In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1426
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOSE F. T APIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 08 CR 50023—Frederick J. Kapala, Judge.
A RGUED A PRIL 12, 2010—D ECIDED JULY 6, 2010
Before C UDAHY, P OSNER, and E VANS, Circuit Judges.
C UDAHY, Circuit Judge. Jose Tapia, a member of the
Latin Counts street gang, was arrested at his home on
May 19, 2008, after his estranged wife reported him to the
police for battery and informed a detective of his involve-
ment in a gang shooting. During the arrest, officers per-
formed a “protective sweep,” which entailed checking
the basement and downstairs bathroom for individuals
who may have posed a threat. The sweep revealed a
2 No. 09-1426
handgun, which was subsequently found to have been
used in an attack on a rival gang’s house. Tapia was
convicted of being a felon in possession of a firearm.
Having determined that the defendant had used the
firearm in connection with another felony, the district
court increased his base offense level by four levels pursu-
ant to U.S.S.G. § 2K2.1(b)(6). Tapia was sentenced to
120 months’ imprisonment.
On appeal, Tapia contends that the firearm was dis-
covered pursuant to an unconstitutional search, since
the sweep incident to his arrest was unreasonable. He
also argues that the district court committed reversible
procedural errors by failing: (1) to explain why it
credited one contradictory statement over another and
(2) to identify the elements of the other offense or to
explain how the government’s evidence supported those
elements. Finally, Tapia submits that the district court
abused its discretion in relying upon unreliable state-
ments when finding that the defendant had used the
weapon in connection with another felony offense.
Since the police had ample evidence reasonably to
believe that armed gang members may have been in the
house, and because a sweep of the basement and
attendant bathroom was reasonable, the manner in
which the firearm was discovered was constitutional.
Although the process by which the district court weighed
the inculpatory and exculpatory evidence of Tapia’s
involvement in the shooting was imperfect, it was suffi-
cient. In addition, the elements of that other offense
were clear and the court’s explanation why the evidence
No. 09-1426 3
revealed the defendant’s involvement in the shooting
was similarly adequate. For these reasons and the
reasons that follow, we affirm.
I. BACKGROUND
Jose Tapia, a convicted felon and member of the Latin
Counts street gang, was arrested at his home at 129
Ridgeview Avenue in Rockford, Illinois, on May 19,
2008. His arrest followed from the decision of his
estranged wife, Verta Rodriguez, to file a battery com-
plaint against him on May 3, 2008. Tapia, she alleged,
had bitten her upper arm. While at the police station,
Rodriguez also spoke with Detective Randall Peraza,
an officer in the gang unit. Peraza had already been
investigating Tapia, a member of the Latin Counts street
gang, in relation for a number of gang-related shootings.
During their discussion, the defendant’s wife informed
Peraza that Tapia had been involved in a shooting at 809
South Greenview Avenue (the “Greenview” shooting),
which she explained had occurred in retaliation for
the shootings of two Latin Count gang members at
716 Loomis. Rodriguez also informed the detective that
Tapia had been present at a meeting just prior to the
Greenview shooting where one of his associates,
Jacob Larsen, had distributed guns and discussed the
retaliatory nature of the shooting. Finally, she told him
that Tapia had been living at 129 Ridgeview, a location
where Latin Count gang members hung out and
stored drugs, guns and other potential evidence.
On the day that Tapia was arrested, eight police officers
armed with an arrest, but not a search, warrant were
4 No. 09-1426
sent to 129 Ridgeview. Upon arrival, the officers noticed
a Lincoln Navigator, which they had not noticed during
prior surveillance of the residence, parked in the front
of the house. The police were aware that one of Tapia’s
associates, also a gang member, owned a Navigator.
After a few minutes of knocking at the front door, Deputy
Daniel Freedlund, who was situated at the front of the
house, notified the other officers that someone was coming
out of the basement. Moments later, having walked out of
the basement stairwell and through the empty living
room, Tapia opened the front door. The police then ar-
rested Tapia without incident and performed a protec-
tive sweep of the rest of the residence, including the
basement. During the sweep of the basement bathroom,
Officer Nick Cunningham spotted a gun on top of some
heating ducts approximately seven-and-a-half feet from
the ground. Police later returned to 129 Ridgeview with
a warrant to conduct a complete search of the house.
