FILED
United States Court of Appeals
Tenth Circuit
August 25, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-2231
FRANCISCO GAMBINO-ZAVALA,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 1:06-CR-02253-JEC)
Brian A. Pori, Inocente P.C., Albuquerque, New Mexico.
William J. Pflugrath, Assistant United States Attorney (Gregory J. Fouratt, United
States Attorney, with him on the briefs), Office of the United States Attorney,
Albuquerque, New Mexico.
Before BRISCOE, LUCERO, and TYMKOVICH, Circuit Judges.
TYMKOVICH, Circuit Judge.
Responding to reports of multiple gunshots in an Albuquerque apartment
complex, police conducted an early morning warrantless search of an apartment
identified by a tenant as the source of the shots. During the sweep, the officers
found drugs and several guns. One of the men at the apartment, Francisco
Gambino-Zavala, eventually pleaded guilty to unlawful possession of a firearm
and ammunition by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5) and
924(a)(2). He was sentenced to fifty-seven months in prison and two years of
supervised release.
He reserved his right to appeal the district court’s suppression ruling, and
argues the police conducted an illegal search of the apartment. He also contends
his sentence should be vacated because it is procedurally and substantively
unreasonable. We conclude that exigent circumstances justified the officers’
sweep of the apartment, and the district court therefore did not err in rejecting his
motion to suppress evidence. We also find no error with the court’s sentence.
Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM Gambino-
Zavala’s conviction and sentence.
I. Background
Around 4:45 a.m. on September 2, 2006, Albuquerque police responded to
multiple 911 calls reporting gunfire in the area of the Crestview Apartment
complex. The calls came from a variety of sources, including persons living in or
near the complex. Several callers identified themselves, among them a military
police officer, a local store manager, and two nearby residents. They reported
hearing up to eight gun shots.
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When police arrived, they spoke to a frantic and scared resident of
Crestview. The tenant, who lived directly below apartment J, told the officers
that people living in unit J had been shooting guns inside the apartment. She
reported that they had created problems in the past and were known to carry guns.
She also identified two cars in the parking lot used by these men. One of the cars
blocked the other and could not be moved.
The three investigating officers turned to apartment J and knocked on the
door. Responding to several minutes of knocking, Gambino-Zavala opened the
door. When asked whether other people were inside the apartment, he responded
“no.” Two officers then “went in just to check to make sure that there was nobody
else inside that was either injured or hurt or needed assistance, and also just to
make sure there wasn’t anybody in there that was armed with a gun, that could
possibly hurt us or anybody else.” R., Vol. III at 20–21. The sweep lasted one or
two minutes. While conducting the search, they noticed a shotgun and
ammunition in a bedroom closet.
After the sweep had been completed, Gambino-Zavala admitted he was an
illegal alien. The officers then confirmed Gambino-Zavala had two outstanding
misdemeanor warrants and arrested him. After arresting him, they conducted a
more thorough search of the apartment and recovered the shotgun and ammunition.
They also discovered a .38 revolver, an AK-47, and 253.4 grams of heroin.
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The government charged Gambino-Zavala with unlawful possession of a
firearm and ammunition by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5)
and 924(a)(2). This charge was based only on the shotgun and ammunition the
police discovered when they initially searched the apartment for victims.
Gambino-Zavala filed a motion to suppress this evidence. After the court denied
the motion, he pleaded guilty. The court sentenced him to fifty-seven months in
prison and two years of supervised release.
II. Discussion
Gambino-Zavala argues the district court erred by denying his suppression
motion. Furthermore, he argues his sentence should be vacated because it is
procedurally and substantively unreasonable. We reject both arguments.
A. Suppression Motion
“When reviewing the denial of a motion to suppress, we view the evidence
in the light most favorable to the government, accept the district court’s findings
of fact unless clearly erroneous, and review de novo the ultimate determination of
reasonableness under the Fourth Amendment.” United States v. Apperson, 441
F.3d 1162, 1184 (10th Cir. 2006) (internal quotation marks omitted).
Gambino-Zavala contends the shotgun and ammunition discovered during
the initial search of the apartment was the result of an illegal search. Under the
Fourth Amendment, “searches and seizures inside a home without a warrant are
presumptively unreasonable.” United States v. McCullough, 457 F.3d 1150, 1163
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(10th Cir. 2006) (quoting Payton v. New York, 445 U.S. 573, 586 (1980)). Only
under a limited number of circumstances may the police conduct a search without
a warrant. See United States v. Walker, 474 F.3d 1249, 1252 (10th Cir. 2007).
