United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 4, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
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No. 05-10063
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFF SIBLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
Jeff Sibley pled guilty to possession of a controlled
substance with intent to distribute in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A), and § 846, and possession of a firearm during
and in relation to a drug trafficking crime, in violation of 18
U.S.C. § 924(c). Sibley claims that the district court erred by
denying his motion to suppress and by relying on his post-arrest
statements to determine drug quantity. Sibley also contends that
his sentence violates the Sixth Amendment because it was based in
part on facts that were neither admitted by him nor found beyond a
reasonable doubt by a jury. Finally, Sibley argues that the
district court erred by sentencing him pursuant to a mandatory
application of the Sentencing Guidelines. For the following
reasons, we AFFIRM the district court’s ruling on Sibley’s motions
to suppress, VACATE his sentence and REMAND for resentencing.
I. BACKGROUND
On March 11, 2004, Drug Enforcement Administration (“DEA”)
agents secured a search warrant for apartment 1425 of the
“Providence in the Park Apartment Homes” in Arlington, Texas, where
they believed Sibley was dealing marihuana, ecstasy, cocaine, and
methamphetamine. After executing the search warrant and finding
marihuana, cocaine, methamphetamine, and five guns in the
apartment, the officers arrested Sibley and gave him his Miranda
warnings. Sibley stated that all of the drugs and guns belonged to
him, and he subsequently was charged with possession of a
controlled substance with intent to distribute, conspiracy to
possess a controlled substance with intent to distribute, using a
drug-involved premises, and possession of a firearm in furtherance
of a drug trafficking crime.
Sibley filed a motion to suppress all evidence obtained in the
search of the Arlington apartment and all statements that he made
following his arrest. He argued that the search was without
probable cause because the warrant was based on unreliable
information and the affidavit supporting the warrant failed to
2
include details concerning the source of the information. The
district court denied Sibley’s suppression motion without
conducting an evidentiary hearing because it found that Sibley
failed to show that the good-faith exception to the exclusionary
rule did not apply.
Sibley sought reconsideration of his suppression motion and
requested a hearing regarding the suppression issues. He then pled
guilty to possession of a controlled substance with intent to
distribute and possession of a firearm during and in relation to a
drug trafficking crime. His plea agreement does not contain an
appeal waiver, but it contains language in which Sibley consents to
being sentenced under the Sentencing Guidelines. Additionally,
Sibley agreed that the facts determining his sentence would be
found by the sentencing court by a preponderance of the evidence
and that the sentencing court could consider any reliable evidence
in its sentencing determination.
At Sibley’s re-arraignment, the district court ordered the
parties to excise a sentence from the plea agreement that provided:
“Defendant also agrees to waive all constitutional challenges to
the validity of the sentencing guidelines.” It also noted that
Sibley’s motion for reconsideration of its suppression ruling was
moot in light of Sibley’s plea agreement. However, Sibley reserved
the right to have an appellate court review the denial of his
suppression motion.
The presentence report (“PSR”) held Sibley accountable for the
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quantities of methamphetamine, cocaine, and marihuana that were
seized at his home, as well as the quantities of drugs he confessed
to purchasing from a codefendant and that a codefendant reported
having purchased from Sibley. Sibley objected, arguing, inter
alia, that the PSR’s determination of drug quantity violated
Blakely v. Washington, 542 U.S. 296 (2004), because the calculation
was based on quantities not charged in his indictment, proven to a
jury beyond a reasonable doubt, or stipulated between himself and
the Government.
Sibley’s sentencing hearing took place on December 30, 2004,
prior to the issuance of United States v. Booker, 543 U.S. 220
(2005). At the hearing, the district court overruled Sibley’s
Blakely objection and his other objections, and adopted the facts
and conclusions set forth in the PSR. Upon hearing the
Government’s motion for a downward departure because of assistance
Sibley rendered to the Government, the district court granted
Sibley “a rather significant downward departure.” The district
court imposed a term of 175 months for the controlled substance
offense and a consecutive term of 60 months for the weapons
offense.1 Sibley timely filed a notice of appeal.
1
The statutory term of imprisonment for the controlled
substance offense was not less than ten years or more than life.
The guidelines range of imprisonment for that offense was 262 to
327 months. The statutory term of imprisonment for the weapons
offense was not less than five years or more than life. The
guidelines range of imprisonment for that offense was five years.
The prison term for the weapons offense was to run consecutively
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II. DISCUSSION
A. Suppression of Evidence
Sibley argues that the district court erred in denying his
motion to suppress the evidence seized in the search of the
Arlington apartment and the statements he made following his
arrest. He contends that the officers could not have relied on the
search warrant in good faith because the affidavit submitted in
support of the warrant was misleading and deliberately or
recklessly omitted material information that would have negated
probable cause; thus, Sibley claims the evidence should be
suppressed under the exclusionary rule.2 Additionally, he claims
that the district court erred by denying his suppression motion
without first conducting an evidentiary hearing.