Due to the discovery of the gun, the government
charged Tapia with being a felon in possession of a fire-
arm in violation of 18 U.S.C. § 922(g)(1). Tapia moved to
suppress evidence of the gun. At the suppression
hearing, Tapia argued that the protective sweep of the
basement was unreasonable and in violation of the
Fourth Amendment. He also argued that the handgun
was not in plain view, making a search above the
ductwork outside the scope of a protective sweep.
Both Peraza and Cunningham offered testimony to
support the validity of the protective sweep. Cunningham
testified that the sweep was performed because the
No. 09-1426 5
officers knew “[t]hat he was an active member of the
Latin Counts street gang, that he was a higher ranking
member within the organization for Rockford, that he
was suspected of being involved in narcotics dealing, and
that the residence itself was being used as a place where
other gang members would gather and have meetings,
as well as store weapons and narcotics.” Cunningham
also testified that he entered into the bathroom to see if
it led to a connecting room. Upon leaving, he spotted the
handle of the gun protruding from the ceiling ductwork.
Peraza’s testimony was similar, but he also noted
that members of the Latin Counts had been involved in
shootings within the County. Both officers agreed that
the protective sweep was brief.
The district court denied Tapia’s motion to suppress
the gun as evidence. The court concluded that the
officers had reason to believe that other Latin Count
members could be present at 129 Ridgeview and pose
a danger to the arresting officers. The court supported
this conclusion based on six facts:
(1) the defendant was on parole for a 2005 unlawful
use of weapons conviction;
(2) the defendant was a leader of the Rockford Latin
Counts;
(3) the defendant was living in the basement of a resi-
dence with other Latin Counts;
(4) the Latin Counts and Latin Kings had recently been
shooting at each other, including the drive-by shootings
on Loomis Street and Greenview Avenue;
6 No. 09-1426
(5) the defendant may have been involved in the
Greenview Avenue shooting, using a .45-caliber handgun;
and
(6) there was a Lincoln Navigator in the driveway big
enough to hold five or six people.
Considering these facts in combination with the officers’
observations at 129 Ridgeview—the vacant first floor
and the emergence of Tapia from the basement—the
district court found that the officers had reason to believe
that armed Latin Count gang members could be in the
basement and, therefore, pose a threat to the officers
carrying out the arrest. The district court also credited
Detective Cunningham’s statements regarding his dis-
covery of the gun and found that the gun had been
found in plain view while conducting a reasonable protec-
tive sweep of the basement.
On February 6, 2009, a sentencing hearing was held
for Tapia’s conviction on a single count of being a felon
in possession of a firearm. At the sentencing hearing,
the judge implemented a four-level sentence increase
pursuant to U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(6). According to this provision, if Tapia used
the firearm in the commission of another felony offense,
he would be subject to an enhanced sentence. The gov-
ernment argued that the enhanced sentence was appro-
priate because Tapia had violated 720 ILL. C OMP. S TAT.
5/24-1.2(a)(1), by using the gun in the Greenview shooting.
The government supported this contention with forensic
evidence that linked the shell casings found at Greenview
with the gun found at 129 Ridgeview. It also based
No. 09-1426 7
its contention on Peraza’s testimony, which contained
information about Rodriquez’s and Clifford Gozdal’s
statements, as well as on Rodriguez’s and Gozdal’s state-
ments. Tapia challenged the finding that he had used
the gun found at 129 Ridgeview in the Greenview
shooting by calling into question the adequacy and relia-
bility of the evidence offered by the government to
prove the crime used to augment his sentence.
More specifically, the forensic analysis of the 64
casings recovered from the Greenview house revealed
that the gun found at 129 Ridgeview had been used to
fire 13 rounds into the Greenview residence. Additionally,
when the gun was found at 129 Ridgeview, it was loaded
with the same brand of bullets as those that had been
found at the Greenview residence. The gun was also
linked to another shooting at 716 Blenheim Street.
Rodriquez’s testimony was also used to link the gun
found at 129 Ridgeview to the Greenview shooting. Prior
to Tapia’s arrest, Rodriquez had told Peraza that she
had attended a meeting in April 2008 where Tapia
and other Latin Count gang members discussed the
Greenview shooting as retaliation for the 716 Loomis
shooting. She claimed that Larsen had distributed guns
at that meeting, which were then loaded before the gang
members left the house. At the sentencing hearing, how-
ever, Rodriguez claimed that she did not remember
where she was when Tapia and other Latin Count gang
members discussed the Loomis/Greenveiw shootings.
