United States v. Travis Job

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-50472
Plaintiff-Appellee,
D.C. No.
v. 3:13-cr-1128-BEN-11

TRAVIS JOB, ORDER AND
Defendant-Appellant. AMENDED OPINION

Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding

Argued and Submitted December 9, 2016
Pasadena, California

Filed March 14, 2017
Amended August 21, 2017

Before: A. Wallace Tashima and Richard A. Paez, Circuit
Judges, and Paul L. Friedman, * District Judge.

Order;
Opinion by Judge Friedman

*
The Honorable Paul L. Friedman, United States District Judge for
the District of Columbia, sitting by designation.
2 UNITED STATES V. JOB

SUMMARY **

Criminal Law

In a case in which the defendant was convicted of
conspiracy to distribute methamphetamine and possession of
methamphetamine with intent to distribute, the panel filed
(1) an order (a) amending its March 14, 2017, opinion
affirming in part and vacating in part the district court’s
judgment and remanding for further proceedings; (b)
denying petitions for panel rehearing; and (c) denying on
behalf of the court a petition for rehearing en banc; and (2)
an amended opinion.

In the amended opinion, the panel held that the district
court erred in denying the defendant’s motions to suppress
evidence found during searches of his person, car, and home
solely on the basis that the defendant, a probationer, was
subject to a Fourth Amendment search waiver at the time of
the searches.

The panel held that the district court erred by applying
the holding in United States v. King, 736 F.3d 805 (9th Cir.
2013) – that a suspicionless search, conducted pursuant to a
suspicionless-search condition of a violent felon’s probation
agreement, does not violate the Fourth Amendment – to this
case. The panel explained that a Fourth Amendment search
waiver cannot provide a justification for a search of a
probationer where the officers were unaware of the waiver
before they undertook the search, and noted that the district

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 UNITED STATES V. JOB 3

court failed to recognize that the King decision was limited
to individuals on probation for violent felonies.

The panel rejected the government’s arguments that the
search of the defendant’s person was justified as a valid
Terry stop and frisk, or as a valid protective sweep. The
panel rejected the government’s arguments that the search of
the defendant’s car was justified by the automobile
exception to the warrant requirement, or by the officers’
discovery of the Fourth Amendment search waiver where the
government did not prove by a preponderance of the
evidence that the officers knew about the search waiver
before searching the car. The panel held that the search of
the defendant’s home was conducted pursuant to a valid
search warrant.

The panel concluded that the district court’s failure to
suppress the unlawfully seized evidence was harmless as to
the conspiracy conviction, but could not conclude beyond a
reasonable doubt that the evidence did not contribute to the
jury’s verdict on the possession-with-intent-to-distribute
count.

The panel held that the district court did not err in
refusing to give a multiple conspiracies instruction.
4 UNITED STATES V. JOB

COUNSEL

Todd W. Burns (argued), Burns and Cohan, San Diego,
California, for Defendant-Appellant.

Mark R. Rehe (argued), Assistant United States Attorney;
Peter Ko and Helen H. Hong,, Chief, Appellate Section,
Criminal Division; Alana W. Robinson, Acting United
States Attorney; United States Attorney’s Office, San Diego,
California; for Plaintiff-Appellee.

ORDER

The opinion filed on March 14, 2017 is amended as
follows:

On page 896, paragraphs 2–3 remove and replace with .

On page 896, paragraph 3 after
add

On page 896–97 delete the fourth and first paragraphs
and replace with

On page 897, footnote 2, after add

An Amended Opinion is filed concurrently with this
order.

2
At the time of the searches, Job was on probation for unlawful
possession of a controlled substance, in violation of California Health
and Safety Code § 11377(a). This offense is known as a “wobbler”
because it can be punished as a misdemeanor or a felony. United States
v. Diaz-Argueta, 564 F.3d 1047, 1049 (9th Cir. 2009); see also People v.
Morales, 169 Cal. Rptr. 3d 814, 820 (Ct. App. 2014).

In Lara, we said that violations of California Health and Safety Code
§§ 11378 and 11379(a), for the possession for sale and transportation of
methamphetamine, are “nonviolent drug crime[s].” 815 F.3d at 610. Job
was on probation for a similar offense, unlawful possession of
methamphetamine, in violation of § 11377(a).
6 UNITED STATES V. JOB

With these amendments, the petitions for panel rehearing
by Appellee and Appellant are DENIED.

The full court has been advised of Appellee’s petition for
rehearing en banc, and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing en banc is DENIED.

No further petitions for rehearing or petitions for
rehearing en banc may be filed.

OPINION

FRIEDMAN, District Judge:

Travis Job appeals from his conviction after a jury trial
on two drug-related offenses: (1) conspiracy to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
846, and (2) possession of methamphetamine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1), and his
sentence of 365 months, followed by a lifetime of supervised
release. He argues that the district court erred by denying
his motions to suppress evidence found during searches of
his person, car, and home. He also argues that the district
court erred when it denied his requests for jury instructions
on the lesser included offense of simple possession and on
multiple conspiracies. He contends that the district court
erred when calculating his guidelines sentencing range when
it applied: (1) a two-level increase for an offense involving
the importation of methamphetamine under United States
Sentencing Guidelines (“U.S.S.G.”) § 2D1.1(b)(5), (2) a
two-level increase for an offense in which the defendant
maintained a premises for the purpose of manufacturing or
distributing a controlled substance under § 2D1.1(b)(12),
 UNITED STATES V. JOB 7

and (3) a two-level increase for an offense involving an
unlawful discharge of a toxic substance under
§ 2D1.1(b)(13)(A). Finally, he argues that his sentence of
365 months is substantively unreasonable.

We have jurisdiction under 28 U.S.C. § 1291; we affirm
Job’s conviction in part, vacate it in part, and remand for
further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from an investigation into a conspiracy
involving the importation of methamphetamine from
Mexico and its distribution in San Diego County and South
Carolina. The conspiracy was led by Job’s codefendant at
trial, Robert Rodriguez. The government alleged that Job
served two roles within the conspiracy. Rodriguez fronted
methamphetamine to Job for sale to third parties, meaning
that drugs were provided to Job on the promise that he would
pay Rodriguez later, after the drugs were sold. In addition,
Job “cut” methamphetamine for Rodriguez and Carrie
Brown-Rodriguez, Rodriguez’s wife. Cutting refers to
adding another product to pure methamphetamine to add
more weight to it and increase the quantity available for
resale.

On October 3, 2012, the police arrested Job for
possession of a controlled substance for sale and possession
of drug paraphernalia after stopping him and searching his
person and his car. 1 That afternoon, Officer Nicholas
Dedonato and other officers arrived at 2504 Snowdrop Street
1
The facts surrounding the searches on October 3 are drawn from
the police report and Officer Nicholas Dedonato’s trial testimony. The
district court did not conduct an evidentiary hearing on the motions to
suppress.
8 UNITED STATES V. JOB

looking for another man, Richard Elliot, who is unrelated to
this case. Upon the officers’ arrival at the home, they saw
two men open the garage door. These men were identified
as Travis Job and William Holt, who also is unrelated to this
case. According to Officer Dedonato, both men looked
“very surprised to see the police.” Job “appeared very
nervous and was wearing a baggy shirt, which concealed his
waistband and baggy cargo shorts, with the pockets
appearing to be full of items.”

