851 F.3d 889 (9th Cir. 2017), 14-50472, United States v. Job

Docket Nº:14-50472
Citation:851 F.3d 889, 871 F.3d 852
Opinion Judge:FRIEDMAN, District Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TRAVIS JOB, Defendant-Appellant
Attorney:Todd W. Burns (argued), Burns and Cohan, San Diego, California, for Defendant-Appellant. Mark R. Rehe (argued), Assistant United States Attorney; Laura E. Duffy, United States Attorney; Peter Ko, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; United States Attorney...
Judge Panel:Before: A. Wallace Tashima and Richard A. Paez, Circuit Judges, and Paul L. Friedman,[*] District Judge. Opinion by Judge Friedman.
Case Date:March 14, 2017
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
SUMMARY

Defendant appealed his 365 month sentence and conviction for conspiracy to distribute methamphetamine and possession of methamphetamine with intent to distribute. The court concluded that the government failed to prove a justification for the warrantless stop and subsequent pat down, and thus the search of defendant's person was unlawful; the evidence discovered during the pat down, the glass... (see full summary)

 
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851 F.3d 889 (9th Cir. 2017)

871 F.3d 852

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

TRAVIS JOB, Defendant-Appellant

No. 14-50472

United States Court of Appeals, Ninth Circuit

March 14, 2017

Argued and Submitted Pasadena, California December 9, 2016.

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Appeal from the United States District Court for the Southern District of California. D.C. No. 3:13-cr-1128-BEN-11. Roger T. Benitez, District Judge, Presiding.

United States v. Rodriguez, 851 F.3d 931, (9th Cir. Cal., Mar. 14, 2017)

SUMMARY[**]

Criminal Law

The panel affirmed in part, vacated in part, and remanded in a case in which the defendant was convicted of conspiracy to distribute methamphetamine and possession of methamphetamine with intent to distribute.

The panel held that the district court erred in denying the defendant's motions to suppress evidence found during searches of his person, car, and home solely on the basis that the defendant, who was on probation for a nonviolent offense, was subject to a Fourth Amendment search waiver at the time of the searches. The panel explained that a Fourth Amendment search waiver cannot provide a justification for a search of a probationer where the officers were unaware of the waiver before they undertook the search. The panel rejected the government's arguments that the search of the defendant's person was justified as a valid Terry stop and frisk, or as a valid protective sweep. The panel rejected the government's arguments that the search of the defendant's car was justified by the automobile exception to the warrant requirement, or by the officers' discovery of the Fourth Amendment search waiver where the government did not prove by a preponderance of the evidence that the officers knew about the search waiver before searching the car. The panel held that the search of the defendant's home was conducted pursuant to a valid search warrant.

The panel concluded that the district court's failure to suppress the unlawfully seized evidence was harmless as to the conspiracy conviction, but could not conclude beyond a reasonable doubt that the evidence did not contribute to the jury's verdict on the possession-with-intent-to-distribute count.

The panel held that the district court did not err in refusing to give a multiple conspiracies instruction.

The panel held that the district court did not make explicit findings, as required by Fed. R. Crim. P. 32, to resolve disputes regarding the sufficiency of the evidence to support offense level increases at sentencing for importation of methamphetamine (U.S.S.G. § 2D1.1(b)(5)), maintaining a premises for the purpose of manufacturing or distributing a controlled substance (U.S.S.G. § 2D1.1(b)(12)), and unlawful discharge of a toxic substance (U.S.S.G. § 2D1.1(b)(13)(A)). The panel declined to adopt the government's proffered reading of § 2D1.1(b)(5) that would dispense with the requirement that the defendant actually knew the drugs were imported. The panel held that the government did not meet its burden of proving that the defendant maintained a premises for the primary purpose of manufacturing or distributing methamphetamine, and concluded that the government did not meet its burden of proving the facts necessary to support the increase under § 2D1.1(b)(13)(A).

Todd W. Burns (argued), Burns and Cohan, San Diego, California, for Defendant-Appellant.

