United States v. Villanueva

FILED
United States Court of Appeals
Tenth Circuit

May 2, 2016
Elisabeth A. Shumaker
Clerk of Court
PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 14-6081

FLORENTINO VILLANUEVA, JR.,

Defendant - Appellant.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:13-CR-00201-HE-1)

David Autry of Oklahoma City, Oklahoma, for Defendant-Appellant.

Mark R. Stoneman, Special Assistant U.S. Attorney (Sanford C. Coats, United
States Attorney, with him on the brief), of Lawton, Oklahoma, for Plaintiff-
Appellee.

Before LUCERO, SEYMOUR, and GORSUCH, Circuit Judges.

SEYMOUR, Circuit Judge.
 Following the execution of a search warrant, Florentino Villanueva, Jr.,

was charged with one count of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). The district court denied his motion to

suppress the firearm seized during the search. Mr. Villanueva entered a

conditional plea of guilty pursuant to a written plea agreement, reserving the right

to appeal the denial of his motion to suppress and any sentencing enhancement

the district court might impose under the Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e)(1). The district court overruled Mr. Villanueva’s objections at

sentencing, classified him as an armed career criminal, and sentenced him to 210

months imprisonment. We affirm.

FACTS AND PROCEDURAL HISTORY

A. The Affidavit for Search Warrant

Based on information obtained during an investigation into on-going

methamphetamine trafficking, Agent Seth Thompson of the Oklahoma Bureau of

Narcotics and Dangerous Drugs (OBNDD) applied for and received a no-knock

warrant to search a residence in Lawton, Oklahoma. Agent Thompson asserted

there was probable cause to believe that Mr. Villanueva used the residence to run

a suspected methamphetamine drug conspiracy. The residence “had belonged to

Mr. Villaneuva’s deceased grandfather and was left to his two sons, one of whom

-2-
was Mr. Villaneuva’s stepfather.” 1 Aplt. Br. at 9. After laying out his training

and experience as a narcotics agent and explaining the common practices of drug

distributors and traffickers, Agent Thompson set forth the following information

about Mr. Villanueva’s alleged drug trafficking conspiracy obtained through

wiretaps and surveillance of Mr. Villanueva and of several of his alleged

co-conspirators 2 and others close to him.

On September 11, 2012, OBNDD agents intercepted cell phone

communications via wiretaps suggesting Mr. Villanueva issued orders to co-

conspirators as the leader of a drug hierarchy in which other individuals carried

out his orders. Cell phone communications intercepted on September 20, 2012,

showed co-conspirators Hinson and Martinez discussing their belief that Hinson

was under police surveillance and that Mr. Villanueva, referred to in this

conversation by one of his aliases, “G-B,” wanted Hinson to stop the alleged drug

activity and possibly no longer show up at All-Star Automotive, an auto repair

1
As Agent Thompson noted in the probable cause affidavit, the house is
listed as formerly owned by Thayer Eugene Bizzell, now deceased, survived by
two sons, one of whom is Charles Bizzell, married to Mr. Villanueva’s mother,
Mary Bizzell. Comanche County Clerk’s records show the home was distributed
in a probate case to Thayer’s two sons, Michael and Charles Bizzell.
2
Agent Thompson gathered information about numerous co-conspirators
but three specific ones – Frederick Martinez, Jimmy Hinson, and Mr.
Villanueva’s brother, David Villanueva – most frequently appear in the affidavit
in connection with Mr. Villanueva. The affidavit lists many other individuals
suspected of conspiracy to distribute drugs, but only information related to Mr.
Villanueva’s conviction is relevant here.

-3-
shop co-owned and operated by Mr. Villanueva. The co-conspirators also

discussed how to reassign Hinson’s customer base to new locations for further

drug sales, and how to get money from drug sales to Mr. Villanueva because

Hinson owed “ten-fifty,” or $1,050.00, to Mr. Villanueva. Rec., vol. I at 139.

Additionally, on September 21, 2012, during the same surveillance session,

Hinson turned down a deal to sell forty dollars worth of methamphetamine,

stating that he had been “cut off,” allegedly by Mr. Villanueva, and that “the

police are all over me.” Id. at 139.

On September, 24, 2012, co-conspirators discussed whether Mr.

Villanueva, referred to in this conversation as the “big fella,” 3 had given Hinson

permission to resume selling methamphetamine. On October 9, 2012, Mr.

Villanueva had a telephone conversation with Martinez in which they determined

Martinez owed him “thirty three,” or $3,300.00, allegedly for methamphetamine.