In the police report, Officer Dedonato stated that he “felt
it would be much safer for my partners and myself if I patted
Job down for weapons.” He handcuffed Job prior to the pat
down. During the pat down, he “felt a hard tube like object
with a bulbous end in [Job’s] left cargo pocket.” Based on
his training and experience, Officer Dedonato recognized the
object as an illegal glass pipe. Officer Dedonato removed
the pipe, which “contained a burnt white residue.” In Job’s
pockets, Officer Dedonato found $1450 in cash and Job’s car
keys. He then placed Job under arrest for possession of
narcotics paraphernalia.

After seizing Job’s car keys, Officer Dedonato asked Job
where he had parked his car. Job “looked around nervously
and said, ‘I don’t know.’” Officer Dedonato pressed the
unlock button on Job’s key fob, and the car in the driveway
beeped as it unlocked. Two other officers then searched
Job’s car. They found a cigarette pack containing 3.9 grams
of methamphetamine in “two Ziploc style bags” and a hand-
rolled cigarette with “Spice,” which they recognized as an
illegal street drug; another glass pipe containing burnt white
residue; and a Blackberry cell phone.

At some point during the encounter, the officers
conducted a records check, “which revealed [Job] was
currently on probation with a 4th amendment waiver.”
 UNITED STATES V. JOB 9

While on probation for a state drug offense, Job was required
to “submit person, property, place of residence, vehicle,
[and] personal effects to search at any time with or without
a warrant, and with or without reasonable cause, when
required by a probation officer or other law enforcement
officer.” It is unclear when, if ever, the officers learned the
precise scope of Job’s search waiver.

In December of 2012, police officers obtained a search
warrant for Job’s residence, based in part on intercepts from
wiretaps of Rodriguez’s phone. While executing the search
warrant, the officers found various items including:
56.4 grams of methamphetamine in Job’s freezer, five
scales, small stashes of methamphetamine totaling
15.28 grams, baggies, several glass pipes, and undisclosed
amounts of Spice, bath salts, and marijuana. In the garage,
the officers found an invoice for items including a test tube,
a hand boiler, and an Erlenmeyer flask. In the kitchen, the
officers found cleaning supplies, a microwave, a hot plate,
and a white apron. After the search, the San Diego County
Department of Environmental Health inspected Job’s
apartment and found that the downstairs portion was
“contaminated with methamphetamine residuals.” In a
subsequent report, the department concluded that
methamphetamine had been stored in Job’s kitchen and
living room, but that it was “unknown if manufacturing was
taking place” in the apartment.

Before trial, Job filed two motions to suppress: one for
the evidence found on his person and in his car in October
and one for the evidence found during the search of his home
in December. With its response opposing both motions, the
government submitted a police report describing the events
of October 3, 2012. The district court denied both motions
without an evidentiary hearing. During trial, Job requested
10 UNITED STATES V. JOB

jury instructions on the lesser included offense of simple
possession and on multiple conspiracies. The district court
denied both requests. A jury convicted Job on all counts.
The government sought enhanced penalties under 21 U.S.C.
§ 851 because Job had committed these offenses after prior
felony convictions.

In determining Job’s guidelines sentencing range, the
district court applied three offense level increases: (1) a two-
level increase for an offense involving the importation of
methamphetamine under U.S.S.G. § 2D1.1(b)(5), (2) a two-
level increase for maintaining a premises for the purpose of
manufacturing or distributing a controlled substance under
§ 2D1.1(b)(12), and (3) a two-level increase for the unlawful
discharge of a toxic substance under § 2D1.1(b)(13)(A).
The district court also concluded that Job was subject to a
20-year mandatory minimum under 21 U.S.C. § 851. The
court calculated a guidelines sentencing range of 360 months
to life, and sentenced Job to 365 months in prison and
supervised release for life.

II. FOURTH AMENDMENT SEARCHES

Job challenges the constitutionality of three searches:
(1) the search of his person on October 3, 2012, (2) the
search of his car on October 3, 2012, and (3) the search of
his home on December 5, 2012. We must determine whether
the searches were unreasonable under the Fourth
Amendment. We review a district court’s denial of a motion
to suppress evidence de novo and review the district court’s
factual findings for clear error. United States v. Lara,
815 F.3d 605, 608 (9th Cir. 2016) (citing United States v.
Mayer, 560 F.3d 948, 956 (9th Cir. 2009)). Before turning
to each search, we address the justification for the searches
accepted by the district court.
 UNITED STATES V. JOB 11

In denying Job’s motions to suppress, the district court
concluded — based on our decision in United States v. King
— that Job’s Fourth Amendment search waiver provided a
justification for all three searches. 736 F.3d 805, 810 (9th
Cir. 2013). In King, we held that “a suspicionless search,
conducted pursuant to a suspicionless-search condition of a
violent felon’s probation agreement, does not violate the
Fourth Amendment.” Id. The district court erred by
applying King’s holding to this case.

It is undisputed that the officers were unaware of Job’s
Fourth Amendment search waiver when they stopped him
and patted him down. The district court did not determine
whether the officers were aware of the search waiver before
conducting the search of his person and the search of his car.
It based its decision solely on the fact that Job was subject to
a Fourth Amendment search waiver at the time of the
searches. Police officers must know about a probationer’s
Fourth Amendment search waiver before they conduct a
search in order for the waiver to serve as a justification for
the search. In United States v. Caseres, we concluded that a
“search is not justified by the state’s interest in supervising”
parolees when the officers were unaware of the waiver
before the search. 533 F.3d 1064, 1076 (9th Cir. 2008); see
also Moreno v. Baca, 431 F.3d 633, 641 (9th Cir. 2005)
(holding that “police officers cannot retroactively justify a
suspicionless search and arrest on the basis of an after-the-
fact-discovery of . . . a parole [search waiver] condition”).
This reasoning also logically applies to probationers, who
have a higher expectation of privacy than parolees. Lara,
815 F.3d at 610 (citing Samson v. California, 547 U.S. 843,
850 (2006)). A Fourth Amendment search waiver cannot
provide a justification for a search of a probationer where the
officers were unaware of the waiver before they undertook
the search. The district court erred in denying Job’s motions
12 UNITED STATES V. JOB

to suppress evidence from all three searches solely on the
basis of Job’s Fourth Amendment search waiver.

In addition, we note that the district court failed to
recognize that our decision in King was limited to
individuals on probation for violent felonies. 736 F.3d at
810; see also Lara, 815 F.3d at 609–10 (noting that King was
“expressly limited” to violent felons and does not apply to
individuals on probation for nonviolent drug crimes).
Although the parties dispute whether Job was on probation
for a felony or a misdemeanor, he was on probation for a
nonviolent drug offense. 2 This fact may or may not have
changed the district court’s decision to deny Job’s motion to
suppress if it had undertaken the careful balancing test to
determine whether the search at issue was reasonable under
the Fourth Amendment, as alluded to in King and discussed
in detail in Lara. See Lara, 815 F.3d at 609–12; King,
736 F.3d at 808–10. But the district court did not have the
benefit of guidance from our decision in Lara at the time of
its decision. The district court’s decision to rely exclusively
on King, however, was error.

