## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 22 2003 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. CLIFFORD RAY BENNETT, Defendant-Appellant. No. 01-8101

Appeal from the United States District Court

for the District of Wyoming (D.C. No. 01-CR-04-D)
Lisa E. Leschuck (Matthew H. Mead, United States Attorney, with her on the brief), Assistant United States Attorney, Cheyenne, Wyoming, for PlaintiffAppellee. Ronald G. Pretty, Cheyenne, Wyoming, for Defendant- Appellant.

Before EBEL, Circuit Judge, BRORBY , Senior Circuit Judge, and O’BRIEN , Circuit Judge.

BRORBY , Senior Circuit Judge.

Mr. Clifford Ray Bennett entered a plea agreement w ith the government and conditionally pled guilty to possessing a firea rm silencer in violation of-2-

federal law. The United States District Court for the District of Wyoming sentenced him to thirty-seven months in prison. Mr . Bennett asserts two claims of error on appeal. He argues the district court shou ld have suppressed statements he made about the firearm silencer because the poli ce illegally arrested him and violated his right to silence under Miranda v. Arizona , 384 U.S. 436 (1966). He also argues the district court incorrectly determin ed he was a “prohibited person” under the United States Sentencing Guidelines, ther eby increasing his sentence for possessing a firearm silencer. Exercising juri sdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2), we affirm.

Background The police first encountered Mr. Bennett in his bac kyard while conducting a search of his residence pursuant to a search warr ant. They were searching “for controlled substances, drug paraphernalia, weapons, money and other items associated with trafficking of narcotics.” Althoug h the police told Mr. Bennett “to stop, freeze, halt, police,” Mr. Bennett ignore d the orders and entered his garage. The police then ordered Mr. Bennett to exi t the garage. He eventually complied, and the police instructed him to lie on t he ground. At least two police officers pointed their guns at Mr. Bennett during t his time. Once Mr. Bennett was lying on the ground, the police handcuffed him and searched him for weapons.-3-

After failing to find any weapons in his possession , the police uncuffed Mr. Bennett and informed him they had a warrant to sear ch his residence.

Following their search for weapons, the police advi sed Mr. Bennett of his rights under Mirandaand expressed their desire to interview him. Mr. Bennett indicated he understood these rights. He also indi cated he did not want to be interviewed at his residence, but he agreed to be i nterviewed at a local office of the Wyoming Division of Criminal Investigation. Th e police informed Mr. Bennett he was not under arrest, he did not have to answer questions, and he did not have to travel to the office to be interviewed. Nevertheless, Mr. Bennett agreed to accompany the officers.

The police interviewed Mr. Bennett about his drug d ealing activities. Mr. Bennett admitted he used, purchased, and sold metha mphetamine. The police terminated the interview and returned Mr. Bennett t o his residence after he “refused to answer further questions about sources, stating that he was not going to be a ‘rat’ and that he would just take the conse quences and go to the pen.”

Once the police returned Mr. Bennett to his residen ce, an officer who was participating in the search approached him and aske d him about a firearm silencer-4-

the officer discovered in Mr. Bennett’s garage. Mr . Bennett told the officer a friend’s father made the item for Mr. Bennett’s .30 8 Remington rifle. Mr. Bennett refused to identify the name of his friend’ s father. He told the officer: “I don’t want to talk about it anymore unless I get a deal.” The officer ceased questioning Mr. Bennett. A short time later, the p olice arrested Mr. Bennett for delivery of a controlled substance. Mr. Bennett ev entually pled guilty in a separate matter to two misdemeanor charges of posse ssion of a controlled substance.

