United States v. Gambino-Zavala

FILED
United States Court of Appeals
Tenth Circuit

August 25, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 07-2231

FRANCISCO GAMBINO-ZAVALA,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 1:06-CR-02253-JEC)

Brian A. Pori, Inocente P.C., Albuquerque, New Mexico.

William J. Pflugrath, Assistant United States Attorney (Gregory J. Fouratt, United
States Attorney, with him on the briefs), Office of the United States Attorney,
Albuquerque, New Mexico.

Before BRISCOE, LUCERO, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Responding to reports of multiple gunshots in an Albuquerque apartment

complex, police conducted an early morning warrantless search of an apartment

identified by a tenant as the source of the shots. During the sweep, the officers
found drugs and several guns. One of the men at the apartment, Francisco

Gambino-Zavala, eventually pleaded guilty to unlawful possession of a firearm

and ammunition by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5) and

924(a)(2). He was sentenced to fifty-seven months in prison and two years of

supervised release.

He reserved his right to appeal the district court’s suppression ruling, and

argues the police conducted an illegal search of the apartment. He also contends

his sentence should be vacated because it is procedurally and substantively

unreasonable. We conclude that exigent circumstances justified the officers’

sweep of the apartment, and the district court therefore did not err in rejecting his

motion to suppress evidence. We also find no error with the court’s sentence.

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM Gambino-

Zavala’s conviction and sentence.

I. Background

Around 4:45 a.m. on September 2, 2006, Albuquerque police responded to

multiple 911 calls reporting gunfire in the area of the Crestview Apartment

complex. The calls came from a variety of sources, including persons living in or

near the complex. Several callers identified themselves, among them a military

police officer, a local store manager, and two nearby residents. They reported

hearing up to eight gun shots.

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 When police arrived, they spoke to a frantic and scared resident of

Crestview. The tenant, who lived directly below apartment J, told the officers

that people living in unit J had been shooting guns inside the apartment. She

reported that they had created problems in the past and were known to carry guns.

She also identified two cars in the parking lot used by these men. One of the cars

blocked the other and could not be moved.

The three investigating officers turned to apartment J and knocked on the

door. Responding to several minutes of knocking, Gambino-Zavala opened the

door. When asked whether other people were inside the apartment, he responded

“no.” Two officers then “went in just to check to make sure that there was nobody

else inside that was either injured or hurt or needed assistance, and also just to

make sure there wasn’t anybody in there that was armed with a gun, that could

possibly hurt us or anybody else.” R., Vol. III at 20–21. The sweep lasted one or

two minutes. While conducting the search, they noticed a shotgun and

ammunition in a bedroom closet.

After the sweep had been completed, Gambino-Zavala admitted he was an

illegal alien. The officers then confirmed Gambino-Zavala had two outstanding

misdemeanor warrants and arrested him. After arresting him, they conducted a

more thorough search of the apartment and recovered the shotgun and ammunition.

They also discovered a .38 revolver, an AK-47, and 253.4 grams of heroin.

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 The government charged Gambino-Zavala with unlawful possession of a

firearm and ammunition by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5)

and 924(a)(2). This charge was based only on the shotgun and ammunition the

police discovered when they initially searched the apartment for victims.

Gambino-Zavala filed a motion to suppress this evidence. After the court denied

the motion, he pleaded guilty. The court sentenced him to fifty-seven months in

prison and two years of supervised release.

II. Discussion

Gambino-Zavala argues the district court erred by denying his suppression

motion. Furthermore, he argues his sentence should be vacated because it is

procedurally and substantively unreasonable. We reject both arguments.

A. Suppression Motion

“When reviewing the denial of a motion to suppress, we view the evidence

in the light most favorable to the government, accept the district court’s findings

of fact unless clearly erroneous, and review de novo the ultimate determination of

reasonableness under the Fourth Amendment.” United States v. Apperson, 441

F.3d 1162, 1184 (10th Cir. 2006) (internal quotation marks omitted).

Gambino-Zavala contends the shotgun and ammunition discovered during

the initial search of the apartment was the result of an illegal search. Under the

Fourth Amendment, “searches and seizures inside a home without a warrant are

presumptively unreasonable.” United States v. McCullough, 457 F.3d 1150, 1163

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(10th Cir. 2006) (quoting Payton v. New York, 445 U.S. 573, 586 (1980)). Only

under a limited number of circumstances may the police conduct a search without

a warrant. See United States v. Walker, 474 F.3d 1249, 1252 (10th Cir. 2007).

