[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12705 MAY 12, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00235-CR-JOF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO SEGURA-BALTAZAR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 12, 2006)
Before DUBINA, MARCUS, and PRYOR, Circuit Judges.
MARCUS, Circuit Judge:
Roberto Segura-Baltazar (“Segura-Baltazar”) appeals his conviction and
ensuing sentence for possession with intent to distribute cocaine and
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), and
(b)(1)(C), and for possession of a firearm in furtherance of a drug trafficking crime
in violation of 18 U.S.C. § 924(c)(1)(A)(i). Segura-Baltazar was convicted on all
counts after a bench trial and was sentenced to concurrent 120-month terms for the
drug counts and a consecutive 60-month term for the gun charge. On appeal, the
defendant argues that the district court erred in failing to suppress certain evidence
seized from his home and in finding evidence of at least 500 grams of a mixture or
substance containing a detectable amount of methamphetamine, which is the
threshold amount necessary for the mandatory minimum 10-year sentence he
received. After thorough review, we affirm.
I.
The essential facts are these. In the course of a drug investigation involving
a suspect known only as “Alejandro,” police identified numerous incoming calls
from a phone number registered to Bernabe Perez, an alias of the defendant, at 480
Sheringham Court in Roswell, Georgia. Based on that information, police began
surveillance at 480 Sheringham Court. Officer Ronald Gooden of the City of
Roswell Police Department determined that it would be helpful to inspect the trash
discarded from the house at 480 Sheringham Court, and he contacted the Roswell
sanitation department for assistance.
2
Gooden learned that trash was normally collected from the suspect’s home
on Wednesdays. Accordingly, he met with Jerry Kimbral, the sanitation truck
driver for that route, on Wednesday, January 14, 2004, the normal collection day.
Officer Gooden and Kimbral drove to 480 Sheringham Court in an empty garbage
truck. They found garbage left for collection in front of the house to the left of a
mailbox, in an area that was not enclosed by a fence and that was approximately
fifty-five to sixty-five feet from the residence and three to six feet from the curb.
The garbage was contained in bags which, in turn, were found inside large garbage
cans that were covered with lids. Kimbral emptied the bags into the garbage truck
and drove to the Roswell police department, where Officer Gooden retrieved the
trash and processed it for evidence. The same procedure was repeated on other
normal collection Wednesdays -- January 21, 2004, February 4, 18, and 25, 2004,
and March 3 and 10, 2004.
On two other occasions, the trash-pull procedures were slightly different.
The magistrate judge described the events of January 28, 2004, in these terms:
Gooden was with Kimbral and another sanitation department
employee, Luiz Gordado, whom Gooden understood spoke Spanish.
On that morning, part of the garbage was located in the garbage cans
at the curb. Gooden also observed garbage cans, containing what
appeared to be bags of garbage, sitting to the left side of the residence
near the garage. Kimbral informed Gooden that it was customary for
him to collect the garbage from the location next to the garage when it
was left there and not at the curb. He asked if Gooden wanted him to
3
collect that garbage. Gooden instructed Kimbral and Gordado to
verify with the resident that the garbage was to be collected. Kimbral
and Gordado walked up and knocked on the door of the residence.
After conferring with a female at the door, they collected the garbage
located next to the garage. That garbage, along with the garbage
located next to the curb, was placed in the truck, and Gooden retrieved
the garbage at the police department where he examined it for
evidence.
(citations and footnotes omitted) (emphasis added). Similarly, on Wednesday
February 11, 2004, Gooden and Kimbral retrieved trash from cans that were sitting
to the left of the residence near the garage. They followed the same procedures
they employed on January 28; the only difference was that there was no trash at the
curb on February 11.
The police recovered many inculpatory items from the trash pulls indicating
that the residents of 480 Sheringham Court were involved in illegal drug activity.
