U.S. v. Angelos, 04-4282.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation433 F.3d 738
Decision Date09 January 2006
Docket NumberNo. 04-4282.,04-4282.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Weldon ANGELOS, Defendant-Appellant. George M. Anderson; Russell T. Baker, Jr.; Donald L. Beckner; Griffin B. Bell; Harold J. Bender; Thomas K. Berg; Rebecca A. Betts; James S. Brady; James R. Britton; B. Mahlon Brown, III; Buck Buchanan; Wayne A. Budd; David B. Bukey; Robert C. Bundy; William R. Burkett; A. Bates Butler, III; Mark W. Buyck, Jr.; Edward N. Cahn; J.A. Tony Canales; David J. Cannon; Zachary W. Carter; Jim R. Carrigan; Robert J. Cindrich; Benjamin R. Civiletti; Charles Clark; Robert J. Cleary; W.J. Michael Cody; Kendall Coffey; Janice McKenzie Cole; Veronica F. Coleman-Davis; James F. Companion; William B. Cummings; Margaret E. Curran; E. Bart Daniel; John G. Davies; Robert J. Del Tufo; Michael H. Dettmer; Joseph E. Digenova; W. Thomas Dillard; Harry D. Dixon, Jr.; Edward L. Dowd, Jr.; Ronald F. Ederer; John S. Edwards; Edgar W. Ennis, Jr.; Robert B. Fiske, Jr.; J. Don Foster; Daniel J. French; Susan Getzendanner; John J. Gibbons; Jonathan L. Goldstein; Tony M. Graham; Charles E. Graves; Saul A. Green; David Warner Hagen; Hal D. Hardin; Jo Ann Harris; Frederick J. Hess; Stephen B. Higgins; Roger Hilfiger; Roscoe C. Howard, Jr.; James A. Hurd, Jr.; Guy G. Hurlbutt; John M. Imel; Brian A. Jackson; Thomas Penfield Jackson; J. Alan Johnson; James E. Johnson; Gaynelle G. Jones; Nathaniel R. Jones; David J. Jordan; Nicholas Deb. Katzenbach; J. Ransdell Keene; John J. Kelly; W.A. Kimbrough, Jr.; John E. Lamp; Scott R. Lassar; George N. Leighton; Stephen C. Lewis; Timothy K. Lewis; Sidney I. Lezak; William J. Lockhart; Martin F. Loughlin; Andrew J. Maloney; Thomas J. Maroney; John S. Martin, Jr.; Sherry S. Matteucci; Ted L. McBride; Jay P. McCloskey; A. Melvin McDonald; Edward B. McDonough, Jr.; Frank J. McGarr; Patrick M. McLaughlin; H. Curtis Meanor; Kenneth J. Mighell; Abner J. Mikva; Irvin B. Nathan; James F. Neal; William A. Norris; K. William O'Connor; Denise O'Donnell; John O. Olson; Jerome F. O'Neill; Stephen M. Orlofsky; A. John Pappalardo; Robert M. Parker; Larry D. Patton; Terry L. Pechota; Layn R. Phillips; Harold J. Pickerstein; Richard J. Pocker; Sam C. Pointer, Jr.; George C. Pratt; William S. Price; John W. Raley, Jr.; Ronald S. Reed, Jr.; Ronald L. Rencher; Charles B. Renfrew; Janet Reno; James H. Reynolds; James G. Richmond; Jose De Jesus Rivera; William W. Robertson; James K. Robinson; James A. Rolfe; Benito Romano; Richard A. Rossman; Stanley J. Roszkowski; Robert J. Roth; Joseph Russoniello; Robert W. Rust; Stephen H. Sachs; H. Lee Sarokin; David M. Satz, Jr.; Carl Schnee; William S. Sessions; Abraham D. Sofaer; Henry L. Solano; Michael R. Spaan; Donald K. Stern; Herbert J. Stern; John W. Stokes, Jr.; J. Preston Strom, Jr.; Thomas P. Sullivan; Frederick W. Thieman Paul R. Thomson, Jr.; Victoria Toensing; Stanley A. Twardy, Jr.; Peter F. Vaira; Patricia M. Wald; Atlee W. Wampler, Iii Edward G. Warin; James J. West; Paul L. Westberg; Daniel E. Wherry; George W. White; Joseph M. Whittle; Francis M. Wikstrom; William D. Wilmoth; Alfred Wolin; Ronald G. Woods; Bob Wortham; Sharon J. Zealey; Donald E. Ziegler, Amici Curiae.

Robert A. Lund, Assistant United States Attorney (Paul M. Warner, United States Attorney, with him on the briefs), District of Utah, Salt Lake City, UT, for Plaintiff-Appellee.

Jerome H. Mooney, Mooney Law Firm, Salt Lake City, UT; Erik Luna, Salt Lake City, UT, attorneys for Defendant-Appellant.

Jeffrey B. Sklaroff and Harry H. Rimm, Greenberg Traurig, New York, NY, filed a brief on behalf of Amici Curiae.