One exception to the warrant requirement is when police reasonably believe an

emergency exists that makes it infeasible to obtain a warrant.

Here, the government argues that exigent circumstances justified the

warrantless search of the apartment. Exigent circumstances may justify a search

where “(1) the officers have an objectively reasonable basis to believe there is an

immediate need to protect the lives or safety of . . . others, and (2) the manner and

scope of the search is reasonable.” United States v. Najar, 451 F.3d 710, 718

(10th Cir. 2006); see also Walker, 474 F.3d at 1254 (describing the exigent

circumstances exception).

1. Reasonable Basis Existed for Conducting Search

To satisfy the first prong of the Najar test, the government must show the

officers reasonably believed a person inside the home was in immediate need of

aid or protection. Najar, 451 F.3d at 718–19.

We evaluate whether a reasonable belief existed based on the “realities of

the situation presented by the record from the viewpoint of prudent, cautious, and

trained officers.” Id. (internal quotation marks omitted). Reasonable belief does

not require absolute certainty; the Supreme Court has explained that the standard

is more lenient than the more stringent probable cause standard. See id. at 718

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(explaining the Supreme Court in Brigham City 1 did not require the government to

show the officers had probable cause to believe that a person inside the residence

required immediate aid).

Moreover, it is well settled that officers can reasonably search for victims

upon reports of gunfire. See Wayne R. LaFave, Search and Seizure: A Treatise on

the Fourth Amendment § 6.6(a) (4th ed. 2007) (citing United States v. Huffman,

461 F.3d 777 (6th Cir. 2006) (holding officers’ warrantless entry was proper to

make sure no one injured inside when police responded to 911 call of gunshots and

saw multiple bullet holes in windows and inside walls and furniture); United

States v. Holloway, 290 F.3d 1331 (11th Cir. 2002) (holding anonymous 911 call

about ongoing gunshots and arguing at certain house justified warrantless search

of residence); Tamez v. City of San Marcos, 118 F.3d 1085 (5th Cir. 1997)

(holding entry lawful where officers responded to a “shots fired” call and could

hear noise in the house, but could not determine whether anyone was inside the

house); United States v. Donlon, 909 F.2d 650 (1st Cir. 1990) (holding exigent

circumstances exception applied where police entered home where there was a

report of gunshots and children upstairs), overruled on other grounds by United

States v. Omar, 104 F.3d 519, 522–23 (1st Cir. 1997)).

Based on the sequence of events here, we conclude the officers had

reasonable belief, if not probable cause, to search the apartment for injured

1
Brigham City v. Stuart, 547 U.S. 398 (2006).

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persons. First, it is undisputed that a number of credible witnesses heard multiple

gunshots from the apartment complex in the early morning hours and reported the

incident to police in a number of 911 calls. Based on a contemporaneous

interview with a shaken tenant who lived immediately below the apartment and

heard the gunshots, the police pinpointed the shots to inside apartment J. The

tenant advised police that several men lived in the apartment and they were known

to carry guns. The tenant also identified two vehicles in the parking lot that

belonged to the men who lived in apartment J. The two cars appeared to be

temporarily parked and one could not be moved without moving the other,

suggesting that the men were still inside the apartment.

Relying on this information, the officers concluded that an injured victim

could be inside the apartment. And given the credible information indicating a

number of gunshots had been fired inside the apartment, that conclusion was

reasonable. Although Gambino-Zavala, when confronted, told the officers nobody

else was inside, a reasonable officer under these circumstances could discredit that

statement.

In short, the officers had objectively reasonable bases to believe there was

an immediate need to search the apartment to protect the safety of others.

2. The Manner and Scope of Search Was Reasonable

The government must also show that the manner and scope of the search

was reasonable. Najar, 451 F.3d at 718. To satisfy this requirement, the

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government must show the officers “confined the search to only those places

inside the home where an emergency would reasonably be associated.” Id. at 720.

The government fulfilled this burden. The district court found the initial

search was brief, lasting only one or two minutes, and limited to a sweep for

additional people inside the apartment.

