United States of America v. Donnale C. Clay

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-2158
___________________________
United States of America
Plaintiff - Appellee
v.
Donnale C. Clay
Defendant - Appellant
____________
Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: September 15, 2025
Filed: December 15, 2025
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Before SMITH, ARNOLD, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
A federal grand jury indicted Donnale Clay for possessing with intent to
distribute 500 grams or more of a mixture or substance containing a detectable
amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1), and for
being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2). Before trial, Clay moved to suppress evidence officers seized from a
suitcase and backpack belonging to him. The district court denied Clay’s motion.

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A jury later convicted Clay of simple possession of methamphetamine (a lesser
included of the possession-with-intent-to-distribute offense), see 21 U.S.C. § 844,
and of the firearms charge. Based on these convictions, the district court sentenced
Clay to consecutive 24- and 120-month terms of imprisonment and imposed a
$2,500 fine. On appeal, Clay challenges the district court’s denial of his motion to
suppress. He also contends that the district court erred procedurally at sentencing
and imposed a substantively unreasonable sentence. Having jurisdiction under 28
U.S.C. § 1291, we affirm the district court’s denial of Clay’s motion to suppress.
We also affirm Clay’s sentence in part but vacate Clay’s fine and remand for
redetermination of that aspect of Clay’s sentence.
I.
On the morning of April 27, 2022, six members of a Drug Enforcement
Administration (DEA) task force were performing interdiction work at a Trailways
bus station in Omaha, Nebraska. This task force—which was composed of both
state and federal law enforcement officers—included Nebraska State Trooper
Nicholas Jaworski and DEA Special Agent Christian Iten. While the task force
apparently had no formal arrangement with Trailways (or another bus company that
was operating out of the station), the task force regularly ran its interdiction
operation at this location, visiting it five or six times per week. The task force’s
work generally involved identifying suspicious baggage and passengers and
searching for contraband like drugs and weapons.
At around 5:55 a.m., a bus from Denver pulled into the station. The buses
arriving in Omaha have two luggage storage areas: overhead compartments in their
passenger areas, and compartments underneath for larger items. When a bus stops
in Omaha, the doors to the lower storage area are opened so that passengers may
access their bags. Although a baggage handler works at the Omaha station, the lower
storage compartments are generally accessible to anyone when the buses are
stopped. Passengers can and do remove their own and others’ bags. The station’s
baggage handler also removes luggage that must be transferred to different buses.

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On busier days, even luggage that will be continuing on with a given bus along its
route may be temporarily removed. Trailways requires all its passengers to exit
buses arriving at the terminal—including passengers continuing on to other
destinations. Trailways keeps passengers off the buses for approximately 10 to 15
minutes (but sometimes up to around 30 minutes) while its drivers switch out.
When the Denver bus arrived, task force officers began looking for luggage
of interest. They identified two suitcases—one of which belonged to Clay. Clay’s
suitcase piqued Trooper Jaworski’s suspicion because it appeared to him to be
relatively new. Trooper Jaworski removed Clay’s suitcase from the bus’s luggage
hold and placed it on the pavement approximately three to five feet from the bus. It
took Trooper Jaworski approximately five seconds to complete this maneuver. After
taking Clay’s suitcase off the bus, Trooper Jaworski stepped back against a wall and
waited to see if any passenger would claim the suitcase.
Clay exited the bus and located his suitcase. As Clay approached it, Trooper
Jaworski stepped forward and asked if it belonged to Clay. Trooper Jaworski then
presented his badge, identified himself as a law enforcement officer, and informed
Clay that Clay was neither in trouble nor under arrest. Special Agent Iten stood a
few feet away next to the bus terminal’s doors. Both Trooper Jaworski and Special
Agent Iten wore plain clothes. While both were armed, neither of them visibly
displayed their weapons.
After Clay confirmed to Trooper Jaworski that the suitcase was his, Trooper
Jaworski asked Clay about his travel plans. Clay told Trooper Jaworski that he was
traveling from Minneapolis, but then said he was traveling from Tacoma, Iowa.
Trooper Jaworski challenged Clay on this claim, noting that the bus had not yet
traveled through Iowa. Clay corrected himself and stated that he was traveling from
Tacoma, Washington. Clay explained that he intended to visit family in Minnesota.
Trooper Jaworski then asked how long Clay intended to remain in Minnesota. Clay
responded that he might spend seven days there. He also stated that he had not made
any plans for a return trip yet. Clay gave Trooper Jaworski his bus ticket and trip

