United States v. Munoz-Nava

FILED
United States Court of Appeals
Tenth Circuit

May 6, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant/
Cross-Appellee,
v. Nos. 06-2247 and 06-2254
GONZALO MUÑOZ-NAVA,

Defendant - Appellee/
Cross-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CR-05-99-MV)

David N. Williams, Assistant United States Attorney (Larry Gomez, Acting
United States Attorney, and David C. Iglesias, former United States Attorney,
with him on the briefs), Albuquerque, New Mexico, for Plaintiff-Appellant/Cross-
Appellee.

Margaret A. Katze, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Defendant-Appellee/Cross-Appellant.

Before BRISCOE, MURPHY, and O’BRIEN, Circuit Judges.

MURPHY, Circuit Judge.
 I. Introduction

Gonzalo Muñoz-Nava pleaded guilty to one count of possession with intent

to distribute 100 grams or more of heroin in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(B). The district court sentenced Muñoz-Nava to one year and one day of

imprisonment, one year of home confinement, and five years of supervised

release. The government appeals the below-Guidelines sentence imposed by the

district court, arguing the sentence was procedurally and substantively

unreasonable. Muñoz-Nava cross-appeals the district court’s denial of his motion

to suppress evidence, alleging violations of the Fourth Amendment. Taking

jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 3742(b), this court

holds that probable cause supported Muñoz-Nava’s detention and affirms the

denial of his motion to suppress. Applying the deferential abuse-of-discretion

standard of review articulated in Gall v. United States, 128 S. Ct. 586, 594

(2007), and Kimbrough v. United States, 128 S. Ct. 558, 575 (2007), this court

affirms the sentence imposed by the district court.

II. Background

A. Encounter at the Bus Station

Muñoz-Nava traveled by bus from El Paso, Texas to Albuquerque, New

Mexico. As he departed the bus, Muñoz-Nava was observed by Agent Jarrell

Perry of the Drug Enforcement Administration (DEA). Perry approached Muñoz-

Nava, identified himself, and asked to speak with him. Muñoz-Nava agreed. In

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response to questioning, Muñoz-Nava told Perry he lived in El Paso and was

visiting his parents in Albuquerque. His only luggage was a shopping bag. With

Muñoz-Nava’s permission, Perry searched the bag, revealing a pair of cowboy

boots, house slippers, a sweatshirt and a United States Naturalization Certificate.

Perry testified at the suppression hearing that he found it suspicious

Muñoz-Nava carried no toiletries. Perry had previously seized narcotics hidden

in shoes. Like Muñoz-Nava, those suspects traveled with almost no luggage other

than a change of shoes. Perry further testified he was suspicious of the cowboy

boots Muñoz-Nava was wearing because they looked “ballooned up” as if they

were too small or there was something underneath pushing up on the top of the

boots. Perry testified he had previously seized twenty pairs of boots abandoned

in Los Lunas, New Mexico, with the same alligator, thin-skinned scales as

Muñoz-Nava’s boots. The abandoned boots had false compartments in the sole.

In addition, Perry had made eight previous seizures of heroin from the shoes of

bus passengers traveling from El Paso.

Perry asked Muñoz-Nava for consent to search the cowboy boots he was

wearing. Muñoz-Nava removed his boots and handed them to Perry. Perry’s

inspection revealed the bottom of the boots had a distinct bulge and the boots

were heavier than usual. There was also glue in the inner sole of the boots and

the odor of fresh glue. The bottom of the boots were entirely covered by a fresh

black dressing. In Perry’s previous seizures, the footwear involved was heavier

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than usual and smelled of fresh glue. In addition, Muñoz-Nava’s boots were the

same black, size ten, “Star” brand boots as those seized in Los Lunas. Muñoz-

Nava told Perry the boots were purchased one month earlier in Mexico, but the

soles indicated they had received little wear.

