471 F.3d 938 (8th Cir. 2006), 06-1055, United States v. Davis

Docket Nº:06-1055, 06-1227.
Citation:471 F.3d 938
Party Name:UNITED STATES of America, Appellee/Cross-Appellant, v. Kevin Lee DAVIS, Appellant/Cross-Appellee.
Case Date:December 28, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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471 F.3d 938 (8th Cir. 2006)

UNITED STATES of America, Appellee/Cross-Appellant,

v.

Kevin Lee DAVIS, Appellant/Cross-Appellee.

Nos. 06-1055, 06-1227.

United States Court of Appeals, Eighth Circuit.

December 28, 2006

         Submitted: September 25, 2006

         Appeal from the United States District Court for the Southern District of Iowa.

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         Kelly Mahoney, U.S. Attorney's Office, argued, Des Moines, IA, for Appellee/Cross-Appellant.

         Kevin Lee Davis, U.S. Penitentiary, argued, Leavenworth, KS, pro se.

         Chip J. Lowe, Howe & Cunningham, argued, Urbandale, IA, for Appellant/Cross-Appellee.

         Before WOLLMAN, BRIGHT, and BOWMAN, Circuit Judges.

         BOWMAN, Circuit Judge.

         Kevin Lee Davis was convicted of conspiracy to manufacture and distribute methamphetamine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846; conspiracy to manufacture and distribute marijuana, 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), 846; and manufacturing marijuana, 21 U.S.C. § 841(a)(1), (b)(1)(D). Davis appeals, challenging the denial by the District Court1 of his motion to suppress, the sufficiency of the evidence, and the reasonableness of his sentence. The government cross- appeals, challenging the District Court's drug-quantity calculation at sentencing. We affirm the District Court in all respects.

         I.

         On February 24, 2005, an arrest warrant was issued for Kevin Davis on account of methamphetamine and marijuana charges. A federal Drug Enforcement Agency (DEA) tactical team working in conjunction with Iowa law enforcement officers (collectively, "the officers") executed the arrest warrant at Davis's Iowa farmhouse the morning of March 15, 2005. For approximately two hours prior to execution, officers conducted surveillance of Davis's house and barn from a vantage point approximately one-quarter of a mile from the house. The officers observed Davis make

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two trips between his house and barn (which was located approximately 100 yards from the house) on an all-terrain vehicle; one trip lasted approximately thirty to forty minutes, and the other trip lasted only a few minutes. The officers also noted that three to four vehicles and a small trailer were on the property. The officers had prior intelligence suggesting that other persons could be inside the house and/or barn. The officers also had information that Davis kept firearms in the house.

         In executing the warrant, a team of five officers knocked and announced their presence at Davis's front door three times, but received no response. While waiting for a response, one team member shouted the word "compromise," which was the team's code word to indicate that a person had been seen or heard inside the house. At this point, the team broke into the house and conducted a sweep of the house. At the same time the team was entering the house, Davis was exiting the house through the kitchen door--apparently not in an attempt to escape, but rather to cooperate. Davis was immediately spotted and arrested by other officers stationed outside of the house. The team that entered and swept the house was not aware that Davis had exited the house, been spotted by other officers, or been arrested.

         During the team's sweep of the house, officers observed several drug-related items in plain view, including: grow lights; water hoses; boxes of plant food and fertilizer; planting pots and blocks; drying shelves; marijuana clippings; and a homemade rifle. During the sweep, Iowa State Patrolman Chad Peters broke into a closet that was padlocked from the outside and discovered rifles and handguns. Davis alleged that another officer opened a toolbox and observed a scale during the sweep, but the government contended that the toolbox remained unopened until execution of the subsequently issued search warrant.

         At the same time the team was entering the house, three officers, including Agent Tony Peterson of the Iowa Division of Narcotics Enforcement, conducted a sweep of the barn. These officers swept the barn for approximately thirty seconds and then went to the house. By that point, Davis had been arrested and the house sweep had been completed. During the barn sweep, the officers observed an item they believed was an HCl generator, but was identified as a weed sprayer after the subsequent search.