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itinerary, which showed that Clay’s trip had begun in Spokane, Washington and that
Clay’s ultimate destination was St. Paul, Minnesota. Trooper Jaworski returned
Clay’s ticket.
Trooper Jaworski then analogized the task force’s role to that of the
Transportation Security Administration (TSA), explaining to Clay that the task force
provided an added layer of security at the bus station. He then asked if he could
search Clay’s suitcase. Clay consented. Trooper Jaworski placed Clay’s suitcase
flat on the ground and began unzipping it. Clay bent down as if to assist. Then, he
ran away. Trooper Jaworski yelled, “Runner!” to alert other members of the task
force to Clay’s flight. Trooper Jaworski attempted to pursue Clay, but he was still
holding onto Clay’s suitcase. The suitcase, which was partially unzipped, spilled.
Trooper Jaworski gathered the items that had spilled out. As he did so, he felt a
handgun through a soft case.
Other members of the task force tackled Clay, who sustained a leg injury.
Task force officers then searched Clay’s suitcase and located three handguns. They
also searched a backpack Clay was wearing. This search yielded two packages of
methamphetamine weighing around a pound and a half in total. It also yielded
approximately 250 fentanyl pills. A search of Clay’s person recovered additional
contraband, including a few grams of marijuana and six fake fentanyl pills. Roughly
12 hours after Clay’s arrest, he tested positive for benzodiazepines, cannabinoids,
opiates, and oxycodone.
Clay moved to suppress the evidence the Government seized at the bus station.
Clay argued that the task force unlawfully seized his suitcase from the bus’s storage
compartment without reasonable suspicion; that his initial contact with law
enforcement was not consensual and that Trooper Jaworski lacked reasonable
suspicion to detain him; that he did not validly consent to a search of his suitcase
because his consent, such as it was, was offered involuntarily; and that the task force
unlawfully seized him after he fled because it acted without reasonable suspicion.

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After an evidentiary hearing, the magistrate judge recommended that the
district court deny Clay’s motion. The magistrate judge reasoned that: (1) Trooper
Jaworski did not seize Clay’s suitcase simply by removing it from the bus’s lower
storage area, (2) Trooper Jaworski’s initial encounter with Clay was consensual
(such that Trooper Jaworski didn’t require reasonable suspicion), (3) Clay validly
consented to a search of his suitcase, and (4) the task force officers validly seized
Clay after he fled.
Clay objected to the magistrate judge’s recommendation. The district court
overruled Clay’s objection, adopted the magistrate judge’s report and
recommendation in its entirety, and denied Clay’s motion to suppress. In doing so,
the district court noted that Clay “ha[d] filed no specific objections to [the magistrate
judge’s] conclusion that the suitcase was not seized, and that, therefore, no unlawful
seizure occurred.” Nevertheless, the district court conducted a de novo review of
Clay’s contention that Trooper Jaworski had unlawfully seized his suitcase and
concluded that no Fourth Amendment seizure had occurred at all. The district court,
like the magistrate judge, further found that Trooper Jaworski’s initial encounter
with Clay was consensual, that Clay validly consented to a search of his suitcase,
and that the task force had reasonable suspicion to seize Clay when he fled.
At a jury trial, Clay testified in his own defense. He stated that he did not
intend to distribute the roughly pound and a half of methamphetamine the task force
had found in his backpack. According to Clay, this methamphetamine was for
personal use only. The jury acquitted Clay of possession with intent to distribute
but convicted him of the lesser-included offense of simple possession. The jury also
convicted Clay of unlawfully possessing firearms.
Prior to sentencing, the United States Probation Office prepared a Revised
Presentence Investigation Report (PSR), which found that Clay’s Total Offense
Level was 26 and that Clay’s criminal record fell into Criminal History Category III.
Thus, the PSR calculates Clay’s United States Sentencing Guidelines imprisonment
range as 78 to 97 months. The Government moved for an upward variance and

