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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13374
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-20645-KMW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUILLERMO GABRIEL AGUILAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 22, 2013)
Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Guillermo Aguilar appeals his convictions for one count of possession of
firearms by an illegal alien in violation of 18 U.S.C. § 922(g)(5)(A) (“Count
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One”), one count of possession with intent to distribute a detectable amount of
cocaine in violation of 21 U.S.C. § 841(a)(1) (“Count Two”), and one count of
possession of a firearm in furtherance of a drug-trafficking crime in violation of 18
U.S.C. § 924(c)(1)(A)(i) (“Count Three”). Aguilar also appeals the substantive
reasonableness of his 93-month sentence.
After being indicted, Aguilar filed a motion to suppress evidence seized in
violation of the Fourth Amendment as a result of a warrantless and consentless
search of his home on December 29, 2010, that tainted the search pursuant to a
state warrant on April 22, 2011. The district court found that, on December 20,
2010, the U.S. Marshals, who were looking for a fugitive in an unrelated case,
entered Aguilar’s home with his consent and subsequently conducted a protective
sweep. The district court denied Aguilar’s motion to suppress on this ground.
Further, the district court held that the warrant would stand even without Aguilar’s
consent and the information from the December 2010 search because the
supporting affidavit also contained (1) the information from the U.S. Marshals
before their entry into Aguilar’s home, including that he had multiple surveillance
cameras on the outside of his house and the fact that Aguilar was nervous when he
answered the door; (2) the North Miami Police Department (“NMPD”), operating
on an unrelated tip, observed buys from Aguilar in October 2010; and (3) the
NMPD orchestrated three controlled buys from Aguilar in March and April 2011.
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This information constituted probable cause for the search warrant even without
the information obtained from the December 2010 search.
After a trial, the jury found Aguilar guilty on all three counts. At sentencing,
Aguilar requested a downward variance based on multiple health and emotional
issues and the five-year minimum for Count Three. The court sentenced Aguilar to
33 months as to Counts One and Two, to run concurrently, and 60 months as to
Count Three, to run consecutively.
On appeal, Aguilar argues that (1) the district court erred by denying his
motion to suppress evidence and finding that the December 2010 search of his
residence was lawful pursuant to voluntary consent and that the April 2011 search
of his residence was lawful pursuant to a valid state search warrant; (2) the district
court erred by denying Aguilar’s motion for a judgment of acquittal as to Count
Three and finding that the evidence showed possession of a firearm “in furtherance
of” a drug-trafficking offense; (3) his within-guidelines sentence was not
substantively reasonable; and (4) the jury was required to rule on facts that would
allow more than a minimum sentence to be imposed, based on the pending
decision of the Supreme Court in Alleyne v. United States, 457 F. App’x 348 (4th
Cir. 2011), cert. granted, 133 S. Ct. 420 (Oct. 5, 2012).
Following review of the record and consideration of the parties’ briefs, we
affirm.
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I.
We review the denial of a motion to suppress as a mixed question of law and
fact, reviewing legal questions de novo and factual questions for clear error.
United States v. Ramirez-Chilel, 289 F.3d 744, 748-49 (11th Cir. 2002). The
district court is in a better position to judge the credibility of witnesses before it,
and we will not disturb the court’s findings of fact unless its understanding of those
facts appears “unbelievable.” Id. at 749. We may consider evidence presented at
both the hearing on the motion to suppress and at the trial, United States v.
Villabona-Garnica, 63 F.3d 1051, 1056 (11th Cir. 1995), and the denial of a
motion to suppress may be affirmed on any ground supported by the record.
United States v. Caraballo, 595 F.3d 1214, 1222 (11th Cir. 2010). Similarly, we
review de novo whether probable cause existed to support a search warrant,
although we “take care both to review findings of historical fact only for clear error
and to give due weight to inferences drawn from those facts by resident judges and
local law enforcement officers.” United States v. Martinelli, 454 F.3d 1300, 1306
(11th Cir. 2006) (quotation omitted).
