United States v. Zuleyka Jeanette Colon-Rivera , 711 F. App'x 595 ( 2018 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10874
Non-Argument Calendar
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D.C. Docket No. 6:16-cr-00055-CEM-KRS-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ZULEYKA JEANETTE COLON-RIVERA,
a.k.a. Mia,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 16, 2018)
Before WILLIAM PRYOR, NEWSOM and ANDERSON, Circuit Judges.
PER CURIAM:
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Zuleyka Colon-Rivera appeals her convictions and sentence of 240 months
for one count of conspiring to distribute heroin and for three counts of distributing
and possessing with intent to distribute heroin. 21 U.S.C. § 841(b)(1)(A)(i),
(b)(1)(C); 18 U.S.C. § 2. Colon-Rivera challenges the denial of her motion to
suppress on the ground that law enforcement officers used the knock and talk
exception to the warrant requirement of the Fourth Amendment as a subterfuge for
an investigatory search. Colon-Rivera also challenges the substantive
reasonableness of her below-guidelines sentence. We affirm.
The district court did not err by denying Colon-Rivera’s motion to suppress.
“The Fourth Amendment, which prohibits unreasonable searches and seizures by
the government, is not implicated by entry upon private land to knock on a
citizen’s door for legitimate police purposes unconnected with a search of the
premises.” United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006). Agents
Mark Lee and Daniel Paul Tilton of the Drug Enforcement Agency testified that
they visited Colon-Rivera’s home to confirm that she had used the alias “Mia” to
sell heroin to an undercover officer who could not positively identify the seller.
The district court was entitled to credit the agents’ explanation for their visit.
See United States v. Ramirez–Chilel, 289 F.3d 744, 749 (11th Cir. 2002). Lee,
Tilton, and the undercover officer surveilled Colon-Rivera’s home from the street
until they saw her admit a visitor at 9:20 a.m. They followed the visitor to his
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vehicle where he surrendered 13 bags of heroin. See Kyllo v. United States, 533
U.S. 27, 32 (2001) (“visual observation is no ‘search’ at all”). Lee and Tilton
knocked on Colon-Rivera’s door because they had yet to ascertain Mia’s identity
from coconspirators being apprehended by other federal agents. Colon-Rivera
agreed to speak to the agents in her kitchen, see Illinois v. Rodriguez, 497 U.S.
177, 181 (1990), and allowed Tilton to “take a look” around her home to ensure
that she was the only occupant, see Maryland v. Buie, 494 U.S. 325, 327 (1990).
Tilton then informed Colon-Rivera of her rights to silence and counsel, which she
waived. See United States v. Pineiro, 389 F.3d 1359, 1366–67 (11th Cir. 2004).
Colon-Rivera disavowed any involvement in the drug sale, but she incriminated
herself by uttering the undercover officer’s name as the officer entered the kitchen.
After the agents arrested Colon-Rivera, they were allowed to ask her to consent to
a search of her home. See United States v. Hidalgo, 7 F.3d 1566, 1571 (11th Cir.
1993). The agents conducted a valid knock and talk, which led to a consensual
search of Colon-Rivera’s home.
The district court did not abuse its discretion when it sentenced Colon-
Rivera to concurrent sentences of 240 months for conspiring to distribute and for
distributing heroin. Colon-Rivera’s presentence investigation report provided an
advisory sentencing range of 262 to 327 months of imprisonment based on her role
in managing the trafficking organization for 38 weeks, her distribution of 19
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kilograms of heroin, and the seizure of two handguns, currency, and 200 bags of
heroin from her home. Colon-Rivera argued that there was an unwarranted
disparity between her sentencing range and her coconspirators’ sentences of 206
and 168 months, but Colon-Rivera, who went to trial and was found guilty of four
drug offenses, was not similarly situated to her coconspirators who pleaded guilty
to one drug offense. See United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir.
2009). And the district court took into account that Colon-Rivera had been abused
as a child and varied downward to impose a sentence 22 months below her
applicable guideline range. Colon-Rivera argues that the district court punished her
for proceeding to trial as evidenced by its agreement with defense counsel that
Colon-Rivera exhibited “bizarre decision-making” by not pleading guilty. The
district court explained to Colon-Rivera that she was “not being penalized for not
accepting responsibility,” but that she could not receive the same leniency as her
coconspirators after she required the government to go to trial. Colon-Rivera’s
sentence, which is well below her statutory maximum penalty of imprisonment for
life, is reasonable. See United States v. Croteau, 819 F.3d 1293, 1310 (11th Cir.),
cert. denied, 137 S. Ct. 254 (2016).
We AFFIRM Colon-Rivera’s convictions and sentence.
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