FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MARCH 25, 2009

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

Nos. 08-10050 & 08-10054

________________________

D. C. Docket Nos. 05-00454-CR-JTC-1,

06-00443-CR-JTC-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT KNIGHT,

a.k.a. Robert E. Knight,

Defendant-Appellant.

________________________

Appeals from the United States District Court

for the Northern District of Georgia

_________________________

(March 25, 2009)

Before BARKETT, PRYOR and FARRIS, Circuit Judges.

*

Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by *

designation.
PRYOR, Circuit Judge:

The main issue in this appeal is whether a violation of the speedy trial clause

of the Interstate Agreement on Detainers Act, 18 U.S.C. App. 2 § 2, Art. IV(c), can

be harmless when the United States is the receiving state. We conclude that it can

be. Robert Knight appeals his conviction and sentence for being a felon in

possession of a firearm, 18 U.S.C. § 922(g). Knight challenges the denial of his

motion to suppress, the sufficiency of the evidence against him, and the denial of

his motions to dismiss his indictment with prejudice for violations of the right to a

speedy trial under the Sixth Amendment, the Speedy Trial Act, and the Detainers

Act, and the right to due process under the Fifth Amendment. We conclude that

the district court did not err when it denied Knight’s motion to suppress; the

evidence against Knight was sufficient; the violation of the speedy trial clause of

the Detainers Act was harmless; and the district court did not err when it denied on

other grounds Knight’s motions to dismiss his indictment with prejudice. We also

conclude, as the United States concedes, that the district court erred when it failed

to credit Knight for time that he served in state custody. We affirm Knight’s

conviction, vacate his sentence, and remand for further proceedings.

I. BACKGROUND

Our discussion of the background of this prosecution is divided in five parts.

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First, we discuss the facts leading to Knight’s arrest and indictment in state and

federal court. Second, we discuss the facts related to Knight’s transfer to federal

custody. Third, we discuss the pretrial proceedings that resulted in the dismissal

without prejudice of Knight’s first indictment. Fourth, we discuss Knight’s second

federal indictment and the pretrial proceedings related to that indictment. Fifth, we

discuss Knight’s conviction and sentence.

A. Facts Leading to Knight’s Arrest and Indictment in State and Federal Court

On May 15, 2004, officers Craig Schmidt and L.W. Wagaman were

performing traffic duties at a public gathering at a park in Atlanta. The officers

stopped three men in a blue Chevrolet Impala after they heard loud music

emanating from the car and saw that the driver was not wearing a seatbelt. As the

officers approached the car, they could smell a strong odor of marijuana.

Wagaman also noticed a red cup in the car that appeared to contain an alcoholic

beverage. After the driver argued with Wagaman about the traffic stop and having

to produce identification, Wagaman asked the driver to exit the car, patted him

down, and discovered a firearm on him. Wagaman then handcuffed the driver and

escorted him to the police car.

While Wagaman was interacting with the driver, Schmidt noticed that

Knight, who was seated behind the driver’s seat, appeared nervous. Schmidt saw

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Knight reach into his front pocket, pull out a firearm, and place it on the

floorboard. Schmidt drew his firearm and, assisted by Wagaman who had also

drawn his firearm, ordered Knight and the other occupant, seated in the front

passenger seat of the car, to show their hands. Schmidt removed Knight from the

car, put him on the ground, handcuffed him, and patted him down. Knight had on

his person ammunition that matched the .22 caliber firearm on the floorboard,

marijuana, and money. The officers discovered that the firearm was a .22 caliber

Jennings semiautomatic pistol and had a fully loaded clip and a chambered round.

Schmidt and Wagaman performed an inventory search of the car and smelled

alcohol in the red cup.

When Wagaman was transferring Knight from the police car to the Dekalb

County Jail, Wagaman replaced Knight’s metal handcuffs with flex cuffs. Knight

wrenched away from Wagaman, dislocated Wagaman’s shoulder, and ran to a

nearby fence. Other officers restrained Knight and took him to the Dekalb County

Jail. Two days later, Knight escaped during his transfer for a court appearance.

Knight was rearrested in 2005.

