United States v. Salvador Villanueva-Fabela ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 27, 2006
No. 05-15156 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00474-CR-6-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SALVADOR VILLANUEVA-FABELA,
a.k.a. Chava,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 27, 2006)
Before BLACK and HULL, Circuit Judges, and RYSKAMP,* District Judge.
*
Honorable Kenneth L. Ryskamp, United States District Judge for the Southern District
of Florida, sitting by designation.
PER CURIAM:
Defendant Salvador Villanueva-Fabela (“Villanueva-Fabela”) appeals his
drug and firearms convictions and sentences. On appeal, Villanueva-Fabela argues
that the district court erred by (1) denying his motion to suppress evidence seized
from his trailer home; and (2) enhancing his sentence based on his role in the
offense. After oral argument and a thorough review of the record, we affirm.
I. BACKGROUND
On August 8, 2003, Atlanta Police Department officers reported to a trailer
park located at 501 Connell Avenue and surrounded trailer E-1 after receiving
information that a suspect involved in a shooting was last seen entering that trailer.
Because the suspect, later identified as Gilibaldo Villanueva-Fabela (“Gilibaldo”),
had relatives who lived in trailer C-1, several officers also established a perimeter
around trailer C-1 in order to look for the suspect.
While officers were standing outside of trailer E-1, Gilibaldo exited the
trailer and stood on the front porch. The officers instructed Gilibaldo to stop and
raise his hands. Gilibaldo started to raise his hands, but then lowered them and
attempted to reach for his pants pocket. As a result, the officers approached
Gilibaldo with their weapons drawn, demanding that he raise his hands. Gilibaldo
complied and was placed in handcuffs. After noticing a bulge in Gilibaldo’s pants
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pocket, officers patted him down and discovered a loaded revolver and some
ammunition.
At that time, two other individuals, later identified as Pedro Villanueva-
Fabela (“Pedro”) and Alexandro Plancarte (“Plancarte”), exited trailer E-1 and
were searched. A pistol was recovered from Plancarte’s pocket. The officers then
conducted a security sweep inside trailer E-1 for their safety and observed in plain
view a block of marijuana, a large amount of suspected methamphetamine, a set of
scales, and several rifles. The officers secured the area while one of them left to
obtain a search warrant.
Meanwhile, the officers stationed outside of trailer C-1 detected a strong
odor of raw or bulk marijuana coming from the trailer. Because of this odor, the
officers continued to investigate trailer C-1 even after Gilibaldo had been
apprehended at trailer E-1. At some point, the officers approached Defendant
Villanueva-Fabela, who was sitting on the front porch of trailer C-1, and placed
him in handcuffs. Villanueva-Fabela’s common-law wife, Norma Lopez, and their
children also were present at the scene. Because neither Villanueva-Fabela nor
Lopez understood English, Officer Medina, a Spanish speaking officer, was called
to the scene in order to translate, inquire about the ownership of trailer C-1, and try
to obtain consent to search the trailer. Officer Medina, who was wearing a full
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uniform and badge but did not have his gun drawn, explained to the couple that the
other officers wanted to look for drugs, weapons, and other contraband, and
requested their consent to search.
Officer Medina also provided Defendant Villanueva-Fabela and Lopez with
a consent-to-search form in Spanish, which he also read to them. As Officer
Medina read the form, he asked Lopez and Defendant Villanueva-Fabela whether
they understood what he was saying, and neither one of them expressed any
misunderstanding or confusion. Officer Medina also explained that they had the
right to refuse consent. Officer Medina indicated, however, that if they refused to
give consent to search, the officers would obtain a search warrant for the premises.
During this encounter, Defendant Villanueva-Fabela was not very talkative, but he
did indicate that he understood the contents of the form by nodding and saying
“yes” in Spanish when asked if he consented. Lopez wrote her name and
Defendant Villanueva-Fabela’s name on the top of the form. Villanueva-Fabela
then signed the bottom of the consent form, but his signature was in the wrong
space on the form.
Once the officers at trailer C-1 had obtained consent to search, they began to
search trailer C-1. During the search, Officer Medina remained with Lopez and
Defendant Villanueva-Fabela in case they decided to revoke their consent. With
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the help of a canine unit, the officers located and seized approximately one pound
of marijuana from underneath trailer C-1. The officers also found a sawed-off
shotgun in a bedroom, as well as a few other firearms inside trailer C-1. Defendant
Villanueva-Fabela was placed under arrest.
