United States v. Umberto Rubio , 535 F. App'x 251 ( 2013 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 13-4025
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    UMBERTO ALMAZAN RUBIO,
    Defendant-Appellant.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro. Catherine C. Eagles,
    District Judge. (1:12-cr-00191-CCE-1)
    Submitted:   July 9, 2013                 Decided:   July 24, 2013
    Before AGEE, GREGORY, and FLOYD, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Louis C. Allen, III, Federal Public Defender, Greensboro, North
    Carolina, Mireille P. Clough, Assistant Federal Public Defender,
    OFFICE OF THE FEDERAL PUBLIC DEFENDER, Winston-Salem, North
    Carolina, for Appellant.   Ripley Rand, United States Attorney,
    Michael F. Joseph, Assistant United States Attorney, OFFICE OF
    THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Umberto Almazan Rubio (“Rubio”) pled guilty to possession
    of a firearm by an illegal alien in violation of 
    18 U.S.C. §§ 922
    (g)(5)     and     924(a)(2).        The     district     court   imposed       a
    within-Guidelines sentence of 24 months’ imprisonment.                        Rubio’s
    guilty plea was conditioned on his ability to appeal the denial
    of his motion to suppress the evidence seized pursuant to a
    search warrant.         On appeal, he contends that the district court
    erred   in    denying    his    motion    to   suppress    because      the     search
    warrant      application       included    stale     information.          He      also
    contends that his sentence is unreasonable because it is greater
    than necessary to accomplish the goals of 
    18 U.S.C. § 3553
    (a).
    For   the    reasons    that    follow,   we     affirm   the   judgment      of    the
    district court.
    I.
    On April 25, 2012, deputies of the Guilford County, North
    Carolina Sheriff’s Department executed a search warrant looking
    for evidence of cockfighting at 5101 Watlington Road, Lot A,
    Greensboro, North Carolina, a residence known to have been used
    for cockfighting in 2009.           The warrant also allowed a search of
    the persons of Rubio, Jose Homar Olvera Ramos (“Ramos”) (who is
    related to Rubio’s wife), and their vehicles.
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    The search warrant application included the affidavit of
    Deputy   Sheriff       S.D.     Jarrell     (“Deputy    Jarrell”),     a    nine-year
    veteran of the Guilford County Sheriff’s Department.                       As part of
    his affidavit, Deputy Jarrell set forth the fact of a prior
    search at the Watlington Road residence on May 14, 2009, and
    that Ramos, who was specifically listed in the search warrant at
    issue in this case, had been indicted on October 5, 2009, for
    cockfighting.          Deputy Jarrell noted that Ramos had entered a
    guilty plea to misdemeanor animal cruelty on February 14, 2011,
    and been placed on probation for eighteen months.                     One condition
    of Ramos’s probation was that he not possess any chickens.
    Deputy         Jarrell’s    affidavit       also   chronicled     various        law
    enforcement contacts at the Watlington Road residence throughout
    2011 and 2012, during which several officers had visited the
    premises      and    observed     signs     of   chickens     and   roosters     being
    raised for cockfighting:
    •   On    July     1,    2011,   Officer     Garrard     of    Guilford    County
    Animal Control visited the premises to determine if a dog
    had been vaccinated for rabies.                 While on the premises,
    she    observed      over    150   roosters    and    chickens,       some    of
    which had combs trimmed, spurs cut, and were tethered.
    •   On December 2, 2011, Deputy Jarrell was at the residence
    to serve an unrelated warrant and observed chickens.                         No
    action was taken, however, because at that time, Deputy
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    Jarrell was unaware that a resident of the premises was
    on probation and not allowed to have chickens.
    •   On March 21, 2012, Guilford County Deputy Crisp visited
    the    residence    to     investigate      a    noise   complaint     and
    observed at least one hundred roosters on the premises.
    •   On March 26, 2012, Guilford County Deputy Murphy observed
    a tethered rooster with a trimmed comb and wattle on the
    premises.
    •   On    April   1,   2012,   officers       were   again   called   to   the
    residence     in   reference    to    a    noise   disturbance.        The
    complainant stated that there were chickens and roosters
    at the residence continually making noise.
    Deputy Jarrell concluded the search warrant application with a
    summary of the events that occurred nine days before the search
    warrant was issued and executed:
    On April 16, 2012[,] yet another noise
    disturbance   was   called    in   for   5101
    Watlington Rd, Lot A, Greensboro.        This
    applicant was the responding officer.    When
    this applicant pulled into the driveway,
    Jose Omar Olvera Ramos’ Beetle, tag ADY6883,
    was parked in the driveway.    This applicant
    spoke with Umberto Rubio’s wife, Maralee
    Mar, and explained that this applicant had
    received a noise complaint. Mrs. Mar stated
    that it was time for her to feed the birds,
    that’s why they were making so much noise.
    This applicant walked over to where the
    chicken coop was and observed a rooster that
    had its comb and wattle cut. This applicant
    also observed two wooden anchors in the
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    ground with tether straps attached to same.