Perry requested permission to cut open the boots. Muñoz-Nava refused, but

consented to a dog sniff of the boots. Perry requested assistance from Task Force

Officer Greg Rees, a certified narcotics canine handler assigned to the DEA.

While waiting for Rees, Muñoz-Nava’s father arrived at the bus station to pick up

his son. Upon Rees’ arrival, he proceeded to have the dog sniff the boots.

Although Rees conducted sniffs in two locations, the dog did not fully alert to the

smell of narcotics. The dog did exhibit characteristics indicating it detected an

odor of illegal narcotics, but could not locate the source of the odor. 1 Rees

testified he believed the dog’s difficulty in locating the source of the odor was

due in part to the windy conditions at both locations. Perry then asked Muñoz-

Nava why the boots were so heavy. Muñoz-Nava responded that he intentionally

bought heavy boots for exercise when walking.

1
Rees testified that the dog exhibits certain characteristics indicating it is
beginning to detect the smell of narcotics. These characteristics include turning
its head back, backtracking, and breathing more deeply. Rees explained that this
behavior change occurs prior to an actual alert, which only occurs when the dog
has detected the source of the odor. During an alert, the dog bites, paws, or
scratches the source of the odor. Rees explained that the dog’s behavior during
this sniff meant that it smelled an odor of narcotics, but could not pinpoint the
location of the narcotics.

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 Perry informed Muñoz-Nava the boots were being detained while he

obtained a warrant to search the soles of the boots for narcotics. Muñoz-Nava

was also told that although he was not under arrest, he was not free to leave.

Muñoz-Nava was handcuffed and taken to the DEA office where he was placed in

a holding cell. At the DEA office, Rees’ dog was again deployed and alerted to

the boots. After the alert, Perry obtained a search warrant for the boots. The

search revealed 770.8 grams of heroin in the soles of the boots. 2

Muñoz-Nava waived his Miranda rights. He told Perry he was recruited by

a man from Mexico to transport the boots and he knew the boots contained drugs.

He was to receive $1,000 for transporting the drugs. He also admitted this was

the second time he had transported illegal drugs.

B. Motion to Suppress

Muñoz-Nava was indicted for possession with intent to distribute more than

100 grams of heroin in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). He moved

to suppress all statements and evidence obtained as a result of the detention of his

person and his boots. He also argued that when he was transported from the bus

station to the DEA office, he was arrested without probable cause in violation of

the Fourth Amendment. After holding an evidentiary hearing, the district court

denied the motion.

2
The heroin was sixty-six percent pure. This is equivalent to 508.7 grams
of actual heroin.

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C. Sentencing

Muñoz-Nava entered into a conditional plea agreement, reserving the right

to appeal the district court’s denial of his motion to suppress. Pursuant to the

plea agreement, the parties stipulated to a base offense level of thirty. The

agreement stipulated Muñoz-Nava was entitled to a two-level reduction for

acceptance of responsibility pursuant to Section 3E1.1(a) of the United States

Sentencing Guidelines Manual (U.S.S.G.). Section 3E1.1(b) provides an

additional one-level reduction for acceptance of responsibility when a defendant

has timely notified the authorities of his intention to plead guilty. The plea

agreement referenced this additional reduction, stipulating Muñoz-Nava retained

“the right to argue for the third point for acceptance of responsibility.” Previous

versions of the Sentencing Guidelines allowed the court to grant the Section

3E1.1(b) reduction absent any action from the government. See U.S.S.G. §

3E1.1(b) (2002). Muñoz-Nava, however, was sentenced under the 2005 version

of the sentencing Guidelines, which allows for a Section 3E1.1(b) decrease “upon

motion of the government.”

At the sentencing hearing and in his written objections, Muñoz-Nava

disputed some of the presentence report’s (PSR) conclusions. 3 He objected to the

3
An earlier version of the PSR granted Muñoz-Nava a minor role
adjustment and three points for acceptance of responsibility. The amended PSR
concluded those adjustments were not warranted. Muñoz-Nava argued that the
amended PSR was incorrect.

