United States v. Howe , 139 F. App'x 61 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 30, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 04-4171
v. (D.C. No. 1:02-CR-64-DB)
(District of Utah)
ROBERT LEE HOWE, JR.,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, PORFILIO, Circuit Judges, and BROWNING, District
Judge. **
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable James O. Browning, United States District Judge for the
District of New Mexico, sitting by designation.
After his motion to suppress was denied, United States v. Howe, 313 F.
Supp. 2d 1178 (D. Utah 2003), Robert Lee Howe, Jr. conditionally pled guilty to
two counts of an indictment charging him with possession with intent to distribute
50 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1), and
knowingly and intentionally carrying a firearm during and in relation to a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1). At sentencing, the court
rejected Mr. Howe’s motion to find the Sentencing Guidelines unconstitutional to
defeat a recommended upward departure for obstruction of justice. It then
imposed both a guideline sentence of 22.5 years and, in the wake of Blakely, an
alternative sentence of 16 years. On appeal, Mr. Howe contests the court’s denial
of his motion to suppress the contents of a locked briefcase police broke open and
his post-arrest statements. Adding another ripple “in the stream of Booker-related
cases,” United States v. Magallanez, F.3d , No. 04-8021, 2005 WL
1155913, at *1 (10th Cir. May 17, 2005), Mr. Howe also contends the court
committed constitutional error in enhancing his sentence based on judicially
found facts to which he did not plead. Concluding otherwise, we hold neither the
district court’s denial of the motion to suppress nor its prescient decision to
impose an alternative sentence was error and affirm the judgment.
The district court having fully narrated the facts, we limn only their essence
here. Observing a figure holding a glass pipe and torch lighter and slouched over
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the wheel of a parked car, Roy, Utah Police Officer Adam Szerszen arrested
Robert Lee Howe for possession of drug paraphernalia. 313 F. Supp. 2d at 1181.
After the arrest, Officer Szerszen found vials of a white substance in a pat-down
search which, upon advising Mr. Howe of his rights, Mr. Howe acknowledged
was “crank,” or methamphetamine. In the ensuing search of the vehicle,
substantial quantities of the same white substance, drug paraphernalia, a handgun,
several firearms, and a locked silver briefcase were discovered. Id. at 1182.
Ignoring Mr. Howe’s refusal to reveal the combination to the lock on the
briefcase and request to speak to a lawyer, Officer Szerszen then pried open the
briefcase and found several large packages of methamphetamine. Id. at 1183.
Later, Officer Szerszen submitted an inventory report on Mr. Howe’s impounded
vehicle.
In the district court, Mr. Howe targeted his motion to suppress, generally,
on the theory that the officers’ failure to follow internal Roy City Police
Department written policies on inventory searches rendered the search
unreasonable, and, specifically, on the ground that the search of the locked
briefcase was unreasonable. Methodically and comprehensively, the district court
addressed each of the government’s justifications for establishing the
reasonableness of the search both of the vehicle and the briefcase: (1) search
incident to arrest, (2) automobile search based on probable cause, (3) lawful
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inventory search, and (4) inevitable discovery, and concluded, “the evidence
found in the vehicle would have inevitably been discovered.” Id. at 1187.
Although the court employed these and other factors in denying Mr. Howe’s
motion to suppress, underlying that conclusion was the unrefuted presence of
probable cause.
Further, the court rejected Mr. Howe’s effort to suppress his post-arrest
statement to Officer Szerszen who, he claimed, had failed to adequately convey
his Miranda rights. Miranda v. Arizona, 384 U.S. 436 (1966). Quoting Officer
Szerszen’s testimony, the court relied on California v. Prysock, 453 U.S. 355,
359-60 (1981) (per curiam) (provided officers offer a fully effective equivalent,
an exact incantation of the Miranda warnings is not required), and found Officer
Szerszen’s advisement was in the present tense, directed at the present moment,
“effectively communicat[ing] to Defendant that his right to appointed counsel
existed at that time, not at some point in the future.” 313 F. Supp. 2d at 1188.
“When reviewing the denial of a motion to suppress, we view the evidence
in the light most favorable to the government, accept the district court’s findings
of fact unless clearly erroneous, and review de novo the ultimate determination of
reasonableness under the Fourth Amendment.” United States v. Williams, 403
F.3d 1188, 1193 (10th Cir. 2005) (quoting United States v. Katoa, 379 F.3d 1203,
1205 (10th Cir. 2004), cert. denied, U.S. , 125 S. Ct. 1390 (2005)).