One exception to the warrant requirement is when police reasonably believe an
emergency exists that makes it infeasible to obtain a warrant.
Here, the government argues that exigent circumstances justified the
warrantless search of the apartment. Exigent circumstances may justify a search
where “(1) the officers have an objectively reasonable basis to believe there is an
immediate need to protect the lives or safety of . . . others, and (2) the manner and
scope of the search is reasonable.” United States v. Najar, 451 F.3d 710, 718
(10th Cir. 2006); see also Walker, 474 F.3d at 1254 (describing the exigent
circumstances exception).
1. Reasonable Basis Existed for Conducting Search
To satisfy the first prong of the Najar test, the government must show the
officers reasonably believed a person inside the home was in immediate need of
aid or protection. Najar, 451 F.3d at 718–19.
We evaluate whether a reasonable belief existed based on the “realities of
the situation presented by the record from the viewpoint of prudent, cautious, and
trained officers.” Id. (internal quotation marks omitted). Reasonable belief does
not require absolute certainty; the Supreme Court has explained that the standard
is more lenient than the more stringent probable cause standard. See id. at 718
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(explaining the Supreme Court in Brigham City 1 did not require the government to
show the officers had probable cause to believe that a person inside the residence
required immediate aid).
Moreover, it is well settled that officers can reasonably search for victims
upon reports of gunfire. See Wayne R. LaFave, Search and Seizure: A Treatise on
the Fourth Amendment § 6.6(a) (4th ed. 2007) (citing United States v. Huffman,
461 F.3d 777 (6th Cir. 2006) (holding officers’ warrantless entry was proper to
make sure no one injured inside when police responded to 911 call of gunshots and
saw multiple bullet holes in windows and inside walls and furniture); United
States v. Holloway, 290 F.3d 1331 (11th Cir. 2002) (holding anonymous 911 call
about ongoing gunshots and arguing at certain house justified warrantless search
of residence); Tamez v. City of San Marcos, 118 F.3d 1085 (5th Cir. 1997)
(holding entry lawful where officers responded to a “shots fired” call and could
hear noise in the house, but could not determine whether anyone was inside the
house); United States v. Donlon, 909 F.2d 650 (1st Cir. 1990) (holding exigent
circumstances exception applied where police entered home where there was a
report of gunshots and children upstairs), overruled on other grounds by United
States v. Omar, 104 F.3d 519, 522–23 (1st Cir. 1997)).
Based on the sequence of events here, we conclude the officers had
reasonable belief, if not probable cause, to search the apartment for injured
1
Brigham City v. Stuart, 547 U.S. 398 (2006).
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persons. First, it is undisputed that a number of credible witnesses heard multiple
gunshots from the apartment complex in the early morning hours and reported the
incident to police in a number of 911 calls. Based on a contemporaneous
interview with a shaken tenant who lived immediately below the apartment and
heard the gunshots, the police pinpointed the shots to inside apartment J. The
tenant advised police that several men lived in the apartment and they were known
to carry guns. The tenant also identified two vehicles in the parking lot that
belonged to the men who lived in apartment J. The two cars appeared to be
temporarily parked and one could not be moved without moving the other,
suggesting that the men were still inside the apartment.
Relying on this information, the officers concluded that an injured victim
could be inside the apartment. And given the credible information indicating a
number of gunshots had been fired inside the apartment, that conclusion was
reasonable. Although Gambino-Zavala, when confronted, told the officers nobody
else was inside, a reasonable officer under these circumstances could discredit that
statement.
In short, the officers had objectively reasonable bases to believe there was
an immediate need to search the apartment to protect the safety of others.
2. The Manner and Scope of Search Was Reasonable
The government must also show that the manner and scope of the search
was reasonable. Najar, 451 F.3d at 718. To satisfy this requirement, the
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government must show the officers “confined the search to only those places
inside the home where an emergency would reasonably be associated.” Id. at 720.
The government fulfilled this burden. The district court found the initial
search was brief, lasting only one or two minutes, and limited to a sweep for
additional people inside the apartment.
