FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 17, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-15792

Non-Argument Calendar

________________________

D. C. Docket No. 05-80091-CR-DMM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

BERVICK MCCLENDON, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(May 17, 2006)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Bervick McClendon appeals his conviction following a jury trial for
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possession with intent to distribute at least 50 grams of cocaine base, in violation

of 21 U.S.C. § 841(a), and his sentence enhancement based on two prior

convictions for crimes of violence, pursuant to 21 U.S.C. § 851 and U.S.

Sentencing Guidelines Manual (“U.S.S.G.”) § 4B1.1(a), resulting in a life

sentence. On appeal, McClendon argues that the district court erred in finding that

exigent circumstances justified the warrantless entry into his motel room when

there was no suspicious activity observed by the police or any indication that he

was aware of police activity. McClendon also argues that according to Apprendi v.

New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely

v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the

district court violated his Fifth and Sixth Amendment rights by relying on the fact

of two prior convictions to enhance his sentence when neither conviction was

alleged in the indictment or proven to a jury beyond a reasonable doubt.

At the suppression hearing, the Government adduced the following. Elitsa

Fernandez, a housekeeper at the motel in which McClendon was staying, entered

McClendon’s room and detected a “great deal of heat,” and saw that the smoke

detector was covered with a towel. She noticed that stove burners were turned on,

and she turned them off. On top of the counter she saw a big glass jar with some

liquid inside, and on the table she saw what she described as little white pieces or
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stones that looked something like cereal. As she left, McClendon accosted and

repeatedly asked her about what she had seen in the room. He grabbed her arm and

threatened her. In response, she quickly left. McClendon followed her to the

motel office.

McClendon told the front desk worker that he was going to stay another day

and that he did not want his room cleaned. He then looked threateningly at

Fernandez. With the help of another, Fernandez, who did not speak English, told

her manager what had occurred. The manager then called the police and told them

that she suspected drug activity. When the police arrived, they spoke with both the

manager and Fernandez and surmised that McClendon was cooking crack cocaine. 

One of the officers recognized McClendon’s name as someone with a long history

of drug dealing. The officers then knocked on McClendon’s door and eventually

kicked it in after McClendon had partially opened and attempted to reclose the

door. They noticed a pungent odor, possibly cocaine, and found marijuana,

cocaine, and crack cocaine.

“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. Lyons, 403 F.3d 1248,

1250 (11th Cir.), cert. denied, __ U.S. __, 126 S. Ct. 732, 163 L. Ed. 2d 576
4

(2005). Moreover, “all facts are construed in the light most favorable to the

prevailing party below.” United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir.

2000). 

The Fourth Amendment provides that: “[t]he right of the people to be secure

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

seizures, shall not be violated . . . .” U.S. Const. amend. IV. Warrantless searches

and seizures inside a person’s home are presumptively unreasonable. United States

v. Burgos, 720 F.2d 1520, 1525 (11th Cir. 1983). However, a warrantless search or

seizure may be justified where both probable cause and exigent circumstances

exist. Id. Exigent circumstances exist where the delay in obtaining a warrant must

yield to the urgent need for immediate action. Id. at 1526. 

Narcotics cases present a compelling need for the exigent circumstances

doctrine because “contraband and records can be easily and quickly destroyed

while a search is progressing.” United States v. Young, 909 F.2d 442, 446 (11th

Cir. 1990). “In determining whether agents reasonably feared imminent

destruction of the evidence, the appropriate inquiry is whether the facts, as they

appeared at the moment of entry, would lead a reasonable, experienced agent to

believe that evidence might be destroyed before a warrant could be secured.” Id.

(quoting United States v. Rivera, 825 F.2d 152, 156 (7th Cir. 1987)). 
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Circumstances are not normally considered exigent, however, where the

suspects are unaware of police surveillance or where the police officers create the

exigent circumstances. United States v. Tobin, 923 F.2d 1506, 1511 (11th Cir.

1991) (en banc). 

Here, the record shows that McClendon feared that Fernandez would report

his drug activity to an authority. Although McClendon was not aware of the police

activity, he knew that Fernandez was frightened, had gone straight to the motel

front office after their encounter, and would probably notify an authority of what

she had seen. McClendon argues that his renewal of the room for another day

shows that he would not destroy or remove evidence of a crime. However, his

renewal of the room does not overcome the weight of the other evidence. The

officers had knowledge of McClendon’s past drug activity, and, reflecting on the

foregoing facts, reasonably believed that McClendon would destroy the drug

evidence in an attempt to avoid detection. See Tobin, 923 F.2d at 1511. 

Furthermore, the exigent circumstances were not created by the officers’

knock on McClendon’s motel room door; the exigent circumstances were created

by McClendon’s actions toward Fernandez. McClendon knew that Fernandez had

entered his motel room where drug activity was in plain view. His threat to

Fernandez led to her belief that something illegal was afoot in the room. 
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McClendon was well aware that Fernandez saw the evidence of illegal activity in

his room, was frightened of his response, and would probably report his activity

after she fled his presence. Thus, the record shows that exigent circumstances

justified the warrantless entry and that those circumstances were not created by the

officers. Accordingly, we affirm the district court in denying McClendon’s motion

to suppress.

McClendon timely objected that his sentence was unconstitutionally

enhanced based on prior convictions that were not alleged in the indictment and

not proven to a jury beyond a reasonable doubt, which violated his Fifth and Sixth

Amendment rights under Blakely and Apprendi. The fact and nature of

McClendon’s two prior convictions were made known in the PSI. In addition, at

sentencing, the Government introduced expert testimony and evidence that the two

convictions were, in fact, attributed to McClendon. 

We have reiterated on numerous occasions that Almendarez-Torres v. United

States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), continues to

control cases concerning enhancements based on prior convictions. See, e.g.,

United States v. Gibson, 434 F.3d 1234, 1246 (11th Cir. 2006) (“[T]he government

need not allege in its indictment and need not prove beyond a reasonable doubt that

a defendant had prior convictions for a district court to use those convictions for
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purposes of enhancing a sentence.”); United States v. Cantellano, 430 F.3d 1142,

1147 (11th Cir. 2005) (per curiam) (“The fact of a prior conviction clearly may be

found by the district court.”), cert. denied, __ U.S. __, 126 S. Ct. 1604, __ L. Ed.

2d __ (2006); United States v. Orduno-Mireles, 405 F.3d 960, 962 (11th Cir.), cert.

denied, __ U.S. __, 126 S. Ct. 223, __ L. Ed. 2d __ (2005) (explaining that the

Sixth Amendment is not implicated when a defendant’s sentence is enhanced based

on a prior conviction). McClendon’s claim is without merit.

Accordingly, we affirm both McClendon’s conviction and sentence.

AFFIRMED