The government now offers numerous, independent
justifications for each search aside from the search waiver.
2
At the time of the searches, Job was on probation for unlawful
possession of a controlled substance, in violation of California Health
and Safety Code § 11377(a). This offense is known as a “wobbler”
because it can be punished as a misdemeanor or a felony. United States
v. Diaz-Argueta, 564 F.3d 1047, 1049 (9th Cir. 2009); see also People v.
Morales, 169 Cal. Rptr. 3d 814, 820 (Ct. App. 2014).

In Lara, we said that violations of California Health and Safety Code
§§ 11378 and 11379(a), for the possession for sale and transportation of
methamphetamine, are “nonviolent drug crime[s].” 815 F.3d at 610. Job
was on probation for a similar offense, unlawful possession of
methamphetamine, in violation of § 11377(a).
 UNITED STATES V. JOB 13

We address the government’s other justifications for the
searches, some of which are raised for the first time on
appeal, because we can affirm on any ground supported in
the record. Recording Indus. Ass’n v. Diamond Multimedia
Sys. Inc., 180 F.3d 1072, 1076 n.3 (9th Cir. 1999).

A. Search of Job’s Person

The government bears the burden of proving that a
warrantless search or seizure falls within an exception to the
warrant requirement. United States v. Scott, 705 F.3d 410,
416 (9th Cir. 2012) (citing United States v. Hawkins,
249 F.3d 867, 872 (9th Cir. 2001)). The government argues
that the search and seizure of Job’s person is justified
(1) pursuant to Job’s Fourth Amendment search waiver,
(2) as a valid Terry stop and frisk, or (3) as a valid protective
sweep. As already discussed, Job’s Fourth Amendment
search waiver cannot provide a justification for the stop and
search where officers were unaware of the waiver before the
stop.

The government now argues, for the first time on appeal,
that the initial stop and pat down were permitted under Terry
v. Ohio, 392 U.S. 1 (1968). Terry allows a “brief stop”
where an officer has “reasonable suspicion to believe
‘criminal activity may be afoot.’” Thomas v. Dillard,
818 F.3d 864, 874 (9th Cir. 2016) (citing Terry, 392 U.S. at
30); see also United States v. Crapser, 472 F.3d 1141, 1147
(9th Cir. 2007). After stopping an individual based on
reasonable suspicion, an officer may also conduct a limited
pat down, or frisk, if he believes that “the individual whose
suspicious behavior he is investigating at close range is
armed and presently dangerous.” Minnesota v. Dickerson,
508 U.S. 366, 373 (1993); see also United States v. Thomas,
863 F.2d 622, 628 (9th Cir. 1988).
14 UNITED STATES V. JOB

We review de novo whether a Terry stop was supported
by reasonable suspicion. Crapser, 472 F.3d at 1145 (citing
United States v. Thompson, 282 F.3d 673, 678 (9th Cir.
2002)). Reasonable suspicion that a person is engaged in
criminal activity “is formed by ‘specific articulable facts
which, together with objective and reasonable inferences,
form the basis for suspecting that the particular person
detained is engaged in criminal activity.’” United States v.
Colin, 314 F.3d 439, 442 (9th Cir. 2002) (quoting United
States v. Lopez-Soto, 205 F.3d 1101, 1105 (9th Cir. 2000)).
The police report offers the only evidence of the details
regarding the events on October 3 because the district court
did not hold an evidentiary hearing on the motion to suppress
for the stop and subsequent searches.

In determining whether a stop was supported by
reasonable suspicion, we consider the totality of the
circumstances. Thomas, 863 F.2d at 625. It is unclear from
the record: (1) whether the officers were at the scene to
execute an arrest warrant for Richard Elliot, or to conduct a
search pursuant to a Fourth Amendment search waiver at the
home; (2) how many officers were at the scene; and (3) who
owned the home at 2504 Snowdrop Street. From the record
available, it appears that Officer Dedonato only observed:
(1) Job at a location where the officers were conducting
either an arrest of another person pursuant to a warrant or a
search pursuant to another person’s Fourth Amendment
search waiver; (2) Job and Holt open the garage door as the
police were arriving; (3) Job appear surprised and nervous;
and (4) Job wearing baggy clothes, “with the pockets
appearing to be full of items.” These facts taken together do
not support the conclusion that the officers had reasonable
suspicion that Job was engaged in criminal activity.
 UNITED STATES V. JOB 15

We give “significant weight to an officer’s observation
of a visible bulge in an individual’s clothing that could
indicate the presence of a weapon” as evidence supporting
reasonable suspicion to conduct a pat down. United States
v. Flatter, 456 F.3d 1154, 1157 (9th Cir. 2006). But the facts
that Job’s pants appeared to be “full of items” and he
appeared nervous do not support the conclusion that he was
engaged in criminal activity. See United States v. I.E.V.,
705 F.3d 430, 438 (9th Cir. 2012) (noting that “mere nervous
or fidgety conduct and touching of clothing” is not enough
to establish reasonable suspicion). Testimony from the
officers beyond what was in the police report might have
bolstered the government’s arguments that this stop was
justified under Terry, but the government provided no other
evidence, beyond the police report, in opposing Job’s motion
to suppress.

The record provides no information on the offense for
which Elliot was arrested — for example, whether it was for
a crime of violence — and whether there was reason for the
officers to have been concerned that Job and Holt were
engaged in similar activity or might pose a danger to them.
Dillard, 818 F.3d at 878 (noting that “the type of crime a
person is suspected of committing may be highly relevant”
to the reasonable suspicion analysis). Nor does the police
report state that Job made any furtive movements or
appeared threatening, which would be relevant to our
analysis. Flatter, 456 F.3d at 1158. Given the lack of
information in the record, we conclude that the government
has failed to meet its burden of establishing that the stop and
the pat down were supported by reasonable suspicion. 3

3
The government argues that a pat down for the officers’ safety was
justified because the officers were serving a warrant “at dusk, only to
16 UNITED STATES V. JOB

The government also raised a new justification for the
pat down at oral argument, arguing that the stop was valid as
a protective sweep under Maryland v. Buie, 494 U.S. 325
(1990), and that the subsequent search was valid under
Minnesota v. Dickerson, 508 U.S. 366. We disagree. “A
‘protective sweep’ is a quick and limited search of premises,
incident to an arrest and conducted to protect the safety of
police officers or others. It is narrowly confined to a cursory
visual inspection of those places in which a person might be
hiding.” Buie, 494 U.S. at 327. The protective sweep is
justified when the officers are effectuating “the arrest of a
suspect in his home pursuant to an arrest warrant.” Id. The
government has not met its burden of proving that the
officers were at the home pursuant to an arrest warrant, or
that this was Richard Elliot’s home. Moreover, the
protective sweep would have been limited to a visual
inspection for persons and would not have permitted the
officers to conduct a pat down of Job. Id.

Because the government has failed to prove a
justification for the warrantless stop and subsequent pat
down, we conclude that the search of Job’s person was
unlawful. The evidence discovered during the pat down —
a glass pipe and $1450 in cash — therefore should have been
suppressed. See United States v. Lustig, 830 F.3d 1075,
1079 (9th Cir. 2016) (citing Davis v. United States, 564 U.S.
229, 236–37 (2011)).

have two unknown men (who might be [Elliot’s] compatriots) suddenly
open the garage at the target home as soon as police arrive.” The officers
would certainly be permitted to conduct a pat down if they reasonably
believed that their “safety or that of others was in danger,” but the pat
down is permitted only if the initial stop itself was based on reasonable
suspicion. Thomas, 863 F.2d at 628.
 UNITED STATES V. JOB 17

B. Search of Job’s Car

As noted, the government bears the burden of proving
that a warrantless search of Job’s car falls within an
exception to the warrant requirement. Scott, 705 F.3d at 416.
The government offers two alternative justifications for the
search of Job’s car: (1) the automobile exception or (2) the
discovery of a valid Fourth Amendment search waiver. Both
of these arguments fail.