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requested that the district court impose consecutive maximum sentences totaling 144
months’ imprisonment.
The district court granted the Government’s requested upward variance,
ultimately sentencing Clay to consecutive sentences of 24 and 120 months’
imprisonment. In doing so, the district court stated that it had considered the
sentencing factors laid out in 18 U.S.C. § 3553(a). The district court emphasized
Clay’s lack of regard for the law as displayed by his trial testimony and that Clay
had not been deterred from committing his offenses in this case despite “previously
serv[ing] a significant federal sentence based upon his commission of drug-related
offenses.” The district court further noted that “when he was released from federal
prison the last time, [Clay] violated the terms of his pretrial release” and “told his
probation officer, quote, ‘I’m not doing probation. Every time that I get out of prison
I’m taking myself off -- back off probation. The judge knows it and my PO knows
it.’”
The district court imposed a $2,500 fine on Clay in addition to the prison
sentence. In doing so, it made no findings on Clay’s ability to pay. Instead, the
district court explained, “Because 21 U.S.C. Section 844(a) requires it, I am going
to impose the mandatory minimum fine of $2500 that applies with respect to [Clay’s
simple possession conviction].” The PSR states that “it does not appear as if Mr.
Clay has the ability to pay a fine in this matter.” It also indicates that a credit report
generated for Clay shows that he has no credit history, and that a financial affidavit
states Clay has no assets or debts.
On appeal, Clay contends that the district court erred in denying his
suppression motion for the same reasons he asserted before the magistrate judge and
the district court. He also asserts that the district court made a procedural error by
imposing the $2,500 fine on the assumption that a fine was mandatory and without
making findings as to his ability to pay. Clay further contends that it was
substantively unreasonable for the district court to impose consecutive maximum
sentences.

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II.
“A mixed standard of review applies to the denial of a motion to suppress
evidence.” United States v. Williams, 777 F.3d 1013, 1015 (8th Cir. 2015). We
review the district court’s findings of fact for clear error and its denial of Clay’s
suppression motion de novo. United States v. Green, 9 F.4th 682, 687 (8th Cir.
2021).
A.
Clay first argues that Trooper Jaworski seized his suitcase within the meaning
of the Fourth Amendment when Trooper Jaworski moved the suitcase from the bus’s
cargo area to the pavement adjacent to the bus, that this purported seizure was
unlawful because it was not supported by reasonable suspicion, see United States v.
Zacher, 465 F.3d 336, 338 (8th Cir. 2006), and that this allegedly illegal seizure
tainted the balance of the task force’s investigation under the
fruit-of-the-poisonous-tree doctrine. “Because a seizure decision involves a pure
question of law, we review de novo the district court’s” seizure decision. United
States v. Va Lerie, 424 F.3d 694, 700 (8th Cir. 2005) (en banc).
The Fourth Amendment mandates that “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const. amend. IV. A Fourth Amendment
“‘seizure’ of property occurs when there is some meaningful interference with an
individual’s possessory interests in that property.” United States v. Jacobsen, 466
U.S. 109, 113 (1984). This rule’s corollary is that “not all police interference with
an individual’s property constitutes a Fourth Amendment seizure.” Va Lerie, 424
F.3d at 706. “[T]he seizure standard prohibits the government’s conversion of an
individual’s private property, as opposed to the mere technical trespass to an
individual’s private property.” Id. at 702. In sum, police may handle private
property without necessarily seizing it—inconsequential contacts lack constitutional
significance. See id.

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In Va Lerie, we specified three factors that courts should focus on in
determining whether law enforcement officers have meaningfully interfered with an
owner’s possessory interest in checked luggage entrusted to a carrier:
First, did law enforcement’s detention of the checked luggage delay a
passenger’s travel or significantly impact the passenger’s freedom of
movement? Second, did law enforcement’s detention of the checked
luggage delay its timely delivery? Third, did law enforcement’s
detention of the checked luggage deprive the carrier of its custody of
the checked luggage?
Id. at 707. “If none of these factors is satisfied, then no Fourth Amendment seizure
has occurred.” Id. But if even one factor is satisfied, the luggage was seized. Id.
In this appeal, both parties assume that Clay’s suitcase was checked luggage
entrusted to the bus company—i.e., the parties have assumed that Va Lerie governs.
However, the record does not conclusively show that Clay formally checked his
suitcase and we note that Clay’s suitcase was accessible to the general public when
the bus was stopped. Nevertheless, Clay does not advance any argument that he had
a greater possessory interest in his suitcase than that involved in Va Lerie. Cf. United
States v. Hill, 805 F.3d 935, 938 (10th Cir. 2015) (recognizing that a property
owner’s possessory interest in a bag stowed in a generally accessible common
luggage area “is intermediate between [the possessory interest he would have in] a
bag in his direct possession and a bag checked with [a carrier]”). And in any event,
the undisputed facts now before us are sufficiently similar to those at issue in Va
Lerie for us to conclude Va Lerie applies. See Va Lerie, 424 F.3d at 696-97
(addressing law enforcement officers’ actions in moving luggage from a bus’s lower
storage area into the bus terminal); see also United States v. Alvarez-Manzo, 570
F.3d 1070, 1075-77 (8th Cir. 2009) (applying Va Lerie in the context of law
enforcement officers’ actions in moving luggage from a bus’s lower storage area to
the bus’s passenger compartment).