    These wooden anchors are used to tether the
    roosters.   In the make shift fence, this
    applicant observed a clear, dark colored
    bottle that appeared to be an antiseptic
    bottle.
    All of the items combined are indicative
    that the residents are training the roosters
    for fighting.    Mrs. Mar stated to me that
    her husband enjoyed cockfighting and that he
    and her brother-in-law, Jose Omar Olvera
    Ramos,    just   got    back  from    selling
    approximately 60 roosters and chickens in
    Mexico   over  the   weekend.    There   were
    approximately eighty (80) roosters, hens,
    cockerels, and chicks.
    (J.A. 79.)
    When the search warrant was executed on April 25, 2012,
    officers found three firearms in the residence, as well as two
    identification documents with Rubio’s photograph.           It was later
    determined    that   one   of   the       identification   cards   was   a
    counterfeit United States Alien Resident Registration Card.
    Rubio was arrested and transported to the Guilford County
    Sheriff’s Department, where he was advised of his Miranda rights
    in Spanish.     Rubio waived his rights and agreed to speak with
    officers.     He admitted ownership of two of the three firearms.
    Rubio was determined to be a native and citizen of Mexico, and
    present in the United States without having been admitted or
    having obtained the permission of the Attorney General or the
    Director of Homeland Security.
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    On    May    29,    2012,    Rubio       was   indicted       on    one     count    of
    possession of a firearm by an alien, in violation of 
    18 U.S.C. §§ 922
    (g)(5) and 924(a)(2), and one count of possession of a
    forged       and       counterfeit      alien    registration            receipt      card,      in
    violation of 
    18 U.S.C. § 1546
    (a).                            He subsequently moved to
    suppress         the    evidence       seized    in    the    April      25,     2012    search,
    contending that the search warrant lacked probable cause because
    it contained stale information from 2009.                                The United States
    District Court for the Middle District of North Carolina denied
    Rubio’s          motion,      finding    that    the       warrant       was    supported        by
    probable cause and there was no staleness because the affidavit
    included information that was obtained “just a few days before
    the search warrant was sought.”                  (J.A. 72.)
    On August 15, 2012, Rubio entered a conditional guilty plea
    on    the    count       of    possession       of    a    firearm       by    an    alien,     but
    reserved         the    right    to     appeal       the   denial     of       his    motion     to
    suppress.
    Rubio appeared for sentencing on November 27, 2012.                                      His
    advisory Guidelines range was 24 to 30 months’ imprisonment, and
    he requested a sentence below the Guidelines range, arguing that
    his   early        admission      of    wrongdoing,         lack    of    criminal       record,
    family needs, and passive possession of the firearms warranted a
    below-Guidelines sentence.                  The district court denied Rubio’s
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    request and imposed a sentence at the low end of the Guidelines
    range, explaining as follows:
    I’ve considered the argument that a sentence
    below    the    guideline   range    might   be
    appropriate because of Mr. Rubio’s lack of
    criminal    record,   his   family   and   work
    stability, the passive possession of the
    firearm    and    his   early   statement    of
    responsibility      to     law     enforcement.
    Certainly those factors are important.        I
    think they do justify a sentence at the low
    end of the guideline range, but because of
    the number of guns, I don’t know that – I
    don’t feel comfortable going below the
    guideline range.
    It is obviously a serious offense, and given
    that he did admit to personally possessing
    two of the guns, and there was a third one
    there, I think that a sentence within the
    guideline range is needed to reflect the
    seriousness of the offense.
    (J.A. 149–50.)      Rubio was sentenced to 24 months’ imprisonment
    and a two-year term of supervised release.
    He now appeals, and we have jurisdiction pursuant to 
    18 U.S.C. § 3742
    (a) and 
    28 U.S.C. § 1291
    .
    II.
    Rubio raises two central issues on appeal.           First, Rubio
    contends that the district court erred in denying his motion to
    suppress because the affidavit in support of the search warrant
    contained   stale   information.    Second,   Rubio   argues   that   his
    sentence is unreasonable because it is greater than necessary to
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    accomplish the goals of 
    18 U.S.C. § 3553
    (a).                                We hold that the
    district court did not err in either respect.
    A.
    We first address Rubio’s claim that his motion to suppress
    was    wrongly     denied    on    grounds         of     staleness.          We    review   the
    factual      findings     underlying       a    motion          to    suppress      ruling   for
    clear    error,     and   the      legal    determinations              de    novo.       United
    States v. Grossman, 
    400 F.3d 212
    , 216 (4th Cir. 2005).                                     “When
    such a motion is denied, we review the evidence in the light
    most favorable to the government.”                       
    Id.
