UNITED STATES of America, Plaintiff-Appellee, v. Denzil Roy MONTAGUE, Jr., Defendant-Appellant.
No. 10-15693
United States Court of Appeals, Eleventh Circuit.
Aug. 15, 2011.
438 F. App‘x 833
Non-Argument Calendar.
Huls also argues that the district court erred in denying his motion for leave to amend his complaint a second time, which he filed after the court dismissed his complaint. His notice of appeal, however, specified only that he was appealing from the district court‘s 7 June 2010, 2010 WL 2293187, order dismissing his complaint and from the magistrate judge‘s 27 April 2010 order denying him leave to use the court‘s electronic filing system.
“Where an ‘appellant notices the appeal of a specified judgment only ... this court has no jurisdiction to review other judgments or issues which are not expressly referred to and which are not impliedly intended for appeal.‘” Whetstone Candy Co. v. Kraft Foods, Inc., 351 F.3d 1067, 1079-80 (11th Cir.2003). It is well settled, however, “that an appeal is not lost if a mistake is made in designating the judgment appealed from where it is clear that the overriding intent was effectively to appeal,” Albra v. Advan, Inc., 490 F.3d 826, 828 n. 1 (11th Cir.2007), “at least where the order that was not designated was entered prior to or contemporaneously with the order(s) properly designated in the notice of appeal.” KH Outdoor, LLC v. City of Trussville, 465 F.3d 1256, 1260 (11th Cir.2006).
Construed liberally, nothing in Huls‘s notice of appeal indicated that he intended to appeal the court‘s order denying him leave to amend his complaint. Moreover, that order—filed on 16 July 2010—was not entered prior to or contemporaneously with the orders designated in his notice of appeal. See id. As a result, we lack jurisdiction to review this issue. See Whetstone, 351 F.3d at 1079-80.
AFFIRMED.
Anne R. Schultz, John D. Couriel, Wifredo A. Ferrer, U.S. Attorney, William C. Healy, Jamie M. McCall, Kathleen M. Salyer, U.S. Attorney‘s Office, Miami, FL, for Plaintiff-Appellee.
Gail M. Stage, Federal Public Defender‘s Office, Ft Lauderdale, FL, Kathleen M. Williams, Federal Public Defender, Federal Public Defender‘s Office, Miami, FL, for Defendant-Appellant.
Before HULL, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Denzil Montague Jr. appeals his conviction and 235-month sentence for possession of a firearm and ammunition by a convicted felon, in violation of
A district court‘s ruling on a motion to suppress presents a mixed question of law and fact. United States v. Bautista-Silva, 567 F.3d 1266, 1271 (11th Cir.2009). We review the district court‘s factual findings for clear error and review de novo the district court‘s application of the law to the facts. We also review de novo whether reasonable suspicion justified the investigatory stop. Id. All facts are construed in the light most favorable to the prevailing party below. United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir.2000).
“Evidence obtained in violation of the Fourth Amendment must be suppressed.” United States v. Jordan, 635 F.3d 1181, 1185 (11th Cir.2011). The Fourth Amendment, however, does not prohibit a police officer from seizing a suspect for a brief, investigatory stop where the officer has a reasonable suspicion that the suspect was involved in, or is about to be involved in, criminal activity. Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “[R]easonable suspicion is a less demanding standard than probable cause,” but requires “at least a minimal level of objective justification for making the stop” in light of the totality of the circumstances. Jordan, 635 F.3d at 1186.
In connection with a Terry stop, a police officer who has reason to believe that he is dealing with an armed and dangerous individual may also conduct a reasonable search for weapons in support of his own protection and that of others, even if he is not absolutely certain that the individual is armed. Terry, 392 U.S. at 27, 88 S.Ct. 1868. An officer may conduct a Terry pat-down search for weapons on a suspect‘s person if the requisite reasonable suspicion is present, and that search may continue when an officer feels a concealed object that he reasonably believes may be a weapon. United States v. Clay, 483 F.3d 739, 743-44 (11th Cir.2007).
Here, the Government contends that when the officers conducted the Terry stop and frisk, they had a reasonable suspicion that Montague was committing the offense of carrying a concealed firearm. A security guard who had previously provided reliable information reported to one of the officers that Montague had a firearm, and Montague does not contest that the guard was a reliable source. Montague argues, however, that even with the information provided by the guard, the officers could not have reasonably suspected that he was engaging in criminal activity because under Florida law it is not illegal to possess a concealed weapon if the carrier has a permit.
