United States v. Cliff Leonard Meryl, 11th Cir. (2009)

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
No. 08-10973
Non-Argument Calendar
________________________
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 9, 2009
THOMAS K. KAHN
CLERK
D. C. Docket No. 06-00039-CR-4-SPM-WCS-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFF LEONARD MERYL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(April 9, 2009)
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Cliff Leonard Meryl appeals from his convictions and 37-month total
sentence for distribution of cocaine, in violation of 21 U.S.C. 841(a)(1), (b)(1)(C)
(Count 1); possession of a firearm by a convicted felon, in violation of 18 U.S.C.
922(g)(1) and 924(a)(2) (Count 4); and possession of a stolen firearm, in

violation of 18 U.S.C. 922(j) and 924(a)(2) (Count 5). On appeal, Meryl argues
that the district court erred in: (1) denying his motion to suppress the firearm found
by police at his residence upon execution of a search warrant because the search
warrant affidavit did not give the police probable cause for the search; and (2)
applying the four-level enhancement for possession of a firearm in connection with
another felony, under U.S.S.G. 2K2.1(b)(6), because it relied on judge-found
facts to impose the enhancement, in violation of the Sixth Amendment.
After
careful review, we affirm.

In reviewing a district courts ruling on a motion to suppress, we review
findings of fact for clear error and the application of the law to those facts de
novo. United States v. Martinelli, 454 F.3d 1300, 1306 (11th Cir. 2006). In
reviewing whether an affidavit established probable cause, we give due weight to
inferences drawn from findings of fact by resident judges and local law
enforcement officers. United States v. Jiminez, 224 F.3d 1243, 1248 (11th Cir.
2000). In considering sentencing issues, we review the district courts findings of
fact for clear error, and its conclusions of law, including application of the
sentencing guidelines, de novo. United States v. Hunter, 172 F.3d 1307, 1308
(11th Cir. 1999). A sentencing issue not raised in the district court is reviewed for
plain error. United States v. Richardson, 166 F.3d 1360, 1361 (11th Cir. 1999).
Under the plain error standard, we will correct an error only if there is: (1) error;
(2) that is plain or obvious; (3) that affects the defendants substantial rights; and
(4) that seriously affects the fairness, integrity, or public reputation of a judicial
proceeding. United States v. Williams, 469 F.3d 963, 966 (11th Cir. 2006).
We reject Meryls claim that the district court erred in denying his motion to
suppress the firearm. Searches and seizures inside a residence without a warrant
are presumptively unreasonable, absent probable cause and exigent circumstances.
United States v. Santa, 236 F.3d 662, 668 (11th Cir. 2000).
Before a valid
warrant may issue, an affidavit must be submitted to the court setting forth the
necessary facts and circumstances whereby the judge may determine probable
cause. United States v. Hawes, 529 F.2d 472, 480 (5th Cir. 1976).1
The exclusionary rule bars the use of evidence seized as the result of an
illegal search by the government in a subsequent criminal prosecution. United
States v. Martin, 297 F.3d 1308, 1312 (11th Cir. 2002). Under the good faith
exception, however, courts generally should not render inadmissible evidence
obtained by police officers acting in reasonable reliance upon a search warrant that
is ultimately found to be unsupported by probable cause. Id. at 1312-13 (citing
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted
as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
3
United States v. Leon, 468 U.S. 897 (1984)). The good faith exception applies in
all but the following four circumstances:
(1) where the magistrate or judge issuing a warrant was misled by
information in an affidavit that the affiant knew was false or would
have known was false except for his reckless disregard of the truth;
(2) where the issuing magistrate wholly abandoned his judicial
role . . .; (3) where the affidavit supporting the warrant is so lacking
in indicia of probable case as to render official belief in its existence
entirely unreasonable; and (4) where, depending upon the
circumstances of the particular case, a warrant is so facially deficient
-- i.e., in failing to particularize the place to be searched or the things
to be seized -- that the executing officers cannot reasonable presume it
to be valid.
Id. at 1313 (citing Leon, 468 U.S. at 923).
To establish probable cause, the search warrant affidavit must state facts
sufficient to justify a conclusion that evidence or contraband will probably be
found at the premises to be searched. Id. at 1314 (quotation omitted). In other
words, the affidavit must contain sufficient information to conclude that a fair
probability existed that seizable evidence would be found in the place sought to be
searched. Id. (quotation omitted). In reviewing whether the affidavit establishes
probable cause, the magistrate must make a practical, common-sense decision
whether, under all the circumstances set forth, there is a fair probability that
contraband or evidence will be found. United States v. Butler, 102 F.3d 1191,
1198 (11th Cir. 1997).
Information in the affidavit should establish a connection between the

