[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 10626 Non

- Argument Calendar

________________________ D.C. Docket No. 5:16

- cr - 00017

- RH

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus MICHAEL JOSEPH WARD, Defendant

- Appellant.

______ __________________ Appeal from the United States District Court for the Northern District of Florida

________________________ ( January 16, 2018 ) Before JULIE CARNES , JILL PRYOR and HULL , Circuit Judges.
PER CURIAM: In this direct criminal appeal , defendant Michael Joseph Ward appeals his Case: 17-10626 Date Filed: 01/16/2018 Page: 1 of 302 convictions and sentence. Following a two

- day trial, a jury found Ward guilty on all three charges in the indictment. After thorough review of the briefs and record, we affirm.
I. BACKGROUND A. Two Warrant s for Ward’s Arrest for Failure to Appear On June 28, 2013, Ward was arrested for possession of two different controlled substances and drug paraphernalia in violation of Florida Statutes § 893.13

. Ward was in a pretrial release program. On December 2, 20 13, the Fourteenth Judicial Circuit Court (“ Florida c ircuit court ”) in Bay County , Florida issued a capias warrant for the arrest of “Joseph Ward ” because he fail ed to appear at a pretrial c onference related to his three d rug charges. Subsequently, this arrest warrant for “Joseph Ward” was recalled and reissued with a corrected name, “Michael Joseph Ward.” On November 14, 2014, a separate capias warrant was issued for Ward ’s
arrest after he failed to appear in court regarding a charge for misdemeanor cri minal mischief. Thus, Ward had two outstanding warrants for his arrest.
B. Search Warrant for Target Telephone
I n February 2016, local law enforcement agencies and the United States Marshals Service, Florida Regional Fugitive Task Force, (“USMS Task Force”) made efforts to locate fugitives in Bay County

.

Case: 17-10626 Date Filed: 01/16/2018 Page: 2 of 303 On February 3, 2016, Officer Richard Bagwell of the Bay County Sheriff’s Office (“ BCS O”) presented a swor n application for a s earch warrant under Florida law to the Florida court

. The application requested, inter alia , the authorized use of a cell

- site simulator to assist in locating a “Target Telephone” described as the cellular telephone with the number (850) 691

- 6225

. In support of the application, Officer Bagwell : (1) listed the above drug charges against Ward; (2) stated an active warrant for Ward’s arrest existed ; (3) indicated two confidential sources , including a family member, had advised that fugitive Ward was using the cellular number of (850) 691

- 6225; (4) represented this was the same telephone number as the contact number Ward provided to the courts ; and (5) indicated th e Target Telephone was believed to be used by Ward and would assist law enforcement in arresting Ward

. On February 3, 2016, t he Florida court gra nted the application and issued a search warrant limited to a 45

- day period from February 3, 2016 through March 18, 2016 for tracking the Target Telephone with cellular tele phone number (850) 691

- 6225

. During that 45

- day period, t he search warrant permitted BCSO to “install and use” such equipment as necessary to obtain “communication detail records,” “caller identification,” telephone number s dialed , and GPS locations in relation to cell towers

. This equipment included “pen register[s],” “trap and trace

Case: 17-10626 Date Filed: 01/16/2018 Page: 3 of 304 device(s),” and “cell

- site simulator technology.” 1 The search warr ant also ordered SPRINT Wireless to furnish various records pertaining to Ward’s cell ular tele phone and to assist in the installation and use of the various types of tracking equipment for that cellular telephone number

. C. Ward’s Arrest The next day (February 4, 2016), pursuant to the search warrant, the United States Marshals Service utilized a cell

- site simulator and determine d that the Target T elephone was located near a Dollar General store in Panama City, Florida. Members of the USMS Task Force went to the Dollar General and observed Ward outside

. When Ward saw the police, he fled on foot but police arrested him

. On his person, t he officers found a car key for a Ford Taurus, a Dollar General bag , and a black zipp er pouch containing a handgun. The Ford Taurus was located in
t he Dollar General parking lot. During Ward’s arrest, the officers approached Ward’s For d Taurus vehicle. The od or of marijuana emanat ed from the Ford Taurus , which was one reason the officers search ed the vehicle

. Ultimately, the officers also towed and inventoried the vehicle. T he officers found

— among other things

— four handguns, a variety of drugs, $6,700, and a locked safe in the vehicle

. Officers later obtained a search

1 Notably, t his is not a case where we must determine if the government can obtain cell

site simulator information without a search warrant. Here, the government obtained a search warrant. Case: 17-10626 Date Filed: 01/16/2018 Page: 4 of 305 warrant for th e safe, which contained another handgun and ammunition

. Thus, Ward had a total of six firearms: one on his person, four in the vehicle, and one in the safe.
D. Grand Jury Indictment On June 21, 2016 , a three

- count indi ctment charged Ward with : (1) possession with intent to distribute controlled substances, including marijuana, crack cocaine, fentanyl, methamphetamine, morphine, buprenorphine, diazepam, and heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), (b)(1)(D), (b)(1)(E), and (b)(2) (Count 1); (2) p ossession of six firearms 2 in furtherance of the drug
tra fficking crime charged in Count 1 , in violation of 18 U.S.C. § 924 (c)(1)(A)(i) (Count 2); and (3) possession of a firearm by a convicted felon, in violation of
1 8 U.S.C. §§ 922 (g)(1) and 924(a)(2) (Count 3).
E. Hearing on Motion to Suppress Before trial, Ward moved to suppress the evidence of the firearms and drugs.
T he district court conducted a two

- day evidentiary hearing on Ward’s motion where v arious officers testified. Officer Chris Nichol with the Panama City Police Department (“PCPD”)
h elped arrest Ward and found a firearm in the pouch Ward had on his person.

