United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 22, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 05-10094
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UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
DUC NGUYEN,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Criminal No. 4:04-CR-100-A(3)
Before JONES, Chief Judge, and WIENER and PRADO, Circuit Judges.
PER CURIAM:*
Duc Nguyen pled guilty to a drug offense pursuant to a plea
agreement, but reserved the right to appeal the district court’s
denial of his motions to suppress seized evidence and oral
statements. Nguyen claims that the district court erred by
denying his motions to suppress. Nguyen also contends that his
sentence violates the Sixth Amendment because it was based in
part on facts that were not admitted by him or found beyond a
*
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
reasonable doubt by a jury. For the reasons that follow, we
AFFIRM the district court’s ruling on Nguyen’s motions to
suppress, VACATE his sentence and REMAND for resentencing.
I. Background
In September 2003, Drug Enforcement Administration (“DEA”)
investigators received information that a man named “Jeff” was
distributing large quantities of methamphetamine, cocaine, and
marijuana. “Jeff” was subsequently identified as Jeff Sibley.
On March 11, 2004, investigators began watching Sibley’s
apartment. During the surveillance, DEA task force officers saw
Nguyen visit Sibley’s apartment and leave about two hours later.
Less than one hour after Nguyen left, investigators executed a
search warrant at Sibley’s apartment. Sibley and Patrick Jason
Wright were inside the apartment at the time of the search.
During that search, investigators found 771.5 grams of
methamphetamine (490.4 grams of “actual methamphetamine”)1 on a
counter top in Sibley’s apartment, in plain view. After
receiving Miranda warnings, Sibley told investigators that he had
bought about one and a half pounds of methamphetamine for $16,000
from Nguyen, who Sibley later identified.2 Sibley stated that he
1
Presumably, 771.5 grams was the weight of the mixture
containing methamphetamine, and 490.4 grams was the weight of the
pure form of methamphetamine.
2
There is some ambiguity in the record as to how Sibley
identified Nguyen. The search warrant says Sibley identified
Nguyen in a lineup of Asian males, but the briefing states that
Sibley identified Nguyen in a photo spread.
2
bought two to three pounds of “Ice” (a pure form of
methamphetamine) from Nguyen every week for about $11,000 per
pound.
On March 12, investigators identified Nguyen’s residence
through his license plate number. DEA task force officer Kevin
K. Brown applied for, and was issued, a state search warrant for
Nguyen’s house, located at 1111 Edenbrook Drive, Arlington,
Tarrant County, Texas. During the execution of the search
warrant investigators found a small amount of cocaine in a
bathroom drawer, two shotguns, one rifle, three handguns, and
Nguyen’s Texas concealed handgun license. Nguyen was present
during the search, and investigators found $1,254 cash in his
pocket. After receiving Miranda warnings, Nguyen told the
officers that he had $20,000 in a safe in the closet of his
master bedroom. He initially claimed the money was from the sale
of a business, but later admitted that $16,000 of the money was
from the sale of methamphetamine to Sibley the day before.
II. Procedural History
Nguyen and co-defendants Sibley and Wright were charged in a
four-count indictment. Nguyen was charged in two counts of the
indictment. He pled guilty, pursuant to a written plea
agreement, to possession with intent to distribute more than 500
grams of a mixture or substance containing a detectable amount of
3
methamphetamine.3 Nguyen expressly reserved the right to appeal
the district court’s denial of his motions to suppress seized
evidence and oral statements. The district court sentenced
Nguyen to 230 months of imprisonment and five years of supervised
release. Nguyen then timely appealed.
III. Discussion
Nguyen argues that the district court erred in denying his
motion to suppress evidence seized from his house and motion to
suppress oral statements made to law enforcement officers, as a
result of the search of his home. He contends that there was no
probable cause supporting the warrant to search his house and
that the good-faith exception does not apply; thus, Nguyen claims
the evidence should be suppressed under the exclusionary rule.4
As the argument goes, although there may have been probable cause
to believe he was involved in illegal drug activities, there was
no nexus between the location searched and the evidence sought.
In reviewing a district court’s denial of a motion to
suppress, we review factual findings for clear error and
3
Count One, which charged Nguyen, Sibley, and Wright with
conspiracy to possess a controlled substance with intent to
distribute, was dismissed as to Nguyen at sentencing on the
government’s motion, under the provisions of the plea agreement.
4
The exclusionary rule is “a judicially created remedy
designed to safeguard Fourth Amendment rights generally through
its deterrent effect, rather than a personal constitutional right
of the party aggrieved.” United States v. Leon, 468 U.S. 897,
906 (1984). When appropriately invoked, the exclusionary rule
allows the suppression of the fruits of a search that is in
violation of the Fourth Amendment. Id. at 905.
4
conclusions as to the constitutionality of law enforcement action
de novo. United States v. Kelley, 140 F.3d 596, 601 (5th Cir.
1998). When a search warrant is involved, we follow a two-step
process. United States v. Cherna, 184 F.3d 403, 407 (5th Cir.