A grand jury later indicted Mr. Bennett for possess ing a firearm silencer in violation of 26 U.S.C. §§ 5841, 5845, 5861(d), and 5871. Before trial, Mr. Bennett filed a motion to suppress statements he ma de about the firearm silencer. The district court denied the motion. Mr. Bennett then entered a plea agreement with the government and conditionally pled guilty t o the charge in the indictment. He reserved the right to contest the admissibility of his statements about the firearm silencer on appeal. The district court sen tenced him to thirty-seven months in prison. Mr. Bennett now appeals the dist rict court’s denial of his motion to suppress as well as his sentence.-5-

The Fourth Amendment and Miranda Mr. Bennett argues the district court incorrectly d enied his motion to suppress the statements he made about the firearm s ilencer. He claims the statements should be suppressed because the police illegally arrested him when they “ordered him to [lie] on the ground.” He also claims the statements should be suppressed because the police violated his rightto silence under Miranda . We conclude the district court did not err in denying the motion.

The Fourth Amendment of the Constitution protects p eople from “unreasonable searches and seizures.” U.S. Const. amend. IV. Absent certain exceptions not relevant here, “evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding a gainst the victim of the illegal search and seizure.” United States v. Calandra , 414 U.S. 338, 347 (1974); see also United States v. Eylicio-Montoya , 70 F.3d 1158, 1165 (10th Cir. 1995) (detailing exceptions to the remedy of suppression for Fourth Amendment violations). “When reviewing a district court’s gr ant or denial of a motion to suppress [such evidence], we accept the court’s fin dings of fact unless clearly erroneous and consider the evidence in the light mo st favorable to the government.” United States v. Pena , 143 F.3d 1363, 1365 (10th Cir.), cert. denied, 525 U.S. 903 (1998). “We are mindful that at a h earing on a motion to-6-

suppress, the credibility of the witnesses and the weight given to the evidence, as well as the inferences and conclusions drawn theref rom, are matters for the trial judge.” United States v. Fernandez , 18 F.3d 874, 876 (10th Cir. 1994). Nevertheless, we review de novo the ultimate determ ination of reasonableness under the Fourth Amendment because it is a question of law. United States v. Gordon , 168 F.3d 1222, 1225 (10th Cir.), cert. denied, 527 U.S. 1030 (1999).

Mr. Bennett apparently believes the police transfor med his detention into an illegal arrest when they “ordered him to [lie] o n the ground” and “pointed a gun at him.” The district court held these actions did not amount to an arrest and the police acted reasonably in using firearms and h andcuffs to detain Mr. Bennett. Mr. Bennett believes the police violated his Fourth Amendment rights and, consequently, the district court should have suppre ssed his subsequent statements. We agree with the district court.

As an initial matter, we reject Mr. Bennett’s chara cterization of his initial detention as an “arrest.” We also conclude the pol ice officers acted reasonably in securing Mr. Bennett before searching the premises. The officers had a warrant1 Mr. Bennett does not challenge the validity of th e warrant.

-7- to search Mr. Bennett’s premises for drugs and drug -related paraphernalia. 1 “[A] warrant to search for contraband founded on probabl e cause implicitly carries with it the limited authority to detain the occupan ts of the premises while a proper search is conducted.” Michigan v. Summers , 452 U.S. 692, 705 (1981) (footnotes omitted). However, police officers must still act reasonably because such a detention is a seizure under the Fourth Amendment. Id . & n.4.

In this case, the police officers’ conduct was not unreasonable simply because they pointed a gun at Mr. Bennett and handc uffed him. Police may use firearms and handcuffs as part of a permissible det ention when they reasonably believe it is necessary for their safety and protec tion. See United States v. Merkley , 988 F.2d 1062, 1064 (10th Cir. 1993). Here, the government received a tip from a confidential informant that Mr. Bennett was dealing drugs and carrying a firearm. A state court judge determined probable cause existed to search Mr. Bennett’s home for illegal drugs and drug-related p araphernalia. Mr. Bennett initially disobeyed police orders to “stop” and ent ered his garage. The police were unaware of Mr. Bennett’s activity in the garag e. Once Mr. Bennett emerged from the garage, the police acted reasonably in min imizing the risk of harm to-8-

themselves and others by securing Mr. Bennett to de termine if he had any weapons. Their use of firearms and handcuffs did n ot transform Mr. Bennett’s detention into an arrest.