In reviewing a district court’s denial of a motion to
suppress, this Court reviews factual findings for clear error and
the trial court’s conclusions regarding the constitutionality of
law enforcement action and the sufficiency of a warrant de novo.
United States v. Cherna, 184 F.3d 403, 406 (5th Cir. 1999). “The
district court’s determination of the reasonableness of a law
with any other prison term.
2
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 properly invoked, the rule allows the suppression
of the fruits of a search that violates the Fourth Amendment. Id.
at 905.
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enforcement officer’s reliance upon a warrant issued by a
magistrate-for purposes of determining the applicability of the
good-faith exception to the exclusionary rule-is also reviewed de
novo.” Id. at 406-07.
Review of the denial of a motion to suppress evidence
discovered pursuant to a search warrant is a two-step process.
Cherna, 184 F.3d at 407. First, we decide whether the good-faith
exception to the exclusionary rule applies.3 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 affirm the district court’s denial of
the motion to suppress. Cherna, 184 F.3d at 407. The good-faith
exception does not apply when: (1) the magistrate issuing the
warrant was misled by information in an affidavit that the affiant
knew or should have known was false; (2) the issuing magistrate
abandoned the judicial role; (3) the warrant was based on an
affidavit so lacking in indicia of probable cause as to render
3
The Fourth Amendment does not require the suppression of
evidence obtained through a search warrant even if it is not
supported by probable cause if the agent “acting with objective
good faith has obtained a search warrant from a judge or
magistrate and acted within its scope.” Leon, 468 U.S. at
920(footnote omitted).
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belief in its existence entirely unreasonable; or (4) the warrant
was so facially deficient that the executing officers could not
have reasonably presumed it to be valid. Id. at 407-08. If the
good-faith exception does not apply, we proceed to the second step,
ensuring that the magistrate issuing the warrant had a substantial
basis for concluding that probable cause existed. Id. at 407.
Sibley’s primary complaint is that the affidavit should have
stated that the agent who observed Patrick Wright putting trash
bags containing marihuana into the apartment complex’s dumpster did
not actually observe Wright leave apartment 1425. He argues that
the only evidence connecting the apartment to the crime is the
marihuana-laden trash bags. He contends that because there is no
link between the trash bags and the apartment there was no probable
cause to search the apartment.
The search was conducted at apartment 1425 of the Providence
in the Park Apartment Homes in Arlington, Texas, pursuant to a
warrant issued by a Texas state court judge and supported by the
affidavit of Tarrant County District Attorney Investigator Keith
Brown. Brown’s affidavit provides that on March 11, 2004, DEA
investigators received information that Sibley and Wright lived at
apartment 1425 and were dealing marihuana, ecstasy, cocaine, and
methamphetamine. The affidavit provides, inter alia, that an
agent observed Wright taking garbage bags to the complex’s
dumpster. Brown and another agent searched the bags and found
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marihuana. Brown further attested that the apartment manager had
previously contacted the Arlington Police Department and filed a
report indicating that the complex’s maintenance man, on a prior
occasion, had detected marihuana in garbage that was dumped in a
remote location by the occupants of apartment 1425. Also,
apartment management reported to Brown that the occupants of the
apartment had installed surveillance cameras at the apartment.
Sibley’s argument falls short of establishing that the
magistrate issuing the warrant was misled by information in the
affidavit that the affiant knew or should have known was false or
that the warrant was based on an affidavit so lacking in indicia of
probable cause as to render belief in its existence entirely
unreasonable. The affidavit is not misleading because it does not
suggest that an agent actually witnessed Wright leave the apartment
with the garbage bags. Moreover, there was sufficient information
in the affidavit such that it was not unreasonable to believe there
was probable cause to search the apartment. Information in the
affidavit connects Sibley to the apartment, Wright to the complex
and to the apartment, Wright to possession of marihuana; and the
apartment and its occupants to prior drug activity.
Given the above, that the good-faith exception is applicable,
we affirm the district court’s denial of Sibley’s motion to
suppress, and need not proceed to the second step of the analysis.
See Cherna, 184 F.3d at 407.
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Additionally, the district court did not err by denying
Sibley’s suppression motion without conducting an evidentiary
hearing. In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme
Court held that (1) if a defendant makes a substantial preliminary
showing that a false statement was included by the affiant in the
warrant affidavit either knowingly and intentionally, or with
reckless disregard for the truth, and (2) if the allegedly false
statement is necessary to a finding of probable cause, the Fourth
Amendment requires that the district court hold a hearing. Id. at
155-56; United States v. Brown, 298 F.3d 392, 395 (5th Cir. 2002).
Because, as previously discussed, the affidavit is not misleading,
and there is enough information in the affidavit to link the
apartment to drug activity, the district court did not err by
denying Sibley’s suppression motion without conducting an
evidentiary hearing.
B. Sentencing Errors
Sibley argues that the district court erred by sentencing him
under a mandatory Sentencing Guidelines scheme. He further
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 reasonable doubt by a jury. Thus, Sibley contends that
the district court committed both Fanfan and Booker error. See
United States v. Villegas, 404 F.3d 355, 364 (5th Cir.