Generally, under the law of the Fourth Amendment, a search of the home or
office is not reasonable without a warrant issued on probable cause. Maryland v.
Buie, 494 U.S. 325, 331, 110 S. Ct. 1093, 1096-97 (1990). The Supreme Court
found in Buie, however, that a protective sweep may be lawfully undertaken
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pursuant to an in-house arrest where the officer “possesses a reasonable belief
based on specific and articulable facts that the area to be swept harbors an
individual posing a danger to those on the arrest scene.” Id. at 337, 110 S. Ct.
at 1099-100.
A second exception to the Fourth Amendment is a search conducted
pursuant to voluntary consent. United States v. Garcia, 890 F.2d 355, 360 (11th
Cir. 1989). Consent is voluntary if it is “the product of an essentially free and
unconstrained choice.” Id. The government bears the burden of proving that
consent was voluntary. United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir.
1984). The totality of the circumstances must be considered when reviewing the
voluntariness of consent. Id. Although no one factor is dispositive, we may
consider factors such as the
voluntariness of the defendant’s custodial status, the presence of
coercive police procedure, the extent and level of the defendant’s
cooperation with police, the defendant’s awareness of his right to
refuse to consent to the search, the defendant’s education and
intelligence, and, significantly, the defendant’s belief that no
incriminating evidence will be found.
Id. (quotation omitted). We determine whether an individual has sufficient
comprehension of the English language to provide voluntary consent by examining
the suspect’s ability to interact intelligently with the police. United States v.
Zapata, 180 F.3d 1237, 1242 (11th Cir. 1999).
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In United States v. Tovar-Rico, we affirmed the district court’s ruling that
the consent was not voluntary. 61 F.3d 1529, 1536 (11th Cir. 1995). There, at
least five officers knocked on the defendant’s door and asked to enter. Id. at 1535.
When the defendant opened the door, “the officers entered quickly with guns
drawn to do the protective sweep.” Id. (quotation omitted). After the officers
entered each room, they asked for permission to again search the entire apartment.
Id. The officers told the defendant that “she did not have to permit the further
search, but if she did not, the agents would come back with a search warrant.” Id.
at 1536. The defendant consented to the search. Id. The magistrate judge, district
court, and this Court agreed that because the defendant “had already observed
officers explore every room in the apartment[, she] could not reasonably have
known that she could still refuse a search.” Id. Consent was not voluntary where
it was “a mere submission to a claim of lawful authority.” Id. (quotation omitted).
The defendant in United States v. Garcia, by contrast, did not merely submit
“to a claim of lawful authority.” 890 F.2d at 361. The defendant was arrested in
his front yard in the presence of fourteen agents. Id. at 360. A group of the agents
conducted a security sweep of the defendant’s home. Id. After the defendant was
arrested and searched for weapons, he led an officer to weapons inside his home.
Id. The agents then asked for consent to search the defendant’s home. Id. at 361.
The defendant attempted to consent to a limited search, but the agents “refused this
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conditional consent.” Id. The agents told the defendant that if he refused to
consent to a search of the entire home, “they would have to secure the house and
apply for a search warrant.” Id. The defendant responded that the agents could
search his home. Id. We held that this consent was voluntary, noting that it had
“approved a finding of voluntariness when a defendant was under far more
coercive conditions than” the defendant was in Garcia. Id.
The Fourth Amendment requires that there be probable cause to obtain a
warrant and that warrants “particularly describ[e] the place to be searched, and the
persons or things to be seized.” U.S. Const. amend. IV. “Probable cause to
support a search warrant exists when the totality of the circumstances allow a
conclusion that there is a fair probability of finding contraband or evidence at a
particular location.” Martinelli, 454 F.3d at 1307. The affidavit need not allege
that any illegal activity occurred at the residence, but should provide a reasonable
basis to conclude that the defendant “might keep evidence of his crimes at home,
i.e., a safe yet accessible place.” United States v. Kapordelis, 569 F.3d 1291, 1310
(11th Cir. 2009) (quotation omitted). It should “establish a connection between the
defendant and the residence to be searched and a link between the residence and
any criminal activity.” Id. “Evidence that the defendant is in possession of
contraband that is of the type that would normally expect to be hidden at their
residence will support a search.” United States v. Anton, 546 F.3d 1355, 1358
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(11th Cir. 2008); see also United States v. Jenkins, 901 F.2d 1075, 1080-81 (11th
Cir. 1990) (holding that the nexus between items to be seized and the defendant’s
home can be established circumstantially where contraband is capable of being
hidden in the residence).