2 The six firearms were (1) an Armi Tanfoglio Giuseppe .25 caliber pistol, (2) a Beemiller, Inc. C9 9mm pistol (“Hi

- Point”) , (3) a Sturm, Ruger & Co., Inc. (“Ruger”), SR9 9mm pistol, (4) a Ruger P89 9mm pistol, (5) a Beretta 951 9mm pistol, and (6) an Arminius N

- 38 Titan Tiger .38 caliber pistol.

Case: 17-10626 Date Filed: 01/16/2018 Page: 5 of 306 Nichol testified that, upon arrival, officers identified a “ gray Ford sedan ” associated with Ward and observed a ma n pacing in front of the Dollar General
store who matched Ward’s description. O fficers arrested Ward and searched his
person , which yielded the car key and other items

. 3 Nichol approached the car and

s melled the odor of fresh and burnt marijuana coming from inside. Stephen O’Brien, a Special Investigator with the BCSO , also testified

. O’Brien arrived at the Dollar General after Ward was in custody and other officers had already opened the vehicle

. O’Brien also smelled marijuana upon approach ing the vehicle. O’Brien explain ed that, because “[t]he operator of the vehicle was [Ward]” and “the registration on the vehicle came back to [Ward]’s brother,” BCSO’s policy dictated a tow and inventory of the vehicle. O’Br ien obtained a search warrant for the safe. Inside, O’Brien found a firearm and ammunition. Officer Richard Bagwell of the BCSO Warrants Division also testified

. Officer Bagwell swore to the application for the search warrant fo r the Target Telephone with the cell phone number (850) 691

- 6225

. Bagwell testified that investigators obtained Ward’s telephone number from two witnesses, one being his brother, as well as from an affidavit in Ward’ s 2014 criminal mischief case.

3 W ard had the car key , the Dollar General bag, the black zippered pouch, and other items on his person when he was arrested. One of the officers placed all of the items found on Ward’s person on the curb. Officers did not know the black zippered pouch cont ained a handgun until they retrieved the pouch from the curb, which occurred approximately 30

– 40 minutes after Ward’s arrest. That handgun was the Armi Tanfoglio.

Case: 17-10626 Date Filed: 01/16/2018 Page: 6 of 307 After these three witnesses, the district court verbally denied Ward’s motion as to the use of the cell

- site simulator to locate the Target Telephone (in order to locate him) because : (1) t here was a valid arrest warrant for Ward , and the officers were try ing to find him; (2) two sources represented the cell phone number of (850) 691

- 6225 w as being used by Ward ; and (3) the officers procured a valid search warrant to locate and find the Target Telephone with that number and were entitled to infor mation about the location of that cell phone based on that search
warrant

. Likewise, even if the search warrant for the Target Telephone location

was later held invalid, the district court found that the officers procured a search warrant and acted under the “ go od

- faith exception ” described in United States v.
Leon , 468 U. S. 897, 104 S. Ct. 3405 (1984). On the second day of the evidentiary hearing, Officer Shane Tholcke , who

was employed by PCPD at the relevant time , also testified

. Upon arrival at the Dollar General , Tholcke noticed a gray Ford Taurus parked in the lot and observed Ward walking out of the store. Although Ward initially attempted to f lee, officers apprehended him. I ncident to the arrest, o fficers found a car key, a cellula r pho ne, and other items on Ward ’s person

. They also found a Dollar General bag and a black zippered pouch that contained a small firearm inside. Officer Tholcke also testified that, while approaching the trunk of the car, both he and Officer Kevin Doheny cou ld smell the odor of fresh marijuana

Case: 17-10626 Date Filed: 01/16/2018 Page: 7 of 308 emanating from the vehicle. After concluding that marijuana was likely inside, the officers entered the car using Ward’s key

. Various f irearm s and several drugs were found in the vehicle

. Officer Doheny’s testimony echoed that of Tholcke. Doheny testified that officers a rrested Ward. Standing by the trunk of the car , Doheny and Tholcke smelled the odor of fresh marijuana coming from the car. Doheny put his nose to the front

- passenger doo r and confirmed his suspicion. When Tholcke unlocked the car and opened the passenger door, the odor of marijuana became overwhelming. The officers found crack cocaine and methamphetamine in the ashtray , a po lice scanner on the dashboard, a Ruger P89 pistol between the driver’s seat and console, and, i n the passenger seat, a ba g filled with currency, drug paraphernalia, marijuana , and unidentified substances

. 4 At the conclusion of this testimony, t he district court denied Ward’ s motion to suppress the guns and drugs found in the vehicle

. T he district court found the officers’ testimony to be “particularly credible” and truthful. The district court verbally found that the officers had probable cause to search the car based solely on the odor of ma rijuana before they entered the vehicle

. 5 In its order dated

4 At trial, O’Brien testified to finding a Ruger SR9 pistol also in this same bag. 5 The district court found th e search of the vehicle was not a valid inventory search because the relevant police policy was a “completely open

- ended provision for searching as necessary for [the] safety of the vehicle [that did not ] limit discretion, and [ t hus was] not sufficient to say this [was] an inventory search.”