Gambino-Zavala nonetheless contends the government failed to produce

sufficient evidence demonstrating that the shotgun and ammunition the police

discovered during the initial search were actually in plain view. He argues that

because the contraband was not in plain view, the officers exceeded the scope of a

reasonable search. The government argues that Gambino-Zavala waived this

argument before the district court, and it cannot be raised on appeal. Given the

record before us, we agree.

When a defendant fails to properly challenge an error in the district court,

the challenge is forfeited and may be reviewed on appeal only for plain error. See

United States v. Teague, 443 F.3d 1310, 1314 (10th Cir. 2006); Fed. R. Crim. P.

52(b). But when a defendant waives an issue by relinquishing or abandoning it in

the district court, he is precluded from seeking appellate review of the issue.

United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007); Fed. R.

Crim. P. 12(e). 2

2
“Th[e] waiver provision [of Rule 12(e) of the Federal Rules of Criminal
Procedure] applies not only to the failure to make a pretrial motion, but also to
(continued...)

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 Gambino-Zavala waived below his claim the contraband was not in plain

view. In response to Gambino-Zavala’s suppression motion, the government

argued the police found the shotgun and ammunition in plain view. Gambino-

Zavala did not contest this argument in his pleadings before the district court, but

instead asserted “the relevant facts in this case are essentially undisputed.” R.,

Vol. I, Doc. 23 at 1.

During the evidentiary hearing, Gambino-Zavala tangentially suggested the

government failed to produce sufficient evidence indicating the shotgun was in

plain view. The government responded, “[T]hat issue was not rebutted by the

defendant in my pleadings that were filed with the Court. I could reopen just with

that very brief testimony, but I thought it was undisputed that the weapon was in

plain view.” R., Vol. III at 36 (emphasis added).

Gambino-Zavala’s attorney did not contest the prosecutor’s statement, nor

did he insist that additional testimony be heard on this issue. By this action, he

affirmatively abandoned his challenge to the officers’ testimony about the

contraband and waived any claim on appeal. And even if we were to consider the

objection as forfeited, we see no error, plain or otherwise, given the record

2
(...continued)
the failure to include a particular argument in the motion.” United States v.
Barajas-Chavez, 358 F.3d 1263, 1266 (10th Cir. 2004) (internal quotation marks
omitted). To avoid waiving an argument, the defendant must make “sufficiently
definite, specific, detailed and nonconjectural factual allegations” supporting the
suppression claim. Id.

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strongly suggests the gun was in plain view. We therefore conclude the scope and

manner of the search was reasonable.

Because the government satisfied both prongs of the Najar test, we agree

with the district court’s finding of exigent circumstances. The court therefore

properly denied Gambino-Zavala’s suppression motion because the warrantless

search of the apartment was justified.

B. Sentencing

Gambino-Zavala also argues his sentence should be vacated because it is

procedurally and substantively unreasonable. We disagree.

We review a federal criminal sentence for reasonableness, giving deference

to the district court under “the familiar abuse-of-discretion standard.” Gall v.

United States, 128 S. Ct. 586, 594 (2007); see also United States v. Smart, 518

F.3d 800, 805 (10th Cir. 2008) (noting that it is now “well settled that we review a

district court's sentencing decisions solely for abuse of discretion”).

Reasonableness “has both procedural and substantive components.” United States

v. Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007). We “must first ensure that the

district court committed no significant procedural error” and then “consider the

substantive reasonableness of the sentence.” Gall, 128 S. Ct. at 597.

1. Procedural Reasonableness

“When considering the calculation of a Guidelines sentencing range, [w]e

review legal questions de novo and we review any factual findings for clear error,

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giving due deference to the district court’s application of the [G]uidelines to the

facts.” United States v. Tom, 494 F.3d 1277, 1281 (10th Cir. 2007) (internal

quotation marks omitted).

Gambino argues his sentence is procedurally unreasonable because the

district court improperly prejudged the facts of his case, in violation of the Due

Process Clause of the Fifth Amendment. He also argues insufficient evidence

exists to support certain enhancements applied by the district court. The

government, in turn, argues the sentence should be vacated because the district

court applied a presumption of reasonableness in denying the defendant’s

requested variance.

a. Bias

Gambino-Zavala argues the sentencing judge was biased based on comments

the judge made in court. To demonstrate a violation of due process because of

judicial bias, a defendant must show either actual bias or an appearance of bias.