Back at trailer E-1, the officers began to search the trailer after successfully
obtaining a search warrant. During the search of trailer E-1, the officers located
and seized (1) a large block of compressed marijuana weighing approximately ten
pounds; (2) 2,086 grams of methamphetamine; (3) a total of seventeen firearms,
including a Mac-11 machine pistol; and (4) approximately $20,000 in U.S.
currency. Gilibaldo, Pedro, and Plancarte were placed under arrest.
About a month later, Defendant Villanueva-Fabela, who had been released
on bond following his August 8, 2003 arrest at trailer C-1, was placed under arrest
on September 11, 2003, for federal charges stemming from his possession of a
sawed-off shotgun. That same day, based on information received from
Villanueva-Fabela’s girlfriend, Ashley Ortiz, law enforcement officers conducted a
search of a hotel room in which Villanueva-Fabela and Ortiz had been staying.
During the search, the officers located and seized several items, including (1) 439.6
grams of methamphetamine; (2) approximately 50 tablets of
3,4 methylenedioxymethamphetamine (also known as “MDMA” or “ecstasy”);
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(3) a small amount of marijuana; and (4) approximately $20,000 in U.S. currency.
In September 2004, a federal grand jury returned a multiple count indictment
against Defendant Villanueva-Fabela and various co-conspirators. The indictment
charged Defendant Villanueva-Fabela with (1) conspiracy to distribute and possess
with intent to distribute at least 500 grams of a mixture or substance containing a
detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A)(viii) (Count One); (2) conspiracy to possess firearms, including a
Mac-11 machine pistol and a Jennings chrome 9mm handgun, in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1) and 371 (Count
Two); (3) possession of a firearm, specifically the Mac-11 machine pistol
described in Count Two, in furtherance of a drug trafficking crime, in violation of
18 U.S.C. §§ 924(c)(1)(B)(ii) and 2 (Count Seven); (4) possession with intent to
distribute at least 500 grams of a mixture or substance containing a detectable
amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(viii) and 18 U.S.C. § 2 (Count Eight); (5) possession with intent to
distribute a detectable amount of marijuana, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(C) and 18 U.S.C. § 2 (Count Nine); (6) possession of an unregistered
firearm, specifically a shotgun with a barrel less than 18 inches in length, in
violation of 26 U.S.C. §§ 5841, 5861(d), and 5871 (Count Twelve); (7) possession
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of a firearm by an illegal alien, specifically the shotgun described in Count Twelve,
in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2) (Count Thirteen);
(8) possession of a firearm, specifically the Jennings chrome 9mm handgun
described in Count Two, in furtherance of a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(1) (Count Fourteen); (9) possession with intent to distribute at
least 50 grams of a mixture or substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii) and 18
U.S.C. § 2 (Count Fifteen); and (10) possession with intent to distribute MDMA, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2 (Count
Sixteen). Villanueva-Fabela pled not guilty to all charges.
Before trial, Defendant Villanueva-Fabela filed a motion to suppress,
asserting that all evidence seized during the search of trailer C-1 should be
excluded. In particular, Villanueva-Fabela argued that any consent given to
conduct the search of trailer C-1 was invalid and only given after his allegedly
improper detention. After conducting a hearing, the magistrate judge found that
Villanueva-Fabela’s consent was voluntarily given and recommended that his
motion to suppress be denied. Over Villanueva-Fabela’s objection, the district
court adopted the magistrate judge’s recommendation and denied the motion to
suppress.
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Immediately preceding his jury trial, Villanueva-Fabela entered an
unconditional, non-negotiated plea of guilty to Counts Twelve and Thirteen, which
counts were based on Villanueva-Fabela’s possession of the sawed-off shotgun
found in trailer C-1. The district court accepted Villanueva-Fabela’s guilty plea,
finding that it was made knowingly and voluntarily, and adjudged him guilty of the
firearm offenses charged in Counts Twelve and Thirteen. Villanueva-Fabela then
proceeded to trial on the remaining counts in the indictment.
At trial, the government called several witnesses who testified about
purchasing drugs from Defendant Villanueva-Fabela or from one of his co-
conspirators. One witness, Jamie Brown, testified that he began purchasing
methamphetamine from Villanueva-Fabela in the summer of 2003. Brown first
met Villanueva-Fabela at trailer C-1 and, with the help of Villanueva-Fabela’s
brother to translate, purchased two ounces of methamphetamine from Villanueva-
Fabela. Thereafter, Brown began visiting the trailer park on a daily basis in order
to purchase approximately four to six ounces of methamphetamine from
Villanueva-Fabela per visit. Brown testified that these transactions had taken place
at both trailer C-1 and trailer E-1, but that trailer E-1 was the primary location for
these transactions after the first month. Several times Brown gave Villanueva-
Fabela firearms instead of cash in order to pay for the methamphetamine he was
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purchasing. On one occasion, Brown gave Villanueva-Fabela the Mac-11 machine
pistol that subsequently was found in trailer E-1 in exchange for some
methamphetamine.1
Another witness, Laura Adams, testified that she purchased
methamphetamine from Brown during the summer of 2003. Adams accompanied
Brown on two occasions to a trailer park in which Brown met with Villanueva-
Fabela in order to purchase methamphetamine. Adams identified trailer E-1 as the
trailer in which these meetings occurred. At one of these meetings, Villanueva-
Fabela took Adams into a bedroom and showed her several firearms.