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Clay argues only that the third Va Lerie factor resolves in favor of a seizure;
he contends that Trooper Jaworski deprived Trailways of custody of his suitcase by
removing it from the bus. Clay does not argue that Trooper Jaworski’s removal of
the suitcase delayed his or his suitcase’s arrival at their intended destination or that
Trooper Jaworski’s removal of the suitcase significantly impacted his freedom of
movement.
A luggage owner’s reasonable expectations of how the carrier would handle
his or her luggage define the scope of the carrier’s custody: “[t]o test the breadth of
the carrier’s custodial rights, we ask whether the government’s actions go beyond
the scope of the passenger’s reasonable expectations for how the passenger’s
luggage might be handled when in the carrier’s custody.” Va Lerie, 424 F.3d at 707
n.7; see also Zacher, 465 F.3d at 339 (applying this test in the context of a purported
seizure at a FedEx facility). We have previously stated that:
a commercial bus passenger who checks his luggage should reasonably
expect his luggage to endure a fair amount of handling-if his luggage
were not handled, it would not reach its destination. For instance, a
commercial bus passenger’s checked luggage must be sorted, loaded,
rearranged, possibly transferred to another bus, and unloaded. The
luggage may be damaged and require removal from the luggage
compartment. If a bus breaks down, a passenger should expect his
luggage to be removed from the luggage compartment and either
transferred to another bus or taken inside the bus terminal.
Va Lerie, 424 F.3d at 706.
Here, Trooper Jaworski’s actions—handling the suitcase for roughly five
seconds and moving it between three and five feet away from the bus while the bus
was stopped at the terminal—are consistent with how a reasonable passenger would
have expected his or her luggage to be handled while in Trailways’ custody. A
reasonable passenger would anticipate that bus company employees or other
passengers might remove luggage from the bus to access other bags after the bus has
arrived at the terminal. This is the kind of routine handling that is part and parcel of

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storing one’s bag in a bus’s luggage compartment during travel. See id.; see also
United States v. Ward, 144 F.3d 1024, 1032 (7th Cir. 1998) (“Hicks had surrendered
custody of the bag to Greyhound and no doubt realized that the bag would be
transported to Indianapolis in the common luggage compartment of the bus. . . . He
could have no reasonable expectation . . . that the bag would not be touched, handled,
or even removed from the bus prior to the bag’s arrival in Indianapolis.”). Because
Trooper Jaworski did not handle Clay’s suitcase in a manner different from what a
reasonable passenger would anticipate, he did not deprive Trailways of custody of
Clay’s suitcase. Thus, no seizure occurred. See Zacher, 465 F.3d at 339 (holding
that no change in custody occurred where a police detective placed a package on the
floor of a FedEx facility “since a reasonable person could expect FedEx to handle
his or her package the same way”).
In an attempt to avoid this result, Clay relies on our decision in
Alvarez-Manzo, in which we held law enforcement officers effected a Fourth
Amendment seizure when they removed the defendant’s bag from a bus’s luggage
area and walked the bag through the bus’s passenger compartment to locate the bag’s
owner. 570 F.3d at 1075-76. Clay points to language in this decision suggesting
that the third Va Larie factor “d[oes] not turn on where law enforcement t[akes] the
bag but at whose direction law enforcement act[s] when it d[oes] so.” Id. at 1076.
In Clay’s view, because Trooper Jaworski was acting “as a criminal investigator, not
as a bus passenger or baggage handler,” Clay’s suitcase left Trailways’ custody
when Trooper Jaworski moved it.
Clay’s reading of Alvarez-Manzo goes too far. If it were true that an officer
seized luggage any time he moved it without a carrier’s specific direction, incidental
contacts between law enforcement officers and private property could rise to the
level of seizures. This would erase the distinction our cases have drawn between
“the government’s conversion of an individual’s private property” and “the mere
technical trespass to an individual’s private property.” See Va Lerie, 424 F.3d at
702. Moreover, the facts here differ significantly from those at issue in
Alvarez-Manzo. Trooper Jaworski moved Clay’s luggage a few feet—but more

