NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-2742
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UNITED STATES OF AMERICA
v.
EDWIN FERNANDEZ,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-13-cr-00402-002)
District Judge: Honorable Stewart Dalzell
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 17, 2016
Before: AMBRO, NYGAARD and VAN ANTWERPEN, Circuit Judges.
(Filed: June 20, 2016)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7,
does not constitute binding precedent.
VAN ANTWERPEN, Circuit Judge.
Edwin Fernandez appeals his conviction for one count of conspiracy to import five
kilograms or more of cocaine in violation of 21 U.S.C. § 963, one count of conspiracy to
distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846, one count of
importation of five kilograms or more of cocaine and aiding and abetting in violation of
21 U.S.C. §§ 952(a), 960(a) & (b)(1)(B)(ii) and 18 U.S.C. § 2, two counts of attempted
possession with the intent to distribute five kilograms or more of cocaine and aiding and
abetting in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, and one count of attempted
importation of five kilograms or more of cocaine and aiding and abetting in violation of
21 U.S.C. § 963 and 18 U.S.C. § 2. Fernandez also appeals his sentence of 300 months’
imprisonment and 120 months’ supervised release. Fernandez raises two primary
arguments: 1) the District Court erred in denying his Motion to Suppress the two cell
phones, and the data they contained, retrieved after an unrelated arrest because the stop
and arrest were merely pretextual and not supported by reasonable suspicion or probable
cause, and 2) the United States Sentencing Guidelines (“Guidelines”) sentence imposed
by the District Court is substantively unreasonable. For the following reasons, we will
affirm the judgment of conviction and sentence imposed by the District Court.
I.
Beginning in August 2011, Edwin Fernandez and his coconspirators engaged in a
scheme to import cocaine from Santo Domingo, Dominican Republic to Philadelphia,
Pennsylvania. (Presentence Report “PSR” ¶¶ 11–12). The scheme used baggage handlers
2
employed by US Airways at Philadelphia International Airport to divert luggage
containing the imported cocaine from international baggage claim to domestic baggage
claim. (PSR ¶¶ 12–13). Fernandez and his coconspirators successfully imported cocaine
through this scheme on five separate occasions in November and December 2011. 1 (PSR
¶ 13). On January 7, 2012, Rolston Abbott, a US Airways baggage handler involved in
the conspiracy, was unable to divert cocaine imported through the scheme because of the
presence of United States Customs and Border Protection officials. Customs officials
discovered three bags containing approximately fifty-nine kilograms of cocaine. (PSR ¶
14). Federal agents from Homeland Security Investigations discovered frequent cell
phone communication between Abbott and Jose Rodriguez, Fernandez’s coconspirator,
as well as between Abbott and an unknown number in the Dominican Republic. (A-45–
A-48). An analysis of the two cell phones utilized by Rodriguez revealed frequent contact
on the day before and the day of the seizure with a number issued to “Fat Boy.” (A-48).
A subpoena response from Sprint on February 9th indicated that “Fat Boy” was
Fernandez and provided his address. (A-115–A-116).
Concurrently, in January 2012, the Philadelphia Police Department Narcotics
Field Unit (“PPD-NFU”) received an anonymous tip regarding marijuana sales out of a
residence at 5049 Lancaster Avenue. (A-48). On two separate occasions, PPD-NFU
officers conducting surveillance at that address observed an individual named Frederick
1
Subsequent to the January 7th seizure by Custom and Border Patrol officials,
Fernandez and his coconspirators attempted twice, unsuccessfully, to import cocaine
again through the scheme. (PSR ¶¶ 15–16).
3
Foster leave the residence, drive to another location, and meet with individuals who
entered his vehicle briefly. (A-48–A-49). On February 1, 2012, the second day of
surveillance, officers observed Foster leave the residence with a small black bag, drive to
meet a male, later identified as Jeffrey Burns, who entered Foster’s car briefly before re-
entering his own. (A-80–A-81). When officers approached Burns’ vehicle they saw what
they believed to be marijuana in plain view and placed Burns under arrest. (A-81).
On February 7, 2012, PPD-NFU officers on surveillance at 5049 Lancaster
Avenue observed Foster again leave the residence with a black bag and drive to a lunch
truck which Fernandez operated. (A-82). Officer Jose Candelaria followed Foster and
observed the following without obstruction. (A-83). Foster exited his vehicle and
engaged in a brief conversation with Fernandez, at the conclusion of which Fernandez
handed Foster money in exchange for the black bag Foster had brought from his
residence. (A-83–A-84). Believing that he had just seen a narcotics transaction, Officer
Candelaria and a fellow PPD-NFU officer stopped and arrested Fernandez.2 (A-84–A-
85). Incident to the arrest, the officers recovered the black bag, which contained small,
clear baggies of marijuana totaling 125.2 grams, approximately $2,700 in cash, and two
cell phones. (A-84–A-86). Approximately seven months later, federal agents discovered
Fernandez’s role in the drug importation scheme and secured search warrants for the cell
phones seized at the time of his arrest by the PPD. (A-52–A-53).