Gambino-Zavala nonetheless contends the government failed to produce
sufficient evidence demonstrating that the shotgun and ammunition the police
discovered during the initial search were actually in plain view. He argues that
because the contraband was not in plain view, the officers exceeded the scope of a
reasonable search. The government argues that Gambino-Zavala waived this
argument before the district court, and it cannot be raised on appeal. Given the
record before us, we agree.
When a defendant fails to properly challenge an error in the district court,
the challenge is forfeited and may be reviewed on appeal only for plain error. See
United States v. Teague, 443 F.3d 1310, 1314 (10th Cir. 2006); Fed. R. Crim. P.
52(b). But when a defendant waives an issue by relinquishing or abandoning it in
the district court, he is precluded from seeking appellate review of the issue.
United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007); Fed. R.
Crim. P. 12(e). 2
2
“Th[e] waiver provision [of Rule 12(e) of the Federal Rules of Criminal
Procedure] applies not only to the failure to make a pretrial motion, but also to
(continued...)
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Gambino-Zavala waived below his claim the contraband was not in plain
view. In response to Gambino-Zavala’s suppression motion, the government
argued the police found the shotgun and ammunition in plain view. Gambino-
Zavala did not contest this argument in his pleadings before the district court, but
instead asserted “the relevant facts in this case are essentially undisputed.” R.,
Vol. I, Doc. 23 at 1.
During the evidentiary hearing, Gambino-Zavala tangentially suggested the
government failed to produce sufficient evidence indicating the shotgun was in
plain view. The government responded, “[T]hat issue was not rebutted by the
defendant in my pleadings that were filed with the Court. I could reopen just with
that very brief testimony, but I thought it was undisputed that the weapon was in
plain view.” R., Vol. III at 36 (emphasis added).
Gambino-Zavala’s attorney did not contest the prosecutor’s statement, nor
did he insist that additional testimony be heard on this issue. By this action, he
affirmatively abandoned his challenge to the officers’ testimony about the
contraband and waived any claim on appeal. And even if we were to consider the
objection as forfeited, we see no error, plain or otherwise, given the record
2
(...continued)
the failure to include a particular argument in the motion.” United States v.
Barajas-Chavez, 358 F.3d 1263, 1266 (10th Cir. 2004) (internal quotation marks
omitted). To avoid waiving an argument, the defendant must make “sufficiently
definite, specific, detailed and nonconjectural factual allegations” supporting the
suppression claim. Id.
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strongly suggests the gun was in plain view. We therefore conclude the scope and
manner of the search was reasonable.
Because the government satisfied both prongs of the Najar test, we agree
with the district court’s finding of exigent circumstances. The court therefore
properly denied Gambino-Zavala’s suppression motion because the warrantless
search of the apartment was justified.
B. Sentencing
Gambino-Zavala also argues his sentence should be vacated because it is
procedurally and substantively unreasonable. We disagree.
We review a federal criminal sentence for reasonableness, giving deference
to the district court under “the familiar abuse-of-discretion standard.” Gall v.
United States, 128 S. Ct. 586, 594 (2007); see also United States v. Smart, 518
F.3d 800, 805 (10th Cir. 2008) (noting that it is now “well settled that we review a
district court's sentencing decisions solely for abuse of discretion”).
Reasonableness “has both procedural and substantive components.” United States
v. Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007). We “must first ensure that the
district court committed no significant procedural error” and then “consider the
substantive reasonableness of the sentence.” Gall, 128 S. Ct. at 597.
1. Procedural Reasonableness
“When considering the calculation of a Guidelines sentencing range, [w]e
review legal questions de novo and we review any factual findings for clear error,
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giving due deference to the district court’s application of the [G]uidelines to the
facts.” United States v. Tom, 494 F.3d 1277, 1281 (10th Cir. 2007) (internal
quotation marks omitted).
Gambino argues his sentence is procedurally unreasonable because the
district court improperly prejudged the facts of his case, in violation of the Due
Process Clause of the Fifth Amendment. He also argues insufficient evidence
exists to support certain enhancements applied by the district court. The
government, in turn, argues the sentence should be vacated because the district
court applied a presumption of reasonableness in denying the defendant’s
requested variance.
a. Bias
Gambino-Zavala argues the sentencing judge was biased based on comments
the judge made in court. To demonstrate a violation of due process because of
judicial bias, a defendant must show either actual bias or an appearance of bias.