Specifically, they found 42 grams of methamphetamine; 41 grams of marijuana;
plastic wrappings that field-tested positive for cocaine; and numerous bags
containing residue that field-tested positive for cocaine, marijuana, and
methamphetamine. Additionally, the police found papers depicting names with
numerical amounts listed next to each name (which they believed were drug
ledgers); financial documents indicating the presence of large amounts of currency,
including evidence of wire transfers exceeding $10,000; and boxes that had
contained wireless surveillance cameras and monitors that would enable a user to
4
see in low light conditions. Officer Gooden testified that, based on his experience,
devices such as these are often used by drug dealers as countersurveillance tools.
Finally, the police recovered two types of magazines for semiautomatic handguns,
an empty box of 12-gauge shotgun shells, and one live round of .45-caliber
ammunition.
Based on the evidence obtained through the trash pulls and information
provided by a confidential informant, Gooden obtained a federal search warrant for
the house located at 480 Sheringham Court. Because of the “exigent
circumstances of potential bodily injury to law enforcement officers,” the warrant
was issued by the magistrate with a “no-knock” provision. The search warrant was
executed on March 25, 2004, and the officers entered the residence without
knocking or announcing their presence. During the ensuing search police
recovered approximately 1200 grams of methamphetamine, 130 grams of cocaine,
two semiautomatic handguns, two .22-caliber rifles, one shotgun, $19,631 in U.S.
currency, and numerous forms of identification bearing several different names
matched with the defendant’s picture.
On appeal, Segura-Baltazar argues that the district court fatally erred by (1)
refusing to suppress the evidence recovered from the trash pulls, (2) upholding the
validity of the search warrant with a “no-knock” provision, and (3) using the total
5
weight of the methamphetamine mixture to calculate the base offense level for
sentencing purposes. We consider each argument in turn.
II.
In reviewing an order denying a motion to suppress, we review findings of
fact for clear error and the application of the law to those facts de novo. United
States v. Muegge, 225 F.3d 1267, 1269 (11th Cir. 2000) (per curiam). To prevail
on a Fourth Amendment claim, a defendant must show two things:
First, there must be a search and seizure of that individual’s person,
house, papers or effects, conducted by an agent of the government;
stated differently, there must be an invasion of the claimant’s
reasonable expectation of privacy. Second, the challenged search and
seizure must be “unreasonable,” as not all searches and seizures are
proscribed by the fourth amendment, but only those that are
“unreasonable.”
United States v. Bachner, 706 F.2d 1121, 1125 (11th Cir. 1983) (citations omitted).
The party alleging an unconstitutional search must establish both a subjective and
an objective expectation of privacy. United States v. Robinson, 62 F.3d 1325,
1328 (11th Cir. 1995). “The subjective component requires that a person exhibit
an actual expectation of privacy, while the objective component requires that the
privacy expectation be one that society is prepared to recognize as reasonable.” Id.
(internal quotation marks and brackets omitted); see also California v. Greenwood,
486 U.S. 35, 39 (1988) (“The warrantless search and seizure of the garbage bags
6
left at the curb outside the Greenwood house would violate the Fourth Amendment
only if respondents manifested a subjective expectation of privacy in their garbage
that society accepts as objectively reasonable.”).
The Supreme Court has addressed a case raising similar Fourth Amendment
issues and with similar facts in Greenwood. There, the police received information
that a suspect might be involved with drug transactions, and they enlisted the help
of the local trash collector to retrieve “plastic garbage bags that Greenwood had
left on the curb in front of his house.” Id. at 37. The evidence found in the
defendant’s garbage was then used as the basis for obtaining a search warrant for
his house, where police found drugs. The Supreme Court held that even if
Greenwood had an actual (subjective) expectation of privacy in the contents of the
opaque trash bags he left on the street, it was not an expectation society was
willing to accept as objectively reasonable:
Here, we conclude that respondents exposed their garbage to the
public sufficiently to defeat their claim to Fourth Amendment
protection. It is common knowledge that plastic garbage bags left on
or at the side of a public street are readily accessible to animals,
children, scavengers, snoops, and other members of the public.