Case: 17-10626 Date Filed: 01/16/2018 Page: 8 of 309 September 28, 2016, the district court denied Ward’s motion to suppress “[f]or the reasons set out on the record of the hearing on September 6 and 26, 2016.”
F. Trial On October, 24, 2016, a two

- day trial commenced. 6 Before opening statements, the district court verbally denied Ward’s motion to reconsider the denial of his suppress ion motion

. Relevant to this appeal, Ward’s brother, John Thomas Ward (“ Jack ”) testified on the second day of tr i al. First, Jack testified about one of many letter s he received from Ward after the arrest

. Among other things, a June 19, 2016 letter stated , “I would never ask you to lie in a court of law.” It continued , “All I would like you to do, if asked about any involvement with the car, just plead the 5th, OK?” Jack understood this sentence to mean that Ward did not “want [him] to say anything about the car.” The letter also stated, “With your help, I can get the evidence suppressed, and get $6,700.00 in se ized currency from your car

— I’ll g ive you $2,000 if you help me.”

6 In addition to the officers who testified at the suppression hearing, the government presented testimony from: (1) Antonio Jones, a BCSO officer who physically apprehended Ward; (2) Richard T hore, a PCPD officer who searched the trunk of the Ford Taurus and located two additional firearms and the locked safe; (3) Special Agent A.C. Llorens, who handled chain of custody for evidence found in the vehicle; (4) Jeremiah Bortle, a crime lab analyst at the Florida Department of Law Enforcement (“FDLE”) who tested and quantified the drugs found in the vehicle; (5) Scott Goodlin, a senior forensic chemist at the Southeast Laboratory of the FDLE; (6) Michael Layland, President and CEO of Amtel, which is a company that provides phone services for inmates and records phone calls; (7) Patricia Simmons, a previous girlfriend of Ward; and (8) John Thomas Ward, defendant Ward’s brother.

Case: 17-10626 Date Filed: 01/16/2018 Page: 9 of 3010 Second, J ack identified two CDs containing recorded phone calls with Ward and testified that his brother called him f rom jail on several occasions. In one recorded call on February 4, 2016 , Ward told his brother, “Listen, you’re not implemented [sic] in anything, so, you just tell them you loaned it to me a few weeks ago or whatever. Don’t tell them anything, just say, you know, I need my
car.” At trial, Jack confirmed that he had not loan ed his brother the car a few weeks ago, but rather Ward purchased the car and registered it in Jack’s name.
In a second phone call, Ward pleaded with his brother: “Jack, I’m not asking
you

— I didn’t ask you to lie, but you don’t have to talk to them. If y ou don’t talk to them, you’re not lying.” Ward also instructed Jack , “Don’t answer any questions. If they ask you about this stuff, say I don’t know nothin’ about it.” In another recorded phone call on March 1, 2016, Ward cautioned his brother : “I was aff iliated with a conglomerate, and uhm, they’re at a loss of income right now because of my incarceration. Like I said, I’m not making much money
in here. And, I have no control over what goes on outside of this jail cell.” A fter Jack admitted to turning over ammunition evidence to the BCSO, Ward responded , “Y ou did? OK. Well, Jack, like I said, anything that happens from this point of time is out of my hands, OK? But, I instructed you what to do

— y ou don’t want to listen to me.”

Case: 17-10626 Date Filed: 01/16/2018 Page: 10 of 3011 The jury found Ward guil ty on all three charges. 7
G. Presentence Report and Objections Ward’s Presentence Report and addendum ( collectively the “ revised PSR”) ultimately assigned him a base offense level of 14 for Counts 1 and 3 , p ursuant to § 2K2.1( a)(6) of the Sentencing Guidelines

. The PSR ap plied (1) a two

- level increase under § 3C1.1 for obstruction of justice and (2) a two

- level increase under § 2K2.1(b)(1)(A) because the offense involved at least three but less than seven firearms

. As to Counts 1 and 3, the PSR calculat ed a total offense level of 18.
Count 2 carried a mandatory consecutive sentence of 60 months of imprisonment. The revised PSR calculated Ward’s criminal hist ory category as IV.
It assessed three criminal history points for Ward’s 1994 convictions in Brevard County Circuit Court for: (1 ) man slaughter; (2 ) leaving the scene of an accident ; (3) assignation to commit prostitution or lewdness; and (4) possession of cocaine, all conduct occurring on November 6, 1993. He was sentenced to 14 years on the manslaughter conviction and 5 years concurrent on the leaving the accident scene conviction. Later, Ward was granted conditional release but violated this release on January 28, 2002 and was re

- inca rcerated on February 22, 2002. Ward was released again on January 12, 2007 but violated his conditional release on

7 Although the indictment included heroin in Count 1 , t he district court removed heroin from the jury instructions and permitted either side to mention in closing argument that the instruction was omitted because “there wasn’t any evidence of heroin.”

