U.S. v. Pruneda

• Decision Date: 08 February 2008
• Docket Number: No. 07-2285.,No. 07-2369.,07-2285.,07-2369.
• Citation: 518 F.3d 597
• Parties: UNITED STATES of America, Appellee, v. Marco M. PRUNEDA, Appellant. United States of America, Appellee, v. Armando Garcia-Delacruz, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

518 F.3d 597

UNITED STATES of America, Appellee, v. Marco M. PRUNEDA, Appellant.

United States of America, Appellee, v. Armando Garcia-Delacruz, Appellant.

No. 07-2285.

No. 07-2369.

United States Court of Appeals, Eighth Circuit.

Submitted: December 10, 2007.

Filed: February 8, 2008.

Gregory C. Camman, argued, Seward, NE, for appellant Pruneda.

Michael D. Nelson, argued, Omaha, NE, for appellant Garcia-Delacruz.

Bruce Gillan, AUSA, Lincoln, NE, for appellee.

Before LOKEN, Chief Judge, WOLLMAN, and SHEPHERD, Circuit Judges.

WOLLMAN, Circuit Judge.

Marco Pruneda and Armando Garcia-Delacruz were convicted by a jury on Count I of conspiracy to distribute 500 grams or more of a substance containing a detectable amount of methamphetamine, in violation of 18 U.S.C. § 2, 21 U.S.C. §§ 841(b)(1) and 846. Pruneda and Garcia-Delacruz were also convicted on Count II of possession and use of a short-barreled shotgun in relation to drug trafficking, in violation of 18 U.S.C. § 2 and 18 U.S.C. § 924(c). Garcia-Delacruz appeals the district court's¹ denial of his motion to suppress evidence seized from his house, challenges the sufficiency of the evidence used to convict him, argues that the district court improperly admitted certain exhibits that were unfairly prejudicial, and asserts that his sentence is not reasonable. Pruneda appeals, arguing that there was insufficient evidence to convict him, that the district court improperly admitted certain exhibits that were unfairly prejudicial, and that the district court erred by not finding that he was a minor participant in the conspiracy. We affirm.

I. Background

On January 25, 2006, the Tri-City Federal Drug Task Force had valid arrest warrants for Garcia-Delacruz and Pruneda and was in the process of securing a search warrant for Garcia-Delacruz's house. Because Pruneda was often present at Garcia-Delacruz's house, law enforcement planned to execute the arrest warrants and search warrant at the same time to reduce the risk that evidence within the house would be relocated or destroyed after the suspects were arrested. Before the search warrant was obtained, however, the surveillance team monitoring Garcia-Delacruz's house reported that an individual was running from the house and that others were arriving at the scene. At that point, law enforcement decided to execute the arrest warrant for Garcia-Delacruz.

The surveillance team reported that Garcia-Delacruz was working on his car behind his house. As Garcia-Delacruz and another individual were seen entering the basement of the house, law enforcement moved in to make the arrest. Three officers approached the back door of the house and could see the two individuals in the basement. The officers announced their presence and ordered the two individuals to show their hands. After the two individuals failed to comply, the officers entered the basement and handcuffed them.

One of the officers testified that his team, which executes high-risk arrests, is trained to do a protective sweep each time they do an entry. Accordingly, the officer conducted a protective sweep of Garcia-Delacruz's basement to ensure that no other individuals were present. While conducting the protective sweep of the basement, the officer observed firearms and drug paraphernalia in plain view. After the protective sweep, the two suspects were removed from the basement. The officer who conducted the protective sweep informed another officer, who was working on the search warrant, of what he had observed in the basement. The two officers returned to the basement to observe the firearms and drug paraphernalia. The fact of the officers' observation of the contraband was then added to the information received from cooperating witnesses and included in the affidavit in support of a search warrant. Thereafter, law enforcement officers on the scene received a phone call confirming that a search warrant had been issued. The officers conducted a full search of Garcia-Delacruz's house and seized several items, including firearms and drug paraphernalia.

The district court denied Garcia-Delacruz's motion to suppress the evidence seized from his house. After a several-day trial, the jury found Garcia-Delacruz and Pruneda guilty as set forth above. Garcia-Delacruz's Presentence Investigation Report (PSR) recommended a total offense level of 36 and a criminal history category I under the guidelines, with a resulting sentencing range of between 188 and 235 months' imprisonment on Count I. Garcia-Delacruz objected to the drug quantity listed in his PSR and to his base offense level. The district court found that Garcia-Delacruz was responsible for 2.83 kilograms of drugs and then granted in part Garcia-Delacruz's objection to his base offense level, which reduced the base offense level to 34 and reduced the guidelines range to 151 to 188 months' imprisonment.