Moreover, respondents placed their refuse at the curb for the express
purpose of conveying it to a third party, the trash collector, who might
himself have sorted through respondents’ trash or permitted others,
such as the police, to do so. Accordingly, having deposited their
garbage in an area particularly suited for public inspection and, in a
manner of speaking, public consumption, for the express purpose of
having strangers take it, respondents could have had no reasonable
7
expectation of privacy in the inculpatory items that they discarded.
Id. at 40-41 (citations, internal quotation marks, and footnotes omitted). Thus, the
Court held, there was no Fourth Amendment violation, and the evidence recovered
from Greenwood’s trash could be used to support a search warrant application.
We readily affirm the district court’s denial of the motion to suppress the
evidence recovered from trash left at the curb in front of Segura-Baltazar’s house.
Indeed, the facts of this case are strikingly similar to those considered in
Greenwood. The only apparent distinctions -- that the garbage in Greenwood was
placed on the curb (as opposed to three to six feet from the curb) and was in only
an opaque garbage bag (as opposed to a garbage bag that was placed inside a
garbage can) -- are insufficient to warrant any different outcome. Having placed
the garbage near the curb for the purpose of conveying it to third parties, the trash
collector, or other members of the public, we cannot find that appellant had a
reasonable expectation of privacy in the inculpatory items discarded.
Whether there was a reasonable expectation of privacy in the trash left at the
left side of the residence near the garage is a closer question, the obvious
distinction being that trash left near the curb is more exposed to the public than is
trash left closer to the house. Segura-Baltazar urges that the trash near the garage
was within the curtilage (generally the land or yard adjoining a house) of his home
8
and therefore well within the protections of the Fourth Amendment. The district
court never made a specific finding that the trash near the garage was inside or
outside the curtilage, and we find it unnecessary to decide that question on appeal.
Indeed, Greenwood instructs us to consider the extent to which the garbage was
exposed to the public, and that analysis does not require a “curtilage”
determination.1 See Greenwood, 486 U.S. at 40 (concluding that “respondents
exposed their garbage to the public sufficiently to defeat their claim to Fourth
Amendment protection”); United States v. Hall, 47 F.3d 1091, 1096 (11th Cir.
1995) (noting that Greenwood “demonstrates that one indicator of the objective
reasonableness of an expectation of privacy in discarded garbage is the degree to
which persons expose their garbage to the public”); see also United States v. Long,
176 F.3d 1304, 1308 (10th Cir. 1999) (“Even if we were to conclude that the trash
bags were within the curtilage, Defendant would not prevail. . . . In garbage cases,
Fourth Amendment reasonableness turns on public accessibility to the trash.”);
United States v. Comeaux, 955 F.2d 586, 589 (8th Cir. 1992) (“[E]ven assuming
that the garbage cans were within the curtilage, we find [defendant’s] claim to be
1
That is not to say it would have been error to decide whether the trash was inside or
outside the curtilage. Whether trash is sufficiently exposed to the public to render any
expectation of privacy objectively unreasonable is a fact-intensive inquiry, and we would not
fault a district court for considering the location of the trash vis-à-vis the curtilage. We simply
observe that the curtilage determination has no talismanic significance in concluding whether the
government has violated the Fourth Amendment by rummaging through someone’s garbage.
9
without merit. We believe that the proper focus under Greenwood is whether the
garbage was readily accessible to the public so as to render any expectation of
privacy objectively unreasonable.” (internal quotation marks omitted)).
The district court here found that the trash was sufficiently exposed to the
public to defeat a reasonable expectation of privacy because it was left in a location
where the sanitation workers regularly would, on Wednesdays, remove it along
with trash left by the street; indeed, nothing was done to prevent the removal of the
garbage; and the garbage remained within the public view. We agree.