Knight was indicted, separately, in Dekalb County for multiple charges

related to the traffic stop and for his later escape from custody. On September 29,

2005, a federal grand jury indicted Knight for possession of a firearm by a

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convicted felon. Knight later pleaded guilty in state court to the charges of escape

and obstruction of justice and was sentenced to ten years of imprisonment. In

deference to the federal indictment, the state court deferred prosecution of the

indictment related to the traffic stop.

B. Knight’s Transfer to Federal Custody

Federal authorities lodged a detainer against Knight that required state

authorities to hold him even if he posted bond for his state charges. Marcos Bess

and Benjamin Gibbons, special agents with the Bureau of Alcohol, Tobacco,

Firearms, and Explosives, interviewed Knight while he was in state custody.

Agent Bess testified that he was aware that he was investigating Knight in

connection with the same traffic stop for which Knight was being held in state

custody.

Bess informed Knight of his rights and asked whether Knight had an

attorney. Knight said that he had an attorney for the state charges but did not think

he would use the same attorney to defend him in the federal case. Bess did not

contact Knight’s attorney before he interviewed Knight. The interview between

Bess and Knight lasted between 45 minutes and an hour.

Knight admitted that he had given his girlfriend money to purchase firearms

on his behalf and stated that he bought the guns for self-protection. Knight did not

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ask for an attorney or ask to end the interview, and Bess did not promise Knight

anything in return for his testimony except that he would tell the prosecutor that

Knight confessed.

On December 9, 2005, a magistrate judge issued a writ of habeas corpus ad

prosequendum that required Georgia authorities to deliver Knight to federal

custody. On December 16, 2005, Knight was transferred to federal custody and

pleaded not guilty at his arraignment.

C. Pretrial Proceedings Leading to Dismissal of Knight’s First Federal Indictment

On January 3 and 4, 2006, Knight moved to suppress his statements and

physical evidence. A suppression hearing was held on February 15, 2006, and

Knight ultimately withdrew those motions on March 30, 2006.

On February 24, 2006, Knight moved pro se to dismiss his indictment for a

violation of the 30-days-to-indict clause of the Speedy Trial Act, 18 U.S.C. §

3161(b). The magistrate judge recommended the denial of Knight’s motion

because Knight had been indicted before his transfer to federal custody. The

district court adopted the report and recommendation and denied Knight’s motion.

On August 22, 2006, Knight moved to dismiss the indictment based on

pretrial delay in violation of the Sixth Amendment, the Speedy Trial Act, 18

U.S.C. §§ 3161, 3162, and Federal Rule of Criminal Procedure 48(b). The United

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States responded that much of the period after Knight’s indictment had been spent

attempting to achieve Knight’s cooperation and, in support of that argument,

provided the court with a timeline to which Knight did not object. The district

court dismissed the indictment without prejudice on the ground that the delay

violated the Speedy Trial Act. Knight filed a motion for reconsideration. The

district court ruled that the 11-month delay was not presumptively prejudicial

under the Sixth Amendment and denied the motion for reconsideration. Knight

appealed to this Court, but we dismissed the appeal for lack of jurisdiction because

the dismissal without prejudice was not a final order.

D. Pretrial Proceedings Related to Knight’s Second Federal Indictment

On October 25, 2006, a grand jury returned a second indictment against

Knight for possession of a firearm by a convicted felon. Knight again moved to

suppress his statements and physical evidence. On January 8, 2007, Knight moved

to dismiss for pretrial delay on the ground that his first indictment should have

been dismissed with prejudice. On March 6, 2007, Knight moved to dismiss for a

violation of due process on the ground that he had been wrongly detained in

federal custody between his two federal indictments in violation of the antishuttling provision of the Detainers Act, 18 U.S.C. App. 2 § 2, Art. IV(e).

On May 10, 2007, the magistrate judge recommended that the district court

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deny Knight’s motions to suppress evidence and statements, his motion to dismiss

for pretrial delay, and his motion to dismiss for a violation of due process. On

May 21, 2007, Knight moved pro se to dismiss on the grounds that his rights to a

speedy trial under the Sixth Amendment and due process under the Fifth

Amendment had been violated. On May 25, 2007, Knight objected to the report

and recommendation. The district court denied Knight’s motions to dismiss his

second indictment and his motions to suppress statements and evidence. On June

6, 2007, Knight moved pro se to dismiss for a violation of the speedy trial clause of

the Detainers Act, 18 U.S.C. App. 2 § 2, Art. IV(c), and the district court denied

the motion and concluded that the government had 120 days from Knight’s second

indictment to try Knight.