The automobile exception allows the police to conduct
“a warrantless search of a vehicle if there is probable cause
to believe that the vehicle contains evidence of a crime.”
United States v. Brooks, 610 F.3d 1186, 1193 (9th Cir.
2010). The government argues that the evidence of the glass
pipe seized from Job’s person gave the officers probable
cause to believe that there was evidence of contraband in
Job’s car. We have already determined that the glass pipe
was unlawfully seized, and it therefore follows that evidence
derived from the discovery of the pipe would be
impermissible fruits of the unlawful seizure. United States
v. Washington, 490 F.3d 765, 776–77 (9th Cir. 2007).
Because the government offers no other evidence to form
probable cause to search Job’s car, the automobile exception
cannot justify the warrantless search of the car.

The government next argues that the discovery of the
Fourth Amendment search waiver gave the officers a valid
justification for the search. The police report suggests that
the officers may have learned about the search waiver during
a records check after the officers patted Job down, but before
they searched his car. The district court made no finding on
this fact, however, and Job argues that the record is at least
unclear as to when the officers learned of Job’s Fourth
Amendment search waiver. We agree. As we noted above,
a Fourth Amendment search waiver cannot provide a
18 UNITED STATES V. JOB

justification for a search of a probationer where the officers
were unaware of the waiver before they undertook the
search. From this record, we cannot conclude that the
government has proved by a preponderance of the evidence
that the officers knew about the search waiver before
searching Job’s car. See United States v. Vasey, 834 F.2d
782, 785 (9th Cir. 1987). 4

The government has failed to prove a valid justification
for the search of Job’s car. Therefore any evidence seized
from the car — including the 3.9 grams of methamphetamine
in baggies — should have been suppressed. See Lustig,
830 F.3d at 1080.

C. Search of Job’s Home

We next determine whether the evidence seized from a
search of Job’s home on December 5 pursuant to a search
warrant was reasonable under the Fourth Amendment. We
review de novo the validity of a search warrant. United
States v. Underwood, 725 F.3d 1076, 1081 (9th Cir. 2013).
On appeal, the government proposes three justifications for
this search: (1) a valid search warrant, (2) Job’s Fourth
Amendment search waiver, or (3) the good faith exception
to the exclusionary rule. Because we conclude that the
search was conducted pursuant to a valid search warrant, we
need not address the government’s two alternative
justifications.

Job argues that the affidavit in support of the search
warrant provides an insufficient basis to establish probable
4
In any event, the government conceded at oral argument that even
if the officers knew of the existence of Job’s Fourth Amendment search
waiver, they did not know the terms of the waiver when they searched
the car or that Job was in fact only a nonviolent probationer.
 UNITED STATES V. JOB 19

cause that evidence of methamphetamine trafficking would
be found in his home. Specifically, he argues that (1) the
warrant relied in part on the unlawful search of Job’s person
and his car on October 3; (2) the affidavit asserts that specific
telephone numbers are “used by” individuals, but does not
give factual support for those conclusions; and (3) the
affidavit contains broad conclusions and editorializing by
the affiant, Detective James Cady, that are not supported by
underlying facts. 5 The government responds that the
affidavit contains sufficient facts to establish probable cause.
We agree.

We normally give “great deference” to a magistrate
judge’s finding that probable cause supports a warrant.
Underwood, 725 F.3d at 1081 (citing United States v. Krupa,
658 F.3d 1174, 1177 (9th Cir. 2011)). But Detective Cady’s
affidavit in support of the search warrant referenced the
events on October 3 and the searches of Job’s person and car,
and we have concluded that those searches were unlawful.
A search warrant is not “rendered invalid merely because
some of the evidence included in the affidavit is tainted.”
United States v. Nora, 765 F.3d 1049, 1058 (9th Cir. 2014)
(citing United States v. Reed, 15 F.3d 928, 933 (9th Cir.
1994)). “The warrant remains valid if, after excising the
tainted evidence, the affidavit’s ‘remaining untainted
evidence would provide a neutral magistrate with probable
cause to issue a warrant.’” Id. (quoting Reed, 15 F.3d at
933). We make this “determination without the usual

5
Although the affidavit includes no information about subscriber
information or voice recognition for Job’s phone number, his identity
was corroborated when Brown-Rodriguez referred to him as Travis over
the phone, and when officers observed him with Brown-Rodriguez in the
parking lot 30 minutes after Brown-Rodriguez and Job discussed
meeting.
20 UNITED STATES V. JOB

deference owed to the magistrate’s initial finding of probable
cause.” Id. (citing United States v. Kelley, 482 F.3d 1047,
1051 (9th Cir. 2007)). We therefore will excise the
paragraphs that reference the unlawful searches and
determine on our own whether the remaining portions of the
affidavit support a finding of probable cause.

According to Detective Cady, the facts in the affidavit
are derived from: oral and written investigative reports,
physical surveillance by law enforcement, a review of pen
register data, statements by confidential sources, a review of
telephone calls and text messages obtained through
wiretapping of codefendant Robert Rodriguez and Brown-
Rodriguez’s telephones, and information from law
enforcement databases. The affidavit begins with statements
that Robert Rodriguez and Carrie Brown-Rodriguez were
involved in the distribution of methamphetamine. The
affidavit states that Job assisted Rodriguez and Brown-
Rodriguez in “‘cutting’ methamphetamine that is then sold
or fronted to others.” The warrant identifies Job, Rodriguez,
and Brown-Rodriguez as individuals involved in the
distribution of methamphetamine, and alleges that there is
probable cause for a violation of conspiracy to distribute a
controlled substance, in violation of 21 U.S.C. §§ 841(a)(1),
846. The affidavit also lists Job’s previous conviction in
2001 for conspiracy to distribute methamphetamine.

Job argues that the affidavit fails to establish probable
cause because the affidavit does not provide sufficient facts
to support Detective Cady’s conclusion that Job is a
narcotics trafficker. Although the affidavit does not
expressly assert that Job is a trafficker, the affidavit does
provide facts to support the conclusion that Job was in the
business of “buying and selling” methamphetamine.
Underwood, 725 F.3d at 1083. The affidavit includes
 UNITED STATES V. JOB 21

references to intercepts of conversations regarding a
“business deal” between Rodriguez and Job. Job asks
Brown-Rodriguez for “cuatro,” and then states that he will
“keep going somewhere else” because he has people
“bugging” him. Detective Cady explains that Job is referring
to four ounces of methamphetamine. For all of these
intercepted phone calls and text messages, Detective Cady
provides the participants, the date and time of the exchange,
the phone number used, and the content of the conversations.
The affidavit thus lays a sufficient foundation to establish
probable cause that Job was involved in the distribution of
drugs with Rodriguez. See id. at 1084.