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conclusion that he was not entitled to a minor role adjustment. See U.S.S.G.

§ 1B1.3. The PSR determined there was insufficient information to determine

whether he played an aggravating or mitigating role in the offence, based in part

on his admission he had transported drugs previously. As a result, the PSR did

not recommend a minor role adjustment. U.S.S.G. § 1B1.3. He also objected to

the PSR’s recommendation that he not receive the third point reduction for

acceptance of responsibility under Section 3E1.1(b). In addition, Muñoz-Nava

argued his family circumstances were extraordinary and warranted a downward

departure. See U.S.S.G. § 5H1.6. He cares for his eight-year-old son as a single

father and for his elderly parents who have serious medical problems. He also

requested a downward departure based on his lack of knowledge of the type or

quantity of drugs he was carrying.

Muñoz-Nava asked the district court for a variance pursuant to 18 U.S.C.

§ 3553(a). In support of his request he pointed to his family circumstances and

his extensive work history, including while released on bond. He also claimed his

history demonstrated there was an extremely high probability he would not

commit any other offense. He asked the court for a sentence of probation.

The government argued the PSR’s recommendations were correct. It

maintained Muñoz-Nava was not a minor participant because he could not

demonstrate he was less culpable than most other participants in the conspiracy.

The government also argued Muñoz-Nava was not entitled to a one-level

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reduction under Section 3E1.1(b) because he did not timely inform the

government of his intent to plead guilty. In its written response to Muñoz-Nava’s

objections to the PSR, the government erroneously quoted an out-of-date version

of Section 3E1.1(b), which allowed for the one-point reduction without a motion

by the government. During the sentencing hearing, the government informed the

district court the government had not moved for the third point. It never argued,

however, that a government motion was a necessary prerequisite for awarding the

third point. The government also argued Muñoz-Nava’s family circumstances

were not sufficiently exceptional to justify a downward departure. The

government requested that Muñoz-Nava be sentenced within the Guidelines range

in order to promote sentencing uniformity, provide adequate deterrence of

Muñoz-Nava’s criminal conduct, and to protect the public from future crimes.

The district court noted the PSR calculated Muñoz-Nava’s offense level at

twenty-six and his criminal history category at I, which resulted in a

recommended sentence of sixty-three to seventy-eight months. The district court

granted the defendant’s request for a two-level minor role downward adjustment.

It also granted the third point for acceptance of responsibility pursuant to Section

3E1.1(b) because the government had not made any trial preparations at the time

Muñoz-Nava informed it of his intent to plead guilty. It did not grant the

defendant’s requests for downward departures based on extraordinary family

circumstances or lack of knowledge of drug type and quantity. The adjustments

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granted resulted in an offense level of twenty-three with a Guidelines sentencing

range of forty-six to fifty-seven months’ imprisonment.

The district court concluded the Guidelines range was greater than

necessary to comply with the purposes set out in 18 U.S.C. § 3553(a)(2). It

determined that consideration of the sentencing factors in § 3553(a) warranted a

downward variance. The court imposed a sentence with a prison term of one year

and one day, home confinement of twelve months, and supervised released of five

years.

At the sentencing hearing, the district court provided a lengthy statement

on the record explaining its decision. In particular, the district court considered

Muñoz-Nava’s personal history and characteristics. 18 U.S.C. § 3553(a)(1). It

looked to his long and consistent work history, community support, and lack of a

felony criminal record, concluding “[t]he court has received a large number of

letters from community members, family members, and from defendant’s

employers, in support of the defendant, and attesting to his responsibility, his

work ethic. These letters indicate that this offense was highly out of character for

this defendant.” The district court also considered Muñoz-Nava’s family

circumstances. He was the primary caretaker and sole supporter of his eight-year-

old son. In addition, he was the sole supporter of his ailing and elderly parents.