Phelps v. Hamilton, 122 F.3d 1309, 1323 (10th Cir. 1997). The judge’s actual

state of mind, however, is not at issue. “The standard is purely objective, and

[t]he inquiry is limited to outward manifestations and reasonable inferences drawn

therefrom.” United States v. Nickl, 427 F.3d 1286, 1298 (10th Cir. 2005) (internal

quotation marks omitted).

Ordinarily, a judge’s comments “motivated by events originating within the

context of judicial proceedings . . . are insulated from charges of bias.” Id.

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“Although a judge’s remarks during the course of a trial may be critical,

disapproving, or hostile to a party, usually they will not support a partiality

charge.” Id. at 1298 (internal quotation marks omitted). Therefore, when a

defendant seeks to prove a violation of due process based on a judge’s comments,

the defendant must meet a high burden: the “judge’s actions or comments [must]

reveal such a high degree of favoritism or antagonism as to make fair judgment

impossible.” Id.

Gambino-Zavala argues the sentencing judge was biased because he twice

told the prosecutor he wanted more testimony before he could give the defendant

the enhancements he wanted to give him. These stray comments do not amount to

actual bias. And any appearance of bias is countered by the context of the

proceeding. The judge carefully considered the evidence (finding the issues a

“close[] question”), based his findings on the facts presented, and issued a

thoughtful ruling. R., Vol. V at 25. When Gambino-Zavala’s counsel expressed

concern that the district court had prejudged the facts at issue in the sentencing

hearing, the judge responded “No I haven’t. As a matter of fact, I haven’t given

this case a thought since the time until I read it now.” Id. at 4.

Because the judge’s comments did not reveal a degree of antagonism

making fair judgment impossible, the sentence should not be vacated on this basis.

b. Sufficiency of Evidence

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 Gambino-Zavala also argues his sentence was procedurally unreasonable

because the record contains insufficient evidence to support enhancements under

§§ 2K2.1(b)(1)(A), (b)(4), and (b)(6) of the United States Sentencing Guidelines

(USSG). The government has the burden of proving by a preponderance of the

evidence any findings necessary to support a sentence enhancement. United States

v. Tindall, 519 F.3d 1057, 1063 (10th Cir. 2008).

USSG § 2K2.1(b)(1)(A)

Under § 2K2.1(b)(1)(A), a defendant’s offense level should be increased by

two levels if “the offense involved between three and seven firearms.” The district

court applied this enhancement because it concluded Gambino-Zavala possessed

the shotgun, AK-47, and .38 revolver discovered in the apartment.

Gambino-Zavala admitted in his plea agreement that he possessed the

shotgun. Therefore, we only need to evaluate whether the district court erred in

concluding he also constructively possessed the two other weapons. To establish

possession, the government must show the defendant actually or constructively

possessed the guns. See, e.g., United States v. Houston, 364 F.3d 243, 248 (5th

Cir. 2004); cf. United States v. Ledford, 443 F.3d 702, 713–14 (10th Cir. 2005)

(“‘Possession’ under [a federal statute prohibiting felons from possessing firearms]

may be either actual or constructive.”).

To prove a joint occupant constructively possessed contraband, the

government merely must show the defendant had knowledge of and access to the

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contraband. Ledford, 443 F.3d at 714. “It is not necessary to show that the

defendant intended to exercise . . . dominion or control, nor is it necessary to show

that the defendant actually owned the weapons—mere possession is enough.” Id.

Gambino-Zavala argues he did not have access to or knowledge of the .38

revolver or the AK-47 because he did not live at the apartment; the apartment

belonged to his brother and a friend. He insists he was at the apartment the night

in question because he was waiting for a ride home from his brother. We conclude

the district court did not err in rejecting Gambino-Zavala’s argument.

First, sufficient evidence exists to support the district court’s conclusion that

Gambino-Zavala had access to all areas of the apartment. Gambino-Zavala co-

signed the lease for the apartment, and the lease characterized him as a “resident”

of the unit. Furthermore, Gambino-Zavala admitted to possessing the shotgun

found inside the bedroom closet of the one-bedroom apartment. A bedroom closet

is typically a private area inside a renter’s unit—a casual guest waiting for a ride

typically would not have access to this closet. The combination of these facts

supports the inference that Gambino-Zavala was a joint occupant who had access

to all areas of the residence.

