author: COLLOTON, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lemarcus Arthur WRIGHT, Defendant-Appellant.
    No. 15-3237
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 23, 2016
    Filed: December 23, 2016

      Counsel who represented the appellant was David E. Mullin of Cedar Rapids, IA.
    Counsel who represented the appellee was Ashley Corkery, AUSA, of Davenport, IA.
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
   COLLOTON, Circuit Judge.

Lemarcus Wright entered a conditional plea of guilty to a drug trafficking charge, reserving his right to appeal an order of the district court denying his motion to suppress evidence seized during and after a search of his vehicle. Wright has not established a violation of his rights under the Fourth Amendment, so we affirm.

The charge against Wright arose from an investigation of one Victor Brown by the Davenport, Iowa police department. In December 2014, a confidential informant made a controlled purchase of crack cocaine from Brown. A week later, on December 11, the informant notified police that Brown and he would be leaving for Chicago from Brown’s residence at seven o’clock that evening with an unknown black male from Clinton, Iowa, to purchase crack cocaine. The informant said that he was supposed to drive the unknown black male’s dark-colored sport utility vehicle with Clinton County , license plates. Police later identified the unknown companion as Wright.

Based on the informant’s report, officers conducted surveillance near Brown’s residence beginning at approximately six o’clock. Shortly after 6:30 p.m., police saw a dark-colored SUV with Clinton County license plates approach the home. Brown left the home and entered the SUV. Officers followed the vehicle until it merged onto eastbound Interstate 80 and then discontinued surveillance.

Officers in Davenport reestablished surveillance of an area on Brown’s likely return route at 12:45 a.m. on December 12. At approximately 1:30 a.m., officers observed the same dark-colored SUV traveling south on Highway 61 and followed it to Brown’s residence. There, Brown and Wright exited the vehicle, walked to the back, opened the rear doors, and rummaged around for several minutes. Brown then entered his residence for a short time; when he returned, both men got back into the SUV. A few minutes later, Brown left the vehicle with a duffel bag and reentered his residence. There is no evidence that the confidential informant accompanied Brown and Wright in the vehicle.

Wright departed Brown’s residence in the SUV. Officers followed as Wright made two stops for fifteen to twenty minutes each, without anyone entering or exiting the vehicle, and then arrived at the parking lot of a multi-unit apartment complex. Officers were familiar with the apartment complex from other drug investigations at that address. After waiting for several minutes, the surveillance officers asked a uniformed officer to approach the SUV in a marked squad car and identify the vehicle’s occupants.

The uniformed officer drove onto the property, positioned the squad car behind Wright’s SUV, and shined a spotlight onto the back window. The officer and Wright exited their respective vehicles, and a conversation ensued. Wright identified himself and said that he was visiting his cousin. The officer smelled burnt marijuana coming from Wright’s person. The officer then directed Wright to walk with another officer away from the vehicle for questioning. Wright was eventually placed in the back seat of a squad car.

The uniformed officer then walked around the outside of the SUV, observed a marijuana cigar on the front center console, and smelled marijuana emanating from the vehicle. Several officers searched the vehicle; they seized the marijuana cigar from the console and approximately 113 grams of crack cocaine from the glove compartment. Officers then placed Wright under arrest.

A grand jury charged Wright with possession with intent to distribute cocaine base and conspiracy to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Wright moved to suppress all evidence seized during the search of his vehicle, any statements he made at the scene or while in police custody, and any data obtained from his cellular telephone. The court orally denied the motion, and Wright entered a conditional plea to the conspiracy charge, reserving his right to appeal the denial.

On appeal, Wright argues that the poliee violated the Fourth Amendment because they did not have probable cause to enter the apartment complex’s curtilage, reasonable suspicion to detain him, or probable cause to search the vehicle. We review the district court’s legal conclusions de novo and its factual findings for clear error. United States v. Bearden, 780 F.3d 887, 892 (8th Cir. 2015).

The Constitution forbids unreasonable searches and seizures, but Fourth Amendment rights are personal .rights and may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). A person challenging the constitutionality of a search must demonstrate a legitimate expectation of privacy in the area searched—that is, he must have a subjective expectation of privacy that society is prepared to recognize as reasonable. Id. at 143 & n.12, 99 S.Ct. 421.

Wright lacks standing to challenge the entry into the parking lot of the apartment complex because he did not have a reasonable expectation of privacy in that area. Wright did not own or live at the property; he was not an overnight guest. Cf. Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). Wright claimed that his cousin lived at the apartment complex, but Wright cannot vicariously .assert Fourth Amendment rights of the cousin. We thus need not address whether the officers’ entry into the parking lot was lawful.

Wright also argues that the officers did not have reasonable suspicion to detain him in the parking lot. The uniformed officer’s act of shining a spotlight on Wright’s car was not a seizure, United States v. Lawhorn, 735 F.3d 817, 820 (8th Cir. 2013), and Wright does not claim that the officer effected a seizure by blocking Wright’s SUV with the squad car. Cf. United States v. Tuley, 161 F.3d 513, 515 (8th Cir. 1998). Therefore, no suspicion wás required at the point of the initial conversation between Wright and the uniformed officer. Once the uniformed officer detected an odor of marijuana coming from Wright’s person, the officer had probable cause to. arrest Wright and, a fortiori, reasonable suspicion to detain him for further investigation. United States v. Perdoma, 621 F.3d 745, 749 (8th Cir. 2010).

In any event, the police had ample reasonable suspicion to justify an investigative stop of Wright in the parking lot. They received a tip from a known confidential informant that Brown and Wright would be traveling to Chicago to obtain drugs. They independently verified the details of the tip through surveillance of the SUV when it arrived at Brown’s residence, departed the area eastbound on Interstate 80, and returned to Davenport and Brown’s residence after a period of time that would have accommodated a round trip to Chicago. See Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The police also saw Wright and Brown act in a manner consistent -with drug trafficking when they rummaged around in the back of Wright’s vehicle for several minutes at Brown’s residence before Brown took a duffel bag into the house. Wright also drove away from the residence and conducted possible coun-tersurveillance maneuvers until arriving at a location that was known to be associated with drug activity.

Wright complains that the officers lacked probable cause to search his vehicle in the parking lot, but the smell of burnt marijuana and the presence of a marijuana cigar in plain view through thé window were sufficient to justify, a search for drugs. United States v. Walker, 840 F.3d 477, 483-84 (8th Cir. 2016). No warrant was required for search of the vehicle, Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and because the police had probable cause to look for drugs, they properly could search the glove compartment as a place that could conceal the object of their search. See Wyoming v. Houghton, 526 U.S. 295, 301, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).

In a submission pursuant to Rule 28(j), Wright suggests that officers unlawfully searched his pockets to obtain a key that they used to unlock the SUV. See United States v. Craddock, 841 F.3d 756 (8th Cir. 2016). Wright did not raise this argument in the district court or in his opening brief on appeal, and it is therefore not properly before us. We note, moreover, that before the key was seized, police had probable cause to arrest Wright based on the odor of marijuana coming from his person, see Perdoma, 621 F.3d at 749, and it is permissible to search an arrestee’s person' incident to an arrest. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). That the search of Wright’s person for the key preceded the formal arrest does not make the search unlawful under those circumstances. See Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. Chartier, 772 F.3d 539, 546 (8th Cir. 2014); United States v. Jenkins, 496 F.2d 57, 73 (2d Cir. 1974).

For these reasons, the district court properly denied Wright’s motion to suppress, and. the judgment of the district court is affirmed.

      . The Honorable Stephanie M. Rose, United States District Judge for the Southern District of Iowa.


source: Caselaw Access Project

author: RILEY, Chief Judge.

license: Public Domain

text:
    Floyd G. ELMORE, Kansas City, Jackson County, Missouri, Plaintiff-Appellant v. HARBOR FREIGHT TOOLS USA, INC., doing business as Harbor Freight Tools, Defendant-Appellee
    No. 16-1280
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 15, 2016
    Filed: December 23, 2016

      Arthur A. Benson II, Jamie Kathryn Lansford, Arthur Benson & Associates, Kansas City, MO, for appellant.
    Patrick F. Hulla, Jennifer K. Oldvader, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Kansas City, MO (David L. Schenberg, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., St. Louis, MO, on the brief), for appellee.
    Before RILEY, Chief Judge, WOLLMAN and KELLY, Circuit Judges.
   RILEY, Chief Judge.