Florida law provides: “A person who carries a concealed firearm on or about his or her person commits a felony of the third degree.”
Montague relies upon Regalado v. State, 25 So.3d 600 (Fla. 4th DCA 2009), a Florida Fourth District Court of Appeal decision, to argue that there was no reasonable
Because it is legal to carry a concealed weapon in Florida, if one has a permit to do so, and no information of suspicious criminal activity was provided to the officer other than appellant‘s possession of a gun, the mere possession of a weapon, without more, cannot justify a Terry stop.
In contrast, in State v. Navarro, 464 So.2d 137, 139-40 (Fla. 3rd DCA 1985), the en banc Florida Third District Court of Appeal, while not explicitly addressing the possibility of a concealed weapons permit,3 found that probable cause existed to pat down and search a defendant where the officer observed the bulge of what appeared to be a concealed firearm protruding from the defendant‘s jacket. The court adopted the dissenting opinion from the panel decision, holding that the “officers’ observation of the outline of a firearm amounted to probable cause to believe that [the defendant] was carrying a concealed weapon, justifying not merely a pat-down, but a search.” Id. at 139; see also State v. Burgos, 994 So.2d 1212, 1214 (Fla. 5th DCA 2008) (holding that a suspect‘s admission that he was carrying a weapon supported a reasonable suspicion that he was committing a crime because “[a]lthough some citizens do have the right to carry concealed firearms lawfully, the vast majority do not“).
“[I]n the absence of interdistrict conflict, district court decisions bind all Florida trial courts” unless and until they are overruled by the Florida Supreme Court. Pardo v. State, 596 So.2d 665, 666 (Fla.1992). “[I]f the district court of the district in which the trial court is located has decided the issue, the trial court is bound to follow it. Contrarily, as between District Courts of Appeal, a sister district‘s opinion is merely persuasive.” Id. at 666-67 (quotation omitted).
The holding of Navarro, a Third District Court of Appeal case, is binding upon Montague‘s case because it occurred in that district, and Florida courts would only consider the holding of Regalado, a Fourth District Court of Appeal case, as persuasive. See Pardo, 596 So.2d at 666-67. Under the facts of this case, the officers did not need to ascertain whether Montague had a permit before they conducted a Terry stop and search because they had reasonable suspicion that he was carrying a concealed weapon based on a reliable informant‘s tip that Montague was carrying a gun.
II. SUBSTANTIVE REASONABLENESS OF MONTAGUE‘S SENTENCE
We review a sentence for reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “Although we do not automatically presume a sentence within the guidelines range is reasonable, we ‘ordinarily expect a sentence within the Guidelines range to be reasonable.‘” United States v. Hunt, 526 F.3d 739, 746 (11th Cir.2008) (ellipsis omitted) (quoting United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005)).
At the sentencing hearing, the district court, in considering the
III. CONCLUSION
Upon review of the record and consideration of the parties’ briefs, we affirm.
AFFIRMED.
UNITED STATES of America, Plaintiff-Appellee, v. Shirley DANIELS, a.k.a. Miss Shelly, Defendant-Appellant.
No. 10-11820
United States Court of Appeals, Eleventh Circuit.
Aug. 15, 2011.
438 F. App‘x 837
Non-Argument Calendar.
Judy K. Hunt, Walter Eugene Furr, III, Tamra Phipps, U.S. Attorney‘s Office, Tampa, FL, Simon A. Gaugush, U.S. Attorney‘s Office, Ft. Myers, FL, for Plaintiff-Appellee.
Robert Scott Andringa, R. Scott Andringa, Esq., LLC, Largo, FL, Robert Scott Andringa, Attorney at Law, Clearwater, FL, Shirley Daniels, FMC Carswell-Inmate Legal Mail, Fort Worth, TX, for Defendant-Appellant.
Before EDMONDSON, HULL and PRYOR, Circuit Judges.
PER CURIAM:
R. Scott Andringa, appointed counsel for Shirley Daniels, in this direct criminal appeal, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel‘s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel‘s motion to withdraw is GRANTED, and Daniels‘s conviction and sentence are AFFIRMED.
UNITED STATES of America, Plaintiff-Appellee, v. Henry WAINWRIGHT, Defendant-Appellant.
No. 10-14245
United States Court of Appeals, Eleventh Circuit.
Aug. 15, 2011.
438 F. App‘x 837
Non-Argument Calendar.