United States Court of Appeals

For the Eighth Circuit

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No. 16-1248

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Mark Fuehrer

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa - Dubuque

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 Submitted: September 23, 2016

 Filed: December 28, 2016

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Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.

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MELLOY, Circuit Judge.

Mark Fuehrer pled guilty to one count of possession with intent to distribute

a controlled substance, methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B). The district court sentenced Fuehrer to 188 months’ imprisonment. 1

The Honorable Linda R. Reade, Chief Judge, United States District Court for

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the Northern District of Iowa. 
On appeal, Fuehrer challenges the search of his vehicle and asserts that the district

court erred in sentencing him as a career offender. We affirm. 

I.

In December 2014, Josh Mulnix, a Special Agent with the Iowa Division of

Narcotics Enforcement, received information from a confidential informant that

Fuehrer was distributing methamphetamine. The informant had seen Fuehrer with

methamphetamine at his residence and told Agent Mulnix that Fuehrer’s

methamphetamine source was “Marty.” After obtaining this information, Agent

Mulnix obtained judicial authorization to affix a global positioning system (“GPS”)

tracking device to Fuehrer’s vehicle. 

While the GPS device was affixed to Fuehrer’s vehicle, Fuehrer drove to the

home of Martin Lawrence in Monticello, Iowa. Investigators learned that Lawrence

was being investigated by the Drug Enforcement Administration in Cedar Rapids,

which had conducted multiple controlled purchases of ice methamphetamine from

Lawrence. 

In January 2015, officers observed Fuehrer driving a second vehicle. Agent

Mulnix obtained authorization to attach a GPS device to that vehicle and began

tracking that vehicle as well. Investigators believed that Fuehrer would be

transporting methamphetamine fromLawrence’s home on January 11, 2015. Officers

intended to attempt to conduct a traffic stop on Fuehrer’s vehicle after he left

Lawrence’s home. Officers also believed that, even if Fuehrer committed no traffic

violation, officers would make an investigatory stop based on the evidence gathered

during the investigation. 

Agent Mulnix coordinated with the Dubuque Drug Task Force to ensure that

officers would be able to observe Fuehrer’s vehicle after leaving Lawrence’s home. 

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Deputy Adam Williams was positioned to observe Fuehrer’s vehicle and began

running a stationary radar, which he had been trained to use and did, in fact, use

nearly every day. DeputyWilliams stopped Fuehrer’s vehicle after observing Fuehrer

driving 66 miles per hour in an area where the speed limit was 65 miles per hour.

During the traffic stop, Fuehrer was unable to provide a license. Deputy

Williams asked Fuehrer to sit in the patrol car while he completed paperwork for the

traffic violation. During this time, a second deputy, Deputy Kearney, arrived with a

trained narcotics canine. Deputy Kearney conducted an open-air sniff of Fuehrer’s

vehicle and the canine alerted to the presence of narcotics. After the dog-sniffsearch

was complete, Deputy Williams finished the tasks related to the traffic stop and wrote

Fuehrer a warning for the traffic violation. Deputies Williams and Kearney then

informed Fuehrer that the canine had alerted to the presence of narcotics, and Deputy

Williams gave Fuehrer his Miranda warnings. Officers searched the vehicle and

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found 26.09 grams of methamphetamine. 

Fuehrer was charged with possession with intent to distribute a controlled

substance. Before trial, Fuehrer filed a motion to suppress, arguing that the stop of

his vehicle was a pretext stop in violation of his Fourth Amendment rights against

unreasonable search and seizure. At the suppression hearing, Deputy Williams

testified as to the accuracy of the radar he used the night of the traffic stop. Deputy

Williams testified that the radar was affixed to the patrol car he drove every day for

approximately six years. Deputy Williams stated that he checked the accuracy of the

radar by balancing the speed displayed by the radar with the speed displayed on the

speedometer of his vehicle. If he detected a discrepancy, Deputy Williams would use

another method to check the radar’s accuracy. DeputyWilliams also testified that the

radar had never had any discrepanciessince he began using it and that “[i]t works the

Miranda v. Arizona, 384 U.S. 436 (1966). 2

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way it is supposed to and displays accurate information.” The magistrate judge3

recommended denying the motion, finding that the traffic stop was supported by

probable cause that Fuehrer was driving in excess of the speed limit. The magistrate

judge also found that there was no evidence that the dog sniff prolonged the traffic

stop. The district court subsequently adopted themagistrate judge’s recommendation.

Following the denial of his motion to suppress, Fuehrer entered a guilty plea. 

The probation office prepared a presentence investigation report (“PSR”), which

designated Fuehrer as a career offender. As a career offender, Fuehrer’s base offense

level increased from level 26 to level 34. The PSR determined that Fuehrer was a

career offender based on two prior convictions for controlled substance offenses. On

December 3, 1998, Fuehrer was arrested for possessing cocaine with intent to

distribute. Fuehrer pled guilty in state court and was sentenced on September 10,

1999. On May 25, 2000, Fuehrer was arrested for the distribution of cocaine base in

controlled purchases from October 21, 1998; October 26, 1998; and December 21,

1998. Fuehrer was indicted in the Northern District of Iowa and pled guilty to Count

1, which involved distribution of cocaine base on October 21, 1998. Fuehrer was

sentenced on August 20, 2001.