With respect to her earlier statements made to Peraza,
Rodriguez claimed that she had “discussed activity that
8 No. 09-1426
I made up and that I have heard other people say, just
repeating what I heard.” Rodriguez was then given
a perjury warning, after which she invoked her Fifth
Amendment right not to testify.
Clifford Gozdal, who was arrested in an unrelated
gang shooting, gave three statements to the authorities,
two to Peraza and one to officers in Winona, Minnesota.
These statements were also used to link the gun found at
129 Ridgeview to the Greenview shooting. Gozdal’s first
statement was to Peraza on May 9, 2008. Neither the
Greenview shooting nor Tapia was discussed during this
statement. During his second statement, conducted by
Minnesota authorities on September 27, 2008, Gozdal
stated that a man named “Midget” shot up a house in
Rockford with an XD45 handgun. Gozdal did not say
who, if anyone, was with Midget at that time. It is unclear
whether Gozdal merely neglected to mention who was
with Midget or whether he was asked specifically about
Tapia and denied his presence at the shooting. Gozdal’s
third statement to Peraza in October 2008 implicated
Tapia with Midget at the time of the Greenview shooting.
This statement also included several specific details
about the shooting including the number of shots fired
into the Greenview house and the source of the handgun.
The last piece of evidence offered at the sentencing
hearing was the testimony of Larsen, a man who al-
legedly distributed handguns at the meeting witnessed
by Rodriguez. Larsen testified that he had not seen Tapia
on the date of the alleged meeting, April 8, 2008, and
that he did not bring a box of guns to anyone on that date.
No. 09-1426 9
The district court rejected Tapia’s challenge to the four-
level increase in his sentence, finding by a preponderance
of the evidence that the defendant had used the gun
found at 129 Ridgeview in the Greenview shooting,
making the enhanced sentence reasonable. The court
found it uncontroverted that the gun casings found at the
scene of the Greenview shooting matched those of Tapia’s
handgun found at 129 Ridgeview. The court also found
that Rodriguez’s statements to Peraza were reliable,
despite her later in-court contradiction of them, because
much of the information was either already known to
Peraza or later corroborated by him. With respect to
Gozdal’s statements, the district court found that the
third statement made to Peraza was credible because of
Gozdal’s specificity in providing details and accurate
identification of the type of guns used at the shootings.
Although the court failed to mention Larsen’s testi-
mony, which contradicted parts of Rodriguez’s testimony,
the court did state its reasons for finding Rodriguez’s
statements to Peraza to be credible. Thus, the district
court found that the Government met is burden of
showing that the four-level enhanced sentence applied.
II. DISCUSSION
Tapia argues on appeal that the handgun found at
129 Ridgeview should be suppressed as evidence
because the protective sweep was unreasonable and,
therefore, a violation of his rights under the Fourth
Amendment. Tapia also argues that the district court’s
decision to enhance his sentence was procedurally
10 No. 09-1426
unsound and not supported by the record. Additionally,
Tapia argues that the government failed to prove the
enhancement crime by a preponderance of the evi-
dence. For the reasons that follow, we affirm the dis-
trict court in all respects.
A. The District Court Did Not Err in Determining
the Protective Sweep Was Reasonable.
We review de novo a district court’s conclusion that
the police acted reasonably in performing a protective
sweep. Ornelas v. United States, 517 U.S. 690, 699 (1996).
We review the district court’s findings of fact for plain
error. Id. Because the resolution of a motion to suppress
is fact-dependent, we must give “particular deference
to the district court that had the opportunity to hear the
testimony and observe the demeanor of the witnesses.”
United States v. Edwards, 898 F.2d 1273, 1276 (7th Cir. 1990).