    Rubio argues that the search warrant relevant to his case
    is    invalid      because    the     supporting               affidavit      included     stale
    information.        Rubio specifically references the dates of May 14,
    2009    (prior      search    at     the    Watlington               Road    residence),     and
    October      5,    2009      (indictment            of     Ramos       for     cockfighting),
    contending that such events occurred nearly three years before
    the execution of the search warrant, and that the warrant thus
    “lacked      any     information       of          cockfighting             close    to   [its]
    execution.”        (Appellant’s Br. 7.)
    The    district       court    rightly            rejected       Rubio’s       staleness
    argument.         As we have made clear, “the vitality of probable
    cause cannot be quantified by simply counting the number of days
    between the occurrence of the facts supplied and the issuance of
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    the affidavit.”      United States v. Rhynes, 
    196 F.3d 207
    , 234 (4th
    Cir. 1999) (brackets omitted); see also United States v. Spikes,
    
    158 F.3d 913
    ,   923   (6th    Cir.       1998)   (staleness    not   measured
    “solely by counting the days on a calendar”).                    “Rather, we must
    look to all the facts and circumstances of the case, including
    the nature of the unlawful activity alleged, the length of the
    activity, and the nature of the property to be seized.”                     United
    States v. Farmer, 
    370 F.3d 435
    , 439 (4th Cir. 2004) (quoting
    Rhynes, 
    196 F.3d at 234
    ).
    Here, under the totality of the circumstances, there was
    ample evidence to support a finding of probable cause.                      Deputy
    Jarrell’s supporting affidavit referenced the May 2009 search
    warrant and the October 2009 arrest of Ramos and his subsequent
    conviction for animal cruelty, which reflected the continuing
    nature   of   alleged      criminal   activity        at   the   Watlington     Road
    residence.      As recounted in the search warrant affidavit, on
    several occasions from July 2011 until April 2012, officers were
    repeatedly     dispatched     to    the       Watlington    Road    residence     to
    investigate noise complaints related to the numerous roosters,
    chickens, and other fowl that were kept there.                      The officers
    detailed their observations of roosters that had their combs and
    wattles cut, wooden stakes in the ground which were used to
    tether the roosters, and bottles that contained antiseptic for
    the birds.      Most significantly, Deputy Jarrell responded to a
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    noise complaint on April 16, 2012 – nine days prior to the
    execution of the search warrant – and observed a rooster that
    had its comb and wattle cut, wooden anchors with tether straps,
    and an antiseptic bottle, items “all [of which] combined are
    indicative [of] training the roosters for fighting.”                      (J.A. 79);
    see Emery v. Holmes, 
    824 F.2d 143
    , 149 (1st Cir. 1987) (“Where
    recent    information        corroborates      otherwise     stale      information,
    probable cause may be found.”).              In light of all of these facts,
    we cannot agree with Rubio that there was insufficient probable
    cause to search the Watlington Road residence.                          We therefore
    conclude that the district court did not err in denying Rubio’s
    motion to suppress.
    B.
    Rubio also contends that the district court should have
    granted his request for a sentence below the advisory Guidelines
    range    because     he    presented    mitigating      evidence       demonstrating
    that a sentence within the advisory Guidelines range was greater
    than necessary.           We review Rubio’s sentence under a deferential
    abuse-of-discretion         standard,    see     Gall   v.   United     States,   
    552 U.S. 38
    ,    51        (2007),      for     procedural        and     substantive
    reasonableness.         Id.; United States v. Lynn, 
    592 F.3d 572
    , 575
    (4th    Cir.   2010).        If   a   sentence    is    within    the    appropriate
    Sentencing Guidelines range, we presume that the sentence is
    10
    reasonable.      United States v. Mendoza-Mendoza, 
    597 F.3d 212
    , 217
    (4th Cir. 2010).       Such a presumption is rebutted only by showing
    “that the sentence is unreasonable when measured against the [18
    U.S.C.] § 3553(a) factors.”              United States v. Montes-Pineda, 
    445 F.3d 375
    , 379 (4th Cir. 2006).
    We    conclude     that      the    district      court   committed   neither
    procedural      nor   substantive        error    in   sentencing.       The   court
    accurately calculated and considered Rubio’s Guidelines range,
    heard argument from counsel for a sentence below the advisory
    Guidelines range, and gave Rubio an opportunity to address the
    court.       The court fully considered all of the reasons Rubio
    offered    in    support     of    his    argument      for    a   below-Guidelines
    sentence — his early admission of wrongdoing, lack of criminal
    record, family needs, and passive possession of the firearms —
    but explained that the within-Guidelines sentence was warranted
    in light of the seriousness of the offense.                    On appeal, counsel
    does not offer any grounds to rebut the presumption that Rubio’s
    within-Guidelines sentence is substantively reasonable, and our
    review reveals none.         The district court thus did not abuse its
    discretion in sentencing Rubio.
    III.
    For the foregoing reasons, we affirm the judgment of the
    district   court.       We   dispense      with     oral   argument    because   the
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    facts   and   legal    contentions    are   adequately   presented    in   the
    materials     before   this   Court   and   argument   would   not   aid   the
    decisional process.
    AFFIRMED
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