NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-3518

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UNITED STATES OF AMERICA

v.

ZACHARY CHAMBERS,

 Appellant

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On Appeal from the United States District Court 

for the Eastern District of Pennsylvania

(E.D. Pa. 2-10-cr-00770-002)

District Judge: Honorable Michael M. Baylson

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Submitted Pursuant to Third Circuit LAR 34.1(a)

September 8, 2014

Before: FISHER, JORDAN and HARDIMAN, Circuit Judges.

(Filed: October 8, 2014)

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OPINION OF THE COURT

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FISHER, Circuit Judge.

Appellant Zachary Chambers appeals his conviction and sentence for conspiracy 

to distribute narcotics and attempted possession with the intent to distribute cocaine. 

Chambers challenges the district court’s denial of his motion to suppress, the district 
2

court’s failure to strike testimony of a codefendant’s guilty plea, and the reasonableness 

of his sentence. We will affirm.1

I.

We write principally for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we will set forth only those facts that are necessary 

to our analysis.

In 2009, a multistate task force began investigating a suspected drug trafficking 

organization in Philadelphia headed by Bellvin Smith. The task force suspected that 

Smith and others traveled to Las Vegas and Los Angeles to purchase powder cocaine, 

crack cocaine, and marijuana and transported the drugs to the Philadelphia area for sale.

On December 1, 2010, a grand jury in the Eastern District of Pennsylvania 

indicted Smith, Chambers, and three others for crimes related to the drug trafficking 

scheme. A subsequent superseding indictment charged Chambers with one count of 

conspiracy to distribute five kilograms or more of cocaine, 280 grams or more of crack 

cocaine base, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 

(b)(1)(D) and 846, and one count of attempted possession with the intent to distribute 500 

grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 846, 

 

1 Chambers’s codefendant, Tyreek Styles, has also appealed his conviction and 

sentence. See Docket No. 14-1661. We address his appeal with a separate opinion and 

judgment.
3

and 18 U.S.C. § 2. Chambers moved to suppress any evidence discovered as a result of a 

February 2010 traffic stop in St. Louis, Missouri; the district court denied the motion.

A jury found Chambers guilty of both the conspiracy and attempted possession 

charges. The district court sentenced Chambers to 330 months of incarceration, five 

years of supervised release, and a $5,000 fine. Chambers filed a timely notice of appeal.

II.

The district court had jurisdiction over this criminal action under 18 U.S.C. 

§ 3231. We exercise jurisdiction to review the district court’s judgment of conviction 

under 28 U.S.C. § 1291 and to review the sentence imposed under 18 U.S.C. § 3742(a).

III.

A.

Chambers first contends that the district court should have suppressed evidence 

discovered during a traffic stop that occurred on February 3, 2010, in St. Louis, Missouri. 

Chambers was a passenger in the vehicle. “We review the [d]istrict [c]ourt’s decision 

[regarding] a motion to suppress under a mixed standard of review. We review its 

findings of fact for clear error, but exercise plenary review over its legal conclusions.” 

United States v. Tracey, 597 F.3d 140, 146 (3d Cir. 2010) (citation omitted).

An officer may briefly stop a person for investigation “when the officer has a 

reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 

U.S. 119, 123 (2000). Reasonable suspicion only requires “some minimal level of 
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objective justification,” that is, less than probable cause. INS v. Delgado, 466 U.S. 210, 

217 (1984). Chambers concedes that the initial stop was valid, but he argues that the stop 

became illegal when the officers continued to investigate without further evidence of 

criminal activity. We disagree.

When the officers stopped the minivan at 4:00 a.m. for failing to maintain a single 

lane of traffic, the officers observed that the driver was nervous and shaking.2 They also 

saw that energy drinks and multiple cellphones were on the driver’s console. The driver 

admitted that he and the passengers were traveling from Philadelphia to Las Vegas to 

gamble. The officers had reasonable suspicion at that time to marginally extend the 

traffic stop to ask whether the driver or passengers were carrying cash. After the driver 

admitted that they were carrying cash in a backpack, the driver consented to a search of 

the minivan, and none of the passengers objected. Accordingly, the cash and other items 

that the officers found were lawfully discovered. And because Chambers and the other 

passengers claimed not to own the cash or the items, the officers lawfully kept them.