Second, the record supports the conclusion that Gambino-Zavala had

knowledge of the two other weapons. Ammunition of various calibers were

located in plain view in the same bedroom closet that contained Gambino-Zavala’s

shotgun. This ammunition put him on notice about the likely presence of

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additional firearms in the premises. Furthermore, the .38 revolver and AK-47

were found in places of which a joint occupant of the apartment would likely be

aware. The AK-47 was located under the bed in the same bedroom Gambino-

Zavala kept his shotgun. The .38 revolver was kept in the living room closet.

Gambino-Zavala nonetheless suggests he could not have possessed the

weapons because his fingerprints were not recovered from either of the guns. As

explained above, however, the government did not need to prove the defendant

exercised control over the weapons. Furthermore, the mere fact that the police

could not recover his fingerprints does not mean he never handled these firearms.

As Special Agent James Kraus testified, investigators were unable to recover any

identifiable fingerprints from the weapons because so many people had touched

them.

The combination of these facts, therefore, creates a reasonable inference that

Gambino-Zavala constructively possessed all three of the firearms. The district

court therefore did not abuse its discretion in applying the § 2K2.1(b)(1)(A)

enhancement.

USSG § 2K2.1(b)(4)

Under § 2K2.1(b)(4), a defendant’s offense level should be increased by two

levels if “any firearm in [§ 2K2.1(b)(1)(A)] was stolen.” At sentencing, the

government produced a police report indicating the .38 and AK-47 were stolen.

Gambino-Zavala did not challenge this report on appeal. We therefore conclude

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the government produced sufficient evidence supporting the § 2K2.1(b)(4)

enhancement.

USSG § 2K2.1(b)(6)

Under § 2K2.1(b)(6), a defendant’s offense level should be increased by

four if “the defendant used or possessed any firearm or ammunition in connection

with another felony offense.” We conclude the government produced sufficient

evidence supporting this enhancement.

The district court reasonably held that Gambino-Zavala committed another

felony—illegal possession with the intent to distribute 253.4 grams of heroin

found in the apartment. 3 First, sufficient evidence exists showing that Gambino-

Zavala had constructive possession of these drugs. As explained above, the record

supports the conclusion that Gambino-Zavala had access to all areas of the

apartment.

3
Although Gambino-Zavala has not been convicted of this offense, his
sentence may still be enhanced on the basis of this conduct. See United States v.
Allen, 488 F.3d 1244, 1254–55 (10th Cir. 2007). The defendant’s offense level,

is calculated by accounting for “all acts and omissions committed . . .
by the defendant . . . that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the course
of attempting to avoid detection or responsibility for that offense.”
U.S. Sentencing Guidelines Manual § 1B1.3(a)(1) (2004). Known as
relevant conduct, this comprises more, often much more, than the
offense of conviction itself, and may include uncharged and even
acquitted conduct.

Id.

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 Second, sufficient evidence supports the inference that Gambino-Zavala had

knowledge of the heroin. The amount of drugs the police recovered was

substantial and the drugs were located in an area of the apartment that a joint

occupant would regularly access—a kitchen cabinet.

Third, the evidence supports the conclusion that Gambino-Zavala intended

to distribute the drugs. The heroin was contained in multiple small containers

amenable for customer sales. The large quantity further supports an inference of

distributable amounts; an officer testified a user typically possesses less than one

gram of the drug for his personal consumption.

Finally, the court reasonably concluded a sufficient nexus exists between the

shotgun and the drugs to justify the enhancement. “[W]e have generally held that

if the weapon facilitated or had the potential to facilitate the underlying felony,

then enhancement . . . is appropriate.” United States v. Brown, 314 F.3d 1216,

1222 (10th Cir. 2003). Here, the shotgun had the potential to facilitate illegal drug

transactions by helping Gambino-Zavala protect himself and his drug supply. The

district court therefore did not err in applying the § 2K2.1(b)(6) enhancement.

Because the district court did not err in relying on §§ 2K2.1(b)(1)(A),

(b)(4), and (b)(6) to enhance Gambino-Zavala’s sentence, we conclude his

sentence should not be vacated on this basis.