         After the arrest and sweeps, the officers obtained a search warrant for Davis's property. The affidavit in support of the search warrant contained details of the sweeps, including statements that the firearms in the closet were "observed in plain view" and that officers observed an HCl generator in the barn. Suppression Hr'g Ex. A. The affidavit also contained prior intelligence information indicating Davis's involvement with the growth and sale of marijuana. The affidavit was signed by DEA Special Agent Tyson Hodges, who was not present during the arrest. Agent Peterson had dictated the sweep information to Agent Hodges over the phone;2 and Agent Peterson had, in turn, received the information that the firearms were observed in plain view from Patrolman Peters.

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         At trial, the government presented several witnesses who testified about their roles in the operation to manufacture and distribute large quantities of methamphetamine between 2002 and 2004. According to the witnesses, this operation involved the mass purchase of pseudoephedrine pills that were given to various individuals, including Davis, who in turn manufactured methamphetamine for resale by a seller. Under this arrangement, Davis, with the assistance of another individual, manufactured methamphetamine on at least three separate occasions, each time producing quantities that required the consumption of 10,000 pseudoephedrine pills. After each manufacture, Davis provided the seller with two ounces of methamphetamine while retaining the remaining amounts (Davis also sold methamphetamine directly to several individuals). Davis told one individual that he manufactured four-and-one-half to five ounces of methamphetamine per 5,000 pseudoephedrine pills.

         Davis also assisted other individuals in the manufacture of methamphetamine for the seller, either directly or by providing his barn for use as a lab. These manufacturers would pay Davis with methamphetamine or anhydrous in exchange for use of the barn. Additionally, Davis directly purchased between 40,000 and 54,000 pseudoephedrine pills for the manufacture of methamphetamine, which he paid for with either money or methamphetamine. One manufacturer saw Davis in possession of approximately one-quarter pound of methamphetamine on one occasion.

         The same witnesses also testified about their roles in the manufacture and distribution of marijuana between 2000 and 2003. According to the testimony, Davis harvested large quantities of marijuana and employed two individuals to trim the marijuana. In return for these services, Davis provided these two individuals with marijuana. Davis harvested between eighty and one hundred pounds of marijuana during the fall of 2001. Additionally, Davis grew approximately 800 marijuana clone plants per year between 2000 and 2003 and sold them to three sellers in exchange for harvesting services. Finally, Davis sold marijuana to several individuals out of his home.

         DEA agents testified that Davis's barn was the type of vented space commonly used to manufacture methamphetamine and that the items found in Davis's house could be used to manufacture marijuana. The government introduced phone records showing calls between the co-conspirator witnesses and Davis. Davis's friends testified that they used methamphetamine and marijuana at Davis's house. A neighbor testified about the high volume of traffic at Davis's house for short periods during the day and night. The jury returned a guilty verdict on all counts.

         At sentencing, the District Court applied the sentencing guidelines and calculated a total-offense level of 30 and a criminal history category of I, which resulted in an advisory sentencing range of 97 to 121 months of imprisonment. The District Court applied a two-level dangerous-weapons enhancement and found that Davis was responsible for 4.9 grams of methamphetamine. After considering the 18 U.S.C. § 3553(a) factors, the District Court sentenced Davis to concurrent terms of imprisonment of ninety-seven months for the conspiracy counts and sixty months for the manufacturing count.

         II.

         Davis first argues that the District Court erred by failing to suppress evidence seized under the search warrant, which was issued based on information obtained from the protective sweeps of his

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house and barn.3 Davis conceded the validity of the house sweep during oral argument, but still contests the validity of the barn sweep. Davis also contends that the officers' inspections of the locked closet and toolbox each exceeded the permissible scope of the house sweep.4 We review the District Court's factual findings for clear error and its legal conclusions de novo when examining the motion to suppress. United States v. Clayton, 210 F.3d 841, 845 (8th Cir. 2000).

         A.

         Davis first argues that the protective sweep of his barn was invalid under the standard announced in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). In Buie, the Supreme Court held that incident to an arrest, officers may, as a precaution and without any requisite level of suspicion, "look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched" without first securing a search...

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