Job also argues that the affidavit does not establish that
evidence of methamphetamine trafficking would be found in
his home. We have said, however, that “a magistrate is
allowed to draw a reasonable inference that ‘[i]n the case of
drug dealers, evidence is likely to be found where the dealers
live.’” United States v. Fernandez, 388 F.3d 1199, 1254 (9th
Cir. 2004) (citing United States v. Angulo-Lopez, 791 F.2d
1394, 1399 (9th Cir. 1986)). Because Detective Cady’s
affidavit provides sufficient facts to support the conclusion
that Job was involved in the distribution of drugs, the Court
may draw the reasonable inference that evidence is likely to
be found where Job lives. Id.

Some statements in the affidavit are Detective Cady’s
conclusions, interpretations of cryptic conversations, and
interpretations of drug slang and coded terms. But there is
sufficient information to establish probable cause to believe
that Job, Rodriguez, and Brown-Rodriguez were engaged in
drug trafficking together and that — at least at some point in
the August/September timeframe — there was
methamphetamine in Job’s residence. Job argued in the
district court, but not here, that this information was stale by
22 UNITED STATES V. JOB

December 4, when the affidavit was signed and submitted to
the magistrate judge. Because Job did not pursue his
staleness argument in this Court, we need not consider the
reasonableness of the inference that drugs would be found in
Job’s home.

Despite some deficiencies in the affidavit, we conclude
that after excising the references to the unlawful searches,
the remaining portions of the affidavit established that there
was a “fair probability that contraband or evidence of a
crime” would be found in Job’s home. United States v.
Williams, 846 F.3d 303, 312 (9th Cir. 2017) (citation
omitted). We conclude that the search of Job’s home was
lawful and that the evidence seized was admissible at trial.

III. THE EFFECT OF UNLAWFULLY SEIZED
EVIDENCE ON THE JURY VERDICT

Having found that the district court erred in denying the
motion to suppress the evidence found on Job’s person and
in his car on October 3, we must next determine whether that
error was harmless. A constitutional error, such as a failure
to suppress evidence from a Fourth Amendment violation, is
harmless only when it appears “beyond a reasonable doubt
that the error complained of did not contribute to the verdict
obtained.” Chapman v. California, 386 U.S. 18, 24 (1967);
see United States v. Walters, 309 F.3d 589, 593 (9th Cir.
2002). 6 “Review for harmless error requires not only an
evaluation of the remaining incriminating evidence in the

6
The government misstates our standard of review for harmless
error; the standard is not whether “a rational jury could . . . have found
Job guilty” on both counts. See United States v. Oaxaca, 233 F.3d 1154,
1158 (9th Cir. 2000) (noting “the harmlessness of an error is distinct
from evaluating whether there is substantial evidence to support a
verdict”).
 UNITED STATES V. JOB 23

record, but also the most perceptive reflections as to the
probabilities of the effect of [the] error on a reasonable trier
of fact.” United States v. Bishop, 264 F.3d 919, 927 (9th Cir.
2001) (quoting United States v. Harrison, 34 F.3d 886, 892
(9th Cir. 1994)). We “must be convinced that the improperly
admitted evidence did not contribute to the verdict,” id., and
the government bears the burden of showing the
harmlessness of the error, United States v. Gonzalez-Flores,
418 F.3d 1093, 1099 (9th Cir. 2005).

The jury convicted Job of conspiracy to distribute
methamphetamine (“Count 1”) and possession with intent to
distribute methamphetamine (“Count 5”). The district court
should have suppressed two key pieces of incriminating
evidence: 3.9 grams of methamphetamine in baggies, which
was found in Job’s car on October 3, and $1450 in cash,
which was found during the pat down on the same day. The
government offered this evidence at trial as substantive
evidence on both counts.

With regard to Count 1, the government argues that there
was ample evidence — even without the fruits of the
searches on October 3 — for a jury to convict Job of
conspiracy to distribute methamphetamine. At trial, Brown-
Rodriguez testified that she witnessed two meetings between
Rodriguez and Job. She also testified that Rodriguez met
with Job to give him methamphetamine because Job said that
he “had someone waiting to get meth from him.” In
addition, Rodriguez and Job discussed a balance owed for
methamphetamine that Rodriguez had provided, or fronted,
to Job. Brown-Rodriguez’s trial testimony also showed that
Job cut methamphetamine for Rodriguez, which Brown-
Rodriguez later sent to a dealer in South Carolina.

Job argues that none of this evidence shows that Job was
involved in a larger conspiracy with Rodriguez and Brown-
24 UNITED STATES V. JOB

Rodriguez to distribute drugs. At most, he argues, the
evidence indicates that Job had a “buyer-seller” relationship
with Rodriguez. See United States v. Loveland, 825 F.3d
555, 561 (9th Cir. 2016). Job also notes that in her trial
testimony, Brown-Rodriguez failed to include Job as a
member of Rodriguez’s distribution conspiracy. When
asked if she was aware of whether or not Rodriguez provided
methamphetamine to Job with instructions to sell to others,
Brown-Rodriguez responded, “I don’t know.”

Although the government offered evidence from the
October 3 searches as evidence on both counts, the
government provided substantial evidence of Job’s
involvement in the conspiracy that pre-dated the October 3
searches. The prosecutor referenced the events of October 3
only once in closing argument in regard to Count 1. Based
on our review of the remaining evidence and the likely effect
of the evidence on a reasonable trier of fact, we conclude
beyond a reasonable doubt that the admission of the illegally
seized evidence did not contribute to the verdict on Count 1
for conspiracy to distribute methamphetamine. The district
court’s failure to suppress the evidence therefore was
harmless as to Count 1, and we affirm Job’s conviction for
conspiracy to distribute methamphetamine.

We reach a different conclusion as to Count 5 for
possession with intent to distribute methamphetamine. At
trial, Job asserted — as his principal defense — that the
56.4 grams of methamphetamine found in his freezer on
December 5 was for personal use. The government
presented evidence of distribution, such as the baggies and
scales found in Job’s home, to support its intent-to-distribute
theory. But the government also relied on and explicitly
invited the jury to consider the evidence from the October 3
searches — particularly the $1450 in cash and the 3.9 grams
 UNITED STATES V. JOB 25

of methamphetamine that should have been suppressed — as
evidence of intent to distribute. Indeed, the prosecutor
mentioned it three separate times in closing argument.
During closing argument, the prosecutor stated:

Travis Job walked around with over $1,400
in his [pockets]. That is what he had on
October 3rd, when he had the multiple bags
of methamphetamine. And that is an
interesting point to keep up. When you’re
considering the [events of] October 3rd and
whether or not [the methamphetamine
possessed on December 5th] is personal use,
the two bags of methamphetamine, know
this, this scale in the I-Phone box that has
these bags, tiny little bags right here, are the
exact same type of bags that
methamphetamine was packaged in that he
was carrying around when he had his $1,400
on October 3rd, of 2012, when he was
stopped and arrested.

The government correctly notes that the district court
told the jury that the statements of counsel are not evidence,
but the prosecutor’s remarks in closing argument were a
persistent reminder for the jury to consider the evidence of
the seizures on October 3 as evidence of Job’s possession
with intent to distribute on December 5. Although there was
other evidence to support Job’s conviction for possession
with intent to distribute, the large amount of cash and small
quantities of methamphetamine seized on October 3
provided critical evidence to rebut Job’s defense that the
methamphetamine found in his freezer on December 5 was
for his personal use and not for distribution. Based on the
remaining incriminating evidence and the likelihood that the
26 UNITED STATES V. JOB

jury considered the evidence explicitly mentioned several
times in closing, we cannot conclude beyond a reasonable
doubt that the evidence from the October 3 searches did not
contribute to the jury’s verdict on Count 5. We therefore
vacate Job’s conviction for possession with intent to
distribute and remand for further proceedings.