Floyd Elmore brought suit against Harbor Freight- Tools USA, Inc. after a Harbor Freight manager accused Elmore of stealing from the store earlier in the day. Elmore filed suit in federal district court, alleging federal claims' under 42 U.S.C. § 1981 and state law negligence claims. The district court dismissed Elmore’s § 1981 claim for failure to plead state action as required under Youngblood v. HyVee Food Stores, Inc., 266 F.3d 851 (8th Cir. 2001), and, declining to exercise supplemental jurisdiction, dismissed Elmore’s state law negligence claims without prejudice. Because we conclude Elmore was required to allege state action as part of his § 1981 claim and the district court did not abuse its discretion in declining to extend supplemental jurisdiction to El-more’s state law negligence claims, we affirm.

I. BACKGROUND

Elmore, an African American, visited his local Harbor Freight hardware store in Independence, Missouri, on May 9, 2015, at approximately 8:30 p.m. As he was exiting the store, after choosing not to make a purchase, a female store manager stated: “I’m watching you. I caught you stealing here earlier today and told you not to come back any more.” Elmore responded he had not stolen from the store, or even been at the store earlier that day, and the manager said she would call the police. The manager’s male companion was also present and yelled at Elmore. After the manager called the police, Elmore left the store to pick up his wife.

Elmore and his wife returned to the store and took photographs of the manager’s male companion making an obscene gesture in their direction. Once the police arrived, they questioned Elmore about the incident and ultimately told him “it was a civil matter” and that Elmore should leave. Elmore left the premises and later called Harbor Freight’s district manager to inform him of the event. The district manager told Elmore the incident “made [him] sick.”

Elmore filed suit against Harbor Freight, claiming federal question jurisdiction under 28 U.S.C. §§ 1848 and 1331 and supplemental jurisdiction over state law negligence claims under 28 U.S.C. § 1367. Elmore’s complaint included a claim under § 1981 alleging “[t]he actions of Harbor Freight’s agents and employees against Plaintiff Elmore on the basis of his race interfered with Elmore’s right to the full and equal benefit of the law.” Elmore also included two state law negligence claims, alleging Harbor Freight negligently failed to train and supervise its employees to prevent them “from wrongfully engaging in racially discriminatory practices.”

Harbor Freight moved to dismiss El-more’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). On December 30, 2016, the district court granted Harbor Freight’s motion and dismissed Elmore’s complaint in its entirety. Elmore appeals, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

II. DISCUSSION

A. Standard of Review

We review a district court’s grant of a motion to dismiss under Rule 12(b)(6) de novo and take the facts alleged in the complaint to be true. See Blomker v. Jewell, 831 F.3d 1051, 1065 (8th Cir. 2016). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’” and include “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

B. Section 1981 Claim

To state a claim under § 1981, a plaintiff must plead: “(1) that [the plaintiff] is a member of a protected class; (2) that [the defendant] intended to discriminate on the basis of race; and (3) that the discrimination on the basis of race interfered with a protected activity as. defined in § 1981.” Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). One such protected activity is the enjoyment of “the full and equal benefit of all laws and proceedings for the security of persons and property,” 42 U.S.C. § 1981(a). “ ‘Because the state is the sole source of the law, it is only the. state that can deny the full and equal benefit of the law.’ ” Youngblood, 266 F.3d at 855 (quoting Chapman v. Higbee Co., 256 F.3d 416, 421 (6th Cir. 2001), rev’d en banc, 319 F.3d 825 (6th Cir. 2003), citing Mahone v. Waddle, 564 F.2d 1018, 1029 (3d Cir. 1977)). Therefore, only state action can give rise to a cause of action under the full-and-equal-benefit clause. See id.

Elmore did not plead any state action in his complaint. We have already determined “[u]nder the Full-and-Equal Benefit clause [of 42 U.S.C. § 1981, a plaintiff must] allege that some sort of state action contributed to [the plaintiff] being discriminated against.” Bediako, 354 F.3d at 838 n.3. Elmore argues we should overrule Youngblood’s requirement of state action because the plain language of § 1981 contemplates private actors can deprive others of the full and equal benefit of the law. Some courts have agreed with Elmore’s interpretation. See, e.g. Chapman, 319 F.3d at 830, 833; Phillip v. Univ. of Rochester, 316 F.3d 291, 295 (2d Cir. 2003); Green v. Wal-Mart Stores, Inc., No. 2:09CV00457, 2010 WL 3260000, at *4 (D. Utah Aug. 18, 2010); Hunter v. The Buckle, Inc., 488 F.Supp.2d 1157, 1173 (D. Kan. 2007). However, “ ‘[i]t is a cardinal rule in [the Eighth Circuit] that one panel is bound by the decision of a prior panel.’ ” United States v. Betcher, 534 F.3d 820, 823-24 (8th Cir. 2008) (quoting Owsley v. Luebbers, 281 F.3d 687, 690 (8th Cir. 2002)). Thus, we are bound by Young-blood’s state action requirement. See Bilello v. Kum & Go, LLC, 374 F.3d 656, 661 n.4 (8th Cir. 2004). The district court did not err in dismissing Elmore’s § 1981 claim for a failure to plead state action.

C. State Law Negligence Claims

Once the district court dismissed Elmore’s federal claims, it declined to extend supplemental jurisdiction for his state law negligence claims. A district court has broad discretion to decline to exercise supplemental jurisdiction over state law claims after all claims over which the district court had original jurisdiction have been dismissed. See Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 359 (8th Cir. 2011). “In exercising its discretion, the district court should consider factors such as judicial economy, convenience, fairness, and comity.” Brown v. Mort. Elec. Registration Sys., Inc., 738 F.3d 926, 933 (8th Cir. 2013); see also 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction over a claim ... if ,.. the district court has dismissed all claims over which it has original jurisdiction.”).

The district court determined a Missouri state court should resolve state claims involving Missouri residents and that it would be more fair and convenient to allow a Missouri state court to hear these claims. Furthermore, the case was in the nascent stages. The district court did not abuse its discretion in declining to exercise supplemental jurisdiction over El-more’s state law claims once the district court dismissed the claim over which it had original jurisdiction. See Clark v. Iowa State Univ., 643 F.3d 643, 645 (8th Cir. 2011).

III. CONCLUSION

We affirm.

      . The Honorable Roseann A. Ketchmark, United States District Judge for the Western District of Missouri.


author: MELLOY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Mark FUEHRER, Defendant-Appellant
    No. 16-1248
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 23, 2016
    Filed: December 28, 2016

      Counsel who presented argument on behalf of the appellant was Dennis McKelvie, of Grinnell, IA.
    Counsel who presented argument on behalf of the appellee was Lisa C. Williams, AUSA, of Cedar Rapids, IA.
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
   MELLOY, Circuit Judge.

Mark Fuehrer pled guilty to one count of possession with intent to distribute a controlled substance, methamphetamine, in violation of 21 U.S.C. .§§ 841(a)(1) and 841(b)(1)(B). The district court sentenced Fuehrer to 188 months’ imprisonment. On appeal, Fuehrer challenges the search of his vehicle and asserts that the district court erred in sentencing him as a career offender. We affirm.

I.

In December 2014, Josh Mulnix, a Special Agent with the Iowa Division of Narcotics Enforcement, received information from a confidential informant that Fuehrer was distributing methamphetamine. The informant had seen Fuehrer with methamphetamine at his residence and told Agent Mulnix that Fuehrer’s methamphetamine source was “Marty.” After obtaining this information, Agent Mulnix obtained judicial authorization to affix a global positioning system (“GPS”) tracking device to Fuehrer’s vehicle.

While the GPS device was affixed to Fuehrer’s vehicle, Fuehrer drove to the home, of Martin Lawrence in Monticello, Iowa. Investigators learned that Lawrence was being investigated by the Drug Enforcement Administration in Cedar Rapids, which had conducted multiple controlled purchases of ice methamphetamine from Lawrence.

In January 2015, officers observed Fuehrer driving a second vehicle. Agent Mulnix obtained authorization to attach a GPS device to that vehicle and began tracking that vehicle as well. Investigators believed that Fuehrer would be transporting methamphetamine from Lawrence’s home on January 11, 2015. Officers intended to attempt to conduct a traffic stop on Fuehrer’s vehicle after he left Lawrence’s home. Officers also believed that, even if Fuehrer committed no traffic violation, officers would make an investigatory stop based on the evidence gathered during the investigation.

Agent Mulnix coordinated with the Du-buque Drug Task Force to ensure that officers would be able to observe Fuehrer’s vehicle after leaving Lawrence’s home. Deputy Adam Williams was positioned to observe Fuehrer’s vehicle and began running a stationary radar, which he had been trained to use and did, in fact, use nearly every day. Deputy Williams stopped Fuehrer’s vehicle after observing Fuehrer driving 66 miles per hour in an area where the speed limit was 65 miles per hour.

