U.S. v. Garcia–hernandez

• Citation: 659 F.3d 108
• Decision Date: 12 October 2011
• Docket Number: No. 10–2146.,10–2146.
• Parties: UNITED STATES of America, Appellee,v.Juan GARCIA–HERNANDEZ, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

659 F.3d 108

UNITED STATES of America, Appellee,

v.Juan GARCIA–HERNANDEZ, Defendant, Appellant.

No. 10–2146.

United States Court of Appeals, First Circuit.

Heard Sept. 13, 2011.Decided Oct. 12, 2011.

Michael J. Iacopino, with whom Brennan Caron Lenehan & Iacopino was on brief, for appellant.Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief, for appellee.Before HOWARD, RIPPLE ^* and SELYA, Circuit Judges.SELYA, Circuit Judge.

This appeal presents two unrelated issues, which we decide together only because they arise within the confines of a single criminal case. The first issue hinges on whether the Supreme Court's decision in Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), establishes categorically that exclusion of seized evidence is not available as a remedy for violations of the knock-and-announce rule. The second issue involves sentencing; its resolution depends on whether the aggravating role adjustment contained in section 3B1.1(b) of the federal sentencing guidelines authorizes a three-level upward enhancement when the defendant, although a manager or supervisor in a criminal activity comprising five or more participants, oversees fewer than five persons. After answering both of these inquiries in the affirmative, we affirm the judgment below.

I. BACKGROUND

In February of 2009, a confidential informant furnished information to law enforcement officers in Manchester, New Hampshire, that led to the unmasking of a massive drug-trafficking operation. The enterprise had long tentacles, reaching out to a myriad of suppliers, couriers, wholesalers, and street-level dealers.

An intensive investigation ensued. In due course, task force agents apprehended Renaury Ramirez–Garcia (Ramirez) while he was endeavoring to purchase ten kilograms of cocaine from an undercover officer. Ramirez admitted that he and defendant-appellant Juan Garcia–Hernandez were partners in what amounted to a franchise of the larger drug-trafficking ring. According to Ramirez, the defendant's principal responsibilities were the procurement of cocaine from sources higher up the chain of command and the transportation of the acquired contraband to New Hampshire.¹ From that point forward, Ramirez oversaw the distribution of the drugs in the Northeast.

After Ramirez told the agents that the local franchise was expecting a fifty-kilogram cocaine delivery in mid-April, they enlisted Ramirez's paramour, Nicole Kalantzis, to assist in the probe. In the course of meetings and telephone calls with Kalantzis, the defendant indicated that he expected the delivery of cocaine to occur on April 12. He also stated that Kalantzis could get a portion of the shipment to sell to Ramirez's customers. To that end, the defendant and his girlfriend gave Kalantzis specific instructions on how to manage distribution of the drugs in Ramirez's absence.

Armed with this intelligence, the agents obtained a warrant to search the defendant's residence. They planned to execute the warrant on April 12. On that morning—Easter Sunday—the officers sent Kalantzis into the house to confirm that the shipment had arrived. When Kalantzis left the house with a suitcase containing 15 kilograms of cocaine, the agents executed the search warrant.

The manner in which the authorities executed the warrant is, for present purposes, of particular pertinence. One officer drove an armored vehicle onto the lawn and parked in front of a picture window. Another breached the front door with a battering ram. Others detonated noise-flash devices, causing windows in the residence to shatter. The main body of searchers, several carrying assault rifles, stormed into the residence.

All in all, 18 officers and a dog participated in the mission. Inside the home, they found eight adults (including the defendant) and three children. The search yielded drug paraphernalia, multiple cell phones, small quantities of cocaine and marijuana, and approximately $58,000 in cash.

The defendant's Cadillac was parked outside the residence. The police obtained an additional search warrant for it. That ancillary search recovered 30 kilograms of cocaine stowed in garbage bags in the vehicle's trunk.

The defendant was arrested and eventually charged with distribution of, and conspiracy to distribute, in excess of five kilograms of cocaine. See 21 U.S.C. §§ 841(a)(1), 846. He moved to suppress the seized evidence on the ground that the search party had violated the knock-and-announce rule by failing to alert the occupants prior to forcing entry into the dwelling. He posited that the manner in which the officers executed the search warrant—in his words, a “military assault”—was so egregious as to demand exclusion of the fruits of the search.