The jury found Villanueva-Fabela guilty on all remaining counts in the
indictment except for Count Fourteen.2 Although the jury made several specific
findings with regard to the quantity of methamphetamine involved, there was no
specific finding as to the amount of marijuana that Villanueva-Fabela had
possessed.
According to a presentence investigation report (“PSI”), Villanueva-Fabela’s
base offense level was 38, pursuant to U.S.S.G. § 2D1.1(c)(1), based on the jury’s
1
The Mac-11 machine pistol found in trailer E-1 was easily identified by Brown at trial as
the one he had given Defendant Villanueva-Fabela because of modifications made to the gun to
convert it into an automatic weapon.
2
Count Fourteen charged Defendant Villanueva-Fabela with possession of a Jennings
chrome 9mm handgun. Although multiple witnesses testified about the Jennings gun, the gun
apparently was not found during any of the searches conducted in this case.
9
finding that Villanueva-Fabela conspired to possess with intent to distribute at least
15 kilograms of methamphetamine. Because this was the highest possible base
offense level under § 2D1.1, the PSI noted that Villanueva-Fabela’s possession of
marijuana and ecstacy had no bearing on the sentencing calculations. The PSI also
recommended a four-level enhancement, pursuant to U.S.S.G. § 3B1.1(a), based on
Villanueva-Fabela’s role as an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive. With a total offense
level of 42 and a criminal history category of I, the advisory Guidelines range was
360 months to life imprisonment.
Villanueva-Fabela objected to the PSI, arguing, inter alia, that there was no
evidence to support the four-level role enhancement. Specifically, Villanueva-
Fabela argued that the other participants in the conspiracy were merely drug
buyers, and that a buyer-seller relationship was insufficient to warrant the
enhancement.
At sentencing, the government conceded that the four-level enhancement
was not proper but argued that a two-level role enhancement, pursuant to U.S.S.G.
§ 3B1.1(c), applied. The government emphasized that Villanueva-Fabela exercised
control and authority over other individuals involved in this criminal activity,
namely Plancarte, Villanueva-Fabela’s two brothers, and at times, Ortiz. To
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demonstrate Villanueva-Fabela’s role, the government presented the testimony of
Brown and Adams.
At sentencing, Brown testified that he purchased methamphetamine from
Villanueva-Fabela, but explained that Villanueva-Fabela was not always present at
the time of purchase. When this occurred, Brown would call Villanueva-Fabela on
his cell phone. Villanueva-Fabela would then talk with either Plancarte or
Villanueva-Fabela’s brother, whoever was present at the trailer, and one of these
individuals would retrieve the methamphetamine for Brown. In addition, Brown
sometimes would give Plancarte or Villanueva-Fabela’s brother money for drugs
that had been fronted to him when Villanueva-Fabela was not present.
At sentencing, Adams testified that the two times she met with Villanueva-
Fabela at the trailer park there were always other people around who were
associated with Villanueva-Fabela. According to Adams, Villanueva-Fabela
would never leave the room, but instead would direct these other people to retrieve
whatever he needed, including bringing methamphetamine to sell to Brown or
Adams.
The district court agreed that the four-level enhancement was not
appropriate, but found that the evidence was sufficient to support a two-level
enhancement for Villanueva-Fabela’s role in the offense. The court found that
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Villanueva-Fabela did direct the activities of Plancarte, and that Villanueva-
Fabela’s brothers also seemed to be under his control. The court also found that
Villanueva-Fabela had a high level of responsibility, relative to the other members
of the conspiracy, and that Villanueva-Fabela exercised management responsibility
over the property, the assets, and the activities of the organization. Accordingly,
the district court found that the two-level enhancement applied, resulting in an
offense level of 40 and an advisory Guidelines range of 292 to 365 months.