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importantly, in a manner consistent with how a reasonable passenger would have
expected his or her luggage to be handled. In Alvarez-Manzo, on the other hand,
officers retrieved the defendant’s bag from the bus’s lower storage area, took it down
the bus aisle, and asked each passenger whether the bag belonged to them. 570 F.3d
at 1072. Alvarez-Manzo stands for the proposition that even this extensive handling
might not have deprived the bus company of custody if the bus company had asked
the officers to handle the defendant’s bag in this way. But Alvarez-Manzo does not
compel the conclusion that an officer seizes baggage when he or she handles it the
way a reasonable person would expect it to be handled while in a carrier’s custody.
Alvarez-Manzo does not support Clay’s argument that Trooper Jaworski seized his
suitcase.
Because Trooper Jaworski’s handling of Clay’s suitcase comports with what
a reasonable passenger would have expected, we hold that Trooper Jaworski did not
take custody of Clay’s suitcase and thus did not “seize” it within the meaning of the
Fourth Amendment. And because no Fourth Amendment seizure occurred, no
unlawful Fourth Amendment seizure occurred. We thus reject Clay’s arguments that
an initial illicit seizure of his suitcase tainted the remainder of the task force’s
investigation.
B.
Next, Clay argues that Trooper Jaworski unlawfully seized him before he fled.
We review de novo whether an encounter constitutes a seizure. United States v.
Grant, 696 F.3d 780, 784 (8th Cir. 2012). We conclude that Trooper Jaworski’s
initial contact with Clay was not a Fourth Amendment seizure—it was consensual.
“Government officials . . . ‘do not violate the Fourth Amendment’s
prohibition of unreasonable seizures merely by approaching individuals on the street
or in other public places and putting questions to them if they are willing to listen.’”
United States v. Lillich, 6 F.4th 869, 875 (8th Cir. 2021) (quoting United States v.
Drayton, 536 U.S. 194, 200 (2002)). To determine whether a police-citizen

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encounter is consensual, or is instead a Fourth Amendment seizure, we consider the
totality of the circumstances and the unique facts of each case. Id. at 876. This
analysis is guided by several factors, including:
officers positioning themselves in a way to limit the person’s freedom
of movement, the presence of several officers, the display of weapons
by officers, physical touching, the use of language or intonation
indicating compliance is necessary, the officer’s retention of the
person’s property, or an officer’s indication the person is the focus of a
particular investigation.
Id. (quoting United States v. Griffith, 533 F.3d 979, 983 (8th Cir. 2008)).
The district court found the following facts, which Clay does not contest:
Trooper “Jaworski’s position relative to Clay’s did not prevent Clay from
proceeding to the bus terminal or the exit”; “[w]hile law enforcement officers were
in the vicinity, none were in close proximity to Clay or would otherwise prevent
Clay from leaving”; and Trooper Jaworski was dressed in plain clothes, never
revealed a weapon, spoke with Clay in a pleasant and non-confrontational tone, and
told Clay he was neither in trouble nor under arrest.
On these facts, we agree with the district court that Trooper Jaworski’s initial
contact with Clay was consensual. See Drayton, 536 U.S. at 203-04 (finding no
seizure occurred where “[t]he officers gave [bus] passengers no reason to believe
that they were required to answer the officers’ questions” and where the officer
approaching the defendants “did not brandish a weapon or make any intimidating
movements”; did not block the defendants’ egress; and spoke in a polite, quiet
voice); Lillich, 6 F.4th at 876-77 (concluding that an initial encounter between law
enforcement officers and a suspect in a car wash bay was consensual where the
officers did not brandish weapons, did not threaten arrest, and did not block the
suspect from leaving the bay). We thus reject Clay’s argument that Trooper
Jaworski’s initial contact with him was an illegal seizure and that evidence ought to
have been suppressed on that basis.

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C.
Clay also argues that he did not voluntarily consent to Trooper Jaworski
searching his suitcase and that the search was thus unlawful. The Fourth
Amendment does not prohibit warrantless searches conducted pursuant to the
knowing and voluntary consent of the person subject to the search. United States v.
Garcia-Garcia, 957 F.3d 887, 892 (8th Cir. 2020). “The voluntariness of a consent
to a search is a factual question that is reviewed for clear error.” United States v.
Saenz, 474 F.3d 1132, 1136 (8th Cir. 2007). “We will reverse a finding of fact for
clear error only ‘if, despite evidence supporting the finding, the evidence as a whole
leaves us with a definite and firm conviction that the finding is a mistake.’” United
States v. Holly, 983 F.3d 361, 363 (8th Cir. 2020) (citation omitted).
We are not persuaded that the district court clearly erred in finding that Clay
voluntarily consented to Trooper Jaworski’s search of his suitcase. The district court
acknowledged factors that we have recognized as instructive on the question of
whether consent is voluntary, including:
the defendant’s age, education, intelligence, sobriety, and experience
with the law; and . . . context . . . , such as the length of . . . questioning,
the substance of any discussion . . . preceding the consent, whether the
defendant was free to leave . . . , and whether the defendant’s
contemporaneous reaction to the search was consistent with consent.
Garcia-Garcia, 957 F.3d at 896-97 (alterations in original) (citation omitted).
Consistent with these factors, the district court made findings, including that:
(1) Trooper Jaworski conversed with Clay in a public area; (2) Trooper Jaworski’s
encounter with Clay was conversational and nonthreatening; (3) Trooper Jaworski
did not display a weapon or otherwise attempt to intimidate Clay; (4) Clay was 38
years old at the time of the encounter, and had interacted with law enforcement and
the criminal justice system frequently; and (5) Clay’s response to Officer Jaworski’s