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Notwithstanding Mr. Howe’s efforts to refine each of the contentions previously
presented, 1 we conclude the district court correctly refused to suppress the
evidence and statements and adopt its reasoning and analysis.
Next, Mr. Howe contends the court erred in finding the Sentencing
Guidelines constitutional and in adding a two-level enhancement for obstruction
of justice based on the government’s evidence of Mr. Howe’s attempted escape
from the Weber County Jail. Mr. Howe seeks remand for imposition of the
alternative sentence. The government concedes the sentence imposed constitutes
non-harmless Booker error because the court stated if the Guidelines were not
mandatory it would impose an alternate sentence. Thus, the government agrees
the Guideline sentence should be vacated under United States v. Booker,
U.S. , 125 S. Ct. 738 (2005).
Undisputably, the court’s enhancing Mr. Howe’s sentence based on facts
presented at the sentencing hearing and proved by a preponderance of the
evidence constitutes non-harmless Booker error. United States v. Gonzalez-
1
For example, although Mr. Howe does not contest there was probable cause
to search his vehicle, he contends Carroll v. United States, 267 U.S. 132 (1925),
does not absolutely obviate the requirement to obtain a warrant. Under that
proposition, he contends Officer Szerszan could have obtained a telephonic
warrant under Utah Code Ann. § 77-23-204. However, despite the district
court’s factual finding the inventory search did not follow Roy City Police
Department policies and was, therefore, unreasonable, it still concluded the
doctrine of inevitable discovery overrode that conclusion. Nothing Mr. Howe
argues here alters that analysis.
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Huerta, 403 F.3d 727, 731 (10th Cir. 2005). Consequently, the sentence reflects a
mandatory application of the Guidelines and is erroneous. Nonetheless, at
sentencing, the court expressed its concerns with the harshness of the mandatory
270-month sentence, 210-months on Count 1 and 60-months consecutive on Count
II, and imposed an alternate sentence:
I find Mr. Howe to be a sympathetic person . . . suffering from
depression and I think he’s suffering a lot. I think he has a serious
drug addiction and I haven’t seen any indication from his criminal
history a person who has been involved in serious violent felonies of
any kind or serious drug trafficking felonies. . . .
So in the event Blakely strikes it all down or something like Blakely
[sic] 16 years is the alternative sentence and I think that even that is
on the high side for a, I think unfortunately a person who, who’s
upbringing appears to be difficult, alcoholic parents, a stepfather who
apparently abused him, difficult upbringing, again drinking alcohol at
the age of 8, a lot of drug use and then not a serious addiction he
claims until he hit meth. 2
On this basis the court imposed the alternative sentence of 192 months.
However, unlike United States v. LaBastida-Segura, 396 F.3d 1140 (10th Cir.
2005) (despite Booker objection, even sentence at the bottom of the guideline
range does not fully explain sentencing court’s decision), we are not left “in the
zone of speculation and conjecture.” Id. at 1143. The district court explained
precisely and perspicaciously how it chose to exercise its discretion in selecting
an alternate sentence.
2
The court also recognized Mr. Howe faced another prosecution for escape.
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Mr. Howe pled guilty to all of the facts of both counts of the indictment.
Under the first count, Mr. Howe acknowledged he possessed 50 grams or more of
methamphetamine which subjected him to the mandatory minimum sentence of 21
U.S.C. § 841(b)(1)(A)(viii), “such person shall be sentenced to a term of
imprisonment which may not be less than 10 years or more than life. . . .” Under
18 U.S.C. § 924(c)(1), Mr. Howe’s plea incorporated the penalty of imprisonment
of “not less than 5 years.” Consequently, Mr. Howe’s alternative sentence of 192
months falls within the statutory sentence of both counts. We, therefore,
AFFIRM the judgment sentencing Mr. Howe to the alternate sentence of 192
months, but REMAND so that the District Court can amend the Judgment and
Committal to reflect the alternate sentence is the operative sentence. 3
Entered for the Court
John C. Porfilio
Senior Circuit Judge
3
Because this amendment of the J & C is a ministerial task designed to give
clear guidance to the Bureau of Prisons, the District Court need not hold another
sentencing hearing to accomplish this task. Cf. United States v. Garcia, 893 F.2d
250, 252 (10th Cir. 1989) (“[T]he alternative guidelines sentence is the sentence
that must be applied against defendant.”); United States v. Scott, No. 93-2176,
1994 WL 35027, at **2 (10th Cir. Feb. 7, 1994) (approving the use of alternate
sentence and affirming alternate sentence without remanding case).
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