Case: 17-10626 Date Filed: 01/16/2018 Page: 11 of 3012 October 1, 2007 and was re

- incarcerated on November 5, 2007. As to these 1994 convictions, Ward was not released from c ustody until September 18, 2009.
T he PSR assessed an additional three criminal history points for Ward’s other 1994 conviction in Brevard County Circuit Court for being a felon in possession of a firearm or concealed weapon on January 29 , 1993

. Ward was sentenced to 1 4 year s of imprisonment on that firearm conviction

. The above circumstances of conditional release s , violations, re - incarceration, and the final release date of September 18, 2009

— all listed in the revised PSR

— are the same for this conviction

. Based on a total offense level of 18 and a criminal history category of IV, the revised PSR calculated Ward’s advisory guidelines range as 41 to 51 months for Counts 1 and 3, with a consecutive 60 months as to Count 2. Ward filed w ritten objections to the initial PSR before it was revised

. Ward objected, inter alia , to the increase for obstruction of justice because he “explicitly told his brother not to lie in court

. ” Ward also objected to the six cr iminal history points for his various 1994 conviction s on the grounds that they fell outside the 15

- year look

- back period for counting prior convictions

. See U.S.S.G. § 4A1.2(e)(1) (providing for inclusion of any prior sentence exceeding one year and one month “that was imposed within fifteen years of the de fendant’s commencement of the

Case: 17-10626 Date Filed: 01/16/2018 Page: 12 of 3013 instance offense” or “that resulted in the defendant being incarcerated during any part of such fifteen

- year period.”)

. A problem with Ward’s argument, however, was that, due to his re

incarcerations, Ward was not released from custody on these 1994 convictions until September 18, 2009, which fell within the 15

- year window. See i d. § 4A1.2(k)(2 ) (A) ( instructing sentencing court to use “the date of last release from incarceration” when determining whether a prior sentence falls with in the 15

- year period , where the prior sentence involved revocation of probation, parole, supervised release, or a similar program ). Ward then argued that the government presented insufficient documents to verify the 2009 disposition date as his final release date

. Ward also argued the revocation s of his conditional release and re

incarcerations under Florida law do not count under § 4A1.2(k) for computing inclusion in the 15

- year period

. H. Sentencing Hearing The district court held a s entencing hearing on February 2 , 2017

. As to Counts 1 and 3, Ward objected to the two

- level increase for six firearms as “impermissible double counting” because of Ward’s § 924(c) conviction in Count 2

. The government argued that the § 924 (c) crime in Count 2 required only one firearm, whereas the enhancement to Counts 1 and 3 was designed to punish

Case: 17-10626 Date Filed: 01/16/2018 Page: 13 of 3014 offenders with more than three firearm s because of the increased danger. T he district cou rt overruled Ward’s objection.
A s to t he obstruction

- of

- justice increase , Ward objected and contended that he never told his brother Jack to lie to a court of law and that the context is different from other cases because they are siblings. The government emphasized the importance of Jack’s tes t imony at trial and argued that, among other things, Ward’s reference to the “cong lomerate” was a veiled threat. The district court found that Ward’s conduct went “well beyond saying don’t speak , ” but rather it was “a suggestion to provide false informatio n and a veiled suggestion that it might benefit the brother financially to withhold information or give false information, and that it might threaten his safety to tell the truth. ”
As to his criminal history , Ward argued that there was insufficient evidenc e to support the dates of the conditional release violations and re

- incarcerations on his 1994 convictions

. P robation O fficer Cynthia Wilson testified that she based the dates of the conditional release s , the re

- incarcerations, and the final release on (1) a docket sheet obtained directly from the Brevard County Clerk of Court’s Office , and (2) an “Inmate Release I nformation Detail” document obtained from t he website of the Flor ida Department of Corrections. On the website for the Florida Department of Corrections, Wilson obtain ed the “Inmate Release” document from

a secure area for law enforcement requiring “special permission to gain entry.”

Case: 17-10626 Date Filed: 01/16/2018 Page: 14 of 3015 Based on these documents, Wilson testified to the dates when Ward was in custody, conditionally released, and re

- incarcerated, and to the fact that Ward was not finally released until September 18, 2009. The “Inmate Release” document identified Ward by name, date of birth, social se curity number, and photograph. The district court overruled Ward’s objection, finding that there was

su fficient evidence to find that Ward was still in custody on these 1994 c onvictions in 2009. After the district court’s ruling, Ward then argued that conditional release does not qualify as a program listed under § 4A1.2(k) , and thus his re

incarcerations for violating that program should not be counted

. The district court overruled this objection

. The district court adopted the revised PSR’s calculation s of a total offense level of 18 a nd a criminal history category of IV, resulting in an advisory guidelines range of 41 to 51 months’ imprisonment for Counts 1 and 3 to run concurrently , with a 60

- month con secutive sentence for Count 2. The district court sentenced Ward to 41 months for C ounts 1 and 3 concurrently and a consecutive
60 months for Count 2. Ward filed a timely notice of appeal

. II. SEARCH AND SEIZURE On appeal, Ward challenges the district court’s den ial of his motion to
suppress the evidence of firearms and drugs found in the vehicle

. As to probable

Case: 17-10626 Date Filed: 01/16/2018 Page: 15 of 3016 cause, Ward asserts that the officers’ testimony

— that they smell ed marijuana outside of the car

— was not credible. 8
T he Fourth Amendment to the United States Constitution guarantees “ [t] he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures

. . . .” U.S. Const. am end. IV

. “[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment

— subject to only a few specifically established and well

- delineated exceptions.” Katz v. United
States , 389 U.S. 347, 357, 88 S. Ct. 507 , 514 (1967) ( footnotes omitted) ; s ee United States v. Holloway , 290 F.3d 1331, 1334 (11th Cir. 2002). One such exception , known as the automobile exception, permits “the police to condu ct a search of a vehicle if (1) the vehic le is readily mobile[,] and (2) the police have probable cause for the search.” United States v. Lindsey , 482 F.3d 1285, 1293 (11th Cir. 2007). The mobility requirement is satisfied by a showing that the automobile is operational. United States v. Watts , 329 F.3 d 1282, 1286 (11th Cir. 2003). In Ward’s opening brief, Ward concedes, as he must, that law

8 As to a district court’s ruling on a motion to suppress, “we review the district court’s factual findings for clear error, and its application of the law to the facts de novo .” United States v. Williams , 871 F.3d 1197, 1199 n.2 (11th Cir. 2017) (internal quotation mark s omitted) (quoting United States v. Bervald i , 226 F.3d 1256, 1262 (11th Cir. 2000)). In doing so, we construe the facts in the light most favorable to the prevailing party. Id.

Case: 17-10626 Date Filed: 01/16/2018 Page: 16 of 3017 enforcement officers may conduct a warrantless search of a vehicle when they have probable cause to believe it contains contraband. Probable cause for a vehicle search “exists when under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in the vehicle.” Lindsey , 482 F.3d at 1293 ( internal quotation marks omitted). It is also well establish ed that if a police officer detect s the odor of marijuana , this gives rise to probable cause. See United States v. Johns , 469 U.S. 478, 482, 105 S. Ct. 881, 884 (1985) (“After the officers came closer and detected the distinct odor of marihuana, they had probable cause to believe th at the v ehicles contained contraband.”); United States v. Tobin , 923 F.2d 1506, 1512 (11th Cir. 1991) (en banc) (“There is no doubt that the agent’s suspicions rose to the level of probable cause when, as the door stood open, he detected what he knew from his law enforcement experience to be the odor of marijuana.”) ; United States v. Lueck , 678 F .2d 895, 903 (11th Cir. 1982) (“At the point marijuana was smelled by [ an officer ], probable cause to believe a crime had been committed

. . . arose.”)

. In this case, law enforcement found Ward’s vehicle in a Dollar General parking lot as Ward was exiting the store. Nothing in the record indicates that the vehicle was not function al

. When Ward was arrested under the two outstanding
warrants , officers found the key to this vehicle in his pocket. As to probable cause, Officers Doheny and Tholcke testified that they smelled marijuana emanating from

Case: 17-10626 Date Filed: 01/16/2018 Page: 17 of 3018 the vehicle prior to unlocking or opening the doors. T he district court found this testimony to be “particularly credible” and truthful. A district court’s credibility determinations are entitled to substantial deference. See United States v. McPhee , 336 F.3d 1269, 1275 (11th Cir. 2003); United States v. Ramirez

- Chilel , 289 F.3d 744, 749 (11th Cir . 2002). On this p articular record, Ward has not established that the district court erred in finding the officers were credible or in determining that the officers had smelled marijuana before entering the vehicle and thus had probable cause to search the vehicle. Ward’s brief lists four discrete issues on appeal: (1) whether the district court erred when it determined law enforcement had probable cause to search the gray Taurus; (2) whether it erred by including the 1994 convictions in Ward’s cri minal history calculations; (3) whether it erred by applying a two

- level increase for the number of f irearms Ward possessed; and (4) whether it erred by applying a
two

- level increase for obstruction of justice. Although his brief does not identify it as an issue on appeal, Ward does briefly argue that the officers had no proper authority to use a cell

- site simulator to locate his tele phone and that without the simulator, the officers would not hav e located Ward or his vehicle. Wa rd ’s argument ignores that the officers actually obtained a search warrant to use the simulator to locate the Target Telephone

.

Case: 17-10626 Date Filed: 01/16/2018 Page: 18 of 3019 In his brief on appeal, Ward makes a general, but somewhat conclusory , argument that the search warrant was vague and that the 45

- day limitation period applied only to SPRINT Wireless. However, this 45

- day argument is belied by the fact that the search warrant clearly provides to the contrary above the signature line, stating: “This Warrant, unless sooner renewed or terminated by a court of competent jurisdiction, will terminate forty

- five (45) days from the date of i ts beginning operation

. . . .” And the Target Telep hone was located the next day. Even assuming Ward properly preserved a simulator

- search

- warrant issue,

w e need no t address any potential vagueness or other issues about the search warrant because , in any event, the officers had probable cause to search the vehicle based on the smell of marijuana alone . Moreover , in locating Ward, the officers acted in good faith in reasonable reliance upon the search warrant for the Target Telephone

. See Leon , 468 U.S. at 922, 104 S. Ct. at 3420; United States v. Martin , 297 F.3d 1308, 1313 (11th Cir. 2002).
III. CRIMINAL HISTORY Ward also challenges the district court’s criminal history calculations based

on two prior 1994 convictions in the PSR , which we discussed above

. 9

9 For the first time on appeal, Ward also argues that his 1994 felon

- in

- possession conviction should not be counted as a prior conviction because it does not fall into the “c ategory” of state offenses qualifying for condit ional release under Florida law. S ee Fla. Stat. § 947.1405. However , the record establishes that Ward received conditional release from state incarceration for this state offense in Florida, and thus Ward, at a minimum, has not shown plain error. See