The district court sentenced Villanueva-Fabela to terms of imprisonment of
292 months on Counts One, Eight, and Fifteen, 60 months on Count Two, 240
months on Counts Nine and Sixteen, and 120 months on Counts Twelve and
Thirteen, all to run concurrently. The district court also sentenced
Villanueva-Fabela to 60 months’ imprisonment on Count Seven, to run
consecutively, for a total sentence of 352 months’ imprisonment. This appeal
followed.
II. DISCUSSION
A. Denial of Motion to Suppress
On appeal, Villanueva-Fabela argues that the district court erred by denying
his motion to suppress evidence seized from trailer C-1.3 Specifically, Villanueva-
3
We review de novo the district court’s denial of a motion to suppress, viewing all
evidence in the light most favorable to the party that prevailed below. United States v.
12
Fabela argues that his consent to search was not valid because (1) the consent form
was not signed in the proper space; (2) the environment was coercive; (3) he was
not given Miranda warnings; (4) the consent was merely an acquiescence to a
claim of lawful authority after the officers stated that they would get a warrant if
they were not given consent to search; and (5) the consent was tainted by his illegal
seizure.
The question of whether a consent to search was voluntarily given is a
question of fact to be determined from the totality of the circumstances.
Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2047-48 (1973).
“A district court’s determination that consent was voluntary is a finding of fact,
that will not be disturbed on appeal absent clear error.” United States v. Purcell,
236 F.3d 1274, 1281 (11th Cir. 2001). After review and oral argument, we
conclude that the district court did not clearly err in determining that Villanueva-
Fabela’s consent was voluntarily given and did not err in denying Villanueva-
Fabela’s motion to suppress.
First, viewing the evidence in the light most favorable to the government,
Villanueva-Fabela consented to the search, both verbally and in writing. As
Officer Medina was reading the consent form to Villanueva-Fabela and Lopez,
Yuknavich, 419 F.3d 1302, 1308 (11th Cir. 2005).
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Villanueva-Fabela indicated that he understood, and he said “yes” in Spanish when
asked if he consented. Moreover, although in the wrong space, Villanueva-Fabela
nonetheless signed his name at the bottom of the consent form, further indicating
that he consented to the search.4
Second, the environment in which Villanueva-Fabela gave his consent was
not coercive. Although the officers were in full uniforms, there is no evidence that
any of the officers at trailer C-1 had drawn their weapons or threatened Villanueva-
Fabela in any way. Moreover, although Villanueva-Fabela was placed in
handcuffs, this factor alone does not make the consent involuntary. See United
States v. Garcia, 890 F.2d 355, 362 (11th Cir. 1989) (finding consent voluntarily
given even though fourteen law enforcement agents were present when the
defendant was arrested and the defendant was handcuffed at the time he gave
consent). In fact, we have found a defendant’s consent to be voluntary in
situations far more intimidating than the circumstances of this case. See, e.g.,
United States v. Hidalgo, 7 F.3d 1566, 1571 (11th Cir. 1993) (concluding consent
voluntarily given even though the defendant had been “arrested by SWAT team
members who broke into his home in the early morning, woke him, and forced him
4
The district court also found that Lopez, the common-law wife of Villanueva-Fabela,
independently consented to the search of trailer C-1. The government argues that even if there is
some issue about Villanueva-Fabela’s consent, the consent of Lopez supports the search.
Because we conclude that Villanueva-Fabela’s consent was valid, we need not reach this issue.
14
to the ground at gunpoint”); United States v. Espinosa-Orlando, 704 F.2d 507, 510,
513 (11th Cir. 1983) (concluding consent voluntarily given after four officers had
drawn their weapons, asked the defendant to step away from his car, told him to lie
on the grass, and asked for consent while he was on the ground and one officer still
had his weapon drawn). Accordingly, we agree with the district court that there
was nothing particularly coercive about the circumstances surrounding Villanueva-
Fabela’s consent.
Third, the fact that Villanueva-Fabela may not have been given Miranda
warnings prior to giving his consent does not invalidate the consent. This Court
previously explained that a consent to search is not a self-incriminating statement,
and therefore, that a defendant’s consent can be valid even if it was obtained after
he had been given Miranda warnings and had invoked his right to remain silent.
Hidalgo, 7 F.3d at 1568. Based on this reasoning, we must reject Villanueva-
Fabela’s argument that his consent was invalid based on the alleged failure to give
Miranda warnings.