During the traffic stop, Fuehrer was unable to provide a license. Deputy Williams asked Fuehrer to sit in the patrol car while he completed paperwork for the traffic violation. During this time, a second deputy, 'Deputy Kearney, arrived with a trained narcotics canine. Deputy Kearney conducted an open-air sniff of Fuehrer’s vehicle and the canine alerted to the presence of narcotics. After the dog-sniff search was complete, Deputy Williams finished the tasks related to the traffic stop and wrote Fuehrer a warning for the traffic violation. Deputies Williams and Kear-ney then informed Fuehrer that the canine had alerted to the presence of narcotics, and Deputy Williams gave Fuehrer his Miranda warnings. Officers searched the vehicle and found 26.09 grams of methamphetamine.

Fuehrer was charged with possession with intent to distribute a controlled substance. Before trial, Fuehrer filed a motion to suppress, arguing that the stop of his vehicle was a pretext stop in violation of his Fourth Amendment rights against unreasonable search and seizure. At the suppression hearing, Deputy Williams testified as to the accuracy of the radar he used the night of the traffic stop. Deputy Williams testified that the radar was affixed to the patrol car he drove every day for approximately six years. Deputy Williams stated that he checked the accuracy of the radar by balancing the speed displayed by the radar with the speed displayed on the speedometer of his vehicle. If he detected a discrepancy, Deputy Williams would use another method to check the radar’s accuracy. Deputy Williams also testified that the radar had never had any discrepancies since he' began using it and that “[i]t works the way it is supposed to and displays accurate information.” The magistrate judge recommended denying the motion, finding that the traffic stop was supported by probable cause that Fuehrer was driving in excess of the speed limit. The magistrate judge also found that there was no evidence that the dog sniff prolonged the traffic stop. The district court subsequently adopted the magistrate judge’s recommendation.

Following the denial of his motion to suppress, Fuehrer entered a guilty plea. The probation office prepared a presen-tence investigation report (“PSR”), which designated Fuehrer as a career offender. As a career offender, Fuehrer’s base offense level increased from level 26 to level 34. The PSR determined that Fuehrer was a career offender based on two prior convictions for controlled substance offenses. On December 8,1998, Fuehrer was arrested for possessing cocaine with intent to distribute. Fuehrer pled guilty in state court and was sentenced on September 10, 1999. On May 25, 2000, Fuehrer was arrested for the distribution of cocaine base in controlled purchases from October 21, 1998; October 26, 1998; and December 21, 1998. Fuehrer was indicted in the Northern District of Iowa and pled guilty to Count 1, which involved distribution of cocaine base on October 21, 1998. Fuehrer was sentenced on August 20, 2001.

Fuehrer objected to his designation as a career offender. He argued that the prior controlled-substance convictions were related and should not be counted separately. The district court applied the career offender enhancement and sentenced Fuehrer to 188 months’ imprisonment.

II.

A. Fuehrer’s Fourth Amendment Rights

“This Court reviews the facts supporting a district court’s denial of a motion to suppress for clear error and reviews its legal conclusions de novo.” United States v. Cotton, 782 F.3d 392, 395 (8th Cir. 2015). “This court will affirm the district court’s denial of a motion to suppress evidence unless it is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made.” United States v. Hogan, 539 F.3d 916, 921 (8th Cir. 2008) (quoting United States v. Annis, 446 F.3d 852, 855 (8th Cir. 2006)).

1. The Traffic Stop

Fuehrer contends that the traffic stop in this case was merely pretextual. “Pretextual traffic stops are a violation of the Fourth Amendment.” United States v. Eldridge, 984 F.2d 943, 947 (8th Cir. 1993). However, if police observe a traffic violation, no matter how minor, there is probable cause to stop the vehicle. United States v. Mendoza, 677 F.3d 822, 827 (8th Cir. 2012); Eldridge, 984 F.2d at 948. “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). “Once an officer has probable cause, the stop is objectively reasonable and any ulterior motivation on the officer’s part is irrelevant.” United States v. Frasher, 632 F.3d 450, 453 (8th Cir. 2011) (quotation omitted). “Similarly, it is irrelevant that the officer would have ignored the violation but for his ulterior motive.” |d.

Because Deputy Williams had an objectively reasonable basis to believe Fuehrer was speeding, Deputy Williams had probable cause for the traffic stop. See United States v. Coney, 456 F.3d 850, 857 (8th Cir. 2006) (“We completely agree ... that [the officer] had probable cause to stop the ... van because he objectively had a reasonable basis for believing that the van was speeding.”). Such probable cause existed regardless of any motivation to search for drugs. Fuehrer argues that there was no probable cause because of the standard deviation on radar equipment of at least one mile per hour. At the suppression hearing, Deputy Williams testified that he received training in the use of stationary radar and that, prior to joining the drug task force, he used stationary radar nearly every day. Deputy Williams stated he was assigned to his patrol vehicle in 2009 and the radar has been affixed to the vehicle’s dash and windshield the entire time. Further, Deputy Williams testified that he checked the accuracy of the radar he used the night of the traffic stop earlier that day and had no reason to believe the radar was not functioning correctly. Finally, the standard deviation of radar equipment that Fuehrer relies on is associated with the tuning fork method of testing the radar, which Deputy Williams did not use the day of the traffic stop. As a result, Deputy Williams’ observation of the traffic violation based on his use of the radar gave him probable cause to stop the vehicle, and his subjective intent to detain the vehicle for a dog-sniff search is irrelevant.

2. The Dog Sniff

Fuehrer argues that he was unconstitutionally detained while officers executed the dog sniff. “[I]f a defendant is detained incident to a traffic stop, the officer does not need reasonable suspicion to continue the detention until the purpose of the traffic stop has been completed.” United States v. Ovando-Garzo, 752 F.3d 1161, 1163 (8th Cir. 2014) (alteration in original) (quoting United States v. Bueno, 443 F.3d 1017, 1025 (8th Cir. 2006)). An officer may complete routine tasks during a traffic stop, which “can include ‘a computerized check of the vehicle’s registration and the driver’s license and criminal history, as well as the preparation of a citation or warning.’ ” Id (quoting United States v. Quintero-Felix, 714 F.3d 563, 567 (8th Cir. 2013)). “However, once an officer finishes the tasks associated with a traffic stop, ‘the purpose of the traffic stop is complete and further detention ,.. would be unreasonable unless something that occurred during the traffic stop generated the necessary reasonable suspicion to justify further detention^]’ ” Id. at 1163-64 (alterations in original) (quoting United States v. Flores, 474 F.3d 1100, 1103 (8th Cir. 2007)).

The Supreme Court has held that “the use of a well-trained narcotics-detection dog ... during a lawful traffic stop, generally does not implicate legitimate privacy interests.” Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). “A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Id. at 407, 125 S.Ct. 834. Thus, as long as a traffic stop is not extended in order for officers to conduct a dog sniff, the dog sniff is lawful.

In this case, Deputy Kearney arrived within two minutes of Deputy Williams initiating the traffic stop. Because Fuehrer did not have a license, Deputy Williams asked Fuehrer to sit in the patrol car while he completed paperwork. Deputy Kearney conducted the dog sniff while Fuehrer was in the patrol car. Deputy Williams completed the tasks related to the traffic stop and wrote Fuehrer a warning after the dog sniff was complete and the dog had alerted to the presence of narcotics. Thus, there is no evidence that the dog sniff unlawfully prolonged the traffic stop beyond what was necessary to complete the stop. Fuehrer’s reliance on Rodriguez v. United States, — U.S. -, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015), is misplaced. In Rodriguez, the officer had already issued the driver a warning before conducting the dog-sniff search. Id. at 1613. The Supreme Court held that the search was unlawful because it prolonged the traffic stop at issue in that case. Id at 1615-16. The facts just set forth distinguish the instant case from Rodriguez.

B. Sentencing

Fuehrer argues that his two prior convictions are related under U.S.S.G. § 4A1.2(a)(2) and, thus, he does not qualify as a career offender. “We review de novo the district court’s construction and interpretation of the criminal history provisions of the sentencing guidelines, and we review for clear error the district court’s application of the guidelines to the facts.” United States v. Williams, 533 F.3d 673, 676 (8th Cir. 2008) (quoting United States v. Borer, 412 F.3d 987, 991-92 (8th Cir. 2005)).

Under the Guidelines, a defendant is a career offender if

(1) the defendant was at least eighteen years old at the time of the instant conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4Bl.l(a). Prior convictions must be counted separately to satisfy the “two prior felony convictions” requirement. Id. § 4B1.2(c).

Prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Treat any prior sentence covered by (A) or (B) as a single sentence.

Id. § 4A1.2(a)(2).

Fuehrer committed the federal predicate offense on October 21, 1998 and the state predicate offense on December 3, 1998. Fuehrer was arrested for the state offense on December 3, 1998, but was not arrested on the federal offense until May 25, 2000. As a result, his two prior offenses are not separated by an intervening arrest. See Williams, 533 F.3d at 676-77. Further, the Government concedes that there was no intervening arrest.

Because there was no intervening arrest, we consider whether Fuehrer’s prior sentences “resulted from offenses contained in the same charging instrument” or “were imposed on the same day.” See U.S.S.G. § 4A1.2(a)(2). Fuehrer was charged in separate charging instruments, one in state court and one in federal court. Further, Fuehrer’s sentences for his prior convictions were imposed on different days. Fuehrer’s sentence for his state conviction was imposed on September 10, 1999. Fuehrer’s sentence for his federal conviction was imposed on August 20, 2001. As a result, these two convictions should be counted separately as two prior felony convictions for controlled substance offenses.

Fuehrer nevertheless argues that his two prior convictions should be counted together because they were part of a single course of conduct. Fuehrer asserts that the conduct underlying his state conviction was part of the same criminal scheme, and was committed during the same time period, as the federal offense. Thus, Fuehrer claims his state conviction was relevant to his federal conviction and they should be counted together. This argument, however, is based on an erroneous reading of the Guidelines and ignores the straightforward application of U.S.S.G. § 4A1.2(a)(2).

Fuehrer claims specifically that, under U.S.S.G. § 4A1.2(a)(l), his federal conviction in 2001 is the “instant offense” and that the conduct underlying his state conviction in 1999 was part of the “instant offense.” However, under the Guidelines, “instant offense” refers to the current offense for which a defendant is being sentenced. U.S.S.G. § 1B1.1 cmt. n.l(H). In the context of the career-offender analysis, a prior sentence will not be counted if it is for conduct relevant to the instant offense. See id. § 4A1.2 cmt. n.l.

In this case, Fuehrer’s “instant offense” is possession of methamphetamine on January 11, 2015. Fuehrer’s prior state and federal convictions, in 1999 and 2001, respectively, for distributing crack cocaine do not involve the same underlying conduct as his 2015 possession of methamphetamine, Thus, neither conviction is relevant to the “instant offense.” Fuehrer’s argument incorrectly applies the Guidelines. As a result, based on the correct career-offender analysis, Fuehrer has two qualifying prior convictions. The district court did not err by sentencing Fuehrer as a career offender.

III.

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

      . The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L,Ed.2d 694(1966).

      . The Honorable Jon S, Scoles, United States Chief Magistrate Judge for the Northern District of Iowa.


author: SMITH, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Tou Chi FANG, Defendant-Appellant
    No. 16-1322
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 20, 2016
    Filed: December 28, 2016

      Counsel who represented the appellant was Gary R. Wolf of Minneapolis, MN.
    Counsel who represented the appellee was Michael L. Cheever, AUSA, of Minneapolis, MN.
    Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.
   SMITH, Circuit Judge.

On September 17, 2015, a jury convicted Tou Chi Fang of possession with intent to distribute methamphetamine (“meth”), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Before trial, Fang moved to exclude certain past convictions of felony drug possession. The district court, finding the prior convictions relevant to proving the elements of the crime, allowed testimony regarding the convictions. At the close of the government’s case-in-chief, Fang moved for judgment of acquittal based on insufficiency of the evidence and rested his case. The district court denied the motion. The jury found Fang guilty, and the district court sentenced him to 110 months’ imprisonment.

On appeal, Fang seeks reversal of his conviction or, in the alternative, a new trial. He argues that (1) the evidence presented at trial was insufficient to support his conviction, and (2) the district court erred by admitting into evidence his prior convictions. We disagree and affirm the judgment of the district court.

I. Background

On November 6, 2014, the St. Paul Police Department conducted a warrant-authorized search of the housing unit of a suspect in an unrelated offense. During the search, two officers—Sergeant Kent Cleveland and Officer Daniel Mack—entered the living area of the unit and saw Fang and the suspect standing in the back of the room. Both Fang and the suspect immediately began moving toward the rear kitchen area, while the officers commanded them to get on the ground and raise their hands. Both officers testified that Fang placed his hand in his pocket and refused to remove it.

Officer Mack testified that he saw Fang pull a plastic bag from his pocket and slide it across the floor under a nearby table. Sergeant Cleveland testified that although he did not see what Fang held in his hand, he did see Fang reach underneath the table after he eventually removed his hand from his pocket, Sergeant Cleveland recalled hearing the sound of a plastic bucket move underneath the table as if something had hit it. He also saw cash fall out of Fang’s pocket during the encounter. After the officers handcuffed Fang and the suspect, they discovered a plastic bag, containing 25 grams of meth with a thin bungee cord on top of it underneath the table next to a plastic bucket. Both officers testified that they recovered no other items from the area where Fang had placed his hand. Fang possessed on his person more than $3,900 in small bills and a plastic bag containing ten smaller plastic bags. The bag type was consistent with, those used for distributing user quantities of meth.

At trial, the government presented testimony from Sergeant Erik Johnston, who arrested Fang in 2006 for possession of meth. Then-Officer Johnston witnessed Fang discard a baseball cap in a flowerbed immediately before Fang encountered the police. Johnston recovered the cap from the flowerbed and found 36.8 grams (including weight of packaging) of meth hidden inside a secret compartment. Fang later pleaded guilty to possession of meth in state court. The government also presented testimony from Officer Adam Bravo, who arrested Fang in 2012. Officer Bravo testified that Fang fled when he saw the police approach his residence. As the police pursued him, Fang grabbed a plastic bag from his pocket and threw it toward a house. When officers located the discarded bag, it contained a small quantity of meth. Fang again pleaded guilty to possession of meth in state court.

Fang’s pretrial suppression motion sought to exclude both of these convictions. But, the district court denied Fang’s motion. Before the district court admitted the evidence at' trial, it instructed the jury that it could use the testimony only to help establish whether Fang • had knowledge that he possessed a controlled substance or had the intent to possess and distribute the controlled substance. After the government' presented its case, Fang moved' for judgment'of acquittal, which the court denied. Without presenting evidence, he rested his case. The'jury found Fang guilty.

II. Discussion

On appeal, Fang asks this court to reverse his conviction because the district court erred in denying his motion for judgment of acquittal. Fang also argues for a new trial because .the district court erred in admitting into evidence his prior convictions. We examine each of these contentions in turn.

A. Motion for Acquittal

“We review de novo the denial of a motion for judgment of acquittal based on the sufficiency of the evidence.” United States v. Griffith, 786 F.3d 1098, 1102 (8th Cir. 2015). We evaluate the evidence in the light most favorable to the verdict, reversing only if “no reasonable jury could have found the defendant guilty beyond a reasonable doubt.” United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir. 2004) (quoting United States v. Frank, 354 F.3d 910, 916 (8th Cir. 2004)). “If the evidence rationally supports two conflicting hypotheses, the reviewing court will not disturb the conviction.” Id. (quoting Ortega v. United States, 270 F.3d 540, 544-45 (8th Cir. 2001)). “This is a ‘very strict standard of review.’ ” United States v. Thunder, 745 F.3d 870, 875 (8th Cir. 2014) (quoting United States v. Cook, 356 F.3d 913, 917 (8th Cir. 2004)).

Fang argues that no reasonable jury could have found him.guilty based on the evidence presented at trial. He specifically points to alleged conflicts in testimony between Officer Mack and Sergeant Cleveland: Officer Mack saw the plastic bag exit Fang’s pocket; Sergeant Cleveland did not. Sergeant Cleveland’s testimony alone, however, provides the reasonable inference that the plastic bag came from Fang’s possession. Nevertheless, Fang contends that the discrepancies in testimony preclude a reasonable jury from finding that he actually tossed the bag of meth under the table. We disagree. Viewing the testimony in the light most favorable to the verdict, a reasonable jury could resolve the testimonial discrepancies between the two officers as resulting from the differences in observational vantage points. As the trier of fact, the jury had access to all of the testimonial discrepancies. The record reflects that the jury properly did its job of determining credibility and weighing the evidence. “A jury’s credibility determinations are well-nigh unreviewable because the jury is in the best position to assess the credibility of witnesses and resolve inconsistent testimony.” United States v. Hodge, 594 F.3d 614, 618 (8th Cir. 2010). We will not overturn a jury verdict if the jury picks one of two plausible scenarios presented by testimonial evidence.