First, the district court found as a fact that the “customary location” for trash
collection was the area by the street. However, after an evidentiary hearing, the
magistrate judge explicitly found that it was also “the practice to collect garbage
left next to the residence,” and that “[i]f Gooden had not been present on those
mornings, the garbage next to the residence would have been collected.” Thus, the
district court found, the trash next to the house was “left for collection” because it
was placed in an area where it was customarily collected by sanitation employees
and at a time when the garbage collectors made their normal rounds. See
Greenwood, 486 U.S. at 41 (finding no reasonable expectation of privacy in trash
“left for collection in an area accessible to the public” (emphasis added)). We
agree that placing trash in a location where it is routinely removed by trash
10
collectors, on the day designated for trash collection, lessens the reasonableness of
a homeowner’s expectation of privacy. See, e.g., id. at 40 (considering the fact that
the refuse was left “for the express purpose of conveying it to a third party”);
Long, 176 F.3d at 1309 (considering the fact that defendant had “purposefully
placed the trash bags . . . for collection” in the course of finding no reasonable
expectation of privacy); United States v. Redmon, 138 F.3d 1109, 1113 (7th Cir.
1998) (en banc) (noting that the “garbage cans were purposefully placed by [the
defendant] outside his garage for collection and could not be considered some sort
of personal safety deposit boxes designed for his illegal purposes”); United States
v. Hedrick, 922 F.2d 396, 400 (7th Cir. 1991) (affirming denial of motion to
suppress in part because the garbage was left in the designated collection
location).2
Next, the district court found that the garbage closer to the house was plainly
visible to the public. The district court concluded that this weighed in favor of
denying the motion to suppress. That finding was correct, too. Although a
member of the public would have had to access Segura-Baltazar’s property to gain
2
In this case, there is evidence that the trash collector confirmed with a woman inside the
home that the trash next to the house was ready for collection before removing it from the
property. However, the district court did not rely on a consent theory, and the government does
not urge us to consider that issue on appeal. Accordingly, we do not rely on the fact that an
occupant of the house apparently gave verbal permission for the trash collector to remove the
garbage in upholding this search and seizure.
11
access to the trash, that fact alone does not provide him with a reasonable
expectation of privacy. As the Seventh Circuit explained:
The willingness of members of the public to trespass upon private
property in order to search through garbage cans cannot automatically
defeat the Fourth Amendment expectation of privacy any more than a
series of burglaries could eliminate any expectation of privacy in the
home. Where, however, the garbage is readily accessible from the
street or other public thoroughfares, an expectation of privacy may be
objectively unreasonable because of the common practice of
scavengers, snoops, and other members of the public in sorting
through garbage. In other words, garbage placed where it is not only
accessible to the public but likely to be viewed by the public is
“knowingly exposed” to the public for Fourth Amendment purposes.
Hedrick, 922 F.2d at 400. Even though the trash was located on Segura-Baltazar’s
property, near his garage, there was no reasonable expectation of privacy because
the trash was sufficiently exposed to the public.
The district court made no factual finding concerning exactly how far the
garbage next to the house was from the public sidewalk or street. However, there
was testimony that the trash near the curb was three to six feet from the sidewalk,
and fifty-five to sixty-five feet from the house. So, we can assume that the house
was no more than sixty or seventy feet from the sidewalk. Regardless of the exact
distance, however, the facts we find most relevant and persuasive are that the
garbage was plainly visible and accessible from the street. See Redmon, 138 F.3d
at 1114 (concluding that there was no reasonable expectation of privacy in garbage
12
left outside a garage, at the head of a driveway, in part because it was “publicly
exposed and accessible”); United States v. Shanks, 97 F.3d 977, 980 (7th Cir.
1996) (finding no reasonable expectation of privacy because garbage cans placed
next to a garage, and facing an alley, “were readily accessible and visible from a
public thoroughfare”); Hedrick, 922 F.2d at 400 (finding no reasonable expectation
of privacy in part because “the garbage cans were clearly visible from the
sidewalk”).