Fuehrer objected to his designation as a career offender. He argued that the

prior controlled-substance convictions were related and should not be counted

separately. The district court applied the career offender enhancement and sentenced

Fuehrer to 188 months’ imprisonment. 

The Honorable Jon S. Scoles, United States Chief Magistrate Judge for the

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Northern District of Iowa. 

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II.

A. Fuehrer’s Fourth Amendment Rights

“This Court reviews the facts supporting a district court’s denial of a motion

to suppress for clear error and reviews its legal conclusions de novo.” United States

v. Cotton, 782 F.3d 392, 395 (8th Cir. 2015). “This court will affirm the district

court’s denial of a motion to suppress evidence unlessit is unsupported by substantial

evidence, based on an erroneous interpretation of applicable law, or, based on the

entire record, it is clear a mistake was made.” United States v. Hogan, 539 F.3d 916,

921 (8th Cir. 2008) (quoting United States v. Annis, 446 F.3d 852, 855 (8th Cir.

2006)). 

1. The Traffic Stop

Fuehrer contends that the traffic stop in this case was merely pretextual. 

“Pretextual traffic stops are a violation of the Fourth Amendment.” United States v.

Eldridge, 984 F.2d 943, 947 (8th Cir. 1993). However, if police observe a traffic

violation, no matter how minor, there is probable cause to stop the vehicle. United

States v. Mendoza, 677 F.3d 822, 827 (8th Cir. 2012); Eldridge, 984 F.2d at 948. 

“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment

analysis.” Whren v. United States, 517 U.S. 806, 813 (1996). “Once an officer has

probable cause, the stop is objectively reasonable and any ulterior motivation on the

officer’s part is irrelevant.” United States v. Frasher, 632 F.3d 450, 453 (8th Cir.

2011) (quotation omitted). “Similarly, it is irrelevant that the officer would have

ignored the violation but for his ulterior motive.” Id. 

Because Deputy Williams had an objectively reasonable basis to believe

Fuehrer was speeding, Deputy Williams had probable cause for the traffic stop. See

United States v. Coney, 456 F.3d 850, 857 (8th Cir. 2006) (“We completely agree

. . . that [the officer] had probable cause to stop the . . . van because he objectively

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had a reasonable basis for believing that the van was speeding.”). Such probable

cause existed regardless of any motivation to search for drugs. Fuehrer argues that

there was no probable cause because of the standard deviation on radar equipment

of at least one mile per hour. At the suppression hearing, Deputy Williams testified

that he received training in the use of stationary radar and that, prior to joining the

drug task force, he used stationary radar nearly every day. Deputy Williams stated

he was assigned to his patrol vehicle in 2009 and the radar has been affixed to the

vehicle’s dash and windshield the entire time. Further, Deputy Williams testified

that he checked the accuracy of the radar he used the night of the traffic stop earlier

that day and had no reason to believe the radar was not functioning correctly. 

Finally, the standard deviation ofradar equipment that Fuehrer relies on is associated

with the tuning fork method of testing the radar, which Deputy Williams did not use

the day of the traffic stop. As a result, Deputy Williams’ observation of the traffic

violation based on his use of the radar gave him probable cause to stop the vehicle,

and his subjective intent to detain the vehicle for a dog-sniff search is irrelevant.

2. The Dog Sniff

Fuehrer argues that he was unconstitutionally detained while officers executed

the dog sniff. “[I]f a defendant is detained incident to a traffic stop, the officer does

not need reasonable suspicion to continue the detention until the purpose ofthe traffic

stop has been completed.” United States v. Ovando-Garzo, 752 F.3d 1161, 1163 (8th

Cir. 2014) (alteration in original) (quoting United States v. Bueno, 443 F.3d 1017,

1025 (8th Cir. 2006)). An officer may complete routine tasks during a traffic stop,

which “can include ‘a computerized check of the vehicle’s registration and the

driver’s license and criminal history, as well as the preparation of a citation or

warning.’” Id. (quoting United States v. Quintero-Felix, 714 F.3d 563, 567 (8th Cir.

2013)). “However, once an officer finishes the tasks associated with a traffic stop,

‘the purpose of the traffic stop is complete and further detention . . . would be

unreasonable unless something that occurred during the traffic stop generated the

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necessary reasonable suspicion to justify further detention[.]’” Id. at 1163–64

(alterations in original) (quoting United States v. Flores, 474 F.3d 1100, 1103 (8th

Cir. 2007)). 

The Supreme Court has held that “the use of a well-trained narcotics-detection

dog . . . during a lawful traffic stop, generally does not implicate legitimate privacy

interests.” Illinois v. Caballes, 543 U.S. 405, 409 (2005). “A seizure that is justified

solely by the interest in issuing a warning ticket to the driver can become unlawful

if it is prolonged beyond the time reasonably required to complete that mission.” Id.

at 407. Thus, as long as a traffic stop is not extended in order for officers to conduct

a dog sniff, the dog sniff is lawful. 