Mark R. Rehe (argued), Assistant United States Attorney; Laura E. Duffy, United States Attorney; Peter Ko, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

Before: A. Wallace Tashima and Richard A. Paez, Circuit Judges, and Paul L. Friedman,[*] District Judge. Opinion by Judge Friedman.

OPINION

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FRIEDMAN, District Judge:

Travis Job appeals from his conviction after a jury trial on two drug-related offenses: (1) conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § § 841(a)(1), 846, and (2) possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and his sentence of 365 months, followed by a lifetime of supervised release. He argues that the district court erred by denying his motions to suppress evidence found during searches of his person, car, and home. He also argues that the district court erred when it denied his requests for jury instructions on the lesser included offense of simple possession and on multiple conspiracies. He contends that the district court erred when calculating his guidelines sentencing range when it applied: (1) a two-level increase for an offense involving the importation of methamphetamine under United States Sentencing Guidelines (" U.S.S.G." ) § 2D1.1(b)(5), (2) a two-level increase for an offense in which the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance under § 2D1.1(b)(12), and (3) a two-level increase for an offense involving an unlawful discharge of a toxic substance under § 2D1.1(b)(13)(A). Finally, he argues that his sentence of 365 months is substantively unreasonable.

We have jurisdiction under 28 U.S.C. § 1291; we affirm Job's conviction in part, vacate it in part, and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from an investigation into a conspiracy involving the importation of methamphetamine from Mexico and its distribution in San Diego County and South Carolina. The conspiracy was led by Job's codefendant at trial, Robert Rodriguez. The government alleged that Job served two roles within the conspiracy. Rodriguez fronted methamphetamine to Job for sale to third parties, meaning that drugs were provided to Job on the promise that he would pay Rodriguez later, after the drugs were sold. In addition, Job " cut" methamphetamine for Rodriguez and Carrie Brown-Rodriguez, Rodriguez's wife. Cutting refers to adding another product to pure methamphetamine to add more weight to it and increase the quantity available for resale.

On October 3, 2012, the police arrested Job for possession of a controlled substance for sale and possession of drug paraphernalia after stopping him and searching his person and his car.1 That afternoon, Officer Nicholas Dedonato and other officers arrived at 2504 Snowdrop Street looking for another man, Richard Elliot, who is unrelated to this case. Upon the officers' arrival at the home, they saw two men open the garage door. These men were identified as Travis Job and William Holt, who also is unrelated to this case. According to Officer Dedonato, both men looked " very surprised to see the police." Job " appeared very nervous and was wearing a

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baggy shirt, which concealed his waistband and baggy cargo shorts, with the pockets appearing to be full of items."

In the police report, Officer Dedonato stated that he " felt it would be much safer for my partners and myself if I patted Job down for weapons." He handcuffed Job prior to the pat down. During the pat down, he " felt a hard tube like object with a bulbous end in [Job's] left cargo pocket." Based on his training and experience, Officer Dedonato recognized the object as an illegal glass pipe. Officer Dedonato removed the pipe, which " contained a burnt white residue." In Job's pockets, Officer Dedonato found $1450 in cash and Job's car keys. He then placed Job under arrest for possession of narcotics paraphernalia.

After seizing Job's car keys, Officer Dedonato asked Job where he had parked his car. Job " looked around nervously and said, 'I don't know.'" Officer Dedonato pressed the unlock button on Job's key fob, and the car in the driveway beeped as it unlocked. Two other officers then searched Job's car. They found a cigarette pack containing 3.9 grams of methamphetamine in " two Ziploc style bags" and a handrolled cigarette with " Spice," which they recognized as an illegal street drug; another glass pipe containing burnt white residue; and a Blackberry cell phone.

At some point during the encounter, the officers conducted a records check, " which revealed [Job] was currently on probation with a 4th amendment waiver." While on probation for a state drug offense, Job was required to " submit person, property, place of residence, vehicle, [and] personal effects to search at any time with or without a warrant, and with or without reasonable cause, when required by a probation officer or other law enforcement officer." It is unclear when, if ever, the officers learned the precise scope of Job's search waiver.

In December of 2012, police officers obtained a search warrant...

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