Case: 17-10626 Date Filed: 01/16/2018 Page: 19 of 3020 Because sentencing issues present mixed questions of fact and law, we review a district court’s factual findings for clear error and their application of the
G uidelines to those facts de novo

. United States v. Gupta , 572 F.3d 878, 887 (11th Cir. 2009); United St ates v. Bradford , 277 F.3d 1311, 1312 (11th Cir. 2002). A. Evidentiary Basis for the Prior Conviction s “The government bears the burden of establishing the facts necessary to support a sentencing enhancement by a preponderance of the evidence.” United States v. Dimitrovski , 782 F.3d 622, 628 (11th Cir. 2015). A sentencing court “may consider all relevant information, regardless of its admissibility under the rules of evidence.” United States v. Onofre

- Segarra , 126 F.3d 1308, 1310 (11th Cir. 199 7). Relevant information includes evidence presented during the sentencing hearing. United States v. Louis , 559 F.3d 1220, 1224 (11th Cir. 2009). In this case, t he district court did not err in finding that the documents and testimony about Ward’s prior 1994 convictions were amply sufficient to establish the length of his incarceration . Ward’s probation officer first identified and explained how she obtained and reviewed two documents about Ward’s 1994 convictions : (1) the docket sheet sent to her directly from the Brevard County Clerk of Court’s Office ; and (2) the “Inmate Release Information Detail”

United States v. Aguilar

- Ibarra , 740 F.3d 587 , 592 (11th Cir. 2014) (outlining plain

- error standard). Case: 17-10626 Date Filed: 01/16/2018 Page: 20 of 3021 document, which she directly obtained from the database of the Florida Department of Corrections through a secure login portal

. The database e ntry identified Ward by name, date of birth, social security number, and photograph. Likewise, the “Inmate Release” document outlined all of the specific dates of
War d ’s incarceration history and his final release date on September 18, 2009.
It demonstra ted that Ward was in custody during the relevant time per iods and that he was re

- incarcerated for conditional release violations on the dates indicated in the PSR

. The district court also found that “[t]here are no other convictions that he [Ward] would have been [in prison] on in this period of time. ” T he district court had sufficient evi dence to find that Ward was incarcerated on his 1994 convictions until 2009

. Ward has not shown these find ings were clearly erroneous.
B. Prior Sentence s under §§ 4A1.1 and 4A1.2 Section 4A1.1 of the G uidelines instructs the sentencing court to add three points to a defendant’s criminal history category for each “prior sentence of imprisonment exceeding one year and one month. ” U.S.S.G. § 4A1.1(a). 10 Application note 1 to § 4A1.1 instructs the sentencing court not to include “[a] sentence imposed more than fifteen years prior to the defendant’s

10 A “sentence of imprisonment” is defined as “a sentence of incarceration and refers to the maximum sentence imposed.” Id. § 4A1.2(b). Included in this calculation are “[a]ny prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the def endant’s commencement of the instance offense” and “any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen

- year period.” Id. § 4A1.2(e)(1).

Case: 17-10626 Date Filed: 01/16/2018 Page: 21 of 3022 commencement of the instant offense

. . . unless the defendant’s incarceration extended into this fifteen

- year period.” Id. § 4A1.1 cmt. n.1; see also id. § 4A1.2 (e) (discussing applicable time period for prior sentences )

. Ward’s incarceration period extended to September 18, 2009, which was within 15 years of Ward’s February 4, 2016 offense conduct in this case. When a prior offense involves a revocation of probation, parole, s upervised release, or similar program, the sentencing court must look to “the date of last release from incarceration” to determine the cutoff for the prior sentence of imprisonment. See i d. § 4A1.2(k)(2)(A ) ; see United States v. Shannon , 449 F.3d 1146, 1148 (11th Cir. 2006) (“[T]he court ordinarily should count a conviction t hat is imposed, and on which the defendant is paroled, outside the window, when the defendant later

— within the window

— is incarcerated for breaching the conditions of his parole.” (internal quotation marks omitted) ). Here, the instant offense occurred on F ebruary 4, 2016. T he applicable 15

- year look

- back period for prior sentences of imprisonment began on February 4,
2001. As to his 1994 convictions, Ward was (1) sentenced to 14 years, (2) granted conditional release prior to 2002, (3) remanded for a violation of conditional release in 2002, (4) granted conditional release again in 2007, (5) remanded again for a violatio n of conditional release in 2007 , and (6) ultimately released in 2009. Using his final release date, Ward’s 1994 convi ctions properly fell within the 15

-

Case: 17-10626 Date Filed: 01/16/2018 Page: 22 of 3023 year period under § 4A1.2(e)(1). Thus, the district cour t did not err by including the 1994 convictions in Ward’s criminal history calculations. Lastly, Ward contends that Florida’s conditional release is not like the

o ther programs listed in § 4A1. 2(k) and thus, even if the revocations were
accurate ly established in his criminal history , should not function to extend the applicable period for pr ior sentences of imprisonment. Ward’s main arguments are that Florida condi tional release is not included in the programs listed in § 4A1.2(k)(2) and that the revocation of conditional release lacks the judicial intervention required by the other programs listed in § 4A1.2(k)(2). However, in United States v. Wright , 607 F.3d 708 (11th Cir. 2010), this Court addressed and rejected a similar argument discussing Florida’s “community control” program and found that the enumerated forms of supervision located in § 4A1.2(k) are not exhaustive. Id. at 713. In Wright , we explained: The Sentencing Guidelines must be interpreted in accordance with federal law, even when the Guidelines refer to some event occurring in state court. The Guidelines apply to prior convictions from all fifty states, in addition to federal, foreign, tribal a nd military courts. As such, there is inevitably variation in the terminology utilized by the individual jurisdictions. Therefore, we look to the substance of the punishment, rather than its title. Id. at 714 (citations omitted)

.