The district court found Muñoz-Nava was unlikely to reoffend. It

explained, “[b]ased upon the defendant’s history and character, it is very unlikely

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that he will reoffend, and therefore, the public is not at risk. He is not a violent

person, and he is committed to supporting his family by returning to his pattern of

working hard at a legitimate job.” It particularly noted Muñoz-Nava’s exemplary

record on pretrial release, stating “[f]or one year and a half, Mr. Muñoz has been

complying with every single condition of release that we have. Unfortunately,

that is rare.”

The district court explained why it believed the sentence was appropriate,

reflected the seriousness of the offense, and provided just punishment. 18 U.S.C.

§ 3553(a)(2)(A). The court stated,

Mr. Muñoz committed a very serious offense. The drug that he
was carrying, heroin, put him in a very high offense level. However,
Mr. Muñoz is living the life that this Court, through all of its
programs . . . attempt[s] to create what Mr. Muñoz is already
performing.

We try to [get] defendants, once they are released from
custody . . . to live the type of life that Mr. Muñoz is living now.
And that is, a life in which they are used to getting up in the morning
to go to work, a life in which they are used to going home to their
families, instead of out partying with their friend, a life in which they
take their children and their loved ones to a doctor, a life in which
they are committed to their families . . . .

....

We can’t do any better than that. All we can do now is punish.

Finally, the district court emphasized the seriousness of the non-custodial

elements of Muñoz-Nava’s sentence. It explained that the year of home

confinement was designed to punish Muñoz-Nava, while permitting him to

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provide support for his family. It stressed that while subject to home confinement

Muñoz-Nava would only be released for work, taking his parents or his son to the

doctor, or meeting with his probation officer. Other special conditions were

imposed by the court for the duration of his supervised release, which the district

court explained was the maximum supervised release sentence available. Muñoz-

Nava is required to submit to urinalysis testing, may not enter any establishment

where alcohol is the primary item for sale, must refrain from the use of all

alcohol, is required to remain employed or participate in educational or vocational

counseling, and must submit to searches of his person or property.

The government appeals the sentence imposed by the district court.

Muñoz-Nava cross-appeals the district court’s denial of his motion to suppress

evidence.

III. Constitutionality of Muñoz-Nava’s Detention

Muñoz-Nava argues the district court erred in denying his pretrial motion to

suppress evidence resulting from his transportation to the DEA office and the

detention of his boots. When reviewing a district court’s denial of a motion to

suppress, this court accepts the factual findings of the district court unless they

are clearly erroneous. United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir.

1998). We consider the totality of the circumstances and view the evidence in the

light most favorable to the government. United States v. Long, 176 F.3d 1304,

1307 (10th Cir. 1999). The ultimate determination of reasonableness under the

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Fourth Amendment, however, is a question of law reviewable de novo. United

States v. Cheromiah, 455 F.3d 1216, 1220 (10th Cir. 2006). The defendant bears

the burden of proving the challenged seizure violated the Fourth Amendment.

Long, 176 F.3d at 1307.

Muñoz-Nava contends his transportation to the DEA office constituted a de

facto arrest without probable cause. He also challenges the detention of his boots

pending the issuance of the search warrant as unsupported by probable cause.

The district court determined the transportation of Muñoz-Nava and the detention

of his boots required probable cause and the government does not contest this

determination. We therefore consider whether probable cause existed for the

transportation of Muñoz-Nava to the DEA office and the detention of his boots.

“An officer has probable cause to arrest if, under the totality of the circumstances,

he learned of facts and circumstances through reasonably trustworthy information

that would lead a reasonable person to believe that an offense has been or is being

committed by the person arrested.” United States v. Brooks, 438 F.3d 1231, 1241

(10th Cir. 2006) (quotation omitted). “Probable cause to arrest does not require

facts sufficient to establish guilt, but does require more than mere suspicion.”

United States v. Vazquez-Pulido, 155 F.3d 1213, 1216 (10th Cir. 1998).

