U.S. v. Parra

• Decision Date: 20 August 1993
• Docket Number: Nos. 92-2053,92-2055,s. 92-2053
• Citation: 2 F.3d 1058
• Parties: 39 Fed. R. Evid. Serv. 483 UNITED STATES of America, Plaintiff-Appellee, v. Salvador PARRA, also known as Salvador Ledezma, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jose Alfredo SOTELO, also known as Ricardo Duarte, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1058

2 F.3d 1058

39 Fed. R. Evid. Serv. 483

UNITED STATES of America, Plaintiff-Appellee, v. Salvador PARRA, also known as Salvador Ledezma, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jose Alfredo SOTELO, also known as Ricardo Duarte,

Defendant-Appellant.

Nos. 92-2053, 92-2055.

United States Court of Appeals Tenth Circuit.

Aug. 20, 1993.

Albert B. Lassen, of Lassen & Jaffe, Albuquerque, NM, for defendant-appellant Salvador Parra.

Frederick Jones, Jr., Albuquerque, NM, for defendant-appellant Jose Alfredo Sotelo.

Tara C. Neda (Don J. Svet, U.S. Atty., with her on the briefs), Asst. U.S. Atty., Albuquerque, NM, for plaintiff-appellee.

Before ANDERSON, HOLLOWAY, and TACHA, Circuit Judges.

TACHA, Circuit Judge.

In separate appeals, ¹ defendants Jose Alfredo Sotelo and Salvador Parra challenge their convictions and sentences for violating various drug and weapons laws. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742 and affirm.

A grand jury charged the defendants in a seven-count indictment. The first four counts charged Sotelo and Parra, along with their codefendant Francisco Castillo: Count I charged possession with intent to distribute less than 500 grams of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(C) and 18 U.S.C. Sec. 2; Count II charged conspiracy to commit the offense charged in Count I in violation of 21 U.S.C. Sec. 846 and 18 U.S.C. Sec. 2; Count III charged use of a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. Secs. 2 and 924(c)(1); and Count IV charged use of the same firearm during and in relation to a conspiracy to commit a drug trafficking offense in violation of 18 U.S.C. Secs. 2 and 924(c)(1). Count V charged Sotelo alone with use of a second firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. Secs. 2 and 924(c)(1). Finally, Counts VI and VII charged Sotelo alone with being an illegal alien in possession of each of the two firearms identified in Counts III and V in violation of 18 U.S.C. Secs. 922(g)(5) and 924(a)(2). A jury convicted Mr. Parra on the first five counts and Mr. Sotelo on all seven counts. The court then sentenced Mr. Parra to a total of 346 months and Mr. Sotelo to a total of 341 months of imprisonment. These terms each included 240 months for the convictions on Count IV to be served consecutively to the sentences imposed for the convictions on the other counts.

The defendants appeal their convictions on all counts and the sentences imposed for their convictions on Count IV. Mr. Sotelo argues that the district court erred when it (1) denied his motion to sever Counts VI and VII, (2) denied his motion to suppress physical evidence, (3) denied his motion to suppress statements concerning his identity, (4) admitted prejudicial coconspirator statements, (5) entered judgment where there was insufficient evidence to support the convictions, (6) entered judgment on two convictions of use of a firearm during the same drug crime in violation of the Double Jeopardy Clause, and (7) misapplied the United States Sentencing Guidelines. Mr. Parra argues only that the district court improperly denied his motion to suppress physical evidence and misapplied the Sentencing Guidelines. We address the defendants' arguments in turn.

I. MOTION TO SEVER COUNTS

Mr. Sotelo contends that the district court should have severed counts VI and VII, which charged him with being an illegal alien in possession of a firearm. He argues that he was prejudiced because the jury might have improperly presumed that his only purpose for being in the country illegally was to traffic drugs. In deciding a motion for severance,

the district court has a duty to weigh the prejudice resulting from a single trial of counts against the expense and inconvenience of separate trials.

"The decision whether to grant or deny severance is in the sound discretion of the trial court, and will not be disturbed on appeal unless there is an affirmative showing of abuse of discretion." "The burden of the defendant to show an abuse of discretion in this context is a difficult one."

United States v. Hollis, 971 F.2d 1441, 1456 (10th Cir.1992) (citations omitted), cert. denied, --- U.S. ----, 113 S.Ct. 1580, 123 L.Ed.2d 148 (1993). We conclude that the district court did not abuse its discretion because Sotelo has failed to demonstrate that the alleged prejudice he suffered outweighed the expense and inconvenience of separate trials.