Id. at 141. Later that night, Mr. Villanueva called Martinez and instructed him to

prepare two bags of meth – one with 14 grams and the other with 4 grams – to be

ready by around 9:30 p.m. He also told Martinez that he had “three-forty for

[him] to pick up from Satan,” indicating that Mr. Villanueva had $340.00 worth

of methamphetamine from Satan, referred to in the affidavit as co-conspirator

3
The affidavit noted that “big fella” was a reference to Mr. Villanueva’s
physical appearance as well as one of his aliases, “Gordo,” which according to the
affidavit “is the Spanish word for fat.” Rec., vol. at 50, 140.

-4-
Seth Speed. 4 Id.

Roughly thirty minutes later, Mr. Villanueva called Martinez and told him

that the four-gram bag would be ready in an hour and a half, and the fourteen-

gram bag would be ready around 11:00 p.m. At around 11:15 p.m., Mr.

Villanueva called Martinez and told him to come over to his house and grab his

phone because he was having trouble staying awake and the woman would not be

able to pick up the drugs until 11:30 p.m. Martinez said he would be there

shortly, and nine minutes later he called Mr. Villanueva, stating: “I’m at the front

door.” Id. at 142. At this time, global position data (ping data) from Martinez’s

phone showed that he was located at Mr. Villaneuva’s stepfather’s residence, the

house subsequently searched.

A series of conversations outlined in the affidavit took place later that same

night between Mr. Villanueva and Martinez, in which Mr. Villanueva specifically

coordinated two drug sales over the phone by speaking to both Martinez and the

customers while giving Martinez instructions on how to distribute the

methamphetamine. During those cell phone calls, Mr. Villanueva instructed

Martinez to make two drug deals at a McDonald’s, one with a white trailblazer,

4
Agent Thompson noted in the affidavit that “this statement further
evidences the nature of this conversation when” considered in the context of a call
recorded by police occurring twenty-seven minutes after the call from Mr.
Villanueva to Martinez in which Speed told Martinez that he gave G-B “three
forty” and Martinez told Speed that he didn’t think G-B knew Martinez was
fronting methamphetamine to Speed.

-5-
and one with “a Mexican chick” described as “Flacco’s sister” who drove a “gray

Mazda 6.” Id. at 143. In a subsequent phone conversation, Mr. Martinez told Mr.

Villanueva, “Mission accomplished” and added, “She gave me some feria

(money). She said it was a rack. So we wrapped it up.” 5 Id. Mr. Villanueva

then told Martinez, “Hold on to it, and I’ll see you tomorrow.” Id.

On October 13, 2012, Martinez received a call from David Villanueva, Mr.

Villanueva’s brother, concerning the preparation of methamphetamine. David

told him that Mr. Villanueva, referred to as “Gordo” in this conversation, wanted

Martinez to “get on top of that chop suey you make,” and to “snatch up ‘Little C’

if you need to, at the shop, and y’all go chop.” Id. at 145. The affidavit points

out that “cutting,” “chopping,” and the phrase “get on top of that chop suey,” are

all slang terms used for preparing methamphetamine. Id. at 145-46. In a phone

conversation thirty-six minutes later, Mr. Villanueva asked Martinez if he had

talked to “Little C” yet, and Martinez said he hadn’t but he was going to “hit up

Little C, so we can go take care of that.” Id. According to phone wiretaps,

Martinez then called Little C, also known as Colten Payton, to ask if he was busy

because Martinez needed Little C to help him if he had time. Id. About an hour

after this call, Martinez spoke with his brother and asked him to come “cut the

5
The affidavit has a section listing key words allegedly used by the drug
trafficking conspiracy run by Mr. Villanueva, including “Fatia,” “Fierja,”
“Bread,” and “Rack,” which according to Agent Thompson all translate to
“Money.” Rec., vol. 1 at 81.

-6-
tree down” at their dad’s house, and then Martinez stated: “Yea, we got all them

little wild onions and shit that are growing down there, and I gotta pull them up,”

and “see if they’re any good.” Id. “[T]he word ‘onion’ is a term used in the drug

community to refer to one ounce of illegal drugs.” Id. at 146. That same night,

David Villanueva told Martinez on the phone that he and Mr. Villanueva, “G-B,”

were at “grandpa’s house,” 6 and that Mr. Villanueva might pass out. Martinez

said he would pick up David if he needed a ride. Although no further cell phone

communication took place between David Villanueva and Martinez that night,

ping cell phone data showed that Martinez’s phone was within five meters of

“grandpa’s house” in Lawton at 10:25 p.m.

On October 16, 2012, additional intercepted wiretap communications

clearly showed Martinez speaking to an unknown male about the fact that he

owed “G-B” “seventeen-fifty,” or $1,750.00, and Mr. Villanueva can be heard in

the background during the call telling Martinez to tell the unknown male where to

meet Martinez to give him the money for Mr. Villanueva.