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 c. Presumption of Reasonableness

The parties oddly part company on whether the sentence imposed was

procedurally reasonable. The government takes the position that the district court

erroneously applied a presumption of reasonableness when denying Gambino-

Zavala’s request for a variance. It points to the district court’s Memorandum

Opinion and Order, where it explained it “considered all of Defendant’s arguments

and nothing therein indicates that the presumptively reasonable guideline range, as

calculated in the PSR, is anything other than an accurate reflection of all the

factors the Court is required to consider[].” R., Vol. I, Doc. 44 at 11 (emphasis

added). But Gambino-Zavala argued in his briefs that this error was harmless, and

even reiterated this view at oral argument.

We agree the district court errs when its applies a presumption of

reasonableness to a Guidelines sentence when considering the defendant’s request

for a variance. See United States v. Arrevalo-Olvera, 495 F.3d 1211, 1212–13

(10th Cir. 2007) (citing United States v. Begay, 470 F.3d 964 (10th Cir. 2006),

rev’d on other grounds, 128 S. Ct. 1581 (2008)). When a district court commits a

Begay error, we reverse the sentence unless the error is harmless. Id. at 1213. An

error is harmless if the preponderance of the evidence demonstrates that the

court’s error did not affect its selection of the sentence imposed. Id.

Harmless error is usually established by showing the court applied a

sentence above the low end of the Guidelines range. Compare id. at 1213–14

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(holding Begay error was harmless because the court applied a sentence above the

low end of the Guidelines range) with Begay, 470 F.3d at 976–77 (holding error

was not harmless because the district court imposed a sentence at the bottom of the

Guidelines range). Under these circumstances, the error is harmless because “the

district court clearly recognized that it had discretion to impose any sentence

within the applicable range and chose a sentence above the minimum. . . . As a

result, we have no reason to think that the district court would impose a different

sentence on remand.” Arrevalo-Olvera, 495 F.3d at 1213–14 (internal quotation

marks omitted).

Here, the district court erroneously articulated a presumption of

reasonableness in its sentencing memorandum and imposed a sentence at the

bottom of the Guidelines range. We nonetheless conclude a remand for

resentencing is unnecessary for two reasons. First, Gambino-Zavala conceded the

error was harmless.

Second, the record of the sentencing proceedings shows that the district

court understood its discretion to grant a variance below the Guidelines range. At

the hearing, Gambino-Zavala’s attorney notified the judge “that on Page 11 [of the

court’s memorandum opinion and order] the Court indicates that it considers the

guideline range presumptively reasonable. I think under Rita, that presumption

applies only to cases that are on appeal, and I think the Court retains discretion,

despite that appellate opinion.” R., Vol. VI at 3. The judge responded “I know

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that.” Id. Gambino-Zavala’s attorney then stated “Okay. I just want to make sure

the record reflects that.” No additional clarification was sought either by the

defendant or the prosecution.

Based on this exchange, we are convinced the district court recognized it

had full discretion to grant Gambino-Zavala a variance, but nonetheless chose not

to. We therefore conclude the judge’s erroneous use of the “presumption of

reasonableness” language did not affect the sentence the judge imposed.

Because we conclude the error, if any, is harmless, we find Gambino-

Zavala’s sentence to be procedurally reasonable.

2. Substantive Reasonableness

On appeal, we accord a sentence within the Guidelines range a presumption

of reasonableness. United States v. Thompson, 518 F.3d 832, 869 (10th Cir.

2008), petition for cert. filed, 76 U.S.L.W. 3655 (Jun. 5, 2008) (No. 07-11311).

Gambino-Zavala attempts to rebut this presumption by arguing his sentence is

substantively unreasonable because his “background, his lack of criminal activity,

and his educational and employment history could all justify a reduced sentence.”

Aplt. Br. 40.

The district court has a wide range of discretion in striking a balance among

the 18 U.S.C. § 3553(a) factors. See Smart, 518 F.3d at 808. The record indicates

the district court reviewed the evidence presented by Gambino-Zavala, but decided

it did not justify a variance. Due to the broad discretion courts are granted to

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consider § 3553(a) factors, we conclude the district court’s decision does not

constitute an abuse of discretion.

III. Conclusion

In sum, the district court properly denied Gambino-Zavala’s suppression

motion because the exigent circumstances exception applied to the officers’

warrantless search of the apartment. Furthermore, Gambino-Zavala’s sentence

was both procedurally and substantively reasonable. For these reasons, we

AFFIRM his conviction and sentence.

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