IV. JURY INSTRUCTIONS

At trial, Job requested two specific jury instructions,
which the district court denied: an instruction on the lesser
included offense of simple possession, with regard to Count
5, and an instruction on multiple conspiracies, with regard to
Count 1. Because we vacate Job’s conviction for possession
with intent to distribute, we need not address the district
court’s denial of a jury instruction on the lesser included
offense of simple possession. The issue can be raised again
in the district court if the government chooses to retry Job on
the charge of possession with intent to distribute.

“A multiple conspiracies instruction is required only if
the defendants’ theory of the charged conspiracy or
conspiracies ‘is supported by law and has some foundation
in the evidence.’” Fernandez, 388 F.3d at 1247 (quoting
United States v. Anguiano, 873 F.3d 1314, 1317 (9th Cir.
1989)). We have not been entirely consistent on whether to
apply an abuse of discretion or de novo standard of review
in reviewing the district court’s refusal to give a multiple
conspiracies instruction when the parties dispute whether
there was sufficient evidence to support such an instruction.
Compare United States v. Mincoff, 574 F.3d 1186, 1192 (9th
Cir. 2009) (quoting United States v. Bello-Bahena, 411 F.3d
1083, 1089 (9th Cir. 2005)) (“Where the parties dispute
whether the evidence supports a proposed instruction, we
review a district court’s rejection of the instruction for an
abuse of discretion.”), with Anguiano, 873 F.2d at 1317
 UNITED STATES V. JOB 27

(“[T]he issue of whether the evidence was sufficient to
support the giving of a multiple conspiracies instruction
should be subject to de novo review.”). Because we
conclude that the district court did not err in refusing to give
a multiple conspiracies instruction under either standard of
review, we need not resolve that conflict here.

“Evidence sufficient to support a multiple conspiracies
instruction is present where a jury could reasonably conclude
that some of the defendants were only involved in separate
conspiracies unrelated to the overall conspiracy charged in
the indictment.” Mincoff, 574 F.3d at 1196 (quoting
Fernandez, 388 F.3d at 1247). That is not the case here.
Even though Brown-Rodriguez did not identify Job at trial
as part of the distribution ring, there was evidence before the
jury that Rodriguez fronted drugs to Job. Brown-Rodriguez
testified that she witnessed Rodriguez and Job meet in a
hotel after Job “told Robert that he had someone waiting to
get meth from him.” She also testified that Rodriguez
provided Job with methamphetamine. Job then left the hotel
“to go meet the person he was talking about” and returned
an hour later. At trial, the government also introduced a
recording of an intercepted phone call between Rodriguez
and Brown-Rodriguez, in which the two discuss Job’s
balance for fronted methamphetamine.

Brown-Rodriguez also testified that Rodriguez hired Job
to cut methamphetamine for her and Rodriguez. The
evidence at trial also indicates that Job was aware that the
methamphetamine he cut was distributed to others. Brown-
Rodriguez testified that she would mail cut
methamphetamine to a dealer in South Carolina. The
government introduced text messages between Brown-
Rodriguez and Job, in which they discussed when he would
deliver the cut methamphetamine. In one of these messages,
28 UNITED STATES V. JOB

Job writes, “I can get you the four [ounces] to finish the
mail.” These text messages indicate that Job was aware that
Brown-Rodriguez intended to mail the methamphetamine he
cut for her. In addition, cutting methamphetamine has a
direct relationship to the quantity of drugs that can be sold
and therefore the amount of profits to be gained in a
conspiracy to distribute methamphetamine. See, e.g., United
States v. Chavez-Alvarez, 594 F.3d 1062, 1064 (8th Cir.
2010); United States v. Castro, 908 F.2d 85, 88 (6th Cir.
1990) (citation omitted). On the basis of the direct and
circumstantial evidence at trial, we conclude that no
reasonable jury could reasonably find Job’s cutting of
methamphetamine was a conspiracy separate from or
unrelated to the overall conspiracy to distribute charged in
the indictment.

Although a single conspiracy can include “several
subagreements or subgroups of conspirators,” Fernandez,
388 F.3d at 1248 n.34 (citing United States v. Bibbero,
749 F.2d 581, 587 (9th Cir. 1984)), that does not mean there
are separate conspiracies. The evidence presented at trial
perhaps shows a subagreement to cut methamphetamine, but
that subagreement is not “separate” from and “unrelated” to
the overall conspiracy to distribute charged in Count 1. Job
cut methamphetamine for Rodriguez and Brown-Rodriguez
and was aware that the methamphetamine he cut was
distributed to others. Thus, his activity was a part of the
distribution conspiracy charged in the indictment. Based on
the evidence in the record, we conclude that the district court
did not err in refusing to give a multiple conspiracies
instruction under either an abuse of discretion or a de novo
standard of review.
 UNITED STATES V. JOB 29

V. SENTENCING ISSUES

We review de novo whether a district court complied
with Rule 32 of the Federal Rules of Criminal Procedure in
making its determinations at sentencing. We review a
district court’s interpretation of the Sentencing Guidelines
de novo and review its factual findings for clear error.
United States v. Doe, 778 F.3d 814, 821 (9th Cir. 2015);
United States v. Carter, 219 F.3d 863, 866 (9th Cir. 2000).
The government bears the burden of proving facts that
support a sentencing adjustment by a preponderance of the
evidence. United States v. Romero-Rendon, 220 F.3d 1159,
1160 (9th Cir. 2000).

In its presentence investigation report, the probation
office recommended three increases to the base offense level
of Job’s guidelines sentencing range as follows: (1) two
levels for an offense involving the importation of
methamphetamine under U.S.S.G. § 2D1.1(b)(5), (2) two
levels for an offense in which the defendant maintained a
premises for the purpose of manufacturing or distributing a
controlled substance under § 2D1.1(b)(12), and (3) two
levels for an offense involving an unlawful discharge of a
toxic substance under § 2D1.1(b)(13)(A). In applying the
three offense level increases recommended by the probation
office and requested by the government, the district court
stated:

There is no doubt, based on the evidence I
heard, that [Job] was in the
importing of methamphetamine, and the
methamphetamine was coming from Mexico
and was being given to him to cut and
process. I have no doubt that that two-level
increase should apply. I also don’t have any
doubt with regards to the finding that he
30 UNITED STATES V. JOB

was maintaining the premises for the
manufacturing and distribution of a
controlled substance. I have no problems
with that. I have no problems with the fact
that there was an unlawful discharge of a
toxic substance unless we’re prepared to
assume that methamphetamine is not a toxic
substance.

The district court then increased Job’s base offense level
from 34 to an offense level of 40; with a criminal history
category V, Job’s guidelines sentencing range was
360 months to life. The district court also concluded that Job
was subject to a 20-year mandatory minimum under
21 U.S.C. § 851. 7 The court imposed a sentence of
365 months’ imprisonment and supervised release for life.

