U.S. v. Outlaw

• Decision Date: 27 January 2003
• Docket Number: No. 01-51142.,01-51142.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Freeman Charles OUTLAW, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

319 F.3d 701

UNITED STATES of America, Plaintiff-Appellee, v. Freeman Charles OUTLAW, Jr., Defendant-Appellant.

No. 01-51142.

United States Court of Appeals, Fifth Circuit.

January 27, 2003.

Joseph H. Gay, Jr., Asst. U.S. Atty., Ellen A. Lockwood (argued), San Antonio, TX, for Plaintiff-Appellee.

Judy Fulmer Madewell (argued), San Antonio, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

KING, Chief Judge:

This case requires us to review the district court's denial of the Defendant's motion to suppress evidence claimed to be the "fruit" of an unreliable canine alert and improper detention and the district court's refusal to award the Defendant an additional one-level reduction from his base offense level for acceptance of responsibility. We affirm the denial of the Defendant's pre-trial motion but vacate the Defendant's sentence and remand for resentencing.

I. FACTS AND COURSE OF PROCEEDINGS

The facts here are largely undisputed. On April 21, 2000, border patrol agents at the Sierra Blanca checkpoint (a secondary inspection station) conducted a routine citizenship status check of passengers aboard a commercial Greyhound bus. Defendant Freeman Charles Outlaw was a passenger aboard this bus. While an agent conducted the status check inside the bus, another agent used his drug-detecting canine ("Gerri") to sniff the luggage in the bin beneath the bus. The dog alerted to a black, hard-shelled suitcase bearing a claim tag with the name "O. Freeman." After none of the passengers came forward to claim the suitcase, the agents conducted a physical inspection of the passengers' tickets to determine the suitcase's owner. As a result of this inspection, Outlaw was identified as having the ticket matching the claim stub for the suitcase and was asked to step off the bus.

Outlaw identified the suitcase as his own and agreed to allow agents to search the suitcase. After prying the lock open with a pocket knife (because Outlaw did not have the combination to the suitcase's lock), the agents uncovered two, one-gallon plastic jars containing what field tests later revealed to be phencyclidine ("PCP").

Outlaw was thereafter charged with possession with the intent to distribute 100 grams or more of PCP and one kilogram or more of a mixture or substance containing a detectable amount of PCP in violation of 21 U.S.C. § 841(a)(1). Outlaw moved to suppress the controlled substances found in his suitcase, any other physical evidence found in his suitcase and his post-arrest statements. On March 15, 2001, after conducting a de novo review of the magistrate judge's report and recommendation, the district court denied Outlaw's motion to suppress.

Outlaw thereafter entered a conditional plea of guilty and was sentenced by the trial court. At the sentencing hearing, the district court declined to award Outlaw an additional one-level reduction from his base offense level for acceptance of responsibility under United States Sentencing Guidelines ("U.S.S.G.") § 3E1.1(b).

Outlaw appeals the district court's pre-trial denial of his motion to suppress and appeals the district court's refusal to award him an additional one-level reduction under U.S.S.G. § 3E1.1(b).

II. ANALYSIS OF OUTLAW'S MOTION TO SUPPRESS

We have stated the general principle that immigration inspection detentions at a fixed checkpoint such as Sierra Blanca should be extended "based [only] upon sufficient individualized suspicion." United States v. Machuca-Barrera, 261 F.3d 425, 434 (5th Cir.2001). Outlaw attempts to use this general principle to bolster his opposition to the district court's pre-trial order denying his motion to suppress. Specifically, he argues the denial of his motion to suppress was erroneous because the canine alert here was unreliable and the border agent was unreasonable in relying on it.

The "`standard of review for a motion to suppress based on live testimony at a suppression hearing is to accept the trial court's factual findings unless clearly erroneous or influenced by an incorrect view of the law.'" United States v. Williams, 69 F.3d 27, 28 (5th Cir.1995) (quoting United States v. Alvarez, 6 F.3d 287, 289 (5th Cir.1993)). The district court's conclusions of law, including whether there was reasonable suspicion to extend the detention, however, are reviewed de novo. United States v. Valadez, 267 F.3d 395, 397 (5th Cir.2001); United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir.2001).