2
Fernandez pleaded guilty to intentional possession of a controlled substance in
Philadelphia County Municipal Court and received one-year of probation. (PSR ¶ 38).
4
A grand jury returned a superseding six-count indictment charging Fernandez with
the counts described supra. (PSR ¶ 4). Fernandez filed a Motion to Suppress the cell
phones and the data from the phones recovered subsequent to his February 7th arrest by
PPD-NFU. (A-41–A-43). The United States District Court for the Eastern District of
Pennsylvania (Dalzell, J.) denied the motion after a hearing, finding that the arrest was
supported by probable cause, that the cell phones were properly seized incident to the
lawful arrest, and that the phones were searched pursuant to a lawfully obtained warrant.
(A-2, A-125–A-127). Fernandez pleaded guilty to all six counts. (Supp. App. 58–Supp.
App. 81). The District Court (Dalzell, J.), sentenced Fernandez to 300 months’
imprisonment and 120 months’ supervised release. (A-3–A-5). This timely appeal
followed. (A-1).
II. 3
A.
We review the denial of a motion to suppress under a mixed standard of review.
United States v. Lewis, 672 F.3d 232, 236–37 (3d Cir. 2012). We exercise plenary review
over legal determinations and clear error review for factual findings. Id at 237. We
exercise plenary review over an officer’s reasonable suspicion or probable cause
determination. Ornelas v. United States, 517 U.S. 690, 699 (1996).
A warrantless arrest “is reasonable under the Fourth Amendment where there is
3
The District Court had jurisdiction over Fernandez’s case pursuant to 18 U.S.C
§ 3231. We have jurisdiction to review final orders of a district court pursuant to 28
U.S.C. § 1291 and jurisdiction to review the sentence the District Court imposed pursuant
to 18 U.S.C § 3742.
5
probable cause to believe that a criminal offense has been or is being committed.”
Devenpeck v. Alford, 543 U.S. 146, 152 (2004). “Probable cause exists whenever
reasonably trustworthy information or circumstances within a police officer’s knowledge
are sufficient to warrant a person of reasonable caution to conclude that an offense has
been committed by the person being arrested.” United States v. Myers, 308 F.3d 251, 255
(3d Cir. 2002). On appeal, our task is “to determine whether the facts available to the
officers at the moment of the arrest” would allow a reasonable person to find that
probable cause, as defined above, existed. Beck v. Ohio, 379 U.S. 89, 96 (1964).
While probable cause is a determination only courts can ultimately make, we give
deference to the “on-the-scene conclusion[s]” of officers. Myers, 308 F.3d at 255. In
reviewing these conclusions, we must consider the demands officers face, in which they
may “draw inferences and make deductions . . . that might well elude an untrained
person.” Id. (alteration in original) (quoting United States v. Cortez, 449 U.S. 411, 418
(1981)) (internal quotation marks omitted). The subjective motivations of an officer do
not render an arrest unconstitutional if it is supported by probable cause. Whren v. United
States, 517 U.S. 806, 813 (1996).
Fernandez asserts that the District Court erred by denying his Motion to Suppress
because the arrest was pretextual and not supported by probable cause. (Appellant’s Br.
15–20). For a pretextual arrest to conform to the protections afforded by the Fourth
Amendment, Fernandez maintains that the arresting officers must have observed an
actual violation of the law, which he contends they did not. (Id. at 13). The Government
points to the officers’ investigation, including surveillance of Foster, and Officer
6
Candelaria’s observation, based on his fifteen years of narcotics experience, as
supporting probable cause to arrest.4 (Government’s Br. 19–20). Even if it was pretextual,
the Government asserts that because the arrest was supported by probable cause, there is
no Fourth Amendment violation. (Id. at 23–24).
The District Court denied Fernandez’s Motion to Suppress, finding probable cause
to arrest. (A-125–A-126). The District Court also found that the cell phones were seized
pursuant to a search incident to lawful arrest, provided for by the Supreme Court in
Arizona v. Gant, 556 U.S. 332 (2009), and not searched until this warrant was secured
(A-126).