A. Sufficiency of District Court’s Findings at
Sentencing

In his sentencing memorandum to the district court, Job
argued that there was insufficient evidence to support the
offense level increases. He argued that (1) there was no
evidence that he was personally involved in the importation
of methamphetamine, (2) there was no evidence that he had

7
Job argues that 21 U.S.C. § 851 violates the Sixth Amendment
because the sentencing enhancement scheme increases his mandatory
minimum based on a fact that has not been decided by a jury. Current
Ninth Circuit and Supreme Court precedent foreclose this argument. See
Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998) (holding
that the fact of a prior conviction is a sentencing factor and not an
element of the offense that must be decided by a jury); United States v.
Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (per curiam) (noting
that we have “repeatedly held . . . that Almendarez-Torres is binding
unless it is expressly overruled by the Supreme Court”).
 UNITED STATES V. JOB 31

chemicals to manufacture methamphetamine in his home,
and (3) “the underlying foundation for the discharge of toxic
substances was never produced to the court.” Therefore, the
burden was on the government to prove the facts to support
these increases by a preponderance of the evidence.
Romero-Rendon, 220 F.3d at 1160. Job argues on appeal
that the government failed to do so and that it is difficult to
discern from the district court’s statements at sentencing its
reasoning or on which facts it relied in applying these
increases. We agree.

When a defendant makes specific objections to the
presentence investigation report, as Job did here, the district
court must follow the procedures set forth in Rule 32 of the
Federal Rules of Criminal Procedure. United States v. Doe,
705 F.3d 1134, 1153 (9th Cir. 2013); United States v.
Ingham, 486 F.3d 1068, 1073–74 (9th Cir. 2007). Rule 32
states that the district court “must — for any disputed portion
of the presentence report or other controverted matter — rule
on the dispute or determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the
court will not consider the matter in sentencing.” Fed. R.
Crim. P. 32(i)(3)(B). We mandate “strict compliance” with
Rule 32. Doe, 705 F.3d at 1153 (quoting United States v.
Houston, 217 F.3d 1204, 1208 (9th Cir. 2000)). In the
context of Rule 32, a ruling on a dispute is an “explicit
factual finding that resolves the dispute.” Carter, 219 F.3d
at 867; see also Doe, 705 F.3d at 1153 (citation and internal
quotation marks omitted) (noting that rulings must be
“express or explicit”). Rule 32 findings “need not be
detailed and lengthy,” but they must “state the court’s
resolution of the disputed issues.” Ingham, 486 F.3d at 1074
(citing United States v. Karterman, 60 F.3d 576, 583 (9th
Cir. 1995)). We turn now to whether the statements made
32 UNITED STATES V. JOB

by the district court were explicit findings adequate under
Rule 32 to resolve the three disputed issues.

In regard to the importation of methamphetamine under
U.S.S.G. § 2D1.1(b)(5), the district court made three
factual findings based on the evidence at trial: (1) Job was
“in the importing of methamphetamine,” (2) “the
methamphetamine was coming from Mexico,” and (3) the
methamphetamine was “being given to him to cut and
process.” The district court’s first finding is the only finding
that addresses Job’s objection about whether he was
involved in the importation. Although this finding does rule
on the objection, the district court’s finding was clear error
because the government offered no evidence — at trial or at
sentencing — that Job was personally involved in the
importation of methamphetamine. See United States v.
Pineda-Doval, 692 F.3d 942, 944 (9th Cir. 2012) (quoting
Red Lion Hotels Franchising, Inc. v. MAK, LLC, 663 F.3d
1080, 1087 (9th Cir. 2011)) (noting that a factual finding is
clearly erroneous if it is “without support in inferences that
may be drawn from the facts in the record”).

With respect to the increase under U.S.S.G.
§ 2D1.1(b)(12) for maintaining a premises for the purpose of
manufacturing or distributing methamphetamine, the district
court stated that it did not “have any doubt with regards to
the finding that [Job] was maintaining the premises for the
manufacturing and distribution of a controlled substance.”
This statement does not explicitly rule on Job’s objection
that he did not have any chemicals to manufacture
methamphetamine in his home. Although the probation
office offered support for its conclusion that the offense level
increase applied — which may be the finding the court
referred to here — the district court “may accept the
presentence report as its findings of fact, but only after it has
 UNITED STATES V. JOB 33

resolved all objections.” United States v. Standard, 207 F.3d
1136, 1142 (9th Cir. 2000). Further, we have previously
rejected arguments that a district court complies with Rule
32(i)(3)(B) when it makes a finding that an increase should
apply but nevertheless fails to rule on a factual dispute
underlying the increase. See Carter, 219 F.3d at 867.

As for the last two-level increase for an offense
involving the unlawful discharge of a toxic substance under
U.S.S.G. § 2D1.1(b)(13)(A), the district court similarly
applied the increase without ruling on Job’s objection that
the government had not provided a factual basis for it. The
district court cited no evidence — produced by the
government at trial or at sentencing — for this increase,
saying only that it had “no problems with the fact that there
was an unlawful discharge of a toxic substance unless we’re
prepared to assume that methamphetamine is not a toxic
substance.” Because the district court’s ruling was not
express or explicit, it was insufficient to comply with our
interpretation of Rule 32. Doe, 705 F.3d at 1153.

On appeal, the government invites us to conduct our own
factual inquiry to determine whether there were sufficient
facts in the record to support these three offense level
increases. But such determinations are fact-intensive
inquiries better suited for the district court. Further, “it is
well settled law in this circuit that when the district court
fails to make the required Rule 32 findings or determinations
at the time of sentencing, we must vacate the sentence and
remand for resentencing.” Ingham, 486 F.3d at 1074
(quoting Carter, 219 F.3d at 866).

Although we vacate Job’s sentence on both counts for
failure to comply with Rule 32, we address Job’s arguments
with respect to the offense level increases at sentencing
because these issues are likely to arise again at resentencing,
34 UNITED STATES V. JOB

regardless of whether there is a new trial on Count 5. We do
not address the issue of whether Job’s sentence was
substantively unreasonable.

B. Importation of Methamphetamine Under U.S.S.G.
§ 2D1.1(b)(5)

U.S.S.G. § 2D1.1(b)(5) allows for a two-level increase if
“the offense involved the importation of . . .
methamphetamine or the manufacture of . . .
methamphetamine from listed chemicals that the defendant
knew were imported unlawfully.” § 2D1.1(b)(5). As noted
above, the district court erroneously found that Job was
personally involved “in the importing of
methamphetamine.”

The evidence at trial showed that Job’s codefendant
Robert Rodriguez imported methamphetamine from
Mexico. Rodriguez was charged with and convicted of
conspiracy to import methamphetamine, in violation of
21 U.S.C. §§ 952, 960(b)(1)(H), 963. Job was not charged
with that conspiracy, but with a separate conspiracy to
distribute methamphetamine. At trial, the government
provided no evidence that Job was personally involved in the
importation of methamphetamine. At sentencing, the
government therefore asked for this two-level increase
through relevant conduct related to jointly undertaken
criminal activity under U.S.S.G. § 1B1.3(a)(1)(B) —
presumably the jointly undertaken activity between Job and
Rodriguez. If Job was not personally involved in the
importation, the increase could apply only if the district court
determined that the importation was “within the scope of
jointly undertaken criminal activity,” “in furtherance of that
criminal activity,” and “reasonably foreseeable in
connection with that criminal activity” under
§ 1B1.3(a)(1)(B). The district court made no factual
 UNITED STATES V. JOB 35

findings or determinations with respect to this argument at
Job’s sentencing hearing.