Finally, throughout the month of January 2013, agents observed several

vehicles owned by individuals associated with Mr. Villanueva, including his wife

and girlfriend, parked at the residence in question. Agent Thompson also

6
Again, the reference to grandpa’s house connects Mr. Villanueva to the
residence eventually searched. The County records, see n.1, supra, confirmed the
statement made by David Villanueva telling Martinez that he and “G-B” were at
“grandpa’s house.” Rec., vol. 1 at 52.

-7-
observed Mr. Villanueva driving his wife’s vehicle during wiretaps and saw it

parked outside of his auto repair shop, All-Star Automotive. In summary, Agent

Thompson explained:

The approximately seventeen (17) days of telephone interception
conducted by OBNDD on Martinez’s two (2) telephones produced
collectively 646 calls/communications relevant to the offense under
investigation. These two (2) wiretaps, as well as a previous wiretap
involving the phone of one of Martinez’s sub-distributors, Jimmie
Hinson (which produced 1,735 calls/communications relevant to the
offense under investigation), identified in excess of thirty (30)
individuals being involved with Mr. Villanueva’s methamphetamine
distribution organization. The totality of this investigation has
confirmed that a conspiratorial network has existed for a number of
years, and this network has distributed methamphetamine in the
Comanche County area. As described herein, including attachments,
the residence . . . is used by Mr. Villanueva as one of his residences.
As previously stated, drug distributors often use their residences to
store document and/or paraphernalia equipment evidence indicative
of their involvement in the illegal drug trade.

Rec., vol. 1 at 55.

B. The Search Warrant

On January 30, 2013, Oklahoma state court Judge Keith Byron Aycock

issued a no-knock search warrant for “grandpa’s house,” the residence owned by

Mr. Villaneuva’s stepfather. The warrant authorized the search for “books,

records, documents, contraband and paraphernalia evidencing the business of

illegal drug distribution and laundering profits from this enterprise.” 7 Id. at 201.

7
Attachment B set forth an extensive list of documents to be searched for,
including bank records, cash receipts, telephones records, emails, stored
(continued...)

-8-
Agents executed the search warrant at the residence in Lawton, Oklahoma, on

February 1, 2013, and seized, among other things, a loaded Springfield Model XD

.40 caliber firearm in the master bedroom.

C. Court Proceedings

A federal grand jury indicted Mr. Villanueva on one count of being a felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Mr. Villanueva

filed a motion to suppress evidence seized during the search, contending that

Judge Aycock was not a neutral and detached magistrate when he issued the

search warrant; that the warrant was not supported by probable cause, did not

meet the particularity requirement, and was improperly executed; and that the

good faith exception did not preclude excluding the evidence. The district court

held a suppression hearing in which Mr. Villanueva called one witness, Clay

Hillis, who had represented Mr. Villanueva on four previous occasions and who

had also represented Mr. Villanueva’s son in a paternity case. Mr. Hillis testified

that the judge assigned to the paternity case was Judge Aycock. Mr. Hillis told

the opposing attorney in the paternity case that he intended to move to have Judge

Aycock recused because he was concerned the judge “had either prosecuted [Mr.

7
(...continued)
electronic communications between co-conspirators, investment records owned by
Mr. Villanueva or All-Star Automotive, as well as computer storage devices,
business and financial documents, cash, drug paraphernalia and other evidence
concerning the production, packaging, and distribution of any illegal narcotics.

-9-
Villanueva] directly himself, or that he was part of a district attorney’s office that

had prosecuted him.” 8 Rec., vol. 3 at 7. Instead, Mr. Hillis explained, both he

and opposing counsel jointly asked Judge Aycock to recuse and “he said he would

recuse.” Id. “It was a pretty easy deal,” Mr. Hillis added, but noted he wasn’t

“positive” if Judge Aycock set forth his reasons for disqualifying himself from

handling the case. Id.

On cross-examination, Mr. Hillis answered “no” when asked whether Judge

Aycock ever explicitly stated “that he was not able to act as a neutral detached

judge in the case in which [Mr. Hillis] represented [Mr. Villanueva’s] son?” Id.

at 10. He also acknowledged that Judge Aycock did not serve an active role in

the investigation in the present case, that he was not an agent for the Oklahoma

Bureau of Narcotics, that he did not actually search the house at issue, that to his

knowledge Judge Aycock was not biased in any way, and that he did not rubber

stamp the warrant. Id. Mr. Hillis agreed when questioned that Judge Aycock did

not act improperly in any way when he determined probable cause existed to issue

the search warrant.

Mr. Villanueva made an offer of proof that if he were allowed to testify,

[h]e would state consistent with what’s alleged in the motion
respecting whether or not Judge Aycock was a neutral and detached

8
Judge Aycock worked as an assistant district attorney for the Comanche
County district attorney’s office and had represented the state against Mr.
Villanueva when he pled guilty to distribution of marijuana in 1996.