Phelps v. Hamilton, 122 F.3d 1309, 1323 (10th Cir. 1997). The judge’s actual
state of mind, however, is not at issue. “The standard is purely objective, and
[t]he inquiry is limited to outward manifestations and reasonable inferences drawn
therefrom.” United States v. Nickl, 427 F.3d 1286, 1298 (10th Cir. 2005) (internal
quotation marks omitted).
Ordinarily, a judge’s comments “motivated by events originating within the
context of judicial proceedings . . . are insulated from charges of bias.” Id.
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“Although a judge’s remarks during the course of a trial may be critical,
disapproving, or hostile to a party, usually they will not support a partiality
charge.” Id. at 1298 (internal quotation marks omitted). Therefore, when a
defendant seeks to prove a violation of due process based on a judge’s comments,
the defendant must meet a high burden: the “judge’s actions or comments [must]
reveal such a high degree of favoritism or antagonism as to make fair judgment
impossible.” Id.
Gambino-Zavala argues the sentencing judge was biased because he twice
told the prosecutor he wanted more testimony before he could give the defendant
the enhancements he wanted to give him. These stray comments do not amount to
actual bias. And any appearance of bias is countered by the context of the
proceeding. The judge carefully considered the evidence (finding the issues a
“close[] question”), based his findings on the facts presented, and issued a
thoughtful ruling. R., Vol. V at 25. When Gambino-Zavala’s counsel expressed
concern that the district court had prejudged the facts at issue in the sentencing
hearing, the judge responded “No I haven’t. As a matter of fact, I haven’t given
this case a thought since the time until I read it now.” Id. at 4.
Because the judge’s comments did not reveal a degree of antagonism
making fair judgment impossible, the sentence should not be vacated on this basis.
b. Sufficiency of Evidence
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Gambino-Zavala also argues his sentence was procedurally unreasonable
because the record contains insufficient evidence to support enhancements under
§§ 2K2.1(b)(1)(A), (b)(4), and (b)(6) of the United States Sentencing Guidelines
(USSG). The government has the burden of proving by a preponderance of the
evidence any findings necessary to support a sentence enhancement. United States
v. Tindall, 519 F.3d 1057, 1063 (10th Cir. 2008).
USSG § 2K2.1(b)(1)(A)
Under § 2K2.1(b)(1)(A), a defendant’s offense level should be increased by
two levels if “the offense involved between three and seven firearms.” The district
court applied this enhancement because it concluded Gambino-Zavala possessed
the shotgun, AK-47, and .38 revolver discovered in the apartment.
Gambino-Zavala admitted in his plea agreement that he possessed the
shotgun. Therefore, we only need to evaluate whether the district court erred in
concluding he also constructively possessed the two other weapons. To establish
possession, the government must show the defendant actually or constructively
possessed the guns. See, e.g., United States v. Houston, 364 F.3d 243, 248 (5th
Cir. 2004); cf. United States v. Ledford, 443 F.3d 702, 713–14 (10th Cir. 2005)
(“‘Possession’ under [a federal statute prohibiting felons from possessing firearms]
may be either actual or constructive.”).
To prove a joint occupant constructively possessed contraband, the
government merely must show the defendant had knowledge of and access to the
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contraband. Ledford, 443 F.3d at 714. “It is not necessary to show that the
defendant intended to exercise . . . dominion or control, nor is it necessary to show
that the defendant actually owned the weapons—mere possession is enough.” Id.
Gambino-Zavala argues he did not have access to or knowledge of the .38
revolver or the AK-47 because he did not live at the apartment; the apartment
belonged to his brother and a friend. He insists he was at the apartment the night
in question because he was waiting for a ride home from his brother. We conclude
the district court did not err in rejecting Gambino-Zavala’s argument.
First, sufficient evidence exists to support the district court’s conclusion that
Gambino-Zavala had access to all areas of the apartment. Gambino-Zavala co-
signed the lease for the apartment, and the lease characterized him as a “resident”
of the unit. Furthermore, Gambino-Zavala admitted to possessing the shotgun
found inside the bedroom closet of the one-bedroom apartment. A bedroom closet
is typically a private area inside a renter’s unit—a casual guest waiting for a ride
typically would not have access to this closet. The combination of these facts
supports the inference that Gambino-Zavala was a joint occupant who had access
to all areas of the residence.