E. Knight’s Conviction and Sentence

After Knight stipulated that he had knowingly possessed a firearm that was

manufactured in California and that he had previously been convicted of a felony,

the district court found Knight guilty at a bench trial on August 20, 2007. The

district court sentenced Knight to the statutory maximum term of 120 months of

imprisonment, followed by three years of supervised release. Knight objected to

the denial of his request for a reduction of his sentence for acceptance of

responsibility, the calculation of his criminal history, and the denial of credit for

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his time served in state custody.

II. STANDARDS OF REVIEW

Several standards of review govern this appeal. We review for an abuse of

discretion whether a district court should dismiss an indictment with or without

prejudice for a violation of the Speedy Trial Act. United States v. Brown, 183 F.3d

1306, 1309 (11th Cir. 1999). We review de novo the denial of a motion to dismiss

for a violation of the right to a speedy trial under the Sixth Amendment. United

States v. Harris, 376 F.3d 1282, 1286 (11th Cir. 2004). We review de novo the

application of the Interstate Agreement on Detainers Act. See United States v.

Collins, 90 F.3d 1420, 1426 (9th Cir. 1996). The denial by the district court of a

motion to suppress is a mixed question of law and fact. We review findings of fact

for clear error, and we review de novo the application of law to those facts. United

States v. Alexander, 835 F.2d 1406, 1408 (11th Cir. 1988). We review the

sufficiency of the evidence de novo and view the evidence in the light most

favorable to the government. United States v. Keller, 916 F.2d 628, 632 (11th Cir.

1990). We review the application of the Sentencing Guidelines for clear error as to

factual findings and de novo as to questions of law. United States v. Crawford,

407 F.3d 1174, 1177–78 (11th Cir. 2005). We review a denial of a reduction of

sentence for an acceptance of responsibility for clear error, and that finding “‘is

9
entitled to great deference on review and should not be disturbed unless it is

without foundation.’” United States v. Davis, 878 F.2d 1299, 1301 (11th Cir.

1989) (per curiam) (quoting United States v. Spraggins, 868 F.2d 1541, 1543 (11th

Cir. 1989)).

III. DISCUSSION

We divide our discussion of Knight’s arguments in six parts. First, we

address Knight’s argument that the district court erred when it dismissed his first

indictment without prejudice for a violation of the Speedy Trial Act. Second, we

address Knight’s argument that the district court erred when it denied his motions

to dismiss for a violation of his Sixth Amendment right to a speedy trial. Third, we

address Knight’s argument that the district court erred when it denied his motion to

dismiss for a violation of due process. Fourth, we address Knight’s argument that

the district court erred when it denied his motion to dismiss for a violation of the

speedy trial clause of the Detainers Act. Fifth, we address Knight’s remaining

arguments about his conviction: that the district court erred when it denied his

motions to suppress his statements and the evidence seized at his arrest and that the

evidence against him was insufficient to sustain his conviction. Sixth, we address

Knight’s arguments about his sentence.

A. The District Court Did Not Abuse Its Discretion When It Dismissed Knight’s

First Indictment Without Prejudice for a Violation of the Speedy Trial Act.

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A district court has the discretion to dismiss an indictment with or without

prejudice under the Speedy Trial Act and must consider three factors when

determining the method of relief: (1) “the seriousness of the offense”; (2) “the facts

and circumstances of the case which led to the dismissal”; and (3) “the impact of a

reprosecution on the administration of this chapter and on the administration of

justice.” 18 U.S.C. § 3162(a)(2). “[T]he proper dismissal sanction to be imposed

in each case is a matter left to the exercise of the sound discretion of the trial judge

after consideration of the factors enumerated in the statute,” United States v.

Russo, 741 F.2d 1264, 1267 (11th Cir. 1984), and the judgment of the district court

“should not lightly be disturbed” if the district court has considered all of the

statutory factors and if the underlying factual findings are not clearly erroneous.

United States v. Taylor, 487 U.S. 326, 337, 108 S. Ct. 2413, 2420 (1988). The

district court dismissed Knight’s first indictment without prejudice under the

Speedy Trial Act, 18 U.S.C. § 3161(c), because more than 70 days had passed

since Knight first appeared before the court.