-10-
 magistrate, that in a 2001 felony case in Comanche County in which
he was the defendant and was represented by an attorney named Ken
Sue Doerfl in Lawton, Judge Aycock refused to accept a plea
agreement and told Mr. Villanueva that he was tired of seeing him in
his Court. And when Mr. Villanueva said that sounds like a conflict
of interest, at some point later in the proceedings the case was
transferred from Judge Aycock to Judge McCall in Comanche
County.

Rec., vol. 3 at 12. Mr. Villanueva argued at the suppression hearing that at least

it appeared Judge Aycock “felt that he couldn’t even be fair and impartial” for

prosecuting Mr. Villanueva in a prior case, and that he could not be a neutral and

detached magistrate. Id. at 14.

The district court was not persuaded Mr. Villaneuva had established Judge

Aycock’s lack of neutrality. The court explained:

I base that on a couple of things. One is, I think there is no
suggestion from Mr. Hillis or anybody else that the judge somehow
handled the affidavit improperly or acted in some procedurally
improper way with respect to it. There is no suggestion that he
considered matters outside the affidavit unless there’s some inference
to be drawn from these earlier circumstances that counsel has
referred to. And it seems to me that those circumstances that have
been identified are not sufficient to suggest to me that there was a
reason to question the judge’s neutrality.

Id. at 15.

The court then determined that the affidavit for the warrant established

probable cause to search the residence at issue:

[T]here is substantial evidence that was submitted to the judge to
indicate that the defendant was involved in an ongoing course of
criminal conduct involving illegal drug dealing. The circumstances
were laid out in some detail showing the defendant’s presence at the

-11-
 particular residence on multiple occasions over an extended period. I
recognize that the particular residence that was searched here didn’t
belong to the defendant, but I think the evidence that was submitted
as to the family relationships and the defendant’s presence there on
multiple occasions, the multiple instances, in fact, it appeared to be
more or less continuous over a period of several days that the
defendant’s wife or girlfriend or other family members were there,
suggesting the use of that residence by him on a regular basis
notwithstanding the fact that he didn’t own it.
All of that, against the backdrop of the circumstances that are
indicated in the affidavit it seems to me are sufficient to make out a
substantial basis for the judgment that probable cause to search the
residence was present here.
I recognize that some of the evidence that was submitted, that
there is a potential staleness issue here where some of the instances
and evidence that was presented were at least two or three months
old. But I think the cases recognize that when you’re dealing with
what’s essentially an ongoing extended pattern of illegal activity, or
where there is evidence of that, that the staleness consideration
becomes somewhat less compelling than it would otherwise be. And
in any event, as I say, it, in my view, does not undercut the
conclusion that there was a substantial basis for the state judge’s
determination.

Rec., vol. 3 at 18-19.

The district court also addressed the good faith exception to application of

the exclusionary rule established in United States v. Leon, 468 U.S. 897 (1984),

noting that none of the situations where the good faith exception was inapplicable

were present. The court explained that nothing suggested “there was false

information presented to the judge” or any “improper conduct on the judge’s part

that would have been known to a police officer,” and that there was nothing in the

circumstances relating to the warrant that “would have caused a reasonable police

officer to have any reason to doubt the validity of it.” Id. at 20. The court

-12-
therefore concluded the good faith exception was an alternate basis for denying

the motion.

After the district court denied the motion to suppress, the government filed

a notice regarding the applicability of ACCA’s sentencing enhancement under 18

U.S.C. § 924(e)(1). Mr. Villanueva then waived his right to trial and entered a

conditional plea of guilty, reserving his right to appeal the district court’s order

denying his motion to suppress and any imposition of a sentencing enhancement

under ACCA.

At sentencing, Mr. Villanueva objected specifically to one of the three prior

convictions alleged in support of the ACCA enhancement, distribution of

marijuana, although he admitted that his objection to whether such distribution

was a serious drug offense under ACCA was made only “in the event [that] the

law were to change somehow in the future.” Rec., vol. 3 at 63. He also argued

that the ACCA enhancement violated the Sixth Amendment because the prior

predicate convictions used to enhance his sentence were not submitted to a jury

and proven beyond a reasonable doubt, but he admitted this was “a constitutional

objection based on a potential change in the law in the future.” Id. at 64.

The district court overruled all of Mr. Villanueva’s objections, adopted the

findings in the PSR, and determined the guideline range to be 180 to 210 months

in light of Mr. Villanueva’s designation as an armed career criminal. The court

sentenced Mr. Villanueva to 210 months imprisonment. This appeal followed.