Since the police did not then possess a search warrant,
they could not conduct a general search of Tapia’s house
at the time of his arrest. It is well established, however,
that officers conducting an in-home arrest can perform
a limited, protective sweep as long as they possess “a
reasonable belief based on specific and articulable facts
that the area to be swept harbors an individual posing
a danger to those on the arrest scene.” Maryland v. Buie,
494 U.S. 325, 337 (1990). A protective sweep is not
justified where there is a “mere inchoate and unpartic-
ularized suspicion or hunch” of danger. Id. at 332 (citing
Terry v. Ohio, 392 U.S. 1, 27 (1968)). In order to limit the
scope of a protective sweep, the search “may extend
No. 09-1426 11
only to a cursory inspection of those spaces where a
person may be found” and may “last no longer than is
necessary to dispel the reasonable suspicion of danger
and in any event no longer than it takes to complete
the arrest and depart the premises.” Buie, 494 U.S. at 335-
36. In determining the reasonableness of the protective
sweep, an individual’s Fourth Amendment interest
(expectation of privacy) must be balanced against legiti-
mate governmental interests. Id. at 331.
The questions with which we are presented are:
(1) whether the police had a reasonable belief that other
gang members were present and (2) whether the
arresting officers had the right to perform a protective
sweep of Tapia’s basement, where the gun was ultimately
found. Tapia contends that the officers had no need to
sweep the basement and that they could have adequately
protected themselves by guarding the basement door.
In the present case, the officers observed a large vehicle,
which is capable of holding up to six people, parked
outside of the house; they saw the defendant appear
from the basement; they knew that the house was some-
times used as a place for gang members to gather
and conduct illegal activities; and they knew that the
defendant and his other associates had been involved in
previous violent crimes involving guns. These are
weighty concerns indeed. Such specific and articulable
facts are more than sufficient to warrant a protective
sweep of the house, including the basement and
attendant bathroom.
Although the defendant claims that the configuration of
the basement in this case would preclude a protective
12 No. 09-1426
sweep since there was only one exit from the basement
and the police officers could have secured the premises
simply by guarding that door, such an argument is insuf-
ficient. Where, as here, police have good grounds to
believe that potentially dangerous individuals could be
in the basement, a protective sweep into that area is
reasonable regardless of whether there might be a “less
intrusive investigatory technique” for securing that
area. United States v. Winston, 444 F.3d 115, 120 (1st Cir.
2006) (citing United States v. Sokolow, 490 U.S. 1, 11 (1989)).
Officers should not be forced to suffer preventable risk
of ambush, even where a location is so isolated that the
officers could conceivably be protected without entering
the area. An “ambush in a confined setting of unknown
configuration is more to be feared than if it were in the
open, more familiar surroundings.” United States v. Rich-
ards, 937 F.2d 1287, 1291 (7th Cir. 1991). Moreover, “it
does not seem logical or reasonable that . . . the agents
would leave such an obvious hiding place, from
which harm could be dispensed, unsecured.” Winston,
444 F.3d at 120.
Tapia places great reliance on the reasoning of Justice
Stevens, who in Buie suggested on the facts of that case
that the state would have a difficult time on remand
demonstrating that a sweep of the basement was rea-
sonable to ensure the safety of the arresting officers. Buie,
494 U.S. at 338 (concurring). Justice Stevens’s views,
however, were merely part of a concurring opinion. In
any event, he emphasized that it should be “the State’s
burden to demonstrate that the officers had a reasonable
basis for believing not only that someone in the base-
No. 09-1426 13
ment might attack them or otherwise try to interfere
with the arrest, but also that it would be safer to go
down the stairs instead of simply guarding them from
above until respondent had been removed from the
house.” Id. at 338. Ultimately, in the present case, there
is good reason to believe that an officer’s securing the
top of the basement door without venturing downstairs
to ensure the absence of a threat may not have been
effective. This is particularly so for the inevitable egress,
during which time officers may have been vulnerable to
being attacked from behind, should armed attackers
emerge from the unsearched basement. In light of the
facts of the instant case, we have little difficulty in
finding that the protective sweep of Tapia’s house, in-
cluding its basement and downstairs bathroom, was
constitutional.
B. The District Court’s Decision to Enhance Defendant’s
Sentence for Using a Firearm in Connection with a
Crime of Violence Was Procedurally Sound and the
Record Supports Such a Conclusion.
Rule 32 of the Federal Rules of Criminal Procedure
requires judges to rule on all disputed issues of fact that
impact sentencing decisions, including those facts in the
presentence investigation (“PSI”) report. Fed. R. Crim. P.