Fang also argues that even if a reasonable jury could find that he possessed the bag of meth based on the conflicting testimony, no reasonable jury could find that he had the intent to distribute .it. Our precedent indicates otherwise. Circumstantial evidence alone can establish an intent to distribute, including the possession of large quantities of a controlled substance. See United States v. Ojeda, 23 F.3d 1473, 1476 (8th Cir. 1994). The $3,900 in small bills and ten small plastic bags found on Fang’s person, plus the plastic bag under the table containing 25 grams of meth— which amounts to 125 individual doses of the drug—provide adequate evidentiary support for the conviction. We have held that a reasonable jury could find the intent to distribute in cases with similar circumstantial evidence. See, e.g., United States v. Thompson, 686 F.3d 575, 585 (8th Cir. 2012) (finding 33.03 grams of crack cocaine, 260 grams of marijuana in 153 small zip-top' bags, and unexplained cash resources sufficient to' support a finding of the intent to distribute); United States v. Brett, 872 F.2d 1365, 1370 (8th Cir. 1989) (finding 46.66 grams of crack cocaine, $6,800 in cash, and loaded pistol sufficient to' support a finding of the intent to distribute). The instant facts align with our circuit’s precedent enabling a reasonable jury to find intent to distribute by circumstantial evidence alone.

For these reasons, we affirm the denial of Fang’s motion for judgment of acquittal.

B. Evidence of Prior Convictions

Federal Rule of Evidence 404(b) requires courts to exclude evidence of a defendant’s past crimes if those convictions are offered only for the purpose of proving that a defendant acted in accordance with the bad character evidenced by those crimes. United States v. Walker, 428 F.3d 1165, 1169 (8th Cir. 2005). This is a rule of inclusion, however, allowing such evidence to be admitted for the permissible purposes of showing “motive, opportunity, intent, .preparation, plan, knowledge, or absence of mistake or accident.” Id. We will reverse, a Rule 404(b) ruling “only when the evidence clearly had no bearing on the case and was introduced solely to show defendant’s propensity to engage in criminal misconduct.” United States v. Gant, 721 F.3d 505, 509 (8th Cir. 2013) (quoting United States v. Farish, 535 F.3d 815, 819 (8th Cir. 2008)). We review the district court’s application of Rule 404(b) for clear abuse of discretion, “reversing only when an improper evidentiary ruling affected the defendant’s substantial rights or had more than a slight influence on the verdict.” United States v. Picardi, 739 F.3d 1118, 1124 (8th Cir. 2014) (quoting United States v. Summage, 575 F.3d 864, 877 (8th Cir. 2009)).

In this case, the district court permitted the government to introduce into evidence Fang’s two prior convictions that occurred in 2006 and 2012. Fang argues that the government presented this evidence to the jury solely to prove that because he possessed meth on two- prior occasions, he was the type of person who would distribute it. “To be admissible under 404(b), evidence must be (1) relevant to a material issue; (2) similar in kind and not overly remote in time to the crime charged; (3) supported by sufficient evidence; and (4) higher in probative value than prejudicial effect.” United States v. Tyerman, 701 F.3d 552, 562 (8th Cir. 2012). Fang contends that these prior convictions were irrelevant, too remote in time, and unduly prejudicial. We will examine each of these contentions in turn.

First, Fang argues that his prior convictions are not relevant to a material issue in this case. For a jury to convict Fang under 21 U.S.C. § 841(a)(1), however, the government had to prove beyond a reasonable doubt that Fang “(1) possessed [meth], (2) knew that what he possessed was a controlled'substance, and (3) intended to distribute the substance he possessed.” Serrano-Lopez, 366 F.3d at 634. Fang made a general denial of the crime charged, which put Fang’s state of mind at issue. In such instances, evidence of prior convictions become relevant to prove knowledge. United States v. Gaddy, 532 F.3d 783, 789 (8th Cir. 2008). The government carried the burden of demonstrating that Fang both possessed meth and knew that it was a controlled substance. Fang’s prior convictions for possession are relevant because they go directly to proving knowledge.

Second, Fang argues that his pri- or convictions were too remote in time to be relevant to this current charge. This argument also fails. After Fang’s 2006 possession arrest, the court sentenced him to 86 months’ imprisonment. He was released in May 2012, only to be arrested for the 2012 possession offense four months later. Fang was once again released from custody in December 2013, and in less than 12 months, he was arrested for this current offense. As the government points out, Fang had only 15 months of freedom between the first arrest in 2006 and this current offense. These convictions occurred, respectively, two and eight years before the current offense, and we have upheld prior convictions within similar date ranges. See, e.g., United States v. Trogdon, 575 F.3d 762, 766 (8th Cir. 2009) (allowing a prior conviction of 11 years); Gaddy, 532 F.3d at 789 (finding prior convictions of 4, 10, and 11 years “not so remote as to be inadmissible”); United States v. Jackson, 278 F.3d 769, 772 (8th Cir. 2002) (listing cases upholding the admission of evidence up to 7 years). Fang’s prior convictions are not too remote.

Third, Fang argues that the evidence of his previous convictions created undue prejudice. At the outset, we note that all prior criminal convictions tend to be prejudicial to a-defendant, but “the question is whether the evidence is unfairly prejudicial.” Tyerman, 701 F.3d at 563. We “give[ ] great deference to the district court’s weighing of the probative value of evidence against its prejudicial effect.” Id. “Moreover, the use of a limiting instruction decreases the danger that unfair prejudice will result from admission of the evidence.” United States v. Thomas, 398 F.3d 1058, 1063 (8th Cir. 2005). To establish unfair prejudice, we look for evidence that causes a verdict to be based on án improper basis, an inquiry into the interplay between the Federal Rules of Evidence 404(b) and 403. See United States v. Williams, 796 F.3d 951, 960 (8th Cir. 2015) (“Though all Rule 404(b) evidence is inherently prejudicial, the test under Rule 403 is whether its probative value is substantially outweighed by the danger of unfair prejudice.” (quoting United States v. Cook, 454 F.3d 938, 941 (8th Cir. 2006)); see also United States v. Jiminez, 487 F.3d 1140, 1145 (8th Cir. 2007) (describing unfair prejudice under Rule 403 as causing an improper emotional response affecting the outcome)). In this case, the prior convictions contained no shocking facts that would infect the jury’s deliberations with information likely to lead to an unfair verdict. As noted above, these prior convictions provided an evidentiary foundation for knowledge, an element of the crime charged. The district court’s limiting instruction likely reduced any possible prejudicial effects as well. See Gaddy, 532 F.3d at 790. The prior-convictions evidence did not unfairly prejudice Fang. The district court, therefore, did not abuse its discretion by admitting the prior convictions.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

      . The Honorable Paul Á. Magnuson, United States District Judge for the District of Minnesota.


author: GRUENDER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Jaime Cesar LORA-ANDRES, Defendant-Appellant.
    No. 16-1549
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 14, 2016
    Filed: December 28, 2016

      Counsel who represented the appellant was Ryan Kolbeck of Sioux Falls, SD.
    Counsel who represented the appellee was Connie Larson, AUSA, of Sioux Falls, SD.
    Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.

      . The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota.

   GRUENDER, Circuit Judge.

Following a jury trial, Jaime Cesar Lora-Andres was convicted for conspiracy to distribute methamphetamine and use of a communication facility to further a controlled substance conspiracy, in violation of 21 U.S.C. §§ 841(a)(1) and 843(b), respectively. On appeal, Lora-Andres raises three issues. First, he claims the district court erred by denying his motion to suppress incriminating telephone recordings. Second, he contends the district court abused its discretion when it declined to instruct the jury regarding the ten-year mandatory minimum sentence applicable if he were to be convicted of distributing 500 grams or more of methamphetamine. See 21 U.S.C. § 841(b)(l)(A)(viii). Third, he argues that the district court erred in applying a two-level enhancement for his role as a manager or supervisor in the conspiracy. For the reasons discussed below, we affirm.

