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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13940
Non-Argument Calendar
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D.C. Docket No. 4:11-cr-00037-RH-CAS-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL ANGEL MORENO-ORTEGA,
JOSE MISAEL GARFIAS-GARCIA,
Defendants-Appellants.
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Appeals from the United States District Court
for the Northern District of Florida
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(June 27, 2013)
Before TJOFLAT, MARCUS and MARTIN, Circuit Judges.
PER CURIAM:
In this multi-defendant appeal, co-defendants Miguel Angel Moreno-Ortega
and Jose Misael Garfias-Garcia appeal from their convictions following a jury trial
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on one count of conspiracy to distribute, and possession with intent to distribute,
cocaine and marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846.
Moreno-Ortega challenges his seventy-eight month sentence, arguing there
was not sufficient evidence for the district court to apply a sentencing enhancement
based on possession of a firearm.
Garfias-Garcia contests his conviction, arguing the district court erred in
denying his pretrial motion to suppress evidence seized from his home after his
arrest. He argues that his consent to search was tainted by illegal police conduct.
Therefore, the district court should have suppressed evidence found as “fruit of the
poisonous tree.”
I.
We first address the issue of the application of a firearm enhancement in
calculating the Guideline sentence for Moreno-Ortega.
Evidence at trial showed that Moreno-Ortega and his uncle, Garfias-Garcia,
worked in a larger group that moved illicit drugs between suppliers and distributors
throughout the Southeast. Police investigating the group believed they had seen
Garfias-Garcia transporting drugs to and from his house on County Road 69-A,
Altha, Florida, where they also frequently saw Moreno-Ortega. When arresting
members of the group, ultimately charged as conspirators, law enforcement
officers completed a search of the County Road 69-A house and found a Lorcin
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firearm between the box spring and mattress in a smaller bedroom. The search
also turned up a money counter; a vacuum sealer; two sealed packages with
$10,000 cash; a box with vacuum sealer bags and a loaded Browning pistol in the
home office; and $44,832 in cash in Garfias-Garcia’s master bedroom closet.
Moreno-Ortega argues the district court erred in applying the firearm
enhancement for the Lorcin handgun found in the smaller bedroom, as there was
no evidence he possessed the handgun or that he lived in Garfias-Garcia’s house.
He also asserts that he cannot be held accountable for the Browning pistol found in
the office because the government failed to show the gun was used in furtherance
of the conspiracy, or that Moreno-Ortega could have reasonably foreseen
possession of the gun by a co-conspirator.
“We review the district court’s findings of fact under [United States
Sentencing Guidelines] § 2D1.1(b)(1) for clear error, and the application of the
Sentencing Guidelines to those facts de novo.” United States v. Gallo, 195 F.3d
1278, 1280 (11th Cir. 1999).
A two-level firearm enhancement is warranted if “a dangerous weapon
(including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1) (Nov. 2011).
Before the enhancement is imposed, the government must show “by a
preponderance of the evidence that the firearm was present at the site of the
charged conduct.” United States v. Hall, 46 F.3d 62, 63 (11th Cir. 1995). Then,
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“the evidentiary burden shifts to the defendant to show that a connection between
the firearm and the offense is clearly improbable.” Id.
Alternatively, a firearm enhancement may be applied based on a co-
conspirator’s possession where the government shows by a preponderance of the
evidence: (1) that a co-conspirator possessed the firearm; (2) that the possession
was in furtherance of the conspiracy; (3) that the defendant was a member of the
conspiracy at the time of possession; and (4) that the co-conspirator’s possession of
the firearm was reasonably foreseeable to the defendant. Gallo, 195 F.3d at 1284.
The district court did not err in applying the firearm enhancement
for either the Lorcin firearm or the Browning pistol found at the Garfias-Garcia
residence. First, the government proved by a preponderance of the evidence that
the Lorcin firearm was found in Moreno-Ortega’s bedroom through the undisputed
testimony from Special Agent Diana Hunter that Moreno-Ortega lived in the
smaller bedroom. Moreno-Ortega has not demonstrated that a connection between
that handgun and the drug offense was clearly improbable. See Hall, 46 F.3d at 64.
Second, it was reasonably foreseeable to Moreno-Ortega that his co-conspirator,
Garfias-Garcia, would possess a firearm, see Gallo, 195 F.3d at 1284, and the
presence of the Browning pistol near a money counter, a vacuum sealer, and cash
was enough to show that it was possessed during the offense. Cf. Hall, 46 F.3d at
64 (holding that the proximity of a weapon to drug paraphernalia can be sufficient
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to show possession by a defendant during the offense or relevant conduct). Thus,
the district court properly applied the firearm enhancement.
II.
Garfias-Garcia separately appeals the district court’s denial of a motion to
suppress evidence that he argues was obtained in an illegal search of his residence.
A.
On May 29, 2011, prompted by concerns that Garfias-Garcia would flee due
to the arrest of alleged co-conspirators, law enforcement officials decided to arrest
Garfias-Garcia at his house without waiting for an arrest warrant or search warrant.
Believing Garfias-Garcia to be home, officers approached the house around 4:30
P.M. After a knock and announce, the officers were denied entry by a woman
seen through the front door window who then turned and fled down the hallway.
The officers then entered without consent and completed a brief, thirty-second,
protective sweep. Two Hispanic women, including Garfias-Garcia’s pregnant
wife, were secured on the ground with handcuffs and then moved to a couch once
the police verified there was no threat. No weapons or other people were found
during the sweep.
