FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 18, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-14831

Non-Argument Calendar

________________________

D. C. Docket Nos. 04-00186-CR-T-23-MAP, 07-00361-CR-T-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRENDEN GLINTON,

a.k.a. Bobby,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(September 18, 2009)

Before BLACK, HULL and PRYOR, Circuit Judges.

PER CURIAM:

Brenden Glinton files this appeal following his convictions in two separate
criminal cases. In the first case, (Glinton I) Glinton was convicted of (1) conspiracy

to possess with intent to distribute 5 kilograms or more of cocaine, in violation of

21 U.S.C. §§ 846 and 841(b)(1)(A)(ii) and (2) distribution of 500 grams or more of

cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii). In the second case,

(Glinton II) Glinton was convicted of (1) conspiracy to possess with intent to

distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 846 and

841(b)(1)(A)(ii) and (2) distribution of 500 grams or more of cocaine, in violation

of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii). While these cases were not consolidated

for pre-trial matters or trial, the cases were consolidated for purposes of sentencing.

At a consolidated sentencing hearing, the district court sentenced Glinton to 169

months’ imprisonment in each case, specifying the terms were to run concurrently.

Glinton appeals his sentence and also appeals his conviction in Glinton 2.

Glinton argues (1) in Glinton 2, the district court erred in denying his motion to

suppress and (2) regarding his sentence, the district court erred at sentencing by

imposing a sentence based on more than 5 kilograms of cocaine.

I.

Glinton argues the district court erred in denying his motion to suppress.

He asserts the officers lacked reasonable suspicion that he: (1) was engaged in drug

trafficking; (2) had violated a traffic law; or (3) was subject to arrest due to a

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pending indictment against him.

We review a district court’s denial of a motion to suppress evidence under a

mixed standard of review. United States v. Jiminez, 224 F.3d 1243, 1247 (11th Cir.

2000). We review “the district court’s findings of fact under the clearly erroneous

standard and the district court’s application of law to those facts de novo.” Id. We

also give due weight to the inferences that the district court and local law

enforcement officers draw from the facts. Id. at 1248. When considering a ruling

on a motion to suppress, we must construe all facts in the light most favorable to the

party prevailing in the district court. See United States v. Behety, 32 F.3d 503, 510

(11th Cir. 1994).

In the absence of probable cause, the police may stop a car and briefly detain

it and its occupants in order to investigate a reasonable suspicion that such persons

are involved in criminal activity. Terry v. Ohio, 88 S. Ct. 1868, 1879-80 (1968);

United States v. Tapia, 912 F.2d 1367, 1370 (11th Cir. 1990). In justifying such an

intrusion, the “reasonableness” standard requires that a police officer “be able to

point to specific and articulable facts which, taken together with rational inferences

from those facts, reasonably warrant that intrusion.” Terry, 88 S. Ct. at 1880.

“Reasonable suspicion” is determined from the totality of the circumstances, United

States v. Sokolow, 109 S. Ct. 1581, 1585 (1989), and from the collective knowledge

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of the officers involved in the stop, United States v. Williams, 876 F.2d 1521, 1524

(11th Cir. 1989). “Such a level of suspicion is considerably less than proof of

wrongdoing by a preponderance of the evidence, or even the implicit requirement of

probable cause that a fair probability that evidence of a crime will be found.”

Tapia, 912 F.2d at 1370 (citations omitted). Nevertheless, the police are required to

articulate some minimal, objective justification for the stop. Id.

Here, the officers’ collective knowledge created a reasonable suspicion that

Glinton was engaged in drug trafficking, regardless of whether Glinton committed a

traffic offense or the pending indictment against him authorized officers to arrest

him. The officers’ surveillance corroborated a tip from a reliable informant, thus

they had reasonable suspicion to stop Glinton’s car. See United States v. Lindsey,

482 F.3d 1285, 1291 (11th Cir. 2007). Moreover, the officers observed Glinton act

consistently with information provided by a confidential informant. United States

v. Chaves, 169 F.3d 687, 691 (11th Cir. 1999). Accordingly, the district court did

not err in finding the officers had reasonable suspicion to stop Glinton to confirm

whether he was involved in drug trafficking activity and in denying Glinton’s

motion to suppress. Terry, 88 S. Ct. at 1880; Tapia, 912 F.2d at 1370.