In the Rummer of 2009, Lora-Andres began selling methamphetamine to a number of individuals, including Cheryl Pfeffer and Raul Tovar. Between 2009 and 2010, Pfeffer and Tovar purchased approximately forty ounces of methamphetamine from Lora-Andres. Lora-Andres fronted portions of the methamphetamine—a common practice in drug conspiracies—and Pfeffer and Tovar were required to pay Lora-Andres after they sold the drugs. Lora-Andres also sold methamphetamine to Es-tanislado Pineda, who had worked as a mechanic at Lora-Andres’s ear dealership. At Lora-Andres’s behest, Pineda then began working for Lora-Andres, acquiring and distributing, one to five pounds of methamphetamine over the course of the conspiracy. While working as Lora-Andres’s distributor, Pineda met Heather Le-Claire, who introduced him to drug users in the Sioux Falls area. Pineda began dating LeClaire and included her in the drug conspiracy. Lora-Andres would front the methamphetamine, and Pineda and Le-Claire would wire him money after they completed sales.

In 2012; Pineda accompanied Lora-Andres on the first of two trips to California, and they brought one to two pounds of methamphetamine back to South Dakota. Upon returning to South Dakota, Lora-Andres continued to fi’ont methamphetamine to Pineda, sometimes through a mutual friend working at Lora-Andres’s direction. In- early 2013, after selling all the methamphetamine, Lora-Andres called Pineda to discuss returning to California to acquire more.

By this time, Pineda and LeClaire were in contact with law enforcement officials. Pineda had previously served as a confidential’informant for Special Agent Em-met Warkenthien of the Bureau of Alcohol, Tobacco, Firearms, and Explosives regarding unrelated matters. However, in July 2012, Pineda’s status as a confidential informant was terminated after Special Agent Warkenthien lost contact with him. In February 2013, Pineda reestablished contact with Special Agent Warkenthien, claiming that he had information regarding Lora-Andres’s methamphetamine operation. Pineda was instructed to communicate-with law enforcement if Lora-Andres contacted him. At this time, Pineda was not formally recommissioned as a confidential informant,

In March 2013, Pineda and LeClaire made the second trip to California to obtain two pounds of methamphetamine for Lora-Andres. On March 3, ■ 2013, Pineda contacted Special Agent Warkenthien and mentioned that he was en route to California to obtain methamphetamine. Pineda’s trip occurred without Special Agent Wark-enthien’s permission or- supervision, though Pineda updated him after the fact. After coordinating with Lora-Andres and obtaining approximately two pounds of methamphetamine, Pineda and LeClaire distributed small quantities while ,en route back to South Dakota and without Special Agent Warkenthien’s knowledge. When Pineda and LeClaire neared Sioux Falls, law enforcement stopped the vehicle and seized the methamphetamine. Afterwards, law enforcement officials gave Pineda and LeClaire devices to record telephone conversations with Lora-Andres. Pineda and LeClaire then recorded conversations with Lora-Andres at the direction of law enforcement. The recordings were made while Lora-Andres was in California .and without a warrant or his knowledge or consent. The recordings included incriminating conversations about the methamphetamine operation.

Lora-Andres moved to suppress the recordings, claiming they were not authorized under federal law. The district court denied Lora-Andres’s motion as well as his request that the jury be instructed regarding his potential mandatory minimum sentence. The jury rendered a guilty verdict on both counts, and at sentencing, the district court found that Lora-Andres’s role in the conspiracy justified a two-level enhancement pursuant to United States Sentencing Guidelines Manual (“U.S.S.G.”) § 3Bl.l(c) for his role as a manager or supervisor in the methamphetamine conspiracy. With an advisory sentencing guidelines range of 188 to 235 months, the district court sentenced him to 188 months’ imprisonment for the methamphetamine conspiracy. The court also imposed a term of 48 months’ imprisonment, to run concurrently with the 188-month sentence, for using a communication facility to further a controlled substance conspiracy.

Lora-Andres first argues that the district court erred in denying his motion to suppress because the Wiretap Act, 18 U.S.C. §§ 2510-22, did not permit Pineda and LeClaire to record the phone conversations. See id. at § 2515 (“Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received ... in or before any court....”). “When reviewing the denial of a motion to suppress, we review the district court’s legal conclusions de novo but its factual findings .for clear error.” United States v. Burston, 806 F.3d 1123, 1126 (8th Cir. 2015).

The Wiretap Act generally forbids the interception and recording of phone calls, though it allows “a person acting under color of law to intercept a ... communication, where such person is a party to the communication.” 18 U.S.C. § 2511(2)(c). Because Pineda and LeClaire intercepted and recorded their phone calls with Lora-Andres, the dispositive question concerning admissibility is whether they were “acting under color of law” when doing so. Lora-Andres contends that they were not because Special Agent Warken-thien was not directly supervising Pineda and LeClaire when they traveled to California and did not formally register them as confidential informants. More importantly, Pineda and LeClaire ' misled law enforcement officials when they distributed methamphetamine while giving the appearance of cooperation. Thus, Lora-Andres asserts that they could not have been “acting under color of law” when recording their conversations with him.

Lora-Andres’s argument fails because it elides a distinction between'the acts preceding the phone calls and the actual recording of the phone calls. Even though Pineda and LeClaire were not registered as confidential informants, were not under direct law enforcement supervision during their trip to California, and were illegally selling drugs, they recorded the phone calls with Lora-Andres after these events, when they were acting at the direction of law enforcement. They were therefore “acting under color of law” when recording the phone calls, and thus, the recordings were legal under § 2511(2)(e). See United States v. Rich, 518 F.2d 980, 985 (8th Cir. 1975) (holding that when a person recording a conversation “was acting at the direction of government investigators,” that person was “acting under color of law”). Accordingly, we affirm the district court’s denial of Lora-Andres’s motion to suppress.

Lora-Andres next asserts that the district court abused its discretion when it refused to instruct the jury that Lora-Andres faced a ten-year mandatory minimum prison sentence if convicted of conspiracy to distribute 500 grams or more of methamphetamine. See United States v. Brewer, 624 F.3d 900, 907 (8th Cir. 2010). Lora-Andres contends that in order for the jury to fulfill its role as the community’s conscience, it should be allowed to hear the potential ramifications of a conviction. However, “[t]he district court is not required to instruct a jury about the sentencing consequences of its verdict,” for doing so “invites them to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion.” Id. (quoting Shannon v. United States, 512 U.S. 573, 575, 579, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994)). As a result, the district court did not abuse its discretion by refusing to instruct the jury about the punishment Lora-Andres faced if convicted.

Finally, Lora-Andres claims that the district court improperly applied a two-level enhancement for being a manager or supervisor of criminal activity. See U.S.S.G. § 3B1.1(c); id. at cmt. n.2 (“To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants.”). “The government bears the burden of proving by a preponderance of the evidence that the aggravating role enhancement is warranted,” United States v. Gaines, 639 F.3d 423, 427 (8th Cir. 2011), and “[t]he district court’s factual findings, including its determination of a defendant’s role in the offense, are reviewed for clear error, while its application of the guidelines to the facts is reviewed de novo,” id. at 427-28 (quotation omitted).

We conclude the district court did not clearly err in finding that Lora-Andres played a managerial or supervisory role in the methamphetamine operation, Pfeffer testified that she and Tovar obtained approximately forty ounces of methamphetamine from Lora-Andres over the course of numerous meetings. She also testified that Lora-Andres fronted the methamphetamine, knew they were reselling it, and required them to repay him. Thus, contrary to Lora-Andres’s allegations, Pfeffer and Tovar were not merely end users or customers but participants in the conspiracy. See United States v. Garcia-Hernandez, 530 F.3d 657, 665 (8th Cir. 2008) (finding U.S.S.G. § 3B1.1 enhancement was warranted because the defendant fronted participants methamphetamine).

Furthermore, Pineda testified that Lora-Andres recruited him into the drug conspiracy. He and LeClaire testified Lora-Andres fronted them large quantities of methamphetamine to sell on, his behalf. Additionally, Lora-Andres obtained multiple pounds of methamphetamine in California and twice .directed Pineda to transport the drugs back to South Dakota. These, facts are sufficient to establish that Lora-Andres acted as manager or supervisor of criminal activity. See U.S.S.G. § 3B1.1 cmt. n.4 (“Factors the court should, consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, ... the degree of participation in planning or organizing the offense, the nature and scope of the illdgal activity, and the degree of control and authority exercised over others.”). Thus, the district court did not clearly err in' applying a two-level enhancement pursuant to U.S.S.G. § 3BÍ.l(c).

For the foregoing reasons, the judgment of the district court is affirmed.

      . Lora-Andres argues that even if Pineda and LeClaire were "acting under color of law” pursuant to the Wiretap Act, California law still requires suppression. See Cal. Penal Code §§ 630-38 (making it a crime to record private conversations without the consent of all parties and permitting suppression of such recordings in criminal proceedings). However, "[w]e have consistently held that evidence obtained in violation of a state law is admissible in a federal criminal trial if the evidence was obtained without violating the Constitution or federal law.” United States v. Padilla-Pena, 129 F.3d 457, 464 (8th Cir. 1997) (citation omitted).

