NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No. 08

- 4887

_______________ UNITED STATES OF AMERICA

v. SANN THACH ,

Appellant

_______________ On Appeal from the United States District Court F or the Eastern Dist rict of Pennsylvania (D.C. Criminal Action No. 2

- 07

- cr - 00 08 7

- 0 0 1) District Judge: Honorable Eduardo C. Robreno

_______________ Submitted Under Third Circuit LAR 34.1(a)

November 15, 2010

_______________ Before: AMBRO , FISHER, and GARTH , Circuit Judges

(Opinion filed : January 5, 2011 )

_______________ OPINION

_______________ AMBRO, Circuit Judge In August 2008, Sann Thach was found guilty after a jury trial of conspiracy to possess with intent to distribute M DMA and methamphetamine, in violation of 21 U.S.C. § 846, and possession of MDMA and methamphetamine with intent to distribute, in2

violation of 21 U.S.C. § 841(a)(1). On appeal, he argues that the District Court erred in denying his motion to suppress the evidence of drugs and U.S. currency . He challenges as well his sentence. We affirm the District Court’s rulings on both issues. I. Background In January 2007, the Bureau of Immigration and Customs Enforcement (“ICE”) was investigating an ecstasy drug “ ring” between Canada and Philadelphia. Drugs were shipped from Canada to Philadelphia and then distributed to other regions. Agents had placed Nahn Le’s house in Philadelphia under surveillance because they had information that she had recently received a large shipment of ecstasy pills. One evening, while surveilling the location, the agents’ suspicions were aroused by a car parked nearby with North Carolina license pl ates. Later that evening the a gent s saw three people leave the Le house and approach the car. One of them, Thach, had a plastic bag, which he placed in the trunk. The three drove away, Thach in the backseat, his co

- defendant, Kareem Martin, in the passenger seat, and the third person, Karisa Hilley, driving. The agents called for local police backup. Officer Kelly responded, followed the car, and stopped it after it exceeded the speed limit by 25 miles per hour. Shortly thereafter, Officer Fredericksdorf arrived.
He removed Thach from the car for questioning while Officer Kelly spok e with Hilley. From his conversation with Hilley, Kelly learned that the car was rented to someone else, and Hilley was not an authorized driver. Fredericksdorf did a pat down of Thach, during which he removed a bundle of cash. When asked from where the y were coming, all three occupants of the car gave the officers a different story. Suspecting that3

there were drugs in the car, Officer Kelly asked Hilley if he could search the car. Hilley agreed and signed a consent form. Kelly then searched the trunk and found two cereal boxes filled with ecstasy pills. Thach was arrested and the evidence was given to the federal agents. Prior to trial, Thach moved to suppress the physical evidence on the ground that the traffic stop and frisk were illegal, and tha t Hilley’s consent to search was invalid. The District Court denied the motion. Prior to trial, Thach , in concert with his then

- girlfriend , sent false IRS filings to the U.S. Attorney’s Office . The forms were issued in the names of the District Judge assigned to his case, the U.S. Attorney, and the prosecutor in the U.S. Attorney’s Office ( collectively, the “ G overnment officials ”)

. The forms falsely stated that each of the G overnment officials had earned $200,000,000 in 2008. Thach filed these docume nts , accompanied by an “affidavit of fact s , ” with the District Court, claiming he was entitled
to recover a total of $600,000 ,000 from the G overnment officials

. Phone calls between Thach and his girlfriend revealed that he intended to use this scheme as a way to get his case dismissed and to get money from the G overnment. ( T h is act, not uncommon, is

s ometimes referred to as a “redemption scheme.” ) The District Court dismissed these claims. Thach was subsequently convicted by a jury of the crimes noted a bove . At sentencing, the District Court calculated the advisory Guidelines ’ range to be 262 to 3274

months. 1 It sentenced Thach to 262 months’ imprisonment, five years of supervised release, a $1,000 fine , and a $200 special assessm ent. Thach now objects to the two

- level enhancement for obstruction of justice and claims that the District Court should have imposed a below

- Guidelines sentence. For the reasons that follow, we affirm th e District Court’s denial of Thach’s motion to suppress and his sentenc e. 2
III. Discussion A. Motion to Suppress We review the District Court’s order denying the motion to suppress for “clear error as to the underlying facts, but exercise plenary review as to its legality in light of the court’s properly found facts.” Unit ed States v. Lafferty , 503 F.3d 293, 298 (3d Cir. 2007) (quoting United States v. Givan , 320 F.3d 452, 458 (3d Cir. 2003)). Thach argues that the o fficers engaged in a series of unlawful actions, each of which demands suppression of the physical evidence found in the car and on Thach’s person. He claims that they did not have a legal basis to stop the car. Nor, he urges, did Off icer Fredericksdorf have a lawful basis to frisk him and remove the cash. Finally, he argues that the consent to search the car was involuntary. We disagree with each assertion

.