Taken together, the facts of this case lead us to the conclusion that Segura-
Baltazar did not have a reasonable expectation of privacy in the trash that he left in
the usual course of events for collection outside but near his home. The trash was
placed in a location where it was customarily retrieved by sanitation employees, it
was left there at the designated time for trash collection, and it was clearly visible
and accessible from the street. Unfortunately, we can offer no bright-line rule to fit
all future garbage suppression cases. See Redmon, 138 F.3d at 1111 (noting that a
“convenient rule to fit all situations” is simply not practical). These inquiries are
highly fact-intensive, and we simply find that on the particular facts of this case,
Segura-Baltazar had no reasonable expectation of privacy in either the trash near
the curb or the trash near his house.3
3
Segura-Baltazar also argues that the evidence from the trash pulls failed to provide
probable cause for a search of 480 Sheringham Court. We are unpersuaded. As the district court
13
III.
The police officers used the fruits of the garbage pulls to support their
application for a warrant to search 480 Sheringham Court. The warrant was issued
by a federal magistrate judge, and the search uncovered significant quantities of
illegal drugs. Segura-Baltazar contends that the magistrate judge erred in issuing
the warrant with a “no-knock” provision. Specifically, the judge stated in the
warrant that “based on exigent circumstances of potential bodily injury to law
enforcement officers, I specifically authorize no-knock entry into the residence.”
The district court found that even if the “no-knock” provision was not supported by
reasonable suspicion, the officers had a good faith basis for believing the warrant
was valid and therefore refused to suppress the drugs and firearms found in the
search. See United States v. Leon, 468 U.S. 897, 922 (1984) (establishing the
good faith exception to the exclusionary rule). After thorough review we conclude
that the “no-knock” provision was indeed supported by reasonable suspicion and,
therefore, we need not consider whether the warrant, if otherwise invalid, would be
saved by the good faith exception. Cf. United States v. Jiminez, 224 F.3d 1243,
found, the police recovered numerous documents from the trash bearing names of residents who
were known to live at 480 Sheringham Court, including financial receipts, medical records, and
mail. There was ample evidence in the garbage connecting the trash left in front of 480
Sheringham Court to the occupants of that residence and we reject Segura-Baltazar’s argument
to the contrary.
14
1249 n.1 (11th Cir. 2000) (noting that there is no need to consider the good faith
exception when there is probable cause to support the warrant).
Again, when reviewing the denial of a motion to suppress, we review
findings of fact for clear error and the application of the law to those facts de novo.
Muegge, 225 F.3d at 1269. The Fourth Amendment incorporates the important
common law requirement that police officers entering a dwelling must knock on
the door and announce their identity and purpose before attempting forcible entry.
Wilson v. Arkansas, 514 U.S. 927, 934 (1995). However, a “no-knock” entry is
permissible under special circumstances. “In order to justify a ‘no-knock’ entry,
the police must have a reasonable suspicion that knocking and announcing their
presence, under the particular circumstances, would be dangerous or futile, or that
it would inhibit the effective investigation of the crime by, for example, allowing
the destruction of evidence.” Richards v. Wisconsin, 520 U.S. 385, 394 (1997);
see also United States v. Banks, 540 U.S. 31, 36 (2003) (noting that “[w]hen a
warrant applicant gives reasonable grounds to expect futility or to suspect that one
or another such exigency already exists or will arise instantly upon knocking, a
magistrate judge is acting within the Constitution to authorize a ‘no-knock’
entry”). The showing an officer must make to receive a “no-knock” warrant “is
not high.” Richards, 520 U.S. at 394. In determining whether reasonable
15
suspicion exists to justify a “no-knock” entry, we consider the totality of the
circumstances. Banks, 540 U.S. at 36.4
We have not yet had occasion to address the requirements for a “no-knock”
entry, but the Supreme Court has done so on several occasions, and our sister
circuits have heeded the Court’s observation that the officer’s burden “is not high.”
See, e.g., United States v. Stevens, 439 F.3d 983, 988-89 (8th Cir. 2006) (finding a
“no-knock” provision justified based on information from a confidential informant
that a sawed-off shotgun was kept in a common area of the house to be searched);
United States v. Musa, 401 F.3d 1208, 1214 (10th Cir.), cert. denied, 126 S. Ct.
