United States v. Chavez

• Decision Date: 18 October 2011
• Docket Number: No. 10–2273.,10–2273.
• Citation: 660 F.3d 1215
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Christopher Roy CHAVEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

660 F.3d 1215

UNITED STATES of America, Plaintiff–Appellee,

v.Christopher Roy CHAVEZ, Defendant–Appellant.

No. 10–2273.

United States Court of Appeals, Tenth Circuit.

Oct. 18, 2011.

Thomas L. Wright, Attorney, El Paso, TX, appearing for Appellant.

Gregory J. Fouratt, Assistant United States Attorney (Kenneth J. Gonzales, United States Attorney, and Terri J. Abernathy, Assistant United States Attorney, with him on the brief), Office of the United States Attorney for the District of New Mexico, Las Cruces, NM, appearing for Appellee.

Before GORSUCH, HOLLOWAY, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

On April 11, 2008, Defendant–Appellant Christopher Roy Chavez was arrested during a traffic stop for driving while intoxicated (“DWI”). After his arrest, the police impounded the vehicle he was driving. They subsequently obtained a warrant to search the vehicle for illegal contraband. During the ensuing search, officers found approximately one-third of a pound of cocaine.

Mr. Chavez was indicted for one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(C). He filed a motion to suppress the cocaine, arguing it was obtained in violation of the Fourth Amendment. The district court denied the motion. Mr. Chavez entered a conditional guilty plea.

During his sentencing hearing, the district court concluded Mr. Chavez qualified as a “career offender” under the United States Sentencing Guidelines (the “Sentencing Guidelines” or the “Guidelines”) based on a prior conviction for attempted drug trafficking. Mr. Chavez objected, contending that attempted crimes do not qualify as predicate offenses for determining career offender status. The district court rejected this argument and sentenced Mr. Chavez to 120 months of imprisonment.

Mr. Chavez appeals the denial of his motion to suppress and the district court's conclusion that attempted crimes can be counted towards determining career offender status. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm Mr. Chavez's conviction and sentence.

I. BACKGROUND

A. Facts1. The Tip

On April 11, 2008, at approximately 2 a.m., a dispatcher at the Alamogordo, New Mexico Police Department received a 911 call from a Wal–Mart employee (the “caller” or “employee”) reporting a disturbance in the store's parking lot. The caller stated that the individuals causing the disturbance were located in or around a white Cadillac and a black pickup truck, and that the driver of the Cadillac was potentially intoxicated. The caller provided the dispatcher with license plate numbers for the Cadillac and black pickup truck. The dispatcher sent Officers David McColley and Kenneth Funk to the parking lot.

2. The Stop

Approximately three minutes after dispatch received the 911 call, Officer McColley arrived at the parking lot. He saw an individual standing outside of the Wal–Mart's doors, pointing in the direction of a white Cadillac and a black pickup truck.

Officer McColley stopped the Cadillac, exited his vehicle, and approached the Cadillac's driver. He explained to the driver that he had received a report of a disturbance in the parking lot. The driver, Christopher Roy Chavez, denied causing a disturbance and stated that his passenger had been shopping in the Wal–Mart. Officer McColley observed that Mr. Chavez's eyes were bloodshot and watery, and he detected an odor of alcohol emanating from Mr. Chavez. He asked Mr. Chavez if he had been drinking; Mr. Chavez stated he had not.

While Officer McColley was talking to Mr. Chavez, Officer Funk arrived at the parking lot. He was immediately flagged down by the man standing outside of the Wal–Mart. The man identified himself as the employee who placed the 911 call. The employee told Officer Funk that he observed the Cadillac pull into a parking space immediately adjacent to the black pickup truck. He further stated that he had watched the driver of the truck get into the passenger side of the Cadillac. Finally, he stated that he saw the driver of the Cadillac urinating in the parking lot and that a few minutes later he saw the occupants of the Cadillac throw Taco Bell wrappers and shot-sized liquor bottles into the parking lot. After speaking with the caller, Officer Funk drove his patrol car to where Officer McColley had stopped Mr. Chavez.

3. The Investigation

As Officer Funk arrived at the scene of the stop, Officer McColley asked Mr. Chavez to step out of the Cadillac and to give him his driver's license and proof of insurance. Mr. Chavez did not have a copy of his driver's license, but provided a New Mexico identification card containing his name. He told Officer McColley that the Cadillac belonged to a friend named David Aguirre. Officer McColley asked why the Cadillac's title stated that it was owned by a man named Manuel Renterria. Mr. Chavez was unable to provide a clear answer.