Second, the record supports the conclusion that Gambino-Zavala had
knowledge of the two other weapons. Ammunition of various calibers were
located in plain view in the same bedroom closet that contained Gambino-Zavala’s
shotgun. This ammunition put him on notice about the likely presence of
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additional firearms in the premises. Furthermore, the .38 revolver and AK-47
were found in places of which a joint occupant of the apartment would likely be
aware. The AK-47 was located under the bed in the same bedroom Gambino-
Zavala kept his shotgun. The .38 revolver was kept in the living room closet.
Gambino-Zavala nonetheless suggests he could not have possessed the
weapons because his fingerprints were not recovered from either of the guns. As
explained above, however, the government did not need to prove the defendant
exercised control over the weapons. Furthermore, the mere fact that the police
could not recover his fingerprints does not mean he never handled these firearms.
As Special Agent James Kraus testified, investigators were unable to recover any
identifiable fingerprints from the weapons because so many people had touched
them.
The combination of these facts, therefore, creates a reasonable inference that
Gambino-Zavala constructively possessed all three of the firearms. The district
court therefore did not abuse its discretion in applying the § 2K2.1(b)(1)(A)
enhancement.
USSG § 2K2.1(b)(4)
Under § 2K2.1(b)(4), a defendant’s offense level should be increased by two
levels if “any firearm in [§ 2K2.1(b)(1)(A)] was stolen.” At sentencing, the
government produced a police report indicating the .38 and AK-47 were stolen.
Gambino-Zavala did not challenge this report on appeal. We therefore conclude
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the government produced sufficient evidence supporting the § 2K2.1(b)(4)
enhancement.
USSG § 2K2.1(b)(6)
Under § 2K2.1(b)(6), a defendant’s offense level should be increased by
four if “the defendant used or possessed any firearm or ammunition in connection
with another felony offense.” We conclude the government produced sufficient
evidence supporting this enhancement.
The district court reasonably held that Gambino-Zavala committed another
felony—illegal possession with the intent to distribute 253.4 grams of heroin
found in the apartment. 3 First, sufficient evidence exists showing that Gambino-
Zavala had constructive possession of these drugs. As explained above, the record
supports the conclusion that Gambino-Zavala had access to all areas of the
apartment.
3
Although Gambino-Zavala has not been convicted of this offense, his
sentence may still be enhanced on the basis of this conduct. See United States v.
Allen, 488 F.3d 1244, 1254–55 (10th Cir. 2007). The defendant’s offense level,
is calculated by accounting for “all acts and omissions committed . . .
by the defendant . . . that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the course
of attempting to avoid detection or responsibility for that offense.”
U.S. Sentencing Guidelines Manual § 1B1.3(a)(1) (2004). Known as
relevant conduct, this comprises more, often much more, than the
offense of conviction itself, and may include uncharged and even
acquitted conduct.
Id.
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Second, sufficient evidence supports the inference that Gambino-Zavala had
knowledge of the heroin. The amount of drugs the police recovered was
substantial and the drugs were located in an area of the apartment that a joint
occupant would regularly access—a kitchen cabinet.
Third, the evidence supports the conclusion that Gambino-Zavala intended
to distribute the drugs. The heroin was contained in multiple small containers
amenable for customer sales. The large quantity further supports an inference of
distributable amounts; an officer testified a user typically possesses less than one
gram of the drug for his personal consumption.
Finally, the court reasonably concluded a sufficient nexus exists between the
shotgun and the drugs to justify the enhancement. “[W]e have generally held that
if the weapon facilitated or had the potential to facilitate the underlying felony,
then enhancement . . . is appropriate.” United States v. Brown, 314 F.3d 1216,
1222 (10th Cir. 2003). Here, the shotgun had the potential to facilitate illegal drug
transactions by helping Gambino-Zavala protect himself and his drug supply. The
district court therefore did not err in applying the § 2K2.1(b)(6) enhancement.
Because the district court did not err in relying on §§ 2K2.1(b)(1)(A),
(b)(4), and (b)(6) to enhance Gambino-Zavala’s sentence, we conclude his
sentence should not be vacated on this basis.
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c. Presumption of Reasonableness
The parties oddly part company on whether the sentence imposed was
procedurally reasonable. The government takes the position that the district court
erroneously applied a presumption of reasonableness when denying Gambino-
Zavala’s request for a variance. It points to the district court’s Memorandum
Opinion and Order, where it explained it “considered all of Defendant’s arguments
and nothing therein indicates that the presumptively reasonable guideline range, as
calculated in the PSR, is anything other than an accurate reflection of all the
factors the Court is required to consider[].” R., Vol. I, Doc. 44 at 11 (emphasis
added). But Gambino-Zavala argued in his briefs that this error was harmless, and
even reiterated this view at oral argument.