In this case, Deputy Kearney arrived within two minutes of Deputy Williams

initiating the traffic stop. Because Fuehrer did not have a license, Deputy Williams

asked Fuehrer to sit in the patrol car while he completed paperwork. Deputy Kearney

conducted the dog sniff while Fuehrer was in the patrol car. Deputy Williams

completed the tasks related to the traffic stop and wrote Fuehrer a warning after the

dog sniff was complete and the dog had alerted to the presence of narcotics. Thus,

there is no evidence that the dog sniff unlawfully prolonged the traffic stop beyond

what was necessary to complete the stop. Fuehrer’s reliance on Rodriguez v. United

States, 135 S. Ct. 1609 (2015), is misplaced. In Rodriguez, the officer had already

issued the driver a warning before conducting the dog-sniff search. Id. at 1613. The

Supreme Court held that the search was unlawful because it prolonged the traffic stop

at issue in that case. Id. at 1615–16. The facts just set forth distinguish the instant

case from Rodriguez.

B. Sentencing

Fuehrer argues that his two prior convictions are related under U.S.S.G.

§ 4A1.2(a)(2) and, thus, he does not qualify as a career offender. “We review de

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novo the district court’s construction and interpretation of the criminal history

provisions of the sentencing guidelines, and we review for clear error the district

court’s application of the guidelines to the facts.” United States v. Williams, 533

F.3d 673, 676 (8th Cir. 2008) (quoting United States v. Borer, 412 F.3d 987, 991–92

(8th Cir. 2005)). 

Under the Guidelines, a defendant is a career offender if

(1) the defendant was at least eighteen years old at the time

of the instant conviction; (2) the instant offense of

conviction is a felony that is either a crime of violence or

a controlled substance offense; and (3) the defendant has at

least two prior felony convictions of either a crime of

violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). Prior convictions must be counted separately to satisfy the “two

prior felony convictions” requirement. Id. § 4B1.2(c). 

Prior sentences always are counted separately if the

sentences were imposed for offenses that were separated by

an intervening arrest (i.e., the defendant is arrested for the

first offense prior to committing the second offense). If

there is no intervening arrest, prior sentences are counted

separately unless (A) the sentences resulted from offenses

contained in the same charging instrument; or (B) the

sentences were imposed on the same day. Treat any prior

sentence covered by (A) or (B) as a single sentence.

Id. § 4A1.2(a)(2). 

Fuehrer committed the federal predicate offense on October 21, 1998 and the

state predicate offense on December 3, 1998. Fuehrer was arrested for the state

offense on December 3, 1998, but was not arrested on the federal offense until May

25, 2000. As a result, his two prior offenses are not separated by an intervening

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arrest. See Williams, 533 F.3d at 676–77. Further, the Government concedes that

there was no intervening arrest. 

Because there was no intervening arrest, we consider whether Fuehrer’s prior

sentences “resulted from offenses contained in the same charging instrument” or

“were imposed on the same day.” See U.S.S.G. § 4A1.2(a)(2). Fuehrer was charged

in separate charging instruments, one in state court and one in federal court. Further,

Fuehrer’s sentences for his prior convictions were imposed on different days. 

Fuehrer’s sentence for his state conviction was imposed on September 10, 1999. 

Fuehrer’s sentence for his federal conviction was imposed on August 20, 2001. As

a result, these two convictions should be counted separately as two prior felony

convictions for controlled substance offenses. 

Fuehrer nevertheless argues that his two prior convictions should be counted

together because they were part of a single course of conduct. Fuehrer assertsthat the

conduct underlying his state conviction was part of the same criminal scheme, and

was committed during the same time period, as the federal offense. Thus, Fuehrer

claims his state conviction was relevant to his federal conviction and they should be

counted together. This argument, however, is based on an erroneous reading of the

Guidelines and ignores the straightforward application of U.S.S.G. § 4A1.2(a)(2). 

Fuehrer claims specifically that, under U.S.S.G. § 4A1.2(a)(1), his federal

conviction in 2001 is the “instant offense” and that the conduct underlying his state

conviction in 1999 was part of the “instant offense.” However, under the Guidelines,

“instant offense” refers to the current offense for which a defendant is being

sentenced. U.S.S.G. § 1B1.1 cmt. n.1(H). In the context of the career-offender

analysis, a prior sentence will not be counted if it isfor conduct relevant to the instant

offense. See id. § 4A1.2 cmt. n.1.

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In this case, Fuehrer’s “instant offense” is possession of methamphetamine on

January 11, 2015. Fuehrer’s prior state and federal convictions, in 1999 and 2001,

respectively, for distributing crack cocaine do not involve the same underlying

conduct as his 2015 possession of methamphetamine. Thus, neither conviction is

relevant to the “instant offense.” Fuehrer’s argument incorrectly applies the

Guidelines. As a result, based on the correct career-offender analysis, Fuehrer has

two qualifying prior convictions. The district court did not err by sentencing Fuehrer

as a career offender.

III.

For the foregoing reasons, we affirm the judgment of the district court.

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