295 (2005) (finding a “no-knock” entry justified when the case involved a search
for drugs and where defendant had a violent past that included gun charges and
assaults on law enforcement officers); United States v. Wardrick, 350 F.3d 446,
451-52 (4th Cir. 2003) (“no-knock” search warrant justified where subject had a
history of violent crime and authorities believed he would be armed and home at
4
A federal statute also provides that an officer may break open a door or window to
execute a search warrant if, “after notice of his authority and purpose, he is refused admittance
or when necessary to liberate himself or a person aiding him in the execution of the warrant.” 18
U.S.C. § 3109. The Supreme Court has held that “§ 3109 includes an exigent circumstances
exception and that the exception’s applicability in a given instance is measured by the same
standard we articulated [under the Fourth Amendment] in Richards.” United States v. Ramirez,
523 U.S. 65, 73 (1998). Thus, the federal statute “does not entitle a defendant to greater
protections than does the Fourth Amendment.” United States v. Scroggins, 361 F.3d 1075, 1080
(8th Cir. 2004). Accordingly, we need only evaluate Segura-Baltazar’s claims under the Fourth
Amendment. See id.
16
the time of the search).
In this case, the affidavit in support of the search warrant reveals that
officers recovered the following items pregnant with the possibility of violence
from Segura-Baltazar’s trash: labels for two different types of magazines for
semiautomatic handguns, an empty box of 12-gauge shotgun shells, and one live
round of .45-caliber ammunition. That evidence sufficiently supported the
conclusion that there were weapons in the house. Moreover, the officer also set
forth in the affidavit that he recovered empty boxes that likely once contained
wireless surveillance cameras and monitors that “have the ability to ‘see’ in low
light conditions.” The officer asserted that based on his experience, “these types of
cameras are utilized by individuals who engage in the distribution of illegal drugs
as counter surveillance, to protect their business and provide early warning of those
who might be surveying their residence to include law enforcement.” Based on
that evidence, the magistrate judge who issued the “no-knock” warrant was well
within his discretion to conclude that knocking either might be dangerous or inhibit
the effective investigation of this drug crime by allowing for the destruction of
contraband evidence. See Richards, 520 U.S. at 394.
Segura-Baltazar argues, nevertheless, that evidence of guns or drugs is not
independently sufficient to justify a “no-knock” warrant. Some circuits have found
17
that evidence of a firearm in a home does not alone create a basis for a “no-knock”
entry. See, e.g., United States v. Bates, 84 F.3d 790, 795 (6th Cir. 1996) (holding
that “[e]vidence that firearms are within a residence, by itself, is not sufficient to
create an exigency to officers when executing a warrant”). We need not address
that question, because this case involves not only evidence of firearms (including
magazines for semiautomatic handguns, an empty box of shotgun shells, and a live
.45-caliber round) in the house, but also palpable indicators that the homeowner
may have installed countersurveillance security measures that could readily
provide the inhabitants with immediate knowledge of police presence on the
property. The combination of weapons and countersurveillance devices in this
drug case easily provides the reasonable suspicion that knocking would be
dangerous or would allow the destruction of evidence. See United States v. Cline,
349 F.3d 1276, 1289-90 (10th Cir. 2003) (finding entry justified when officers
waited only ten seconds after knocking where there was evidence of weapons and
cameras that would have immediately alerted the suspect that officers were on the
property); United States v. Nunn, No. 91-50471, 1992 WL 21586, at *4 (9th Cir.
Feb. 10, 1992) (mem. unpublished opinion) (finding a “no-knock” entry justified
where officers knew the subject was armed and the house had a closed-circuit
camera system monitoring the grounds).
18
We have repeatedly said that when reviewing “the legitimacy of search
warrants,” we should not examine the “supporting affidavits in a hypertechnical
manner; rather, a realistic and commonsense approach should be employed so as to
encourage recourse to the warrant process.” United States v. Miller, 24 F.3d 1357,
1361 (11th Cir. 1994). We think it abundantly clear that a suspect’s privacy and
liberty interests are far more likely to be protected when a detached, neutral
magistrate has the opportunity to review the evidence and rule on the efficacy of a
“no-knock” provision. The police gathered substantial evidence in this drug
investigation revealing that there were likely both guns and countersurveillance
equipment located in the home, thereby demonstrating a reasonable suspicion that
knocking and announcing would have been dangerous. The government need
show no more. The “no-knock” provision authorized by the magistrate was proper,
and the district court did not err in denying the motion to suppress.