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request to search Clay’s suitcase was consistent with someone giving voluntary
consent. None of these findings is clearly erroneous.
The district court acknowledged that Clay had later tested positive for drugs,
that Trooper Jaworski had not informed Clay that he had the right to refuse to consent
to a search, and that Trooper Jaworski, by likening his role to that of a TSA agent at
an airport, arguably misrepresented his authority. But it reasoned that some of the
drugs in Clay’s system may have been introduced after Clay’s arrest when Clay
underwent medical treatment for his injured leg and that Clay did not display signs
of intoxication when he spoke with Trooper Jaworski—a fact that is significant
because a voluntariness analysis depends “not [on] whether the defendant
subjectively meant to consent, but whether [his] conduct would cause a reasonable
person to believe [he] consented to the search.” United States v. Alloway, 25 F.4th
1093, 1096 (8th Cir. 2022). The district court further (and correctly) observed that
while “being informed of the right to refuse consent is . . . relevant to . . . whether
Clay gave voluntary consent” it is “not dispositive” on that question. See United
States v. Bradley, 234 F.3d 363, 366 (8th Cir. 2000) (directing that the factors in a
voluntariness analysis “should not be applied mechanically” and that “no single
factor is dispositive or controlling”). Finally, the district court found that there was
no evidence that Clay relied on Trooper Jaworski’s TSA analogy when he gave
Trooper Jaworski consent to search his suitcase.
On balance, the factors we have identified for gauging the voluntariness of
consent cut in favor of a voluntariness finding. See United States v. Puckett, 139
F.4th 730, 742 (8th Cir. 2025) (holding that the district court did not clearly err in
finding that the defendant voluntarily consented to a search where the defendant was
36 years old; had previous experience with the criminal justice system; was not
subjected to threats, physical intimidation, or punishment; was not impaired;
responded and interacted with law enforcement in a way that showed he understood
officers’ questions; and was detained only briefly); Garcia-Garcia, 957 F.3d at
897-98 (determining that the district court did not clearly err in finding consent
voluntary where law enforcement approached the defendant at a crowded bus

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station, the defendant was 26 years old and appeared sober, and the defendant was
of sound mind and average intelligence). We acknowledge that some facts cut
against a voluntariness finding, including in particular Trooper Jaworski’s
analogizing of his role to that of a TSA agent and Trooper Jaworski’s failure to
advise Clay that Clay did not have to provide his consent. Cf. United States v.
Escobar, 389 F.3d 781, 786 (8th Cir. 2004) (concluding that the district court did not
clearly err in finding that the defendants’ consent to search their bags was not
voluntarily given where law enforcement officers misrepresented their authority to
conduct a search). But, from the totality of the circumstances, we are not left with a
definite and firm conviction that the district court made a mistake in concluding that
Clay’s consent was voluntary. We therefore reject Clay’s challenge to the district
court’s voluntariness finding and his argument that evidence ought to have been
suppressed on the basis of his purportedly involuntary consent.
D.
Clay’s final suppression argument is that task force officers unlawfully seized
him after he fled from Trooper Jaworski. While Clay’s briefing on this issue is not
entirely clear, Clay’s primary contention seems to be that the district court erred in
concluding that the task force officers had reasonable suspicion to detain him. “A
police officer may conduct an investigative stop if she ‘has a reasonable suspicion
supported by articulable facts that criminal activity may be afoot.’” United States v.
Roberts, 787 F.3d 1204, 1209 (8th Cir. 2015) (citation omitted). “The existence of
reasonable suspicion is a mixed question of law and fact that [we] review de novo.”
United States v. Thabit, 56 F.4th 1145, 1149 (8th Cir. 2023).
We have little trouble concluding that the task force possessed reasonable
suspicion sufficient to detain Clay after he consented to Trooper Jaworski’s search
of his suitcase and then immediately fled. See Illinois v. Wardlow, 528 U.S. 119,
124 (2000) (“Headlong flight—wherever it occurs—is the consummate act of
evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive
of such.”); United States v. Hightower, 716 F.3d 1117, 1121 (8th Cir. 2013)

