U.S. v. Phillips
| Decision Date | 18 August 2004 |
| Docket Number | No. 03-50520.,03-50520. |
| Citation | 382 F.3d 489 |
| Parties | UNITED STATES of America, Plaintiff-Appellant-Cross-Appellee, v. Bobby PHILLIPS, Jr., Defendant-Appellee-Cross-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joseph H. Gay, Jr., Asst. U.S. Atty., Mara A. Blatt (argued), San Antonio, TX, for U.S.
Michael W. McCrum (argued), San Antonio, TX, for Phillips.
Appeals from the United States District Court for the Western District of Texas.
Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
In this criminal appeal, the Government challenges the district court's downward departure from the otherwise applicable statutory mandatory minimum sentence of 10 years' imprisonment, arguing that no recognized exception to the statutory minimum applies in this case. Bobby Phillips, Jr., cross-appeals the district court's denial of his motion to suppress evidence of crack cocaine and other items seized from a backyard storage shed located on property belonging to another individual. For the following reasons, we affirm the district court's denial of Phillips' motion to suppress, but reverse the district court's sentencing determination, vacate the sentence, and remand for resentencing consistent with this opinion.
On the evening of July 14, 2000, San Antonio Police Department ("SAPD") Officer Nick Stromboe, working patrol on the east side of San Antonio, Texas, saw Bobby Phillips exit a vehicle driven by Anthony Davis at the corner of St. Martin and Nolan streets. Phillips, wearing yellow gloves, carried in one hand a grocery bag which was weighed down by its contents and a box of sandwich baggies in his other hand. From his position about 20 feet away from Phillips, Officer Stromboe observed what appeared to be crack cocaine powder on Phillips' gloves. Although Officer Stromboe gave Phillips verbal orders to approach him, Phillips looked at Stromboe, turned, and walked away, westbound down an alley.
Officer Stromboe followed Phillips down the alleyway to the rear property line of a single family residence and backyard shed owned by Davis' great-grandmother, Annie Thompson. Thompson's property was not enclosed; specifically, the border between her property line and the alley consisted of a fence, the shed, a four-foot opening, and a dilapidated three-foot fence. Officer Stromboe observed Phillips walk over to the shed, lift the corner of its tin roof, and drop the grocery bag into the shed. Stromboe then saw Phillips discard his gloves and the box of baggies in a nearby trash can, also situated along the border of the Thompson property adjacent to the alleyway. Phillips approached Stromboe, who then placed Phillips in handcuffs. As Stromboe and Phillips were walking back to the patrol car, Stromboe asked the defendant what he had thrown in the shed. Phillips replied that the bag had just contained marihuana.
Officer Stromboe momentarily waited for backup, then proceeded to retrieve the evidence which Phillips had discarded in the shed and the trash can. Accompanied by Officer Jeffrey Woolridge, Officer Stromboe walked to the shed and attempted to lift its roof, but was unable to do so.
Meanwhile, Thompson, the owner of the residence, had already observed from her window that Phillips and Davis were handcuffed and that about four officers were at the scene. Thompson testified that a "lady officer" then told her that she would lose her home if she did not allow the officers to look inside the shed. After the officers were unable to retrieve the evidence by lifting the roof of the shed, they asked Thompson if she would open the front door of the shed. Thompson responded "Certainly," went inside to obtain the key, returned, and opened the door to the shed.
Because the shed was cluttered with items that completely blocked access to the corner where the grocery bag lay, Stromboe took a chair from the backyard, placed it next to the corner of the shed, and stood on it. Stromboe was then able to open the roof of the shed, reach in, and retrieve the only grocery bag in that corner. Stromboe opened the bag and found a scale and five separate bags each containing a substance which later field-tested positive for cocaine base. Stromboe also recovered the yellow gloves and the baggies from the trash can.
After the evidence was recovered, Phillips was transported to the SAPD substation. Phillips was advised of his constitutional rights both upon arrival and when subsequently interviewed by a Drug Enforcement Administration ("DEA") agent. During this interview, Phillips admitted that the baggies of cocaine found in the shed belonged to him. The Thompson residential property is within 1,000 feet of the real property comprising a public elementary school.
On August 16, 2000, Phillips was charged by grand jury indictment of possessing with intent to distribute more than five but less than fifty grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B) (Count 1), and possessing with intent to distribute more than fifty grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A), within 1,000 feet of a school yard, in further violation of 21 U.S.C. § 860 (Count 2).1 Phillips moved to suppress the cocaine and items seized from the shed located on the Thompson property.2 Following an evidentially hearing, the district court initially granted Phillips' motion to suppress, finding that the defendant had standing to assert a Fourth Amendment privacy interest in the Thompson residence which extended to the backyard shed, based upon a longstanding social and familial relationship that existed between the Phillips and Thompson-Davis families. On reconsideration, however, the district court withdrew its order granting Phillips' suppression motion and entered a new order denying the defendant's motion, adopting in part the factfindings and legal conclusions proposed by the Government. Specifically, the district court concluded that Phillips lacked standing to contest the constitutionality of the warrantless search. Phillips pleaded guilty to Count 2 of the indictment, conditioned on his right to appeal from the district court's denial of his motion to suppress.3
The Presentencing Report ("PSR" or "report") calculated Phillips base offense level under USSG § 2D1.1 (2000),4 recommending a base offense level of 32 for the defendant's § 841(a)(1) and 841(b)(1)(A) offense involving more than 50 grams but less than 150 grams of cocaine base. See USSG § 2D1.1 (4). Phillips' PSR also recommended a two-level enhancement pursuant to USSG § 2D1.2 (a)(1) (Special Offense Characteristics) for the defendant's commission of the relevant offense near a protected location (here, the elementary school). Phillips' total offense level of 34, coupled with a Criminal History Category of I, yielded a Sentencing Guideline range of 151 to 188 months' imprisonment.