-13-
 DISCUSSION

“‘In reviewing the district court’s denial of a motion to suppress, we review

the court’s factual findings for clear error and view the evidence in the light most

favorable to the government.’” United States v. Hunter, 663 F.3d 1136, 1141

(10th Cir. 2011) (quoting United States v. Worthon, 520 F.3d 1173, 1178 (10th

Cir. 2008)). “The credibility of witnesses, the weight to be given evidence, and

the reasonable inferences drawn from the evidence fall within the province of the

district court.” United States v. Campbell, 603 F.3d 1218, 1225 (10th Cir. 2010)

(quoting United States v McKissick, 204 F.3d 1282, 1296 (10th Cir. 2000)).

However, “[d]eterminations relating to the sufficiency of a search warrant and the

applicability of the good-faith exception are conclusions of law” that we review

de novo. United States v. Roach, 582 F.3d 1192, 1200 (10th Cir. 2009) (quoting

United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir. 2000)).

Mr. Villanueva challenges the validity of the warrant on multiple theories.

He argues (1) that the warrant was not issued by a neutral and detached

magistrate; (2) that the documents relied on for the search warrant failed to

establish probable cause because there was no showing of a nexus between the

items sought and the residence searched and the information relied on to establish

probable cause was stale; and (3) that the warrant authorized a general search.

Mr. Villanueva alternatively contends the Leon good faith exception to the

exclusionary rule does not apply because (1) “it was not issued by a neutral and

-14-
detached magistrate”; (2) “the warrant was so obviously based on speculation,

surmise, cramped interpretations and inferences” it was devoid of factual support;

and (3) the warrant was fatally deficient in failing to particularize the things to be

seized and in its execution. Aplt. Br. at 34-35.

A. Neutral and Detached Magistrate

Mr. Villanueva first contends the search warrant was not issued by a

neutral and detached magistrate, as shown by the fact that the issuing state court

judge had previously prosecuted Mr. Villanueva, had refused to accept Mr.

Villanueva’s negotiated plea in a prior case, and had recused himself in a

paternity case involving Mr. Villanueva’s son. Because Leon allows us to turn

directly to the good faith issue without first considering the validity of the

warrant, 468 U.S. at 924, we decline to address defendant’s argument on the

merits and turn instead to a consideration of the officers’ good faith.

The Leon good faith exception is normally applied in situations where a

warrant lacked probable cause or failed the Fourth Amendment’s particularity

requirement. See, e.g., Leon, 468 U.S. at 922 (creating good faith exception to

exclusionary rule for evidence obtained by officers acting in reasonable reliance

on search warrant later found to lack probable cause); Roach, 582 F.3d at 1203-05

(applying Leon good faith exception to save warrant that lacked probable cause);

Massachusetts v. Sheppard, 468 U.S. 981, 987-88 (1984) (extending Leon good

faith exception to save evidence obtained under warrant that did not particularly

-15-
describe items to be seized); United States v. Potts, 586 F.3d 823, 831-35 (10th

Cir. 2009) (electing to bypass question whether warrant met particularity

requirement because evidence admissible under Leon). This case calls for us to

apply Leon where the judge who issued the search warrant was arguably not

neutral and detached. 9 Although we are unaware of any court applying the good

faith exception in such circumstances, it is apparent from Leon itself that the good

faith exception is applicable in this situation.

First, Leon makes clear that “[p]enalizing the officer for the magistrate’s

error . . . cannot logically contribute to the deterrence of Fourth Amendment

violations.” 468 U.S. at 921. Just as an “officer cannot be expected to question

the magistrate’s probable-cause determination,” id., neither can he be expected to

question the magistrate’s neutrality when there is no outward appearance of any

impropriety. Mr. Villanueva does not set forth any evidence or argument that

Agent Thompson could have, or should have, reasonably known about any alleged

bias the issuing judge might have had against Mr. Villanueva. And certainly

nothing in the warrant itself could have placed a reasonable officer executing the

warrant on notice that the issuing judge was not neutral and detached.

Second, Leon states that the good faith exception in the context of whether

the issuing magistrate was neutral and detached is inapplicable only when the

9
We express no opinion as to whether Judge Aycock was neutral and
detached when he issued the warrant.

-16-
“issuing magistrate wholly abandon[s] his judicial role in the manner condemned

in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979).” 468 U.S. at 923. In Lo-Ji

Sales, the Court held a search warrant invalid because the town justice issued an

open-ended warrant to search an adult bookstore, which was believed to be

violating state obscenity laws, and accompanied the police officers to the store to

make probable cause determinations on the scene. 442 U.S. at 321-22. The Court

held that the town justice had “allowed himself to become a member, if not the

leader of a search party which was essentially a police operation.” Id. at 327.

Lo-Ji Sales thus stands for the proposition that a magistrate “wholly abandons his

role” when he aides law enforcement officers in their investigation of a crime.

Mr. Villanueva does not even argue that the state court judge who issued the

warrant in this case abandoned his judicial role. Accordingly, even assuming the

issuing magistrate was not neutral and detached and that he should have recused

himself from issuing the warrant, we reject Mr. Villanueva’s argument that the

Leon good faith exception does not apply to support the district court’s denial of

the motion to suppress.