The district court did not abuse its discretion when it weighed the three

factors and dismissed Knight’s indictment without prejudice. The district court

correctly determined that the statutory minimum sentence of ten years of

imprisonment reflects the seriousness of Knight’s offense. The district court

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considered “the culpability of the delay-producing conduct” and did not clearly err

when it found that the delay was not attributable to either party. The United States

had submitted a detailed timeline of events, which Knight did not challenge, that

established that the majority of the delay was attributable to Knight’s indecision

about whether to cooperate with the United States and a short portion of the delay

was attributable to the efforts of the federal prosecutors to determine whether

Knight qualified as an armed career criminal. As to the third factor, the district

court correctly determined that Knight had not alleged that he had been prejudiced

by the delay and found that dismissing with prejudice would encourage

gamesmanship by defendants.

Knight argues that his custody in a maximum-security facility, where he

allegedly suffered depression and abuses by inmates is a “unique circumstance[],”

United States v. Godoy, 821 F.2d 1498, 1506 (11th Cir. 1987), that required the

dismissal of his indictment with prejudice, but we disagree. Had Knight not been

in federal custody awaiting trial, he would have returned to state imprisonment.

Knight also was held in a maximum-security facility because of his earlier escape.

B. The District Court Did Not Err When It Denied Knight’s Motions To Dismiss

for a Violation of His Sixth Amendment Right to a Speedy Trial.

To determine whether the government has violated the right to a speedy trial

under the Sixth Amendment, a district court considers four factors: (1) “length of

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delay”; (2) “the reason for the delay”; (3) “the defendant’s assertion of his right”;

and (4) “prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530, 92 S.

Ct. 2182, 2192 (1972). We have held that, unless the period of delay is

“presumptively prejudicial” under the first factor, a district court need not consider

the other factors. United States v. Register, 182 F.3d 820, 827 (11th Cir. 1999). A

 

delay becomes “presumptively prejudicial” as it approaches one year. United

States v. Schlei, 122 F.3d 944, 987 (11th Cir. 1997). “The Sixth Amendment right

to a speedy trial attaches at the time of arrest or indictment, whichever comes first,

and continues until the date of trial.” United States v. Walters, 591 F.2d 1195,

1200 (5th Cir. 1979). Almost two years elapsed between Knight’s first indictment

and his trial.

Two of the first three factors under Barker weigh in favor of Knight’s

argument that his constitutional right to a speedy trial was violated. The delay of

almost two years was presumptively prejudicial, but the reasons for the delay were

attributable to the early attempts by the United States to achieve Knight’s

cooperation, the resolution of Knight’s numerous pretrial motions, and the process

of obtaining a second indictment against Knight. Knight asserted his right to a

speedy trial promptly on February 24, 2006.

Although two of the first three factors weigh in his favor, Knight cannot

13
establish that he was actually prejudiced by the delay. See Schlei, 122 F.3d at 988.

Three interests must be considered in evaluating actual prejudice: (1) preventing

oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the

accused; and (3) limiting the possibility that the defense will be impaired. Id. at

988. The third factor is most important “because the inability of a defendant

adequately to prepare his case skews the fairness of the entire system.” Id.

Although Knight again complains about the conditions of his detention in a

maximum-security facility, he would have been otherwise serving a state sentence

of imprisonment and was housed in the maximum-security facility because of his

earlier escape. “[M]ost importantly, [Knight] has not shown–and could not

show–that the delay prejudiced his defense at all because he had no defense, as he

had stipulated to each element of the § 922(g) offense.” United States v. Dunn,

345 F.3d 1285, 1297 (11th Cir. 2003).

Because Knight did not establish a violation of the Sixth Amendment, it also

was not an abuse of discretion for the district court to deny his motion to dismiss

his indictment under Federal Rule of Criminal Procedure 48(b). That rule “‘vests

much discretion in the trial court, and dismissal is mandatory only if the

defendant’s constitutional rights have been violated.’” Id. (quoting United States

v. Butler, 792 F.2d 1528, 1533 (11th Cir. 1986)). When a defendant fails to

14
establish that his Sixth Amendment right to a speedy trial was violated, “there is no

basis for concluding that the district court abused its discretion in refusing to grant

appellant’s motion insofar as it relied on [Rule 48(b)].” Id.