We agree the district court errs when its applies a presumption of
reasonableness to a Guidelines sentence when considering the defendant’s request
for a variance. See United States v. Arrevalo-Olvera, 495 F.3d 1211, 1212–13
(10th Cir. 2007) (citing United States v. Begay, 470 F.3d 964 (10th Cir. 2006),
rev’d on other grounds, 128 S. Ct. 1581 (2008)). When a district court commits a
Begay error, we reverse the sentence unless the error is harmless. Id. at 1213. An
error is harmless if the preponderance of the evidence demonstrates that the
court’s error did not affect its selection of the sentence imposed. Id.
Harmless error is usually established by showing the court applied a
sentence above the low end of the Guidelines range. Compare id. at 1213–14
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(holding Begay error was harmless because the court applied a sentence above the
low end of the Guidelines range) with Begay, 470 F.3d at 976–77 (holding error
was not harmless because the district court imposed a sentence at the bottom of the
Guidelines range). Under these circumstances, the error is harmless because “the
district court clearly recognized that it had discretion to impose any sentence
within the applicable range and chose a sentence above the minimum. . . . As a
result, we have no reason to think that the district court would impose a different
sentence on remand.” Arrevalo-Olvera, 495 F.3d at 1213–14 (internal quotation
marks omitted).
Here, the district court erroneously articulated a presumption of
reasonableness in its sentencing memorandum and imposed a sentence at the
bottom of the Guidelines range. We nonetheless conclude a remand for
resentencing is unnecessary for two reasons. First, Gambino-Zavala conceded the
error was harmless.
Second, the record of the sentencing proceedings shows that the district
court understood its discretion to grant a variance below the Guidelines range. At
the hearing, Gambino-Zavala’s attorney notified the judge “that on Page 11 [of the
court’s memorandum opinion and order] the Court indicates that it considers the
guideline range presumptively reasonable. I think under Rita, that presumption
applies only to cases that are on appeal, and I think the Court retains discretion,
despite that appellate opinion.” R., Vol. VI at 3. The judge responded “I know
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that.” Id. Gambino-Zavala’s attorney then stated “Okay. I just want to make sure
the record reflects that.” No additional clarification was sought either by the
defendant or the prosecution.
Based on this exchange, we are convinced the district court recognized it
had full discretion to grant Gambino-Zavala a variance, but nonetheless chose not
to. We therefore conclude the judge’s erroneous use of the “presumption of
reasonableness” language did not affect the sentence the judge imposed.
Because we conclude the error, if any, is harmless, we find Gambino-
Zavala’s sentence to be procedurally reasonable.
2. Substantive Reasonableness
On appeal, we accord a sentence within the Guidelines range a presumption
of reasonableness. United States v. Thompson, 518 F.3d 832, 869 (10th Cir.
2008), petition for cert. filed, 76 U.S.L.W. 3655 (Jun. 5, 2008) (No. 07-11311).
Gambino-Zavala attempts to rebut this presumption by arguing his sentence is
substantively unreasonable because his “background, his lack of criminal activity,
and his educational and employment history could all justify a reduced sentence.”
Aplt. Br. 40.
The district court has a wide range of discretion in striking a balance among
the 18 U.S.C. § 3553(a) factors. See Smart, 518 F.3d at 808. The record indicates
the district court reviewed the evidence presented by Gambino-Zavala, but decided
it did not justify a variance. Due to the broad discretion courts are granted to
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consider § 3553(a) factors, we conclude the district court’s decision does not
constitute an abuse of discretion.
III. Conclusion
In sum, the district court properly denied Gambino-Zavala’s suppression
motion because the exigent circumstances exception applied to the officers’
warrantless search of the apartment. Furthermore, Gambino-Zavala’s sentence
was both procedurally and substantively reasonable. For these reasons, we
AFFIRM his conviction and sentence.
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United States v. Gambino-Zavala
Court: Court of Appeals for the Tenth Circuit
Date filed: 2008-08-25
Citations: 539 F.3d 1221
Copy CitationsCombined Opinion