B. Probable Cause Issues

Mr. Villanueva next claims that the warrant was not supported by probable

cause because it raised only a mere suspicion of his involvement in a drug

conspiracy, there was no showing of a nexus between the items sought and the

residence searched, and the information relied on for the warrant was stale.

-17-
 A judge’s probable cause determination is generally afforded great

deference. Illinois v. Gates, 462 U.S. 213, 236 (1983). But this deference

presupposes that “the magistrate judge’s ‘neutral and detached function’ has been

properly fulfilled.” United States v. Biglow, 562 F.3d 1272, 1281 (10th Cir.

2009) (quoting Gates, 462 U.S. at 236, 240). Because we have not decided

whether the issuing judge here was neutral and detached, we turn directly to a

consideration of the officers’ good faith reliance on the warrant.

Leon explained that an officer cannot be said to manifest objective good

faith if he relies “on a warrant based on an affidavit ‘so lacking in indicia of

probable cause as to render official belief in its existence entirely unreasonable.’”

468 U.S. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11 (1975)). “When

an officer searches pursuant to a warrant, Leon generally requires we presume the

officer acted in good-faith reliance upon the warrant.” Campbell, 603 F.3d at

1225. The officer’s “reliance is only ‘entirely unreasonable’ when the affidavit is

‘devoid of factual support.’” Id. at 1230 (quoting United States v. Henderson, 595

F.3d 1198, 1201-02 (10th Cir. 2010)). Mr. Villanueva argues that this is the case

here.

“An affidavit is not devoid of factual support if it establishe[s] a minimally

sufficient nexus between the illegal activity and the place to be searched.” Id. at

1231 (quotation marks omitted). An affidavit meets this “minimal nexus”

requirement when it “‘describes circumstances which would warrant a person of

-18-
reasonable caution’ in the belief that the ‘articles sought’ are in a particular

place.” Biglow, 562 F.3d at 1279 (quoting United States v. $149,442.43 in U.S.

Currency, 965 F.2d 868, 874 (10th Cir. 1992)). Our decision in Roach, 582 F.3d

at 1202-03, is particularly instructive. There, we held the affidavit failed to set

forth sufficient facts to establish probable cause to believe the defendant resided

at the location to be searched. Nevertheless, we applied the Leon good faith rule

to uphold the search because the affidavit set forth enough language indicating

the officers used at least one investigative technique to “provide a ‘minimal

nexus’ connecting Roach to the address.” Id. at 1204. We held it was not

“entirely unreasonable, therefore, for officers executing the warrant to rely on the

magistrates authorization of it” since it was “not a ‘bare bones’ affidavit of the

sort disapproved in Leon.” Id.

Contrary to Mr. Villaneuva’s contention, the affidavit here is “not so

facially deficient or so lacking in indicia of probable cause that the officer’s

reliance on the warrant in conducting the search was objectively unreasonable.”

United States v. Rowland, 145 F.3d 1194, 1207 (10th Cir. 1998). The affidavit set

forth wiretap communications demonstrating Mr. Villanueva’s involvement in on-

going distribution of narcotics and his use of others to carry out his orders. The

affidavit linked his utilization of the family residence using ping data from Mr.

Villanueva’s and other co-conspirators’ phones, which placed them at the

residence while discussing criminal activity. During surveillance, officers

-19-
observed vehicles connected to Mr. Villanueva’s family and girlfriend at the

residence. These facts provided a minimal nexus connecting Mr. Villanueva to

the residence and to possible contraband to be found there.

Although the affidavit here sought to search a residence that was suspected

of being used by Mr. Villanueva for drug distribution but not owned by him,

Agent Thompson relied on information connecting Mr. Villanueva, his co-

conspirators, his wife, and his girlfriend to the house, which was owned by Mr.

Villaneuva’s stepfather. “It is undisputed that ‘a law enforcement agent’s

opinion, based upon his professional expertise, that evidence of illegal activity

will be found in the place to be searched, is entitled to consideration in our

determination of whether probable cause existed at the time a warrant issued.’”

United States v. Harrison, 566 F.3d 1254, 1256 (10th Cir. 2009) (quoting United

States v. Mathis, 357 F.3d 1200, 1205 (10th Cir. 2004)). Agent Thompson

presented numerous facts and his own opinion, based on his extensive training,

which more than met the “minimal nexus” requirement. Campbell, 603 F.3d at

1231.