“[T]he information supporting the government’s application for a warrant
must show that probable cause exists at the time the warrant issues.” United States
v. Bervaldi, 226 F.3d 1256, 1264 (11th Cir. 2000). There is no particular rule or
time limit for when information becomes stale, and whether information is stale
must be decided on the particular facts of each case. Id. at 1265. In deciding
whether information presented in support of a warrant is stale, we examine the
length of time, nature of the suspected crime, habits of the accused, character of the
items sought, and nature and function of the premises to be searched. Id. In
considering the nature of the crime, we distinguish between criminal activity that is
protracted and criminal activity that is isolated. Id. If the affidavit “recites activity
indicating protracted or continuous conduct, time is of less significance.” Id.
(quotation omitted). Stale information does not, however, void an affidavit where
the government’s affidavit “updates, substantiates, or corroborates” the stale
material. United States v. Harris, 20 F.3d 445, 450 (11th Cir. 1994).
Here, Aguilar argues that the district court erred by denying his motion to
suppress because the December 2010 search was not conducted pursuant to
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voluntary consent and because officers did not have probable cause for their
subsequent search of his home on April 22, 2011. We disagree. The district court
did not err by denying the motion to suppress because the December 2010 search
was done pursuant to voluntary consent and the search warrant affidavit
established probable cause to believe that drug-related items would be found at
Aguilar’s home.
First, Aguilar argues that any consent he gave to a search of his house was
not voluntary. However, a review of the totality of the circumstances shows that
Aguilar’s consent was “essentially [a] free and unconstrained choice.” See Garcia,
890 F.2d at 360. Aguilar was not in custody. See Chemaly, 741 F.2d at 1352.
Aguilar did not immediately provide consent to search, but he did provide consent
to the officers once they described the scope of the search. See id. Although
Aguilar testified that an officer told him that, if he did not consent, officers would
seek a search warrant and that officers had their hands on their weapons, there is
no evidence that this statement and those actions rose to the level of coercion.
These circumstances were much less coercive than in Garcia, where consent was
voluntary even though the defendant consented after being arrested in the presence
of fourteen agents, the agents conducted a security sweep of the defendant’s home,
the agents refused to accept defendant’s consent to a limited search, and the agents
told the defendant that if he refused to consent to the search, they would apply for a
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search warrant and search his home. See 890 F.2d at 360-61. And, unlike the
officers in Tovar-Rico, who conducted a protective sweep of every room with their
guns drawn before asking for consent to search, the officers here merely stated,
from the foyer of his house, that if Aguilar did not consent they would seek a
search warrant. Accordingly, the government demonstrated that Aguilar’s consent
was voluntary and the district court did not err in refusing to suppress the results of
this search.
Second, the totality of the circumstances supports “a conclusion that there
[was] a fair probability of finding contraband or evidence” in Aguilar’s house
during the April 22, 2011, search pursuant to the search warrant. There was
sufficient probable cause to search Aguilar’s house when the evidence showed,
inter alia, that (1) in October 2010, officers began surveillance of a restaurant and
observed Aguilar engaging in what appeared to be drug transactions; (2) on
December 29, 2010, officers conducted the search of Aguilar’s house discussed
above and observed drug paraphernalia in plain view; and (3) on March 8, March
11, and April 5, 2011, officers conducted three separate controlled buys of cocaine
from Aguilar. The affidavit was issued on April 15, 2011, and it was executed on
April 22, 2011. None of this information was stale because Aguilar was engaged
in an ongoing drug-trafficking crime involving continuous conduct. See Bervaldi,
226 F.3d at 1265.
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The district court did not err by denying Aguilar’s motion to suppress.