Officer McColley again asked Mr. Chavez if he had been drinking. This time Mr. Chavez stated he had consumed a couple of beers. Officer McColley conducted three field sobriety tests on Mr. Chavez. Based on his observations during the tests, Officer McColley “was certain that Mr. Chavez was intoxicated.” United States v. Chavez, No. 09–3086RB, Order Denying Motion to Suppress, at 6 (D.N.M. Nov. 17, 2009) (“ Chavez I ”).

After conferring with Officer Funk, Officer McColley asked Mr. Chavez to identify the passenger in the Cadillac. Mr. Chavez stated that the passenger's name was John, but was unable to provide John's exact address. Officer McColley then asked Mr. Chavez if he had any contraband in the Cadillac. Mr. Chavez responded, “[N]o, you can look around.” Id. As Officer McColley spoke to Mr. Chavez, police dispatchers informed him that Mr. Chavez's driver's license had expired. Upon learning this information, Officer McColley informed Mr. Chavez that he was “very close” and a “half a second” from arresting him. Id. at 7. Throughout this encounter, Mr. Chavez appeared agitated and nervous and his speech was slurred.

Approximately twenty minutes after the stop began, Officer McColley asked Mr. Chavez if he would consent to a search of the Cadillac. Mr. Chavez declined, stating he was not the owner of the vehicle and that he did not want to be responsible for it. Officer McColley informed Mr. Chavez that he could consent to a search of the vehicle because he was driving it. Mr. Chavez responded that the officers had already searched the vehicle with their flashlights. Officer McColley asked Mr. Chavez if he needed to call a dog to conduct a search. Mr. Chavez responded, “[I]f that's what they needed to do.” Id. at 8. At that point, Mr. Chavez appeared nervous and accused the officers of harassing him. Officer McColley again warned Mr. Chavez that he was very close to getting arrested for DWI.

Twenty-seven minutes after initiating the stop, Officer McColley radioed dispatch and requested that a drug-sniffing canine be sent to the scene. Officer McColley informed Mr. Chavez that he had initially stopped him because he was drinking and that he had called a drug dog because he suspected there might be “more” in the Cadillac. Id. at 9. Mr. Chavez stated that he was not worried because the Cadillac was not his vehicle. While he waited for the canine to arrive, Officer McColley continued questioning Mr. Chavez about the ownership of the vehicle and his whereabouts before the stop.

4. The Searches and Arrest

Approximately fifty minutes after Officer McColley stopped Mr. Chavez, a drug-sniffing canine arrived at the parking lot. The dog did not detect any odors of illegal contraband outside of the Cadillac. An officer asked Mr. Chavez if the dog could search the passenger compartment of the vehicle. Mr. Chavez stated that “it was okay to run the dog inside the vehicle.” Id. at 11. While inside the passenger compartment, the dog alerted to a seam in the backseat. The officers showed Mr. Chavez the location where the dog had alerted and asked him for permission to search it. Mr. Chavez stated that “it was fine.” Id. The officers searched the backseat and found no contraband.

The officers then asked Mr. Chavez for consent to search the Cadillac's trunk. Mr. Chavez became increasingly hostile and argumentative and refused to give his consent. Officer McColley placed Mr. Chavez under arrest for DWI.

After Mr. Chavez was arrested, officers drove the Cadillac to the police station and stored the vehicle in a controlled bay. The next morning, officers conducted an exterior search of the Cadillac using a drug-sniffing dog. The dog alerted to the trunk of the vehicle, and the officers obtained a warrant to search that area. During the ensuing search, officers found approximately one-third of a pound of cocaine and one-third of a pound of marijuana in the Cadillac's trunk.

B. Procedural History1. The Indictment and Conviction

Mr. Chavez was indicted for one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(C). He filed a motion to suppress all of the evidence seized during the search of the Cadillac, arguing that: (1) Officer McColley did not have reasonable suspicion to initiate the traffic stop, (2) Officer McColley had unreasonably extended the scope of the traffic stop, (3) Officer McColley lacked probable cause to arrest him for DWI, and (4) his consent to search the passenger compartment of the vehicle was involuntary. After conducting two hearings, the United States District Court for the District of New Mexico denied the motion and allowed the evidence to be admitted.

In May 2010, Mr. Chavez entered a conditional guilty plea to one count of possession of cocaine with the intent to distribute. As a condition of his plea, Mr. Chavez reserved the right to appeal the district court's denial of his motion to suppress.

2. Mr. Chavez's Sentence

In preparation for sentencing, the United States...