990 F.2d 1261 (9th Cir. 1993), 91-50302, U.S. v. Bustamante

Docket Nº:91-50302.
Citation:990 F.2d 1261
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. George Steven BUSTAMANTE, aka: George S. Bustamonte, Jr., Defendant-Appellant.
Case Date:April 02, 1993
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1261

990 F.2d 1261 (9th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

George Steven BUSTAMANTE, aka: George S. Bustamonte, Jr., Defendant-Appellant.

No. 91-50302.

United States Court of Appeals, Ninth Circuit

April 2, 1993

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted Nov. 3, 1992.

Appeal from the United States District Court For the Central District of California; No. CR-90-0493-RG, Richard A. Gadbois, Jr., District Judge, Presiding.

C.D.Cal.

AFFIRMED.

Before D.W. NELSON, HALL and RYMER, Circuit Judges.

MEMORANDUM [*]

Appellant George Bustamante appeals his conviction for bank robbery in violation of 18 U.S.C. § 2133(a). He contends that the district court erred in denying his motions to suppress evidence and to disallow an impermissibly suggestive in-court identification. Bustamante also appeals his sentence under the Sentencing Guidelines on the ground that a prior 1973 conviction should not have been considered in deciding whether he was a career offender. For the reasons stated below, we affirm both Bustamante's conviction and his sentence.

FACTS

On June 15, 1990, the Security Pacific Bank in Venice, California was robbed. Shortly after the robbery, a description of the suspect was broadcast over the police radio. Approximately three hours after the robbery, two Los Angeles police officers responded to a complaint about a man screaming in a room at the Vita Motel, located about one mile from the bank. The room was registered to Cynthia Baugh, her fourteen year-old son, and her sister Teri Baugh, all of whom were then living at the motel. The officers testified that when they arrived they could see several persons in the room including a man, later identified as Bustamante, who was kneeling on the floor, yelling, tossing his head, and occasionally striking his head against the wall. The officers instructed the people in the room to go outside. One of the officers then conducted a protective sweep. During the sweep, the officer saw a brown paper bag full of cash lying open in the shower stall in the bathroom. The officers seized the bag, inspected it further, and arrested Bustamante for the robbery.

Prior to his trial, Bustamante made a motion to suppress introduction of the brown paper bag and the money into evidence which was denied. Bustamante also filed a motion in limine to prevent his in-court identification by a witness who had previously been unable to identify him from a photographic lineup. This motion was also denied, but the district court did not articulate its reasons for doing so. Bustamante was tried and convicted by a jury, and subsequently sentenced as a career offender to 210 months imprisonment and three years supervised release.

DISCUSSION

A. Motion to Suppress

Bustamante contends that the district court erred in denying his motion to suppress on the ground that the evidence was obtained as the result of a warrantless entry into and search of the motel room which was not justified by any recognized exception to the warrant requirement. The government responds that Bustamante has no standing to contest the entry into and search of the motel room, and that the seizure and subsequent search of the paper bag was justified by the plain view exception to the Fourth Amendment.

1. Standing

Initially, the government challenges Bustamante's standing to contest the officers' entry into and protective sweep of the motel room. Although it was raised below, the district court made no ruling on this issue.

Nonetheless, this court may affirm the district court's decision to deny the motion to suppress on any basis that is fairly supported by the record. United States v. Johnson, 820 F.2d 1065, 1072 n. 7 (9th Cir.1987).

In order to challenge the police officer's warrantless entry into the motel room and subsequent protective sweep, Bustamante must...

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