We can easily conclude that the District Court properly denied Fernandez’s
Motion to Suppress. The facts elicited through Officer Candelaria’s testimony at the
hearing establish that he had probable cause to arrest under this Court’s precedent. (A-
78–A-85). At the time of the arrest, Officer Candelaria articulated that he believed, based
on his fifteen years of experience in narcotics, that he had just witnessed a narcotics
transaction. (A-84), Officer Candelaria based this this belief not only on his observation,
but also on the information he learned about Foster through Officer Elliot, who was
leading the investigation. (A-84). Officer Candelaria’s observations matched the
information he received from Officer Elliott regarding Foster’s narcotic transaction
practices. As this Court has acknowledged, Officer Candelaria correctly relied on the
4
At the time of the Motion to Suppress hearing Officer Candelaria was a nineteen-
year veteran of the PPD. (A-78). Officer Candelaria had been in the PPD-NFU since
2005, prior to which he served in the PPD’s Narcotics Strike Force for five years. (Id.).
7
information obtained through this investigation because the “collective knowledge”
doctrine applies. United States v. Whitfield, 634 F.3d 741, 745–46 (3d Cir. 2010). Under
this doctrine, “the knowledge of one law enforcement officer is imputed to the officer
who actually conducted the . . . arrest.” Id. at 745.
Fernandez has failed to point to any evidence to support his assertion that the
arrest was pretext for the PPD to secure his cell phones for the federal investigation.
(Appellant’s Br. 14). Testimony from two PPD officers and a federal agent, which the
District Court found credible, indicated that there was no interaction between the two
entities prior to September 2012, nearly seven months after Fernandez’s arrest. (A-102–
A-105). Federal agent Brian Ressler testified that Fernandez had not been identified as a
coconspirator in the cocaine importation scheme at the time of his arrest by the PPD. (A-
108). The subpoena response from Sprint which identified Fernandez as a contact from
Rodriguez’s phone came two days after the PPD arrest. (A-115–A-116). As the District
Court noted, while the chronology of events might invite conjecture, the record indicates
that the federal agents and the PPD acted properly as “two sovereigns.” (A-125.). Even
assuming, arguendo, that Officer Candelaria arrested Fernandez to advance the federal
investigation, the District Court properly denied the Motion to Suppress because it
correctly determined that probable cause to arrest existed based on the totality of the
circumstances. See United States v. Delfin-Colina, 464 F.3d 392, 398 (3d Cir. 2006)
(quoting Whren, 517 U.S. at 813, for the proposition that the Supreme Court “ha[s] been
unwilling to entertain Fourth Amendment challenges based on the actual motivations of
individual officers”) (internal quotation marks omitted).
8
Fernandez’s contention that Officer Candelaria’s observation could not give rise to
probable cause to arrest because the interaction between Foster and Fernandez could have
been an innocent one is unavailing. (Appellant’s Br. 17). We do not consider whether
probable cause existed based on a single aspect of an arrest. Rather, we apply a totality-
of-the-circumstances approach to determine whether the collective facts available to the
officer constituted probable cause. Illinois v. Gates, 462 U.S. 213, 230–31 (1983). We
have no difficulty concluding on these facts that there was probable cause to arrest
Fernandez.
B.
We review the sentence imposed by a district court for abuse of discretion, which
is limited to determining whether the sentence is reasonable. Gall v. United States, 552
U.S. 38, 46 (2007); United States v. Tomko, 562 F.3d 558, 564–65 (3d Cir. 2009) (en
banc).
Our reasonableness review is comprised of both a procedural and a substantive
element. United States v. Lychock, 578 F.3d 214, 217 (3d Cir. 2009). The party
challenging the reasonableness of the sentence bears the burden of demonstrating
unreasonableness. United States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007). Because
we are satisfied that the sentence at issue meets the requirements of procedural
reasonableness, we focus on the substantive reasonableness of the sentence, which
Fernandez challenges on appeal. For our review of substantive reasonableness, we “take
into account the totality of the circumstances.” Gall, 552 U.S. at 51. A sentence outside
the Guidelines is substantively reasonable if, based on the sentencing judge’s
9
“individualized assessment based on the facts presented,” there is a “justification [that] is
sufficiently compelling to support the degree of the variance.” Id. at 50. We have stated
that “a district court’s failure to give mitigating factors the weight a defendant contends
they deserve [does not] render[] the sentence unreasonable.” Bungar, 478 F.3d at 546. A
within-Guidelines sentence may be presumed reasonable. Rita v. United States, 551 U.S.
338, 347 (2007).
If a sentence is outside the Guidelines range, we “must give due deference to [a]
district court's decision that the [18 U.S.C.] § 3553(a) factors, on a whole, justify the
extent of the variance.”5 Gall, 552 U.S. at 51; see United States v. Lessner, 498 F.3d 185,
204 (3d Cir. 2007). We may not reverse simply because we “might reasonably have
concluded that a different sentence was appropriate.” Gall, 552 U.S. at 51. Only if “no
reasonable sentencing court would have imposed the same sentence on that particular
defendant for the reasons the district court provided” will we reverse. Tomko, 562 F.3d at
568.