2005)(discussing the two types of error addressed in Booker).
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Lastly, Sibley asserts that the district court erred by relying on
his post-arrest statements to determine drug quantity.
The Government argues that Sibley knowingly and voluntarily
waived any argument that the district court erred in calculating
his sentence. Alternatively, the Government contends that any
potential error was harmless because the record shows no reasonable
probability that Sibley would have received a lesser sentence under
an advisory guidelines system and because the district court
recognized its right to depart downward from the Guidelines.
Sibley’s plea agreement provides:
Defendant agrees to have his sentence
determined under the United States
Sentencing Guidelines. He waives any
right to have facts that determine his
sentence under the guidelines alleged in
an indictment and found by a jury beyond
a reasonable doubt. Defendant agrees
that facts that determine the sentence
will be found by the court at sentencing
by a preponderance of the evidence and
that the court may consider any reliable
evidence, including hearsay.
Recently, in United States v. Reyes-Celestino, -F.3d-, No. 05-
40368, 2006 WL 664178 (5th Cir. Mar. 17, 2006), a panel of this
Court analyzed whether a defendant may waive Fanfan error. The
plea agreement in Reyes-Celestino provided:
The defendant, by entering this plea,
also waives any right to have facts that
the law makes essential to the punishment
either (1) charged in the indictment or
(2) proven to a jury or (3) proved beyond
a reasonable doubt. The defendant
explicitly consents to be sentenced
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pursuant to the applicable Sentencing
Guidelines. The defendant explicitly
acknowledges that his plea to the charged
offense(s) authorizes the court to impose
any sentence authorized by the Sentencing
Guidelines, up to and including the
statutory maximum under the relevant
statute(s).
Id. at *1. There, we determined that because the plea agreement
did not specify whether the defendant consented to a mandatory or
advisory application of the Guidelines, we could not say that the
defendant unambiguously agreed to a mandatory application of the
Guidelines. Id. Additionally, although the defendant agreed to be
sentenced under the Sentencing Guidelines, it was important that he
had not explicitly waived his right to challenge the
constitutionality of the Guidelines on appeal. Id. We expressly
held that a defendant who agreed “to be sentenced pursuant to the
applicable Sentencing Guidelines” is not precluded from raising on
appeal an alleged Fanfan error.
Recognizing that “we must construe all ambiguities in the plea
agreement against the government,” United States v. Martinez, 263
F.3d 436, 438 (5th Cir. 2001), in light of the similarity in
language between Sibley’s plea agreement and the agreement in
Reyes-Celestino, we cannot say that Sibley unambiguously agreed to
a mandatory application of the Guidelines. Additionally, the
parties excised a sentence from the plea agreement that would have
vitiated Sibley’s right to challenge the constitutionality of the
Guidelines. Hence, Sibley did not waive his right to review the
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district court’s error.
Because Sibley properly preserved his claim below when he
objected to his sentence under Blakely, we apply the harmless
beyond a reasonable doubt standard. See United States v. Walters,
418 F.3d 461, 463-64 (5th Cir.2005). Under the harmless beyond a
reasonable doubt standard, the Government must prove beyond a
reasonable doubt that the outcome of the district court proceedings
was not affected by the imposition of the mandatory Guidelines.
United States v. Mendoza-Blanco, 440 F.3d 264, 266 (5th Cir. 2006).
The Government’s burden is “arduous.” United States v. Garza, 429
F.3d 165, 170 (5th Cir. 2005).
The Government’s argument that the record shows no reasonable
probability that Sibley would have received a lesser sentence under
an advisory guidelines system fails to satisfy this burden. The
district court’s grant of a downward departure “does not
necessarily mean that the mandatory nature of the Guidelines had no
effect on the sentencing decision.” See United States v.
Hernandez-Franco, No. 05-40178, 2006 WL 391910, *1 (5th Cir.
2006)(unpublished). Thus, “the grant of a downward departure is
insufficient, standing alone, to satisfy the Government’s burden of
demonstrating harmless error.” Id. As the Government has not
shown that the sentencing judge would have imposed the same
sentence under an advisory sentencing scheme, see United States v.
Pineiro, 410 F.3d 282, 285-86 (5th Cir. 2005), we vacate Sibley’s
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sentence and remand for resentencing. Because we remand this case
for resentencing, we need not address Sibley’s other arguments
concerning sentencing errors. See United States v. Akpan, 407 F.3d
360, 377 n.62 (5th Cir. 2005)(“Because we vacate and remand [the
defendant’s] entire sentence, we need not and do not reach his
other arguments of sentencing errors; rather, we leave to the
discretion of the district court, whether in its discretion, it
will impose the identical sentence with the identical departures or
enhancements, or both.”)
III. CONCLUSION
For the following reasons, we AFFIRM the district court’s
ruling on Sibley’s motions to suppress, VACATE his sentence and
REMAND for resentencing.
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United States v. Sibley
Court: Court of Appeals for the Fifth Circuit
Date filed: 2006-05-05
Citations: 448 F.3d 754
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