C. The District Court Did Not Err When It Denied Knight’s Motion To Dismiss for

a Violation of Due Process.

Knight argues that because the United States did not return him to state

custody after his first indictment had been dismissed, the United States violated the

Detainers Act, 18 U.S.C. App. 2 § 2, Art. IV(e), and denied him due process.

Knight argues that had he been returned to state custody, he would have been

entitled to a dismissal of his indictment with prejudice. Knight argues that the

United States deliberately kept him in federal custody to gain a tactical advantage.

For these reasons, Knight argues that the district court erred when it denied his

motion to dismiss his indictment with prejudice. This argument fails.

The first problem with Knight’s argument is that the district court clearly

had the discretion, under the Detainers Act, to dismiss Knight’s indictment without

prejudice. The district court already had exercised its discretion to dismiss

Knight’s indictment without prejudice, which allowed the United States to obtain a

second indictment against Knight. Ordinarily, “[i]f trial is not had on any

[indictment] contemplated hereby prior to the prisoner’s being returned to the

original place of imprisonment . . . such indictment . . . shall not be of any further

15
force or effect, and the court shall enter an order dismissing the same with

prejudice,” 18 U.S.C. App. 2 § 2, Art. IV(e), but there is an exception to this rule

when the United States is the receiving state. A federal district court has the

discretion to dismiss the indictment without prejudice:

Notwithstanding any provision of the agreement on detainers to the

contrary, in a case in which the United States is a receiving State–any

order of a court dismissing any [indictment] may be with or without

prejudice. In determining whether to dismiss the case with or without

prejudice, the court shall consider, among others, each of the

following factors: The seriousness of the offense; the facts and

circumstances of the case which led to the dismissal; and the impact

of a reprosecution on the administration of the agreement on detainers

and on the administration of justice.

Id. § 9(1). The district court had the discretion to dismiss Knight’s indictment

without prejudice under this provision for the same reasons the district court

already had reached that decision under the Speedy Trial Act.

Knight cannot establish that his retention in federal custody violated his

right to due process. Knight argues that the violation of his right to due process by

remaining in federal custody is somehow analogous to a violation based on preindictment delay, but this analogy is inapt. “To prove a due process violation

resulting from a pre-indictment delay, [a defendant] must show: (1) actual

prejudice to [his] defense from the delay; and (2) that the delay resulted from a

deliberate design by the government to gain a tactical advantage.” United States v.

16
Thomas, 62 F.3d 1332, 1339 (11th Cir. 1995). Knight cannot establish actual

prejudice to his defense because he stipulated to all the elements of his offense.

Knight also fails to explain how his remaining in federal custody amounted to a

deliberate decision by the United States to gain a tactical advantage. Knight was

still subject to a second indictment and another transfer to federal custody even if

he had been returned first to state custody. The retention of Knight in federal

custody caused him less, not more, pretrial delay. The district court did not err

when it denied Knight’s motion.

D. Any Error Based on a Violation of the Speedy Trial Clause of the Detainers Act

Was Harmless.

Knight argues that his indictment should have been dismissed with prejudice

based on a violation of the speedy trial clause of the Detainers Act. That provision

states that “trial shall be commenced within one hundred and twenty days of the

arrival of the prisoner in the receiving State, but for good cause shown in open

court, the prisoner or his counsel being present, the court having jurisdiction of the

matter may grant any necessary or reasonable continuance.” 18 U.S.C. App. 2 § 2,

Art. IV(c). The ordinary remedy for a violation of the speedy trial provision is a

dismissal with prejudice:

[I]n the event that an action on the indictment . . . is not brought to

trial within the period provided in . . . article IV hereof, the

appropriate court of the jurisdiction where the indictment . . . has been

17
pending shall enter an order dismissing the same with prejudice, and

any detainer based thereon shall cease to be of any force or effect.

Id. § 2, Art. V(c). But this ordinary rule again has the same exception when the

United States is the receiving state: “Notwithstanding any provision . . . to the

contrary,” dismissal may be without prejudice. Id. § 9(1). The district court

reasoned that, because courts often construe the Speedy Trial Act and Detainers

Act to be consistent, the 120-day period under the Detainers Act was reset upon

Knight’s second indictment.