1 Thach’s base offense level was 34 and his criminal history category was IV

.
2 The District Court had ju risdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 1291 and 18 U.S.C. § 3742.5

The car in which Thach was riding was stopped for speeding. Any violation of the traffic code provides a ground for a legitimate traffic stop, “even if the stop is merely pretext for an investigation of some other crime.” United States v. Mosley , 454 F.3d 249 (3d Cir. 2006) (interpreting Whren v. United States , 517 U.S. 806, 813 (1996 )) . Pursuant to a valid stop, a police officer may order the occupants

— including passengers

— out of the car “pending comp letion of the stop

. ” Maryland v. Wilson , 519 U.S 408 , 415 (1997).
T he District Court credited the o fficer ’ s testimony that, by following the car for some time, he observed that the car was traveling about 80 miles per hour, 25 miles per hour over the li mit. Our review of the District Court’s factual findings that are based on credibility determinations proceeds with great deference, particularly where the District Court’s “decision is based on testimony that is coherent and plausible, not internally inc onsistent and not contradicted by external evidence.” United States v. Igbonwa , 120 F.3d 437, 441 (3d Cir. 1997). In this situation, we do not believe that the Court was clearly in error . Thus, we conclude that the initial traffic stop and questioning of Thach was lawful. After a traffic stop, an officer may frisk a person whom he has ordered out of the car if he has a reasonable suspicion that the person is armed. See Pennsylvania v.
Mimms , 434 U.S. 106, 111

- 1 3 (1977) (per curiam). Reasonable suspic ion is formed when, under the totality of the circumstances, the officer reasonably believed his safety was threatened. Terry v. Ohio , 392 U.S. 1, 27 (1968). The totality of the circumstances includes an officer’s “knowledge, experience, and common sense judgments about human behavior.” United States v. Robertson , 305 F.3d 164, 167 (3d Cir. 2002). Here,6

we believe that there was ample evidence to establish the reasonableness of Officer Fredericksdorf’s suspicion that Thach was armed and dangerous. He k new the occupants of the car were suspects in a drug investigation. 3 Based on his training and experience, he also knew that guns often accompanied drugs . B oth officers became aware that the occupants’ stories were inconsistent and that none of them w as authorized to drive the car. Finally, in testimony credited by the District Court, Officer Fredericksdorf explained that Thach’s furtive conduct during the stop suggested that he might be attempting to stash something. In this context, “a reasonably prud ent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry , 392 U.S.
at 27. Nor do we believe that seiz ing the cash was unlawful. N on - weapon contraband will not be suppressed where an officer feels a “hard, bulky object” and seizes it on the belief it is a gun. See, e .g. , United States v. Edwards , 53 F.3d 616, 619 (3d Cir. 1995). In this case, Officer Fredericksdorf testified that he felt a brick

- like bulge, which he removed because he did no t know for certain whether it was a weapon. He testified that he thought it could have been a gun in a square holster. The District Court was reasonable in crediting this testimony. Here, as in Edwards , the o fficer “could reasonably

3 This information was relayed to them from the ICE agents, who had reliable information that Le had received a shipment of drugs and had observed Thach leaving Le’s home with a bag. As we have held elsewhere, “[ i ] t is well settled that reasonable suspicion can be based on information gathered from another person.” Robertson , 305 F.3d at 168.7

have confused the sq uare, bulky mass . . . for a small handgun sheathed in a square, leather holster.” Id. Finally, we reject Thach’s claim that Hilley’s consent to search was not voluntary. Schneckloth v. Bustamonte , 412 U.S. 218 (1973) , requires that the totality of the circumstances demonstrate that consent was voluntary. The District Court also credited testimony that Hilley’s consent was knowing and voluntary. We agree. T here w as none of the signature signs of coercion, such as a display of force, au thority, or int imidation. The o fficers did not draw their guns, handcuff Hilley, or deceive or intimidate her into signing the conse nt form. Nothing in the record suggests that Hilley’s ability to
understand the consequences of consent was compromised by her background , education, or intelligence. Thus, we conclude that the o fficers’ actions were consistent with Fourth
Amendment requirements . Accordingly, we affirm the District Court ’ s denial of the motion to suppress the cash seized from Thach and the drugs seized from the car. B. The Sentence We review a District Court’s application of the now advisory Sentencing Guidelines fo r reasonableness under an abuse

- of

- discretion standard. Gall v. United
States , 55 2 U.S. 38, 46 (2007); United States v. Booker , 543 U.S . 220 , 261 (2005). For a sentence to be procedurally reasonable, sentencing judges must follow a three