IV.
Finally, Segura-Baltazar argues, as to sentencing, that the district court
“erred in calculating the base offense level using the total weight of
methamphetamine mixture seized, rather than only the amount of pure
methamphetamine.” The defendant was sentenced to 120 months on counts one
and two and 60 months on count three, for a total sentence of 180 months. The
19
120-month sentence resulted from a mandatory minimum 10-year requirement for
possessing at least 500 grams of a mixture or substance containing a detectable
amount of methamphetamine.5 The government claims that the argument is moot,
that regardless of Segura-Baltazar’s base offense level, he was subject to a
mandatory minimum of ten years’ imprisonment, which is precisely the sentence
he received. Therefore, it says, any error the district court may have made in
calculating the guideline range is irrelevant; to the extent the range was lower than
120 months, the mandatory minimum 10-year term controlled. See U.S.S.G. §
5G1.1(b) (“Where a statutorily required minimum sentence is greater than the
maximum of the applicable guideline range, the statutorily required minimum
sentence shall be the guideline sentence.”).
Segura-Baltazar’s argument is not moot. We believe the argument Segura-
Baltazar has made is more in the nature of a challenge to the sufficiency of the
evidence. Essentially, he says that the evidence was insufficient to support the
drug quantity necessary to trigger the mandatory minimum. We do not read his
challenge as addressing the district court’s guideline calculation. Rather, we view
his argument as saying that the evidence did not establish the existence of at least
“500 grams or more of a mixture or substance containing a detectable amount of
5
Segura-Baltazar does not challenge the 60 months he received for count three.
20
methamphetamine, its salts, isomers, or salts of its isomers,” which was necessary
to trigger the 10-year mandatory minimum. See 21 U.S.C. § 841(b)(1)(A)(viii).
That is the argument he made before the district court, that is the argument we
believe he makes in his appellate brief, that is the argument the government
addressed in its appellate brief, and that is what was discussed at oral argument.
Accordingly, we address it now.
Segura-Baltazar waived a jury trial, and the parties presented the district
court with a joint set of stipulated facts. In that stipulation, both sides agreed that
Officer Gooden, if called, would testify that he recovered from the house at 480
Sheringham Court “1.2 kilograms (net weight) of mixture and substance with a
detectible amount of methamphetamine and dimethyl sulfone, a common ‘cutting’
agent for methamphetamine. The quantitative result of the mixture was less than
1%.” If that mixture qualifies as a “mixture or substance containing a detectable
amount of methamphetamine” as that phrase is used in 21 U.S.C. §
841(b)(1)(A)(viii), then Segura-Baltazar was subject to a 10-year statutory
mandatory minimum, and not a Guideline range of 87 to 108 months, which the
parties otherwise agree would have been the correct Guideline recommendation.6
6
Moreover, the district court unambiguously said on the record that it would have
imposed a sentence of 87 months if it was not bound by the mandatory minimum. So if there
was error it was not harmless.
21
In short, the question is whether the “mixture” in this case satisfies the legal
definition of a “mixture” under section 841. The district court held that it did and
we agree.