Fernandez asks this Court to vacate and remand for resentencing on the basis that
the District Court erred in failing to adequately consider mitigating factors which he
5
18 U.S.C. § 3553(a) sets forth the factors a district court must consider in
imposing a sentence. These include, in relevant part:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence imposed . . .;
(3) the kinds of sentences available; (4) the kinds of sentence and the
sentencing range established . . . ; (5) any pertinent policy statement; (6) the
need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct; and (7) the
need to provide restitution to any victims of the offense.
10
asserts should reduce his sentence. (Appellant’s Br. 22–23). Two factors merit a reduced
sentence according to Fernandez: the nonviolent nature of the charged offenses and the
low rate of recidivism for men the age Fernandez will be when released from prison.
(Id.). Fernandez asserts that the mandatory minimum of 240 months’ imprisonment
sufficiently addresses the aims of the Sentencing Guidelines. (Id.). The Government
maintains that the sentence is reasonable based on the facts of this case, which the
District Court adequately applied to the 18 U.S.C. § 3553(a) factors. (Government’s Br.
27).
At sentencing, the District Court correctly calculated Fernandez’s Guideline range
as 324 to 435 months’ imprisonment. 6 (A-142). The District Court also noted that,
pursuant to the information the Government filed charging a prior drug trafficking
conviction, the mandatory minimum was 240 months’ imprisonment under 21 U.S.C. §
851. (A-142); (PSR ¶ 2). Weighing the facts of the case, the District Court imposed a
below-Guidelines sentence of 300 months’ imprisonment. (A-176–A-177).
Fernandez’s assertion that the below-Guidelines sentence is greater than necessary
to accomplish the goals of sentencing for the charged offenses is unpersuasive. The
District Court’s statement of reasons evinced a reasonable application of the 18 U.S.C. §
3553(a) factors, such as: Fernandez’s age, his “relatively modest criminal history,” and
6
After initially referencing the Guidelines range calculated by the Probation
Office as 324 to 405, the District Court misspoke and indicated the upper end of the
range to be 435. Compare (A-142), with (A-177); (PSR ¶ 88). Because the misstatement
of the upper end of the range did not impact the District Court’s reasoning in anyway and
the sentence imposed is below-Guidelines range, this is harmless error.
11
“expressions of remorse” along with the “very serious criminality” of the instant offenses
and Fernandez’s “perjur[y] . . . at the expense of his seasoned former counsel.”7 (A-177).
This well-reasoned application of “the § 3553(a) factors . . . to the circumstances of the
case” satisfies our requirement for substantive reasonableness. Lessner, 498 F.3d at 204.
Simply because Fernandez wishes that the District Court had imposed a lower
sentence does not render its sentence an abuse of discretion. Fernandez asks this Court to
disregard the deference afforded a sentencing judge without articulating how this below-
Guidelines sentence is substantively unreasonable. Asserting that the District Court did
not give enough weight to arguments for further leniency is insufficient under our
precedent. (Appellant’s Br. 22–23). We give due deference to the weight the District
Court applied to the sentencing factors and its consideration of Fernandez’s arguments
for further downward variance. See Tomko, 562 F.3d at 561; United States v. Dragon,
471 F.3d 501, 506 (3d Cir. 2006) (noting that “we afford deference to the District Court
because it is in the best position to determine the appropriate sentence in light of the
particular circumstances of the case”) (internal quotation marks omitted). Here, the
record demonstrates that the District Court considered the mitigating factors in imposing
a sentence that, “while slightly below the Advisory Guideline range, is nevertheless a
7
Initially Fernandez pleaded not guilty. (Supp. App. 80). He changed his plea to a
conditional plea following a hearing at which he testified in support of his motion to limit
the Government’s use of his previously made proffers on the ground that his former
counsel did not adequately explain the ramifications. (Supp. App. 54–Supp. App. 80).
Fernandez’s former counsel testified to the full explanations he provided about the
proffer statements, which Fernandez denied ever receiving. (Supp. App. 10–Supp. App.
23). Characterizing the “credibility contest” between Fernandez and his former counsel as
“not even close,” the District Court denied the motion. (Supp. App. 45–Supp. App. 46).
12
serious number.” (A-176). We decline to find that the District Court’s imposition of 300
months’ imprisonment is substantively unreasonable.
III.
For the foregoing reasons, we will affirm the judgment of conviction and sentence
imposed by the District Court on July 17, 2015.
13