Pruneda's PSR recommended a total offense level of 32 and a criminal history category IV, resulting in a sentencing range of between 168 and 210 months' imprisonment on Count I. Pruneda raised no objection to the drug quantity of 1.16 kilograms that was listed in his PSR, but he did object to his criminal history category. The district court sustained his objection and determined that Pruneda had a criminal history category III, which resulted in a reduced range of 151 to 188 months' imprisonment.

The district court found that Garcia-Delacruz's larger drug quantity and Pruneda's significant criminal history balanced each other out. The district court sentenced both defendants to 160 months' imprisonment on Count I, 120 months' imprisonment on Count II, to run consecutively, 5 years of supervised release for each count, to run concurrently, and a $200 special assessment.

II. Garcia-Delacruz's Motion to Suppress

Garcia-Delacruz filed a motion to suppress all evidence obtained during the search of his house. After a hearing, the district court adopted the magistrate judge's² report and recommendation and denied the motion. On appeal, Garcia-Delacruz argues that the officers entered his house without a search warrant and that the protective sweep of the basement and the reentry into the basement after his arrest constituted unreasonable searches. Garcia-Delacruz further contends that because the search warrant would not have been issued without the information obtained during the allegedly unreasonable protective sweep of the basement, the evidence seized pursuant to the search warrant should be suppressed as the fruit of an illegal search. We disagree.

In reviewing the denial of a motion to suppress, we review the district court's conclusions of law de novo and its factual findings for clear error. United States v. Ramos-Caraballo, 375 F.3d 797, 800 (8th Cir.2004). "We must affirm an order denying a motion to suppress unless the decision is unsupported by substantial evidence, is based on an erroneous view of the applicable law, or in light of the entire record, we are left with a firm and definite conviction that a mistake has been made." Id. (internal quotation omitted).

A valid arrest warrant contains authority to enter the residence of the person named in the warrant if (1) the officers reasonably believe the person resides there, and (2) the officers reasonably believe the person is present when the warrant is executed. Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); United States v. Clayton, 210 F.3d 841, 843 (8th Cir.2000). When the officers entered Garcia-Delacruz's house, they had a valid arrest warrant for him, they had reports that he resided at that address, and the officers on the scene identified him at the residence before the arrest warrant was executed. Accordingly, the officers were legally authorized to enter the basement.

Upon legally entering a residence, officers have the authority to conduct a protective sweep of the residence if the officers reasonably believe, based on specific and articulable facts, that the residence harbors an individual who could be dangerous. Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); United States v. Walsh, 299 F.3d 729, 733 (8th Cir.2002). A protective sweep is limited to a cursory inspection of spaces where a person may be found and may not last longer than is necessary to dispel the reasonable suspicion of danger. Buie, 494 U.S. at 335, 110 S.Ct. 1093. Once inside Garcia-Delacruz's basement, officers were authorized to conduct a protective sweep because there were specific and articulable facts that suggested there was a reasonable suspicion of danger. The officers were in a confined space; the basement was not well lit; the area contained a partial wall dividing the space into at least two areas; there were reports that other individuals were in the residence; and there were reports that Garcia-Delacruz stored weapons in the basement. Furthermore, the protective sweep was only a cursory inspection and lasted no longer than necessary. While conducting the protective sweep, the officer did not move any objects. Moreover, the evidence observed during the protective sweep was in plain view and was immediately recognizable as firearms and drug paraphernalia. See United States v. Khabeer, 410 F.3d 477, 482 (8th Cir.2005) (officer may seize items that are in plain view if the officer is legally present at the location and the items are immediately recognizable as incriminatory). Thus, the officer's observation of the contraband was not unreasonable.

Even if the protective sweep was unreasonable, or if it was unreasonable for the officer who conducted the protective sweep to leave the basement and then return with another officer to point out the items in plain view, the inevitable discovery exception to the exclusionary rule validated the admission of the evidence, as the district court correctly observed. See Nix v. Williams, 467 U.S. 431, 440-50, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); ...