United States v. Lartigue ( 2023 )

Case: 22-50126 Document: 00516623843 Page: 1 Date Filed: 01/26/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50126
Summary Calendar FILED
____________ January 26, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Cyril Lartigue,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:20-CR-156-1
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
A jury convicted Cyril Lartigue of possessing an unregistered
destructive device, specifically, a combination of glass bottles, a flammable
liquid, pieces of cloth, and a lighter, which constituted parts that Lartigue
intended to assemble into a Molotov cocktail, in violation of 26 U.S.C.
§ 5861(d). The district court sentenced him below the applicable guidelines
range to 24 months of imprisonment and three years of supervised release.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-50126
On appeal, he argues that (1) the statute of conviction was unconstitutionally
vague, (2) the district court erred by denying his motion to suppress,
(3) Twitter messages sent to Lartigue were inadmissible hearsay and violated
the Confrontation Clause, (4) the evidence was insufficient to convict him,
and (5) his sentence was procedurally and substantively unreasonable.
First, we have held that a person of reasonable intelligence would be
forewarned of what conduct is prohibited by § 5861(d) and that a Molotov
cocktail is a destructive device under 26 U.S.C. §§ 5845(f) and 5861(d).
United States v. Price, 877 F.2d 334, 337-38 (5th Cir. 1989); United States v.
Wilson, 546 F.2d 1175, 1177 (5th Cir. 1977); United States v. Ross, 458 F.2d
1144, 1145 (5th Cir. 1972); see also United States v. Howard, 766 F.3d 414, 428
(5th Cir. 2014). Accordingly, Lartigue cannot demonstrate a plain error as to
his argument that the statute is unconstitutionally vague. See United States v.
Anderton, 901 F.3d 278, 283 (5th Cir. 2018).
Next, Lartigue contends that the district court should have granted
his motion to suppress the evidence discovered in a warrantless search of his
backpack because, he claims, there were no exigent circumstances to justify
the search. Here, the evidence introduced at the suppression hearing showed
that law enforcement officers observed Lartigue on video assembling what
appeared to be a Molotov cocktail, which he placed in his backpack before he
was detained by police. Therefore, there was a fair probability that Lartigue
was in possession of a potentially dangerous device. See United States v.
Contreras, 905 F.3d 853, 858 (5th Cir. 2018); United States v. Juarez, 573 F.2d
267, 274 (5th Cir. 1978). Moreover, Lartigue was detained near a chaotic
protest, and there were multiple fires and fireworks in the area. Therefore,
police officers reasonably believed that the backpack, which potentially
contained an incendiary device or flammable liquid, posed a genuine danger
to people in the vicinity. See United States v. Daniels, 930 F.3d 393, 400-01
(5th Cir. 2019); see also Riley v. California, 573 U.S. 373, 402 (2014). A
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reasonable view of the evidence supports the district court’s findings that the
officers had probable cause to believe Lartigue was in possession of an
incendiary device and that exigent circumstances existed to justify a search
of his backpack. See Daniels, 930 F.3d at 401; Contreras, 905 F.3d at 858;
United States v. Massi, 761 F.3d 512, 520 (5th Cir. 2014).
Lartigue further argues that messages sent to him on Twitter were
inadmissible hearsay and that their admission violated the Confrontation
Clause. In the Twitter messages, Lartigue and another user discussed their
plans to attend protests against police violence, and Lartigue stated that he
planned to bring as many as three Molotov cocktails to a protest. The other
user’s statements, which discussed her own political beliefs and protest
plans, had no bearing on Lartigue’s alleged conduct in the case. Therefore,
the district court did not abuse its discretion by determining that the
statements were not admitted for the truth of the matter asserted in the
statements. See United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011);
Fed. R. Evid. 801(c); see also § 5861(d). Additionally, the statements were
not testimonial because they were not “solemn declaration[s] or
affirmation[s] made for the purpose of establishing or proving some fact,”
Crawford v. Washington, 541 U.S. 36, 51 (2004), and the district court did not
plainly err in admitting the messages, see United States v. Seale, 600 F.3d 473,
485 (5th Cir. 2010).
Lartigue next challenges the sufficiency of the evidence supporting his
conviction. In this case, in addition to the video showing Lartigue apparently
assembling a Molotov cocktail, Lartigue’s backpack contained lighter fluid, a
lighter, and two glass beer bottles, one empty and one full. These materials
alone, as components that could readily be combined into a destructive
device, constituted a destructive device. See § 5845(f)(3); see also Wilson, 546
F.2d at 1177. Moreover, text messages and Twitter messages sent by
Lartigue reflected his intention to bring Molotov cocktails to the protest.
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Accordingly, the record is not “devoid of evidence pointing to guilt,” nor is
the evidence “so tenuous that a conviction is shocking.” United States v.
Ocampo-Vergara, 857 F.3d 303, 306 (5th Cir. 2017) (internal quotation marks
and citation omitted).
Finally, Lartigue challenges his below-guidelines sentence. As to
Lartigue’s argument that the district court failed to consider all the 18 U.S.C.
§ 3553(a) factors, he cannot demonstrate plain error. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). The district court
delivered extensive reasons for imposing a below-guidelines sentence, and
the record reflects that the court considered the evidence, the arguments,
and the § 3553(a) sentencing factors. See United States v. Alvarado, 691 F.3d
592, 596-97 (5th Cir. 2012); United States v. Rodriguez, 523 F.3d 519, 525-26
(5th Cir. 2008); United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).
Regarding Lartigue’s substantive reasonableness challenge, he has not
overcome the presumption of reasonableness applicable to his sentence. See
United States v. Simpson, 796 F.3d 548, 557 & n.51 (5th Cir. 2015).
Given the foregoing, the judgment of the district court is
AFFIRMED.
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