The district court concluded probable cause existed for the detention of

Muñoz-Nava and his boots. It explained the behavior exhibited by the narcotics

dog responding to an odor change, while insufficient to establish probable cause,

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was a factor to consider in the totality of the circumstances. It gave credence to

Rees’ explanation that the conditions at the bus station made it difficult for the

dog to locate the source of the odor, but the dog’s behavior demonstrated that it

smelled narcotics and it was trying to locate the source. The court considered the

suspicious characteristics of the boots, including the bulge, the smell of fresh

glue, the lack of wear, the excessive weight, the unusual black dressing, and the

similarity to the boots with false compartments seized in Los Lunas. The court

also considered Muñoz-Nava’s lack of luggage and the second pair of boots he

carried, which was a similar pattern to other individuals apprehended by Perry

with narcotics in their footwear. It also gave weight to the defendant’s unusual

explanation for the excessive weight of the boots—that he purchased them for

exercise while walking. It concluded these circumstances created more than a

mere suspicion of criminal activity and would have led a reasonable person to

believe the boots contained illegal drugs. We agree with the district court that the

totality of the circumstances supports probable cause.

Muñoz-Nava argues that, in reaching its conclusion, the district court relied

on facts unrelated to criminal activities and failed to give weight to facts

indicating he was not involved in criminal activity. “Courts may not engage in a

‘divide-and-conquer’ analysis of facts to determine whether probable cause

existed.” United States v. Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004); see

also United States v. Arvizu, 534 U.S. 266, 275 (2002). We may not look at the

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factors in isolation, but instead must consider the totality of the circumstances to

determine whether rational inferences can be drawn from the facts to support

probable cause. Valenzuela, 365 F.3d at 897. In addition, simply because an

activity has an innocent connotation does not mean that it is excluded from the

court’s totality of the circumstances analysis. Illinois v. Gates, 462 U.S. 213, 244

n.13 (1983) (“[I]nnocent behavior frequently will provide the basis for a showing

of probable cause . . . .”). Even if a factor “is not by itself proof of any illegal

conduct and is quite consistent with innocent travel,” it may still contribute to

establishing probable cause. United States v. Sokolow, 490 U.S. 1, 9 (1989).

Muñoz-Nava’s contentions fail to establish the district court committed clear error

in its factual findings or that the totality of the circumstances did not support a

finding of probable cause.

Muñoz-Nava objects to the district court’s mention of his travel from El

Paso, which Perry knew to be a drug source city. Travel from a “drug source

city” is “so broad as to be indicative of almost nothing.” United States v.

Guerrero, 472 F.3d 784, 787-88 (10th Cir. 2007). The district court placed little

emphasis on this factor, however, and probable cause existed absent its inclusion

in the analysis. Any error in the district court’s consideration of this factor was

harmless.

Muñoz-Nava claims his lack of luggage was not suspicious given that he

was traveling to visit his parents. He also argues that when his father arrived to

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pick him up, Perry’s suspicions regarding his lack of luggage should have

dissipated. These arguments, however, ask us to draw different inferences from

the facts than the district court. “Judging the credibility of the witnesses,

determining the weight to be given to evidence, and drawing reasonable

inferences and conclusions from the evidence are within the province of the

district court.” Hunnicutt, 135 F.3d at 1348. Given that Muñoz-Nava carried

limited luggage with a change of boots, similar to other drug couriers Perry had

apprehended, the inference drawn by the district court was not clearly erroneous.

Muñoz-Nava also asks this court to reject the district court’s conclusion

that the new appearance of his boots contradicted his statement that the boots

were a month old. This inference was reasonable and we defer to the district

court’s drawing of “reasonable inferences and conclusions from the evidence.”

Hunnicutt, 135 F.3d at 1348. Muñoz-Nava also claims that his explanation of the

boots’ weight could have taken place after his arrest because Perry’s testimony is

unclear as to when Muñoz-Nava made that statement. We note that in his

conditional plea agreement Muñoz-Nava admitted that he told Agent Perry he

purchased heavy boots for exercise before Agent Perry detained him. This

argument is therefore foreclosed.