Case: 17-10626 Date Filed: 01/16/2018 Page: 23 of 3024 Our focus, then, is the substance of the program. Much like the other s listed in § 4A1.2(k)(2), Florida’s conditional release program allows inmates to “be released under supervision subject to specified terms and conditions,” and can be revoked if terms are not met. See Fla. Stat. § 947.1405(2). Indeed, even the Florida Supreme Court has described conditional release as
an “ extra post

- prison probation

- type program.” Evans v. Singletary , 737 So. 2d 505, 507 (Fla. 1999) (second emphasis added). As to its revocability, a defendant on Florida conditional release is entitled to notice from and a hearing before the Florida Commission on Offender Review. Fla. Stat. §§ 947.01, 947.141. If the defendant elects to proceed with a hearing, he or she must be informed both orally a nd in writing of the alleged violation and the right to be represented, to be heard, to compel the attendance of witnesses, to produce documents, and to access all evidence against him or her

. See i d. § 947.141 (3)

. This procedure is sufficiently similar t o other judicially dictated revocations.
T he district court did not err in determining that conditional release is materially similar to the other programs listed in in § 4A1.2(k)(2)

. 11 Thus,

11 The district court explained its position: “ Parole is listed, and they didn’ t list community release, and whatever somebody els e tries to call it tomorrow won’ t be l isted either, but this counts.”

Case: 17-10626 Date Filed: 01/16/2018 Page: 24 of 3025 we conclude that the district court did not err by including W ard’s 1994 convictions in his crim inal history calculations.
IV. FIREARMS ENHANCEMENT Ward next argues against the application of a two

- level increase under § 2K2.1(b)(1)(A) for an offense involving at least three, but less than seven, firearms. Specifically, Ward contends that an increase based on multiple firearms constitutes “impermissible double counting” because of his separate conviction under 18 U.S.C. § 924(c) for using, carrying, or possessing a firearm in relation to a drug

- trafficking c rime. Ward relies heavily on application note 4 to § 2K2.4, which provides the following in relevant part: If a sentence under this guid eline is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense characteristic for possession, brandishing, use, or discharge of an explosive or firearm when d etermining the sentence for the underlying offense. A sentence under this guideline accounts for any explosive or weapon enhancement for the underlying offense o f conviction, including any such enhancement that would apply based on conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct). Do not apply any weapon enhancement in the guideline for the underlying offense, for example, if (A) a co

- defendant, as part of the jointly undertaken criminal activity, possessed a firearm different from the one for which the defendant was convicted under 18 U.S.C. § 924(c); or (B) in an ongoing drug trafficking offense, the defendant possessed a firearm oth er than the one for which the defendant was convicted under 18 U.S.C. § 924(c). U.S.S.G. § 2K2.4 cmt. n.4.

Case: 17-10626 Date Filed: 01/16/2018 Page: 25 of 3026 This Court reviews a claim of double counting de novo

. See United States v. Flanders , 752 F.3d 1317, 13 39

– 40 (11th Cir. 2014). “Impermissible d ouble counting occurs only when one part of the Guidelines is applied to increase a defendant’ s punishment on account of a kind of harm that has already been fully accounted for by application of another part of the Guidelines.” United States v. Webb , 665 F.3d 1380, 1382 (11th Cir. 2012) ( internal quotation marks omitted) ; United States v. Dudley , 463 F.3d 1221 , 1226

– 27 (11th Cir. 2006)

. Double counting is permitted if the Sentencing Commission “intended that result and each guideline section in ques tion concerns conceptually separate notions relating to sentencing.” Flanders , 752 F.3d at 1340 (internal quotation marks omitted) ; Dudley , 463 F.3d at 1227 (internal quotation marks omitted)

. “ Absent a specific direction to the contrary, we presume that the Sentencing Commission intended to apply separate sections cumulatively. ” Webb , 665 F.3d at 1382 (internal quotation marks omitted)

. Here, we conclude t he number of weapons involved in the underlying offense to a § 924(c) conviction is a separate type of offense conduct than that punished by § 924(c) itself. See United States v. Pineda , 770 F.3d 313 , 320

– 21 (4th Cir. 2014); United States v. Terrell , 608 F.3d 679, 683

– 84 (10th Cir. 2010).
T he § 2K2.1(b)(1) enhancement relates to a feature of the u nderlying offense that provides the basis for a § 924(c) conviction

— namely, quantity

— whereas the

Case: 17-10626 Date Filed: 01/16/2018 Page: 26 of 3027 § 924(c) conviction and sentence pertain to the particular manner in which t he defendant used the firearm to effectuate the underlying offense. Terrell , 608
F .3d at 684. Specifically, t he conduct at issue under § 924(c) is punishing the defendant for “putting a firearm to a prohibited purpose , ” like conduct in furtherance of a crime or violence or drug

