Appeal from the United States District Court for the District of Minnesota.
The opinion of the court was delivered by: Riley, Circuit Judge
Submitted: November 11, 2008
Before MURPHY, RILEY, and GRUENDER, Circuit Judges.
Larry Darnell Armstrong (Armstrong) was charged with being a felon in possession of a firearm and an armed career criminal. The district court*fn1 denied Armstrong's motion to suppress the firearm under the Fourth Amendment, and Armstrong pled guilty. At sentencing, the district court found Armstrong was an armed career criminal under the Armed Career Criminal Act (ACCA), and Armstrong was sentenced to the ACCA mandatory minimum of 180 months imprisonment.
Armstrong challenges the denial of his motion to suppress, and his sentence as an armed career criminal. We affirm.
On June 29, 2006, a search warrant was issued by the District Court of Blue Earth County, Minnesota, granting police officers the authority to search the residence and vehicle of Armstrong and his girlfriend, Vera Gant (Gant). The police officers had probable cause to believe Armstrong and Gant used a stolen credit card to make several purchases, including the purchase of wheel rims on their vehicle. The warrant authorized the police officers to look for evidence of the fraudulent purchases made by Armstrong and Gant.
On the same day the warrant was issued, Mankato, Minnesota, police officers executed the warrant. Officer William Reinbold (Officer Reinbold), a member of the Minnesota Valley Drug Task Force, assisted in the execution of the warrant. Officer Reinbold entered the residence and searched the bedroom. Upon entering the bedroom, Officer Reinbold noticed a small plastic container which resembled a hotel ice bucket. Officer Reinbold searched the container looking for stolen credit cards and receipts. In the bucket, Officer Reinbold found a small electronic digital scale and a razor blade with white residue. Officer Reinbold field tested the white residue, and the test revealed the residue contained cocaine. Officer Reinbold told his partner about the field test results, and his partner and another officer immediately arrested Armstrong and Gant for possession of narcotics. During the same search, other officers found cocaine residue in a small jeweler-sized plastic bag in the center console of Armstrong's vehicle, and also found approximately ten unused jeweler-sized bags in the residence's kitchen closet.
After Officer Reinbold finished searching the container, he proceeded to search the bedroom closet about three to five feet from the container. Officer Reinbold moved clothes on the floor of the closet and uncovered a small black case. Officer Reinbold opened the unlocked end of the case to look for credit cards and receipts, and noticed a Bersa Thunder .380 handgun with ammunition in the case. Officer Reinbold seized the handgun and gave it to another officer to compare the serial number with serial numbers of stolen firearms. The serial number check revealed the handgun was stolen, and a subsequent background check of Armstrong revealed Armstrong was a convicted felon.
Armstrong was indicted on one count of being a felon in possession of a firearm under 18 U.S.C. § 922(g). The indictment also charged Armstrong with being an armed career criminal under 18 U.S.C. § 924(e). Armstrong moved the district court to suppress the handgun because it was obtained in violation of the Fourth Amendment. The district court referred the motion to a magistrate, and on February 13, 2007, the magistrate conducted a hearing on the motion to suppress. During the hearing, the government called Officer Reinbold. Officer Reinbold testified about his participation in the search, and stated his training and experience led him to believe Armstrong and Gant were engaged in narcotics dealing when he found the electronic digital scale and razor blade with cocaine residue. Officer Reinbold also testified the handgun in the vicinity of the narcotics on the scale and razor blade evidenced narcotics dealing. The magistrate recommended the district court deny Armstrong's motion to suppress the handgun because the handgun's incriminating character was immediately apparent under the plain view doctrine after the scale and razor blade with cocaine residue provided probable cause to suspect drug trafficking.
The district court reviewed the magistrate's recommendation and remanded the motion for the magistrate to elicit expert testimony on whether the small electronic digital scale would be a tool of drug trafficking, and whether the scale in combination with the other items found at the residence supported a conclusion of probable cause to suspect drug trafficking. On remand, the magistrate conducted a hearing at which the government called Officer Keith Mortensen (Officer Mortensen) and Officer John Boulger (Officer Boulger). Officer Mortensen testified he had been an officer for over eleven years and participated in approximately thirty drug related search warrants. Officer Mortensen explained the jeweler-sized plastic bags found in Armstrong's kitchen and vehicle were sometimes used for controlled substances, and the electronic digital scale would be a useful tool in drug distribution. Officer Boulger, a stipulated expert in the drug trade, reported he had seen the type of scale found in the residence used for drug trafficking "on hundreds of occasions," and opined the electronic digital scale, razor blade, and plastic bags found in Armstrong's kitchen and in the car's center console would lead him to believe drug trafficking was occurring.
Based upon the testimony of Officer Mortensen and Officer Boulger, the magistrate issued a supplemental report to the district court recommending Armstrong's motion to suppress be denied, because the small electronic digital scale and cocaine residue were sufficient evidence to establish probable cause that drug trafficking was occurring. On July 10, 2007, the district court adopted the magistrate's supplemental recommendation, and denied Armstrong's motion to suppress the handgun. The district court found the testimony of Officer Boulger and Officer Mortensen established a reasonable officer would have probable cause to believe drug trafficking was occurring based on the small electronic digital scale, razor blade and the cocaine residue, together with the absence of any evidence indicating personal cocaine use.
After the district court denied Armstrong's motion to suppress, Armstrong entered a conditional plea of guilty, reserving the right to appeal the district court's ruling on his motion to suppress. At sentencing, the government argued Armstrong should be classified as an armed career criminal subject to the mandatory minimum sentence of 180 months imprisonment under 18 U.S.C. § 924(e)(1). The government claimed Armstrong's presentence investigation report (PSR) contained five prior felony convictions in Minnesota state court which qualified as "violent felon[ies]" under § 924(e)(2)(B). These convictions included a 1990 theft of a motor vehicle, a 1990 residence burglary, a 1992 simple robbery involving the mugging of a woman and stealing her purse, a 1997 theft of a motor vehicle, and a 2004 third degree attempted burglary of a store.
Armstrong objected to the use of his auto thefts and attempted burglary convictions as predicate offenses under the ACCA. Armstrong claimed the auto thefts were not violent felonies, and the attempted burglary conviction should not be used because Armstrong had not sufficiently waived his Sixth Amendment right to counsel during the state court plea and sentencing proceedings. In response to Armstrong's arguments, the district court found Armstrong's auto theft convictions were violent felonies and determined Armstrong was an armed career criminal based upon the auto thefts, burglary, and simple robbery convictions. In its ruling, the district court did not include Armstrong's attempted burglary conviction in the ACCA determination, because the district court found Armstrong ...