U.S. v. Stevens

• Decision Date: 16 May 2007
• Docket Number: No. 05-41369.,05-41369.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raul Javier STEVENS; Alejandro Stevens, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

487 F.3d 232

UNITED STATES of America, Plaintiff-Appellee, v. Raul Javier STEVENS; Alejandro Stevens, Defendants-Appellants.

No. 05-41369.

United States Court of Appeals, Fifth Circuit.

May 16, 2007.

Julia Bowen Stern, James Lee Turner, Asst. U.S. Attys., Houston, TX, Jody Lee Young (argued), Brownsville, TX, for U.S.

Michael McGhee Scott (argued), Brownsville, TX, for Stevens.

Appeals from the United States District Court for the Southern District of Texas.

Before KING, GARZA and PRADO, Circuit Judges.

KING, Circuit Judge:

Defendants-appellants Alejandro Stevens and Raul Stevens challenge their convictions and sentences resulting from the discovery by law enforcement agents of approximately 300 pounds of marijuana in the backyard shed of the house in which they resided. Because Alejandro Stevens pleaded guilty and failed to preserve the right to appeal the district court's pretrial denial of his motion to suppress, we AFFIRM his conviction and sentence. We also AFFIRM Raul Stevens's conviction and sentence, concluding that the district court correctly denied Raul Stevens's motion to suppress, that Raul Stevens may not raise an ineffective assistance of counsel claim on direct appeal, and that the district court did not commit Booker error in imposing his sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

In the course of investigating narcotics smuggling activity in Brownsville, Texas, Special Agent Robert Mossman of the U.S. Immigration and Customs Enforcement ("ICE") became aware of a plan to transport approximately 300 pounds of marijuana out of Brownsville. A confidential informant working with ICE agents had two meetings with a woman named Johanna Espinosa in which Espinosa and the informant made arrangements for the informant to transport the marijuana. ICE agents observed the meetings and listened to the conversations at the meetings through a wire worn by the informant. The first meeting, during which Espinosa phoned "George" and then "Raul" for information, revealed that the informant would be driving the marijuana to Georgia and that he would be paid $10,000 for the job.

A second meeting occurred the next day when the informant met Espinosa and another man, George, to finalize the arrangements for transporting the marijuana. The informant brought empty produce boxes in which to pack the marijuana for transport. After meeting with Espinosa, George and the informant left the second meeting together in the informant's car, with George driving. As George drove the car, he engaged in erratic driving, or "heat runs," where he made quick U-turns and pulled into driveways and parking lots to see if he was being followed. After about forty minutes of heat runs, George and the informant met two men in a Ford Expedition in a supermarket parking lot. The identity of the driver of the Expedition was unknown; he was later identified as defendant-appellant Alejandro Stevens. Alejandro Stevens assisted George and the informant in transferring the produce boxes from the informant's car to the Expedition. The boxes were to be taken to the marijuana stash house to be loaded with the marijuana.

After loading the boxes into the Expedition, George and the informant returned to the original meeting location with Espinosa, again engaging in heat runs along the way. Espinosa confirmed that the boxes were being taken to the stash house for loading, and she told the informant that she would call him when the boxes were loaded. Meanwhile, ICE agents followed the Expedition, which eventually arrived at 2994 Dana (the "Dana house") in Brownsville, Texas, after engaging in heat runs. Agents believed that the marijuana was located at the Dana house and would be loaded into the empty produce boxes. A surveillance team directed by Agent Mossman watched the Dana house from several locations, including the side of the house, an alley behind the house, and a school across the street. That night, the surveillance team observed people going back and forth from the house to a shed in the backyard. Agent Mossman terminated the surveillance at 9:30 p.m. that night.

Agent Mossman's team of agents planned to attempt to gain consent to search the home the following morning at 9:00 a.m. Surveillance agents arrived at the house around 8:00 a.m. and notified the "consent team" before 9:00 a.m. that three people had left the house in the Expedition. The surveillance team did not know at the time who was in the car, but they later learned that the driver was defendant-appellant Raul Stevens and that the two passengers were Raul Stevens's daughter and defendant-appellant Alejandro Stevens, his adult son. Raul Stevens dropped off his daughter at a local college. While the surveillance team followed the Expedition, the consent team, including Agent Mossman, arrived at the house to attempt to gain consent. Agents believed that there was someone in the house because there was a car in the driveway. However, no one answered the door.