At sentencing, the district court granted Phillips' request for a 3-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1 (a) & (b) (2001), over the objection of the Government. The adjusted total offense level of 31 produced a Sentencing Guideline range of 108 to 135 months' imprisonment. The Government pointed out and the district court acknowledged that Phillips' § 841(a) violation involving "50 grams or more of a ... substance which contains cocaine base" carried a mandatory statutory minimum term of 10 years' imprisonment,5 see 21 U.S.C. § 841(b)(1)(A)(iii), narrowing the applicable penalty range to between 120 and 135 months' incarceration. Though the district court observed that no legal basis existed to depart from this 10-year statutory minimum sentence, the district court nonetheless sua sponte departed downward by 60 months and orally sentenced Phillips to 60 months' imprisonment, 10 years' supervised release, and a $100 mandatory special assessment. The Government objected to the downward departure and requested that the district court articulate for the record the specific basis for its sentencing determination. Citing Koon v. United States, 518 U.S. 81, 116 S.Ct 2035, 135 L.Ed.2d 392 (1996), and USSG § 5K2.0 in its written findings, the district court offered as justification for its downward departure the existence of mitigating factors not adequately taken into account by the Sentencing Guidelines.6 The Government timely filed notice of appeal; Phillips timely filed notice of cross-appeal.
On appeal, the Government challenges the district court's 60-month downward departure from the applicable 10-year statutory minimum sentence; Phillips argues in his cross-appeal that the district court erred in denying his motion to suppress the allegedly illegally obtained evidence and seeks reversal of his conviction or, alternatively, that his sentence be affirmed. We address these issues in the order the district court ruled upon them.
In reviewing the denial of a motion to suppress, "we review the district court's factual findings for clear error, and its legal conclusions, including its ultimate conclusion as to the constitutionality of the law enforcement action, de novo.'" United States v. Reyes, 349 F.3d 219, 222 (5th Cir.2003) (quoting United States v. Chavez, 281 F.3d 479, 483 (5th Cir.2002)). "Whether a defendant has standing to contest an allegedly illegal search is a question of law." United States v. Ibarra, 948 F.2d 903, 906 (5th Cir.1991) (citing United States v. Kye Soo Lee, 898 F.2d 1034, 1037 (5th Cir.1990)). Moreover, we view the evidence "in the light most favorable to the prevailing party," here, the Government. Reyes, 349 F.3d at 222 (citing United States v. Jordan, 232 F.3d 447, 448 (5th Cir.2000)).
In his cross-appeal, Phillips argues that the district court erred in denying his ...
To continue reading
Request your trial
-
U.S. v. Jenkins
...v. Dowell, 33 F.3d 53, 1994 WL 416415, at *2 (4th Cir.1994) (per curiam) (unpublished table decision); see also United States v. Phillips, 382 F.3d 489, 496 (5th Cir.2004). Society would not find reasonable either a guest's expectation of privacy in a bedroom he was not invited to use, see ......
-
United States v. De La Cruz
...decided the issue has held that offenses under § 860 are not eligible for § 3553(f) safety valve relief. See United States v. Phillips, 382 F.3d 489, 499-500 (5th Cir. 2004) ; Koons, 300 F.3d at 993 ; United States v. Kakatin, 214 F.3d 1049, 1051-52 (9th Cir. 2000) ; United States v. Anders......
-
U.S. v. Gamboa-Cardenas
...to offenses under 21 U.S.C. § 860 because that statute is not explicitly listed in 18 U.S.C. § 3553(f). See United States v. Phillips, 382 F.3d 489, 499 (5th Cir.2004) (holding that the "application of § 3553(f)'s safety valve is explicitly limited to the following offenses: 21 U.S.C. §§ 84......
-
United States v. Mosquera-Murillo
...statutes—21 U.S.C. §§ 841, 844, 846, 960 and 963 —have been interpreted to be an exhaustive list. See , e.g. , United States v. Phillips , 382 F.3d 489, 499 (5th Cir.2004) ; United States v. Koons , 300 F.3d 985, 993 (8th Cir.2002) ; United States v. Anderson , 200 F.3d 1344, 1348 (11th Cir......
-
Searches of the home
...to ( United States v. Dowell, 33 F.3d 53 (4th Cir 1994) (per curiam)), or a shed in the host’s backyard ( United States v. Phillips , 382 F.3d 489 (5th Cir. 2004). Courts also have held that a person does not have a reasonable expectation of privacy in contraband placed in a host’s home wit......
-
Searches of the home
...to ( United States v. Dowell, 33 F.3d 53 (4th Cir 1994) (per curiam)), or a shed in the host’s backyard ( United States v. Phillips , 382 F.3d 489 (5th Cir. 2004)). Courts also have held that a person does not have a reasonable expectation of privacy in contraband placed in a host’s home wi......
-
Searches of the Home
...to ( United States v. Dowell, 33 F.3d 53 (4th Cir 1994) (per curiam)), or a shed in the host’s backyard ( United States v. Phillips , 382 F.3d 489 (5th Cir. 2004)). Courts also have held that a person does not have a reasonable expectation of privacy in contraband placed in a host’s home wi......
-
Searches of the Home
...to ( United States v. Dowell, 33 F.3d 53 (4th Cir 1994) (per curiam)), or a shed in the host’s backyard ( United States v. Phillips , 382 F.3d 489 (5th Cir. 2004)). Courts also have held that a person does not have a reasonable expectation of privacy in contraband placed in a host’s home wi......