The United States argues that the Detainers Act is not applicable because a

detainer never was filed against Knight and because he was not “serving a term of

imprisonment” when awaiting trial, but we disagree. The Detainers Act applies

“when [the United States] activates its provisions by filing a detainer against a state

prisoner and then obtains his custody by means of a writ of habeas corpus ad

prosequendum.” United States v. Mauro, 436 U.S. 340, 349, 98 S. Ct. 1834, 1842

(1978). The record establishes that a detainer was lodged against Knight before his

first indictment. Agent Bess testified at a pretrial conference that a detainer had

been lodged against Knight while he was in state custody. Because the dismissal

of Knight’s first indictment without prejudice did not produce a final resolution of

the charges against him, the original detainer against Knight remained in effect:

“The detainer remains lodged against the prisoner until the underlying charges are

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finally resolved.” Id. at 362, 98 S. Ct. at 1848. The Detainers Act also applies to a

prisoner “serving a term of imprisonment in any party State.” 18 U.S.C. App. 2 §2,

Art. IV(a). Knight had been convicted and sentenced in a state court and was in

state custody serving time toward his sentence. The Act governed his transfer to

federal custody even though Knight had not yet been assigned or transferred to the

state prison where he was expected to serve the duration of his sentence.

We agree with Knight that the United States technically violated the speedy

trial clause of the Detainers Act. Knight was not returned to state custody after his

first indictment was dismissed and remained in the receiving state more than 120

days after his arrival. Although Knight was in federal custody for only 28 days

between the two federal indictments, the failure of the United States to return

Knight to state custody, lodge a new detainer, and obtain a writ of habeas corpus

ad prosequendum kept the 120-day period from resetting so that Knight was in

federal custody for more than 120 days after his initial arrival. We disagree with

the reasoning of the district court that the second indictment of Knight reset the

period for measuring the 120 days.

Although the United States violated the speedy trial clause of the Detainers

Act, the denial of Knight’s motion to dismiss was harmless for two reasons. First,

the speedy trial clause allows a district court to grant a continuance for good cause,

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and the obtaining of a second indictment clearly would have been considered good

cause by the district court. The United States, after all, was put to the burden of

obtaining a second indictment because the district court had granted partial relief

on Knight’s motion. Second, because the United States was the receiving state, the

district court also would have had the discretion to dismiss the second indictment

without prejudice as the district court had done with respect to Knight’s first

indictment. The United States then would have been free to return Knight to state

custody and obtain a third indictment against him, which would have delayed his

proceeding without violating the Detainers Act.

Knight argues that the Supreme Court has held that the mandatory language

of the Detainers Act does not allow for a harmless, technical, or de minimis error

exception, Alabama v. Bozeman, 533 U.S. 146, 153–54, 121 S. Ct. 2079, 2084–85

(2001), but that decision does not apply to this appeal. In Bozeman, Alabama was

the receiving jurisdiction and violated the anti-shuttling provision of the Detainers

Act, 18 U.S.C. App. 2 § 2, Art. IV(e), when it transported a prisoner from federal

to state custody for a single day to be arraigned and then returned the prisoner to

the sending state before trial. 533 U.S. at 151–52, 121 S. Ct. at 2083–84. The

Court held that the language of the anti-shuttling provision was mandatory as to

both the prohibited conduct and the remedy:

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[T]he language of the Agreement militates against an implicit

exception, for it is absolute. It says that when a prisoner is “returned”

before trial, the indictment, information, or complaint “shall not be of

any further force or effect, and the court shall enter an order

dismissing the same with prejudice.”

Id. at 153, 121 S. Ct. at 2084–85 (quoting 18 U.S.C. App. 2 § 2, Art. IV(e))

(emphasis omitted). The difference in Knight’s case is that, when the United

States is the receiving state, a dismissal with prejudice is not mandatory, as it was

in Bozeman. Congress made explicit that the United States is treated differently

under the Detainers Act because, “[n]otwithstanding any provision . . . to the

contrary,” when the United States is the receiving jurisdiction, a dismissal may be

without prejudice. 18 U.S.C. App. 2 § 9(1).

The stated purpose of the Detainers Act is “to encourage the expeditious and

orderly disposition of such charges and determination of the proper status of any

and all detainers based on untried indictments, informations, or complaints.” Id. §

2, Art. I. That purpose was not violated when the district court did not dismiss

Knight’s second indictment based on a violation of the speedy trial clause of the

Act. Any error was harmless.