Finally, Muñoz-Nava argues the district court failed to properly weigh the

drug dog’s failure to alert to the boots. He claims the failure to alert is positive

evidence they contained no narcotics. This argument has no support. The

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absence of a full alert does not negate probable cause when other circumstances

support such a finding. United States v. Ramirez, 342 F.3d 1210, 1213 (10th Cir.

2003) (“We will not require investigators to cease an otherwise reasonable

investigation solely because a dog fails to alert, particularly when we have

refused to require that a dog sniff test be conducted at all.”). In this case the dog

exhibited signs indicating it smelled narcotics, but could not locate the source.

The district court determined that, absent a full alert, the dog’s behavior was not

sufficient to support probable cause, 4 but the behavior change could be considered

in the totality of the circumstances. We agree. A behavior change alone would

not constitute probable cause. United States v. Jacobs, 986 F.2d 1231, 1235 (8th

Cir. 1993). This does not preclude the court’s consideration of the behavior

change, however, when determining whether all of the relevant evidence

establishes probable cause. United States v. Guzman, 75 F.3d 1090, 1096 (6th

Cir. 1996) (holding dog’s interest in bag, in addition to other factors, established

probable cause). The district court correctly considered the behavior change as

one factor in establishing probable cause. Probable cause supported Muñoz-

Nava’s detention.

IV. Reasonableness of Muñoz-Nava’s Sentence

4
It is well established that probable cause can be based on an alert by a
trained dog. United States v. Kennedy, 131 F.3d 1371, 1378 (10th Cir. 1997).

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 The government appeals the district court’s sentence, challenging both the

district court’s calculation of the applicable Guidelines range and the

reasonableness of the downward variance. Prior to the Supreme Court’s decisions

in Gall, 128 S. Ct. at 586 and Kimbrough, 128 S. Ct. at 558 this court, in some

cases, mathematically calculated the extent of a variance from the Guidelines and

applied different standards based on the extent of the sentence’s deviation from

the Guidelines. See, e.g., United States v. Hildreth, 485 F.3d 1120, 1127-28 (10th

Cir. 2007); United States v. Valtierra-Rojas, 468 F.3d 1235, 1239-40 (10th Cir.

2006). This approach has been explicitly invalidated by the Supreme Court’s

decision in Gall. 128 S. Ct. at 594-96 (“We also reject the use of a rigid

mathematical formula that uses the percentage of a departure as the standard for

determining the strength of the justifications required for a specific sentence.”);

see United States v. Smart, No. 06-6120, 2008 WL 570804, at *5 (10th Cir. Mar.

4, 2008).

In Gall, the Court explained how sentencing in the district court should

proceed. First, a district court must accurately calculate the applicable Guidelines

range. Gall, 128 S. Ct. at 596. After considering the correct Guidelines range,

the district court must then consider all of the § 3553(a) factors to determine the

appropriate sentence. Id. The district court “must make an individualized

assessment based on the facts presented.” Id. at 597. If the district court

determines that a sentence outside the Guidelines is most appropriate, it “must

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consider the extent of the deviation and ensure that the justification is sufficiently

compelling to support the degree of the variance.” Id.

In reviewing a sentence on appeal, this court must first determine whether

the sentence is procedurally reasonable. Gall, 128 S. Ct. at 597; United States v.

Todd, 515 F.3d 1128, 1139 (10th Cir. 2008). We review the district court’s legal

conclusions regarding the Guidelines de novo and its factual findings for clear

error. Todd, 515 F.3d at 1135. This court should next consider the sentence’s

substantive reasonableness utilizing the abuse-of-discretion standard. Id. A

district court abuses its discretion when it renders a judgment that is “arbitrary,

capricious, whimsical, or manifestly unreasonable.” United States v. Byrne, 171

F.3d 1231, 1235-36 (10th Cir. 1999) (quotations omitted). We must consider the

totality of the circumstances, including the extent of deviation from the

Guidelines, but we may not apply a presumption of unreasonableness. Gall, 128

S. Ct. at 597. This court,

may consider the extent of the deviation, but must give due deference
to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance. The fact that the appellate court
might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.

