Case Information
*1 Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
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MELLOY, Circuit Judge.
Mаrk 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. [1]
*2 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 devicе 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. *3 Dеputy 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 stоp, 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 warnings. Officers searched the vehicle and [2]
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 thе 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 cаr 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 аnother 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 *4 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 supprеss, 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 аrgued 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.
*5 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,
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,
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,
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
nоt need reasonable suspicion to continue the detention until the purpose of the traffic
stop has been completed.” United States v. Ovando-Garzo,
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,
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,
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
*8
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,
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. § 4B1.1(a). Prior convictions must be countеd 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 sеcond 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
*9
arrest. See Williams,
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 сharged 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 imрosed 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 cоnduct. 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)(1), 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 оffense” refers to the current offense for which a defendant is being sentenced. U.S.S.G. § 1B1.1 cmt. n.1(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.1.
*10 In this case, Fuehrer’s “instant offense” is possession of methamphetаmine 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.
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Notes
[1] The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.
[2] Miranda v. Arizona,
[3] The Honorable Jon S. Scoles, United States Chief Magistrate Judge for the Northern District of Iowa.