II. MOTIONS TO SUPPRESS PHYSICAL EVIDENCE

Both defendants argue that the district court erred when it denied their motions to suppress cocaine and a firearm found during a warrantless search of their motel room. The court held that exigent circumstances justified the warrantless entry of the room and arrest of the defendants. It held further that the evidence was discovered during a legal protective sweep of the room. We review the district court's factual findings under the clearly erroneous standard and view the evidence in the light most favorable to the district court's findings. United States v. Ibarra, 955 F.2d 1405, 1409 (10th Cir.1992). The ultimate determination regarding the reasonableness of the search is a question of law which we review de novo. Id. After reviewing the district court's decision, we affirm.

Viewed in the light most favorable to the government, the evidence adduced at the suppression hearing presents the following set of facts. On May 14, 1991, a confidential informant ("CI") informed narcotics detectives from the Albuquerque Police Department ("APD") that Francisco Castillo was staying in Room 132 of the Freeway Motor Inn with several other men and that cocaine was being sold from the room. The CI also told the detectives that one of the men acted as a bodyguard for Castillo, was armed and dangerous, and drove a blue Buick.

At this point, the detectives believed that they did not have probable cause to obtain a warrant to search the defendants' motel room. They therefore established surveillance of the room in order to have the CI confirm that cocaine was actually in the room. The plan was then to use this information to obtain a search warrant to arrest the suspects and seize the cocaine. They estimated that it would take about one hour to obtain the warrant.

While the detectives watched from their vantage point in room 152, they observed Parra and Castillo enter room 132. A short time later, Mr. Sotelo, who matched the CI's description of Castillo's bodyguard, arrived in a blue Buick with a black vinyl top. After Sotelo entered the room, Parra left the room, retrieved from the Buick a brown paper bag, and re-entered the room. The detectives believed the bag contained cocaine.

Soon after, Castillo left the room, made a phone call from the motel lobby, and returned to the room. An APD detective who was at another location with the CI informed the detectives in room 152 that Castillo had paged the CI to have him view the cocaine. Within a few minutes, the CI entered room 132. After less than a minute, he left the room and gave a prearranged signal indicating that he had seen the cocaine.

Almost immediately, Castillo left the room carrying a brown paper bag. As he walked toward the motel office, he placed the bag into a nearby trash can. The detectives believed that this was the same bag they had observed earlier, and they feared that destruction or movement of the cocaine was occurring or was imminent and that the suspects were preparing to flee. They therefore decided to arrest Castillo in the office area. During the arrest, the door to room 132 was open four to six inches and the detectives believed that the other suspects might have observed Castillo's arrest. They therefore decided to secure room 132 without first obtaining a warrant.

Three detectives went to room 132 and confronted Sotelo and Parra. Although they instructed the suspects in both English and Spanish to raise their arms above their heads, the men did not comply immediately. Mr. Sotelo, who appeared calm, glanced directly at a pillow placed in the center of the bed closest to him, but did not move toward the pillow. After the suspects raised their arms, two of the detectives subdued and handcuffed them. At the same time, the third officer lifted the pillow on the bed closest to Sotelo and discovered a semi-automatic pistol. After the suspects were seated on the ground with their hands cuffed behind their backs, another detective removed another pillow lying at the center of the second bed and discovered a clear baggie of cocaine.

The suspects were detained while one of the detectives obtained a warrant to search the rest of the room and the Buick. After obtaining the warrant, the detectives discovered a .357 magnum revolver in the car under the driver's seat.

Defendants first contend that the initial warrantless entry of their motel room was illegal. Absent consent or exigent circumstances, police may not enter a citizen's home without a warrant. Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980); United States v. Mendoza-Salgado, 964 F.2d 993, 1010 (10th Cir.1992). A guest in a motel room is similarly protected from warrantless entries. See Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966); United States v. Owens, 782 F.2d 146, 149 (10th Cir.1986). In United States v. Aquino, 836 F.2d 1268 (10th Cir.1988), we articulated four requirements for a permissible warrantless entry:

An exception to the warrant requirement that allows police fearing the destruction of evidence to enter the home of [a] ... suspect should be (1) pursuant to clear evidence of probable cause, (2) available only for serious crimes and in circumstances where the destruction of evidence is likely, (3) limited in scope to the minimum intrusion necessary to prevent the destruction of evidence, and (4) supported...