E. The District Court Did Not Err When It Denied Knight’s Motions To Suppress

Evidence and Statements and When It Determined the Evidence Was Sufficient To

Convict Knight.

Knight’s remaining arguments about his conviction are without merit.

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Knight challenges the denial of his motion to suppress the evidence seized at his

arrest, the denial of his motion to suppress statements he made to Agent Bess, and

the sufficiency of the evidence. We address each issue in turn.

Knight argues that there was no reasonable suspicion to pat down the driver

of the vehicle and that this illegal search tainted the remainder of the encounter,

including the discovery of his gun and other evidence, but this argument fails.

There was probable cause to stop the car because Schmidt saw that the driver was

not wearing a seat belt. See United States v. Chanthasouxat, 342 F.3d 1271, 1274

(11th Cir. 2003). Because there was probable cause to stop the car, Wagaman was

entitled to ask the driver to step out of the car. Pennsylvania v. Mimms, 434 U.S.

106, 111 n.6, 98 S. Ct. 330, 333 n.6 (1977). The other circumstances, taken in

their totality, gave Wagaman a reasonable suspicion to pat down the driver for

Wagaman’s safety: Wagaman smelled marijuana and alcohol, and the driver

argued with him at the initiation of the stop. See Terry v. Ohio, 392 U.S. 1, 30, 88

S. Ct. 1868, 1884 (1968). Because the officers had reasonable suspicion to pat

down the driver, the district court did not err when it denied Knight’s motion to

suppress evidence the officers had seized.

Knight also argues that his statements to federal agent Bess should have

been suppressed because he did not waive his right to remain silent and his right to

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counsel, but we disagree. Knight waived his right to remain silent, and his waiver

was voluntary, knowing, and intelligent. Miranda v. Arizona, 384 U.S. 436, 444,

86 S. Ct. 1602, 1612 (1966). Bess testified that he informed Knight of his Miranda

rights and explained that the rights meant Knight could refuse to speak or

discontinue the interview, and Knight responded that he understood his rights and

wished to speak with Bess.

Knight’s prior invocation of his right to counsel on the state charges did not

apply to the federal charges against him. The Sixth Amendment right to counsel is

offense-specific: “It cannot be invoked once for all future prosecutions, [because] it

does not attach until a prosecution is commenced, that is, at or after the initiation of

adversary judicial proceedings–whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment.” McNeil v. Wisconsin, 501 U.S.

171, 175, 111 S. Ct. 2204, 2207 (1991) (internal quotation marks omitted). The

dual sovereignty doctrine applies to the right to counsel such that an invocation of

the right to counsel for a state charge does not invoke the right for an identical

federal charge. United States v. Burgest, 519 F.3d 1307, 1310–11 (11th Cir.

2008), cert. denied, 129 S. Ct. 274 (2008). Knight did not invoke his right to

counsel for the federal charges against him, and there is no evidence that Knight

had obtained counsel to represent him on the federal charges. The district court did

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not err when it denied Knight’s motion to the suppress statements he made to Bess.

Knight also argues that the evidence was insufficient to convict him of being

a felon in possession of a firearm, but Knight’s argument is foreclosed by

precedent and his stipulation at trial. To be convicted of possession of a firearm by

a convicted felon, the firearm must have affected interstate commerce, and a

“minimal nexus” to interstate commerce is sufficient. United States v. Dupree, 258

F.3d 1258, 1260 (11th Cir. 2001); United States v. McAllister, 77 F.3d 387, 389

(11th Cir. 1996). In Dupree, the requirement of a minimal nexus was satisfied

because the defendant “brandish[ed] a firearm that was manufactured in California

and found in his car [in Georgia].” 258 F.3d at 1260. Knight stipulated that the

firearm found in the car was manufactured in California and crossed state lines

before he possessed the weapon in Georgia. This stipulation is sufficient to

support his conviction. See id.

F. The Only Sentencing Error Was the Failure To Credit the Time Knight Had

Spent in State Custody.

Knight raises three arguments about his sentence: that the district court erred

(1) when it failed to reduce his sentence for acceptance of responsibility, (2) when

it calculated his criminal history category, and (3) when it calculated his sentence.