- step sentencing process: (1) calculate a defendant ’ s sentencing range under the Guidelines ; (2) rule on motions for departures of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines ’ calculation; and (3)8

“ exercise their discretion by considering the relevant [18 U.S.C.] § 3553(a) factors in setting the sentence they impose regardless whe ther it varies from the sentence calculated under the Guidelines.” United States v. Gunter , 462 F.3d 237, 247 (3d Cir. 200 6 ) (internal citations and quotation marks omitted)

. “[ I]f the dist rict court’ s sentence is procedurally sound, we will affirm it un less no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” United States v. Tomko , 562 F.3d 558, 56 8 (3d Cir. 2009) ( en banc )

. As noted above, Thach argues that the District Court erred in applying a two

- point enhancement for obstruction of justice and for not imposing a below

- Guidelines sentence in light of his “cooperation.” We disagree. Section 3C1.1 of the Guidelines provides for a two

- level enhancement for obst ruction of justice. His conduct falls squarely within what is contemplated by that provision. As its a

pplication n ote points out, examples of obstruction of justice include “producing or attempting to produce a false, altered, or counterfeit document or record during an official investigation or judicial proceeding” and “providing materially false information to a judge.” U.S.S.G. § 3C1.1 app. 4. It also includes any “other conduct prohibited by obstruction of justice provisions under Title 18, United S tates Code.” Id. Section § 1503 of Title 18 prohibits an attempt to influence improperly or intimidate a federal prosecutor or judge. The record shows that Thach engaged willfully in this scheme and that he believed it would succeed. The District Court did not abuse its disc retion in applying a § 3C1.1 enhancement.9

Thach also claims that he was entitled to a two

- point reduction for acceptance of responsibility pursuant to § 3E 1 .1 of the Guidelines. 4 He explains that his defense at trial was inhibited because of prior proffer sessions with the Government, and therefore he should be awarded a two

- point reduction, presumably to make up fo r this alleged limitation. The acceptance

- of

- responsibility adjustment is typically applied to those defendants who p lead guilty, and “is not intended to apply to a defendant who puts the government to its burden of proof at trial.” Id. § 3E1.1 app. 2 . In any case, only Thach is to blame for abort ing his cooperation with the Government. A two

- point reduction for
accep tance of responsibility is also inconsistent with the obstruction

- of

- justice enhancement, as the latter demonstrates “that the defendant has not accepted responsibility for his criminal conduct.” Id. app. 4. The District Court did not err, plainly or oth erwise, by not applying the two

- point reduction here

. In a related claim, Thach suggests that the District Court’s decision not to impose a below

- Guidelines sentence was unreasonable. On appeal, he argues the District Court should have departed downwa rd under § 5K2.2(a) of the Guidelines, which allows departur es in calculating the G uideline s’ range for “mitigating circumstance[s] . . . not adequately taken into consideration by the Sentencing Commission . . . to advance the objectives set forth in 18 U .S.C. § 3553(a)(2).” Id. § 5K2.0 (a)(1) . Thach asserts as a mitigating circumstance that he did cooperate to some extent (citing the proffer sessions), which should receive some credit even though he ultimately proceeded to trial. We are not persuaded.

4 Thach did not argue this claim at sentencing and so we rev iew it for plain error.10

In the first instance, Thach confuses departures and variances. At sentencing, Thach did not make a formal motion for a § 5K2 departure. Rather, he argued for a variance (which draws on the 18 U.S.C. § 3553(a) factors ) based on his attempted , but abort ed , cooperation and because his co

- defendants received lower sentences. Insofar as Thach means to attack the Dis trict Court’s failure to depart at step two of our sentencing analysis under Gunter , 462 F.3d at 247, his argument fails , as w e lack jurisdicti on over a District Court’s decision not to exercise its discretion to depart from the advisory Guidelines. United States v. Minutoli , 374 F.3d 236, 239 (3d Cir. 2004). We also believe that the District Court’s assessment of the § 3553(a) factors, and
i ts decision not to vary outside the advisory Guidelines’ range, was reasonable. Though a District Court certainly has the discretion to vary outside the Guidelines, Gall , 552 U.S. 38, it is under no obligation to do so. Here, the Court applied a sentence at the low end of the sentencing range. It considered on the record Thach’s arguments in connection with § 3553(a). It noted that, although his co

- defendants had received lesser sentences based on their substantial assistance, Thach was not a similarly situated defendant. Unlike his

co - defendants, the sentencing C ourt believed that Thach had not accepted responsibility or evidenced a likelihood of rehabilitation. We conclude that the District Court did not commit procedural error in sentencing.
Nor w as the sentence substantively unreasonable in light of the Court’s careful consideration of the § 3553(a) factors. W e thus affirm Thach’s sentence.