      . Lora-Andres claims Pineda and LeClaire cannot simultaneously qualify as , both confidential informants and "participants” under U.S.S.G. § 3B1.1. See U.S.S.G. § 3B1.1 cmt. n.l ("A person who is not criminally responsible for the commission of the offense (e.g„ an undercover law enforcement officer) is not a participant.”). However, Pineda and LeClaire were extensive participants in the methamphetamine operation long before they began working with law enforcement, and any previous cooperation between Pineda and Special Agent Warkenthien dealt with matters unrelated to Lora-Andres. See United States v. Capps, 952 F.2d 1026, 1028 n.2 (8th Cir. 1991) (rejecting as "frivolous” defendant’s argument that a party "may not be counted as a participant because he was an informer during'part of the conspiracy period”); United States v. Dyer, 910 F.2d 530, 533 (8th Cir. 1990) (finding a government informant qualified as a participant because he was involved in the drug conspiracy before working with the government). Therefore, Pineda and Le-Claire are "participants” for U.S.S.G. § 3B1.1 purposes.


text:
    UNITED STATES of America, Plaintiff-Appellee v. David S. DUFFIN, Defendant-Appellant
    No. 16-1616
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 12, 2016
    Filed: December 28, 2016

      Counsel who represented the appellant was John B. Schisler, ÁFPD, of Fayette-ville, AR., Christopher Aaron Holt, AFPD, of Fayetteville, AR.
    Counsel who represented the appellee was Kyra E Jenner, AUSA, of Fort Smith, AR.
    Before RILEY, Chief Judge, WOLLMAN and SMITH, Circuit Judges.
   RILEY, Chief Judge.

A jury found David Duffin guilty of transporting a minor in interstate commerce with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a). The district court sentenced Duffin to 420 months imprisonment followed by lifetime supervised release and included a provision that Duffin have no contact with his victims. Duffin appeals (1) his conviction, arguing the government failed to present sufficient evidence of his intent to engage in criminal sexual activity in his interstate transportation of the minor, and (2) the district court’s no-contact recommendation/order, claiming the district court lacked statutory authority to implement such a provision. Because a reasonable jury could conclude Duffin transported a minor in interstate commerce with the requisite intent to engage in criminal sexual activity and because we lack jurisdiction to hear an appeal of a recommendation to the Bureau of Prisons, we affirm.

I. BACKGROUND

Beginning October 2014, Duffin communicated with then twelve-year-old Jane Doe using a Facebook account in which Duffin falsely represented himself to be his fictitious fourteen-year-old son, Will Cresbo, living in Hawaii. Jane Doe entered into an online relationship with the fictional Cresbo, and Cresbo eventually facilitated an in-person meeting between Jane Doe and Duffin, supposedly Cresbo’s father. At the time, both Jane Doe and Duffin lived in Illinois. Duffin held himself out as a former talent scout for the television show America’s Got Talent and gave Jane Doe voice lessons beginning in November 2014. Jane Doe and Duffin engaged in sexual activities at these voice lessons and also had sexual intercourse at Duffin’s house in Illinois approximately five times. Jane Doe said Duffin planned to leave Chicago with her and live together, posing as father and daughter until she became eighteen, while still having sexual intercourse.

In March 2015, Jane Doe’s parents discovered she had lied about her whereabouts, and her parents subsequently restricted Jane Doe from leaving the house and limited her use of her computer and monitored her cell phone. Jane Doe and Duffin made plans to leave the state of Illinois when Jane Doe’s school was closed for spring break. On Saturday, April 4, 2015, Duffin picked up Jane Doe from her house and left for Arkansas. Once they arrived in Bentonville, Arkansas, Duffin and Jane Doe checked into a Motel 6 and had sexual intercourse.

Jane Doe’s parents reported her missing to the Chicago Police Department the same day Jane Doe and Duffin left the state of Illinois. Chicago Police Department investigators began to suspect Duffin after realizing the Cresbo Facebook account was fictitious and Duffin gave Jane Doe voice lessons. Investigators apprehended Duffin and Jane Doe in Arkansas and took Duffin into custody on April 9, 2015.

On June 3, 2015, Duffin was charged in a one-count indictment with knowingly transporting Jane Doe, then a thirteen-year-old female, in interstate commerce from Illinois to Arkansas with intent to engage in sexual' intercourse for which Duffin could be charged with a criminal offense under Ark. Code Ann. § 5-14-103(a)(3)(A), all in violation of 18 U.S.C. § 2423(a). Duffin’s jury trial began August 17, 2015. After the close of the government’s case, Duffin moved for acquittal pursuant to Federal Rule of Criminal Procedure 29 on the ground the government had not presented sufficient evidence that Duffin’s dominant purpose in transporting Jane Doe across state lines was to engage in criminal sexual conduct. The. district court found the government had presented sufficient circumstantial evidence of Duf-fin’s intent and denied the motion for acquittal. The jury returned a guilty verdict on August 19, 2015.

Following the jury trial, Duffin wrote Jane Doe a letter stating:

I took it to trial just so I could see you one last time.... I don’t know if you understand I’m going to prison for over 20 years. You understand that right? ... I’m going to try to get the prison in Kansas. Maybe when you’re old enough you would come visit me.

Duffin sent another letter to Jane Doe following the disclosure of the initial Pre-sentence Investigation Report (PSR) on December 22, 2015. Also in December 2015, the FBI recovered images stored on Duffin’s cell phone depicting Jane Doe engaged in sexually explicit conduct. An amended PSR was filed February 2, 2016, calculating Duffin’s advisory guideline sentence range as life imprisonment.

At the sentencing hearing held February 19, 2016, Jane Doe’s mother reported Duffin’s letters caused difficulty for Jane Doe and Jane Doe did not want to hear from Duffin. The district court then stated:

I don’t know if I can use the word “order,” but I am going to send as strong of an admonition as I possibly can, both to Mr. Duffin but also to the Federal Bureau of Prisons .... that they are to do what they can to ensure that there are no such communications, ever.

The. district court went on to say: “I have no way of actually supervising the people that monitor the mail, nor do I have the ability to know, much less supervise, any third-party schemes.”

The district court sentenced Duffin to 420 months imprisonment followed by supervised release for the remainder of his life. As part of its sentence, the district court included: “I am going to order you not to ever have contact with the victims in this case again. Period.” The district court went on to explain:

I’m going to ask that the recommendation section of the judgment in this case contain a specific recommendation that would actually be couched more in terms of an order that the defendant is ordered and that the BOP is requested to assist the Court in effectuating the order that Mr. Duffin is not to have any communication with “Jane Doe” or any of the other victims that have been identified in this hearing and that they are to, to the extent that they have the ability, are to examine outgoing mail in an appropriate way that does not otherwise violate Mr. Duffin’s rights, to intercept any attempts to communicate with the victims in this case.

Duffin’s defense attorney objected to the no-contact provision, questioning the district court’s authority to include such a provision as part of Duffin’s sentence. The district court reasoned “it is at least envisioned in other context [sic] whereby the court does have the authority to restrict communications by appropriate instruction to the BOP” and clarified:

[T]o the extent that the Court does not have the authority or that it is in some manner violative of Mr. Duffin’s constitutional rights, then the Court would nevertheless make a recommendation to the Bureau of Prisons that it intercept any such communications and do what it can to enforce a lack of contact or to enforce a no-contact provision between the defendant and these victims.

In the section of the judgment designated for recommendations- to the BOP, the district court included the following provision:

After the trial, the defendant sent two letters (from his detention facility) to the minor victim of his offense of conviction. Consequently, at the time of sentencing, and at the victim’s request, the Court ordered the defendant to have no contact with the primary victim in this case, LA, and a victim by means of relevant conduct,. MP— Therefore, to the extent permitted by its policies and procedures, it is recommended and requested that the BOP assist the Court in effectuating this order by examining the defendant’s outgoing mail and other communications in an appropriate manner that does not otherwise violate the defendant’s rights. If the BOP determines that the defendant has communicated (or attempted to communicate) with the aforementioned victims, the Court would recommend that the BOP take the Court’s no contact order into consideration when determining what, if any, penalties and sanctions would be appropriate to impose.

Duffin appeals both the district court’s denial of his motion for acquittal and the no-contact provision of his sentence. Having jurisdiction under 28 U.S.C. § 1291, we affirm Duffin’s conviction. We conclude we lack jurisdiction to review the no-contact provision.

