U.S. v. Munoz-Nava

• Decision Date: 06 May 2008
• Docket Number: No. 06-2247.,No. 06-2254.,06-2247.,06-2254.
• Citation: 524 F.3d 1137
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. Gonzalo MUÑOZ-NAVA, Defendant-Appellee/Cross-Appellant.

524 F.3d 1137

UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. Gonzalo MUÑOZ-NAVA, Defendant-Appellee/Cross-Appellant.

No. 06-2247.

No. 06-2254.

United States Court of Appeals, Tenth Circuit.

May 6, 2008.

David N. Williams, Assistant United States Attorney (Larry Gomez, Acting United States Attorney, and David C. Iglesias, former United States Attorney, with him on the briefs), Albuquerque, NM, for Plaintiff-Appellant/Cross-Appellee.

Margaret A. Katze, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellee/Cross-Appellant.

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

MURPHY, Circuit Judge.

I. Introduction

Gonzalo Muñoz-Nava pleaded guilty to one count of possession with intent to distribute 100 grams or more of heroin in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). The district court sentenced Muñoz-Nava to one year and one day of imprisonment, one year of home confinement, and five years of supervised release. The government appeals the below-Guidelines sentence imposed by the district court, arguing the sentence was procedurally and substantively unreasonable. Muñoz-Nava cross-appeals the district court's denial of his motion to suppress evidence, alleging violations of the Fourth Amendment. Taking jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 3742(b), this court holds that probable cause supported Muñoz-Nava's detention and affirms the denial of his motion to suppress. Applying the deferential abuse-of-discretion standard of review articulated in Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 575, 169 L.Ed.2d 481 (2007), this court affirms the sentence imposed by the district court.

II. Background

A. Encounter at the Bus Station

Muñoz-Nava traveled by bus from El Paso, Texas to Albuquerque, New Mexico. As he departed the bus, Muñoz-Nava was observed by Agent Jarrell Perry of the Drug Enforcement Administration (DEA). Perry approached Muñoz-Nava, identified himself, and asked to speak with him. Muñoz-Nava agreed. In response to questioning, Muñoz-Nava told Perry he lived in El Paso and was visiting his parents in Albuquerque. His only luggage was a shopping bag. With Muñoz-Nava's permission, Perry searched the bag, revealing a pair of cowboy boots, house slippers, a sweatshirt and a United States Naturalization Certificate.

Perry testified at the suppression hearing that he found it suspicious Muñoz-Nava carried no toiletries. Perry had previously seized narcotics hidden in shoes. Like Muñoz-Nava, those suspects traveled with almost no luggage other than a change of shoes. Perry further testified he was suspicious of the cowboy boots Muñoz-Nava was wearing because they looked "ballooned up" as if they were too small or there was something underneath pushing up on the top of the boots. Perry testified he had previously seized twenty pairs of boots abandoned in Los Lunas, New Mexico, with the same alligator, thin-skinned scales as Muñoz-Nava's boots. The abandoned boots had false compartments in the sole. In addition, Perry had made eight previous seizures of heroin from the shoes of bus passengers traveling from El Paso.

Perry asked Muñoz-Nava for consent to search the cowboy boots he was wearing. Muñoz-Nava removed his boots and handed them to Perry. Perry's inspection revealed the bottom of the boots had a distinct bulge and the boots were heavier than usual. There was also glue in the inner sole of the boots and the odor of fresh glue. The bottom of the boots were entirely covered by a fresh black dressing. In Perry's previous seizures, the footwear involved was heavier than usual and smelled of fresh glue. In addition, Muñoz-Nava's boots were the same black, size ten, "Star" brand boots as those seized in Los Lunas. Muñoz-Nava told Perry the boots were purchased one month earlier in Mexico, but the soles indicated they had received little wear.

Perry requested permission to cut open the boots. Muñoz-Nava refused, but consented to a dog sniff of the boots. Perry requested assistance from Task Force Officer Greg Rees, a certified narcotics canine handler assigned to the DEA. While waiting for Rees, Muñoz-Nava's father arrived at the bus station to pick up his son. Upon Rees' arrival, he proceeded to have the dog sniff the boots. Although Rees conducted sniffs in two locations, the dog did not fully alert to the smell of narcotics. The dog did exhibit characteristics indicating it detected an odor of illegal narcotics, but could not locate the source of the odor.¹ Rees testified he believed the dog's difficulty in locating the source of the odor was due in part to the windy conditions at both locations. Perry then asked Muñoz-Nava why the boots were so heavy. Muñoz-Nava responded that he intentionally bought heavy boots for exercise when walking.