II.
We review de novo a district court’s denial of a motion for judgment of
acquittal on sufficiency of the evidence grounds. United States v. Friske, 640 F.3d
1288, 1290-91 (11th Cir. 2011). In making this determination, we consider “the
evidence in the light most favorable to the Government, drawing all reasonable
inferences and credibility choices in the Government’s favor.” Id.
Section 924(c) of Title 18 of the U.S. Code states, “any person who, during
and in relation to any crime of violence or drug trafficking crime . . . uses or carries
a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in
addition to the punishment provided for such crime of violence or drug trafficking
crime” be subject to additional penalties enumerated in the statute. 18 U.S.C.
§ 924(c)(1)(A). We have interpreted “in furtherance of” to mean that the firearm
“helped, furthered, promoted, or advanced the drug trafficking.” United States v.
Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002). Mere presence of a firearm in the
defendant’s “dominion and control” during the drug offense is insufficient by itself
to constitute possession “in furtherance of” the drug-trafficking crime. Id. at 1253.
Accordingly, it is important to “distinguish possession in furtherance of a crime
from innocent possession of a wall-mounted antique or an unloaded hunting rifle
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locked in a cupboard.” Id. (quoting United States v. Mackey, 265 F.3d 457, 462
(6th Cir. 2001)).
We consider a list of non-exclusive factors in determining whether there is
“some nexus between the gun and the drug selling operation”: (1) the type of drug
activity being conducted; (2) accessibility of the firearm; (3) the type of the
weapon; (4) whether the weapon is stolen; (5) the status of the possession
(legitimate or illegal); (6) whether the gun is loaded; (7) proximity to the drugs or
drug profits; and (8) the time and circumstances under which the gun is found. Id.
(quotation omitted). We have recognized that “guns are a tool of the drug trade,”
and that there is a “frequent and overpowering connection between the use of
firearms and narcotics traffic.” United States v. Cruz, 805 F.2d 1464, 1474 (11th
Cir. 1986). We have also recognized that a reasonable jury could infer “that the
purpose of firearms, lying in plain view on a mattress next to substantial quantities
of drugs, was ‘to provide defense or deterrence in furtherance of the drug
trafficking for which defendant was arrested.’” United States v. Miranda, 425 F.3d
953, 962 (11th Cir. 2005) (quoting Mackey, 265 F.3d at 462-63).
The district court did not err by denying Aguilar’s motion for acquittal as to
Count Three. Aguilar admits that the firearms were in the same room as the drugs,
and he has provided no innocent reasons, such as the presence of a “wall-mounted
antique or an unloaded hunting rifle locked in a cupboard.” See Timmons, 283
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F.3d at 1253 (quotation omitted). A reasonable jury was entitled to infer that three
firearms in the same small bedroom as a substantial quantity of cocaine and
various other drug paraphernalia—including a kilo compression, scales, plastic
baggies, sifters, a breaker, and a cutting agent—were to provide “defense or
deterrence in furtherance of the drug trafficking” for which Aguilar was arrested.
See Miranda, 425 F.3d at 962; Cruz, 805 F.2d at 1474. Accordingly, sufficient
evidence supported Aguilar’s § 924(c) conviction.
III.
We review the reasonableness of sentences imposed under the advisory
sentencing guidelines under a deferential abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). We may “set aside a
sentence only if we determine, after giving a full measure of deference to the
sentencing judge, that the sentence imposed truly is unreasonable.” United States
v. Irey, 612 F.3d 1160, 1191 (11th Cir. 2010) (en banc).
The district court is required to impose a sentence “sufficient, but not greater
than necessary, to comply with the purposes” listed in § 3553(a)(2), including the
need to reflect the seriousness of the offense, promote respect for the law, provide
just punishment for the offense, deter criminal conduct, protect the public from the
defendant’s future criminal conduct, and provide the defendant with needed
educational or vocational training or medical care. See 18 U.S.C.