After a thorough review of the testimony and evidence before it, the district court found the canine alert to be reliable and concluded that "the officer had a reasonable suspicion that the suitcase contained some type of contraband" such that an inspection of the passengers' tickets in order to identify the owner of the suitcase was proper. We find no clear error in the district court's factual finding that the canine alert was reliable and therefore uphold the district court's ultimate conclusion regarding the reasonable suspicion of the border agent.

It is undisputed that this drug-detecting team successfully completed all standard training procedures for border patrol drug-detecting teams and that this canine was certified to detect a variety of narcotics, including marijuana and its derivatives, cocaine and its derivatives, heroin and its derivatives and methamphetamine.¹ That the suitcase the canine alerted to later turned out to contain PCP, a drug the dog was not trained to detect, simply does not vitiate the agent's reasonable suspicion under these facts. See, e.g., United States v. McCranie, 703 F.2d 1213, 1218 (10th Cir.1983) (holding that an alert by an explosives-sniffing dog not formally trained to detect drugs nonetheless created reasonable suspicion that the defendant's suitcase contained contraband); United States v. Robinson, 707 F.2d 811, 815 (4th Cir.1983) ("His [the dog's] initial detection [] was sufficient to establish probable cause for a search for controlled substances — the fact that a different controlled substance was actually discovered does not vitiate the legality of the search."); United States v. Viera, 644 F.2d 509, 511 (5th Cir. Unit B May 1981) ("It is true that the dogs were not trained to react to quaaludes, and that the discovery of the quaaludes can in this respect be characterized as fortuitous. However, that conclusion is not grounds for suppression of the evidence."); United States v. Johnson, 660 F.2d 21, 23 (2d Cir.1981) (rejecting appellant's argument that probable cause is not established when a dog alerts on only the residual odors of a drug). On this record, we affirm the district court's order insofar as it holds that sufficient reasonable and individualized suspicion existed to support the inspection of the bus passengers' tickets and to thereafter question Outlaw, whose claim ticket matched that of the suitcase believed to contain contraband.²

III. ANALYSIS OF OUTLAW'S SENTENCE

Outlaw maintains the district court misapplied the "acceptance of responsibility" guideline by declining to award him an additional one-level reduction under U.S.S.G. § 3E1.1(b). "Because trial courts are in a unique position to evaluate whether the defendant has demonstrated acceptance of responsibility, a district court's finding on acceptance of responsibility is examined for clear error but under a standard of review even more deferential than a pure `clearly erroneous' standard." United States v. Cano-Guel, 167 F.3d 900, 906 (5th Cir.1999) (internal citation and quotation omitted); see also United States v. Leal-Mendoza, 281 F.3d 473, 475 (5th Cir.2002). However, if this court determines that the district court misapplied the guidelines, remand is appropriate unless this court concludes, on the record as a whole, that the error is harmless. United States v. Cade, 279 F.3d 265, 273 (5th Cir.2002) ("The error is harmless only if the party defending the sentence persuades us that the district court would have imposed the same sentence absent the erroneous factor.").

At sentencing, the district court awarded Outlaw a two-level reduction from his base offense level for acceptance of responsibility under U.S.S.G. § 3E1.1(a) ("subsection (a)"), which provides that "[i]f the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels." U.S. SENTENCING GUIDELINES MANUAL § 3E1.1(a) (2001). Over Outlaw's objection, however, the district court declined to award Outlaw an additional one-level reduction under U.S.S.G. § 3E1.1(b) ("subsection (b)") of the same guideline section, which instructs the court to reduce the offense level by a third point if certain conditions are met. Specifically, the guideline states:

(b) If the defendant qualified for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and the defendant has assisted authorities in the investigation or prosecution of his own misconduct by taking one or more of the following steps:

(1) timely providing complete information to the government concerning his own involvement in the offense; or

(2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently,

decrease the offense level by 1 additional level.

U.S. SENTENCING GUIDELINES MANUAL § 3E1.1(b) (2001).

Many courts, including ours, have discussed the interplay between subsection (a) and subsection (b). Because it is important to the issues in this case, we summarize a few underlying principles set forth in the jurisprudence discussing these subsections before moving to the facts here. First, a district court lacks discretion to deny the additional one-level reduction under subsection (b) if the defendant is found to...