32(i)(3)(B); United States v. Dean, 414 F.3d 725, 727 (7th Cir.
2005) (citing United States v. Ameline, 409 F.3d 1073, 1086
(9th Cir. 2005)). Tapia contends that the district court
failed to resolve all contested issues of material fact and
thus violated Fed. R. Crim. 32. Specifically, he argues that
14 No. 09-1426
the court erred on three grounds. First, he submits, it
ignored Rodriguez’s in-court testimony that was incon-
sistent with what she had told Detective Peraza. Second,
the court did not address the inconsistences in Gozdal’s
various statements before crediting his last one. Third,
the court failed even to reference Larsen’s exculpatory
testimony. Although we find the district court’s failure
to address Larsen’s testimony troubling, we nevertheless
conclude that the court abided by the requirements of
Fed. R. Crim. 32.
Because the ballistic evidence is uncontroverted, the
issues of fact to be resolved here are the testimony of
three witnesses: Rodriguez, Gozdal and Larsen.
With respect to Rodriquez’s testimony, the district
court found that the statements made by Rodriguez
closer to the time of the shooting were more credible
than the statements she made in court. Timing is a
valid consideration when assessing the reliability and
credibility of witnesses. United States v. Johnson, 227 F.3d
807, 815 (7th Cir. 2000). Also, courts are allowed to find
statements reliable where “they are generally consistent,
both internally and with the remainder of evidence.”
United States v. Westmoreland, 240 F.3d 618, 630 n.4 (7th
Cir. 2001). Moreover, deference is accorded to the judge
who “had the opportunity to hear the testimony and
observe the demeanor of witnesses.” United States v.
Edwards, 898 F.2d 1273, 1276 (7th Cir. 1990). Thus, the
district court did not err in its determination that Rodri-
guez’s statements to Peraza, which were made closer to
the time of the shooting and were largely corroborated
No. 09-1426 15
with additional evidence known to Peraza, were more
reliable than those statements she made in court.
The district court also found that Gozdal’s third state-
ment made to Peraza was credible. Although there is
some confusion as to whether Gozdal’s statements were
contradictory or whether he merely omitted mentioning
the defendant in his second statement, the court was
nevertheless justified in finding his third statement to
be reliable. This is because the third statement included
facts about the shooting that were specific and accurate.
Not only was Gozdal able to identify the correct make
of the gun used in the Greenview shootings, he was
also able to provide the date and location of Tapia’s
alleged confession to him, the number of shots that were
fired at the building and the source of the defendant’s
handgun. While the defendant points out that Gozdal
may have had a motive to lie, the possibility that a
witness is biased or may be inclined to lie is not in
itself controlling. United States v. Zehm, 217 F.3d 506, 514
(7th Cir. 2000). Moreover, as stated in the discussion of
Rodriguez’s testimony, the judge was able to observe
and consider the manner and demeanor of the witnesses,
and such observations should be given deference.
Edwards, 898 F.2d at 1276.
Although Larsen’s testimony contradicts Rodriguez’s
testimony about the events leading up to the Greenview
shooting, the district court gives his testimony very
little consideration and fails to give any explanation
for doing so. Nevertheless, the court specified why it
found the statements made by Rodriguez, which con-
16 No. 09-1426
flicted with Larsen’s statements, to be credible. Such
reasoning combined with the high level of deference
that is given to the judge who actually observes the
witnesses, supports the district court’s implicit finding
that Rodriguez’s earlier statement was more reliable than
Larsen’s. That the district court did not consider Larsen’s
testimony is a harmless error in light of the fact that it
addressed the credibility of Rodriguez’s testimony.
Indeed, the district court may have had good grounds
to credit Rodriguez’s original statement over Larsen’s
statement. After all, had Larsen verified Rodriguez’s
version of events, he would have been admitting to his
involvement in criminal conduct. And even if it were
true that Larsen had not distributed guns or seen Tapia
on the date of the alleged meeting, this does not fore-
close the possibility that such a meeting occurred, that
Tapia was present at it, or that Tapia was involved in
the ultimate shooting.