Before BRISCOE, ANDERSON and O'BRIEN, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Weldon Angelos was convicted of multiple drug, firearms, and money laundering offenses and sentenced to a term of imprisonment of fifty-five years and one day. Angelos now appeals his convictions and sentence. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.


In May and June of 2002, the government, with the assistance of a confidential informant (CI), conducted three controlled purchases of marijuana from Angelos. On each of the three occasions, the CI purchased eight ounces of marijuana from Angelos in exchange for cash. On two of the three occasions, the CI observed Angelos in possession of a 10 millimeter Glock pistol.

Angelos's involvement in the three controlled purchases led to his indictment by a federal grand jury on November 13, 2002. The indictment charged Angelos with three counts of marijuana distribution in violation of 21 U.S.C. § 841(a)(1), one count of carrying or possessing a firearm during or in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c), and one count of possessing a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k).

Angelos was subsequently arrested on November 15, 2002. A consensual search of Angelos's apartment produced three pounds of marijuana, three firearms, a large amount of cash, and two opiate suckers. A subsequent search at a house leased by Angelos produced, among other things, additional marijuana and several large duffle bags that contained marijuana residue.

On June 18, 2003, the government obtained a superseding indictment charging Angelos with seventeen criminal counts, including additional marijuana distribution counts and additional § 924(c) counts. On October 1, 2003, following the completion of a criminal investigation by the Internal Revenue Service, the government obtained a second superseding indictment charging Angelos with twenty criminal counts, including: six counts of distributing marijuana in violation of 21 U.S.C. § 841(a)(1) (Counts 1, 3, 5, 9, 13, 15); five counts of possessing a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Counts 2, 4, 10, 14, 16); two counts of possessing a stolen firearm in violation of 18 U.S.C. § 922(j) (Counts 6, 11); one count of possessing a firearm which had the importer's and manufacturer's serial number removed, obliterated and altered, in violation of 18 U.S.C. § 922(k) (Count 7); three counts of possessing a firearm while being an unlawful user of controlled substances in violation of 18 U.S.C. § 922(g)(3) (Counts 8, 12, 17); one count of engaging in and attempting to engage in a monetary transaction through or to a financial institution in criminally derived property in violation of 18 U.S.C. § 1957 (Count 18); and two counts of conducting and attempting to conduct financial transactions which involved the proceeds of marijuana distribution in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (Counts 19, 20).

The case proceeded to trial in December 2003, where a jury found Angelos guilty of sixteen counts, including three § 924(c) counts. Following trial, a presentence investigation report (PSR) was prepared which recommended that Angelos, who had no prior adult criminal history, be sentenced to a term of imprisonment of sixty-one and a half (61.5) years, including six and a half (6.5) years for the drug and money laundering convictions and fifty-five (55) years for the three § 924(c) convictions. After receiving the PSR, the district court expressed concern about imposing what it characterized as "an extraordinarily long prison term," and thus directed the parties to file briefs addressing a number of sentencing-related issues, including whether the mandatory minimum sentences required under § 924(c) were consistent with the Eighth Amendment's prohibition against cruel and unusual punishment. App. at 106. Angelos argued in response that the fifty-five year sentence required to be imposed under § 924(c) violated the Eighth Amendment's prohibition against cruel and unusual punishment. Angelos also asserted an Equal Protection challenge to § 924(c).

On November 16, 2004, the district court sentenced Angelos to a term of imprisonment of fifty-five years and one day. In doing so, the district court rejected Angelos's Eighth Amendment and Equal Protection challenges to his sentence.


Denial of motion to suppress

On December 16, 2002, Chelsea Davenport, Angelos's former girlfriend, advised law enforcement agents that Angelos was hiding drugs, firearms, and money at a rental house located at 1701 East Fort Union Boulevard (the Fort Union house) in Salt Lake City.App. at 35-36. In particular, Davenport advised that she had observed marijuana in the trunk of a black BMW automobile parked in the garage at the Fort Union house (the same BMW that Angelos was observed driving when he sold marijuana to the CI), and that additional drugs, guns, and money were located in a safe in the basement of the Fort Union house. Id. Based upon this information, Federal Bureau of Investigation (FBI) agent Juan Becerra prepared an affidavit in support of a search warrant for the Fort Union house and the BMW. Id. at 35-38. In the affidavit, Becerra stated:

Your Affiant desires to seize the safe belonging to Angelos, [and] the black 1993 BMW 318I used during the sale of drugs to [the CI]. Your Affiant also requests permission to seize any drug paraphernalia, illegal narcotics, any proceeds derived from these activities, any photographs, video tapes or other items pertaining to the sale and distribution of illegal narcotics and street gang affiliation and activities.

Id. at 37. Consistent with the practice in the District of Utah, Becerra presented his affidavit to an Assistant United States Attorney (AUSA) for preparation of an application for a search warrant and a proposed search warrant. Unlike the broader language contained in Becerra's affidavit, both the application and the proposed search warrant prepared by the AUSA requested permission to seize only "[m]arijuana and other indicia of narcotics in the trunk of the vehicle, 1993 BMW 318i, License Plate # 215J3" and the "personal safe...

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