The district court (McAuliffe, J.) denied the motion to suppress on alternative grounds: first, it concluded that the officers' failure to knock and announce their presence was not fatal because the execution of the warrant fell within an exception permitting a no-knock entry where notice of the imminent ingress presents a great risk of danger or a likelihood that evidence would be destroyed. The court also concluded, citing Hudson, that suppression was not an available remedy for a violation of the knock-and-announce rule.

The defendant proceeded to enter a conditional guilty plea, see Fed.R.Crim.P. 11(a)(2), reserving the right to appeal the denial of his motion to suppress. The district court accepted this plea and ordered the preparation of a presentence investigation report.

At the disposition hearing, the district court (Barbadoro, J.) set the defendant's base offense level at 36, adjusted downward by three levels for acceptance of responsibility, see USSG § 3E1.1(a)-(b), and adjusted upward by three levels for the defendant's role in the offense, see id. § 3B1.1(b). This last adjustment was premised upon a determination that the defendant had acted as a manager or supervisor in an extensive criminal activity.

These and other findings yielded an advisory guideline sentencing range of 188 to 235 months. The court imposed a 200–month incarcerative sentence. This timely appeal followed.

II. ANALYSIS

The defendant challenges both the denial of his motion to suppress and the court's deployment of the upward role-in-the-offense adjustment. We address these challenges separately.

A. Suppression.

In reviewing a district court's denial of a motion to suppress, “we assess factual findings for clear error and evaluate legal rulings de novo.” United States v. Fagan, 577 F.3d 10, 12 (1st Cir.2009). This is a deferential standard of review: “when the district court chooses to draw a reasonable (though not inevitable) inference from a particular combination of facts, that inference is entitled to respect.” United States v. Hughes, 640 F.3d 428, 434 (1st Cir.2011) (citation and internal quotation marks omitted).

The argument for suppression is anchored in a perceived violation of the knock-and-announce rule. That rule, developed at common law, is now codified in a federal statute. See 18 U.S.C. § 3109; see also Wilson v. Arkansas, 514 U.S. 927, 931–34 & n. 3, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995) (discussing the rule's common-law evolution). It “requires law enforcement officers to knock and announce their presence and authority prior to effecting a non-consensual entry into a dwelling.” United States v. Pelletier, 469 F.3d 194, 198 (1st Cir.2006).

The rule, however, is not absolute. It is well established that, in certain circumstances, officers executing a search warrant may be justified in declining to knock and announce their presence. For instance, a failure will not violate the rule when officers “have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997).

The parties joust over whether the no-knock entry into the defendant's abode violated the rule. The defendant argues that officers had no reason to believe that he presented any danger, as was made manifest by the dispatch of the unarmed informant into the house. The government counters that a no-knock entry was justified by the exigencies of the situation. We need not sort out the parties' conflicting positions about whether the entry into the defendant's home transgressed the knock-and-announce rule. Assuming arguendo that it did, suppression is not an available remedy.

The key precedent is Hudson. There, the Supreme Court squarely addressed whether a violation of the knock-and-announce rule might justify the exclusion of evidence seized. Noting that exclusion of evidence “has always been [a] last resort, not [a] first impulse,” 547 U.S. at 591, 126 S.Ct. 2159, the Court held the exclusionary rule inapplicable to knock-and-announce violations, id. at 590–602, 126 S.Ct. 2159.

In taking this position, the Court noted two independent requirements for applying the exclusionary rule and explained why a knock-and-announce violation could never meet those requirements.

To begin, the Court deemed but-for causation “a necessary ... condition for suppression.” Id. at 592, 126 S.Ct. 2159. In other words, there must be a causal link between the constitutional violation alleged and the discovery of the evidence seized. In the Court's view, a violation of the knock-and-announce rule could never achieve this benchmark; whether the officers knocked or not, the evidence would inevitably be discovered during the subsequent (valid) search. Id.

The Hudson Court set out a second condition for applying the exclusionary rule: that the beneficial effects of exclusion outweigh its social costs. Id. at 594–95, 126 S.Ct. 2159. In explaining why application of the exclusionary...