We also conclude Mr. Bennett’s detention did not be come an arrest while the police questioned him about his drug-related ac tivities and the firearm silencer. The police did not restrain Mr. Bennett once they determined he did not possess any weapons. They told him he was not unde r arrest and he did not have to answer questions. Mr. Bennett agreed to talk wi th the police. Although the police told him he did not need to accompany them t o a nearby Wyoming Division of Criminal Investigation office for questioning, h e agreed to accompany them. Mr. Bennett rode to the office in the front seat of a police car. When Mr. Bennett indicated he did not want to answer further questio ns at the office, the police returned him to his home. The police did not quest ion him about the firearm silencer until after they dropped him off at his re sidence. Mr. Bennett willingly talked to the police about the firearm silencer bec ause he did not think his conduct was illegal. After reviewing this evidence , we believe the police acted reasonably and Mr. Bennett’s detention did not beco me an arrest.

Mr. Bennett next argues the district court should h ave suppressed his-9-

statements about the silencer because the police improperly questioned him about the firearm silencer after he invoked his right to silence under Miranda

. Assuming Mirandaapplied, the district court held the police did no t violate Mirandabecause they gave Mr. Bennett proper warnings afte r they searched him for weapons.The court held the police did not need to re-administer Miranda warnings prior to questioning Mr. Bennett about the firearm silencer. We conclude Mirandadoes not apply to the facts of this case. We ther efore do not decide whether Mr. Bennett invoked his right to sil ence under Mirandaor whether the police should have re-administered Mirandawarnings.

“[T]wo requirements must be met before Mirandais applicable; the suspect must be ‘in custody,’ and the questioning must meetthe legal definition of ‘interrogation.’” United States v. Perdue , 8 F.3d 1455, 1463 (10th Cir. 1993). We dispose of Mr. Bennett’s Mirandaclaim on the first requirement alone. An individual is not “in custody” for purposes of Mirandaunless his “freedom of action is curtailed to a degree associated with for mal arrest.” Berkemer v. McCarty , 468 U.S. 420, 440 (1984) (quotation marks and cit ation omitted).

We reaffirm our prior analysis concluding the polic e did not arrest Mr. Bennett prior to his statements about the silencer. For substantially the same2The police also may have used physical force and handcuffs. Id. at 1464.

3 Although not controlling, we find persuasive the reasoning of United States v. Peck, No. 97-8122, 1999 WL 33022 (10th Cir. Jan. 27, 19 99) (unpublished), cert. denied, 526 U.S. 1152 (1999). See 10th Cir. R. 36.3(B). The court in Peck

concluded Mirandadid not apply where the police initially used firearms and handcuffs to restrain an individual bu t told him he was not under arrest and freed him of any restraint during questi oning. See Peck, 1999 WL 33022, at *4. -10- reasons, we conclude Mr. Bennett was not “in custody” for purposes of Miranda

. His freedom of action was not “curtailed to a degre e associated with formal arrest” during questioning.

The present case is easily distinguishable from oth er instances where we concluded an individual was “in custody” for purpos es of Miranda . For example, in United States v. Perdue , 8 F.3d at 1464-65, we held the defendant was “in custody” when the police used, among other things, firearms to restrain him duringquestioning. 2 The police in Perdue did not tell the individual he was free to leave. In fact, the police officers questioned the defendant at gun point while he was lying face down on the ground. Id . at 1464. The officers also held the defendant’s pregnant fiancee at gunpoint. Id. Police helicopters hovered overhead. Id . These coercive factors were not present during t he questioning of Mr. Bennett. Instead, police did not restrain Mr. Bennett while questioning him and even told him he was not under arrest. 3 We therefore conclude Mr. Bennett-11-

was not “in custody” for purposes of Miranda , and, as a result, the police did not violate Mirandain asking Mr. Bennett about the firearm silencer.