Perry informed Muñoz-Nava the boots were being detained while he obtained a warrant to search the soles of the boots for narcotics. Muñoz-Nava was also told that although he was not under arrest, he was not free to leave. Muñoz-Nava was handcuffed and taken to the DEA office where he was placed in a holding cell. At the DEA office, Rees' dog was again deployed and alerted to the boots. After the alert, Perry obtained a search warrant for the boots. The search revealed 770.8 grams of heroin in the soles of the boots.²

Muñoz-Nava waived his Miranda rights. He told Perry he was recruited by a man from Mexico to transport the boots and he knew the boots contained drugs. He was to receive $1,000 for transporting the drugs. He also admitted this was the second time he had transported illegal drugs.

B. Motion to Suppress

Muñoz-Nava was indicted for possession with intent to distribute more than 100 grams of heroin in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). He moved to suppress all statements and evidence obtained as a result of the detention of his person and his boots. He also argued that when he was transported from the bus station to the DEA office, he was arrested without probable cause in violation of the Fourth Amendment. After holding an evidentiary hearing, the district court denied the motion.

C. Sentencing

Muñoz-Nava entered into a conditional plea agreement, reserving the right to appeal the district court's denial of his motion to suppress. Pursuant to the plea agreement, the parties stipulated to a base offense level of thirty. The agreement stipulated Muñoz-Nava was entitled to a two-level reduction for acceptance of responsibility pursuant to Section 3E1.1(a) of the United States Sentencing Guidelines Manual (U.S.S.G.). Section 3E1.1(b) provides an additional one-level reduction for acceptance of responsibility when a defendant has timely notified the authorities of his intention to plead guilty. The plea agreement referenced this additional reduction, stipulating Muñoz-Nava retained "the right to argue for the third point for acceptance of responsibility." Previous versions of the Sentencing Guidelines allowed the court to grant the Section 3E1.1(b) reduction absent any action from the government. See U.S.S.G. § 3E1.1(b) (2002). Muñoz-Nava, however, was sentenced under the 2005 version of the sentencing Guidelines, which allows for a Section 3E1.1(b) decrease "upon motion of the government."

At the sentencing hearing and in his written objections, Muñoz-Nava disputed some of the presentence report's (PSR) conclusions.³ He objected to the conclusion that he was not entitled to a minor role adjustment. See U.S.S.G. § 1B1.3. The PSR determined there was insufficient information to determine whether he played an aggravating or mitigating role in the offence, based in part on his admission he had transported drugs previously. As a result, the PSR did not recommend a minor role adjustment. U.S.S.G. § 1B1.3. He also objected to the PSR's recommendation that he not receive the third point reduction for acceptance of responsibility under Section 3E1.1(b). In addition, Muñoz-Nava argued his family circumstances were extraordinary and warranted a downward departure. See U.S.S.G. § 5H1.6. He cares for his eight-year-old son as a single father and for his elderly parents who have serious medical problems. He also requested a downward departure based on his lack of knowledge of the type or quantity of drugs he was carrying.

Muñoz-Nava asked the district court for a variance pursuant to 18 U.S.C. § 3553(a). In support of his request he pointed to his family circumstances and his extensive work history, including while released on bond. He also claimed his history demonstrated there was an extremely high probability he would not commit any other offense. He asked the court for a sentence of probation.

The government argued the PSR's recommendations were correct. It maintained Muñoz-Nava was not a minor participant because he could not demonstrate he was less culpable than most other participants in the conspiracy. The government also argued Muñoz-Nava was not entitled to a one-level reduction under Section 3E1.1(b) because he did not timely inform the government of his intent to plead guilty. In its written response to Muñoz-Nava's objections to the PSR, the government erroneously quoted an out-of-date version of Section 3E1.1(b), which allowed for the one-point reduction without a motion by the government. During the sentencing hearing, the government informed the district court the government had not moved for the third point. It never argued, however, that a government motion was a necessary prerequisite for awarding the third point. The government also argued Muñoz-Nava's family circumstances were not sufficiently exceptional to justify a downward departure. The government requested that Muñoz-Nava be sentenced within the Guidelines range in order to promote sentencing uniformity, provide adequate deterrence of Muñoz-Nava's criminal conduct, and to protect the public from future...