[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-13153 March 12, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 06-00269-CR-CAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEU HERRERA-CONTRERAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 12, 2008)
Before DUBINA, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Jeu Herrera-Contreras (“Herrera”) appeals his convictions and
292-month sentence for conspiracy to distribute cocaine, in violation of 21 U.S.C.
§ 846, and conspiracy to commit money laundering, in violation of 18 U.S.C.
§ 1956(h).
First, he argues on appeal that law enforcement officers violated his rights
under the Fourth Amendment by testing a key, seized from him incident to his
arrest, to see if it fit the lock on a closet in which officers found evidence of drug
trafficking and money laundering. He argues that he possessed a reasonable
expectation of privacy in the information that his key fit the lock, and, therefore,
the warrantless testing of his key did not fall under any exception to the Fourth
Amendment’s prohibition against unreasonable searches, even though the officers
had a warrant to search the premises.1
“In reviewing a district court’s denial of a motion to suppress, we review its
findings of fact for clear error and its application of law to those facts de novo.”
United States v. Ramirez, 476 F.3d 1231, 1235-36 (11th Cir. 2007), cert. denied,
127 S. Ct. 2924 (2007). The district court’s factual findings are construed in the
light most favorable to the prevailing party. United States v. Smith, 459 F.3d 1276,
1290 (11th Cir. 2006), cert. denied, 127 S. Ct. 990 (2007).
The Fourth Amendment prohibits “unreasonable” searches and seizures of
1
We would be faced with a different question if there were no warrant to search the
premises.
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areas in which a person enjoys a “reasonable expectation of privacy.” United
States v. Segura-Baltazar, 448 F.3d 1281, 1285 (11th Cir. 2006) (quotation
omitted). The Supreme Court has held that, while simply looking at an object in
plain view does not constitute a search, “taking action,” such as, for example,
moving a piece of stereo equipment in order to observe its serial numbers,
constitutes a “search” because it “expose[s] to view” something that was
theretofore concealed. See Arizona v. Hicks, 480 U.S. 321, 325, 107 S. Ct. 1149,
1152-53 (1987).
The Supreme Court has established an exception for unwarranted searches
that are performed incident to custodial arrest, which is justified by “the
reasonableness of searching for weapons, instruments of escape, and evidence of
crime when a person is taken into official custody and lawfully detained.” United
States v. Edwards, 415 U.S. 800, 802-03, 94 S. Ct. 1234, 1236-37 (1974). The
Supreme Court further noted that, in a search incident to arrest, a defendant’s
belongings may be seized “and later subjected to laboratory analysis[, and] the test
results are admissible at trial.” Id. at 803-04, 94 S. Ct. at 1237.
Because the record demonstrates that law enforcement agents seized
Herrera’s keys pursuant to a lawful search incident to arrest, and used the key in
executing their warrant to search the premises which dissipated his reasonable
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expectation of privacy regarding the keys, seized as evidence, we conclude that the
district court did not err in denying his motion to suppress evidence obtained when
agents used his keys to unlock the closet, and we affirm his convictions.
Next, Herrera argues that the district court clearly erred by holding him
accountable, at sentencing, for 5,945.5 kilograms of cocaine, which was the
amount discerned by the probation officer in the Presentence Investigation Report.
A district court’s determination of drug quantity is reviewed for clear error.
See United States v. Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000). When the
defendant objects to the base offense level, the government must establish the
quantity of drugs by a preponderance of the evidence. United States v. Agis-Meza,
99 F.3d 1052, 1055 (11th Cir. 1996). Pursuant to U.S.S.G. § 2D1.1(c)(1), the base
offense level for an offense involving 150 kilograms or more of cocaine is 38. In a
multi-participant conspiracy, an individual defendant is responsible for his own
acts, as well as the reasonably foreseeable acts of others taken in furtherance of the
jointly undertaken conspiracy. United States v. Ismond, 993 F.2d 1498, 1499 (11th
Cir. 1993).
Because ledgers to which Herrera had access, and on which authorities
discovered his fingerprints, detailed numerous drug transactions exceeding 150
kilograms each, the record supported the district court’s determination that he was
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accountable for 5,945.5 kilograms of cocaine.
Next, Herrera argues that the district court erred by not crediting him with a
reduction for his allegedly minor role in the offense. We review a district court’s
determination of whether a defendant qualifies for a minor-role reduction for clear
error. United States v. Rodriguez De Varon, 175 F.3d 930, 945 (11th Cir. 1999).
The defendant bears the burden of proving his minor role by the preponderance of
the evidence. Id. The district court must measure the defendant's role against the
relevant conduct for which he has been held accountable at trial, and, if that is not
dispositive, it may, “measure the defendant’s culpability in comparison to that of
other participants in the relevant conduct.” Id. at 941, 944.
Because Herrera did not present any evidence that his actual conduct was
minor relative to the relevant conduct for which he was implicated, nor did he
demonstrate that his role in the relevant conduct was minor relative to other
discernable co-conspirators, the district court did not err in declining to credit him
with a minor-role reduction.
Finally, Herrera argues that his sentence was unreasonable because he
previously worked to support his family, had no prior criminal record, had only a
small, non-violent role in the cocaine distribution conspiracy, did not lie on the
witness stand, and was the only one of all of his co-conspirators to receive a
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conviction.
When reviewing a sentence, we must first determine 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,
[or] failing to consider the § 3553(a) factors.” Gall v. United States, __ U.S. __, __
128 S. Ct. 586, 597 (2007). If we conclude that the district court made no
procedural errors, we “should then consider the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.” Id. at __, 128 S. Ct. at
597. In reviewing for substantive reasonableness, we consider the sentence, in its
entirety, in light of the 18 U.S.C. § 3553(a) factors, which include:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (citing 18 U.S. C. §
3553(a)).
Because Herrera’s sentence fell at the low end of the guideline range for his
offense, and the district court made specific findings with regard to the reasons for
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the sentence that it imposed, we conclude that his sentence was not unreasonable.
Accordingly, we affirm his sentence.
AFFIRMED.
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