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(“Although simply ignoring the police cannot be the basis for reasonable suspicion,
conduct beyond merely ignoring, such as attempting to flee, can create reasonable
suspicion to support a Terry stop.”); United States v. Thompkins, 998 F.2d 629, 633
(8th Cir. 1993) (recognizing that the defendant’s nervousness, failure to answer
questions about work history, and lies about not having any checked luggage might
not have given law enforcement an adequate reason to detain the defendant, but
concluding that “the added fact of [the defendant’s] sudden flight . . . gave rise to a
legitimate suspicion that [the defendant] was engaged in criminal activity”). Clay’s
contention that officers unlawfully detained him without reasonable suspicion
post-flight is meritless, and we reject Clay’s argument that any evidence should have
been suppressed on this basis.
III.
Clay also challenges his sentence, contending that the district court erred
procedurally by imposing a $2,500 fine without making findings as to his ability to
pay and substantively by sentencing him to consecutive maximum terms of
incarceration. “We review a district court’s sentence in two steps: first, we review
for significant procedural error; and second, if there is no significant procedural
error, we review for substantive reasonableness.” United States v. O’Connor, 567
F.3d 395, 397 (8th Cir. 2009); see also United States v. Jones, 612 F.3d 1040,
1044-45 (8th Cir. 2010) (explaining what constitutes a procedural error and the
standard for evaluating substantive reasonableness).
A.
Clay first challenges his sentence on the ground that the district court
erroneously imposed the $2,500 fine without making findings as to Clay’s ability to
pay. “A district court’s imposition of a fine and the determination of the amount of
the fine will not be reversed unless clearly erroneous.” United States v. Allmon, 500
F.3d 800, 807 (8th Cir. 2007) (citation omitted). “Because [Clay] did not object at
the [sentencing] hearing, this court ‘cannot reverse the district court unless its actions

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are plain error.’” Id. (citation omitted). This means that Clay must show (1) an
error, (2) that is plain, and (3) that affects substantial rights. United States v.
Wohlman, 651 F.3d 878, 884 (8th Cir. 2011). Even if Clay makes this showing, “we
may exercise our discretion to correct a forfeited error only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. (citation
omitted).
The district court reasoned that the statute governing the penalties for Clay’s
simple possession conviction, 21 U.S.C. § 844(a), “require[d]” it to “impose the
mandatory minimum fine of $2500” on Clay. But it is not necessarily true that
§ 844(a) required the district court to impose a fine. While § 844(a) provides that a
person with Clay’s criminal history “shall be fined a minimum of $2,500,” it goes
on to say that “a fine under this section need not be imposed if the court determines
under the provision of Title 18 that the defendant lacks the ability to pay.” Thus, in
concluding that the $2,500 fine was “required,” the district court either (a) misread
the statute, or (b) determined that Clay had the ability to pay the fine.
If the former, we would conclude that the district court committed a plain error
affecting Clay’s substantial rights and the fairness of the district court proceedings.
If the latter, we would reach the same conclusion, because the district court did not
explain (and likely could not explain) its reasoning. The district court made no
findings as to Clay’s ability to pay. But “[s]uch findings are mandatory.” United
States v. Van Brocklin, 115 F.3d 587, 602 (8th Cir. 1997); see also United States v.
Morais, 670 F.3d 889, 894 (8th Cir. 2012) (“The court should make findings
regarding the defendant’s ability to pay . . . .”); United States v. Patient Transfer
Serv., Inc., 465 F.3d 826, 827 (8th Cir. 2006) (“A sentencing court must make
specific factual findings on the record demonstrating that it has considered the
defendant’s ability to pay the fine.”). While we have held that a “district court d[oes]
not commit plain error in imposing a fine when [the defendant] d[oes] not establish
that he cannot pay the fine, and the record indicates his ability to pay it,” Allmon,
500 F.3d at 808, the record as it stands indicates that Clay does not have the ability
to pay a fine. Per the PSR, “it does not appear as if Mr. Clay has the ability to pay a