“Prohibited Person” under the Sentencing Guidelines Prior to Mr. Bennett’s sentencing, a probation offi cer prepared a presentence investigation report. In the report, the probation officer recommended setting Mr. Bennett’s base offense level at twenty pursuant to the United States Sentencing Guidelines. See United States Sentencing Guidelines Manual § 2K2.1(a)(4)(B) (2001). The probation officer rec ommended this base offense level upon concluding Mr. Bennett was an “unlawful user of, or [was] addicted to, a[] controlled substance,” making him a “prohibited person” under the sentencing guidelines. See id ., § 2K2.1(a)(4)(B), cmt. n.6; 18 U.S.C. § 922(g)(3 ). Mr. Bennett objected to the probation officer’s recomme ndation and claimed he was not a “prohibited person.” After reviewing the evi dence, the district court held Mr. Bennett was a “prohibited person” and overruled his objection. Mr. Bennett argues on appeal the district court erred in this d etermination.

“In reviewing the district court’s application of t he sentencing guidelines to the facts, we review legal questions de novo and fa ctual determinations for clear-12-

error.” United States v. Solomon , 95 F.3d 33, 35 (10th Cir. 1996). We view the “[e]vidence underlying a district court’s sentence ..., and inferences drawn therefrom, in the light most favorable to the distr ict court’s determination.” United States v. Conley , 131 F.3d 1387, 1389 (10th Cir. 1997), cert. denied, 523 U.S. 1087 (1998).

The sentencing guidelines set a base offense level of twenty if “the offense involved a firearm described in 26 U.S.C. § 5845(a) ” and “the defendant was ... a prohibited person at the time [he] ... committed th e instant offense.” U.S.S.G. § 2K2.1(a)(4)(B). Mr. Bennett does not dispute his offense involved a firearm listed in 26 U.S.C. § 5845(a). Instead, he argues he was not a “prohibited person” when he committed the offense because he was not an “addict.”

The sentencing guidelines define a “prohibited pers on” in relevant part as a person “who is an unlawful user of or addicted to a ny controlled substance” under 18 U.S.C. § 922(g)(3). See U.S.S.G. § 2K2.1, cmt. n. 6. The statute does not define the phrases “unlawful user of ... any contro lled substance” or “addicted to any controlled substance.” It does, however, defin e “addict” as an “individual who habitually uses any narcotic drug so as to enda nger the public morals, health, safety, or welfare, or who is so far addicted to th e use of narcotic drugs as to have-13-

lost the power of self-control with reference to hi s addiction.” 21 U.S.C. § 802(1).

Mr. Bennett believes the district court erred in no t defining the language “unlawful user of ... any controlled substance” the same as “addicted to any controlled substance.” He argues he is not an “add ict,” as defined under 21 U.S.C. § 802(1), because he used methamphetamine an d marijuana rather than narcotic drugs. Mr. Bennett’s argument presupposes the definition of the word “addict” under 21 U.S.C. § 802(1) is synonymous with the phrase “addicted to any controlled substance” under 18 U.S.C. § 922(g)(3). We need not consider whether this presumption is correct because we conc lude, whatever the precise meaning of the phrase “addicted to any controlled s ubstance,” its meaning is distinct from the meaning of the phrase “unlawful u ser of ... any controlled substance.” The words “unlawful user of or addicte d to any controlled substance” are written in the disjunctive, implying each has aseparate meaning. See Reiter v. Sonotone Corp. , 442 U.S. 330, 339 (1979) (“Cannons of constructio n ordinarily suggest that terms connected by a disjunctive be gi ven separate meanings, unless the context dictates otherwise; here it does not.”) . Even Mr. Bennett agrees the statute “breaks down a prohibited person into two g roups: a. User, or b. Addicted.” We therefore conclude the district court did not err in defining the-14-

phrase “unlawful user of ... any controlled substan ce” differently from the phrase “addicted to any controlled substance.”

In a related argument, Mr. Bennett argues he is nota “prohibited person” because he passed all drug tests while on bond. He claims this evidence demonstrates he was not an “addict” because “he def initely didn’t lose the power of self-control.” We have already concluded the ph rase “addicted to any controlled substance” is distinct in meaning from t he phrase “unlawful user of ... any controlled substance.” The government only arg ues that Mr. Bennett was an unlawful user of a controlled substance. In any ev ent, although Mr. Bennett did not fail any drug tests while on bond, we conclude the district court properly held him to be a “prohibited person.”

The guidelines do not require a person to be an unl awful user of a controlled substance while on bond in order to qual ify as a prohibited person. An individual’s status as a prohibited person is measu red “at the time the defendant committed the instant offense.” U.S.S.G. § 2K2.1(a )(4)(B). While a court may use evidence of a defendant’s unlawful use of drugs while on bond to infer he was a user at the time he possessed a firearm, see Solomon , 95 F.3d at 35, such evidence is not necessary. The government need onl y show the defendant was an4Although a defendant’s drug use must be contempor aneous with firearm

possession, there is no need for a defendant’s drug use to be “simultaneous[]” with firearm possession. See Solomon , 95 F.3d at 35. The government does not need to show the defendant was under the influence of an illegal drug at the exact same time he possessed a firearm. Id

.

5 The record indicates Mr. Bennett used methampheta mine and marijuana regularly, both of which are defined as controlled substances under federal law. See 21 U.S.C. §§ 802(6), 812 (c), schedules I(c)(10), III(a)(3). Except for limited circumstances not present here, the mere possessionof these substances is illegal. See 21 U.S.C. § 844(a).

-15- unlawful user of drugs or addicted to drugs at the time he committed the offense. See U.S.S.G. § 2K2.1(a)(4)(B); 18 U.S.C. § 922(g)(3). In other words, the government must show a defendant’s drug use was contemporaneous with his firearm possession. 4 After reviewing the evidence, discussed in detail below, we are convinced the government met its burden in this case.

As mentioned previously, the government believes Mr . Bennett’s extensive drug history qualifies him as an “unlawful user” of a controlled substance. Mr. Bennett does not dispute he used controlled substan ces. 5 Instead, he argues the sentencing guidelines are unconstitutionally vague because the phrase “unlawful user” in 18 U.S.C. § 922(g)(3), adopted by the guid elines in U.S.S.G. § 2K2.1, cmt. n.6, “is capable of being understood by reason ably well-informed persons in6We note there is a conflict among the circuits as to whether the

sentencing guidelines may be challenged on vaguenes s grounds. Compare United States v. Brierton , 165 F.3d 1133, 1139 (7th Cir. 1999); United States v. Salas , No. 93-5897, 1994 WL 24982, at *2 (6th Cir. 1994) ( unpublished disposition); and United States v. Wivell , 893 F.2d 156, 160 (8th Cir. 1990), with United States v. Johnson , 130 F.3d 1352, 1354 (9th Cir. 1997). Our circuithas not yet decided the question, see United States v. Negri , No. 98-6178, 1999 WL 157423, at *5 (10th Cir. 1999) (unpublished disposition), and we decline to do so here because neither party has raised the issue. For the purpos es of this case, we therefore assume without deciding that a vagueness challenge to the guidelines is appropriate.

-16- two or more different ways.” 6

A criminal provision “must explicitly convey what i t outlaws.” Solomon , 95 F.3d at 34. A provision that “either forbids orrequires the doing of an act in terms so vague that men of common intelligence mustnecessarily guess at its meaning and differ as to its application violates t he first essential of due process of law.’” Id . at 34-35 (quoting Connally v. Gen. Constr. Co. , 269 U.S. 385, 391 (1926)). Where, as here, a vagueness challenge doe s not involve First Amendment freedoms, we examine whether the provisio n is impermissibly vague “in the light of the facts of the case at hand.” United States v. Mazurie , 419 U.S. 544, 550 (1975). We conclude the sentencing guidel ines are not unconstitutionally vague as applied to Mr. Bennett’ s conduct.-17-

A confidential informant told police Mr. Bennett wa s distributing methamphetamine. Upon searching Mr. Bennett’s resi dence, the police found “a digital scale with white powder residue, [a] small baggie of suspected marijuana, numerous marijuana pipes and bongs, possible drug l edgers, assorted small containers containing white powder residue, small p lastic bindles, and suspected marijuana seeds.” The police also found a small am ount of marijuana on Mr. Bennett’s person. Mr. Bennett admitted during an i nterview with police he used, purchased, and sold methamphetamine. Mr. Bennett a lso admitted to a probation officer he used marijuana and methamphetamine on a daily basis up until his arrest. As a result of the police investigation, M r. Bennett pled guilty to two misdemeanor charges of possession of a controlled s ubstance, i.e. , marijuana and methamphetamine.