Mr. Villanueva also argues that the information used to support the

issuance of the search warrant was stale because the search and arrest warrant

affidavits used events from October 2012 to tie drug activity to the Lawton

residence, but the house was not searched until January 2013. “[P]robable cause

to search cannot be based on stale information that no longer suggests that the

-20-
items sought will be found in the place to be searched.” Roach, 582 F.3d at 1201

(alteration in original) (quoting Mathis, 357 F.3d at 1206-07). As we recognized

in Mathis, however, “whether information is too stale to establish probable cause

depends on the nature of the criminal activity, the length of the activity, and the

nature of the property to be seized.” 357 F.3d at 1207 (quoting United States v.

Snow, 919 F.2d 1458, 1460 (10th Cir. 1990)). We noted that Mathis’ continuous

and ongoing drug activity undermined the claim of staleness.

As in Campbell, “[w]e need not decide whether the affidavit’s information

on [Mr. Villanueva] was so stale as to not support probable cause because we

conclude the affidavit provided sufficiently recent information to support the

executing officers’ reliance on the magistrate’s authorization.” 603 F.3d at 1233.

The most recent information tying the Lawton residence and Mr. Villanueva to

drug activity preceded the search by only three months. In Mathis, 357 F.3d at

1203, 1206, we held two-month-old information was not stale, and in United

States v. Myers, 106 F.3d 936, 939 (10th Cir. 1997), we held that five-month-old

information was not stale. Both of these cases involved illegal drug distribution,

as here. It was reasonable for the officers in this case to rely on the magistrate’s

authorization when similar gaps of time have been upheld by our court in the past.

In sum, we hold that the affidavit provided sufficient indicia of probable

cause to justify the executing officers’ good faith reliance upon the magistrate's

issuance of the search warrant.

-21-
C. General Search

Mr. Villanueva contends the warrant was overbroad in both its issuance and

its execution and consequently resulted in a general search in violation of the

Fourth Amendment, which requires that warrants “particularly describ[e] . . . the

persons or things to be seized.” U.S. Const. amend. IV. We disagree.

“The requirement that warrants shall particularly describe the things to be

seized makes general searches under them impossible and prevents the seizure of

one thing under a warrant describing another. As to what is to be taken, nothing

is left to the discretion of the officer executing the warrant.” Stanford v. Texas,

379 U.S. 476, 485, (1965) (quoting Marron v. United States, 275 U.S. 192, 196

(1927)); see also Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (problem

of general warrant “is not that of intrusion per se, but of a general, exploratory

rummaging in a person's belongings”). “The particularity requirement ensures

that a search is confined in scope to particularly described evidence relating to a

specific crime for which there is demonstrated probable cause.” Voss v.

Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985). A warrant describing “items to

be seized in broad and generic terms may be valid if the description is as specific

as circumstances and nature of the activity under investigation permit.” United

States v. Wicks, 995 F.2d 964, 973 (10th Cir. 1993) (quoting United States v.

Harris, 903 F.2d 770, 775 (10th Cir. 1990)). We review de novo the legal

question of whether a warrant is overbroad. Id.

-22-
 With this framework in mind, we turn to the search warrant in this case.

Attachment B of the warrant set forth an extensive list of items to be seized, all

limited by the general specification that they evidence “the business of illegal

drug distribution and laundering profits from [the] enterprise” in violation of the

Oklahoma drug statutes. Rec., vol. 1, at 285. The list included bank records,

cash receipts, telephone records, investment records, and credit card records

relating to All-Star Automotive, the business through which Mr. Villanueva was

suspected of laundering drug money. In addition to these items, the warrant

allowed for the seizure of all computer storage devices used to store the above

information, all electronic communications between identified co-conspirators,

and all the paraphernalia used for packaging, cutting, weighing, and distributing

illegal narcotics. Although Mr. Villanueva argues that this list permitted the

search and seizure of any and all property in the residence, we have repeatedly

“upheld search warrants cast in comparably broad terms, where the subject of the

search was a drug trafficking or drug dealing business, and where the

circumstances permitted only a more general listing of the items to be seized.”

Wicks, 995 F.2d at 973 (upholding search warrant allowing seizure of “large

amounts of United States currency . . . books, records, receipts, notes, ledgers,

and other papers relating to the transportation, ordering, sale and distribution of

controlled substances . . . contraband, proceeds of drug sales and/or records of

drug transactions, drug sources, and drug customers . . . safe deposit boxes . . .

-23-
caches of drugs, large amounts of currency, financial instruments, precious

metals, jewelry . . . addresses or telephone numbers in books or papers . . .

photographs . . . paraphernalia . . . includ[ing] syringes, bottles, scales, plastic

bags, balloons, heat sealers, glassware, chemicals, mechanical stirrers, and/or heat

sources[,] . . . stolen weapons or goods.” Id. at 967) (citing United States v.

Sullivan, 919 F.2d 1403, 1424 n. 31 (10th Cir. 1990); United States v. Harris, 903

F.2d 770, 774-74 (10th Cir. 1990); United States v. Riley, 906 F.2d 841, 845 (2d

Cir.1990)). Given our precedents upholding the validity of similar warrants in

similar situations, we hold that the warrant in this case met the Fourth

Amendment's particularity requirement.