As we have noted already, section 841 of Title 21 imposes a 10-year
mandatory minimum for possession of “500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine, its salts, isomers,
or salts of its isomers.” 21 U.S.C. § 841(b)(1)(A)(viii). In Chapman v. United
States, 500 U.S. 453 (1991), the Supreme Court squarely ruled that it is proper to
include the weight of a cutting agent when determining the total weight of a
“mixture or substance containing a detectable amount” of a particular drug. Id. at
459-60 (quoting 21 U.S.C. § 841(b)(1)(A)). The Court acknowledged that “[i]n
some cases, the concentration of the drug in the mixture is very low,” but
nevertheless determined that Congress intended for the entire mixture or substance
to be weighed so “long as it contains a detectable amount” of the drug. Id. at 459-
61 (“Congress adopted a ‘market-oriented’ approach to punishing drug trafficking,
under which the total quantity of what is distributed, rather than the amount of pure
drug involved, is used to determine the length of the sentence.”). In reaching that
conclusion, the Court described a “mixture” in these terms:
A “mixture” is defined to include “a portion of matter consisting of
two or more components that do not bear a fixed proportion to one
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another and that however thoroughly commingled are regarded as
retaining a separate existence.” A “mixture” may also consist of two
substances blended together so that the particles of one are diffused
among the particles of the other.
Id. at 462 (citation omitted). The Court distinguished a “mixture” from a
“container,” such as a bottle or a car, from which a drug is easily distinguished and
separated. Id. at 462-63.
Here, there is no disagreement that the methamphetamine was combined
with dimethyl sulfone, a common cutting agent. Segura-Baltazar simply argued
that the mixture was so diluted it would not be marketable or usable on the streets.
See United States v. Rolande-Gabriel, 938 F.2d 1231, 1237 (11th Cir. 1991)
(adopting a market approach and holding that “[t]he entire weight of drug mixtures
which are usable in the chain of distribution should be considered in determining a
defendant’s sentence”). The district judge rejected the argument at trial and again
at sentencing, noting that “I don’t necessarily agree with you that nobody on the
street would buy it.”
Because the methamphetamine undeniably was mixed with a cutting agent,
we hold that the district judge properly considered the combined weight of the
cutting agent and the methamphetamine in concluding that the government carried
its burden of proving the defendant was responsible for at least 500 grams of a
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mixture or substance containing a detectable amount of methamphetamine. Quite
simply, “Congress has made the policy decision that purity is not an element of §
841(b)(1)(A)(viii).” United States v. Gori, 324 F.3d 234, 239 (3d Cir. 2003)
(relying on Chapman and finding threshold for mandatory minimum satisfied
where the average purity of the drugs seized was 2.7%). When the weight of the
entire mixture is considered, it easily exceeds the 500-gram threshold necessary to
trigger the mandatory minimum, and the district court’s 10-year sentence was
correct.
Segura-Baltazar contends that this case is controlled by United States v.
Jackson, 115 F.3d 843 (11th Cir. 1997). We remain unpersuaded. In Jackson, we
considered a package that contained some 1004 grams of sugar and 10 grams of
cocaine. Notably, the sugar was not used as a cutting agent, but was instead
utilized “to trick a purchaser into thinking it was cocaine.” Id. at 848. A chemist
testified that the cocaine was probably placed on the surface of a block of sugar,
and that it likely would not have been detectable if mixed with the sugar. Id.
Moreover, the chemist and a police officer testified that the cocaine, as packaged,
would not have been marketable on the street. Id. Not surprisingly under these
circumstances, we held that the contents of the package did not constitute a
“mixture.” Id. Jackson is distinguishable, however, because the drugs in that case
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were not mixed with a cutting agent and were not marketable or usable. The block
of sugar in Jackson, which was essentially used to carry the cocaine, is more
analogous to a container than a mixture. See Chapman, 500 U.S. at 462-63. Thus,
Jackson does not suggest that the weight of the cutting agent should have been
excluded. See United States v. Grant, 397 F.3d 1330, 1336 (11th Cir. 2005) (“We
conclude that the district court should use the weight of the liquid LSD [which
includes the water carrying medium] in applying Grant’s statutory minimum
sentence.”).
In sum, the district court did not err in declining to suppress the evidence
seized from the trash pulls or from the house. Moreover, it correctly considered
the combined weight of the methamphetamine and the cutting agent in concluding
that the government satisfied its burden of establishing at least 500 grams of a
mixture or substance containing a detectable amount of methamphetamine. Thus,
we affirm both the conviction and the sentence.
AFFIRMED.
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