Id.; see Smart, 2008 WL 570804, at *7. With these principles in mind, we turn to

Muñoz-Nava’s sentence.

A. Procedural Reasonableness

In reviewing a sentencing court’s decision, this court

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 must first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence—including an explanation for any
deviation from the Guidelines range.

Gall, 128 S. Ct. at 597; see also United States v. Kristl, 437 F.3d 1050, 1054-55

(10th Cir. 2006) (establishing the same procedural reasonableness requirement

pre-Gall); Todd, 515 F.3d at 1135 (“When a district court does err in calculating

the applicable Guidelines range, we must remand for resentencing, whether or not

the district court’s chosen sentence is substantively reasonable, unless we are able

to ascertain that the court’s calculation error was harmless.”).

The government contends the sentence imposed by the district court is

procedurally unreasonable because the district court miscalculated the Guidelines.

Specifically, it claims the district court erred when it awarded Muñoz-Nava a

third point for acceptance of responsibility pursuant to Section 3E1.1(b) absent a

motion by the government. U.S.S.G. § 3E1.1(b). The 2005 version of the

Guidelines, which applied in Muñoz-Nava’s case, allows for a one-level decrease

only “upon motion of the government.” Id.

It is undisputed the government never argued before the district court that a

government motion was a necessary prerequisite for Section 3E1.1(b) application.

Rather, the government argued the third point should not be granted because the

defendant took six weeks to notify the government of his intent to plead guilty.

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As a result, this court applies plain error review to the district court’s failure to

properly apply Section 3E1.1(b). Fed. R. Crim. P. 52(b); United States v.

Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc). “Plain error

occurs when there is (1) error, (2) that is plain, which (3) affects substantial

rights, and which (4) seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Gonzalez-Huerta, 403 F.3d at 732 (quotation omitted).

Assuming the district court committed error that was plain, the government has

not met its burden as to the fourth prong of the plain error test. A party who fails

to raise an argument in the district court must demonstrate that permitting the

error to stand would be particularly egregious and constitute a miscarriage of

justice. United States v. Dazey, 403 F.3d 1147, 1178 (10th Cir. 2005). The

government does not discuss the plain error test in its briefing and wholly fails to

explain how this error meets these requirements. As a result, the government has

not met its burden and we cannot conclude the district court plainly erred.

The government also claims the district court erred when it found that

Muñoz-Nava was unaware of the type of drugs he was carrying. It argues this

finding cannot support a variance because Muñoz-Nava must have known he was

carrying heroin based on the weight of the boots, the $1,000 fee, and the previous

incident of smuggling drugs. The government thus asks this court to draw

inferences from these facts that are different from the inferences drawn by the

district court. To do so, however, when the factual inferences are not clearly

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erroneous would be inconsistent with the abuse-of-discretion standard dictated by

Gall. 128 S. Ct. at 597 (“The sentencing judge is in a superior position to find

facts and judge their import under § 3553(a) in the individual case.” (quotation

omitted)). The record supports the district court’s finding. 5 The government has

therefore failed to show Muñoz-Nava’s sentence was procedurally unreasonable.

B. Substantive Reasonableness

After calculating the Guidelines range, the district court determined the §

3553(a) factors justified a significant deviation from the Guidelines. The

government challenges the reasonableness of this variance.

The government contends the district court placed undue weight on Muñoz-

Nava’s family circumstances, which were neither dramatic nor unusual. The

Guidelines disfavor the consideration of family ties and responsibilities. U.S.S.G.

§ 5H1.6. Under our pre-Gall precedent, consideration of family circumstances

were likewise disfavored in the § 3553(a) analysis because of the Guidelines.