Agent Mossman, still at the house, remained in radio and phone contact with the surveillance team following the Expedition. He ran the Expedition's registration and learned that it was registered to Raul Stevens at the Dana house address. The surveillance team told Agent Mossman that the Expedition was on 12th Street in Brownsville driving toward the bridge to Mexico. Concerned that the car was driving into Mexico, Agent Mossman instructed the surveillance agents to make a traffic stop and to ask Raul Stevens if he would consent to a search of the Dana house and return to the Dana house to undertake the search. The Expedition was being followed by Agent Gentry driving one unmarked car and Deputy Silva driving another unmarked car. Deputy Martinez accompanied Deputy Silva. As the two officials followed the Expedition in their cars, they attempted to avoid detection by alternating the lead car position and by alternatively turning off the route taken by the Expedition. Agent Gentry informed Deputy Silva that he saw the Expedition make an illegal lane change while Deputy Silva was driving on another street. However, it was Deputy Silva and Deputy Martinez who executed the traffic stop of the Expedition. They did so by turning on the car's siren, pulling along side of the Expedition, showing Deputy Martinez's sheriff's badge to the driver, and asking him to pull over.

Deputy Silva approached the car and asked the driver, Raul Stevens, for his driver's license and proof of insurance. Agent Gentry pulled up behind the Expedition as Deputy Silva asked for these items. Without informing him of the traffic violation, Deputy Silva then informed Raul Stevens that a customs agent, Agent Gentry, wanted to speak to him. Agent Gentry approached Raul Stevens and informed him that they were conducting a narcotics investigation, that there were agents at the Dana house, and that they thought that there were "things . . . going on at his house." According to Agent Gentry, he asked for consent to search the house, and Raul Stevens consented to the search. Agent Gentry then asked Raul Stevens if he would accompany him back to the house, and Raul Stevens agreed to do so. Raul Stevens accompanied Agent Gentry to Gentry's vehicle and got in the front seat. On their way to the house, Agent Gentry explained to Raul Stevens that agents believed that there were narcotics in the house. He asked him if his son, Alejandro Stevens, was involved in narcotics, and Raul Stevens replied that he didn't know.

When Raul Stevens arrived at the house with Agent Gentry, Agent Mossman was at the house with an additional six officers. Agent Mossman told Raul Stevens about what the agents had seen during the surveillance of the house and asked for his consent to search the house. At the suppression hearing, Raul Stevens denied giving consent, but Agent Mossman and Agent Gentry testified that Raul Stevens verbally consented to the search. They also testified that when they asked him to sign a consent form, he again said that they could search the house but that he would not sign anything. The door to the house was locked, but Raul Stevens produced the keys to the house and unlocked and opened the door.

Agent Mossman and Raul Stevens then entered the house. Raul Stevens cooperated in the search, directing Agent Mossman to his office, where agents found an AK-47, a small machine pistol, a shotgun, three handguns, thousands of rounds of ammunition, bullet-proof vests, and laser sites for assisting a shooter in focusing on a target. Agents also found a pound of marijuana in the office with the guns and six grams of cocaine in Raul Stevens's bedroom.

While still inside the house, Agent Mossman asked Raul Stevens if he could also search the shed in the backyard behind the house. The door from the house to the backyard was locked, but Raul Stevens produced the key and unlocked the door so they could enter the yard. Agent Mossman observed two locked doors on the shed. Raul Stevens informed Agent Mossman that both locked doors led to the same area within the shed. Raul Stevens then produced the key to the locked shed door and unlocked it. After searching the room in the shed and finding no drugs, canine inspectors determined that a piece of plywood was sealing another door inside the shed and confirmed that the second external door provided entry into this room. The agents removed the plywood, opened the door, and found approximately 306 pounds of marijuana.

Alejandro Stevens remained at the scene of the traffic stop with Deputy Silva and Deputy Martinez when Raul Stevens left with Agent Gentry. According to Deputy Silva, Alejandro Stevens asked if he could leave the traffic stop, and Deputy Silva said "no." While Alejandro Stevens waited, he spoke on his cell phone. He then asked Deputy Silva if he could wait inside the Expedition. Deputy Silva said "yes," and Deputy Silva and Deputy Martinez waited in the Expedition with him. After agents at the house...