the

driver’s side of the vehicle to slide underneath the front passenger seat.

Furthermore, Wever observed Lightbourn lean forward in his seat as if he were

trying to conceal something as Wever approached the vehicle. Accordingly, the

evidence was sufficient to establish that Lightbourn knowingly possessed the

firearm and ammunition.

Sentencing Enhancements

Objections to sentencing issues that are not raised before the district court

are reviewed for plain error. See United States v. Bonilla, 579 F.3d 1233, 1238

(11th Cir. 2009). To prevail under a plain-error standard, the defendant must

establish that (1) an error occurred, (2) the error is plain, and (3) the error affected

substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770,

1776, 123 L.Ed.2d 508 (1993). Once these elements are established, this Court

may correct the error only if it “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” Id.

Lightbourn was sentenced pursuant to § 4B1.4(a), which states, “[a]

defendant who is subject to an enhanced sentence under the provisions of 18

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U.S.C. § 924(e) is an armed career criminal.” U.S.S.G. § 4B1.4(a). Section 924(e)

states, in relevant part, that “a person who violates section 922(g) of this title and

has three previous convictions by any court . . . for a violent felony or a serious

drug offense, or both . . . shall be . . . imprisoned not less than fifteen years.” 18

U.S.C. § 924(e)(1).

In Almendarez-Torres, the Supreme Court held that prior convictions

“relevant only to the sentencing of an offender found guilty of the charged crime”

do not need to be charged in an indictment or proved to a jury beyond a reasonable

doubt. Almendarez-Torres, 523 U.S. 224, 239-47, 118 S.Ct. 1219, 1229-33, 140

L.Ed.2d 350 (1998) (holding that the factual issue of whether a defendant has been

convicted of an “aggravated felony” for 8 U.S.C. § 1326(b)(2) enhancement

purposes is not required to be alleged in the indictment). The Supreme Court, in

deciding Apprendi, stated explicitly that its decision did not question the validity of

its holding in Almendarez-Torres. See Apprendi v. New Jersey, 530 U.S. 466,

489-90, 120 S.Ct. 2348, 2362, 147 L.Ed.2d 435 (2000) (holding that it is a Sixth

Amendment violation for a sentencing court to enhance a defendant’s sentence

beyond the statutory maximum based on facts that were not proven to a jury

beyond a reasonable doubt or expressly admitted by the defendant).

We reiterated that the holding in Almendarez-Torres was not affected by

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Apprendi or the subsequent decision in United States v. Booker, 543 U.S. 220, 125

S.Ct. 738, 160 L.Ed.2d 621 (2005) (holding that mandatory enhancements under

the Sentencing Guidelines must be based on facts found by a jury or admitted by

the defendant), and that a district court does not err when it uses prior convictions

to enhance a defendant’s sentence. United States v. Shelton, 400 F.3d 1325, 1329

(11th Cir. 2005). We also have held that prior convictions did not have to be found

by a jury in order to be used to enhance a sentence pursuant to § 924(e). United

States v. Greer, 440 F.3d 1267, 1273-76 (11th Cir. 2006). Thus, because binding

precedent, particularly the holdings in Almendarez-Torres and Greer, specifically

permit the district court to enhance sentences based on prior convictions that were

not proven to a jury beyond a reasonable doubt or expressly admitted by the

defendant, Lightbourn has failed to show that the district court plainly erred in

enhancing his sentence under § 924(e). Accordingly, we affirm Lightbourn’s

conviction and sentence.

AFFIRMED.

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