Hildreth, 485 F.3d at 1129. Gall, however, indicates that factors disfavored by

5
The PSR indicates Muñoz-Nava was recruited by drug dealers to smuggle
the heroin and that he consistently maintained he was unaware of the drug type
and quantity. There was no indication he was familiar enough with drug
smuggling to calculate types and quantities based on his fee or the weight of his
boots.

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the Sentencing Commission may be relied on by the district court in fashioning an

appropriate sentence. 6 128 S. Ct. at 602.

The district court carefully examined Muñoz-Nava’s specific family

circumstances and found them to be extraordinary. A sentencing judge has

greater familiarity with the case and the defendant before it than this court or the

Sentencing Commission and is therefore “in a superior position to find facts and

judge their import under § 3553(a) in the individual case.” Gall, 128 S. Ct. at

597-98; see also Kimbrough, 128 S. Ct. at 574. This court must recognize these

institutional advantages and give due deference to the district court’s § 3553(a)

determinations. Gall, 128 S. Ct. at 597. The district court’s conclusion that

Muñoz-Nava’s family circumstances were extraordinary was supported by the

record and was a proper consideration. As a result, we cannot say the district

court’s emphasis of that factor in fashioning its sentence was arbitrary,

capricious, whimsical, or manifestly unreasonable. See Byrne, 171 F.3d at 1236

(10th Cir. 1999).

6
The youth of a defendant is also a sentencing factor disfavored by the
Sentencing Commission. U.S.S.G. § 5H1.1. Nevertheless, in Gall the Court held
the district court’s significant emphasis on the age of the defendant was
reasonable. 128 S. Ct. at 602 (“[I]t was not unreasonable for the District Judge to
view Gall’s immaturity at the time of the offense as a mitigating factor . . . .”).
Furthermore, Kimbrough indicates that a district court’s “view that the Guidelines
range fails properly to reflect § 3553(a) considerations” may be sufficient to
justify a variance. 128 S. Ct. at 575 (quotation omitted). A factor’s disfavor by
the Guidelines, therefore, no longer excludes it from consideration under
§ 3553(a).
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 The government also argues the district court placed too much weight on

Muñoz-Nava’s behavior during pre-trial release and his lack of a criminal record,

while not considering that he admitted to police he smuggled drugs on a prior

occasion. Muñoz-Nava’s prior involvement in smuggling could have led a judge

to conclude his offense warranted a longer sentence. The record, however, also

supports the district court’s finding that Muñoz-Nava had demonstrated he was

unlikely to reoffend and was sufficiently deterred from future criminal activity.

The court looked to his employment history, his many letters of support, and his

behavior while on a year-and-a-half pretrial release, which the district court found

to be exemplary. While this court could conclude a different result was

reasonable, it is not for us “to decide de novo whether the justification for a

variance is sufficient or the sentence reasonable.” Id. at 602. The district court

did not abuse its discretion in reaching its conclusion.

The government asks us to discount the district court’s imposition of a term

of home confinement and supervised release. While not as severe as an

equivalent custodial sentence, home confinement and supervised release

substantially restrict the liberty of a defendant. Gall, 128 S. Ct. at 595. Here,

Muñoz-Nava is also subject to special conditions imposed by the court. In

considering the sentence as a whole we cannot ignore non-custodial components.

See id. at 596. The imposition of home confinement and supervised release

contributes to our conclusion that Muñoz-Nava’s sentence is reasonable. The

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lengthy term of supervised release requires Muñoz-Nava to continue his good

behavior and ensures that he will suffer consequences if he departs from his

current path. The district court chose to emphasize these non-custodial

components of the sentence in response to the specific characteristics of Muñoz-

Nava. This emphasis was not unreasonable.

This court “must give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance.” Gall, 128 S. Ct.

at 597. The district court’s decision was reasoned and reasonable and, as a result,

we conclude the district court did not abuse its discretion in sentencing Muñoz-

Nava.

V. Conclusion

This court affirms the district court’s denial of the defendant’s motion to

suppress evidence and affirms the sentence imposed by the district court.

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