Chambers argues that he did not consent to the search of the whole minivan and 

that he could not give voluntary consent in any event. However, the officers asked to 

search the entire vehicle, and no one objected. Moreover, the circumstances do not 

indicate that Chambers could not give voluntary consent: he was not handcuffed at the 

time; his background, age, and intelligence suggest he had the capacity to consent; and 

 

2

The district court credited the testimony of the officers with respect to the stop.
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the officers did not coerce him into acquiescing in the search. Accordingly, the district 

court properly denied the motion to suppress.

B.

Chambers next argues that the district court improperly allowed a federal agent to 

testify about a codefendant’s plea agreement. We review the district court’s evidentiary 

rulings for abuse of discretion. Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 

(3d Cir. 2002). But even an incorrect evidentiary ruling does not require reversal as long 

as “‘it is highly probable that the error did not contribute to the judgment.’” United 

States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995) (en banc) (emphasis removed) 

(quoting Gov’t of V.I. v. Toto, 529 F.2d 278, 284 (3d Cir. 1976)).

At trial, the Government offered the testimony of an ATF agent concerning a 

variety of records discovered through the course of the investigation. After defense 

counsel asked about an individual on cross-examination, the agent on re-direct testified 

that the individual was a codefendant in this case who pleaded guilty to conspiracy to 

distribute five kilograms of cocaine and described the role in the conspiracy to which she 

admitted. After the court expressed surprise that defense counsel had not objected, 

counsel attempted to object to the testimony. However, because the agent had already 

completed his response, the district court found the objection untimely.3

 

3

The Government urges the Court to find that Chambers forfeited this claim and 

to review the claim for plain error. Because we find any error, if one occurred, harmless, 

we do not determine whether Chambers forfeited this claim.
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Assuming, without deciding, that the district court erred in allowing this testimony 

and in failing to strike it from the record with a curative instruction, we are convinced

that the error did not prejudice Chambers, and any such error was, therefore, harmless. 

The codefendant’s admission of guilt did not implicate Chambers, and the jury was 

instructed that they should not evaluate codefendants’ guilty pleas in determining 

Chambers’s guilt. Accordingly, we find no reversible error here.

C.

Finally, Chambers argues that his sentence is substantively unreasonable. 

Chambers contends that in calculating the advisory Sentencing Guidelines range the 

district court should have granted a downward departure under U.S.S.G. § 4A1.3 because 

Chambers’s criminal history score over-represented the seriousness of his criminal 

history.4

Chambers asks this Court to review this issue for abuse of discretion, but the 

Government argues that because the district court recognized its ability to depart from the 

advisory Guidelines sentencing range under § 4A1.3 and chose not to, we lack 

jurisdiction to consider the issue. We agree with the Government.

 

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Section 4A1.3(b)(1) of the Sentencing Guidelines allows a district court, in 

determining the advisory sentencing range, to depart from the calculated range “[i]f 

reliable information indicates that the defendant’s criminal history category substantially 

over-represents the seriousness of the defendant’s criminal history or the likelihood that 

the defendant will commit other crimes.”
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“We do not have jurisdiction to review discretionary decisions by district courts to 

not depart downward.” United States v. Jones, 566 F.3d 353, 366 (3d Cir. 2009) (internal 

quotation marks omitted). Therefore, if the district court ruled that a departure was 

legally impermissible, we can review that decision; but if the district court understood its 

ability to grant the departure and chose not to grant it in light of the circumstances of the 

case, we cannot review the decision. See United States v. Mummert, 34 F.3d 201, 205 

(3d Cir. 1994).

At the sentencing hearing, Chambers argued for a departure under § 4A1.3, and 

the district court denied it. The court noted, “I have discretion to - - to consider it. I have 

discretion to grant it. In my view, Mr. Chambers has had a - - basically a lifetime of 

crime . . . and I can’t see any reason to reduce the criminal history category. So I’ll deny 

that.” J.A. 501. The court understood its ability to grant the departure but in its 

discretion determined Chambers’s criminal history score did not over-represent the 

seriousness of his criminal history. Accordingly, we lack jurisdiction to review this issue.

IV.

For the reasons above, we will affirm Chambers’s conviction and sentence.