II. DISCUSSION

A. Sufficiency of the Evidence

Duffin first argues the district court erred in denying his motion for acquittal because the evidence introduced at trial was insufficient for a reasonable jury to determine, beyond a reasonable doubt, that Duffin had the dominant motive of criminal sexual conduct in transporting Jane Doe across state lines. “We review the denial of a motion for judgment of acquittal de novo, viewing the evidence in the light most favorable to the verdict. We will reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt.” United States v. McArthur, 836 F.3d 931, 938-39 (8th Cir. 2016) (citation omitted).

We agree with the district court the circumstantial evidence presented in this case was sufficient. Section 2423(a) prohibits “knowingly transporting] an individual who has not attained the age of 18 years in interstate or foreign commerce ... with intent that the individual engage in .prostitution, or in any sexual activity for which any person can be charged with a criminal offense.”

Duffin concedes he transported Jane Doe in interstate commerce, Jane Doe was under the age of fourteen years old at the time of the travel, and sexual intercourse with a person less than fourteen years of age is a crime under the law of Arkansas, yet Duffin argues the government did not prove he had the required intent to engage in criminal sexual intercourse with Jane Doe. To satisfy the intent element of § 2423(a), “illicit behavior must be ‘one of the purposes motivating the interstate transportation,’ but need not be the dominant purpose.” United States v. Cole, 262 F.3d 704, 709 (8th Cir. 2001) (quoting United States v. Vang, 128 F.3d 1065, 1071 (7th Cir. 1997)). “The sexual activity just may not be merely incidental to' the trip.” United States v. Hoffman, 626 F.3d 993, 996 (8th Cir. 2010).

Duffin argues the fact that Duffin and Jane Doe engaged in sexual intercourse in Illinois demonstrates Duffin did not have the requisite intent because it was not necessary for him to travel across state lines to engage in sexual intercourse. However, shortly before Duffin and Jane Doe left Illinois, Jane Doe’s parents grounded her, limited her computer use, and began monitoring her cell phone. Jane Doe would not have been able to engage in sexual contact with Duffin. Jane Doe’s testimony that (1) Duffin planned to hold her out as his daughter in Arkansas while still having sexual intercourse with her, and (2) they engaged in sexual intercourse immediately after arriving in Arkansas provides sufficient circumstantial evidence that a reasonable jury could find Duffin had the intent of transporting Jane Doe across state lines to engage in criminal sexual activity. See Cole, 262 F.3d at 709 (reasoning the defendant’s intent could be inferred from the fact that the defendant transported a minor across state lines shortly after being ordered' to have no contact with her and because the defendant engaged in sexual intercourse -with the victim their first night out of state). The district court did not err in denying Duffin’s motion for acquittal.

B. No-Contact Provision

Duffin also argues the district court did not have the authority to order him not to have contact with his victims. We review a court’s authority to impose a particular sentence de novo. See United States v. Johnson, 517 F.3d 1020, 1023 (8th Cir. 2008). However, “a non-binding recommendation to the BOP is not reviewable as it is not a final decision of the district court.” United States v. Kerr, 472. F.3d 517, 520 (8th Cir. 2006).

The district court stated it was going to “order [Duffin] not to ever have contact with the victims in this case again” and later clarified this was a recommendation for the BOP to be included in the recommendation section of the judgment. To the extent the district court ordered Duffin not to have contact with his victims, the district court does not have statutory authority to issue such an order. See 18 U.S.C. § 3551 (authorizing only - sentences of a term of probation, a fine, or a term of imprisonment).

We do not have jurisdiction to review the provision recommending the BOP monitor Duffin’s communications. See Kerr, 472 F.3d at 520, The First Circuit determined a provision included in a sentence was an order and not a recommendation because the district court’s oral comments made clear the provision was an order and “[njotably,’ the court did not utilize a space in the sentencing form earmarked for recommendations to the Bureau of Prisons.” United States v. Cintron-Fernandez, 356 F.3d 340, 345 (1st Cir. 2004). Unlike the provision in Cintron-Fernandez, the district, court here clarified to “the extent it [did not] have authority” it would nonetheless make a recommendation to the BOP, which was then included in the space on the sentencing form marked for recommendations to the BOP. Though the district court had no authority to order Duffin not to have contact with his victims, the actual .provision was only included in. the recommendation section of the judgment, and thus we do not have jurisdiction to review it on, appeal. See Kerr, 472 F.3d at 520.

III. CONCLUSION

Because there was sufficient evidence to support the jury verdict and because we interpret the no-contact provision as a nonbinding recommendation to the BOP over which we have no jurisdiction,, we affirm.

      . The Honorable Timothy L. Brooks, United States District Judge for' the Western District of Arkansas.

      . Duffin also used the Cresbo Facebook profile to communicate with and solicit explicit photographs from at least one other minor.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee v. German ROBLES-GARCIA, Defendant-Appellant
    No. 15-3364
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 19, 2016
    Filed: December 29, 2016
    Counsel who represented the appellant was Chad Douglas Primmer of Council Bluffs, IA.
    Counsel who represented the appellee was Shawn Wehde, AUSA, of Sioux City, IA.
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
   PER CURIAM.

German Robles-Garcia appeals the district court’s discretionary reduction of his sentence under 18 U.S.C. § 3582(c)(2). We affirm.

Following a jury trial in 2010, Robles-Garcia was convicted of conspiracy to distribute less than 50 grams of methamphetamine mixture, 50 grams or more of actual (pure) methamphetamine, and 5 kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). He was also convicted of kidnapping in violation of 18 U.S.C. § 1201. At sentencing, the district court found a total offense level of 42 and a criminal history category of I, resulting in an advisory sentencing guidelines range of 360 months to life in prison. The district court sentenced Robles-Garcia to two concurrent terms of 600 months. We upheld his conviction and original sentence in United States v. Rodriguez-Ramos, 663 F.3d 356 (8th Cir. 2011).

In 2014, the United States Sentencing Commission revised certain sentencing guidelines and made those revisions retroactive. See U.S.S.G. § lB1.10(d) (designating Amendment 782 for retroactive.application). Accordingly, Robles-Garcia filed a motion in the district court to reduce his sentence under 18 U.S.C. § 3582(c)(2). After finding Robles-Garcia eligible for a reduced sentence, the district court found an amended total offense level of 40 and a criminal history category of I. This resulted in an amended guidelines range of 292 to 365 months in prison. Citing the particularly violent nature of Robles-Garcia’s crime, the aggravating factors found at his original sentencing, and the need to protect the public, the district court reasoned it would “be well within [its] discretion ... to reimpose the 600-month sentence.” But, wishing to give Robles-Garcia credit for the “positive steps he’s taken in prison” as well as the benefit of the retroactive guidelines, the district court reduced the sentence to 500 months. On appeal, it is undisputed that Robles-Garcia was eligible for a sentence reduction and that the district court properly calculated the amended guidelines range. Robles-Garcia argues only that the district court erred in considering the factors relevant to the total reduction in his sentence. Specifically, he argues the district court improperly considered his original within-guidelines sentence and failed to give sufficient weight to his rehabilitative efforts while in prison.

‘We review the district court’s decision on an 18 U.S.C. § 3582(c)(2) motion for an abuse of discretion.” United States v. Anderson, 707 F.3d 973, 974 [8th Cir. 2013) (per curiam). Where a defendant is eligible for a reduced sentence under § 3582(c)(2), “the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Further, “[t]he court shall consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant’s term of imprisonment.” U.S.S.G. § 1B1.10 cmt. n.1(B)(ii). The court, moreover, “may consider the post-sentencing conduct of the defendant.” Id. § 1B1.10 cmt. n.1(B)(iii).

We find the district court did not improperly consider or give significant weight to Robles-Garcia’s original within-guidelines sentence. The district court considered the original sentence only to the extent that it still reflected the court’s balancing of the § 3553(a) factors. In' any event, § 3582(c)(2) “authorize^] only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Dillon v. United States, 560 U.S. 817, 826, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). And even where a defendant is eligible for a reduction, “§ 3582(c)(2) does not entitle any defendant to a reduced sentence,” let alone a particular reduction. See United States v. Long, 757 F.3d 762, 764 (8th Cir. 2014). Thus, as a practical matter, the original “otherwise final sentence” is a valid consideration within the district court’s discretion so long as it bears a reasonable relationship to the factors under § 3582(c)(2).

Finding no abuse of .discretion in the district court’s consideration or explanation of the other factors relevant in its decision to decrease Robles-Garcia’s sentence by 100 months, we affirm.

      . The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa.