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United States v. Fuehrer

United States Court of Appeals, Eighth Circuit

December 28, 2016

United States of America Plaintiff- Appellee
Mark Fuehrer Defendant-Appellant

          Submitted: September 23, 2016

         Appeal from United States District Court for the Northern District of Iowa - Dubuque

          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[1] 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.


         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 Dubuque 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 Kearney then informed Fuehrer that the canine had alerted to the presence of narcotics, and Deputy Williams gave Fuehrer his Miranda[2] 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[3]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 presentence 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 3, 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 ...

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