On appeal, the government argues that § 2D1.1(b)(5) of
the Sentencing Guidelines can be imposed on a strict liability
basis so long as the government proves that the drugs were
imported by someone — and regardless of the defendant’s
intent, knowledge, or lack of knowledge that the drugs were
imported. Relying on United States v. Biao Huang, 687 F.3d
1197 (9th Cir. 2012), the government argues that it need only
prove that the drugs were imported by someone where a
defendant was not personally involved in the importation
and there is no evidence that he had actual knowledge of the
importation.

In Biao Huang, relying on the plain language of the
Guidelines, we rejected the argument that U.S.S.G.
§ 2D1.1(b)(5) requires the government to show that the
defendant himself personally imported the drugs. 687 F.3d
at 1205–06. In contrast to other increases that do require that
the defendant himself import drugs or be “directly involved”
in the importation, § 2D1.1(b)(5) only requires that the
offense charged involve importation by someone, not
necessarily the defendant. Id. at 1205. Hence our statement
that “a defendant need not be personally involved in the
importation of illegal drugs to receive an [increase] under
§ 2D1.1(b)(5); it is enough for the government to show that
the drugs were imported.” Id. at 1206. We also said in Biao
Huang, however, that whether § 2D.1.1(b)(5) requires the
defendant to actually know that the methamphetamine he
sold was imported by someone is “an open question.” Id.

Only one circuit has approved the government’s
proffered reading of U.S.S.G. § 2D1.1(b)(5) that would
dispense with the requirement that the defendant actually
know the drugs were imported. In United States v. Serfass,
36 UNITED STATES V. JOB

the Fifth Circuit stated that the plain language of
§ 2D1.1(b)(5) supports the conclusion that the increase
applies to “a defendant who possesses methamphetamine
that had itself been unlawfully imported” regardless of
whether he or she had actual knowledge of the importation.
684 F.3d 548, 553 (5th Cir. 2012). We decline to adopt the
Fifth Circuit’s conclusion here — particularly where the
government never advanced this argument in the district
court and sought to apply the increase only on the basis of
jointly undertaken criminal activity under U.S.S.G. § 1B1.3,
and the district court made no determinations about the
scope of the jointly undertaken criminal activity as required
by the Sentencing Guidelines.

C. Maintaining a Premises for the Purpose of
Manufacturing or Distributing Methamphetamine
Under U.S.S.G. § 2D1.1(b)(12)

A two-level increase under U.S.S.G. § 2D1.1(b)(12)
applies “to a defendant who knowingly maintains a
premises,” which can be a single room, “for the purpose of
manufacturing or distributing a controlled substance.”
U.S.S.G. § 2D1.1 cmt. n.17. The application note also states
that manufacturing or distributing methamphetamine must
be “one of the defendant’s primary or principal uses for the
premises.” Id. To make that determination, the district court
“should consider how frequently the premises was used by
the defendant for manufacturing or distributing a controlled
substance and how frequently the premises was used by the
defendant for lawful purposes.” Id.

To support this increase, the government offered
photographs of Job’s apartment, which had been admitted at
trial, and a report by the San Diego County Department of
Environmental Health, issued after an inspection of Job’s
apartment. The report by the Department of Environmental
 UNITED STATES V. JOB 37

Health states that it is “unknown” whether
methamphetamine manufacturing occurred in Job’s
apartment because “law enforcement removed the chemical
containers prior to [the inspector’s] arrival.” The
government argues that “the [district] court could certainly
have found it more likely than not that one of the primary
uses of the downstairs kitchen was to manufacture or
distribute drugs.” As evidence that a primary purpose of the
kitchen was to manufacture methamphetamine, the
government notes that the kitchen cabinets lacked food and
drink, but included a microwave and a hot plate, which are
commonly used to cut methamphetamine. Job argues that
there is no evidence to support the conclusion that Job
maintained the premises for the primary purpose of either
manufacturing or distributing methamphetamine.

From the statements made by the district court at
sentencing, it does not appear that the court considered
whether or not one of the primary purposes of Job’s kitchen
was to manufacture methamphetamine. It also is not clear
what the factual basis was for the court’s statement that it
had no doubt “with regards to the finding that he was
maintaining the premises for the manufacturing and
distribution of a controlled substance.” Further, the report
by the Department of Environmental Health is inconclusive
as to whether manufacturing was taking place at Job’s home.
The report indicates only that methamphetamine had been
stored in Job’s kitchen and living room. Job also argues that
there was no evidence at trial or at sentencing that he ever
distributed methamphetamine out of his home. Without any
findings of fact from the district court, we conclude that the
government has not met its burden of proving by a
preponderance of the evidence that Job maintained a
premises for the primary purpose of manufacturing or
distributing methamphetamine.
38 UNITED STATES V. JOB

D. Unlawful Discharge of a Toxic Substance Under
U.S.S.G. § 2D1.1(b)(13)(A)

The district court applied an increase for the unlawful
discharge of a toxic substance under U.S.S.G.
§ 2D1.1(b)(13)(A). As the government acknowledges, the
district court appears to have based its decision on a belief
that methamphetamine is by itself a toxic substance, but it
made no factual findings. An increase under
§ 2D1.1(b)(13)(A) applies to conduct that involves “any
discharge, emission, release, transportation, treatment,
storage, or disposal violation covered by the Resource
Conservation and Recovery Act, 42 U.S.C. § 6928(d); the
Federal Water Pollution Control Act, 33 U.S.C. § 1319(c);
the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. § 9603(b); or
49 U.S.C. § 5124.” U.S.S.G. § 2D1.1 cmt. n.18.

Although no violation of these statutes was discussed —
let alone proved — at sentencing, the government argues that
we may find factual support for this increase in the
Department of Environmental Health’s report, which
indicated that the chemicals acetone, methanol, glycerol, and
ethanol were found in Job’s garage. The government
maintains that acetone and methanol are both “per se
‘hazardous wastes’” covered by the Resource Conservation
and Recovery Act, and therefore can be the basis for this
increase. Although the Environmental Protection Agency
has designated acetone and methanol as hazardous wastes,
the government presented no evidence at sentencing
regarding the form, quantity, or storage of these substances.
See Protection of the Environment, 40 C.F.R. § 261.33
(2016). Therefore, we conclude that the government did not
meet its burden of proving the facts necessary to support the
 UNITED STATES V. JOB 39

increase under U.S.S.G. § 2D1.1(b)(13)(A) by a
preponderance of the evidence.

VI. CONCLUSION

The district court erred in denying Job’s motion to
suppress the evidence discovered during the unlawful
searches of Job’s person and car. That error was harmless
with respect to Job’s conviction for conspiracy to distribute
methamphetamine, and we therefore AFFIRM his
conviction on Count 1. We do not reach the same conclusion
with respect to Job’s conviction for possession with intent to
distribute; we therefore VACATE his conviction on Count 5
and REMAND for further proceedings consistent with this
opinion, including a possible retrial on that count. We
VACATE his sentence on both counts and REMAND for
resentencing.

AFFIRMED IN PART, VACATED IN PART, AND
REMANDED FOR FURTHER PROCEEDINGS.