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fine in this matter.” If the district court had made the required findings as to Clay’s
ability to pay, we think on this record, and where the district court’s sole reason for
imposing a fine was its view that a fine was required, there is “a reasonable
probability that . . . [Clay] would have received a more favorable sentence.” United
States v. Isler, 983 F.3d 335, 343 (8th Cir. 2020) (citation omitted). The bottom line
is that, if the district court imposed a fine based on Clay’s ability to pay, we require
findings to that effect. And the plain-error standard of review does not excuse this
requirement when the record reflects the defendant’s inability to pay.
Ultimately, “[b]ecause the record does not reflect” the district court’s basis
for imposing Clay’s fine “we are unable to provide meaningful appellate review.
Therefore, we conclude that we must vacate [Clay’s] fine and remand for
redetermination of this portion of [his] sentence.” United States v. Kay, 717 F.3d
659, 666 (8th Cir. 2013) (third alteration in original) (citation omitted).
B.
Clay also challenges the term of his imprisonment, contending that it was
substantively unreasonable for the district court to grant the Government’s requested
upward variance and impose consecutive maximum sentences. In Clay’s view, his
offense conduct was “routine” and “nonviolent” and thus “fully accounted for in the
United States Sentencing Guidelines.” Clay speculates that he received consecutive
maximum sentences because the district court sought to punish him for possession
with intent to distribute—i.e., conduct the jury acquitted him of. While Clay
“concedes the district court stated its reasons for granting the variance motion and
its rationale for consecutive sentences,” Clay believes the district court’s reasoning
is weak because his conduct is not as bad as that of other offenders with the same
convictions and because the district court placed too much weight on certain
sentencing factors.
“When we review the imposition of sentences, whether inside or outside the
Guidelines range, we apply ‘a deferential abuse-of-discretion standard.’” United

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States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (citation omitted).
A district court abuses its discretion when it: (1) “fails to consider a relevant factor
that should have received significant weight,” (2) “gives significant weight to an
improper or irrelevant factor,” or (3) “commits a clear error of judgment in
weighing” the appropriate factors. United States v. McCauley, 715 F.3d 1119,
1126-27 (8th Cir. 2013). The district court “has wide latitude to weigh the [18
U.S.C.] section 3553(a) factors in each case and assign some factors greater weight
than others in determining an appropriate sentence.” United States v. Richart, 662
F.3d 1037, 1054 (8th Cir. 2011) (citation omitted). “[I]t will be the unusual case
when we reverse a district court sentence—whether within, above, or below the
applicable Guidelines range—as substantively unreasonable.” Feemster, 572 F.3d
at 464 (citation omitted). In evaluating whether a variance is substantively
reasonable, “we ‘may consider the extent of the deviation, but must give due
deference to the district court’s decision that the § 3553(a) factors, on a whole, justify
the extent of the variance.’” Id. at 461-62 (citation omitted). “We review a district
court’s decision to impose a consecutive or concurrent sentence for reasonableness,
and we apply the same deferential abuse-of-discretion standard that governs a
reasonableness determination under § 3553(a).” United States v. Nelson, 982 F.3d
1141, 1146 (8th Cir. 2020) (citation omitted).
The district court did not abuse its discretion in sentencing Clay to consecutive
maximum sentences. The record shows that the district court considered and
appropriately weighed the relevant factors when determining Clay’s sentence. The
district court expressly stated that it “collectively consider[ed] all factors under 18
U.S.C. Section 3553(a).” In fashioning Clay’s sentence, the district court
emphasized Clay’s trial testimony, noting that it was striking how little respect Clay
appears to have for the law. Moreover, the district court focused on Clay’s criminal
history and the apparent failure of a significant earlier sentence to deter Clay from
engaging in criminal behavior, along with Clay’s record of noncompliance on
pretrial release in an earlier criminal prosecution and comments Clay made
expressing his attitude towards probation. Promoting respect for the law and the

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need for deterrence are valid reasons for the district court to have imposed the
sentence it did.
Clay’s argument that worse offenders exist and his disagreement with the
weight the district court assigned to particular factors in its sentencing analysis do
not require us to find an abuse of discretion. See United States v. Anderson, 926
F.3d 954, 958 (8th Cir. 2019) (“We do not require district courts to compare the
defendant with other similarly situated prior offenders, and we will uphold a
sentence if, as here, ‘the district court’s justifications for imposing a . . . sentence
“rest on precisely the kind of defendant-specific determinations that are within the
special competence of sentencing courts.”’” (alteration in original) (citation
omitted)); Richart, 662 F.3d at 1054 (“Simply because the district court weighed the
relevant factors more heavily than [the defendant] would prefer does not mean the
district court abused its discretion.”). Clay’s passing suggestion that acquitted
conduct motivated his sentence likewise does not establish an abuse of discretion.
The record does not reflect that the district court considered any acquitted conduct.
But even if the district court had, that would not be error. See, e.g., United States v.
Chambers, 878 F.3d 616, 622 (8th Cir. 2017) (recognizing that a “district court may
consider uncharged, dismissed, and even acquitted conduct at sentencing”). Because
we perceive no abuse of discretion, we affirm Clay’s prison sentence.
IV.
We affirm the district court’s denial of Clay’s motion to suppress. Moreover,
we affirm the custodial portion of Clay’s sentence. We vacate Clay’s fine and
remand for redetermination of that aspect of Clay’s sentence.
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