United States v. Job

• Decision Date: 14 March 2017
• Docket Number: No. 14-50472.,14-50472.
• Citation: 871 F.3d 852
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Travis JOB, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

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.

Argued and Submitted December 9, 2016—Pasadena, California

Filed March 14, 2017

Amended August 21, 2017

COUNSEL

Todd W. Burns, Burns and Cohan, San Diego, California, for Defendant–Appellant.

Mark R. Rehe, Assistant United States Attorney; Peter Ko and Helen H. Hong, Chief, Appellate Section, Criminal Division; Alana W. Robinson, Acting United States Attorney; 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.

FRIEDMAN, District Judge:

ORDER

The opinion filed on March 14, 2017 is amended as follows:

On page 896, paragraphs 2–3 remove First, it> and replace with .

On page 896, paragraph 3 after add The district court erred in denying Job's motions to suppress evidence from all three searches solely on the basis of Job's Fourth Amendment search waiver.>

On page 896–97 delete the fourth and first paragraphs and replace with we note that the district court failed to recognize that our decision in King was limited to individuals on probation for violent felonies. 736 F.3d at 810 ; see also Lara , 815 F.3d at 609-10 (noting that King was "expressly limited" to violent felons and does not apply to individuals on probation for nonviolent drug crimes). Although the parties dispute whether Job was on probation for a felony or a misdemeanor, he was on probation for a nonviolent drug offense.² This fact may or may not have changed the district court's decision to deny Job's motion to suppress if it had undertaken the careful balancing test to determine whether the search at issue was reasonable under the Fourth Amendment, as alluded to in King and discussed in detail in Lara . See Lara , 815 F.3d at 609-12 ; King , 736 F.3d at 808-10. But the district court did not have the benefit of guidance from our decision in Lara at the time of its decision. The district court's decision to rely exclusively on King , however, was error.>

On page 897, footnote 2, after People v. Morales , 224 Cal.App.4th 1587, 169 Cal.Rptr.3d 814, 820 (2014) >> add Lara , we said that violations of California Health and Safety Code §§ 11378 and 11379(a), for the possession for sale and transportation of methamphetamine, are "nonviolent drug crime[s]." 815 F.3d at 610. Job was on probation for a similar offense, unlawful possession of methamphetamine, in violation of § 11377(a). >

An Amended Opinion is filed concurrently with this order.

With these amendments, the petitions for panel rehearing by Appellee and Appellant are DENIED.

The full court has been advised of Appellee's petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED.

No further petitions for rehearing or petitions for rehearing en banc may be filed.

OPINION

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 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 hand-rolled 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 for Job's residence, based in part on intercepts from wiretaps of Rodriguez's phone. While executing the search warrant, the officers found various items including: 56.4 grams of methamphetamine in Job's freezer, five scales, small stashes of methamphetamine totaling 15.28 grams, baggies, several glass pipes, and undisclosed amounts of Spice, bath salts, and marijuana. In the garage, the officers found an invoice for items including a test tube, a hand boiler, and an Erlenmeyer flask. In the kitchen, the officers found cleaning supplies, a microwave, a hot plate, and a white apron. After the search, the San Diego County Department of Environmental Health inspected Job's apartment and found that the downstairs portion was "contaminated with methamphetamine residuals." In a subsequent report, the department concluded that methamphetamine had been stored in Job's kitchen and living room, but that it was "unknown if manufacturing was taking place" in the apartment.

Before trial, Job filed two motions to suppress: one for the evidence found on his person and in his car in October and one for the evidence found during the search of his home in December. With its response opposing both motions, the government submitted a police report describing the events of October 3, 2012. The district court denied both motions without an evidentiary hearing. During trial, Job requested jury instructions on the lesser included offense of simple possession and on multiple conspiracies. The district court denied both requests. A jury convicted Job on all counts. The government sought enhanced penalties under 21 U.S.C. § 851 because Job had committed these offenses after prior felony convictions.

In determining Job's guidelines sentencing range, the district court applied three offense level increases: (1) a two-level increase for an offense involving the importation of methamphetamine under U.S.S.G. § 2D1.1(b)(5), (2) a two-level increase for maintaining a premises for the purpose of manufacturing or distributing a controlled substance under § 2D1.1(b)(12), and (3) a two-level increase for the unlawful discharge of a toxic substance under § 2D1.1(b)(13)(A). The district...