The defendant further claims that the record does not
support the district court’s decision to increase his sen-
tence. District courts provide statements of their
reasoning to further transparency and to promote public
trust in the judiciary. Rita v. United States, 551 U.S. 338,
156 (2007). Without such reasoning, the appellate court
lacks the tools to conduct meaningful review. Gall v.
United States, 552 U.S. 38, 50 (2007). In the present case,
the district court was required to identify the felony
that the defendant was alleged to have been involved in,
to show that the elements of that felony that were satisfied
and to support its conclusions by a preponderance of the
No. 09-1426 17
evidence from the facts in the record. United States v.
Arnaout, 431 F.3d 994, 1002 (7th Cir. 2005).
It is clear from the PSI report that Tapia was alleged to
have violated 720 ILL. C OMP. S TAT. 5/24-1.2(a)(1). To be
guilty of “aggravated discharge of a firearm” in Illinois,
a defendant must have (1) knowingly discharged a
firearm, (2) in the direction of or into a building, and
(3) knew or should have known that the building was
occupied. Id.; Ill. Pattern Jury Instructions, Crim. 18.12.
The court heard forensic and ballistic evidence that re-
vealed that at least 64 bullets were fired, 13 of which
came from the gun possessed by the defendant; that the
home located on South Greenview was struck multiple
times and a large number of bullet fragments were re-
covered inside the home; and that the shooting occurred
in the early hours of the morning when the home would
likely be occupied, and in fact was. Although such evi-
dence was not presented in a manner in which each
element of the crime was assessed individually and
separately, it does in fact satisfy the required elements
for aggravated discharge of a firearm. To justify remand,
the record must be so vague as to cause confusion. See
United States v. Robinson, 537 F.3d 798 (7th Cir. 2008). We
do not believe that the record in the present case is
that vague.
Here, there is no contention that the evidence, if reliable,
would not prove the correct crime or that the evidence
supports a variety of possible offenses. Further, both
parties knew precisely which crime was used to augment
the sentence. While the record may be lacking the
18 No. 09-1426
ideal level of specificity, it is not sufficiently vague to
warrant remand. Therefore, the district court did not err
procedurally since it resolved all the issues of fact on
the record.
C. The District Court Did Not Clearly Err in Determin-
ing by a Preponderance of the Evidence that Defen-
dant Used a Handgun in Connection With a Crime
of Violence.
Tapia’s final argument is that the statements used to
establish his involvement in the Greenview shooting are
unreliable and that the district court abused its discre-
tion in relying on them. We are not convinced.
The information that the district court relies on in
making its decision must bear “sufficient indicia of relia-
bility to support its probable accuracy.” United States v.
Morrison, 207 F.3d 328, 337 (7th Cir. 2000). We review
the district court’s determination of the reliability of
hearsay sentencing evidence for an abuse of discretion.
United States v. Barnes, 117 F.3d 328, 337 (7th Cir. 2000).
As stated earlier, although the district court’s justifica-
tions may have been cursory, they were adequate. The
district court stated that it found Rodriguez’s state-
ments made to Peraza to be more credible than her in-
court statements because her earlier statements were
corroborated. The district court also stated that it found
Gozdal’s third statement to be reliable because of the
accuracy and specificity of details in his statement. More-
over, not only do district courts have broad leeway in
No. 09-1426 19
its conclusions under an abuse-of-discretion standard, but
they are granted a high level of deference with respect
to their conclusions on reliability due to their first-hand
observations of witnesses. Edwards, 898 F.2d at 1176.
The district court must also give due weight to the
inferences drawn by local law-enforcement officers.
Ornelas, 517 U.S. at 699. The fact that the district court and
Peraza credited the statements of Rodriguez and Godzal,
which incriminated the defendant, gives further weight
to the correctness of the district court’s decision.
Indeed, under the preponderance-of-the-evidence stan-
dard, the uncontroverted ballistic evidence on its own
may well have been sufficient to support the district
court’s findings.
III. CONCLUSION
Jose Tapia objects to admitting the fruits of the protec-
tive sweep that led the police to find the gun which led
to his being charged with being a felon in possession of a
firearm. He also contends that the district court failed
to meet its procedural obligations when it did not
resolve all contested issues of material fact. Finally, he
submits that the court wrongly sentenced him based on
unreliable evidence. As explained above, we find these
contentions to be without merit. The judgment of the
district court is therefore
A FFIRMED.
7-6-10