defendant and the residence to be searched and a link between the residence and
any criminal activity. Martin, 297 F.3d at 1314. Information that the defendant
possesses contraband that is of the type that normally would be hidden at his
residence may support a probable cause finding. See United States v. Jenkins, 901
F.2d 1075, 1080-81 (11th Cir. 1990).
Under the staleness doctrine, information supporting the governments
application for a warrant must show that probable cause exists at the time the
warrant issues. United States v. Bervaldi, 226 F.3d 1256, 1264 (11th Cir. 2000).
However, there is no particular time limit for when information becomes stale and
staleness must be judged on the particular facts of each case. Id. at 1265. In cases
involving ongoing criminal activity, the passage of time is less important regarding
a finding of probable cause. Id.
The record here shows that the search warrant affidavit established a fair
probability that evidence of drug activity or drugs would be found at Meryls
residence. Several references were made in the affidavit to the fact that before and
after Meryl conducted a couple of drug transactions with a confidential informant,
he was at his residence, even though he moved residences between the two
transactions. In addition, at the last meeting, a drug dog alerted to the presence of
drugs in Meryls vehicle, and shortly after Meryl left, police found two ounces of
cocaine under a vehicle that was parked next to his vehicle, in a location where he
could have thrown it. This information -- including information regarding the first
drug transaction -- was relevant and not stale because it supported the district
courts findings that Meryl was involved in ongoing drug activity, see Bervaldi,
226 F.3d at 1265, and that Meryl did not have some other base of operations
other than his residence. Combined with the district courts common-sense finding
that drug dealers are likely to keep evidence of their drug business at home, the
district courts findings showed a fair probability that evidence of drug activity
would be found at Meryls residence. See Butler, 102 F.3d at 1198; Jenkins, 901
F.2d at 1080-81.
Thus, probable cause supported the search warrant and the
district court properly denied Meryls suppression motion.
And in any event,
because there was no indication that the police acted recklessly or lacked a
reasonable belief in the existence of probable cause, the district court properly
denied the suppression motion according to the good faith exception. See Martin,
297 F.3d at 1313.
We also find no merit in Meryls claim that the district court plainly erred
applying the four-level enhancement for possession of a firearm in connection with
another felony.
The Sentencing Guidelines mandate a four-point offense level
enhancement if the defendant used or possessed any firearm or ammunition in

connection with another felony offense.
U.S.S.G. 2K2.1(b)(6).
The
commentary from the Sentencing Commission explains that this enhancement

applies in the case of a drug trafficking offense in which a firearm is found in
close proximity to drugs, drug-manufacturing material, or drug paraphernalia
because the presence of the firearm has the potential of facilitating another . . .
offense. U.S.S.G. 2K2.1 cmt. n.14(B).
The Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466 (2000),
that any fact used to sentence a defendant beyond the statutory maximum, other
than the fact of a prior conviction, must be proven beyond a reasonable doubt to a
jury.
See United States v. Thomas, 446 F.3d 1348, 1354 (11th Cir. 2006).
Nonetheless, facts supporting a sentence enhancement need only be proven to a

sentencing judge by a preponderance of the evidence if the defendants sentence
remains within the statutory sentencing range. See United States v. Duncan, 400
F.3d 1297, 1304-05 (11th Cir. 2005). As the Supreme Court explained in United
States v. Booker, 543 U.S. 220 (2005), when a trial judge exercises his discretion
to select a specific sentence within a defined range, the defendant has no right to a
jury determination of the facts that the judge deems relevant.
Id. at 233.
Furthermore, the district court may consider a defendants relevant conduct,
including conduct for which he was acquitted, in finding by a preponderance of the

evidence that such an enhancement is appropriate. Duncan, 400 F.3d at 1304-05.
Indeed, [t]he burden of establishing evidence of the facts necessary to support a
sentencing enhancement falls on the government, and it must do so by a
preponderance of the evidence. United States v. Perez-Oliveros, 479 F.3d 779,
783 (11th Cir. 2007).
The district court did not plainly err in enhancing Meryls offense level four
points under 2K2.1(b)(6).2 As the record shows, the district court properly found
by a preponderance of the evidence that Meryl possessed a firearm in connection
with another felony offense because of the proximity between the firearm and the
drugs found in the same cabinet in his kitchen. See U.S.S.G. 2K2.1(b)(6) & cmt.
n.14(B). Taking into account this enhancement, neither Meryls sentencing range
nor his 37-month total sentence exceeded the statutory maximum sentences for
Counts 1, 4 and 5, which were 20 years, 10 years, and 10 years, respectively. 21
U.S.C. 841(b)(1)(C); 18 U.S.C. 924(a)(2). The district court thus had the
power to make the factual findings underlying the enhancement and it is irrelevant
Meryl only challenged this enhancement in the district court on a factual basis, arguing that
the facts did not support the enhancement. He has abandoned that argument on appeal in favor of
the legal argument that the district court improperly applied the enhancement based on judge-found
facts related to conduct for which he was not convicted. United States v. Ardley, 242 F.3d 989, 990
(11th Cir. 2001). Because he did not raise this legal argument below, we review for plain error only.
See Richardson, 166 F.3d at 1361.
8
whether some of those facts also related to one of the counts of which he was not
convicted. See Duncan, 400 F.3d at 1304-05.
Moreover, because the district court did not err in applying the four-level
firearm possession enhancement or calculating his guideline range, Meryls
suggestion that his sentence was unreasonable on these grounds must fail. And to
the extent that Meryl suggests that a sentence outside of the guidelines range is
presumptively unreasonable, this argument has been rejected explicitly by the
Supreme Court. Rita v. United States, 127 S. Ct. 2456, 2467 (2007) ([A]ppellate
courts may not presume that every variance from the advisory Guidelines is
unreasonable.).
AFFIRMED.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

D. C. Docket No. 06-00039-CR-4-SPM-WCS-1

922(g)(1) and 924(a)(2) (Count 4); and possession of a stolen firearm, in

careful review, we affirm.

Information in the affidavit should establish a connection between the

Thus, probable cause supported the search warrant and the

district court properly denied Meryls suppression motion.

And in any event,

The Sentencing Guidelines mandate a four-point offense level

enhancement if the defendant used or possessed any firearm or ammunition in

commentary from the Sentencing Commission explains that this enhancement

Nonetheless, facts supporting a sentence enhancement need only be proven to a

Furthermore, the district court may consider a defendants relevant conduct,

including conduct for which he was acquitted, in finding by a preponderance of the

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