Based on this evidence, we conclude the district co urt correctly found Mr. Bennett was a “prohibited person” under the guideli nes. His regular and ongoing use of marijuana and methamphetamine during the sam e time period as his firearm possession qualifies him as a “unlawful use r of ... a[] controlled substance” and therefore a “prohibited person.” Th e guidelines are not vague7Mr. Bennett also argues for the first time in his reply brief that the phrase

“unlawful user” in § 922(g)(3), adopted by the guid elines in U.S.S.G. § 2K2.1, cmt. n.6, violates the Commerce Clause and the Tent h Amendment under United States v. Lopez , 514 U.S. 549 (1995). He claims this was the thru st of his argument in his opening brief and faults the govern ment for failing to address his argument. After carefully reviewing Mr. Bennett’s opening brief, we do not find any mention of the Commerce Clause, the Tenth Amend ment, or Lopez . We need not address arguments raised for the first time in a reply brief, see Stump v. Gates , 211 F.3d 527, 533 (10th Cir. 2000), and we decline to do so now.

-18- under the facts of this case. 7

Mr. Bennett also suggests the district court erred in setting his base offense level at twenty (instead of eighteen) because the g overnment did not assert he was a “prohibited person” in the indictment. Mr. Benne tt claims this two-level increase in the base offense level, which increased the mandatory minimum sentence for his offense, “hit [him] from left fiel d.” We generously assume Mr. Bennett is arguing his Fifth and Sixth Amendment ri ghts were violated under Apprendi v. New Jersey , 530 U.S. 466 (2000). We nevertheless reject his argument.

The Supreme Court in Apprendiheld “[o]ther than the fact of a prior conviction, any fact that increases the penalty fora crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable-19-

doubt.” Id. at 490. Apprendiis not implicated, however, where judges find fact s increasing the mandatory minimum sentence below the maximum sentence for the crime committed. See Harris v. United States , 536 U.S. 545, 565, 569-70 (2002); United States v. Sullivan , 255 F.3d 1256, 1265 (10th Cir. 2001), cert. denied, 534 U.S. 1166 (2002). “[F]acts guiding judicial discre tion below the statutory maximum need not be alleged in the indictment, subm itted to the jury, or proved beyond a reasonable doubt.” Harris , 536 U.S. at 565, 569-70. See also McMillan v. Pennsylvania, 477 U.S. 79, 91-93 (1986); United States v. Frederick, 897 F.2d 490, 493 (10th Cir. 1990).

In this case, Mr. Bennett pled guilty to possessing a “firearm silencer in violation of 26 U.S.C. §§ 5841, 5845, 5861(d), and 5871.” Based on its finding that Mr. Bennett was a “prohibited person,” the dis trict court sentenced him to the mandatory minimum of thirty-seven months in prison. This sentence is well below the ten-year statutory maximum for the offens e. See 26 U.S.C. § 5871. Consequently, we conclude Mr. Bennett’s Fifth and S ixth Amendment rights were not violated under Apprendi

. See Sullivan , 255 F.3d at 1265. As discussed above, the government does not need to allege facts in the indictment used only to increase the mandatory minimum sentence for an offe nse.-20-

Conclusion In sum, we conclude the district court correctly de nied Mr. Bennett’s motion to suppress because the police did not violate the Fourth Amendment or Mirandain detaining and questioning Mr. Bennett. We also conclude the district court correctly determined Mr. Bennett was a “prohi bited person” under the sentencing guidelines. We therefore AFFIRM the district court.