1999). First, we ask whether the good-faith exception to the
exclusionary rule applies. Id. “The good-faith exception
provides that where probable cause for a search warrant is
founded on incorrect information, but the officer’s reliance upon
the information’s truth was objectively reasonable, the evidence
obtained from the search will not be excluded.” United States v.
Cavazos, 288 F.3d 706, 709 (5th Cir. 2002). If the good faith
exception applies, we end our analysis and affirm the district
court’s denial of the motion to suppress. Cherna, 184 F.3d at
407 (“If the good-faith exception applies, we need not reach the
question of probable cause.”). If the good faith exception does
not apply, we proceed to the second step, and ask whether the
magistrate issuing the warrant had a substantial basis for
concluding that probable cause existed. Id.
Nguyen argues that the good-faith exception to the
exclusionary rule does not apply because the warrant was based on
an affidavit so lacking in indicia of probable cause that belief
in the existence of probable cause was entirely unreasonable.
See id. at 407-08. In considering whether the affidavit had
sufficient indicia of probable cause to search Nguyen’s house, we
5
must determine if the affidavit “establish[ed] a nexus between
the house to be searched and the evidence sought.” United States
v. Broussard, 80 F.3d 1025, 1034 (5th Cir. 1996). The nexus may
be established “by direct observation or through normal
inferences as to where the articles sought would be located.”
Id.
Nguyen’s claim is unavailing. The affidavit in this case
contains specific assertions by Officer Brown that: (1)
surveillance established that Nguyen had been in Sibley’s
apartment on March 11, 2004, the day that a large amount of
methamphetamine was found there, (2) Sibley said that Nguyen sold
him two to three pounds of methamphetamine a week for four months
at $11,000 per pound, (3) Sibley identified Nguyen as the man who
sold him the drugs for $16,000, (4) Nguyen was involved in
distributing large amounts of methamphetamine in exchange for
large amounts of cash, and (5) Nguyen’s car was observed at his
residence on March 12, 2004, and Nguyen was the owner of the
residence. In addition, the warrant included statements that
drug dealers often keep contraband in their residences.
The warrant sought “To Search For and Seize Evidence Items
associated with the Distribution of Methamphetamine” at Nguyen’s
home. Officer Brown’s affidavit established a nexus between the
residence and the illegal activity through normal inferences as
to where the articles sought would be located. United States v.
6
Pace, 955 F.2d 270, 277 (5th Cir. 1992) (“The affidavit must
connect . . . the residence to be searched with the illegal
activity, but this nexus may be established through normal
inferences as to where the articles sought would be
located.”)(internal citation and quotations omitted); see United
States v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982) (explaining
that continuing illegal activity strengthens the inference that
the articles sought will be located in a participant’s house);
United States v. Maestas, 546 F.2d 1177, 1180 (5th Cr. 1977)
(“[E]vidence that a defendant has stolen material which one
normally would expect him to hide at his residence will support a
search of his residence.”).
The good faith exception applies, and the district court did
not err in denying Nguyen’s motion to suppress items seized from
his residence. We need not reach the second step of the
analysis.
Nguyen also argues that his sentence violated the Sixth
Amendment, under Blakely v. Washington, 542 U.S. 296 (2004) and
United States v. Booker, 543 U.S. 220 (2005). He contends the
district court committed Booker error when it enhanced his
sentence based upon factual determinations he did not admit and
that were not found beyond a reasonable doubt by a jury.
Specifically, Nguyen points out he was sentenced on the basis of
7
possession of: (1) “methamphetamine actual,”5 rather than
methamphetamine,6 (2)thirty-two pounds of methamphetamine, and (3)
a firearm, in furtherance of his drug distribution activities.
The government concedes that, in light of Booker, the district
court erred in sentencing Nguyen under a mandatory guidelines
system, without having jury findings beyond a reasonable doubt on
the challenged sentencing factors.
Nguyen adequately preserved Booker error by his Blakely
objections raised in the district court. See United States v.
Akpan, 407 F.3d 360, 376 (5th Cir. 2005). When a defendant
preserves error “we will ordinarily vacate the sentence and
remand, unless we can say the error is harmless.” Id. The
government argues that the Booker error was harmless because the
district court stated:
Well, I think had it not been for this defendant’s
cooperation I would be inclined to sentence [him] at the
top of the guideline range. I am going to take into
account his cooperation in determining where to sentence,
and I’m going to sentence him actually a little below the
middle of the guideline range.
These statements do not prove beyond a reasonable doubt that the
district court would have imposed the same sentence had it acted
5
“methamphetamine actual” and “actual methamphetamine” are
used interchangeably in the briefs.
6
In the factual resume, Nguyen admitted that he had
possessed, with intent to distribute, “663.5 grams of a mixture
and substance containing a detectable amount of methamphetamine.”
He did not admit to any particular quantity of “methamphetamine
actual.”
8
under an advisory guidelines regime. See Akpan, 407 F.3d at 377.
The government has not met its burden to show the error was
harmless.
IV. Conclusion
For the reasons above, we AFFIRM the district court’s ruling
on Nguyen’s motions to suppress and VACATE and REMAND for
resentencing.
AFFIRMED; VACATED AND REMANDED for resentencing.
9