Roughly thirty minutes later, with the women still handcuffed inside the
house, Garfias-Garcia, his two young children, and his associate Eliazar Moreno
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arrived home. Garfias-Garcia was arrested and handcuffed outside the house and
then taken inside.
Thirty to forty-five minutes later, Agent Hunter arrived to provide Spanish
interpretation. Agent Hunter’s interview with Garfias-Garcia lasted approximately
eleven minutes, and she read him his Miranda rights after four minutes. Garfias-
Garcia invoked his rights to counsel and silence. Agent Hunter then asked him for
permission to search the house as a part of a drug investigation and he gave oral
consent to do so, limiting his consent to rooms he typically occupied. Agent
Hunter also asked Garfias-Garcia to sign a consent to search form. The form,
translated from Spanish to English, contained three paragraphs, stating that the
signatories had been asked for permission to search, that they were not threatened
or forced, and that their consent to the search was freely given. After a forty-five
minute delay getting a paper copy of the translated form, Garfias-Garcia signed it
and the search began around 6:30 P.M.
Before trial, Garfias-Garcia moved to suppress the evidence obtained in that
search. The district court denied the motion to suppress, finding that the consent
was voluntary and not limited. It did not address whether the police acted
unlawfully or the consent was tainted.
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B.
Garfias-Garcia argues that the district court erred in its suppression analysis
because even if the consent was voluntarily given, the “fruit of the poisonous tree”
doctrine required suppression under the Fourth Amendment, as the evidence was
not sufficiently attenuated from the unlawful police conduct to dissipate the taint. 1
We normally review a district court’s denial of a motion to suppress as a
mixed question of law and fact, reviewing factual findings for clear error and
interpretation and application of law de novo. United States v. Delancy, 502 F.3d
1297, 1304 (11th Cir. 2007). When a defendant fails to raise a specific objection
before the district court, however, we review the matter only for plain error.
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005); see also United
States v. Young, 350 F.3d 1302, 1305 (11th Cir. 2003) (holding that, because the
defendant did not raise a particular ground for suppression of the evidence before
the district court, we would review the claim only for plain error).
Garfias-Garcia did not clearly articulate a tainted consent or attenuation
argument below. When the district court asked Garfias-Garcia questions about the
alleged illegality of the police actions, he responded by discussing the
1
In his appellate brief, Garfias-Garcia makes only a passing reference to his chief argument
below: that the consent was not voluntary. We decline to consider issues not briefed on appeal
and they are deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). For
this reason, we will focus on Garfias-Garcia’s tainted consent argument.
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voluntariness of the consent. Neither did he cite any caselaw on attenuation. 2
Thus, we review Garfias-Garcia’s arguments on appeal for plain error only. See
Young, 350 F.3d at 1305. To prevail on a claim under plain error, a defendant
must show “(1) error, (2) that is plain, and (3) that affects substantial rights.”
Rodriguez, 398 F.3d at 1298 (quotation marks omitted). Even then, an appellate
court only has discretion to correct the error “if (4) the error substantially affects
the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation
marks omitted).
Where a “consent to search” follows allegedly unlawful police conduct, the
court must determine (1) whether the consent was voluntary; and (2) whether the
consent, even if voluntary, was the product of the unlawful police conduct.
Delancy, 502 F.3d at 1308. The government bears the burden on both issues. Id.
Three non-exhaustive factors guide the “attenuation analysis” under Delancy’s
second prong: (1) the temporal proximity between the unlawful conduct and the
consent; (2) the presence of intervening circumstances; and (3) the purpose and
flagrancy of the unlawful conduct. Id. at 1309–10.
We affirm because we find no error, plain or otherwise, under Delancy.
Even if we assume, as Garfias-Garcia argues, that police presence inside the house
2
Garfias-Garcia also seeks relief because he argues that the district court erred in not performing
a mandatory inquiry into “whether the consent, even if voluntary, was purged of the taint.” But,
as explained, Garfias-Garcia did not clearly make a tainted consent or attenuation argument
below. Therefore we reject the argument that the district court erred by not making that inquiry.
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after the initial protective sweep and their reentry after the arrest outside may have
tainted the consent given, ultimately “the causal connection had become so
attenuated as to dissipate the taint.” See id. at 1309 (quotation marks omitted).
Specifically, the second and third prongs of Delancy counsel in favor of affirming. 3
Garfias-Garcia’s invocation of Miranda, verbal consent to a search, and then
written consent were significant intervening factors dissipating the taint. His
refusal to cooperate with questioning and the geographical limits he imposed on
his oral consent suggests a lack of unlawful pressure. See Delancy, 502 F.3d at
1311–12. Garfias-Garcia had forty-five minutes to revoke consent, also suggesting
that his choice was deliberate and not the product of illegal police conduct.
Neither was there any evidence that the purpose of the alleged improper police
conduct was to gain a corrupt advantage.
For these reasons, the voluntary consent was not tainted by unlawful actions,
and the district court did not err in denying Garfias-Garcia’s motion to suppress the
evidence found in his home after his arrest.
AFFIRMED.
3
Typically, “[i]f only a short period of time has passed, a court is more likely to consider the
consent as a ‘poisonous fruit’ of the illegal act—that is, that the consent is tainted.” Delancy,
502 F.3d at 1310. Here, however, the length of time that passed arguably made the alleged
improper actions more problematic, rather than dissipating the taint. Garfias-Garcia’s argument
is, essentially, that his consent was tainted by the fact that the police continued to detain his
“scared, pregnant” wife and kept her handcuffed for several hours. Because the government’s
case is strong with respect to the second and third prongs of the Delancy analysis, however, this
circumstance is not fatal to the government’s argument.
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