II.

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Glinton argues the district court violated his constitutional rights by finding

him responsible for 115 kilograms of cocaine in calculating his guidelines sentence.

We review a preserved Apprendi claim on appeal de novo, but reverse only

for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). In

Apprendi, the Supreme Court restated the prior conviction rule, holding that

“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” 120 S. Ct. at 2362-63. The “‘statutory

maximum’ for Apprendi purposes is the maximum sentence a judge may impose

solely on the basis of the facts reflected in the jury verdict or admitted by the

defendant.” Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004) (emphasis

added). In a § 841 case in which a defendant’s ultimate sentence falls at or below

the statutory maximum penalty provided in § 841(b)(1)(C), there is no

constitutional error stemming from Apprendi, and drug quantity need not have been

submitted to a jury and proven beyond a reasonable doubt. See United States v.

Underwood, 446 F.3d 1340, 1344-45 (11th Cir.), cert. denied, 594 U.S. 903 (2006).

A sentence enhancement based on a drug quantity described in a PSI does not

violate the constitution when the defendant concedes to the factual accuracy of the

presentence investigation report (PSI). United States v. Shelton, 400 F.3d 1325,

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1330 (11th Cir. 2005). Failure to object to factual findings in the PSI is deemed to

be an admission of those facts. See United States v. Williams, 438 F.3d 1272, 1274

(11th Cir. 2006). In addition, we have applied United States v. Booker, 125 S. Ct.

738 (2005), to hold that judicial fact-finding that increases a defendant’s guideline

range does not violate Apprendi under an advisory guidelines system. United States

v. Dudley, 463 F.3d 1221, 1227-28 (11th Cir. 2006).

Under 21 U.S.C. § 846, a defendant who conspires to commit an offense

under § 841 is subject to the same penalties as those prescribed for the offense that

was the object of the conspiracy. 21 U.S.C. § 846. Under § 841(b)(1)(A)(ii), a

defendant convicted of distributing five kilograms or more of cocaine is subject to a

statutory maximum sentence of life imprisonment. 21 U.S.C. § 841(b)(1)(A)(ii).

Under § 841, a defendant who distributes 500 grams or more of cocaine is subject

to a statutory maximum sentence of 40 years’ imprisonment. 21 U.S.C.

§ 841(b)(1)(B)(ii).

Here, the jury specifically found that Glinton had conspired to possess with

intent to distribute 5 kilograms or more of cocaine under 21 U.S.C. §§ 846 and

841(b)(1)(A)(ii), and that Glinton had distributed over 500 grams of cocaine under

21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii). Accordingly, Glinton’s statutory maximum

sentence was life imprisonment in Glinton I, and 40 years’ imprisonment in Glinton

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II. Because Glinton’s 169-month sentence did not exceed his statutory maximum,

his claim that his sentence violated Apprendi lacks merit. See Underwood, 446 F.3d

at 1344. Furthermore, Glinton’s claim that the district court violated Apprendi by

engaging in judicial fact-finding that increased his guideline range also lacks merit.

See Dudley, 463 F.3d at 1227-28.

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Based on our review of the record and the parties’ briefs, we affirm Glinton’s

sentence and convictions.

AFFIRMED.

 At sentencing, Glinton did not dispute the amount of drugs for which he was held 1

responsible in the PSI. Instead, he articulated a legal objection to the court’s sentencing him

based on an amount of drugs that was not charged in the indictment and found by the jury. 

Accordingly, Glinton admitted to the facts in the PSI and the district court did not violate his

constitutional rights by using the admitted drug quantity to determine his sentence. Williams,

438 F.3d at 1274; Blakely, 124 S. Ct. at 2537.

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