- trafficking. Pineda , 770 F.3d at 321. On the other hand, § 2K2.1(b) “reflects the Sentencing Commission’s recognition that a defendant whose offense involved three or more firearms is more dangerous than a defendant who was only accountable for one or two firearms.” Id. (noting defendant whose offense involves more firearms is “more dangerous”). In short, § 924(c) pertains to particular unlawful uses of a firearm while § 2K2.1(b)(1) pertains to the number of firearms involved; these two enhancements punish different typ es of conduct

. Id. Accordingly, the application of both a mandatory sentence under § 924(c) and an of fense

- level increase under § 2K2.1(b) does not amount to “impermissible double counting.” See id. ; Terrell , 608 F.3d at 683 . The number of weapons involved in the offense underlying a § 924(c) conviction is a separate “kind of harm ” than the possession or use of a firearm in relation to specific criminal conduct

. See Asante , 782 F.3d at 648 ; Cubero , 754 F.3d at 894; Webb , 66 5 F.3d at
1382 ; Dudley , 463 F.3d at 1226

– 27. W e conclude that the district court properly

Case: 17-10626 Date Filed: 01/16/2018 Page: 27 of 3028 applied a two

- level increase for an offense involving more than three firearms under § 2K2.1(b) (1)(A)

. V. OBSTRUCTION OF JUSTICE Finally, Ward contends that the district court improperly applied a two

- level increase for obstruction of justice under § 3C1.1

. 12 Specifically, he contends that communications with his brother, which were discussed at trial, were insufficien t to support this enhancement. In its response brief, the government points to these communications as evidence that Ward attempted to influence his brother

— both financially and by the use of veiled threats

— to lie to law enforcement and/or to not testify against Ward

. Section 3C1.1 of t he Sentencing G uidelines provides: If (1) the defendant willfully obstructed or im peded, or attempted to obstruct or impede, the administration of justice wit h respect to the investigation, prosecution, or sentencing of the instant offense of convictio n, a nd (2) the obstructive conduct related to (A) the defendant’s offense of conviction a nd any relevant conduct; or (B) a closely related offense , increase the offense level by 2 levels. U.S.S.G. § 3C1.1. Obstructive conduct can include, inter alia , “threatening, intimidating, or otherwise unlawfully influencing a

. . . witness

. . . directly or indirectly, or attempting to do so.” Id. § 3C1.1 cmt. n.4(A ); see United States v.

12 We review the district court’s finding that a defendant ob structed justice for clear error. Unites States v. Ndiaye , 434 F.3d 1270, 1303 (11th Cir. 2006); see United States v. Bradberry , 466 F.3d 1249, 1253 (11th Cir. 2006).

Case: 17-10626 Date Filed: 01/16/2018 Page: 28 of 3029 Hesser , 800 F.3d 1310, 1332 (11th Cir. 2015) (finding obstruction where husband attempted to “go over the story line” with his wife in a tax evasion case); Bradford , 277 F.3d at 1315 (“Clearly it was not error for the sentencing judge to find [defendant’s threat ening inmate witnesses] was an attempt to obstruct justice

. . . .”) ; United States v. Amedeo , 370 F.3d 1305, 1319 (11th Cir. 2004) (finding that, at a minimum, the defendant’s urging a potential witness to lie constituted “unlawfully influencing” a witnes s under § 3C1.1); United States v. Garcia , 13 F.3d 1464, 1471 (11th Cir. 1994) (holding district court finding that the defendant obstructed justice by asking

a witness not to speak to law enforcement was not clearly erroneous)

. This provision applies not only at trial and during sentencing but also during th e course of the investigation. See U.S.S.G. § 3C1.1. In this case, tria l evidence established numerous instances of Ward’s attempting to threaten, intimidate, or otherwise unlawfully influence his brother’s testimony and cooperation with law enforcement. See id. First, in his June 19, 2016 letter, Ward instructed his brother to invoke his Fifth A mendment right against self

- incrimination if he was questioned about his involvement with the Ford Taurus. Second, Ward offered Jack $2,000 for his coo peration

.

Case: 17-10626 Date Filed: 01/16/2018 Page: 29 of 3030 Third, in the February 4, 2016 phone call, although Ward had previously purchased the Ford Taurus in Jack’s name, Ward again coached his brother to “ tell them you loaned it to me a few weeks ago or whatever”

an d “[d]on’t tell them anything.” Fourth, in another phone call to his brother , Ward implored , “Don’t answer any questions. If they ask yo u about this stuff, say I don’t know nothin’ about it.” Fifth, and perhaps most concerning, Ward mentioned in a March 1, 2016 phone call that he was affiliated with a criminal “conglomerate” and exclaimed that he had “no control over what goes on outside o f [his] jail cell.” When he learned that his brother had turned over evidence to law enforcement, he repeated, “ Well, Jack, like I said, anything that happens from this point o f time is out of my hands, OK?” Ward’s communications via letters and phone calls to his brother, whose testimony was significant in uncovering Ward’s criminal conduct, was clearly meant to obstruct justice. We conclude that the district court did not clearly err by applying a two

- level increase under § 3C1. 1

. VI. CONCLUSION For all of these reasons, we affirm the district court’s denial of Ward’s motion to suppress and affirm Ward’s total sentence of 101 months

. AFFIRMED. Case: 17-10626 Date Filed: 01/16/2018 Page: 30 of 30