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§ 3553(a)(2)(A)-(D). In imposing a particular sentence, the court must also
consider the nature and circumstances of the offense, the history and characteristics
of the defendant, the kinds of sentences available, the applicable guideline range,
the pertinent policy statements of the Sentencing Commission, the need to avoid
unwarranted sentencing disparities, and the need to provide restitution to victims.
Id. § 3553(a)(1), (3)-(7).
In reviewing the reasonableness of a sentence, we first ensure that the
sentence was procedurally reasonable, meaning the district court properly
calculated the guideline range, treated the guidelines as advisory, considered the
§ 3553(a) factors, did not select a sentence based on clearly erroneous facts, and
adequately explained the chosen sentence. Gall, 552 U.S. at 51, 128 S. Ct. at 597.
Once we determine that a sentence is procedurally sound, we examine whether or
not the sentence was substantively reasonable in light of the totality of the
circumstances. Id.
The party who challenges the sentence bears the burden to show it is
unreasonable in light of the record and the § 3553(a) factors. United States v.
Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). Although we do not automatically
presume a sentence falling within the guideline range to be reasonable, we
ordinarily expect such a sentence to be reasonable. United States v. Hunt, 526 F.3d
739, 746 (11th Cir. 2008). A sentence imposed well below the statutory maximum
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penalty is another indicator of a reasonable sentence. United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008).
We reverse only if “left with the definite and firm conviction that the district
court committed a clear error of judgment in weighing the § 3553(a) factors by
arriving at a sentence that lies outside the range of reasonable sentences dictated by
the facts of the case.” Irey, 612 F.3d at 1190 (quoting United States v. Pugh, 515
F.3d 1179, 1191 (11th Cir. 2008)). For instance, a district court’s unjustified
reliance on any one § 3353(a) factor may be a symptom of an unreasonable
sentence. United States v. Crisp, 454 F.3d 1285, 1291-92 (11th Cir. 2006).
Aguilar’s sentence is substantively reasonable. The district court explicitly
considered the 18 U.S.C. § 3553(a) factors at sentencing, including the specific
facts raised by Aguilar on appeal. The court’s decision to give a low-end sentence
and not impose a variance was based on the need for deterrence, the need to
promote respect for the law, and the nature of the crime. This finding was
reasonable, especially in light of the items found in Aguilar’s home—two bullet-
proof vests, electric brass knuckles, narcotics, and weapons. Aguilar has not
shown that the court’s decision to impose a low-end sentence was unreasonable
based on his health problems. See Hunt, 526 F.3d at 746.
IV.
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Alleyne v. United States presents the question of whether Harris v. United
States, 536 U.S. 545, 122 S. Ct. 2406 (2002), should be overruled. Harris held that
“brandishing” a firearm for purposes of 18 U.S.C. § 924(c)(1)(A)(ii) was a
sentencing factor, rather than an element of the crime, and that allowing a judge to
find that factor did not violate the defendant’s constitutional rights. 536 U.S.
at 556, 568, 122 S. Ct. at 2414, 2420 (plurality). In Harris, the government
charged the defendant under 18 U.S.C. § 924(c)(1)(A), but the indictment made no
mention of brandishing or of subsection (ii). Id. at 551, 122 S. Ct. at 2411. At
stake in Alleyne are laws in which a legislature decides that some aspects of a
specific crime justify a sentence longer than the bottom of the range and dictate a
mandatory add-on sentence that is still within the maximum range but may be
more than the judge otherwise would have selected.
We reject Aguilar’s challenge to his sentence based on the pending decision
in Alleyne because Aguilar raises this argument solely to preserve it and because
any decision in Alleyne would be inapplicable to Aguilar. Even if the Supreme
Court were to overrule Harris, it would have no effect on Aguilar’s sentence
because the jury found Aguilar guilty of all of the factors necessary to require the
five-year mandatory minimum for Count Three.
V.
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For the foregoing reasons, and after a thorough review of the parties’ briefs
and the record, we affirm. 1
AFFIRMED.
1
Aguilar’s motion to dismiss appellate counsel and appoint new counsel is DENIED.
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