Mr. Villanueva also makes a conclusory argument that the search inventory

indicates the officers exceeded the scope of the warrant when they searched the

Lawton residence, and he correctly points out the “good faith exception does not

apply to the improper execution of a warrant.” United States v. Moland, 996 F.2d

259, 261 (10th Cir. 1993). But Mr. Villaneuva provides no evidence or argument

showing there was a general rummaging for evidence during the search. The

search inventory indicates that all items taken were permitted to be taken by the

search warrant, which described the evidence with particularity. The search thus

did not exceed its scope.

D. The Armed Career Criminal Act

Lastly, Mr. Villanueva contends the district court erred in classifying him

-24-
as an armed career criminal and enhancing his sentence under ACCA. We review

a de novo a sentence enhancement imposed under ACCA. United States v.

Delossantos, 680 F.3d 1217, 1219 (10th Cir. 2012). “The government carries the

burden of proving by a preponderance of the evidence that an enhancement is

appropriate.” Id. (quoting United States v. Johnson, 130 F.3d 1420, 1430 (10th

Cir. 1997)).

The Armed Career Criminal Act establishes a minimum fifteen year

sentence for anyone convicted under 18 U.S.C. § 922(g) who also has three

separate convictions for a “violent felony” or a “serious drug offense.” 18 U.S.C.

§ 924(e). Mr. Villanueva argues his classification as an armed career criminal

under ACCA violates his Sixth Amendment rights because the prior predicate

crimes used to enhance his sentence were not proven to a jury beyond a

reasonable doubt. This argument is foreclosed by Supreme Court and Tenth

Circuit precedent, as Mr. Villanueva admitted below and again concedes on

appeal. See Almendarez-Torrez v. United States, 523 U.S. 224, 226-27 (1998)

(sentencing judge may find prior conviction used to increase sentence by

preponderance of the evidence); United States v. Moore, 401 F.3d 1220, 1224

(10th Cir. 2005) (rejecting Sixth Amendment argument and noting that

“[a]lthough the Court may overrule Almendarez-Torres at some point in the

future, it has not done so, [and] we will not presume to do so for the Court”

because “we are bound by existing precedent”); see also United States v. Dorris,

-25-
236 F.3d 582, 587-88 (10th Cir. 2000) (rejecting Sixth Amendment argument that

prior convictions used to apply ACCA enhancement must be charged in

indictment and proven to jury beyond a reasonable doubt).

Mr. Villanueva also argues that one of his prior convictions in Oklahoma

for distribution of marijuana is not a serious drug offense for purposes of ACCA

and that the district court therefore erred in using it to increase his sentence.

ACCA defines a “serious drug offense” as:

(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et
seq.), the Controlled Substances Import Act and Export Act (21
U.S.C. 951 et seq.) or chapter 705 of title 46, for which a maximum
term of imprisonment of ten years or more is prescribed by law; or

(ii) an offense under State law, involving manufacturing, distributing
or possessing with intent to manufacture or distribute, a controlled
substance (as defined in section 102 of the Controlled Substances Act
(21 U.S.C. 802)), for which a maximum term of imprisonment of ten
year years or more is prescribed by law.

18 U.S.C. § 924 (e)(2)(A) (emphasis added).

Notwithstanding the explicit language of the Act, Mr. Villanueva contends

that “the focus for ACCA purposes should be the sentence actually received,

rather than the statutory maximum.” Aplt. Br. at 42. He posits that his prior

Oklahoma conviction for distribution of marijuana is not a serious drug offense

under ACCA because he only received a sentence of six years, which “does not

meet the 10 year threshold of § 924(e) for a ‘serious drug offense.’” Id.

Moreover, he asserts that because marijuana is legal in Colorado and Washington

-26-
for recreational and personal use, and legal for medicinal purpose in twenty states

and the District of Columbia, “distribution of marijuana cannot be considered a

‘serious drug offense’ for purposes of the ACCA.” Aplt. Br. at 42. But Congress

has determined otherwise. Distribution of marijuana remains illegal in Oklahoma

and carries a maximum sentence of life imprisonment. Okla. Stat. tit. 63 § 2-401.

The plain language of ACCA clearly states that a state offense is a serious drug

offense if the “maximum term of imprisonment of ten years or more is prescribed

by law.” § 924 (e)(2)(A)(ii). See McNeill v. United States, 131 S. Ct. 2218, 2224

(2011).

The district court did not err in applying the ACCA enhancement and

overruling Mr. Villanueva’s objection to his sentence.

CONCLUSION

We AFFIRM Mr. Villanueva’s conviction and sentence.

-27-