Fourth, Villanueva-Fabela’s consent was not merely an acquiescence to a
claim of lawful authority based on Officer Medina’s comment that the police
would obtain a warrant if he did not consent. Villanueva-Fabela relies on Bumper
v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788 (1968) to support his position. In
15
Bumper, the Supreme Court concluded that a consent to search was invalid if given
“only after the official conducting the search has asserted that he possesses a
warrant.” Id. at 548-50, 88 S. Ct. 1791-92. Here, Officer Medina never asserted
that the police already possessed a warrant; he stated only that if Villanueva-Fabela
refused to consent to the search the police would obtain a warrant. Accordingly,
Bumper does not control the outcome in this case. Rather, this case is more closely
akin to Garcia, in which the officers attempting to elicit a consent stated that if the
defendant refused to consent, they would have to secure the house and attempt to
obtain a search warrant. 890 F.2d at 358. In Garcia, this Court concluded that the
defendant’s consent was not merely acquiescence to a claim of lawful authority,
noting that “[t]he agents never represented to Garcia that they were in possession
of a search warrant, or that they could lawfully search his premises without his
consent.” Id. at 361. The key distinction between Bumper and Garcia is whether
the officers ever represented that they could lawfully conduct the search regardless
of whether consent was given. In this case, like in Garcia, the officers never
represented to Villanueva-Fabela that they possessed a search warrant or otherwise
had the authority to search the trailer. Accordingly, we conclude that Villanueva-
Fabela’s consent was not merely the result of acquiescence to a claim of lawful
authority.
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Fifth, we reject Villanueva-Fabela’s argument that his consent was tainted
by an illegal seizure. When the officers approached trailer C-1, they smelled a
strong odor of marijuana coming from the trailer. This, coupled with the fact that
the police were called to the scene to look for a shooting suspect, gave the officers
reasonable suspicion to detain Villanueva-Fabela for their own safety, pursuant to
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). Moreover, the fact that
Villanueva-Fabela was handcuffed does not necessarily transform the detention
into an arrest. See United States v. Acosta, 363 F.3d 1141, 1147 (11th Cir. 2004).
Finally, the scope of the detention was carefully tailored to its underlying
justification and lasted no longer than was necessary to effectuate the purpose of
the stop. See Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983).
Accordingly, based on the totality of the circumstances, we conclude that
Villanueva-Fabela was properly detained prior to giving consent, and therefore,
that his consent was not tainted by an illegal seizure.
Finally, even if we assume arguendo that Villanueva-Fabela’s consent was
invalid and the search of trailer C-1 was unconstitutional, any error in denying
Villanueva-Fabela’s motion to suppress was harmless beyond a reasonable doubt.
See Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 827 (1967) (concluding
that some constitutional errors are “so unimportant and insignificant” that they may
17
be deemed harmless). The overwhelming evidence of Villanueva-Fabela’s guilt at
trial was based on the evidence seized from trailer E-1 and the hotel room, not
from trailer C-1, and thus, Villanueva-Fabela cannot show that he was prejudiced
by the introduction of the evidence seized from trailer C-1.
Based on the foregoing, we conclude that the district court did not err in
denying Villanueva-Fabela’s motion to suppress, and we affirm Villanueva-
Fabela’s convictions.
B. Enhancement for Villanueva-Fabela’s Role in the Offense
Villanueva-Fabela argues that the district court erred by applying a two-level
enhancement to his offense level based on his leadership role in the offense,
pursuant to U.S.S.G. § 3B1.1(c).5 Section 3B1.1(c) provides for a two-level
enhancement “[i]f the defendant was an organizer, leader, manager, or supervisor
in any criminal activity other than” one that involved five or more participants or
was otherwise extensive. U.S.S.G. § 3B1.1(c). “Section 3B1.1 requires the
exercise of some authority in the organization, the exertion of some degree of
control, influence, or leadership.” United States v. Yates, 990 F.2d 1179, 1182
(11th Cir. 1993) (quotation omitted). However, “the assertion of control or
influence over only one individual is enough to support a § 3B1.1(c)
5
We review the district court’s determination of a defendant’s role in the offense for clear
error. See United States v. Gordon, 231 F.3d 750, 754 (11th Cir. 2000).
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enhancement.” United States v. Jiminez, 224 F.3d 1243, 1251 (11th Cir. 2000).
We conclude that the district court did not clearly err in determining that
Villanueva-Fabela exercised a leadership or management role in the offense. The
evidence in this case indicated that Villanueva-Fabela exercised some control over
other participants, including Plancarte, Villanueva-Fabela’s brothers, and Ortiz,
and that Villanueva-Fabela occupied a leadership role in the conspiracy. Given
this evidence, we cannot say that the district court clearly erred when it determined
that Villanueva-Fabela had occupied a leadership role in the offense. Accordingly,
we affirm his sentences.
III. CONCLUSION
Based on the foregoing reasons, we affirm Villanueva-Fabela’s convictions
and sentences.
AFFIRMED.
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