Page 32 - TPA Journal January February 2024

court’s “review of the transcript of the traffic stop con- case, Alkheqani tried to show that possession of the
firm[ed] that [defendant] was responsive to [the offi- firearm was lawful under state law. Both of these posi-
cer’s] questions and understood the import of the traf- tions are supported by the record and are plausible, and
fic stop.” Moreover, the Fifth Circuit also agreed with this underscores why there is no clear error here. As the
the district court, which noted that defendant’s “previ- Government argues, Alkheqani did say numerous
ous interactions with police indicated that [defendant] times he had nothing to hide, and a reasonable infer-
was not a newcomer to the law” and that “[defendant’s] ence from his statement that “I have a .22 rifle in the
helpful demeanor during the stop, his interaction with back room. It’s my wife’s, she uses it,” isthat he
the police, and his testimony indicated that he was at believed there was nothing wrong with his wife pos-
least of average intelligence.” Thus, there was no clear sessing it. At the very least, we are not left with “a def-
error. See also United States v. Galberth, (finding that inite and firm conviction that a mistake has been com-
defendant’s “prior experience with the criminal justice mitted,” and there is no clear error.
system” also “weigh[ed] in favor of the district court’s
finding of a valid consent to the search”). We agree with the district court that four factors weigh
in favor of voluntariness, one indicates involuntari-
The same reasoning applies here. Despite his limited ness, and one is, at most, neutral. Considering the
formal education, Alkheqani’s age; prior experience record as a whole and the totality of the circumstances,
with the justice system (“No, I understand, it’s not my and construing the evidence in a light most favorable
first.”); review of and question about the consent forms to the Government, the district court’s decision was
(i.e., asking why the form asked about stolen property); plausible, so there is no reversible error.
and interaction with the officers as a whole make the
district court’s conclusion plausible. Thus, construing (Additional sentencing discussion omitted.)
the evidence in a light most favorable to the
For the reasons discussed, we AFFIRM the district
Government, there is no clear error.
court’s denial of Alkheqani’s motion to suppress,
Defendant’s Belief Incriminating Evidence Would Be REVERSE the district court’s application of the Armed
Found Career Criminal Act, VACATE the sentence, and
REMAND for full resentencing consistent with this
“An awareness or belief that no incriminating evidence opinion.
will be found weighs in favor of a finding of volun-
US v. Alkheqani, Fifth Cir., Aug 17, 2023, No. 21-
tariness. Consequently, an awareness or belief that
some incriminating evidence will be found weighs 10966.
against a finding of voluntariness.” The district court
concluded this factor was “at best neutral, and perhaps
weigh[ed] slightly in favor of voluntariness.” On the EVIDENCE, ALTERING ( Flushing the dope)
one hand, Alkheqani “expressed worry that police
would find marijuana in his house,” but, on the other, Sholomo David, Appellant, was indicted for
he said “several times that he had nothing to hide” and felony tampering with physical evidence, a
“specifically admitted to police that he had a .22 rifle third-degree felony. The State’s theories were
in the house.” Alkheqani urges clear error because he that Appellant “altered,” “concealed,” or
knew his house contained contraband, he expressed “destroyed” marijuana when he dumped it into
worry about additional drug charges, and he admitted a toilet containing water and human waste
to the rifle. The Government responds that neither during a police raid of the motel room he was
shows clear error; for example, Alkheqani’s admission in. and human waste during a police raid of
about the rifle “signaled to police that he did not think the motel room he was in.1 The jury convicted
it was incriminating[ ] because it was his wife’s rifle.” Appellant and sentenced him to 30 years’
The Government also notes that, elsewhere in this confinement as a habitual offender. Appellant

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