United States v. Lasdulce , 237 F. App'x 811 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5010
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALBERT GOMEZ LASDULCE, a/k/a Balute,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Walter D. Kelley, Jr., District
Judge. (CR-04-227-WDK)
Submitted: April 6, 2007 Decided: July 11, 2007
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Toni Dorothea Brown, Norfolk, Virginia, for Appellant. Charles
Philip Rosenberg, United States Attorney, Alexandria, Virginia,
Paul Joseph McNulty, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., Laura Marie Everhart, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Albert Gomez Lasdulce was convicted of conspiracy to
distribute and possess with intent to distribute fifty grams or
more of methamphetmine; two counts of distribution of
methamphetamine; and attempted possession with intent to distribute
methamphetamine. He was acquitted of several charges, including
possession of a firearm in furtherance of a drug trafficking
offense. The district court granted Lasdulce’s motion for judgment
of acquittal on one of the distribution counts. He was sentenced
to 240 months in prison. Lasdulce appeals. His attorney has filed
a brief in accordance with Anders v. California, 386 U.S. 738
(1967), raising two issues but stating that there are no
meritorious issues for appeal. Lasdulce has filed a pro se
informal brief raising an additional issue. We affirm.
I
Evidence at trial established that Lasdulce was a member
of a large-scale methamphetamine organization operating in the
Norfolk-Virginia Beach area. Lasdulce was an active
methamphetamine dealer; he sold the drug mainly out of his
residence on Hanyen Drive in Norfolk. His primary supplier was
Jose Deguia, who typically delivered around ten grams of the drug
to Lasdulce twice a week and was paid between $2500 and $3000 for
each delivery.
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Large quantities of methamphetamine were shipped from
California via Federal Express to addresses in Norfolk. One
address was Deguia’s residence at 3004 Glen Drive in Norfolk;
another was Lasdulce’s home. A customer of Lasdulce, Tina Marie
Langer, was at Lasdulce’s home when one such package was delivered.
Langer learned that the package was delivered to Lasdulce’s
residence so that Lasdulce would “take the fall” for Deguia if
authorities were to discover what the package contained. Payment
for the methamphetmine shipment was wired to California via Western
Union.
On March 31, 2004, a narcotics dog working at a Federal
Express office in Norfolk alerted to a package shipped from
California and addressed to 3004 Glen Drive in Norfolk. Officers
obtained a search warrant for the package, which contained
methamphetamine. Officers then obtained an anticipatory search
warrant for the residence. They repackaged the drugs. An officer
disguised as a Federal Express driver attempted to deliver the
package; however, no one answered the door, and the anticipatory
warrant was not executed.
On May 25, 2004, a narcotics dog at the Federal Express
office alerted to two packages addressed to 5368 Hanxen Drive.
Officers assumed that the address had been misspelled and that the
correct spelling was Hanyen. They obtained a search warrant,
opened the packages, and found methamphetamine inside. On May 26,
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an officer dressed as a Federal Express driver attempted delivery
of the packages; however, no one answered the door. Deguia was
seen near the Hanyen Drive house during this time. On May 27,
someone called Federal Express to authorize leaving the packages at
the residence without a signature.
On May 28, a police officer, again dressed as a Federal
Express driver, left the packages on the porch when no one answered
the door. He drove away. Moments later, Lasdulce exited the
residence, picked up the packages, and placed them in a pickup
truck. He was arrested as he got into the truck. Officers
obtained a search warrant for the residence later that day. When
they executed the warrant, they found firearms, material used to
manufacture methamphetamine, and various surveillance devices.
II
Lasdulce claims that the search warrant for his residence
was invalid and that the district court erred when it denied his
motion to suppress evidence seized from his home. According to
Lasdulce, the warrant alleged stale facts and focused primarily on
his codefendant, Deguia, who lived elsewhere. In a related
argument, Lasdulce contends that the district court erred when it
denied his motion for a new trial, which was based on his claim
that evidence seized during the search should not have been
admitted into evidence.
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We review de novo a district court’s disposition of a
motion to suppress. United States v. Hurwitz, 459 F.3d 463, 470
(4th Cir. 2006). In assessing a district court’s ruling, we give
great deference to the determination of probable cause by the
magistrate who issued the search warrant. United States v.
Robinson, 275 F.3d 371, 380 (4th Cir. 2001).
Stale search warrants arise in two situations: (1) when
facts alleged in the warrant established probable cause when the
warrant was issued, “but the government’s delay in executing the
warrant . . . tainted the search;” and (2) when “the information on
which [the search warrant] rested was arguably too old to furnish
‘present’ probable cause.” United States v. McCall, 740 F.2d 1331,
1336 (4th Cir. 1984). Here, the affidavit in support of the search
warrant: provided background information about an ongoing
investigation into Deguia’s involvement in methamphetamine
trafficking; described the previous alert on the box containing
methamphetamine addressed to Glen Avenue; mentioned the affiant’s
belief that the packages containing methamphetamine that were
addressed to Hanyen Drive were intended for Deguia; stated that
Deguia was seen traveling from his home to the house on Hanyen
Drive around the time of an attempted delivery of the packages days
earlier; and revealed that Lasdulce, a person of interest in the
Deguia investigation, had—earlier the day the warrant was
requested—placed the boxes of methamphetamine in his pickup truck.
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Especially in light of the ongoing nature of the
investigation and Lasdulce’s having only hours earlier placed the
boxes in his truck, the information in the warrant was not stale.
The affiant also presented sufficient facts to establish probable
cause that contraband or evidence of a crime would be found at the
Hanyen Drive house. See Illinois v. Gates, 462 U.S. 213, 238
(1983). We conclude that the district court did not err in denying
the motion to suppress. The related argument concerning denial of
the motion for a new trial also fails.
III
We next consider Lasdulce’s sentence. After United
States v. Booker, 543 U.S. 220 (2006), we review a sentence to
determine whether it “is within the statutorily prescribed range
and . . . reasonable.” United States v. Hughes, 401 F.3d 540, 547
(4th Cir. 2005) (citations omitted). In determining
reasonableness, “we review legal questions, including the
interpretation of the guidelines, de novo, while factual findings
are reviewed for clear error.” United States v. Moreland, 437 F.3d
424, 433 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).
Lasdulce contends that it was error to consider amounts
of methamphetamine attributable to his codefendants when
calculating his base offense level. His argument fails in light of
the guideline directive that, to calculate the guideline range for
a coconspirator, “all reasonably foreseeable acts and omissions of
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others in furtherance of the jointly undertaken criminal activity,
that occurred during the offense of conviction, in preparation for
that offense, or in the course of attempting to avoid detection or
responsibility for that offense” are to be included. See U.S.
Sentencing Guidelines Manual § 1B1.3(a)(1)(B) (2004).
IV
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm.* This court requires counsel to inform his
client, in writing, of his right to petition the Supreme Court of
the United States for further review. If the client requests that
a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy of the motion was served on the client. We dispense with oral
argument because the facts and legal contentions are adequately set
forth in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
*
In his pro se brief, Lasdulce complains about enhancement of
his sentence based on his role in the offense. The record reflects
that there was no such enhancement.
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