We discuss each argument in turn.

1. The District Court Did Not Clearly Err When It Denied Knight’s Request To

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Reduce His Sentence Based on Acceptance of Responsibility.

Section 3E1.1(a) of the Sentencing Guidelines provides for a two-level

reduction if the defendant “clearly demonstrates acceptance of responsibility for

his offense.” The commentary states that an acceptance-of-responsibility reduction

and obstruction-of-justice enhancement should be applied in tandem only in

“extraordinary cases.” United States Sentencing Guidelines § 3E1.1 cmt. n.4 (Nov.

2008). It is also a “rare situation[]” for a defendant to proceed to trial and be

entitled to an acceptance-of-responsibility reduction. Id. § 3E1.1 cmt. n.2.

It was not clear error for the district court to find that Knight had not

accepted responsibility. In United States v. Gonzalez, we held that a district court

did not clearly err when it denied a reduction where the defendant challenged the

admissibility of evidence and pursued a bench trial instead of a guilty plea: “By

challenging the admissibility of the essential evidence against him, [the defendant]

attempted to avoid a determination of factual guilt and to thereby escape

responsibility for his crime.” 70 F.3d 1236, 1238–40 (11th Cir. 1995) (per

curiam). The same reasoning applies to Knight’s request. Although Knight

stipulated to the elements of his crime, he did so on the eve of a bench trial and

after unsuccessfully moving to suppress the evidence against him. The district

court was entitled to find that Knight had not accepted responsibility.

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2. The District Court Did Not Err When It Calculated Knight’s Criminal History

Category.

The district court correctly determined Knight’s criminal history category.

Knight was arrested for possession of crack cocaine with intent to distribute, and

his probation was revoked for an earlier conviction for possession of marijuana.

Although the crack cocaine offense and the probation revocation occurred on the

same day, the Guidelines instruct that a revocation should be added to the original

offense and counted separately from the offense leading to the revocation: “In the

case of a prior revocation of probation . . . add the original term of imprisonment to

any term of imprisonment imposed upon revocation.” U.S.S.G. § 4A1.2(k)(1). “If,

. . . at the time of revocation another sentence was imposed for a new criminal

conviction, that conviction would be computed separately from the sentence

imposed for the revocation.” Id. § 4A1.2 cmt. n.11. The district court correctly

added three history points for Knight’s conviction for possession of marijuana and

corresponding revocation of probation and three history points for his conviction

for possession of crack cocaine.

3. The District Court Erred When It Denied Knight’s Request To Credit the Time

Knight Had Served in State Custody.

The district court erred when it did not reduce Knight’s sentence for the time

Knight served in state custody for obstruction of justice. The Guidelines instruct

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that where a defendant has a prior offense that is relevant to the instant offense and

resulted in an increase in the offense level of the instant offense, the district court

should (1) “adjust the [instant] sentence for any period of imprisonment already

served on the undischarged term of imprisonment [for the prior offense] if the

court determines that such period of imprisonment will not be credited . . . by the

Bureau of Prisons”; and (2) order that the instant sentence run concurrently with

the sentence for the prior offense. U.S.S.G. § 5G1.3(b). The Bureau of Prisons

will not credit Knight’s time served in state custody under the statute that governs

the Bureau:

Credit for prior custody.–A defendant shall be given credit toward

the service of a term of imprisonment for any time he has spent in

official detention prior to the date the sentence commences–(1) as a

result of the offense for which the sentence was imposed; or (2) as a

result of any other charge for which the defendant was arrested after

the commission of the offense for which the sentence was imposed;

that has not been credited against another sentence.

18 U.S.C. § 3585(b).

The United States concedes that the district court should have given Knight

credit for the time served in state custody based on his conviction for obstruction

of justice. The conduct related to the state conviction was used to enhance

Knight’s federal sentence, but Knight’s time served in state custody will not be

credited by the Bureau of Prisons toward Knight’s federal sentence. We vacate

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Knight’s sentence and remand with instructions that the district court adjust

Knight’s sentence for time served in state custody for his conviction for

obstruction of justice.

IV. CONCLUSION

We AFFIRM Knight’s conviction, VACATE his sentence, and REMAND

to the district court with instructions to reduce Knight’s sentence based on the time

he served in state custody.

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